It took more than six decades for the Dutch government to apologize for a horrendous massacre by its military in its former colony, Indonesia. The tragedy occurred in Rawagede village on December 9, 1947 when Dutch troops rounded up and shot dead hundreds of young men. (The estimate of those killed varies between 150 and 430.)
The apology was offered by the Dutch ambassador at the scene of the killings 64 years ago and was attended by hundreds of villagers including 80- and 90-year-old widows of some of those killed. It was the result of a ruling of a Dutch court in a case that had been filed by nine surviving relatives.
In Israel, former president Moshe Katsav was handed a seven-year jail sentence for rape. Katsav was convicted in December 2010 but had appealed against the verdict. The Supreme Court of Israel upheld the conviction last month.
In sharp contrast, in Nepal, a politician who killed an innocent civilian is not only roaming free, but is also free to sit in the Constituent Assembly, which is discussing a new constitution. Bal Krishna Dhungel whose conviction has been upheld by the Supreme Court of Nepal (and the SC has subsequently issued another order clearing any hurdles for his arrest) is still free because his party top-brass and the Prime Minister Baburam Bhattarai have deemed him innocent, arguing the case against him is "politically motivated". Pathetic.
Many victims of Maoist insurgency (1996-2006) are still awaiting justice and closure, if it’s at all possible, despite unambiguous orders from the courts. Many others have not even had the opportunity to file cases in courts. But the result has been same: denial of justice.
While the major political parties and leaders deserve praise for steering the peace process forward despite multiple hurdles, they have failed, collectively, to delivery of justice to victims of conflict. They ought to know that peace without justice is hollow. So far, we are yet to witness any significant development when it comes to rendering justice. Rather, we have Bhattarai warning us about the peace process collapsing if the criminals are punished and pushing for blanket pardon and amnesty. The result should not surprise us. Nepal ranks very high on international impunity index.
After six governments, five prime ministers and multiple commitments on delivery of justice since the signing of the Comprehensive Peace Agreement (CPA) on November 21, 2006, justice is elusive as ever. This, despite the fact that all the prime ministers promised expediting the formation of Truth and Reconciliation Commission (TRC) and Commission of Inquiry on Disappearances whenever rights organizations and activists met them urging action on written commitment.
But political parties and governments of all hues have been reluctant to put in place such transitional justice mechanisms.
Unless there is greater pressure on political parties, specially the Moists, conflict victims are likely to be deprived of justice for a long time.
They are under tremendous pressure to protect the perpetrators—even those who committed the most heinous of crimes during the insurgency. It would indeed be a huge surprise if they bucked the trend and formed independent and effective truth and disappearance commissions.
Sure, the parties´ have repeated their commitment on delivering justice. But its hollowness is all too obvious. The Maoist party´s five-point concept paper on peace and constitution of August 25 is a good indicator of where one of the principal actors of the peace process stands on the question of justice. Point 2 (a) of the five-point plan speaks of forming Truth and Reconciliation Commission (TRC) and Commission of Inquiry on Disappearances within a month. (This was reiterated by the party´s four-point deal with the Madhesi front three days later.)
However, 2 (d) of the same concept paper reads: “[The party will work] to withdraw or dismiss all remaining cases slapped against Maoist leaders and cadre during the 10-year ´people´s war´ [quotes mine] and issue general amnesty in regard to cases that have been decided [meaning courts have ordered punishment]”. Protecting murderers, inducting them into cabinet, and promoting them into the party´s Central Committee (remember Kali Bahadur Kham, one of the prime accused in the torture and murder of Ram Hari Shrestha?)” is how the Maoists intend to treat the criminals and the accused in their ranks.
With this attitude of the largest political party in the parliament, expecting them to respect international practices and conventions would be asking a lot.
The other parties, namely the Nepali Congress, the CPN-UML and Madhesi parties, have not covered themselves in glory either. The formation of the two commissions again gets a mention in the seven-point pact among the four major political forces on November 1. The deadline is same—a month.
More and more, this is looking like a farce, and a cruel one, if I may add.
Where do we go from here?
It is obvious that left to themselves the political parties would continue to do what they have been doing since the signing of the CPA—avoid taking the necessary steps that would ensure justice to victims.
There have been arguments for an alternate course of action. Some have suggested that the State punish those in its ranks as well as those on the former rebels’ side. This is what international organizations usually advocate because State is considered an all-powerful and more responsible entity. So long as justice delivery is ensured, who makes the first move is secondary. This chicken-or-egg-first question only adds to the delay. And this is where the human rights organizations, especially the international ones, and western governments, have been found wanting.
Bear in mind that in post-conflict Nepal, nothing is easy—and that is an understatement. At times, the Maoists have acted not only as de facto state authority but have also led the government twice. But the government—like the current one—refuses to fulfill one of its most basic duties. What do you in a situation like this?
Coming back to the formation of the two commissions, there is no question that it needs to be done without any further ado and in a transparent manner. A lot of pressure needs to be exerted on political parties, and, thankfully, the efforts are already on.
Aware of the possibility of formation of a weak transitional justice mechanism, representatives of the European Union (EU) in Nepal reminded the government of its obligation to adhere to international practices, conventions and the treaties it has signed.
"We are concerned that the bills establishing the two commissions may be significantly weakened in a way that may prolong impunity and put Nepal in breach of its international obligations,” the EU wrote in a letter to leaders of political parties last week.
The European countries also suggested that the bill include respect for the right to remedy and, tellingly, it has also asked the government to exclude amnesty provisions for most serious crimes like crimes against humanity, illegal detentions, sexual violence, violence against civilians, among others. One can only hope PM Bhattarai and others are listening.
However, this is not enough. Pressure from all sections—national and international human rights community, civil society, press and victims’ groups—must be brought on the parties on delivery of justice.
The writer is associated with Panos South Asia. The views expressed are his own
damakant@gmail.com
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