Nepal: Peace and Justice (ICG Report)

EXECUTIVE SUMMARY AND RECOMMENDATIONS

Failure to address the systematic crimes committed during Nepal’s ten-year civil war is threatening the peace process. There has been not a single prosecution in civilian courts for any abuses. The cultures of impunity that enabled the crimes in the first place have remained intact, further increasing public distrust and incentives to resort to violence. The immediate priorities should be prosecutions of the most serious crimes, investigation of disappearances and action to vet state and Maoist security force members.

There are tensions between the pursuit of justice and the pursuit of peace. An absolutist approach to accountability for past abuses is impossible in practice and could obstruct the compromises needed to bring formerly warring parties together to forge a stable political settlement. But tackling impunity and improving accountability has a direct and acute relevance to managing Nepal’s fractious transition. Unaccountable and heavy-handed security measures by a state with weak legitimacy have escalated conflict before and threaten to do so again.

Multiple grievances are not being effectively channelled through the constitutional process, and dealing with them is fraught with risk as long as political violence remains a viable tool. Yet moving from a state of impunity to one of accountability will be a painful transition for many individuals in the security forces and political parties. Avoiding, or deferring, this discomfort may appear tempting but is counterproductive. Longstanding cycles of abuse have undermined prospects for improved public security and peaceful political debate.

Both sides carried out repeated and systematic violations of the laws of war during the conflict, which ended with the November 2006 Comprehensive Peace Agreement (CPA). State security forces accountable primarily to the interests of party leaders or the palace felt unconstrained by legal requirements. They were responsible for hundreds of disappearances and unlawful killings, rampant torture and other abuses of the civilian population. Of the more than 13,000 people killed during the war, the vast majority died at the hands of the state. The Maoists, in challenging a state they portrayed as unjust and illegitimate, sought to characterise violence – including brutal killings of civilians and political opponents – as an essential, and justified, plank of political strategy.

At the heart of the peace deal lay a commitment to recognise that both sides had broken fundamental rules. But neither believes its actions were wrong. Both insist on judging their own, meting out no real punishment, and have refused to cooperate with civilian authorities. Lack of action on justice is not for lack of promises. Commitments to human rights norms and specific steps such as investigating disappearances have been central to successive agreements, including the CPA. Lip service, however, has only become entrenched as a substitute for action.

Concern for victims has been inconsistent. The most tangible response has been interim relief payments to families of those who died or were disappeared. Yet this has been weakened by political manipulation and the lack of effective oversight of fund distribution. For relatives of the more than 1,000 still missing, distress, frustration and a sense of betrayal have grown.

Political parties have shown no interest in dealing with past crimes. Indeed, they have exploited the lack of accountability to avoid reining in the unlawful activities of their own activists and to justify regular interference in the criminal justice system. This has left a demoralised, ineffective and increasingly desperate police force to confront growing insecurity and small yet still dangerous local, regional and ethnic struggles.

But political leaders alone are not to blame. The domestic constituency for justice is minimal. Despite the pioneering work of some activists, rights and justice are not rallying calls for the politically influential middle classes. Citizens are not keen to re-examine what the state did in the name of their security, and see no need for national dialogue and catharsis. Many victims were from disadvantaged communities long marginalised by the state and more influential social strata. Media and parliamentary attention to questions of justice is sporadic.

International efforts are no substitute for national will. Nevertheless, international commitment is to support a peace process based on fundamental rights. Allowing words to replace substance undermines such principles. The UN has lost credibility as its core values have been marginalised during the process. With no systematic vetting of peacekeeping troops by either the government or the UN, even high-profile alleged abusers have been deployed in lucrative posts in UN missions – including, in September 2009, one army major sought by Nepal’s police and courts for questioning over the torture and murder of a teenage girl in 2004 inside a Nepali peacekeeping training centre. Countries providing military assistance, including the U.S., UK, India and China, have rarely or never restricted training and opportunities for individuals or units accused of serious violations.

Clear priorities are required. The first should be prosecution of the most serious conflict-era cases. Without a credible threat of prosecution, any commissions of inquiry will not get beyond the inadequate explanations the army and Maoists have already provided. The second is to ensure the commissions on disappearances and on truth and reconciliation specified in the CPA meet basic standards and, more importantly, are domestically owned and have clear, achievable goals. Finally, vetting is needed – both domestically and internationally – to help ensure the stability of any future security forces.

