Contestation and resistance: the politics of and around transitional justice in Nepal

Abstract

The shift to adopting holistic approaches in transitional justice indicates an intention to pay (greater) attention to politics in transitional justice. However, transitional justice actors frequently encounter difficulties in doing so, misread politics and misconstrue where to locate it in post-conflict contexts. Using research from Nepal I argue that there is considerable political activity taking place that challenges transitional justice on multiple scales. This research demonstrates that actors frequently seek to advance their interests and make claims utilising the process, institutions and language of transitional justice. In particular, I draw upon resistance literature and contentious politics literature to elucidate the complex relationships and interactions at the local and national level, which are often omitted from discussions about transitional justice in Nepal. Accordingly, I argue it is more useful to consider actors’ actions in relation to transitional justice on a continuum where there is co-option, resistance, contestation and compliance with a wide range of variation within each.

Keywords:

• Politics
• transitional justice
• contestation
• resistance
• Nepal

Acknowledgements

The Human Research Ethics Advisory Panel B for the Arts, Humanities & Law at the University of New South Wales, Australia provided ethics approval for this research on 4 October 2011. Interview procedures were in accordance with the National Statement on Ethical Conduct in Human Research.

Notes

1. For debates see Oomen, ‘Donor-Driven Justice’; McEvoy and McGregor, ‘Transitional Justice from Below’, 2 and 6; Leebaw, Judging State-Sponsored Violence, 92; Charlesworth and Chinkin, The Boundaries of International Law, 32; Nagy, ‘Transitional Justice as Global Project’.

2. Newman, ‘Transitional Justice’, 48.

3. See, e.g. UN, The Rule of Law and Transitional Justice; Leebaw, ‘The Irreconcilable Goals of Transitional Justice’; Roht-Arriaza and Mariezcurrena, Transitional Justice in the Twenty-first Century.

4. Newman, ‘Transitional Justice’, 47; Apland, ‘The Power and Politics of Transitional Justice’.

5. These actors include the major political parties (Nepali Congress, CPN-UML, Maoist Centre), and at times security forces, the Nepal Army and the Police.

6. Given the state-centric bent of TJ practices, politics is frequently taken to mean national-level politics, however, I stress that the local is a prime site of political activity, contestation and negotiation. Thus, in this article by politics I include politics at the local, national and international level both vertically (between various levels) and horizontally (within organisations and between actors, at the same level).

7. See Slater, Ordering Power, 275.

8. See Selim, Transitional Justice in Nepal.

9. Charmaz, ‘Grounded Theory’, 497.

10. Other data collection methods employed included document analysis, informal conversations, surveys and observation during meetings and conferences in Nepal.

11. Victims were identified through victims’ groups, Local Peace Committees, the International Committee of the Red Cross, human rights organisations and NGOs as well as by referral from other victims.

12. Denscombe, The Good Research Guide, 111–112; Charmaz, Constructing Grounded Theory.

13. Slater, Ordering Power, 276.

14. McAdam et al., Dynamics of Contention, 5.

15. Other aspects of contentious politics are extensive. They include the framing process, opportunity, the mobilisation process and structure, repertoires of contention, the interactions between different collective political struggles, the claims made by different groups and the responses of the state and other groups: Lawoti, Contentious Politics and Democratization in Nepal, 19. I engage with a selection of these in this article.

16. McAdam et al., Dynamics of Contention, 56, 126.

17. Campbell, ‘Where Do We Stand?’, 44–48; Tilly and Tarrow, Contentious Politics, 10, 22, 83.

18. McAdam, ‘Conceptual Origins, Current Problems, Future Directions’, 3.

19. Tilly and Tarrow, Contentious Politics, 215; see also Tarrow, The New Transnational Activism, 190–192.

20. McAdam et al., ‘Comparative Perspectives on Contentious Politics’; Merry, Human Rights and Gender Violence.

21. McAdam et al., Dynamics of Contention, 142, see also 157.

22. Ibid., 146.

23. Lawoti’s work on contentious politics in Nepal is particularly instructive. See Lawoti, ‘Contentious Politics’; ‘Democratizing Promoting’; ‘Democracy, Domination’.

24. Mohanty, ‘Under Western Eyes’, 31, 74.

25. Amoore, ‘Introduction’, 7.

26. Richmond, ‘Resistance and the Post-liberal Peace’, 677.

27. Al-Mohammad and Peluso, ‘Ethics and the “Rough Ground’’’, 49; Das, Life and Words, 6–9.

28. Richmond, ‘Resistance and the Post-liberal Peace’, 682.

29. See for example swisspeace’s research on resistance in Jones et al., ‘Reflections on a Research Agenda’.

30. Pile, ‘Introduction’, 16, 24; Slater, Ordering Power.

31. Bennett, Gender, Caste and Ethnic Exclusion.

32. Lawoti, ‘Ethnic Politics’, 136; Shakya, ‘Unleashing Nepal’s Economic Potential’, 122; Thapa, ‘Making of the Maoist Insurgency’, 51.

