1-7 February 2013 #641

The disappearance of truth

After six years of platitudes, there will be no truth telling and the worst war criminals will walk free
Anurag Acharya
Two weeks ago a retired army officer in an   online interview threatened a military coup if there is an investigation into war crimes. Other media did not pick this up and there was a conspicuous silence in the dailies. This was an act of unmistakable intimidation by an ex-army man who still claimed influence over Nepal’s republican army, and one would presume his remarks were sanctioned by the brass.

All this is good news for state security personnel who tortured, raped, murdered, and disappeared people: you don’t have to worry about your crimes being raked up because your former enemy is your ally now. Baburam Bhattarai and Chairman Pushpa Kamal Dahal assured Kathmandu-based ambassadors that the pending TRC Bill will meet international standards. But in all likelihood there will be no investigations, and even if there are, they will be followed by mass amnesty. There are neither provisions for truth seeking, nor prosecution for war crimes and crimes against humanity under the  newly proposed Disappearance, Truth and Reconciliation Bill forwarded by the government to the president’s office.

Bhattarai’s argument is that wartime excesses like the ones by    Col Kumar Lama     and the murderers of   Dekendra Thapa  come under the purview of the TRC, and he has been publicly advocating a general amnesty so as to “protect the peace process”.

Three years ago, a committee headed by Rakam Chemjong drafted two separate TRC and DC bills. Despite several gaping holes, it had the framework which the victims could use to fight for justice. Most importantly, it criminalised forcible detention, rape, torture, and custodial killings and there was no room for pardon in such cases. But the present bill has not only removed the clause which prohibited amnesty in those crimes, it removed all options for prosecution.

KASHISH DAS SHRESTHA


Bhattarai told the diplomats he was helpless because the president was sitting on his bill. What he did not tell them, and what the envoys knew full well, was how his government tampered with the earlier draft to water it down to such an extent that fellow comrades and state security will be off the hook.


Article 13 of the proposed bill states that the committee will have the mandate to investigate cases, provide financial reparation to the victims and ensure reconciliation, but it will not have the authority to recommend prosecution even in cases of grave violation of human rights. Further, the provision of command responsibility in such cases has been conspicuously removed from the bill. The provision under article 22 also gives the committee the right to initiate victims’ reconciliation with the accused, without perpetrators having to accept the guilt for the crime, while article 23 provides for amnesty in all kinds of cases.


“If the present bill is passed as it is, it will make a mockery of justice and expose the Nepali state’s unwillingness to prosecute war criminals. This will invite further international responses like we saw from the British government in the Col Lama case,” says lawyer and rights activist Govinda Bandi.


The Maoist-led government may be having problems agreeing with the opposition parties on a consensus government, but in not pardoning war criminals there is a consensus. This leaves victims and their families with no choice but to resort to international instruments.


Under Article 2 (3) of the International Covenant on Civil and Political Rights , every individual whose rights or freedoms have been violated has the right to an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity. The article, along with Rule 157 of customary international law, provides universal jurisdiction on cases of suspected war crimes and crimes against humanity.


The extent to which the present state machinery is willing to go in hiding the dirty secrets of the war can be seen in its ban on the feature film, Badhshala, which depicts the story of the notorious Bhairabnath Barrack where the royal Army detained, tortured, raped, and executed suspected Maoists. 


Director Manoj Pandit says that although the movie is fictionalised, it is based on historical facts which is probably why it was banned. The conflict has been over for eight years, but it looks like the ghosts of the past will haunt us for a long time to come.

See also:
 Abdicating state obligation  EDITORIAL

Protecting the peace process' has become a euphemism for both the Maoists and the security forces to push a blanket pardon for all those involved in war crimes.


Trailer of Badhshala film, directed by Manoj Pandit



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