Thursday, 24 October 2013

Immunity and impunity

Jitman Basnet

Published in Nepali Times (for original publication click here)

The end of the conflict in 2006 did not bring about an end to violence and threats of violence. In fact, the culture of impunity is so deeply embedded in Nepali society that those who seek peace and justice are themselves being threatened. This does not bode well for
peaceful elections.

Not a single perpetrator of wartime atrocities have yet been brought to justice in Nepal. The reason for this is a lack of political will on the part of the former enemies who were signatories to the Comprehensive Peace Agreement of November 2006.
Frustration among tens of thousands of victims and their families is running high, and after years of seeking justice their hope is diminishing. One emblematic case highlighted their plight: the hunger strike by the parents of Krishna Prasad Adhikari.

Nanda Prasad and Ganga Maya Adhikari, were harassed and driven out of their home in Gorkha by those behind their son’s murder, arrested several times and thrown into a mental asylum for demanding a formal investigation.

Maoist leader Pushpa Kamal Dahal reacted by threatening “dollar-funded” activists, condemning the National Human Rights Commission and the Regmi government for daring to open the case. He went on to warn of a “revolt” if the investigations were pursued.

In a meeting with the NHRC, Home Minister Madhav Ghimire cited “legal hassles” impeding investigations into conflict era murders. The statement completely contradicted and undermined the terms of the CPA. These aggressive threats echo those of perpetrators on all sides who are seeking to halt prosecution of such cases. In January 2013, the Baburam Bhattarai-led government deployed the state machinery to work for the release of Col Kumar Lama.

Lama was allegedly involved in the torture of civilians at the Gorusinge Barracks during the conflict period. He was arrested by British Police in London while on a family visit under universal jurisdiction, but all of Nepal’s political parties stood with the government to support him.

Many conflict crimes were committed or sanctioned by senior security or government officials, and the perpetrators have been promoted over the years. Most of the criminal complaints are either denied registration or disregarded. The existing criminal prosecution procedures have been completely denied for conflict-era cases.

Justice is elusive because perpetrators currently hold positions of power in government, police, or army. Without reform, the traditional courts will not be able to resist political and bureaucratic pressures. The community of victims is divided into factions based on political affiliation, and so are human rights activists. Lawyers, civil society, witnesses, and journalists who press for transitional justice are threatened by perpetrators.

To be sure, impunity existed before the conflict. The withdrawal of criminal charges against those accused of suppressing the 1990 People’s Movement set a precedent. The politicisation of crime and withdrawal of criminal cases over the years ensured immunity from prosecution.

In October 2008, the Maoist-led government misused the section of the State Cases Act 2049 and withdrew 349 criminal cases against their cadre. In 2011, the Jhalanath Khanal-led government withdrew several hundred criminal cases, including serious offenses such as homicide, rape, robbery, drug smuggling, wood smuggling, and so on.

This trend provides immunity to perpetrators, and creates a firm ground for future arguments in favour of amnesty for violators within the Truth and Reconciliation Commission (TRC) and Disappearance Commission. The Office of the High Commissioner for Human Rights made strong statements in 2012 in this area, asserting that blanket amnesty for perpetrators is against international standards.

It is said that ‘justice delayed is justice denied’. In response to requests to move the prosecution of alleged perpetrators forward, parties insist on waiting until the Truth Commission is formed, but they are just stalling. When impunity is not checked, violence never ends.

Dahal said recently: “The peace process will collapse if past crimes are raised.” The reality is that the peace process is at risk if we do not confront the ghosts of our recent past.

Jitman Basnet is a human rights attorney and a Reagan-Fascell Democracy Fellow at the National Endowment for Democracy