Nepal

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ICTJ Activity

In April 2006 an extraordinary mobilization of Nepalese civil society forced the monarchy to surrender power. The subsequent Comprehensive Peace Agreement (CPA) led to the installation of an interim government and agreement on a schedule for elections. These events also provided the opportunity for renewed debate on truth, justice, and accountability in relation to the mass violations that had taken place before the ceasefire. Building on previous engagement with local partners, ICTJ established a full-time presence in Kathmandu in August 2007.

In collaboration with its local partner, Advocacy Forum, the ICTJ organized three national workshops in August 2007 on truth commissions, reparations, and enforced disappearances. The workshops shared lessons from previous truth and reconciliation commissions, particularly those in South Africa, Sierra Leone, and Peru, as well as providing practical examples of mechanisms for reparations to victims in other post-conflict nations. Resource persons included Yasmin Sooka, former commissioner with the South African and Sierra Leone Truth Commissions, and Sophia Macher, former commissioner of the Peruvian Truth and Reconciliation Commission.

Also in August the ICTJ officially submitted comments on the Truth and Reconciliation draft bill prepared by the Ministry of Peace and Reconstruction (MOPR). Although the ICTJ welcomed the government initiative to form a truth commission, the draft included a number of problematic provisions. These included a narrowly conceived mandate, insufficient guarantees of independence and impartiality of commissioners, provision of amnesty for those who had committed gross human rights violations, a requirement that victims forgive perpetrators to receive reparations, and lack of sufficient consultation with stakeholders in the preparation of the bill.

Although the transitional justice model includes mechanisms to deal with a history of mass violations, the debate in Nepal largely has been confined to the proposed Truth and Reconciliation Commission. The ICTJ is actively trying to broaden the parameters of national interest to include prosecution of those responsible for serious violations, reparations for victims, reform of security-sector organizations, and creation of appropriate memorials to assist healing.

In conjunction with the Accountability Watch Committee and the OHCHR, in October 2007 the ICTJ organized a workshop on prosecution of those responsible for violations. During the meeting Patrick Burgess, the ICTJ's Asia director, presented the experience of Indonesia and East Timor regarding prosecutions and lessons learned from these experiences. The workshop explored current failure of Nepalese legal institutions to deal effectively with conflict-related violations. A common theme expressed by local actors was that law enforcement agencies, particularly the police, show little interest in or enthusiasm for dealing with victims' complaints of serious violations such as killings, disappearances, and rape. Thus victims have no way to exercise their right to a legal remedy and justice. In addition lawyers involved in the workshop highlighted the inadequacies of the Nepalese legal system in dealing with the kinds of crimes committed during the conflict. For example, no law criminalizes forced disappearance or torture; the statute of limitations obstructs the delivery of justice to victims, especially in cases of rape; and measures are lacking to protect witnesses. Participants agreed on the need for civil society to act in a unified manner to exert effective pressure on the government to enforce the current laws and take steps to draft new legislation where required.

At the end of November 2007 the government reactivated the discussion on forced disappearance by asking the ministry to renew attention to the issue of forced disappearances in Nepal. The government asked the home ministry to draft a bill establishing a Commission for the Disappeared. To provide local actors with the benefit of international expertise and experience the ICTJ invited Madeleine Fullard, head of the Missing People Program at the South Africa General Attorney's Office and former senior researcher with the South Africa Truth Commission, to conduct a needs assessment mission in Nepal. The purpose of her visit was to map the ongoing initiatives on disappearances in Nepal and identify priorities in planning meaningful and coordinated interventions. In addition, in December 2007 the Center organized a national two-day workshop, "Challenges in Establishing Accountability for Disappearances in Nepal: Lessons Learnt in South Africa, Peru, India, and Sri Lanka." International experts made presentations and assisted local actors to develop strategies.

One of the workshop's results was recognition of the need for clear, objective information regarding the views of victims on truth, justice, and reparations, so that policy and strategic interventions might be based on accurate information. In partnership with Advocacy Forum the ICTJ designed and implemented a study to systematically gather this information. The methodology included an in-depth individual survey of 811 victims and family members of victims. In addition, 10 focus group discussions (FGD) took place in different districts of the country. The focus groups were divided into discussions of internally displaced persons (IDPs), women victims of sexual violence, child soldiers, and disappearances. Separate discussions took place with marginalized communities including Dalits, Janjatis, Madhesis, and women.

Download the full report for the results of the survey, including recommendations to the government of Nepal and the international community. A summarized version of the views expressed by victims appears below.

