Contesting transitional justice in Nepal: interests, victims and agency Yvette Selim A thesis in fulfilment of the requirements for the degree of Doctor of Philosophy School of Social Sciences Faculty of Arts and Social Sciences April 2015 UNIVERSITY OF NEW SOUTH WALES Thesis/Dissertation Sheet Surname or Family name: SELIM First name: YVETTE Other name/s: Abbreviation for degree as given in the University calendar: School: SOCIAL SCIENCES Faculty: ARTS AND SOCIAL SCIENCES Title: Contesting transitional justice in Nepal: interests, victims and agency According to various actors including donors, human rights organisations and victims’ groups, the transitional justice (TJ) process in Nepal is stagnant and fragmented. However, in this thesis I argue that despite this the TJ process in Nepal is also dynamic and highly contested by a range of actors. Using grounded critical analysis to explore these dynamics it is clear that the TJ process both enables and denies the agency of different actors. On the one hand, actors frequently seek to advance their interests utilising the language and mechanisms of TJ. On the other hand, some actors are denied agency when they are unable to access or participate in donor-driven incarnations of TJ. Accounting for these dynamics requires a broad notion of politics. In this thesis the politics of and around TJ are explored using an actor typology and an action spectrum. The actor typology identifies four main groups of TJ actors—experts, brokers, implementers and victims—and highlights who is making claims and on behalf of whom. The action spectrum, based on contentious politics literature and resistance literature, identifies adoption/compliance, negotiation, contestation and resistance as key strategies actors use to engage with the TJ process in Nepal. I argue that the potential of TJ lies in these dynamics of contention. It is by letting these dynamics play out that different conceptualisations of TJ in Nepal can arise. While doing so may lead to practical challenges and produce situations that are normatively undesirable for some actors, particularly when certain political parties and national actors seem to ‘hijack’ TJ, remaining steadfast to the dominant TJ paradigm is also undesirable. Dealing with the legacy of violence in a manner that resonates with victims and affected community members requires a meaningful participatory process that goes beyond information sharing and consultation. It also requires a readiness to accept that justice may not contain pronouncements of forgiveness and reconciliation and may be focussed on basic needs. While the multitude of voices and experiences may complicate current TJ processes, they provide the potential to animate TJ in local contexts. 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Requests for a longer period of restriction may be considered in exceptional circumstances and require the approval of the Dean of Graduate Research. FOR OFFICE USE ONLY Date of completion of requirements for Award: Originality Statement ‘I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material which have been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project's design and conception or in style, presentation and linguistic expression is acknowledged.’ Signed ……………………………………………………. Date ……………………………………………………….. Abstract According to various actors including donors, human rights organisations and victims’ groups, the transitional justice (TJ) process in Nepal is stagnant and fragmented. However, in this thesis I argue that despite this the TJ process in Nepal is also dynamic and highly contested by a range of actors. Using grounded critical analysis to explore these dynamics it is clear that the TJ process both enables and denies the agency of different actors. On the one hand, actors frequently seek to advance their interests utilising the language and mechanisms of TJ. On the other hand, some actors are denied agency when they are unable to access or participate in donor‐driven incarnations of TJ. Accounting for these dynamics requires a broad notion of politics. In this thesis the politics of and around TJ are explored using an actor typology and an action spectrum. The actor typology identifies four main groups of TJ actors—experts, brokers, implementers and victims—and highlights who is making claims and on behalf of whom. The action spectrum, based on contentious politics literature and resistance literature, identifies adoption/compliance, negotiation, contestation and resistance as key strategies actors use to engage with the TJ process in Nepal. I argue that the potential of TJ lies in these dynamics of contention. It is by letting these dynamics play out that different conceptualisations of TJ in Nepal can arise. While doing so may lead to practical challenges and produce situations that are normatively undesirable for some actors, particularly when certain political i parties and national actors seem to ‘hijack’ TJ, remaining steadfast to the dominant TJ paradigm is also undesirable. Dealing with the legacy of violence in a manner that resonates with victims and affected community members requires a meaningful participatory process that goes beyond information sharing and consultation. It also requires a readiness to accept that justice may not contain pronouncements of forgiveness and reconciliation and may be focussed on basic needs. While the multitude of voices and experiences may complicate current TJ processes, they provide the potential to animate TJ in local contexts. ii Table of Contents Abstract i List of Tables vi List of Figures vi List of Abbreviations and Acronyms vii List of Key Transitional Justice Actors in Nepal ix List of publications xi Acknowledgements xiii Part I 1 Chapter 1: Introduction 2 Situating Transitional Justice 7 The evolution of transitional justice 7 Assessing transitional justice 10 Arguments, Puzzles and Contributions 16 Chapter Overview 20 Contributions 23 Limitations, Terminology and Definitions 25 Chapter 2: Research Design 29 Theoretical Underpinning 29 Grounded theory methodology 29 Deriving a Spectrum 32 Contentious politics 34 Resistance 37 Research Method 43 Case study 43 Data Collection 47 Semi-structured interviews 47 Observation and field notes 53 Disruptions to fieldwork 54 Working with four different research assistants 56 Reflexivity and Ethical Issues 58 Positionality and power 58 Empathy, emotions and working with ‘vulnerable populations’ 61 Chapter 3: Debating Transitional Justice 64 Definitions and Understandings of Justice 64 Politics versus Justice 70 Timing 73 The Role of External Actors 76 The Inclusion of Participatory Approaches 81 The Victim/Perpetrator Binary 90 Part II 96 iii Chapter 4: Conflict and Peace in Nepal 97 The Evolution of the State (1768 – 1996) 97 From the Shah to the Rana regime 97 The Panchayat system 99 The 1990 People’s movement 101 The Civil Conflict (1996 – 2006) 104 The causes of the conflict 104 Enter the Maoists 107 The trajectory of the conflict 109 Impacts of the conflict 116 The Peace Process 119 The Comprehensive Peace Agreement 119 The role of third parties 123 Transitional Justice in Nepal 127 The national transitional justice agenda 127 Transitional justice actor typology 139 Examples of Participation in Nepal 161 Chapter 5: The Politics of Transitional Justice in Nepal 177 Experts’ Influence on the Transitional Justice Agenda 178 The Language of Transitional Justice 183 Politicised Brokerage 189 The Role of OHCHR 194 Participatory Attempts 203 Chapter 6: Victims in Nepal 212 Victims and Perpetrators 213 Victims’ groups 225 The Interim Relief Program 232 The role of Local Peace Committees 244 Justice and Relief 248 What do victims want? 248 Conceptions of justice 256 Ways of Dealing with the Past 259 Forgiveness and revenge 261 Peace and justice 265 Moving on 268 Chapter 7: Rethinking Transitional Justice in Nepal 272 Towards Critical Praxis 272 The politics of and around transitional justice 272 Timing, peace agreements and truth commissions 275 Participation 276 Victims and everyday realities 277 Appendices 284 iv Appendix