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Justice Delayed is Justice Denied

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by Prachi Aryal

A Nepali man looks at photographs of disappeared persons displayed by human rights activists. Credits: Niranjan Shrestha

While Nepalese government representatives were addressing the Universal Periodic Review of Nepal’s Human Rights Records, Ganga Maya Adhikari began another hunger strike to demand justice for her son, Krishna Prasad Adhikari, who was killed during the Maoist conflict. Her son was kidnapped, tortured, and murdered by the Maoists in 2004. Adhikari has staged multiple hunger strikes since 2013, demanding the persecution of the perpetrators. Her husband, Nanda Prasad Adhikari died in 2014, succumbing, after 329 days, to his own hunger strike. His body remains in the mortuary, as the family has refused to perform last rites until justice has been served.  The story of the Adhikari family is just one amongst the many thousands whose quest for justice has been quashed by a culture of impunity. 

Nepal witnessed a decade long civil conflict from 1996-2006, fought between joint security forces and Maoist rebels. The period was marked by widespread human rights violations, including forced disappearances, extrajudicial killings, arrests, rapes, and torture, committed by both the warring parties. The conflict left over 15,000 dead and over 1,300 remain missing. 

The Comprehensive Peace Accord (CPA), signed in 2006 to bring an end to the conflict, was a ray of hope for the victims, as it came with a promise of accountability and justice. The accord adopted a gradual approach of disarming and demobilizing the Maoist rebels whilst integrating some of them into the national army and political process. However, 15 years later, the CPA has failed to uphold its promises, with thousands of victims still struggling for justice.

Under the CPA, investigative commissions were established to uncover the truth about the human rights violations that occurred during the conflict. After years of delay, the process was formally started in 2014 with the introduction of the Transitional Justice Act, which authorized the creation of the Truth and Reconciliation Commission (TRC) and Commission of Investigation on Enforced Disappeared Persons (CIEDP). However, the final version of the Act – that was signed into law – differed substantially from the versions agreed upon by government with the victims and the human rights groups, as it contained blanket amnesty for perpetrators of human rights violations. 

Despite the Supreme Court of Nepal in 2015 ruling that this provision of amnesty was unconstitutional the government of Nepal has failed to amend the act. In 2020, the Supreme Court rejected a petition by the government of Nepal to reverse its verdict and restated its previous ruling that the act be amended. The government has yet to uphold the ruling. The government has attempted to amend the act in close coordination with Colombian transitional justice experts. The bill has attempted to build on the ‘restorative justice’ idea of the Columbian process however, it seems unlikely that the victims will agree to it as it remains far from the mandate suggested by the Supreme Court and allows political parties the freedom to reduce the severity of the sentences given to perpetrators.

The CIEDP and TRC’s term was extended by the government until the 15th of July 15 year, it is therefore unlikely that all 2,506 complaints of disappearances and 63,718 cases submitted to the truth commission will be investigated. To date the commissions have not recommended any cases for prosecution and the victims have not received any update on the status of the disappeared.

 A recent figure released by the National Human Rights Commission of Nepal states that, among the cases of violation investigated by the commission, 779 (65.16 %) were committed by the state, 287 (24.03 %) by the Maoists, and 38 (3.19 %) by both the parties. With the changing political scenario and the dominance of the United Communist Party of Nepal, the power of the commissions has diminished as yesterday’s perpetrators are now leaders. The culture of impunity is reflected by the election of Agni Sapkota as the speaker of the House of Representatives despite him facing a charge for murder.

Another challenge faced in the transitional justice process comes from the Nepalese Army, which maintains a position that Civil Courts cannot try Army Personnel. Human Rights advocates assert that this continued failure of the transitional phase is a direct result of perpetrator-led political maneuvering. Om Astha Rai, postulates in Yesterday’s enemies, today’s comrades, the delayed process is because the current political landscape includes perpetrators of human rights abuses who have consistently blocked and impeached processes of accountability . 

Furthermore, the victims are wary of the transitional justice mechanisms as they offer no victim-protection or safety to them. Many victims claim that the transitional justice process is elite-led as it is centered around the metropolitan cities, away from rural Nepal; the battlefield of the ten year long conflict.

An effective transitional justice system requires strong legal foundations consistent with international law and standards, and the political will to address the demands of victims of the conflict, but in the case of Nepal, it is marred by political maneuvering aimed at evading accountability. The culture of impunity and failure to uphold the rule of law will alienate the victims of the wartime conflict and create a fragile state where the respect for rule of law is eroded. With perpetrators continuing to dominate the political landscape justice remains distant for wartime victims. 

The peace process heralded by the signing of CPA has now lasted longer than the war, as the country remains mired in transition, without substantial progress. The perpetrators of crime are elected as members of the government while victims like Ganga Maya Adhikari are left to fight an endless battle for justice.

 

Prachi Aryal is a MA student in the Department of War Studies at King’s College London. Her research interest is inclined towards Gender, Human Rights, and Cross border conflicts in transitioning nations and how visuals from conflict zones play a role in communicating the realities of conflict to the broader world. She completed her BA in Journalism from the University of Delhi, India.

Nuclear Non-Use: Normative versus Legal Constraints

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by Anahad Kaur Khangura

“Ours is a world of nuclear giants and ethical infants,” as General Omar N. Bradley famously said with reference to nuclear weapons and their use. Pictured: the atomic cloud over Nagasaki (Image credit: Wikimedia Commons).

The emergence of nuclear non-use is understood to be a significant norm of constraint in the international security arena. During the Cold War, non-use emerged as an instrument to maintain deterrence between the U.S. and the Soviet Union. This longstanding tradition of non-use is surprising when one considers that with the inception of the nuclear era, it was broadly assumed that nuclear weapons would become a ‘standard feature of modern warfare’. In March 1955, President Dwight D. Eisenhower even stated that nuclear weapons should be ‘used just exactly as you would use a bullet or anything else’. However, the striking fact about nuclear weapons is that they have not been used since 1945. Nevertheless, nations are actively constructing nuclear weapons programmes to maintain their strategic interests.