RECOMMENDATIONS

To All Political Actors Party to the Peace and Constitutional Processes:

1.  Act to fulfil the commitments to justice made in the Comprehensive Peace Agreement, focusing on the manageable and urgent priorities of establishing a commission on disappearances and investigating and prosecuting the most serious conflict-era crimes for which there already is substantial evidence.

2. Forge an all-party consensus and publicly commit to work towards ending impunity, initially by ending political interference in criminal proceedings, including the withdrawal of cases by the council of ministers, and halting illegal activities of party youth wings or other affiliated groups.

3.  Within negotiations over the future of Maoist combatants and state security forces, most immediately in the work of the special committee and its technical sub-committee, establish procedures to vet all potential members of future security forces to exclude human rights violators.

To the Government of Nepal:

4.  Direct and equip the police and attorney general’s office to pursue investigations and prosecutions of all serious conflict-period crimes by:

a) giving direct instructions to police to execute outstanding arrest warrants;

b) setting up special police and prosecutors’ units to investigate and prosecute war crimes, with senior and experienced staff backed by sufficient resources and insulated from politically motivated transfers;

c) shielding courts and judges from pressure and taking firm action against any individual or institution that obstructs the course of justice;

d) establishing simple, effective channels for victims and others to communicate with police and prosecutors; and

e) identifying resource gaps, such as forensic capacity and witness protection, and drawing up plans to address them, including by requesting international assistance if appropriate.

5.  Refuse, and if already granted revoke, promotions and UN peacekeeping positions to members of the security forces accused of grave violations unless and until they have been exonerated in credible independent investigations; suspend individuals who are the subject of police investigations or for whom arrest warrants have been issued.

6.  Instruct the Nepalese Army to cooperate fully with investigations, including by making records of internal investigations and court-martials and other relevant internal documents available to police and prosecutors and making individuals available for police interview or court appearance when formally summoned.

7.  Implement existing Supreme Court decisions relating to war crimes, disappearances and the obligation of police to register complaints and investigate alleged crimes.

8.  Offer official responses to reports and recommendations of the National Human Rights Commission and the UN Office of the High Commissioner for Human Rights (OHCHR).

To the Unified Communist Party of Nepal (Maoist):

9.  Respect the authority of the police and civilian courts and cooperate fully with investigations and prosecutions of crimes committed during the conflict and ceasefire periods by:

a) making suspects available for questioning or, where warrants have been issued, arrest;

b) handing over internal investigation reports;

c) sharing any other relevant evidence or records; and

d) cooperating in the establishment and functioning of the disappearances commission, in particular by full disclosure of all information relating to disappearances in which Maoist forces are implicated.

To the International Community, in particular the UN and Donors Represented in Kathmandu:

10.  Build on the emerging common strategy on impunity to focus attention on practical measures to encourage progress on justice issues by:

a) introducing visa bans on individuals facing credible, documented allegations of war crimes;

b) reviewing donor assistance to areas such as interim relief payments for victims and their families and setting clear benchmarks for continuing direct financial support;

c) establishing principles for possible future support to Maoist combatants’ integration and rehabilitation, such as an effective vetting mechanism and prosecutions of the most serious crimes; and

d) pressing for a government response on OHCHR’s reports and recommendations, raising the issue at the UN Human Rights Council if there is no progress.

11.  UN member states, the Security Council and the UN system should urgently work to ensure that peacekeeping contributions conform to universal human rights principles and are consistent with the UN’s responsibilities to the peace process in Nepal, by:

a) establishing a comprehensive human rights vetting policy for peacekeeping missions and ensuring systematic pre-deployment screening of Nepali peacekeepers;

b) linking levels of peacekeeping contributions and senior appointments to demonstrable progress on accountability for war crimes and steps to ensure non-repetition; and

c) preparing enhanced training and support for possible additional deployments once the CPA provisions on security sector reform, including integration and rehabilitation of Maoist combatants, are implemented.

To Providers of Military Assistance and Training, in particular India, China, the U.S. and UK:

12.  Condition all military assistance and training on cooperation with civilian investigations and prosecutions of war crimes, at a minimum excluding all security force personnel and units facing credible allegations of human rights violations from training.

Kathmandu/Brussels, 14 January 2010