ADVOCACYNET 396, June 12, 2023
In a dispute with profound implications for human rights, families of those who disappeared during the 10-year conflict in Nepal have accused international human rights organizations of putting international law before the needs of victims and trying to derail a government plan to investigate the fate of their missing loved ones.
As well as exposing a deep difference in strategy and priorities between two allies, the dispute challenges the conventional wisdom that countries emerging from conflict or repression must first bring perpetrators to justice if the wounds are to heal.
The rift has arisen over a recent government proposal to prosecute four heinous crimes that occurred during the war – torture, rape, summary killings and disappearances – before a special court. All other violations would be referred to Nepal’s legal system and could be liable for an amnesty.
The plan would also revive two commissions that were set up in 2015 to promote truth and reconciliation and investigate disappearances but were widely criticized before they lapsed.
The new package was denounced on March 23 by Human Rights Watch from Geneva as a contravention of international law that would “protect abusers not victims.” Human Rights Watch also claimed to have the backing of Nepali victims and their families, noting that 42 Nepali groups had issued a statement on March 15 opposing the government proposal.
This drew a rebuke from Ram Kumar Bhandari, a prominent survivor and advocate who formed the Network of Families of the Disappeared (NEFAD) after his own father was detained by police and disappeared on December 31, 2001. The Advocacy Project has partnered with NEFAD since 2015.
Speaking from Kathmandu, Mr Bhandari said that over 25 of the 42 Nepali groups have disavowed the March 15 statement and formed a new coalition, the National Network of Victims and Survivors of Serious Human Rights Violations, to negotiate with the government.
The new group has issued its own demands and met twice with Nepal’s Prime Minister. The fact that survivors are speaking with one voice and are listened to with respect by the government meets one of their key demands, which is to control their own agenda and be recognized, said Mr Bhandari.
“External actors must not be allowed to derail this process,” he said, adding that his group will publicly denounce such “spoilers” if they continue. “We have been talking about transitional justice for seventeen years. It is time for action.”
The conflict in Nepal was sparked by a Maoist rebellion in 1996 and claimed over 18,000 lives before it ended in 2006 with a ceasefire followed by a comprehensive peace agreement. The government has named 1,512 Nepalis who disappeared, although the actual number is probably nearer 2,500.
The peace agreement called for transitional justice, but prosecutions have been ruled out by the Nepal army and police, whose forces were responsible for most disappearances and killings.
Similar tensions have complicated the transition to peace in many countries, but Mr Bhandari said that accountability is more of a problem for lawyers than survivors in Nepal.
While advocates worry about the threat to international law from impunity, he said, families are still coping with grief and social exclusion in their communities, where many were suspected of collusion with the rebels. Many are from the Tharu, one of the most marginalized minorities in Nepal, and were thrust deeper into poverty by the disappearance of the family breadwinner.
These pressures play out in villages far from Kathmandu and have produced a deep craving for the truth, social recognition and material support, said Mr Bhandari. Yet such needs are generally ignored by “legal elites” in the capital.
“My mother is not interested in international norms,” he said. “She wants to know how she will find her next meal.”
Mr Bhandari said that several provisions in the government package address the needs of survivors and have been welcomed by families. One will ensure the right to reparations. Another will allow widows to reclaim property that belonged to their late husbands.
“We do not want these to be lost in this confrontation over accountability,” said Mr Bhandari.
The rift between survivors and human rights groups has exposed a profound difference in strategy as well as priorities. While the groups are using traditional advocacy to denounce the government, survivors have chosen political engagement at the national level and in districts.
In Kathmandu this means negotiating with Prime Minister Pushpa Kamal Dahal, who led the Maoist uprising in 1996 and is deeply suspect to many human rights advocates. Some have called for his prosecution by the International Criminal Court for crimes committed by Maoists during the war.
While Nepalis remember the suffering caused by the Maoists, this is Mr Dahal’s third spell as Prime Minister, which suggests that he has broad support in the country and may hold out the best hope for a compromise over transitional justice. In addition, the government recently sent a delegation to study Colombia’s transition from civil war to peace, which is widely seen as a success.
Outside Kathmandu the new network of survivors is also pushing for the election of family-members to local government in areas that suffered a high number of disappearances. Several have succeeded in getting money allocated for memorials and even introduced the narrative of survivors into school textbooks. Such moves boost the confidence of survivors in their communities and address their need for recognition.
The network is also encouraging children of the disappeared to become politically active, said Mr Bhandari. This is modeled on HIJOS, an association for children of those who disappeared in Argentina.
Although legal accountability may not be his first objective, Mr Bhandari has demanded justice repeatedly and even publicly accused three senior officials of being responsible for the disappearance of his own father. He also noted that the new network of survivors has called for an investigation at army bases where the bodies of victims are thought to be buried.
“Of course, we are not against justice,” he said. “The question is how to achieve it without losing everything else.”
One answer could lie with the two commissions, on truth and disappearances. The commissions were set up in 2015 and were widely denounced for being ineffective and politicized before they lapsed. Human Rights Watch has pointed out that they received over 60,000 complaints and failed to launch a single investigation.
But the government will shortly name new commissioners and Mr Bhandari appealed for international support to ensure that they are independent and representative of survivors. This offers the best hope that the commissions will reflect the survivors’ experience, insist on generous compensation, support innovative forms of commemoration, and produce credible reports.
The two commissions will also have the power to recommend prosecutions for the most serious crimes to the Attorney General and even appeal decisions to the Supreme Court.
Much can be done if there is the political will, said Mr Bhandari. And as family members gain more power locally, it is even conceivable that village councils could call for the exhumation of bodies and name perpetrators within their jurisdictions.
“We won’t know until we try,” said Mr Bhandari. “But after 17 years of frustration, this may be our last best chance.”
This is the second of two articles on transitional justice. Click here for the article on Uganda.