In light of the seventy-fifth anniversary of the bombings of Hiroshima and Nagasaki, it is questionable whether the use of nuclear weapons would still be legal under the current laws of conflict set up under the Geneva Conventions. However, even though nuclear non-use stands strong today, there is no guarantee that nuclear-armed countries would not consider using such weaponry when their national integrity is under imminent threat.

Normative constraints on non-use 

When considering the origin of normative constraints regarding the nuclear taboo, it is imperative to understand the meaning of the term ‘norm’. A norm could be defined as “a shared expectation about behaviour, a standard of right or wrong.” Research on the subject of nuclear non-use uses a variety of terms such as ‘nuclear taboo’ and ‘tradition’ to define its nature. Should nuclear non-use become a ‘taboo’, it could be identified as a “powerful de facto prohibition against the first use of nuclear weapons.” Indeed, violent instances such as the wars in Korea and Vietnam highlight that the US military addressed ethical and normative concerns while discussing the deployment of nuclear bombs, or the non-use thereof. These examples display that normative concerns have previously acted as driving factors within the USA’s nuclear decision-making. Such a taboo doctrine can also be affiliated with a prevalent repulsion towards nuclear capability and widely-held inhibitions on their use.

The scope of the normative aspect of nuclear non-use is that it can either restrain the use of nuclear weapons instrumentally, where it could appear in the ‘form of a perceived cost’; or it could curb their proliferation more substantively when the set of a country’s core values do not align with their use. In the past, the nuclear taboo has served as a ‘moulding’ component in the historical pattern behind non-use. However, one ought to remember that ‘norms do not determine outcomes, they [merely] shape realms of possibility’. As such, norms influence the likelihood of a certain course of action. By stigmatising the use of nuclear weapons, then, the nuclear taboo lowered the probability of nuclear weapons use. However, it remains hard to quantify such a statement without a legal component.

Legal constraints on non-use 

Legal frameworks on nuclear non-use are an instrument to maintain mutual deterrence among adversaries. Legal constraints such as the No First Use policy (NFU), a pledge made against the using nuclear weapons unless first attacked by an adversary are beneficial in upholding the custom of nuclear non-use within a legal structure. Therefore, the mutual guarantee against the deployment of nuclear weapons, as it is based on internationally recognised legal conventions, serves as an incentive in preserving the tradition of non-use.

However, the current machinery of international politics is facing immense obstruction due to the lack of trust and confidence among nations. Think for example of the slow process in formalising the NFU policy between India and Pakistan. For this reason, legal restrictions are gaining momentum as they promote accountability and provide states with enhanced confidence regarding nuclear non-use by their adversaries. In addition to ensuring confidence, legal constraints on non-use are also supported by a framework of culpability which ensures repercussions upon any party which violates the clauses of any legally binding agreement.

Other constraints on non-use

While it is imperative to recognise the complementary nature between the legal and normative constraints on nuclear non-use, it would be misleading to only consider these elements in describing the structure of nuclear non-use and its function.

Whereas the realist approach towards non-use emphasises the maintenance of mutual deterrence through the regulation of material interests; constructivism approaches from the perspective of norms. Therefore, the overemphasis of the normative elements might overlook the need for maintaining strategic stability and the significance of rational self-interest which played a vital role in forming the non-use tradition at the height of the Cold War. Similarly, overplaying the legal frameworks might lead to ignorance on normative constraints.

However, both approaches are obstructed by deficiencies as the sole reliance on either realist or constructivist approach might be an incomplete approach towards understanding non-use. To avoid oversimplifying a complex issue, one ought to be aware that other factors also contribute to the longstanding existence of nuclear non-use as a custom. In fact, understanding the complexity of nuclear non-use requires the addressing of a combination of factors that impact a nation’s decision-making process towards nuclear weapons and their (non-)use.

There are major anomalies if nuclear non-use is only understood from a single vantage point. A notable example is the case of nuclear non-use between India and Pakistan. Both parties possess nuclear weapons and are also not bound by the legal confinements of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) as the countries consider the treaty as a discriminative policy of disarmament that does not impose a fair and complete ban of nuclear weapons. However, despite their endemic rivalry and border insecurities regarding the disputed territory of Kashmir, both sides maintain it.

Multiple reasons could explain non-use in this scenario: it could be that both sides abide by the global non-proliferation norms that exist even outside the parameters of the NPT; both sides might be upholding the normative elements of non-use to avoid large scale destruction; or both parties might well be adopting non-use to preserve their global reputation as responsible members of the international community. However, the tradition of non-use should not be understood as absolute but rather be considered loosely, keeping in mind that states might alter the custom to elevate their national interests.

Additionally, legal frameworks can also be interpreted as a form of internalisation and institutionalisation of the nuclear taboo. Therefore, normative and legal constraints on non-use not only interact with one another but they also provide a “stabilising” effect on nuclear non-use. Consequently, the prescriptive nature of nuclear non-use can only be conceived in its true essence when an integrated approach is adopted which uniformly acknowledges all factors involved.

Anahad Khangura is a Master’s student at War Studies. Her academic interests are inclined towards types of political violence and counterterrorism strategies. Additionally, Anahad bears a keen interest in the security concerns of the Asia Pacific region, specifically in context of the trilateral relations between India, Pakistan and China. For her Masters dissertation, Anahad evaluated the adaptability of terrorist organisations in light of a comparative analysis between Lashkar-e-Taiba and Hezbollah.