ICTJ Program Report: Nepal

7/1/2014

For ten years, fighting between the government of Nepal and Maoist rebels brought fear and terror into the daily lives of many Nepalese. During the armed conflict, more than 13,000 people were killed and 1,300 forcibly disappeared. Though the war formally ended in 2006, the country’s recovery has been stagnated by the government’s failure to uphold the rights of victims of conflict-related human rights violations, including unanswered questions about the whereabouts of more than one thousand people. In May 2014, the government passed an act to create two commissions to establish the truth about the past and determine the fate of the disappeared. The act however retains a number of problematic provisions, including those which allow amnesty to be granted to perpetrators of serious crimes. The same provisions were ruled to be illegal by Nepal’s Supreme Court in January 2014.

ICTJ has worked in Nepal for several years on issues relating to truth, reparation, and gender justice. In this edition of the ICTJ Program Report, ICTJ Nepal Senior Associate Santosh Sigdel joins us to discuss efforts underway to address the crimes of the past.

Nepal is still undergoing a transition from its civil war, which formally ended with a peace agreement between the government and Maoist rebels in 2006. Could you introduce us to the transitional justice agenda that was established after the peace agreement?

Nepal’s peace process started in 2006, resulting in a Comprehensive Peace Accord (CPA) in November 2006 and an Interim Constitution in 2007. After the peace agreement, there was an initial commitment to confront the abuses the country has suffered. To do so, the political leadership at that time put forward proposals for two separate commissions: a Truth and Reconciliation Commission (TRC), and a Commission of Inquiry on the Disappearance of Persons (COID). As a result, both the CPA and the Interim Constitution contain provisions to establish a TRC and a commission to investigate disappearances.

Overall, since the time of the peace agreement, efforts to secure justice and reckon with the past have been fraught with political tensions and continual obstacles. ICTJ has consistently argued that the polarization of the debate on transitional justice mechanisms in Nepalled to other fundamental flaws being overlooked. Nepal has provided some relief to victims of the conflict through its Interim Relief Program (IRP), but has yet to initiate a comprehensive reparations program.

The real problem we’ve found is the lack of discussion among the political leadership about why a broader spectrum of transitional justice measures—such as genuine truth-seeking, reparations and institutional reform —are needed to secure Nepal’s transition to lasting peace. Although elements of civil society continue to push for criminal investigations and prosecutions, powerful political elites have effectively reduced transitional justice policy discussions to the truth commission and blocked progress in other areas. Even discussions related to the truth commission, the debate has focused primarily on provisions relating to amnesties and prosecutions and ignored a serious examination of what would be an effective mechanism to advance the right to truth.

In this context, an ordinance to establish the truth commission was adopted in March 2013. However, it was non-compliant with international standards because it granted the commission broad-ranging discretionary powers to recommend amnesties for perpetrators of serious human rights violations. It was struck down by a Supreme Court ruling in January 2014, under which the government was required to revise the ordinance to ensure its compliance with international law and the Interim Constitution, and to establish a separate commission on disappearances.

Disregarding the Supreme Court, the government tabled the Bill on Commission on Investigation of Disappeared Persons, Truth and Reconciliation (COID-TR) which was in fact a poorly revised version of the COID-TR ordinance rejected by the Supreme Court. Although a number of amendments to the Bill were proposed by parliamentarians on April 25, these were not registered in parliament and the Act on Commission on Investigation of Disappeared Persons, Truth and Reconciliation (TRC Act) endorsed by the President and passed into law on May 11, 2014 is essentially the same as the 2014 Bill and 2013 Ordinance.

ICTJ continues to work towards the creation of a credible, independent truth commission. For now, that means working with victims groups and others to push for changes in the current law. Depending on the outcome of these efforts, we would provide information and technical support to commissioners and staff on a range of issues, including the implementation of its mandate on reparations using findings, analysis, policy recommendations, and other products developed through our work on reparations.


What kind of demands for truth and justice do victims have for what they suffered during the war?

