This is the third in an ongoing series of articles on transitional justice. The first article, on how the Maoists have grappled with demands to hold them accountable for wartime violence, is available here. The second article, about the Royal Nepal Army’s behavior during the conflict, is here.

Everybody who reads the newspapers in Nepal knows the story of Dekendra Thapa of Dailekh. He was a journalist, well known in his district, and the media reported extensively on his killing by Maoist rebels in 2004. By the time his case was brought before the Dailekh District Court in January 2013, it had become a cause célèbre, representative of Maoist excesses and attacks on non-combatants during the war. The case continues to have emblematic value: It is one of the very few cases of conflict-era human rights violations that have been tried so far, and the only one in which the guilty fully served out their sentences. What then can we learn from the trial?

In May 2004, Maoist rebels cut off the water supply to Dailekh bazaar. Like most other district headquarters in Nepal’s hill region at the time, the town was heavily fortified with security personnel and barbed wire. Meanwhile, the rebels ran rampant in the hinterland beyond. Blocking the water supply was an act of war, a way of laying siege to state authority in Dailekh district and the people living under its protection.

Dekendra Raj Thapa was a thirty-four-year-old journalist living in Dailekh bazaar. A publicly active figure, he headed his town’s Drinking Water Users’ Committee (Khanepani Upabhokta Samiti). On 26 May, he set off in search of Dailekh’s Maoist leaders, along with two other citizens of the town, Kamal Neupane and Gorakh Bahadur Singh. They thought it wouldn’t be very difficult to convince the rebels to fix the pipeline.

At Bhaisikhor, a village close to Dailekh bazaar, the trio encountered a group of Maoists, who said the district’s rebel leaders were at Toli VDC. They walked to Toli, but didn’t find the people they were looking for. They carried on their pursuit. Several times they met party workers who promised to introduce them to their leaders and took them deeper into the heart of Maoist-controlled territory. From Toli, the three friends were taken first to Naumule, and then to Baluwatar. They spent days on end at each of these locations. Villagers fed and sheltered them at the Maoists’ order. But there was still no sign of the Maoist leaders they were supposed to meet. The three residents of Dailekh bazaar must have felt pangs of anxiety and suspected that some ploy was afoot. Where were the Maoists taking them? Did they mistake the three for spies? Did they not believe that all they wanted was the restoration of water supply to their town?

On the twenty-eighth day of their departure from Dailekh bazaar, Dekendra Thapa, Kamal Neupane and Gorakh Bahadur Singh were taken to a settlement in Dwari VDC, at the northern-most edge of the district. They encountered a local Maoist leader, Chhabilal Shahi, alias Ranjit, and held a long conversation with him. But instead of helping resolve their problem, Ranjit threatened them, saying that “anything could happen” to Kamal and Gorakh if they did not head back to Dailekh bazaar immediately. Dekendra was to remain in Dwari, as the rebels had “unfinished business” with him.

Kamal and Gorakh trekked back home, doubtless feeling guilty for having to leave their friend behind, but perhaps also relieved that their meaningless ordeal had come to an end. Dekendra was given a room at the house of Lakshiram Gharti Magar, a local party worker. The journalist from Dailekh bazaar established friendly relations with his host’s family, spending his days helping around the house and on occasion delivering food to Lakshiram when he was working in the fields. Once he sent a note to his friend Kamal Neupane through a Maoist emissary. “It is cold here,” the note read. “Please send me underclothes, some tea and sugar.”

On the morning of 11 August, three weeks after arriving in Dwari, Dekendra was sitting on Lakshiram’s porch chopping vegetables for lunch. Three Maoist activists – Bam Bahadur Khadka (alias Arun), Bam Bahadur Khadka (alias Mukti), and Keshav Khadka – arrived at the scene. They informed Lakshiram that they had been tasked with investigating the journalist from Dailekh bazaar, and took Dekendra with them to an empty classroom in the nearby secondary school. Arun, Mukti and Keshav Khadka pushed Dekendra to the floor, punched and kicked him, and beat him with sticks and stinging nettle (sisnu). Although the three of them were supposedly meant to investigate Dekendra’s affiliations and find out if he was really a spy, they had already deemed him guilty. Infuriated that this journalist had the temerity to enter into their territory and raise questions about why they had cut off the water supply to the district headquarters, they rained down blows on Dekendra as he lay prone on the floor. Intoxicated by brute power, they worked themselves into a frenzy and beat him more and more savagely. What was meant to be an investigation had turned into an exercise in gratuitous cruelty.

