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The Disappeared and The Question of Justice: A Story from Nepal

By Ram Kumar Bhandari

“They came at night, way back in June 1999, and took my husband away. I was pregnant at that time. Amit, my only son, is 18 now and often asks where his father is and when he will finally come home. What can I tell the boy? My children have lost hope of ever seeing their father again and nobody gives us an answer.”

Maiya Basnet often breaks into tears when asked these harrowing questions. The 54 year old farmer from Lamjung district in western Nepal has no clue about the fate of her husband, arrested by an army patrol and never heard from again. Since her husband has not been officially declared dead, she cannot claim possession of their agricultural land. And yet there is no meaningful effort by either the state authorities or the other agencies to trace her husband’s whereabouts. This is a typical example of what rural women experienced during Nepal’s violent conflict and its aftermath. About 90% of the victims of enforced disappearance were men and 81% were married.

Nepal’s decade-long civil war saw thousands of ordinary people become victims of both parties to the conflict, with thousands killed, wounded, tortured, raped, and displaced. Perhaps the most enduring legacy of conflict, however, are the missing and the disappeared, whose families still wait for information about the fate of loved ones and for the chance to locate the dead, retrieve their remains, and ensure appropriate rituals are made.

However, there is no political will to assist a victim-centric process. Victims’ agendas have been hijacked and politicized under different party banners. Due to political manipulation, either from state or other actors, victims’ needs–receiving answers, recognition, and justice—have never been formally addressed. In particular, the Kathmandu-led, top-down process of implementing the 2006 Comprehensive Peace Accord has failed to realize the provisions for transitional justice included in the agreement. Basically nothing concrete has happened for the victims and their quest for truth-seeking.

The Comprehensive Peace Agreement represented a transformative agenda that had the potential to grant justice to many thousands of victims of disappearances. However, now, over a decade of the signing of the Agreement, the promises made by the state have not yet been fulfilled. For families of the missing, the conflict continues as long as the many impacts of disappearance remain unaddressed. By trying to sweep the dirt of the conflict under the carpet, through a general amnesty and by protecting those accused of war crimes, the state exacerbates the suffering of the families of victims. Unless their grievances are addressed, wounds—and a desire for revenge–will fester and there is a danger of another, more virulent conflict.

Among the victims, the families of the disappeared live in ambiguity. They continue to be ignored and their tears have never dried. But this is far from the only serious human-rights issue that besets Nepal. Since the establishment of a Hindu kingdom by the Shah dynasty in the 16th century, many groups—single or widowed women, Dalits and Madhesi, Janajati (Nepal’s indigenous peoples), among others—have been excluded from social and political life; these injustices still exist today and are reflected in contemporary responses to past abuses. The disillusionment and alienation of marginalized groups was one of the driving forces behind the 10-year armed conflict. Issues of structural violence, inequality, exclusion, land distribution, poverty, community rights, and equal distribution of local resources continue to fuel dissent and conflict in various parts of the country, with no apparent political solutions on the horizon.

 

Nepal: The justice question in transition

Transitional justice has been an ostensible priority throughout Nepal’s peace process following the end of the Maoist People’s War in 2006, but it took nearly 10 years before the two truth commissions investigating war-era crimes were established. While these processes have enjoyed nominal support, the Nepali government never prioritized transitional justice in its national agenda, and the Commissions have been prevented from fulfilling their mandates. The stalled transitional justice process has eroded trust between victims’ advocacy groups and the state-led transitional justice commissions. The Commissions, government, and international organizations must listen to victims’ advocacy groups to ensure that the transitional justice process results in a broad transformation that meaningfully addresses the causes and consequences of the conflict.

Transitional justice in Nepal has been held back both by politicians who have used justice as a political bargaining chip and by international organizations who have imposed a universal agenda that ignores local needs. The current process remains stubbornly rooted in the state tradition of hiding the truth: the transitioning state and leading political parties contain perpetrators from both sides of the conflict, and they have used the language of justice to protect themselves rather than seek justice for victims.

Rather than working with victims and their families to determine a way forward, the agencies have prioritized rigid notions of accountability over the needs of those impacted by conflict.  International agencies have fully controlled the transitional justice debate, imposing universal narratives that have not been localized within the Nepali context, and that don’t support the broader agenda of activists and the victims on the ground. For local activists, the focus on accountability alone ignores the structural injustices that allowed the conflict-era crimes to occur. Activist groups demand that the process also address the root causes of the conflict, such as poverty, exclusion, structural violence, and social injustices. However, the transition process has focused almost exclusively on civil and political rights as the frame of reference for justice, ignoring the social, economic, and cultural rights of the victims. The focus on accountability by the large international organizations has led to a confused an inconsistent response from smaller civil society organizations.

 

International organizations and political parties have set an agenda that is remote from victims’ realities; this top-down approach to transitional justice has ignored the demands of victims and the networks of activists representing them. The series of debates on transitional justice between political parties and international agencies—which always focus on questions of amnesty and prosecution—have not addresses victims’ needs and do not take into consideration their pressing material concerns. The gap of understanding between the political parties, human rights groups, and victims’ advocates has only grown deeper in the last decade.

Conflict victims in Nepal seek a broader range of reforms than only the accountability agenda set by the international community, and have mobilized to demand victim-centered transitional justice mechanisms that address structural inequalities, to demand conflict-informed reparations, and to contest historical memories of the conflict.

The families and their associations continue to amplify the voices of victims in order to keep conflict victims at the center of the transitional justice process. This is the time to expand the boundaries of inclusion and advance the transitional space to include conflict victims and other marginalized groups. A more inclusive transitional justice process will move the debate beyond issues of accountability to include the full range of injustices suffered by conflict victims. While victims want to see perpetrators brought to justice, they also need recognition of their suffering, conflict-informed retribution, and meaningful reforms that advance social justice and the prospect for a peaceful future.

Maoists wage war against the state Beginning in 1996, a Marxist left wing – Communist Party of Nepal (Maoist) declared a “Peoples War’ against the State. Nepal’s ‘People’s War’ lasted for 10 years before a peace agreement was signed in 2006. This clash of state and Maoist forces caused extensive damage to the country and inflicted deep psychological trauma on victims and their families. Nepal has already paid heavily for the loss: over 16,000 people died in the conflict, and over 1,500 disappeared persons remain unaccounted for. Despite the peace agreement–and constant pledges by both sides to provide information regarding the fates of their loved ones–families continue to wait.

 

Ram Kumar Bhandari has led the struggle to secure justice for victims of Nepal’s conflict for over a decade. His involvement with the victims’ movement began when his own father was disappeared in 2001. He has helped to launch the National Network of Families of the Missing and Disappeared (NEFAD), the Committee for Social Justice, the National Victims Alliance, and, most recently, the Conflict Victims Common Platform for Transitional Justice. Ram is a PhD candidate at Nova School of Law in Lisbon.