Every year on August 30th, NEFAD, along with thousands of families from across Nepal commemorates the International Day of the Disappeared to remember those disappeared during the conflict. Every year a postcard, composed in collaboration with the ICRC, is sent to all families in commemoration of their lost family members and members of the community gather in Kathmandu to hold a candle light vigil and discuss the state of transitional justice in Nepal.
By Ram Kumar Bhandari
This column originally appeared in issue #671 of the Nepali Times, Kathmandu
My father, Tej Bahadur Bhandari, was on his way to the CDO office in Besisahar on 31 December 2001 when a group of armed security personnel arrested, blind-folded, and tortured him on the street in broad daylight. He was ever seen again.
Those responsible for my father’s disappearance remain in the service: Pitamber Adhikari is now an SSP, Major Santosh Singh Thakuri is in the army. They denied detaining my father, and 13 years later the state still doesn’t formally accept that it took him in.
Lamjung district was in the throes of conflict then, and the royal government had adopted TADO (Terrorism and Destructive Activities Ordinance) to crack down on the insurgents. After the Royal Nepal Army entered the war in November 2001, many innocent citizens were killed, tortured, and forcibly disappeared. School teachers, student activists, community leaders, educators, ordinary peasants, and unemployed youth were targeted by both the state and the Maoists.
My father was 56 then, and a retired teacher and social worker. He had been threatened by the security forces and CDO Shiva Prasad Nepal had called him in for questioning, and released him due to lack of evidence.
During conflict, it was not easy for citizens to access the Supreme Court but, even so, many families filed writs of habeas corpus which were mostly dismissed without proper investigation. After the signing of the Comprehensive Peace Accord (CPA), the Supreme Court passed a decision on disappearance cases on 1 June 2007, but none of the components of that decision have been implemented.
The Court ordered that the government enact a law to criminalise enforced disappearance in line with the International Convention for the Protection of all Persons from Enforced Disappearance, establish a high level commission of inquiry on disappearances in compliance with the international criteria on such commissions of inquiry, require investigations and prosecutions of persons responsible for disappearances, and provide for adequate compensation and relief to the victims and their families.
We, the surviving families of the disappeared, continue to live every day through the grief of not knowing the truth about our loved ones. And we still face security threats. The perpetrators of the abductions, torture, disappearances, and killings during the war are in positions of power and many have been promoted. There is a conspiracy of silence between the former warring sides not to rake up war time atrocities.
I speak out against human rights abuses, I name the perpetrators publicly, but the police, the army, bureaucrats, political leaders listen and take no action. There are veiled threats, but I have no fear. I am committed to challenging the crime in a court of law to demand truth and justice however long that takes. And I speak for thousands of other families whose fathers, brothers or sons were also disappeared.
We dream of justice and dignity, but first we want the truth. Our family life has been destroyed, many of us lost bread-winners, and our extended grief has no closure. What does ‘family’ mean, after all? Can the state and the politicians ever compensate for the loss of our family life?
The former enemies are now represented in the state. Can they clarify why the proposed Disappearance Commission itself disappeared? The alleged perpetrators of war crimes like Raju Basnet, Ajit Thapa, Kuber Singh Rana, Ramesh Swar, Pitamber Adhikari, Shiva Prasad Nepal, Dhruba Shah, Niranjan Basnet, Balkrishna Dhungel, and many others remain in powerful positions.
We have seen in the cases of Dekendra Thapa and Krishna Adhikari that the government and political leadership is incapable of remorse, of feeling our pain, or addressing our need for truth and justice. The state continues to deny forced disappearances even happened. We have been left dangling, where do we now go for answers?
Doesn’t our country have to respect the rights of its citizens? Doesn’t it have to respect the rule of law and international covenants that it is signatory to? My father and other disappeared citizens were supporting social transformation, speaking out against structural violence, and struggling to protect the local democratic space. Why was that a crime?
The state should start by publicly apologising for the brutal past of which it was a participant. Then we want it to tell us the truth, for once. After that we want justice for the crimes committed. My father would have been 68, I owe it to his memory to continue this struggle.
By Ram Kumar Bhandari
I remember those days distinctly. When the armed conflict began in Nepal in 1996, the state targeted student activists, community leaders, rural peasants and teachers, among others and subjected them to arrest, inhuman torture and illegal killing. For 10 years, the state celebrated its democracy while simultaneously destroying citizens’ right to life. As American public intellectual Noam Chomsky has stated, “Democracy is a game for elites, it’s not for the ignorant masses, who have to be marginalised, diverted and controlled—of course for their own good.”