Causes

Social problems such as long-standing structural inequality, "untouchability," and entrenched caste inequality were universally identified as major causes of the conflict. In the words of a victim who participated in the focus groups, "The reason behind the conflict is the prevalent discriminatory practice among different classes, the haves and the have-nots, educated and illiterate, various castes and creeds, various religions, oppressors and oppressed, and male and female."

Political developments

A majority of respondents had heard about the CPA (71 percent) and the Constituent Assembly (CA) elections (82 percent). However, these results also show that significant numbers were not aware of these major political developments. The overwhelming majority (90 percent) said that individuals involved in human-rights violations should not be able to participate in the CA elections. More than half of respondents said they did not know what provisions should be included in the Constitution to ensure an independent and fair justice system in the future.

Truth

Across regions, castes, and ethnic groups there was consensus that a Truth and Reconciliation Commission should be established, but only after broad consultation and a transparent process to appoint commissioners. In addition a commission should establish the whereabouts of those who have disappeared. No one in the focus group discussions suggested that the TRC should provide amnesty.

Justice

The overwhelming majority of the respondents (90 percent) wanted trials and punishment of those found responsible for past human-rights violations. A significant majority (69 percent) supported holding trials in Nepal, but many thought that the current laws might prove inadequate to carry out effective prosecutions. Almost four-fifths of respondents stated that a distinction should be made between those who had committed serious crimes and those who had perpetrated less-serious crimes, indicating that an alternate mechanism, and perhaps amnesty, might be acceptable to deal with the latter.

Access to Justice

The survey results present an extremely troubling picture in relation to the ability of victims to report and receive an appropriate response to crimes committed against themselves or family members. Almost two-thirds of respondents filing complaints with police said no action had been taken, they had been harassed, or their complaint had been refused and not registered. Respondents had similar experiences with 60 percent of cases brought to the Chief District Officer (CDO) and 50 percent of cases brought to courts. More than 80 percent felt the army would be not helpful and would ignore or obstruct their complaints. Eighty percent felt the same about bringing complaints to the police. Responses also showed low expectations of the CDOs, with 69 percent believing they would not be helpful and would ignore or obstruct complaints.

Trust in Institutions

Respondents had the lowest trust in the police and army, with about two-thirds stating they did not trust them at all. Around 40 percent said they had no trust at all in political parties, the Maoists, and Parliament. Respondents displayed the greatest amount of trust in the courts, with four-fifths saying they trusted them fully or to some extent, followed by NGOs and the UN.
Attitudes toward Amnesty and Forgiveness

Almost two-thirds of respondents claimed to know the meaning of the term "amnesty," but about one-third said they had never heard the term before. Among those who knew the meaning of the word, three-quarters said human rights violators and perpetrators should not receive amnesty for their crimes.

Reparations

More than 99 percent of respondents were in favor of reparations for victims; around two-thirds thought reparations should be individual, while approximately 30 percent said they favored community reparations.

Reconciliation

Eighty percent defined reconciliation as living in peace and harmony with everyone. Only a very small number equated reconciliation with forgetting the past or granting amnesty to perpetrators.

Immediate and Future Needs

The majority of responses concerning immediate needs were related to basic requirements, such as health, education, housing, clothing, and employment, and less associated with wider issues such as the consolidation of peace. However, when victims were asked to identify future needs, their responses changed significantly. Aside from compensation and education, they emphasized the need to achieve peace and security in the country.

Women, Children, and Marginalized Groups

Participants in the focus groups described a common pattern whereby women were forced to radically change their normal roles to deal with the social, economic, legal, and political consequences of the human rights violations suffered by their spouses and male family members. Sexual violence and rape were significant factors in the conflict, but accurate information is difficult to obtain because of the social stigma unfairly attached to innocent victims of these crimes. Victims of sexual crimes in Nepal find themselves unable to recover a position of respect within their social group and community. Children were both involved in and victims of the conflict, including as rape victims. Participants reported the psychological effect of the conflict and the accompanying fear on family units.

Participants pointed to the exclusion of Dalits and indigenous groups from many benefits and opportunities available to other social groups as one of the major causes of the conflict. It is clear that large numbers of Dalits and Janajatis, especially Tharus, were direct victims of human rights violations in both rural and urban areas.

Background

The monarchy and the military remained strong after the 1990 shift to constitutional government. The scale and intensity of human rights abuses heightened with the civil war that erupted when the Maoists walked out of Parliament in 1996 and gained further intensity with the king's establishment of direct rule in February 2005. It is estimated that over the course of 10 years, more than 13,000 people lost their lives. The effects of these abuses, including social fissures related to caste, economic distribution, ethnicity, and region, have shaped patterns of human rights abuses and the complexity of the legacy of injustice that is being confronted in the country today.