They had heard that Dekendra had participated in a public event attended by the King. “Why did you organize a program for Gyane?” they yelled. They knew that he headed the drinking water users’ committee in Dailekh bazaar. In their minds anyone occupying a seat of authority, even with the most tenuous link to the state, must have been an embezzler. “What did you do with all the money raised by the drinking water committee?” they shouted. Dekendra tried his best to shield himself from the blows. Perhaps realizing that the Maoists were not asking questions but hurling accusations, he made no attempt to respond. “Mother!” he cried. “Why did you give birth to me? What did you educate me for?” It was as though he knew he would die soon and that his grim fate had rendered his whole life futile.

Lakshiram Gharti Magar had followed the group to the classroom and watched with a fellow comrade named Bhaktiram Lamichhane, as Dekendra was beaten. The loud shouts and screams drew bystanders, including a few other Maoists, to the classroom. One of them was Bir Bahadur KC. From what he later claimed at the trial, he was returning home from a party meeting when he peeked into the classroom. Shocked to see Dekendra lying on the floor, he confronted his comrades: “Friends, what’s going on? What are you doing?” Mukti said that the party had told them to investigate Dekendra. Bir Bahadur said, “But how do you expect him to answer your questions when you’ve beaten him senseless?” Mukti was irritated by his question and told him to shut up. Another Maoist cadre, Nirak Bahadur Gharti, claimed that he arrived just as Bir Bahadur was arguing with Mukti. Two other party members, Jaya Bahadur Shahi and Harilal Pun, were also named in the indictment. They claimed they were elsewhere that day, but the court ruled that the alibis they offered lacked credibility.

The three men beat Dekendra for a long time, and after Mukti kicked him in the testicles, he fell silent and his body went limp. The nine Maoists present were perturbed. They conferred with each other, carried him to Lakshiram’s house and laid him on the porch. Dekendra stirred slightly, and in a feeble voice said he was thirsty. Lakshiram’s wife moistened his mouth with water. Dekendra fell back again; his body swelled up and became still. Jaya Bahadur Shahi and Harilal Pun checked his pulse and told the rest that he was dead. Bir Bahadur turned to Mukti and asked, “Did you have permission to kill him?” But it would have been futile to continue their argument. The nine comrades were all in it together, and they had to dispose of the body. They selected a nearby location. All of them took turns digging a ditch, and into it they interred Dekendra Raj Thapa’s corpse.

Dekendra Thapa singing a folk song in Dailekh in 2003

I have sometimes asked former Maoist fighters whether they regretted anything they did during the conflict. But I’ve never managed to elicit a straightforward response, perhaps owing to my own shortcomings as a journalist. Most of the people I’ve spoken to were reluctant to recount specific acts of violence. One of them said, “Certain mistakes may have been made in the heat of war.” This was an extremely vague answer, yet I found it illuminating. It revealed a degree of shame, or at least discomfort. Moreover, the use of the passive voice and the reference to the “heat of war” indicated that my interlocutor was hesitant to regard any wartime act of brutality as an act of will on the part of the perpetrator. This young man seemed to suggest that the stress of conflict distorted the faculties of Maoist fighters, leading them to occasionally commit acts they would not have in a time of peace.

Imagine the psychological state of a young rebel combatant during the civil war. Constantly on the move – fighting battles, organizing mass meetings, delivering messages – he lives in a state of feverish anxiety and heightened tension. He dreams of glory, but is perpetually terrified that the police or army will get hold of him. Yearning the pacification of his jittery nerves, he is acutely receptive to his leaders’ efforts to harness and channel his instincts. He seizes upon the idea that history proceeds according to scientific laws and that the poor and dispossessed will inevitably attain victory. His certitude makes him confident, even arrogant. He is ready to extinguish his individuality and become a vessel through which the higher power that is the party acts.

