From The Kathmandu Post (22 Nov, 2012)
Before the UN rights watchdog OHCHR was made to leave Nepal exactly a year ago, it was diligently engaged in collecting and analysing documents relating to excesses committed during the 1996-2006 conflict. On October 8, the Office of the High Commissioner for Human Rights went public with the Nepal Conflict Report, 2012. It is said to have been pushed to do so by the rising impunity in Nepal as exemplified by the present regime’s general amnesty drive, promotion of alleged perpetrators in police and Army, and the unacceptability of the transitional justice ordinances presented to the president.
The content of the Nepal Conflict Report (NCR) is a summary of the Transitional Justice Reference Archive, available on the web, which studies 9,000 incidents from the conflict period and includes 30,000 related documents. A perusal of the report is heart-rending—it confirms once again that the level of violence forced upon the public was at a very, very intense level. The report points to a horrendous era of bloodletting that visited the rural populace.
The NCR describes excesses of both Maoists and state security forces, basing itself on the documentation gathered by the human rights group INSEC as well as NHRC and ICRC. Protecting sensitive documents in the archives in Geneva, OHCHR has consolidated scattered information and related the incidents of the Nepal conflict to applicable international law.
Having studied the patterns and trends in relation to the killings, disappearances, rapes, torture and abductions, the High Commissioner comes to the conclusion that most fall under the category of war crimes
or crimes against humanity. The excesses of the war period are thus no longer a matter of national law, because international law has been violated and international remedies can be sought if the state proves unwilling or incapable.
People’s victimisatoin
The transitional justice process of Nepal thus far has been a farce directed by the Maoists to divert national and international attention as they settled down into open politics. Meanwhile, the opposition parties lost political will and became party to the unspoken agreement between the national Army and the Maoist leadership to let “bygones be bygones”, demeaning the victims of both sides, their families and the public at large. The opposition parties became party to the ludicrous bills on the truth/reconciliation and disappearances commissions presented to the Legislature-Parliament. The Bhattarai coalition then went one step further, with ordinances that pushed general amnesty for perpetrators.
The OHCHR’s documentation and analysis provides a high threshold from which to re-engage in the identification and prosecution of wartime perpetrators. To provide perspective on the voluminous information and evidence, the report highlights 40 cases, including those of Doramba*, Bhairabnath, Maina Sunar and Muktinath Adhikary. The first task for the national justice system, with or without the two proposed commissions, would be to carry out investigations and prosecutions on these emblematic cases.
Black spot
“Over the past several years,” says lawyer Hari Phuyal, “the human rights activists who advised Maoists leaders to build a credible transitional justice mechanism were treated with extreme suspicion.” Trapped by their own arrogance, the Maoist leadership helped create a situation where the Nepal war crimes have now been internationalised. In the absence of national remedy, the OHCHR has provided the basis for prosecution of the accused in any country. In the absence of credible national remedy, the Maoist leaders and accused officers of the security forces will have to think twice before travelling overseas, particularly to certain countries of Europe where human rights figures higher than geopolitics.
It is time for the Nepal Army leadership to decide whether to remain a shameful and silent partner of the Maoists in the attempt at wholesale impunity, or to come clean and allow civilian justice to pursue the perpetrators within its ranks, whether active or retired. Does the national army value its image and that of the nation it serves, does it plan to revert to its position as proud member of the UN peace-keeping force, and does it care for the careers for its serving soldiers and officers?
Meanwhile, the Maoist leaders who have planned long innings in politics without answering for atrocities committed will hopefully find their journey made more difficult by the NCR and the energy it releases. They would rue the bravado with which earlier they publicised their wartime excesses. They are now haunted by the video clips showing the killing of captives, the fresh photographs of victims of torture, the press releases making claims of “safaya” (elimination), and so on. The Maoist leadership would like to rub out the black spot, as Lady Macbeth would have, but it is going to prove difficult.
In a 2006 interview, soon after coming above ground, Maoist Chairman Pushpa Kamal Dahal thought he was emphasising his thoughtfulness when he told the BBC Nepali Service, “Our instruction to the rank-and-file (during the conflict) was to eliminate without torture.”
Republic of Impunity
The OHCHR has done singular service to build Nepal’s future as a country in democratic peace, where human rights and rule of law are held sacrosanct. The same can be said for the UN Resident Coordinator’s Office in Kathmandu, which supported the preparation of the report through the Nepal Peace Fund.
When OHCHR let it be known in late September that it was releasing the NCR, Foreign Minister Narayan Kaji Shrestha went on overdrive to try and block the publication. Fortunately, the Europeans countries including the UK were united in fending off the Maoist attempt. This evident “zero tolerance” on the matter of atrocities and support for quality transitional justice mechanisms has been invaluable at a time when the Bhattarai regime seeks to define Nepal as a Republic of Impunity.
The release of the report has evidently created a sizeable earthquake in the Maoist ranks, understandable given the political careers that hang in balance. Teams are said to be pouring over the report and trying to discover whether the documentation held back in the Geneva archives includes names in the area-wise chain-of-command.
For all that, the absence of contrition is palpable even today, with the UCPN(M) chairman taunting the entire citizenry by appointing a murder-accused as party spokesperson. That so many among the Kathmandu power elites meekly accepted this elevation of Agni Sapkota helps explain why the Nepal Conflict Report is vital for the polity’s return to civilised sanity.
Together with the lawyer Hari Phuyal quoted here, the writer was part of the team that investigated the August 2003 Doramba killing of unarmed Maoist activists by the Royal Nepal Army