The revolutionary and the lawyer

This is the first in a series of articles on transitional justice that will be published over the coming weeks.

The Maoists used to think that they would be able to write their interpretation of the war they waged against the state into the official history books. Perhaps they could have done so had they won a total victory over the monarchy, army and other political parties. But since they abandoned arms in 2006, the former rebels have barely managed to find a stable foothold for themselves in competitive politics, let alone the opportunity to shape the dominant narrative about the war. Instead, they have had to combat narratives that hold that the conflict was noteworthy primarily for the senseless damage and suffering it caused. The field of transitional justice has emerged as a key site for this struggle.

At the time that their leaders signed the peace agreement, the Maoist rank-and-file could have hardly imagined that there would be public demands to hold them accountable for the acts of killing and torture they committed during the war. They were barely even aware that there was such a thing called transitional justice. The Russian and Chinese revolutions were the primary reference points in their knowledge of history. They had been taught that the violent uprising of the oppressed was necessary, even inevitable in humanity’s long march towards freedom. The notion that courts would judge the role of individual participants in the conflict and perhaps send them to jail with the expectation that this would help achieve broader objectives — ending impunity, establishing the rule of law, ensuring the non-recurrence of violence — would have been incomprehensible to them.

If you struck up a conversation with a young Maoist you met along the way in one of Nepal’s hill areas during the conflict, the rebel would more likely than not recite a hoary maxim in defense of his war. “A mother endures agony during childbirth, but nothing gives her greater happiness than when she sees her child after it emerges from the womb.” Mulling over the metaphor, you would find it more slippery than it initially appeared. “If the mother is the nation,” you might respond, “and the child the new society you wish to create, then where is your party represented in this vision? Are you claiming that all of you who initiated this upheaval have only the incidental role of the midwife, who simply assists with delivery and bears no responsibility for the pains of labour?”

Flustered, the young Maoist may well have answered with another maxim drawn from his revolutionary repertoire: “A raging river sweeps with it trees, rocks and debris of all kinds,” meaning that revolution is an irresistible torrent that engulfs and combines the wills of thousands of participants into an all-encompassing goal and in the process unfortunately destroys the lives of myriad bystanders. Individual rebel fighters bear no responsibility in this metaphor; they are as much puppets in the current of history as the casualties of war.

Hardly anyone is convinced by such an absolute denial of agency, probably not even the young Maoist deploying his maxims and metaphors. But let us imagine another scenario. The fighting has ended and the rebels have come to the capital. A human rights lawyer goes to meet a senior and knowledgeable Maoist leader and accuses her party of having committed crimes. The leader would concede that her party did bear responsibility for at least some of the violence visited upon Nepal’s population during the conflict but would reject the suggestion that individual acts of killing or disappearance from that period could be considered crimes. She might argue:

“History demonstrates that violence lies at the origin of all nations and communities that live by a given set of laws. In the distant past, chieftains rampaged over swathes of territory, put their rivals to the sword, and declared themselves kings of all that they conquered. Over time the population in the defeated lands did not just grow accustomed to the new laws, but came to view them as essential for their common survival. And the marauding chieftain who crowned himself king was revered as a great benefactor, his ‘crimes’ retroactively justified. This, despite the fact that many of these kings subjugated and exploited their people.

“Over time, ideas regarding the inherent dignity of all humankind spread, and all types of oppression came to be seen as intolerable. But rather than delegitimizing violence, these ideas led to calls for a renewed phase of violence — this time for the benefit of the masses rather than for the few. Revolutionary upheavals established new laws for the community. The new laws were more just than the old laws and allowed the people to live in harmony.

“We — the Maoist revolutionaries of Nepal — may not have achieved a total victory in war, but we deserve primary credit for dismantling the old regime and establishing new laws that allow the oppressed far greater rights and protection than any previous regime in the history of this country. We abolished the monarchy and established a secular state. The notions of affirmative action and federalism would not even have entered into the political lexicon had it not been for our efforts. We would have accepted punishment had we been defeated; punishment, after all, is the prerogative of victors. But how does it make sense to uphold a political order as just and legitimate while simultaneously castigating those who created it as criminals? If the violence committed by ancient rulers was retroactively granted legitimacy, is there not reason to believe that the violence of our revolution possesses even greater legitimacy?”

The human rights lawyer would object to this line of reasoning, and argue that acts of war committed over the past twenty years cannot be compared to those from a hundred or a thousand years ago since humanity has steadily evolved a heightened moral consciousness and developed new norms that have been codified into international humanitarian and human rights law. More importantly, she might say, nobody is trying to pass judgment on whether the Maoist insurgency was just or unjust. Although certain concepts in international criminal law, such as crimes of aggression, are meant to judge whether the very initiation of conflict was justified, these have historically been used only in a few cases involving international conflict and are inapplicable to Nepal’s civil war. International humanitarian law is the body of jurisprudence most applicable in Nepal, and it has nothing to say regarding the merits of the political objectives of any of the warring parties. It simply proscribes certain types of acts that involve excessive cruelty against non-combatants.