In total, more than 1,400 family members, relatives, fathers, sons, mothers and daughters—all innocent citizens—were detained, tortured, disappeared and killed during Nepal’s armed conflict. Today, surviving families have no voice and remain marginalised from the political process. The state and political parties, in the name of democracy, have diverted the agenda of the disappearance movement, ensuring political control while avoiding state apology and recognition.
Since the Comprehensive Peace Agreement (CPA) was signed in 2006, families have demanded the disclosure of the truth, the return of human remains, public acknowledgement and respect for family rights. However, these demands go unanswered and the more time passes, the more difficult it becomes to sustain the necessary pressure on the Nepal government to hold the perpetrators accountable. The government is not serious about addressing the legacy of Nepal’s conflict. Hope for a strong independent commission for the investigation of disappearances has been abandoned while the new Truth and Reconciliation Commission Ordinance has failed to define disappearance as a crime against humanity and address family support or the exhumation process and has created the capacity for perpetrators to receive amnesty.
When I was a student at Amrit Science College in 1999, many students were detained illegally and forcibly disappeared by security forces. On June 17, 1999, student activists Bipin Bhandari and DB Rai, along with senior student leader Purna Poudel were forcibly taken into custody and disappeared. Krishna Bahadur Basnet, a school teacher, was taken from his family in the middle of the night from Suryapaal, Lamjung, while his pregnant wife Maiya lay sleeping. The accused police officer still serves on the force and has even been promoted. Jai Kishor Lav, whose son Sanjib was disappeared from Dhanusha, died before knowing the truth during his fight against state crimes. The alleged officer behind his son’s disappearance, Kuber Singh Rana, has been promoted to head of police.
Similarly, Dipendra Pant from Gorkha and Gyanendra Tripathi from Chitwan were detained and disappeared at the Bhairavnath Battalion along with 49 young activists after illegal arrest, while their captor, in-charge Raju Basnet, has been promoted to brigadier general of the Nepal Army. On Dec 31, 2001, Tej Bahadur Bhandari, a school teacher, was arrested and taken from Lamjung in broad daylight while hundreds of eyewitnesses looked on but the state has never admitted his arrest. The alleged perpetrators, then CDO Shiva Prasad Nepal, DSP Pitamber Adhikari and Major Santosh Singh Thakuri have been promoted.
Following the end of the conflict, the families of the disappeared started to unite in hopes of achieving justice through a disappearance commission. Now the commission itself has disappeared. In 2006, transition was in the air and the families had certain expectations from the state. These hopes have since been dashed. The families were never consulted in the development of transitional justice mechanisms, the constitution remains unwritten and there is little movement regarding local development.
Instead of providing answers or admitting the disappearances, the Nepali state distributed monetary compensation, taking advantage of the victims’ economic needs, and tactically diverted the truth agenda. Instead of creating sustainable transitional justice mechanisms, the government drafted a Truth and Reconciliation Commission without consulting the victims, thus strategically diverting the justice agenda. Instead of addressing the needs of the victims and the delivery of justice, the state followed the prescriptions of donors, diverting the victims’ needs and agency in the name of superficial peace and reconstruction.
As such, there is little hope for progress. Supreme Court Chief Justice Khil Raj Regmi, the current caretaker of the Nepal government, has forgotten his own work after his disappearance from the Supreme Court, and political leaders have connived with security chiefs to forget the past. This not only betrays the legacy of disappearances but also neglects human history and the right to know. History will neither not forgive those criminals nor forget those who were disappeared.
Every year, we mark International Day of the Disappeared; but in Nepal, it is a great shame that we face injustice, witness continuous crimes and experience rule by criminals. The recollection of these events is important today, when the nation hears the voices of the disappeared and feels their suffering. The day is important for various reasons: to remind the state of its duties to uphold the rights of citizens, to recognise the surviving families’ agendas for truth and justice, to serve the victims’ community and to create a space in which full ownership and agency are not only possible but celebrated.
In Nepal, the powers that be have a record of betraying the trust of the people. One important component of sustainable peace is an effective and accessible truth telling mechanism. Disappearances need to be made a national agenda and the family agenda socialised to reintegrate thousands of families to respect the victims’ dignity. We need to speak out together for the truth.
By Ram Kumar Bhandari
For the first time since the end of the war, conflict victims have secured a victory against the state and the parties who, until now, have blocked, dodged and mocked our demands. A joint submission bringing together the voices of seven national conflict victim’s organisations was submitted to the Supreme Court
demanding that it intervene in the government’s effort to establish a truth commission that would stand in clear violation of international laws against impunity. This commission, if allowed to form, would serve to protect perpetrators of human rights violations rather than support victims’ needs for truth and justice.