Victims and civil society have consistently argued that there needs to be justice for conflict-related human rights violations in Nepal. These groups are particularly concerned with the question of impunity: they want to know whether perpetrators will be prosecuted or will be granted amnesty.

We have also seen an increased demand for truth concerning the fate of the disappeared: they want to know the whereabouts of their loved ones, and they are waiting for an answer to know whether their loved ones or relatives are alive or not. They want to know what happened, and they want the perpetrator to be held accountable for what they did.

But at the same time, due to the economic hardship and economic challenges, reparation and economic compensation is also very important for them. In many families, the person who disappeared was male and thus the sole breadwinner. The widespread loss of men in these families has left many women vulnerable in unique ways, which I’ll address later.

With so much attention on the proposal for the TRC and the COID, victims have been actively engaged throughout the entire process and continue to organize so their demands are heard by political decision-makers. In light of the passing of the TRC Act, on June 3, 2014, conflict victims filed a writ petition (070-WS-0050) to the Supreme Court (SC) challenging the TRC Act on the grounds that several of its provisions contravened the Interim Constitution (2007). 234 victims from across the country—likely the largest number of writ petitioners appearing on a single writ in Nepal’s legal history—requested that the Court issue an interim stay order halting the implementation of three problematic sections of the Act.


What kind of work is ICTJ doing in Nepal, and what are our programmatic priorities?

ICTJ's engagement in Nepal began in 2006 and an office was established in June 2007. Since then, we have worked closely with key stakeholders in the country’s slow efforts to address the harms of the past. In particular, we work with victims, civil society, and government, parliamentarians and political parties to support and promote national efforts to establish genuine, victim-centered and gender sensitive transitional justice mechanisms. We have done this through a combination of technical assistance and policy guidance, applied research and support to victim participation.

A large part of our work is building informed constituencies among policy makers, civil society, victims, and the international community who support and can advocate for the development and implementation of effective policies on all components.

We work directly with policy makers to provide technical guidance and practical, creative solutions on policy and legislation, and on practical issues around the design and implementation of transitional justice processes. We also influence policy makers by providing non-governmental stakeholders—like civil society, victims’ groups, and international stakeholders—with technical expertise and international comparative experience to support their analysis and to inform advocacy and policy positions; to support strategic thinking and planning among civil society and victim stakeholders, and facilitate coordination among them.

ICTJ’s engagement in Nepal seeks to ensure that transitional justice in the country is informed by rights and needs of victims by increasing their capacity to influence and meaningfully participate in national processes to design and implement policies. In the context of on-going political resistance to transitional justice, we choose to take approaches that can amplify voices of victims and survivors, support broader public interest and engagement on the issue.

Part of our goal is also to generate broader support for transitional justice in Nepal by engaging a wider range of national civil society stakeholders in policy discussion and design.

Aside from our extensive engagement with stakeholders as the plans for truth-seeking move forward, we have also been quite active on issues of reparations, with particular attention to the wives of the disappeared. And through our research, we have also examined how an ad hoc vetting mechanism for officers in senior command positions could help consolidate democracy in Nepal.


Nepal has provided some relief to victims of the conflict through its Interim Relief Program (IRP), but has yet to initiate a comprehensive reparations program. In ICTJ’s opinion, what needs to be done to ensure victims’ rights to reparations are actually fulfilled?

The IRP has responded in part to some short-term needs resulting from the violations. However, it has not delivered longer-term measures to address harms resulting from human rights violations, does not acknowledge State responsibility for violations committed by its agents or for failing to protect victims, and excludes certain categories of victims. As such, the IRP falls short of international standards for reparations.

ICTJ has documented additional concerns including the lack of consultation with victims in the design of various elements of the IRP, the burdensome process of application, and the vulnerability of the program to political influence.

We’ve also contributed expert recommendations to the IRP: recently, at the invitation of Ministry of Peace and Reconstruction (MoPR), ICTJ participated in consultations on the design of a psychosocial program under the IRP and prepared written comments to the International Organization for Migration (IOM) on its manual for the implementation of government guidelines on the program.