Although certain sectors in Nepal (such as the families of the disappeared) have long been interested in transitional justice, this interest became more widespread after the political transition catalyzed by the success of the people's movement in April 2006, widely known as Jana Andolan II.

On 21 November 2006 the Seven Party Alliance (SPA) and the Maoists signed the CPA, a significant step forward that led to the integration of the Maoists in government in April 2007. The CPA included agreement on many substantive issues, notably that elections would be held by mid-June 2007 for a CA, based on a mixed electoral system with 205 seats decided by the first- past-the-post system and 204 by proportional representation. The fate of the monarchy would be decided at the first sitting of the CA. The CPA made a specific commitment to clarify the situation of the disappeared and set up a Truth and Reconciliation Commission (TRC).

The UN Security Council reacted by passing resolution 1740 on 23 January 2007, establishing the United Nations Mission in Nepal (UNMIN), whose principal tasks were to monitor arms and armies and ceasefire arrangements and to offer technical support for free and fair elections.

Many obstacles remained, however. The Maoist war had unleashed more grievances than the CPA solved; many among the ethnic minorities and lower castes felt that their contribution to Jana Andolan II was inadequately reflected. The Madhesis, who comprise about one-third of the total population, expressed their dissatisfaction with the CPA through their own Madhesi Andolan, which profoundly challenged the fundamental assumptions of the Nepali state. The failure of the SPA and Maoists to construct a transparent, inclusive, and participatory peace process led to such mistrust that a significant proportion of Nepalis lost confidence that the CA would adequately address their historic demands. This failure of confidence-building is a lesson to be recalled when the TRC process begins in earnest.

The CPA had other shortcomings, notably the lack of any detail on the plans for the two armies that had fought the civil war, the RNA and the PLA. While the RNA remained in their barracks and the Maoist PLA grouped in agreed cantonment areas, no progress was made during 2007 on the demobilization of forces or the restructuring of the security forces, bloated during the final five years of the conflict to twice their peacetime size. The fact that both armies remained intact and ready to return to conflict with little notice created a climate of distrust that partly contributed to the political turbulence surrounding two election dates in June and November. The shortcomings of the CPA may be best illustrated by the failure to keep the promise to make public the details of the disappeared "within 60 days," a promise unfulfilled.

In December 2007 the CPA signatories reiterated their commitment to the peace accord through a 23-point agreement. Moreover, it was announced that the CA elections were scheduled for April 10, 2008.

The 23-point agreement did at least reiterate previous unfulfilled commitments, including those on the disappeared and a truth commission, which the parties committed themselves to from within one month of the December agreement. However, no further developments have been achieved. The years of civil conflict still present many challenges that could threaten this ongoing transition. One of the main challenges face by the government is that there are competing demands on already resource-weak government institutions. This, in addition to the demands that go along with a still emerging peace process such as the consequences of the conflict on the population and the still unresolved factors that enabled the emerge of the violence in the first place.

Transitional Justice Debate and Mechanisms

As the Nepali transition unfolds, challenges related to dealing with the legacy of massive past human rights abuses are more and more evident. The national survey on victims' perceptions of truth, justice, reparations, and reconciliation shows that most victims do not have a clear knowledge of their rights, let alone knowledge of existing mechanisms to guarantee them. The release of the Truth and Reconciliation Commission draft bill and its subsequent discussion among government and civil society and victims' groups also showed a great deal of confusion regarding existing tools and mechanisms to deal with the legacy of human rights violations committed during the internal conflict.

The inclusion of transitional justice mechanisms as part of the CPA, as well as the current post-conflict scenario, has created the need to develop and strengthen the capacity of the stakeholders so that they are not excluded from the debate and process of developing policy. This capacity- building is especially important among victims and their families. The survey on victims' perceptions provided victim profiles, with 48.8 percent of participating victims being illiterate, poor farmers. Their lack of access to education and resources limits their access to other types of knowledge and their possibility to participate in the national discussion and decision-making regarding transitional justice agendas.

In addition, a fragile, under-budgeted and uncoordinated policy-making apparatus limits government capacity to obtain and provide tangible information to support decision-making. Proper research and documentation is critical to inform truth-seeking initiatives and accountability processes, as well as develop proper policy frameworks that address the population's core needs and concerns.

(Updated May 2008)

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