Distant from parents, spouse and the comforts of home, he compensates for his loneliness through intense identification with his comrades in the movement. He is desperate not to let them down. When he displays recklessness in battle, singularly focusing on the object of assault and heedless of the dangers that lie in the way, his comrades afterwards celebrate his heroism. He is grateful for the attention, and resolves to perform even greater feats of courage in the future. But in his heart of hearts he is as surprised as his friends are with his actions. For, when he thinks about it, his free will seems to have played only a small role when he attacked that police post or army barrack. He’d forgotten himself in that moment; it was as though forces beyond himself propelled him. And if a skeptical listener asked what these forces were, he might answer in all seriousness: inspiration from my peers and leaders, the irresistible impetus of History itself.

Explaining the circumstances that shape the mentality of perpetrators does not excuse their crime.

Political rivalries harden into enmities in times of war. Each side perceives a difference of opinion as an existential threat. The Maoist fighter believes in his truth absolutely; he believes that no other truth has the right to exist. The upheaval of conflict has made him susceptible to overpowering emotions. As soon as the party identifies someone as an enemy of the revolution, hatred consumes him and he is ready to strike.

Dekendra Raj Thapa was a civilian. He was not only unarmed, but being in Maoist custody, was in a quite helpless state. Yet, three Maoist cadres beat him so viciously that he died. They were goaded by some of the same impulses that drove many of their comrades in battle. They were utterly arrogant in their belief in the justice of their cause. They were egged on by each other, and possibly by the desire to impress the leaders who had ordered the interrogation. Their hatred towards Dekendra was boundless, even though they barely knew him. He was a cipher on whom they projected all the attributes of an enemy.

Explaining the circumstances that shape the mentality of perpetrators does not excuse their crime. An examination of the perpetrator’s psychological state and the political context of a crime may have a place in sociological analysis but is almost meaningless in a court. At most it might affect the judges’ deliberations on the length of the sentence and whether it should be mitigated. Five of the nine Maoists present at Dekendra Thapa’s killing were tried at the Dailekh District Court in 2013.  The judges were only interested in identifying the specific role of each defendant in beating and killing Dekendra. In their judgment at the very end of the trial, the judges admitted that the proceedings had not revealed the reasons why Dekendra had been interrogated and tortured. But they did not think this was a problem, since the ideological or political motivations underlying the crime are irrelevant from the viewpoint of the law. As Hannah Arendt wrote in an essay collected in the book Responsibility and Judgment, a courtroom does not judge historical trends or political ideologies, but only individual human beings. Even if the crime was committed as part of an organizational strategy, a trial is primarily meant to evaluate only the defendant’s guilt and not the comprehensive responsibility of the organization to which he belongs.

The court asks the defendant, Did you, such and such, an individual with a name, a date, and place of birth, identifiable and by that token not expendable, commit the crime you stand accused of, and Why did you do it? And if the defendant answers: ‘It was not I as a person who did it, I had neither the will nor the power to do anything out of my own initiative; I was a mere cog, expendable, everybody in my place would have done it; that I stand before this tribunal is an accident’ — this answer will be ruled out as immaterial.

For the Maoists, war was a time of risk taking and derring-do and fierce solidarity. Action was regarded as the greatest virtue and inwardness and reflection a sign of weakness. Bonds forged in the heat of the war unraveled in court under the cold gaze of the judges and their dispassionate queries. Each defendant was forced to think about his personal responsibility and justify his actions. The former rebels could no longer even trust each other; each feared that another would reveal what he desperately wanted to conceal. Two of the defendants – Jaya Bahadur Shahi and Harilal Pun – brought acquaintances who told the court that the two weren’t in the district on the day of the killing. But the court rejected their testimony, preferring to believe another defendant – Lakshiram Gharti Magar – who said that the two were present at the school in Dwari when Dekendra was assaulted.

The three other defendants pleaded that they had merely stood by as Arun, Mukti and Keshav Khadka attacked Dekendra but admitted guilt for helping bury the body and conceal the killing. Asked why he had cooperated in the burial, Lakshiram said that his leader Mukti had pressured him. Bir Bahadur said he hadn’t been able to inform the police as required by law because of the “terrifying (kahali lagdo)” conditions of wartime.