33. The government Rehabilitation and Reparation Unit (RRU) provides that there were 17,871 deaths reported. However there are discrepancies between the figures relating to deaths, injuries and disappearances issued by the government (Ministry of Peace and Reconstruction) and those issued by huanitarian, human rights and international organisations (e.g. International Committee of the Red Cross, Informal Sector Service Centre and victims’ groups) and to date no consensus has been reached.

34. Pyakurel, ‘The Vision of the Jana Andolan’, 77.

35. Selim, ‘Opportunities and Challenges’; 9; Advocacy Forum and ICTJ, ‘Across The Lines’.

36. See Selim, ‘Opportunities and Challenges’, 9–10. For the CPA see Article 5.2.3; Article 5.2.4, Article 5.2.5 and Article 7.1.3. The Interim Constitution also included conflict-related state responsibilities, see Part 4(p), (q), (r) and (s).

37. See ibid.

38. Supreme Court Verdicts 2 January 2014 and 26 February 2015.

39. Farasat and Hayner, ‘Negotiating Peace in Nepal’, 20–21.

40. See ibid., 26; Tyynela, ‘Can Truth Commissions Strengthen Peace Processes?’, 84.

41. Other international TJ experiences (e.g. Peru, Northern Ireland and South Korea) were raised but the South African experience has maintained primacy (Interview, Kathmandu, 5 April 2012).

42. Farasat and Hayner, ‘Negotiating Peace in Nepal’, 20.

43. Adhikari et al., ‘Impunity and Accountability in Nepal’, 66.

44. Farasat and Hayner, ‘Negotiating Peace in Nepal’, 21 [emphasis added].

45. See ibid., 27.

46. Interview, Kathmandu, 17 October 2012.

47. Rawski and Sharma, ‘A Comprehensive Peace?’, 196.

48. Ibid., 199; Torné, Transitional Justice Process in Nepal. For example, the Mallik and Rayamajhi Commissions were formed to investigate the suppression of the 1990 and 2006 People’s Movements. See Ibid., 72; Rawski and Sharma, ‘A Comprehensive Peace?’, 199.

49. See Selim, ‘Opportunities and Challenges’; Interview with a male Nepali official at the Ministry of Peace and Reconstruction, Kathmandu, 4 April 2012.

50. Ibid., 19.

51. Rawski and Sharma, ‘A Comprehensive Peace?’, 198.

52. Tyynela, ‘Can Truth Commissions Strengthen Peace Processes?’, 82.

53. Interview, Kathmandu, 5 April 2012.

54. Interview, Kathmandu, 29 February 2012.

55. Interview with male political advisor at a foreign embassy, Kathmandu, 5 October 2012.

56. Interview, Kathmandu, 11 October 2012.

57. Ibid.

58. Ibid.

59. eKantipur, ‘Acharya: Reconciliation Basis for TRC Formation’.

60. Interview, Morang, 29 September 2012.

61. Interview, Kathmandu, 17 October 2012.

62. See Selim, ‘Opportunities and Challenges’.

63. See Bisset, ‘Transitional Justice in Nepal’; Budhathoki, ‘Transitional Justice in Post-Conflict Societies’.

64. Farasat and Hayner, ‘Negotiating Peace in Nepal’, 19.

65. See Guatam, ‘Ensure Justice for Victim’, 5.

66. See Selim, ‘Opportunities and Challenges’, 19; Interview, Kathmandu , 5 March 2012.

67. See Selim, Transitional Justice in Nepal.

68. HRW, ‘Nepal: A Warning to Rights Abusers’.

69. Subotic, ‘Hijacked Justice’, 243.

70. See Selim, ‘Examining Victims and Perpetrators’; Interview with a female Nepali worker at an international NGO, Kathmandu, 5 March 2012.

71. See Rubli, ‘Knowing the Truth’; ‘(Re)making the Social World’, 4.

72. Grodsky, ‘Re-Ordering Justice’, 688; see also Subotic, ‘Hijacked Justice’, 20–21.

73. Selim, ‘Examining Victims and Perpetrators’.

74. See Grodsky, ‘Re-Ordering Justice’, 688.

75. While TJ brokers have largely focused on the TJ mechanisms, there have been a number of short-term NGO programmes for conflict-affected people. The impact of these initiatives should not be discounted. See for example ICTJ, To Walk Freely, 28–29.

76. See Boesenecker and Vinjamuri, ‘Lost in Translation?’.

77. TJ brokers include Advocacy Forum, the Informal Sector Service Centre (INSEC), Women for Human Rights, INHURED, ICTJ Nepal and International Commission for Jurists.

78. See Rawski and Sharma, ‘A Comprehensive Peace?’, 192. It is important to highlight that not all NGOs in Nepal have political affiliations and while individuals working in human rights NGOs may have personal political ideologies this does not mean they pursue these political interests as part of their human rights work.