But then our party leader would retort that the Maoists too possessed an ethics of wartime conduct and trained their cadre to be careful and disciplined in their engagement with the civilian population. As a result, they killed and disappeared far fewer people than the state security forces, and on occasion also punished their members found to have killed or wantonly destroyed property without any political justification. “You could almost say that our wartime ethic was similar to what you hold up as international humanitarian law,” the Maoist might say.

To which the human rights lawyer would respond: “No, there can be absolutely no equivalence between the two. I myself have heard the Nepali Maoists, like Marxist revolutionaries elsewhere, deride the international human rights regime’s emphasis on individual rights and the sanctity of private property as concepts created by the ruling classes to justify their own domination. And more to the point, the Maoist war ethic condoned the application of severe violence upon selected civilians—something that international humanitarian law absolutely prohibits.”

The Maoist would have to concede that the party did indeed believe that liberal human rights were not universally applicable and that it was necessary on occasion to use violence against non-combatants. She might then explain that the party had categorized certain sections of the population — members of rival political parties, moneylenders, landlords — as “class enemies.” Cadres were expected to coerce such individuals into following the party’s dictate. And if they failed to uphold Maoist social morality (by mistreating Dalits, for instance, or committing adultery), or posed any impediment to the spread of Maoist power (for example, by informing the police of rebel activity), the rank-and-file would be instructed to seize their property and evict them from villages, or, as a last resort, to “eliminate” them. In accordance with the Maoists’ radically consequentialist philosophy, such acts were justified with reference to an ultimate goal.

“Eliminating people with ties to the ruling authorities enabled us to gain control over villages,” she might say. “The eviction or killing of a feudal oppressor was greeted with much excitement by the marginalized sections of the population and helped us win them over to our cause. Such acts enabled us to expand our control in villages all across the country. The power we accumulated in this way granted us leverage in our negotiations with the mainstream political parties and eventually compelled them to agree to the establishment of a secular, republican state. It might sound callous, but had we not evicted or killed the despotic landlord back in the day, there would not have been any political transformation in this country.”

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This conversation is imaginary, but its key points have been implicitly present in the decade-long dispute over transitional justice. A few years ago, the Maoists issued a curious proposal meant to reconcile liberal international norms with their own system of revolutionary morality. In response to the UN Office of the High Commissioner for Human Rights (OHCHR) and other organizations, which claimed that existing international norms forbade amnesties for serious violations of human rights, the Maoists suggested incorporating a distinction in the transitional justice legislation between “political” violations, which could be amnestied, and “non-political” violations, which could not.

The former category would include all acts of violence that were intended to serve strategic goals. In the Maoist mind, this would be somewhat similar to the category of assaults permitted by international law where the number of civilian casualties incurred is found to be proportional to the military objective achieved. But such “political” violations would, in the Maoist definition, also encompass premeditated attacks on civilians, as long as they were sanctioned by the higher leadership. “Non-political” violations, meanwhile, were to be defined as acts of violence committed at the initiative of individual or small groups of combatants, which served no broader goal than the satisfaction of the perpetrators’ sadistic urges, impulse for vengeance, or pure greed.

Of course, such a distinction made no sense to activists and lawyers — the deliberate killing of a civilian is after all a war crime regardless of the motive. Confronted by widespread opposition to the idea, the political parties eventually included no such distinction between political and non-political violations in the transitional justice legislation. They chose instead to fudge the matter. On the one hand, they sought to placate activists and lawyers by including provisions assuring prosecutions for serious rights violations. On the other, they allowed the Truth and Reconciliation Commission (TRC) broad discretionary powers to grant amnesties for all kinds of violations except rape. (Presumably, the rationale for treating rape as a particularly heinous crime, worse even than murder, was that sexual violence could under no circumstances serve any broad political or strategic goal.)

Furthermore, the legislation allowed for the transfer of all conflict-era cases from the regular court system to the TRC. The TRC was allowed to recommend selected cases for prosecution to the government, which was then supposed to forward some of these to the Attorney General to pursue in the courts. The purpose of these provisions, needless to say, was to severely restrict the number of prosecutions. But they also reflected the Maoist belief that the violence of their revolution, meant to shatter and remold unjust law, was fundamentally different from crimes committed during peacetime, and as such could not be tried by regular judicial mechanisms.