Being in court thus forced them to reflect on and accept their personal responsibility. No defendant sought acquittal on the grounds that they were victims of circumstance. Some discontented Maoists observing the proceedings muttered  that some poor Magars from Dailekh had been unjustly framed for acts for which top Maoist leaders were ultimately responsible. Still none of the defendants tried to argue that they had been merely following orders. The question of who had ordered Dekendra’s interrogation was broached only in passing, when a witness said that Dekendra had been killed at the order of Khagendra Sen, a district-level Maoist leader. No defendant seemed to think that they could possibly use that piece of information to argue their innocence or at least deflect attention from their role.

At least one defendant – Lakshiram Gharti Magar – appeared relieved that he was being tried. It seemed he had been living in fear of arrest, and a long, stressful waiting period ended when the police took him to court. Lakshiram was the chief witness at the trial, providing the most detailed account of events from the day of the killing. The versions of the story he shared with the police and court were consistent, his demeanor obviously sincere. So the court adopted his narrative as a key basis for their judgment, even using it to rebut the testimony of witnesses they found less reliable.

Lakshiram acted as though being hauled before the court was an opportunity. He told journalists that he had been unable to live with himself ever since the killing. And it was evident that he attached metaphysical value to the court. Through confession he sought redemption. When an investigating officer asked him whether he was prepared to face punishment, Lakshiram replied that while he had not participated in the killing, he would accept a sentence for helping conceal the corpse and “for the sake of the eternal peace of Dekendra Thapa’s departed soul.” What he meant perhaps was that he sought punishment for the peace of his own living soul.

Dekendra's daughter Nutan cries while her mother narrates to the media in Kathmandu how her father was killed by the Maoists Photo : Bikas Rauniyar

Dekendra’s daughter Nutan cries while her mother narrates to the media in Kathmandu how her father was killed by the Maoists Photo : Bikas Rauniyar

A great clamor surrounded the trial at the Dailekh District Court. Over eight years had passed since the killing, and the victim’s relatives expected a judgment that would finally assuage their pain and rage. “We are happy today,” one of them said. “Because we have succeeded in bringing the murderers of late journalist Dekendra Thapa within the boundary of the law.”

But it wasn’t just his family that was invested in the trial. Thapa wasn’t the only person the Maoists had harassed or killed. There were many others who were enthused at the prospect of justice for Dekendra. Cadres of rival political parties gathered outside the court, raising their fists and chanting slogans. Human rights activists and journalists traveled all the way from Kathmandu to witness the trial. Some of the country’s most prominent lawyers lent their services to the prosecution. For them, the trial marked a milestone in Nepal’s transitional justice process. As one of the first trials for violations committed during the war, it could set a precedent for others that might follow. The lawyers argued that the trial was a step not just towards ensuring justice for victims of conflict but also towards ending impunity, preventing the repetition of widespread human rights violations, and establishing the rule of law. In other words, they wanted the trial to have a deterrent effect, a didactic moral purpose, and political ramifications that extended far beyond the courtroom.

There was a widespread presumption that the defendants were guilty. “The five murderers should receive the harshest possible punishment,” said Surya Kumari Thapa, leader of the UML’s local women’s organization. She threatened that her party’s cadres would surround the district administration and police offices in protest if the sentences weren’t severe enough.

The prosecution’s task was to channel all the passions simmering around the courtroom into legal arguments acceptable to the judges. They had to prove that the defendants’ crime was grave enough to merit the most severe punishment allowed by the law. But here they faced a problem. The three Maoists who had personally interrogated Dekendra and tortured him to death, namely Mukti, Arun and Keshav Khadka, were not present in court. They had fled and would perhaps never be apprehended. The five others who were on trial appeared to have played only a secondary role.

As part of their strategy to draw all five of them into the web of culpability, the prosecution lawyers asked for punishment based on Clause 13.3 of the Muluki Ain’s Chapter on Homicide, which deals with killing committed by groups. The clause states that when it is possible to identify the specific individuals in a group who committed the actions (“hitting, beating, stabbing or poking”) that led to the victim’s death, these individuals will be considered the principal murderers and liable to imprisonment for life and confiscation of property. Others in the group will be regarded as secondary perpetrators and given milder sentences. But if it isn’t possible to distinguish between the roles played by various members of the group, all of them will be regarded as primary perpetrators and liable to life imprisonment.