79. Interview with a male Nepali worker at an international organisation, Kathmandu, 6 April 2012.

80. Interview with a female Nepali human rights worker at a national women’s NGO, Kathmandu, 3 April 2012.

81. See Snellinger, ‘Student Movements in Nepal’, 286.

82. Lawoti, ‘Contentious Politics’, 18.

83. McAdam et al., Dynamics of Contention, 7–8; see Selim, ‘Examining Victims and Perpetrators’.

84. Fullard, ‘Disappearances in Nepal’, 23.

85. Selim, ‘Opportunities and Challenges’.

86. McAdam et al., Dynamics of Contention, 121.

87. Interview with a director of a national human rights organisation, Kathmandu, 17 October 2012.

88. Interview with a male Nepali worker at an international NGO, Kathmandu, 11 October 2012.

89. See McAdam et al., Dynamics of Contention, 142.

90. Selim, ‘Opportunities and Challenges’.

91. Ibid.; ‘Examining Victims and Perpetrators’.

92. Selim, ‘Opportunities and Challenges’. For example, interview with a male Nepali human rights worker, Kathmandu, 7 March 2012 and a director of a national human rights organisation, Kathmandu, 17 October 2012.

93. Interview, Kathmandu, 11 October 2012.

94. Tilly and Tarrow, Contentious Politics, 216.

95. Interview with a male Nepali human rights worker, Kathmandu, 11 October 2012.

96. I examine the evolution of Victims’ groups in Nepal in Selim, ‘Examining Victims and Perpetrators’. Of note is that the Conflict Victims Common Platform (CVCP) was launched on 25 November 2014. The Platform – formerly headed by Bhandari – ‘is a loose network’ of 13 victims’ associations, supported by the UN (CVCPNepal, ‘Conflict Victims Common Platform on Transitional Justice: Nepal’; see also UN, ‘Victims Common Platform on Transitional Justice’). CVCP is intended to help victims overcome internal divisions, to assist with reframing the TJ debate in Nepal and to ‘[s]upport efforts to formulate a common position and demands’ (ibid.; see also UNRCO, ‘Monthly Report: November 2014’, 5). The organisation has made a number of suggestions and submissions with regard to TJ, including criminalisation of serious rights violations, disappearances and torture; the removal of a 35­day statute of limitation on for rape; and, the incorporation of victims’ right to truth, justice and reparation in the constitution. See for example Rai, ‘Conflict Victims Want Provision of Retrospective Law’. In April 2016 CVCP’s concerns were encapsulated in a 21­point memorandum which was provided to the TJ Commissions and Parliament as well as the NHRC, the MoPR and the Ministry of Law Justice and Parliamentary Affairs (Himalayan News Service, ‘Conflict Victims Demand Fair Play’).

97. ICTJ, ‘From Relief to Reparations’, 9.

98. Ibid.

99. For further information about the Interim Relief Program see ICTJ, ‘From Relief to Reparations’; Advocacy Forum and ICTJ, ‘Across the Lines’.

100. See for further details ICTJ, ‘From Relief to Reparations’.

101. Ibid., 23.

102. See Carranza, ‘Relief, Reparations, and the Root Causes’.

103. For example, interview with a male Nepali NGO worker, Dang, 22 March 2012.

104. Interview, Kailali, 20 September 2012.

105. Interview, Ilam, 1 October 2012.

106. ICTJ, ‘From Relief to Reparations’, 9.

107. Interview, Bara, 16 March 2012.

108. Interview, Rolpa, 11 September 2012.

109. Interview, 20 September 2012.

110. Interview, Rolpa, 12 September 2012.

111. Interview, Kailali, 20 September 2012.

112. Tyynela et al., ‘Beyond Relief’, 12.

113. See Robins, ‘Transitional Justice as an Elite Discourse’.

114. Interview, Rolpa, 12 September 2012. Similar examples are evident in Kerkvliet’s research in the Philippines: Kerkvliet, ‘Village-State Relations’, 399.

115. See Selim, Transitional Justice in Nepal.

116. In addition to the TJ experts and brokers discussed above other key actors include bilateral organisations such as DFID, USAID, DANIDA and GIZ.

117. OHCHR, ‘Press Release’.

118. UNDP, ‘Transitional Justice Project’.

119. MPTF, ‘Progress Report’, 7.

120. Ibid.

121. Phuyal and Pokhrel, ‘Evaluation Report’, 3 [emphasis added].

122. Ibid., 19.

123. Ibid., 21.

124. Interview, Kathmandu, 5 April 2014.

125. Interview, Kathmandu, 16 February 2014.

126. Rawski and Sharma, ‘A Comprehensive Peace?’, 193.

127. Interview, Kathmandu, 9 March 2012.

128. Interviews, Kathmandu, 9 March 2012, 5 April 2012 and 5 October 2012.

129. Phuyal and Pokhrel, ‘Evaluation Report’, 12, 23.

130. Interview, Kathmandu, 29 February 2012.

131. Interview, Kathmandu, 5 October 2012.

132. Interview with NHRC worker, Kathmandu, 11 October 2012.

133. Menocal, ‘Getting Real about Politics’, 11.

134. Selim, ‘Examining Victims and Perpetrators’.

135. See Hayman, ‘Ten Lessons’.

136. Arriaza and Roht-Arriaza, ‘Weaving a Braid’, 212–213; Shaw and Waldorf, ‘Introduction: Localizing Transitional Justice’, 12–13.