On April 1, the Supreme Court responded positively to our writ demanding time to fully review the faulty ordinance before the proposed commission can be formed.
The writ petition is a historic step. Together, we have challenged the amnesty clause and the provisions for forced reconciliation in the CJ government’s ordinance. We do not demand a rejection of the truth commission process nor the ordinance in its entirety, but an amendment to clauses (3) (13), (23), (25) and (29): that the commission define disappearance as a crime against humanity and that the process uphold the pursuit of truth, justice and reparation as rights guaranteed to conflict victims. These demands are not extreme: we are merely asking that the government of Nepal meet already established standards of international law that all states are bound to.
To be quite clear, conflict victims and survivors in Nepal want—and need —a truth commission. But we want a commission that strengthens the search of truth and justice, not one that will serve to protect war criminals, as is the one set out in the ordinance. Moreover, as conflict victims, we cannot abandon the process. If we walk away, we are turning our backs on our husbands, fathers, children and wives who remain disappeared, dead or damaged while the men responsible are free to occupy powerful positions in the state and the military.
We must find a way to move forward. The ordinance bill needs a full reinvention in terms of its content, driving principles and procedural approach. First, consultation with victims is a fundamental responsibility, set out in international law, for the establishment and operations of any justice-seeking body. Second, there are clear international standards that require a truth commission to be independent of the government, be transparent in its operations, and be established and operated through a participatory process with civil society and victims. Third, to be successful, a truth commission requires a political environment that is willing and able to uncover the truth about past crimes. This environment does not exist in the elite circles that have guarded the process until now. That is why the process must open to a public deliberation for it to have any hope of being fair and legitimate.
As a joint victim’s alliance, we demand an amendment to the ordinance within three months to meet standards and form a truth commission in full trust and ownership of the victim’s community.
It is important for us to remember, and for the public to understand, that the ordinance is indicative of a larger political climate in which the voices of victims are silenced. We have stalled the establishment of a flawed and illegitimate truth commission, but this is a small victory in the face of our greater challenge of changing transitional justice in Nepal from closed-door horse trading amongst political elites into a political culture that is participatory and democratic.
In this regard, Nepal is representative of a global trend. Transitional justice, as an idea and a practice, first emerged in grassroots victim’s mobilisation against Latin American authoritarianism. In the years since, we’ve seen the project turned on its head. Transitional justice today is the terrain of human rights lawyers, international experts and NGOs. Although internationalisation of transitional justice has lead to the spread of robust standards, it has also pushed victims out of the conversation by creating a political arena easily navigated by state and local elites who are well versed in the legalese of human rights work.
This is the legalistic and highly politicised juggernaut Nepal’s conflict victims are struggling against. Since the beginning of peace process, the voices of conflict victims were sidelined and instrumentalised by the state, various interest groups and political parties. Their signatures promising community reconciliation in reality served as a pact between Maoist and the security forces to hide an agreed on mutual impunity under a pretext of reconciling and moving on. Even today, both perpetrator parties continue to demand the quick formation of amnesty commission to clean the slate.
But for a brief moment Nepal’s conflict victims can forget the challenges ahead and celebrate that the tides against us were reversed. We can celebrate that we achieved this by acting as a united front through the efforts of the Committee for Social Justice, the Conflict Victims Committee Bardiya, National Network of Families of Disappeared and Missing, Conflict Victims Orphan Society, Conflict Victims Society for Justice, Conflict Victims National Society and Reena-Arpan Dalit Uthan Munch Kavre. The existing victim’s organisations have a great deal of support and are seen as a legitimate voice, because they are not beholden to donor money and agenda as are so many organisations that operate in Nepal. Our commitment and emotional attachment to this issue, as well as our moral integrity, has been a touchstone for thousand of families over the past years.
Six years after Nepal’s peace agreement promised a robust transitional justice agenda, the prospects for independent, victim-centered truth and disappearances commissions are more distant than ever. The victim’s movement in Nepal maintains a clear demand for a transitional justice process built around strengthened victims’ access to justice, economic support for families, and the unqualified truth about the fate of loved ones.
Nepal’s ten-year war sits within a continuum of structural violence stretching long before and after the armed conflict. It follows that the communities most affected by the war remain marginalised and stigmatised in a political and judicial system dominated by Kathmandu elites and foreign assistance workers. Moreover, both the Maoist party and the NC-UML have consistently supported a transitional justice process conducive to mutually assured amnesty, which is also supported by security chiefs and bureaucrats. Their loyal agents also played with victims/survivors to favour amnesty and adopted a suitable lobbying tactic with donors to consume a flood of support in the name of victims’ justice. Many fear an independent truth commission and are conspicuous in their efforts to halt it in this political chaos that has only made worse the insecurity felt by victims.