The issue of reparations for victims, however, spans far wider than the IRP. Under the COID-TR ordinance, the truth commission is mandated to recommend reparations for victims of conflict-related human rights abuses. However, there is a lack of clarity around how the truth commission would establish a reparations program. Although recommendations for reparations frequently emerge out of truth commissions in a number of other countries, there are other examples where such programs have been designed and implemented separately. We continue to explore and promote options to begin the establishment of a reparations program outside the framework of a truth commission.

Short-term, practical measures can be taken to alleviate the most pressing needs of certain categories of victims. Our research on wives of the disappeared, for example, revealed that among the obstacles preventing these women from rebuilding their lives were issues of land and property inheritance and their husbands’ lack of legal status. These issues are resolvable through legal or administrative measures that could be taken pending the establishment of a more comprehensive reparations program. Likewise, preliminary findings from ICTJ's reparations research highlights the acute economic and social needs of victims, including those who are beneficiaries of the IRP, that require immediate responses.

The research also points towards notable variations in needs according to the type of violation/abuse suffered (killing, disappearance, torture and SGBV), victim profiles (in particular in relation to gender and caste), and between short and longer-term needs or aspirations (material and non-material), and thereby underscores the need for carefully designed programs that address specific harms and needs.

In sum, our work on reparations seeks to ensure that the IRP is not considered the end goal, but rather the precursor for a comprehensive reparations program. Our research is being used as the basis to engage and support governmental and non-governmental stakeholders to identify policy options and measures for the design of a future reparations program, and to initiate processes for policy development and implementation.

Going forward, specific attention will be given to the question of whether a combination of community and individual reparation measures are appropriate, given the high level of violations suffered by marginalized groups, in particular Dalits and Janjatis. There will also be an explicit gender-focus to the work. We want to ensure that gender is factored into the design of any future reparations program, and that methodologies are developed to support women's access to it.

We will also explore other routes through which reparations can be provided to victims. Building on previous work with the MoPR on the IRP, we will seek to engage them and other key ministries in a dialogue on the fulfillment of victims’ rights to reparations, and on ways in which this can be achieved through, for example, extending the IRP to other categories of victims (in particular victims of SGBV and torture) or developing additional programs that respond to rights and needs not addressed by the IRP Based on the outcome of these dialogues, ICTJ will seek to provide technical guidance to government-led processes of designing and implementing future policies.


As you mentioned, the vast majority of those killed or disappeared in the war were men. ICTJ continues to conduct extensive research about the wives of men who disappeared. Could you explain the effect of disappearances on these women, and what kind of work will ICTJ be doing in the future?

The effect of conflict on wives of disappeared is multifaceted. There have suffered economically, legally, socially and culturally due to disappearance of their husbands. In more than two-third of surveyed households, the disappeared male was the main breadwinner. With little or no education, no employment opportunities and burden of caring for their children and elderly relatives, the life of the wives of disappeared can be extraordinarily challenging.

Due to the multiplicity of ethnic groups and different geographical regions in Nepal, without the truth about their disappeared spouses, societal reactions to these women vary greatly: in some communities they are encouraged to remarry, while in some societies or some ethnic groups, they are pressured to live as a widow, a status which carries an enormous social stigma. Although social perceptions of widowhood are changing, most women—especially those living in rural areas—still face considerable socio-economic difficulties.

Last summer, ICTJ published Beyond Relief: Addressing the Rights and Needs of Nepal's Wives of the Disappeared, a major report that presented findings on the economic hardship endured by women in Nepal whose spouses were disappeared. As mentioned above, the research revealed that among the obstacles preventing these women from rebuilding their lives were issues of land and property inheritance and their husbands’ lack of legal status. These issues are resolvable through legal or administrative measures that could be taken pending the establishment of a more comprehensive reparations program.

The report was well received. Members of government attended the launch of the report in August, and at the event, Nepal’s National Women’s Commission publically stated that now they recognize the problems of the wives of the disappeared and they will advocate for legal and administrative reforms.