Although there was no sufficient basis for including the distinction between legitimate and illegitimate assaults on civilians in the law, the Maoists and their supporters have continued to take recourse to it, especially when demands for the prosecution or conviction of their members have been intense. In January 2016, the Supreme Court annulled a government recommendation to pardon Balkrishna Dhungel, a Maoist party member whom the Okhaldhunga district court had previously sentenced to life for the 1998 murder of Ujjan Kumar Shrestha. After the Supreme Court decision, there were columns in the newspapers and protests on the streets demanding Dhungel’s immediate arrest.

Maoist cadres retaliated by holding counter-demonstrations. Media outlets sympathetic to the party published articles alleging that Shrestha was the son of a prosperous trader (and thus of suspect origin), a serial adulterer and compulsive gambler. He was supposed to have caused extreme suffering to his wife and exploited Dalit women in his village. Local Maoists were said to have repeatedly warned him to change his behavior, but Shrestha had instead gone to the police and informed them about rebel activity. Only then did the Maoists decide to take stronger action. While some articles in the Maoist press claimed that the rebels sought only to rough him up and that his death was an accident, others implied that Shrestha’s “elimination” was justified since he was an enemy of society.

At least some human rights activists responded to such insinuations on the Maoists’ own terms. They claimed that Dhungel and his followers killed Shrestha due to a personal grudge, and not because the victim posed any threat to the party. Advocacy Forum, for instance, stated: “Ujjan Kumar Shrestha was shot to death by Balkrishna Dhungel and his cohorts due to some family feud over charges of pregnancy and inter-caste marriage.” By making such arguments, activists unwittingly fell into the trap of the Maoists’ own distinction between legitimate and illegitimate violence. This was a tactical mistake. They would have been on firmer ground had they argued more strongly that Shrestha’s behavior was irrelevant since the murder of a civilian is a war crime no matter how depraved or dissolute the victim may have been.

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The Maoists argue that the sufferings of wartime were transient but the political transformations it brought are permanent. They imply that they should get credit for their achievements and that the violence they caused should be forgotten. But as the military theorist Clausewitz said, “The final result of a war is not always to be regarded as absolute. The conquered state often sees in it only a passing evil, which may be repaired in after times by means of political combinations.”

Clausewitz was writing about international conflict. His point was that a conquered people will continue to fight back even after they are defeated. And if they lack the power to fight back militarily, they will do so by creating alliances and developing constituencies so as to compete in the political arena.

The principle is equally applicable to civil wars. In fact, the political achievements of violent revolution are particularly insecure, especially if the revolutionists have used dirty tactics like the deliberate killing of civilians to come to power. For such tactics cause pain and hatred and leave behind a large pool of people seeking retribution against the revolutionary party. And besides, revolutionaries almost always struggle to fulfill promises that they will completely uproot all unjust social structures and create conditions of plenitude for all. Once in power, they have to restore order and this leads to the revival of some of the old hierarchies. In the process, it is not uncommon for many old supporters to become alienated from the party.

Revolutionary theorists have long grappled with the question of how the revolutionary party can maintain popular legitimacy and a continuous grip on its constituents after it comes to power. In the Marxist tradition, the answer has often involved the unceasing mobilization of the population towards newly defined revolutionary goals, say, the frenetic development of productive forces or the continued persecution of imagined enemies. Both Marx and Trotsky wrote of ‘Permanent Revolution’. And Mao put forward his own version of the idea almost nine years after the Chinese Communist Party (CCP) seized power, when he said in a speech to the Supreme State Conference:

I advocate the theory of the permanent revolution... In making revolution, one must strike when the iron is hot, one revolution following another; the revolution must advance without interruption… After winning one battle, we must immediately put forward new tasks. In this way, we can maintain the revolutionary enthusiasm of the masses, and diminish their self-satisfaction, since they have no time to be satisfied with themselves even if they wanted to; new tasks keep pressing in, and everyone devotes his mind to the question of how to fulfill the new tasks.

Nepal’s Maoists never managed to gain absolute power, a precondition for launching permanent revolution on a grand scale. But for the first five years of the peace process, the party leadership did attempt to simulate permanent revolution: it continued mobilizing former combatants in the guise of the Young Communist League (YCL); it advocated persecution of supposed class enemies, and tried to convince its cadres that the party still had revolutionary goals. In his notorious speech at the Shaktikhor cantonment in 2009, Prachanda told the restive combatants not to worry about their futures, as they would soon enough be called upon to stage a final revolt to capture all organs of the state.