In an ongoing effort to keep the movement for truth and justice alive for families that suffered enforced disappearances during Nepal’s People’s War a new campaign has been formed. The core group, forged of writers, photographers and social activists have come together to promote a campaign based upon participatory photography and memorialization efforts, designed to give those that suffered disappearances a chance to interact directly with the reconciliation process. For further information please visit their campaign site and fundraising portal.
While marginalized within mainstream political discussion, the search for truth and justice continues, please consider offering your support.
By Ram Kumar Bhandari – As published in issue #620 of the Nepali Times
The caretaker government on Tuesday approved an ordinance which includes a provision to pardon those involved in extra-judicial killings and enforced disappearances during the conflict. This is against democratic norms, prevailing international practice, previous political agreements, and violates the Supreme Court directives.
Those who were expecting a full airing of war atrocities by both sides in the transitional justice process to help the healing and reconciliation process are deeply disappointed, but not surprised. News of the ordinance came as the nationwide network of families of about 1,400 people who were disappeared by both sides gathered this week to mark the International Day of the Disappeared.
Reconciliation is an important goal, but it cannot be built on a foundation of impunity for serious crimes under international law, and it cannot be achieved by coercing victims. The ordinance forces the victims and their families to artificially ‘reconcile’ and give up their rights to truth, justice and reparations.
The draft ordinance also tries to make it a two-in-one arrangement by merging the Disappearance Commission bill into the Truth and Reconciliation Commission bill, thus diluting the provisions further and sweeping the dirty secrets of the war under the carpet.
The families are justifiably outraged not just about their own personal tragedies and the remote possibility of finding out what really happened to their relatives, but also because it will prevent closure for them and for the nation as a whole.
The 10 year war brutalised society and caused incalculable damage to the country. It inflicted deep psychological trauma on victims and their families who still suffer the legacy of violence in their daily lives.
Aside from the tens of thousands who were killed, wounded, raped, tortured, and displaced, perhaps the most enduring legacy of the conflict is the missing and enforced disappeared. Families still wait for information about the fate of their loved ones and for the chance, if they are dead, to retrieve their remains and perform appropriate rites.
While the original ceasefire agreement and many subsequent agreements committed to address the issue of the disappeared, six years after the signing of the CPA, no progress has been made. Beyond merely ignoring the demands of victims, the government has added insult to injury by continuing to support direct perpetrators and even promoting known abusers.
The regular promotion of Kuber Singh Rana who was in charge of the infamous Dhanusha case where five students were disappeared, and other attempts to obstruct the path of justice by the state have encouraged impunity and given the Maoists an excuse to get away with their abuses. From the victims’ perspective, forming a Truth Commission through ordinance would simply confirm their worst fears that the state is out to protect and support perpetrators of war crimes while denying victims’ basic demands for justice and sustenance assistance.
This regime is more likely to destroy remaining evidence and manipulate the truth, thereby killing any hope for truth, justice, and reconciliation. A Truth Commission overseen by perpetrators is no Truth Commission, it doesn’t even meet the minimum international standard for a transitional justice mechanism.
Nepal’s post-conflict period has seen the politicisation and commodification of victimhood. The movement towards reconciliation is fragmented by vested political interest groups, holding hostage the grief of thousands of victim families. Various players have instrumentalised the victims’ agenda, exploiting their pain for political and economic benefit.
The politicians have intentionally ignored the victims, while civil society has selective attention. We in the victim community now find ourselves squeezed in the middle: with an inert government laden with perpetrators of atrocities on one side, and on the other a civil society concerned primarily with perpetuating its own existence.
The transitional justice debate in Kathmandu over the last six years has been between a government advocating impunity and a human rights community advancing the global discourse of ‘truth, justice, and reparation’. The families of victims and survivors have had little voice and agency in the proceedings.
Distracted by daily political wrangling, leaders in Kathmandu have forgotten the pain of our recent past. As a result, impunity is deeply rooted and the politics of revenge is polarising society. The interrupted peace process and the dissolution of the CA have left a dangerous void.
The transitional justice process must not just address crimes of the past, but also avoid a future conflict. If this wilful ignorance continues, Nepal may have to pay an even higher price than it did during the 1996-2006 war.
In recognition of International Day of the Disappeared this article was also published by the International Centre for Transitional Justice