Nepal and the Age of Accountability
From The Kathmandu Post (03 January, 2014)
The parties are wrong if they think they can get away without seeing justice done on the murder of Krishna Prasad Adhikary
Gangamaya and Nanda Prasad Adhikary are in the 72nd day of their fast and they survive with the doctors having placed a sub-clavical tube to pass nutrients. Willing to fight for justice at the cost of life itself, to see the prosecution of those who murdered their son Krishna Prasad in 2004, the campaign of this couple is regarded as an enormous nuisance by the present interim administration, the Maoists (including the perpetrators in their ranks) and even the so-called democratic parties.
More than one police officer and bureaucrat burdened with handling the fasting couple at Cabin No 16-17 at Bir Hospital says that the formation of the Truth and Reconciliation Commission (TRC) would be a relief. They are, of course, quite mistaken in this hope and expectation. The TRC ordinance, which had the fingerprint of all the major parties and had been okayed by President Ram Baran Yadav, was an anti-people document meant to provide general amnesty to war criminals.
That ordinance was fortunately stayed by an alert Supreme Court but it is the same cast of characters that are in power today, though the permutation may have changed after the election. There is, therefore, every reason to be on guard about the kind of ‘transitional justice’ that will be foisted on the victims and populace. Itself a new concept not properly understood as ‘sankramankaleen nyaya’ even by members of the intelligentsia, ‘transitional justice’ has been misused by the Maoists, with the security forces (with perpetrators in their ranks as well) as willing collaborators. Neglectful politicians from the Congress and UML signed on the dotted line and many diplomats in Kathmandu were bamboozled into believing that the peace process would collapse if they too did not go along with the attempt to entrench impunity.
Even the title of the TRC (Satya nirupan tatha ‘melmilap’ ayog) was translated with prejudice, with ‘reconciliation’ tendentiously translated as ‘friendship’. The people were thus made to believe that accepted international practice was to avoid investigation on grave human rights abuses in the context of internal conflicts—that the victims are supposed to simply pocket compensation and forgive the perpetrators who killed, raped, tortured and disappeared their loved ones.
Fortunately, there are citizens such as Gangamaya and Nanda Prasad Adhikary, with such a sharp and instinctive understanding of justice that they do not need to hear from uncaring national and international ‘post-conflict consultants’. They have a crystalline memory of their son and believe in the need for those who killed him to be brought to justice, during their lifetime or thereafter. They seek criminal prosecution and will not accept the TRC as it is being peddled.
Fortunately, the Adhikary couple is not lacking in company, and among both the victims of state and Maoists from the conflict era, individuals who will not disappear quietly into the post-conflict night with their pain and sorry. These include Devi Sunar (mother of Maina), Jaikishor Lab (father of), Sushila Oli, Suman Adhikari (son of Muktinath) and Purnimaya Lama (spouse of Arjun Bahadur).
These individuals refused to maintain meek silence during the darkest hour, when the Maoists had the intelligentsia in their grip and the ambassadors were in awe of Pushpa Kamal Dahal. Now, there is no possibility that the path to justice on conflict era excesses will be blocked.
No forgive, no forget
It is easy for those who have not been hit by a murder, rape, disappearance or torture to affect the forgive-and-forget attitude. Meanwhile, what the victims want is not revenge, but justice. These victims are the lodestars of society—by insisting on criminal prosecutions despite the pain, they create a deterrent and protect society from a future run of abuse and excess. True, the formula may not work everywhere but this is the right one for Nepal as a country with a developed human rights jurisprudence (not visible to most international observers because our case law is in the Nepali language). Fortunately, what is instinctively felt by the victims of the Nepal conflict also corresponds with the evolving international understanding of transitional justice, as detailed in a new volume titled Amnesty in the Age Human Rights Accountability (Cambridge, 2012). To paraphrase some of the ideas contained in the book:
The state is no longer the arbiter of how to deal with serious human rights violations and international crimes. State establishments and political forces are no longer at liberty to implement ‘reconciliation’ measures through amnesties that further a state of impunity. Blanket amnesties exempting perpetrators are not a necessary condition for achieving peace and are a violation of a state’s obligations under international law. “It is justice and accountability measures than can help ensure sustainable peace.” An end to impunity is only be possible when we recognise “the inseparability of justice and peace.” If states fail to prosecute alleged perpetrators, “the principle of universal jurisdiction empowers any state to bring to trial persons accused of gross human rights abuse, regardless of the place of commission of the crime or the nationality of perpetrator or the victim.”
Perpetrators to politicians
Despite the evolved jurisprudence and practice of transitional justice, the politicians of Nepal have their heads in the sand. There is Col Kumar Lama being prosecuted in the UK, Agni Sapkota unable to visit Australia, and so many other Maoist leaders thinking twice about boarding a plane—and yet the politicians do not seem to want to see what stares them in the face. Theirs is an agenda to convert Nepal into an international pariah, a lawless nation where impunity reigns supreme, the rights and feelings of victims are dumped on and perpetrators appeased.
The Maoists and the national army and police are tarnishing their own institutions, as well as the nation as a whole, when they insist on protecting the perpetrators within their ranks—rapists, torturers, abductors and murderers. Meanwhile, the leaders of the ‘democratic parties’ are unwilling to listen to the Supreme Court of Nepal, which said so many times that the future TRC is not meant to replace criminal justice procedures of grave human rights abuse. (Stop press: Yesterday, Thursday, the Supreme Court issued a landmark judgement voiding the ordinance and standing firmly against blanket amnesty.)
Intent on appeasing the Maoists for their own political ends, it looks like the democrat-politicians will only desist if they are told that their own careers will be jeopardised if they act against the victims. For starters, Messrs Koirala, Khanal, Nepal, Deuba and Oli need to read the briefing note brought out by the UN’s OHCHR, which clarifies the point. Let the leaders understand that abetting amnesty on a war crime is different from committing a war crime only on a matter of degree.
It is under these circumstances that Nanda Prasad and Gangamaya today enter the 72 day of their fast. The civil society stalwarts are not bothered to visit Cabin No 16-17. But there are victims, there is a group of youth which will not allow the memory of Krishna Prasad to lapse, there are the white butterflies of Milan Rai on the New Road-Tundikhel stretch, alerting the public to the fasting couple, behind that second floor window at Bir Hospital.
The Accountability Watch Committee published its latest report on the Krishna Prasad murder investigations and his parents’ fast for justice the day before yesterday, on 1 January 2014 (see www.awcnepal.org). Besides a detailed description of the entire episode and the continuing saga, AWC pinpoints that those responsible must be held accountable for responding immediately to the demands of the fasting couple: the ‘democratic’ political parties, which must create conditions allowing independent investigation; the international community, which cannot stand as a mute spectator while the Adhikary couple engages in the Gandhian act of fasting for the attainment of justice; civil society nationally and in Chitwan District, which must wipe away the atmosphere of fear and intimidation that keeps witnesses from coming forward.
Each must understand personal responsibility for the delivery of justice and the failure of transitional justice so far. We are in the same fight as Gangamaya and Nanda Prasad, if we only knew it.