Building on our work on these issues we will coordinate with the ICRC in implementing recommendations from its feasibility study to address legal and administrative obstacles which currently prevent wives of the disappeared from exercising and promoting their legal and economic rights. The precise strategy will be agreed with the ICRC following the completion of the study, but is expected to include support to advocacy efforts, facilitation of dialogues with key government stakeholders (inter alia, MoPR and Ministry of Women, Children and Social Welfare) and technical advice to process of legal and policy reform. Families of the disappeared/victims groups, the NWC, and UN Women will be among the key partners in this work.


Serious human rights violations were committed during Nepal’s civil war. How has the country dealt with criminal investigations into the past, or sought accountability for the perpetrators of serious crimes?

Unfortunately, there has been a systematic failure to investigate and prosecute serious conflict-related crimes in Nepal. Obstacles to prosecutions are well documented and include lack of independence of police and prosecutors, direct political interference and obstruction, use of the military justice system to shield perpetrators, and a failure to codify serious crimes—such as torture and enforced disappearance—into national law.

One example is case of journalist Dekendra Thapa from Dailekh district. Dekendra Thapa was allegedly killed in 2004 by then Maoist insurgents. In 2008, Mr. Thapa’s body was exhumed. On 28 August 2008, his wife filed a First Information Report (FIR) at the District Police Office, Dailekh District, on his abduction and murder, listing eight Maoists cadres as perpetrators. On 5 January 2013, the police arrested five alleged perpetrators. In January 2013, Nepal’s Attorney General, Mukti Pradhan, sent instructions to the local police and the prosecutor not to move forward with the investigation. However, the Supreme Court ordered the then Prime Minister Baburam Bhattarai and the Attorney General not to interfere with then ongoing investigation. On 28 January the district attorney of Dailekh filed murder charges against nine suspects. The case is still ongoing.

The passing of the new TRC Act has brought new obstacles, because it contains an ambiguous provision where it says that the TRC will investigate into ongoing cases. The provision would appear to be a means to subvert existing judicial processes. We will have to wait and see how the TRC chooses to proceed in this regard.


What are the next steps for the TRC and COID?

As mentioned above, more than two hundred victims from across the country requested that the Supreme Court issue an interim stay order halting the implementation of three sections of the Act relating to amnesty, reconciliation and recommendation for prosecution as a preemptive measure; and asked the court to require amendment in those provisions. In the preliminary hearing, held on June 3, 2014, the court did not issue an interim order but decided to hear the case with priority. Next hearing on the case is scheduled for 10 July 2014. We’re waiting to see what will be decided.

In the absence of an interim order, it is likely that the government will continue making preparations for the establishment of the two commissions. Indicative of this is the government’s appointment of members to the committee tasked with making recommendations for commission members and chairperson. The appointment process was not at all transparent however and has been widely criticized by victim representatives on the grounds that it not only contravenes the interim constitution but also that it should have waited until the Supreme Court reaches a verdict.


Read more about ICTJ's work in Nepal here.


Photos: (Top) Women light butter lights in Kathmandu (Lyle Vincent/Flickr); Nepalese people hold the national flag as they attend a rally demanding peace, social harmony and drafting the constitution on time in Katmandu, Nepal, May 23, 2012 (AP Photo/Niranjan Shrestha); Police on the streets during student protests (Ingmar Zahorsky/Flickr); A farmer in Beora, a small farming community in Rupandehi District (CIAT/Flickr); A woman in Nepal looks out her window (UN Photo/John Isaac); Head of Nepal's interim government, Khilraj Regmi, right, presents the best women officer cadet’s cane to the former Maoist combatant woman officer at Nepalese Military Academy in Kharipati, Nepal, Monday, Aug. 26, 2013. Seventy former communist rebels graduated from Nepal’s military academy on Monday and became officers in the national army they once fought. (AP Photo/Niranjan Shrestha); Durbar Square in Kathmandu, is a UNESCO World Heritage site (Jon Harper/Corbis).