The lawyers argued that the evidence was insufficient to determine the specific roles of the nine Maoists present at the crime, and as such asked the judges to sentence the five defendants to life imprisonment. In this way, the prosecution wanted to transfer the guilt borne by Mukti, Arun and Keshav Khadka onto the defendants even though the latter had only been accomplices. The prosecution must have felt that this was justified as this was no ordinary trial, but one that symbolized all the crimes the Maoists had committed. They wanted heavy sentences to allay the passions around the courtroom and set a precedent for equally severe punishments in the future.

But the court would be violating the defendants’ rights if it deemed them primary culprits based only on the evidence that they were present at the crime scene and were affiliated to Mukti, Arun and Keshav Khadka. It was the judges’ responsibility to apply cold reason to the prosecution’s overheated claims. If a key task of the judiciary is to turn down all appeals to extraneous circumstance and locate the individual culpability of the accused, the institution also has a responsibility to shield them from passions and pressures emanating from outside the courtroom.

The judges at the Dailekh District Court seem to have been aware of their responsibility. After they questioned all witnesses and heard the arguments of both the prosecution and defense, they found that Clause 13.3 of the Muluki Ain’s Chapter on Homicide was not applicable to the defendants. The evidence did not show that they were principal offenders. Rather, they were accomplices to the crime.

None of the five men had actually carried out the assault. But four of them had participated in discussions held before the crime and made no attempt to stop their comrades from beating Dekendra. This was a crime under Clause 17.3 of the Muluki Ain’s Chapter on Homicide. While three defendants – Nirak Bahadur Gharti, Jaya Bahadur Shahi and Harilal Pun – each received a sentence of one year and six months on the basis of this clause, Lakshiram Gharti Magar received a reduced sentence of a year, as a reward for his cooperation with the court. All four of them were sentenced to an additional six months in prison for helping bury Dekendra’s corpse and concealing the killing from the authorities.

The fifth defendant, Bir Bahadur K.C., had remonstrated with Mukti and tried to stop him from beating Dekendra. He was thus less culpable than the others. But he had failed to report the killing to the authorities, a crime punishable by a year’s imprisonment. The judges gave him a mitigated sentence of six months in consideration of the wartime situation. But then they added an additional six months to this sentence, since Bir Bahadur had, like the other defendants, participated in burying the corpse.

The five defendants thus received sentences ranging between one and two years. For everyone on the side of the prosecution, this was a severe disappointment. Freedom Forum, an organization campaigning for the rights of journalists and a free press, complained, “The imprisonment period to the murder accused is very short, which came against the expectation. The murders must be meted out justice in a way it would help discourage future violations (sic).” The media was uninterested in the reasoning underlying the verdict. Instead, news reports were openly resentful towards the judges. They approvingly quoted activists, including Mandira Sharma of Advocacy Forum, who said, “We are appalled by the decision. The case was representative of the crimes committed during the war…how will people trust the country’s justice system now?”

The press and activists believed that they were on the side of justice. It was natural for them to feel disappointed with the mild sentences, especially since this was among the very few war-era cases that was being prosecuted. Their impulse to use the trial as a lesson for all of society too was understandable. After all, war crimes trials all across the world are intended to have a broad and morally salutary impact. But had the judges exaggerated the culpability of the defendants for the sake of fulfilling such purposes, the trial at the Dailekh District Court would have become a show trial, which Google defines as “a judicial trial held in public with the intention of satisfying public opinion, rather than of ensuring justice.” And a show trial, as everyone knows, represents not justice but its travesty.

Dekendra Thapa's body was exhumed on June 25, 2008 by the National Human Rights Commission. Photo: Janak Nepal/Kantipur

Dekendra Thapa’s body was exhumed on June 25, 2008 by the National Human Rights Commission. Photo: Janak Nepal/Kantipur

Much activism over the past decade has been centered on pursuing perpetrators through the regular court system. As a result, politicians now seem to have come around to the idea that there will be more trials than they had previously envisaged. Until a few years ago, the Maoists tried to block proceedings every time one of their cadres was taken to the courts. But more recently, no less than former Maoist Chairman Prachanda himself commended one of his former followers, accused of the killing of Krishna Prasad Adhikari, for surrendering to the authorities. And while the 2014 Transitional Justice legislation enabled the Truth and Reconciliation Commission (TRC) to offer amnesties, a new amendment proposal made public in June prohibits amnesties for serious human rights violations.

