SPEAKING FREELY The alchemy of transition in South Asia
By Michael Van Es
Speaking Freely is an Asia Times Online feature that allows guest writers to have their say.Please click hereif you are interested in contributing.
The International Crimes Tribunal (ICT) of Bangladesh has done little to promote the credibility of transitional justice mechanisms. With over 90 dead as a result of street clashes between supporters of the Jemaat e-Islaami and a trigger-happy police force, the ICT has failed in its attempt to tailor an appropriate way to ensure transitional justice for Bangladesh.
Though supporters of the tribunal may blame the intransigence of
Islamist militants, the truth is the ICT was designed with shameless political intent and has relied on procedural delinquency throughout its course. This is unfortunate, both for Bangladesh and the victims of 1971 indendence war actions, as well as for victims of humanitarian atrocities throughout the region.
There is a grave danger for Nepal that the failure of the ICT in Bangladesh will serve as a touchstone for those seeking to justify their own impunity and prevent the addressing of past wrongs. Although Shankar Das Bairagi, Nepal's ambassador to UN agencies, recently assured foreign audiences that "necessary revisions" would be made to the current Truth and Reconciliation Commission Ordinance, past attempts at institutionalizing impunity do not bode well.
While it would require a deft piece of historical vandalism to equate the Nepali process with the failures of the ICT, it is not beyond the reach of the current establishment. Whether or not this occurs, it is important to make the differences between the Bangla and Nepali contexts explicit. The spirit of crime prevention demands as much.
At the most basic level, the nature of the respective conflicts cannot be equated. Whereas the war of 1971 was premised on a nascent national identity and the drive for a state separate from West Pakistan, the Nepali civil war was primarily class based (though with strong demands of ethnic inclusion). For Nepal, the 10-year civil war resulted in a greater awareness of its own ethnic and linguistic diversity. The need to develop an inclusive model of federalism has consumed debate in the process of creating a stable democracy and avoiding state failure.
The question of justice in Bangladesh however, has long been conflated with the question of national allegiance and identity. Indeed, it has been difficult to decipher whether Shahbagh protesters have been demanding the hangman's noose for reasons of high treason or crimes against humanity. Given this atmosphere, it was inevitable that court proceedings would be perceived as "victor's justice". In the case of the ICT this perception is more than warranted.
There can likewise be very little comparison drawn concerning the attainment of peace in the respective contexts. Nepal's civil war ended with the signing of the Comprehensive Peace Agreement by combatants in 2006. Although this agreement paved the way for a brand of politics that at times resembles the perversity of war, its adversarial nature nonetheless provides a measure of balance in public affairs. If handled in a mature manner, the prosecution of gross human rights violations may proceed without destabilizing state institutions. The same cannot be said of Bangladesh, which attained peace through military vanquish aided by India.
Though decades of dictatorship followed (as well as the creeping tide of Islamism), the legend of the Mukti Bahini (freedom fighter) has done much to stoke the passions of a democracy that is yet to fully consolidate itself. Arguably, this immaturity would not be a problem were prosecutions carried out in a legally sound manner. That they were not, and that chaos has ensued, is a consequence that Bangladesh will have to deal with. It must not stymie the legitimate aspirations of Nepal's transitional process.
Comment cannot be withheld on the nature of the mechanism used in Bangladesh and its difference to the proposed Truth and Reconciliation Commission (TRC) in Nepal. The ICT has laid very little emphasis on truth and reconciliation, and instead has pursued a program of retributive justice with unbecoming rapacity. Conflict cannot be transformed simply by marshaling the levers of the state to one's advantage.
Civil society advocates in Nepal have been consistent in their emphasis on engaging truth-telling and reparative measures (along with prosecution) as fundamental aspects in Nepal's future transitional justice process. A victim-centric approach (in contradiction to the ICT's focus on perpetrators and "collaborators") holds Nepal in good stead to avoid the failures of the ICT. The question of implementation remains to be seen.
However Nepal proceeds, it is apparent that any attempt to gain historical legitimacy for a blanket amnesty cannot be countenanced. The vandalism of history will not go unnoticed.
Despite the contextual anomalies between Bangladesh and Nepal, it would nonetheless be foolish to ignore the lessons on offer.
First, it is very clear that political retribution cannot form the guiding hand of a transitional justice mechanism. A future transitional mechanism in Nepal must be perceived as enforcing the law in a consistent, even-handed manner. Although many have been quick to label attempts at halting the case of Dekendra Thapa as a government conspiracy (and it most likely is), there is a small element of merit in the purported concerns of Bhattarai and Pradhan.
While it may be unpopular, the politicization of public investigation is a very real danger given the limited resources at the disposal of police. If war-era crimes are to proceed in the criminal system (and they may have to, given that a TRC is yet to be formed and is some way off) a unique level of delicacy will be required to ensure the maintenance of credibility.
Second, any transitional justice mechanism in Nepal must be in line with international norms and standards. It is no surprise that the internationally maligned ICT failed to deliver on its mandate. The support of the international community was withdrawn long ago, the result of which has been a diminished respect for the tribunal, witnessed in the running street battles of the past month.
Though Nepal is in little danger of implementing a "victor's justice" (due to the manner in which peace was attained), it is in danger of riding roughshod over the rights of victims to seek justice. While civil society groups have stressed the need for truth telling and reparative measures, prosecution for serious human rights violations must proceed. This is in line with international standards and expectations, and cannot be compromised.
Political transition is an imprecise science. In similar fashion to the alchemists of yore, societies undergoing transition are vulnerable to the threat of bogus 'knowledge' and all variety of claptrap. Though it is yet to occur, the conflation of Bangladesh's failed ICT with a future Nepali mechanism will be a predictable line of argument for those seeking to exonerate themselves from the scales of justice. It is imperative for the lasting peace of Nepal that political entrepreneurs are obstructed from turning the "lead" of the ICT's failure into the pernicious "gold" of a general amnesty.
Michael Van Es is a visiting researcher at Kathmandu School of Law. His interests include the use of amnesty in transitional justice processes and the plight of newly "freed" bonded laborers.
Speaking Freely is an Asia Times Online feature that allows guest writers to have their say.Please click hereif you are interested in contributing. Articles submitted for this section allow our readers to express their opinions and do not necessarily meet the same editorial standards of Asia Times Online's regular contributors.