At one gathering in 2010, Prachanda admonished the families of the Maoist martyrs. The families had been insisting that the leadership help them find out what happened to their disappeared sons, spouses and siblings; punish state security personnel responsible for disappearances and murder; and access reparations for the harm they had suffered. All such demands would be fulfilled once the party gained total control over the state, Prachanda said. But until that time, the families of the dead and missing should direct all their energies towards helping the party complete the revolution. At the time this meant coming out onto the streets of Kathmandu in support of the general strike that sought to bring down the Madhav Kumar Nepal government.

The families of the martyrs obeyed the party as they had done on numerous other occasions during the war. But the promised date for the fulfillment of their demands kept being pushed back into the future. It became evident that the leadership was more interested in colluding with the state army against demands for justice rather than confronting the state on behalf of conflict victims. The relatives of the dead and missing lost faith in the party. They drifted away from the organization that the Maoists had established for them and joined other conflict victims’ groups that spoke not the language of revolution but of universal human rights.

By then the Maoists’ claims about their achievements had ceased to resonate beyond a small circle of the party’s core membership.

By then the Maoists’ claims about their achievements had ceased to resonate beyond a small circle of the party’s core membership. The public rolled its eyes and yawned when the Maoists repeated how the revolution had enabled Nepal to abolish the monarchy, establish a secular state and draft a new constitution, which, despite its weaknesses, was more inclusive than any constitution ever produced in this country. Such statements had lost their potency and become hollow through repetition. A new generation of Nepalis with new aspirations had come of age. They accepted the order created after 2006, but they did so casually, as though it were a given. They did not feel they owed any special gratitude to its architects. If they thought about the Maoists at all, it was as a party engaged in rampant corruption and malgovernance.

When a party that champions revolution is no longer able to rally the masses, it resorts to a different method. It tightens its grip on power and suppresses dissent to contain the retributive sentiments of the population. But this alone is not enough to pacify the population, so the old revolutionaries simultaneously try to set a new goal to distract the people seeking retribution. The Chinese state after 1979 exemplifies this approach. Since Mao’s death, its legitimacy has depended almost entirely on creating conditions for unbridled economic growth. Meanwhile, it has suppressed inquiries into the Great Leap Forward of the 1950s, the Cultural Revolution of the 1960s, and the Tiananmen Square massacre of 1989.

A similar process appears to be underway in Nepal. The Maoists decided to merge with the CPN-UML because the Maoist leadership had become keenly aware that their support base had eroded irredeemably. They recognized that their identity as the party that waged a decade-long war against the state had become a liability. They were worried that demands to hold them accountable for their crimes of war would grow stronger as the party became weaker. Uniting with the UML was a way of creating an unchallengeable political force, in the form of the Nepal Communist Party (NCP). It didn’t matter that the UML’s personnel and ideology dominated the new party. In fact, the old Maoists probably see this as an advantage. They hope that adopting K.P. Oli’s ideology of “development at any cost” and quietly dissolving their identities into the UML will lead to amnesia about their actions during the war years.

Will the old Maoists now in the NCP be able to indefinitely push away demands for accountability and justice? Granted, they are comfortably ensconced in power today. They have managed to secure Bal Krishna Dhungel’s release from jail via executive diktat. Ram Bahadur Thapa “Badal,” who was deeply involved in the Maoists’ military activities during the war, is now Minister for Home Affairs. He has zealously exerted the power of his office, cracking down on those who he feels could threaten the government’s absolute dominance. Just some weeks ago, a group of activists were detained and taken away in police vans from Maitighar Mandala. They had been protesting on behalf of Ganga Maya Adhikari, who has been on hunger strike demanding punishment for the Maoists who murdered her son in 2004.

But perhaps the position of the old Maoists is more fragile than it appears. Lacking much public support, they are dependent on their ties with former UML politicians and their position in government. And it’s unlikely that the government will last forever.

Meanwhile, the victims of conflict have been more persistent than the Maoists might have expected.

Meanwhile, the victims of conflict have been more persistent than the Maoists might have expected. Their voices may be meek and faint, and absent from the halls of power in Kathmandu, but vast multitudes across the country are united in grief and hardship, and are seeking information on disappearances, restitution and punishment for perpetrators. When the TRC and CIEDP solicited complaints in 2016, they received an avalanche of over 65,000 applications. These tens of thousands of people seemed to cry out with one voice: “How will you account for the injustice you made us suffer? When will you step up and take responsibility?”

The politicians may turn the other way or even lock up the victims. But neither the old doctrines of revolution nor the new dogmas of economic growth can offer a satisfactory answer to the maimed and bereaved. To say, “Your sufferings were the sacrifice the nation needed,” is to provide no answer at all. For they might still ask: “But why did we have to make the sacrifices and not you? Did you ever seek our consent?” A day might yet come when the parties will have to confront these questions.

Cover photo: People disappeared during the war. People's War in pictures -I.