But the politicians’ new strategy entails prosecuting a number of low-ranking perpetrators as a way of distracting attention from the role of more senior Maoists and army officials. Both the 2014 legislation and the recent draft amendment treat the violations of wartime as isolated acts for which individual combatants who directly participated in them are wholly responsible. The proposed amendment, for instance, states that the Attorney General will prioritize cases where the violations were premeditated, included a high number of perpetrators and victims, and targeted particularly vulnerable groups (“women, children, incapable or disabled persons, or senior citizens”). Nowhere does the amendment bill state that efforts will be made to investigate the responsibility of those higher up in the chain of command.

Although there is a provision stating that a Special Court will be formed specifically to try war-era crimes, the law that will apply is still the regular criminal code. The cases brought before the court will therefore be regarded as equivalent to ordinary crimes of peacetime. Activists have been campaigning for the adoption of legal concepts from international law, such as war crimes and crimes against humanity, which would allow for greater consideration to the wartime situation, the organizational basis of violations and command responsibility. But the politicians have resisted all such efforts.

This means that in the best-case scenario, scores of low-ranking perpetrators will be taken to court and made to individually account for the harm they committed, like Lakshiram Gharti Magar and others at the Dailekh District Court. Would the sum total of all these trials add up to a satisfactory transitional justice process?

No doubt, in many cases punishment for perpetrators would offer satisfaction to those whose relatives were killed or disappeared. But as the Dailekh case demonstrates, there is also bound to be much disappointment. Many cases are unlikely to reach court at all. Many trials will result in acquittals due to a lack of evidence. And if the government has its way, most of those convicted will receive highly mitigated sentences.

But the politicians’ new strategy entails prosecuting a number of low-ranking perpetrators as a way of distracting attention from the role of more senior Maoists and army officials.

Even if the Special Court infallibly acts in favour of justice in every single case that is filed, the sum total of all trials might still have an unjust outcome. The role of the court is to focus solely on the responsibility of the accused. The Dailekh District Court cannot be reproached for failing to identify and punish the relatively senior Maoist leaders who ordered Dekendra Thapa’s interrogation; after all they were not named in the indictment. But as we have seen, some thought this was unfair. Although the defendants themselves did not complain, other former Maoists in the vicinity said that it made no sense to punish the five men when senior Maoists were not only roaming free but also comfortably ensconced in positions of power in Kathmandu.

I think that a tremendous sense of injustice would take hold if the courts sentenced large numbers of low-ranking perpetrators like Lakshiram Gharti Magar without taking the roles of their superiors into account. Many former combatants would question the rationale for holding their comrades individually accountable for violations, without considering how their actions were shaped by the pressures of wartime, the exhortations of their superiors and the culture of the organization to which they belonged. From their perspective, such an approach to the crimes of war would be utterly unhistorical and stripped of all context. It would allow their senior leaders to act unperturbed and look on from their high perch while the lower-level combatants are sent to jail. The rank-and-file will feel unjustly scapegoated for crimes over which their larger organization, and more specifically, its top leadership bears ultimate responsibility.

A perfect resolution of the dilemmas of trials might not be possible. Among the innumerable conflict-era violations, only a fraction might end up being processed through the courts. An element of arbitrariness will remain no matter how thoughtfully the cases are selected.

Still, courts can certainly do better than just trying to drag as many low-ranking perpetrators as possible into the net of the law. I do not mean that they should not be prosecuted; but rather that a sounder legal strategy would focus more intensively on the chains of command in both the state and Maoist armies and seek evidence against higher-ups who can be credibly implicated in war crimes.

The prosecution of senior figures among the army and the Maoists would shed stronger light on how institutional policy led to violations, thus contributing to revealing the ‘truth’ of the conflict. It would have a stronger deterrent effect, as security forces would probably be more likely to comply with human rights norms in the future if their senior officials are prosecuted. And such an approach would avoid merely scapegoating the foot soldiers and provide more meaningful justice to victims.

 

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