South Asians for Human Rights

Promoting Democracy, Upholding Human Rights

Published in The Kathmandu Post.

A human rights debacle is unfolding, with collaboration of a democratic government, the international community and intelligentsia

Last Friday, at a meeting with Ban Ki-moon in New York City, Prime Minister Sushil Koirala apparently assured the Secretary General that the transitional justice law enacted by Parliament on April 25 did not allow amnesty for gross human rights violations of the conflict era. That very day, the UN Office of the Human Rights Commissioner (OHCHR) was presenting a ‘technical note’ to the government in Kathmandu which contradicted our prime minister, and which suggested amendments to remove amnesty-friendly provisions in the law, among other things.

The entire episode that culminated in the adoption of the act for the Truth and Reconciliation Commission and the Disappearance Commission has raised a flag of alarm about the quality of our democracy. A properly elected Parliament with democratic parties at the helm has so easily abandoned the basic tenets of human rights; and a democratic government has no qualms in ignoring the need to bring perpetrators of war crimes to book. When Nepali Congress and CPN-UML lawmakers can so readily and publicly defy the logic of accountability for heinous crimes, what confidence can be left in constitution writing by these ladies and gentlemen? The government and Parliament today represent the face (or shroud) of impunity.

Today, the victims of conflict fight mostly alone. Hardly anyone is talking to the Maoist- and state-side victims of torture, rape, killing, enforced disappearances and extended incarceration, other than the few rights activists left standing, and themselves pilloried by insidious propaganda of feeding off the sorrow of victims. The victims are regarded as irritants and the rights activists as instigators.

All arguments for justice in relation to conflict era excesses have been made, and repeated. There is nothing more left to be said by the Supreme Court, by the victims, or by rights groups. And yet, the state establishment proceeds as if the verdicts, precedents, directives, pleas, demonstrations and hunger strikes have never happened.

The OHCHR report

The victims of conflict have once again come together, 234 of them representing the diaspora of scarred and wounded individuals and families all over the country, to challenge the transitional justice law. They maintain that it goes against the Supreme Court directives and international law and practice, as well as Nepal’s treaty obligations. The Supreme Court decision on Victims v Government of Nepal is expected on July 10, and one can only hope that the miasma that has the rest of the polity in its grip will not waft up to the lofty chambers.

Through its report, OHCHR substantiates the position of national rights activists who have insisted that the law establishing the two commissions must be corrected to fit national and international values, standards and commitments. In summary, the apex UN human rights agency says that the power of the truth/reconciliation commission “to recommend amnesties for gross violations of international human rights law or serious violations of international humanitarian law is inconsistent with Nepal’s international legal obligations and the UN’s policy against amnesties.”

The government is reminded of its duty “to ensure the prompt, thorough, independent and impartial criminal investigation of gross violations of international human rights law…and, where sufficient evidence exists, to prosecute the alleged perpetrators.” The commissions, says the agency, have been given powers that can easily be used to avoid or delay criminal investigations and prosecutions.

Challenging the notion among many that the TRC is meant to replace criminal prosecution, the OHCHR reminds: “Truth seeking does not absolve States of their legal obligations with regard to criminal justice.” It says, the truth commissions are to reinforce rather than replace criminal investigations and prosecutions. The agency also objects to the broad authority given to the TRC to facilitate reconciliation without the consent of victims: “Reconciliation, by its nature, primarily takes place at an inter-personal level and should not be forced upon people.” As final indictment, the agency says the transitional justice law does not provide guarantees for the “independence and impartiality for the Commissioners and the operation of the Commission itself.”

International community

Someone emerging today from a time capsule would be astounded to see how silent the diplomatic and donor community of Kathmandu has become when it comes to human rights. The sermons of the past used to be that human rights is universal and does not allow selectivity. The tables are turned, and it is the Nepali rights activists who today have to remind the diplomats of the principle of universality, and that speaking up on human rights cannot be considered ‘intervention’.

The ‘donor’ embassies and agencies need only open their files of up to a couple of years ago to see how deep they have receded into the see-no-evil, hear-no-evil cocoon—and how this has helped relegate the victims of conflict to a distant orbit. What could be the geopolitical, national-political and individual causality behind this abandonment of human rights in Nepal, one wonders.

Ostensibly, the reluctance to raise rights issues a year ago was so as not to derail the November elections. Now, it is said to be fear of derailing constitution writing. All one can say is, leave the constitutional debates to the Nepali public and lawmakers, but do speak up on human rights. At a time when diplomats are speaking excitedly about infrastructure development, it hardly needs reminding that there is a seamless link between human rights accountability, rule of law and foreign direct investment of the volume and quality that we all seek.

The OHCHR itself seems to have been more timid than necessary, hiding behind the neutral title of ‘technical note’ when it should have issued a condemnation of the road to, and promulgation of, the transitional justice law in Nepal. Further, the agency fights shy of telling the international community not to support with funds the formation of the two commissions in the absence of the correctives it has suggested.

While one never expected China and India to champion human rights in Nepal, for long the West has enthusiastically accepted this role as its own. Those in the know in Kathmandu’s rights community say that Switzerland and Denmark are trying to maintain continuity and commitment in their support for human rights while the European Union seems inclined to provide support for the formation of the two commissions in their present and flawed state. At the very least, the concerned diplomats should feel the need to hold a consultation with the victims of conflict, at the vortex of the subject matter.

National community

If the government has abandoned the victims and emerged anti-rights and pro-impunity, and if the internationals have gone into reverse, much of the blame lies with Kathmandu’s civil society and intelligentsia—for not shouting loud enough. Indeed, the ‘stalwarts’ and opinion-makers have long since tired of the transitional justice process, which helped the government in the passage of the act in Parliament. It is this betrayal of the victims and society at large by the intelligentsia that, incidentally, emboldened the government to come up with the bill on contempt of court. And another bill is apparently in the works to rein in non-governmental organisations.

The disengagement of the intelligentsia is evident in its neglect of Nanda Prasad and Gangamaya Adhikari, withering away at Bir Hospital on the 251st day of their fast, barely kept alive by intravenous lines, and sinking. The couple’s refusal to end their hunger strike may be (as this writer believes) unreasonable but their demand for justice for the murder their son cannot be questioned. The OHCHR says that TRCs are meant to complement rather than supplant criminal procedure, but all movement on the murder of the 16-year-old Krishna Prasad murder case has come to a dead stop with the adoption of the TRC act in April.

Kathmandu’s inattention when it comes to the victims of conflict must be based on the inability to grasp the enormity of tragedy that is a killing, a rape, a disappearance, or a torture. This lack of empathy is ultimately self-defeating. If the intelligentsia were to try and grasp how nations rise and fall in the modern era, it would engage itself in a campaign to force the Koirala government to take back the transitional justice law, to replace it with legislation more in keeping with what high principle demands and what the people deserve.