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Published: Fri, 02 Feb 2018

Victim-centred Transitional Justice

Victim-centred transitional justice and understanding the needs of wives of the disappeared in post-conflict nepal

Abstract

Transitional justice aims to address issues arising from violations committed during conflict or political violence. It does this however in largely prescriptive and institutional ways, often elite led and subject to existing power relations; as a result many transitional processes fail to consider the demands of transition of victims of conflict and in particular those most socially excluded such as women. Here an effort is made to steer a ‘victim-centred’ transitional justice by considering the priorities of the wives of the disappeared. Whilst disappearance is a violation perpetrated by men on men, wives of the disappeared are most impacted by the violation. This empirical study uses participatory and ethnographic research methods to understand the needs of the wives of those disappeared during Nepal’s Maoist insurgency. It is seen that an answer regarding the fate of the disappeared, economic support and social issues are their priorities and that they have been ill-served by the lack of transitional mechanisms and by civil society’s emphasis on an exclusively prosecutorial agenda. A victim-centred transitional justice is likely to be one that consults broadly with such victims, and dispenses with the narrow legalism that dominates the discourse today. [To update, or use as is?]

Victim needs and transitional justice

Introduction

Disappearance is a violation that overwhelmingly targets men. As a result, it is women, notably the wives and mothers of the victims, who are most impacted by disappearance. Here, an empirical study of the broad needs of wives of the disappeared in post-conflict Nepal are examined, with a view to understanding the limits of the current practice of transitional justice in addressing those needs.

The discourse of transitional justice has arisen as a response to the needs of societies emerging from conflict or political violence and has become the preferred lens through which to examine democratising states. Typically, it describes institutional responses to violations of international humanitarian law, human rights law or domestic law that occurred during a previous regime. Despite a widespread understanding that it is the poor and disempowered who suffer most in conflict and political violence, a sustained engagement with such constituencies has not become part of the mainstream practice of transitional justice. Transitional processes and the mechanisms (such as trials, truth commissions and reparation schemes) through which they work tend to be top-down:[1] they are created by elites, often those who were themselves involved in the conflict that preceded the transition, supported by an international community remote from the context and from indigenous understandings. In many cases processes of consultation with victims and communities have been cursory.[2] Some literature is now emerging to challenge this deficit, [3] but there remains a dearth of praxis that interrogates the idea of a transitional justice driven by the grassroots.

To privilege a victim perspective, studies are required that engage with those who have experienced violations, understanding the meaning that populations give to such events and the symbolic and social worlds people occupy. To root a response to gross violations in the experience of those most affected demands an empirical and an ethnographic approach to reach a holistic understanding of the transformations wrought by conflict. Such an approach necessitates empirical work of a highly interdisciplinary nature and an understanding of the role of the so-called “primary” institutions of the family and community that hold the key to recovery from such extreme events. Here, an effort is made to explore how a victim-centred transitional justice process could be constructed; to ground such a paradigm in the needs expressed by victims, to explore the empirical methods by which such needs are evaluated and to make a study of the needs of a particular set of highly disempowered victims, namely the wives of those disappeared during Nepal’s decade long Maoist insurgency.

This article begins by discussing the limits of current practice in transitional justice in serving victims and then reviews existing theory and practice with an emphasis on efforts to understand victim agendas in transition. The literature addressing the violation of disappearance is then briefly discussed, before reviewing the context of Nepal, in terms of the conflict, its ongoing transition and approaches to the issue of disappearances. The participatory ethnographic methodology of the study is discussed and the findings summarised in terms of the needs identified by families of the disappeared. These are briefly analysed in the light of the ongoing transitional process in Nepal, and the implications reviewed for policy in the country and for transitional justice practice more broadly.

Transitional justice: The limits of current practice

The ‘pillars’ of transitional justice have been described as “prosecutions, truth commissions, reparations, institutional reform and reconciliation initiatives”.[4] Such a prescription constrains transitional justice to be largely an institutional process and this has been challenged by those who assert that recovery from conflict must be rooted in an understanding of how mass violations have impacted and transformed affected populations.[5] This institutional approach is necessarily distanced from victims of violations, since a majority will never access these institutions directly. The one mechanism that should in principle have greatest with victims is that of reparations, but in both literature and practice, prosecutions have led the agendas of those advocating for transitional justice. [6] The priorities of international agendas can be seen by comparing the billions spent on the International Tribunals for Rwanda and former Yugoslavia in comparison with reparative processes and that spent through the Victims’ Trust Fund of the ICC. (refs)

Both the literature and practice around gender issues in transitional justice emphasise sexual violence against women, and more particularly judicial process to address such violations (refs). This discourse reduces women to their injury in a violation centred way, rather than discussing the gendered power relations that lead to violations:

“It is really amazing,” said one Kosovar women working as a secretary in UNMIK, “that the international community cared only about Kosovar women when they were being raped – and then only as some sort of exciting story. We see now that they really don’t give a damn about us.”[7]

The focus on sexual violence allows the cultural and socioeconomic issues that often underlie disempowerment to be neglected, and ignores the fact that in a context such as Nepal female victims are also marginalised by their ethnicity, caste and class. Studies in low income states show that victims emphasise basic services rather than processes which focus narrowly on the violation that victimised them (Rubio Marin ++). The emphasis on livelihood demonstrates that victims seek to challenge the status quo ante, rather than seek a return to it through a purely restitutive process (Rubio Marin). It also suggests that many victims are unaware of rights or the possibilities of rehabilitation or compensation. This challenges thinking about what could drive a reparations process in such contexts.

If transitional justice is “…to address the past in a constructive future-oriented manner” (Rigby, 2001: 2) then it must confront the structural violence of social exclusion that led to conflict. Nepal’s conflict emerged from systematic social, economic and political marginalisation on the basis of ethnicity, gender caste and class (refs). Those most disempowered in Nepal seek a transitional justice that aids their empowerment. The dominant role of victims in the mechanisms that constitute contemporary transitional justice is in the giving of testimony, a necessarily passive interaction. This study suggests that mobilisation of victims is a strategy that will both increase victims’ role in the creation of transitional process and empower them. This will aid the creation of a transitional justice that that is not violation and perpetrator centred, but one that is victim centred and addresses the histories of marginalisation that define the lives of the excluded and enable violations.

The term victim-centred has been used by many transitional processes most often in an attempt to suggest that the process places the victim at its centre, in a reference to one of the principles of restorative justice [8]. Here, the term victim-centred is used to define a transitional process or mechanism that arises as a response to the explicit needs of victims, as defined by victims themselves. A victim-centred approach thus requires a process either of broad consultation with victims, or for victims and their representatives to be engaged at all levels of the planning and implementation of transitional process.

Whilst the rights discourse underpins transitional justice, here needs are taken as the focus of the study for several reasons. Firstly, it will be seen that in the context of Nepal most victims know little of rights and instead articulate needs. The language of rights is an alien one to many and victims’ daily experience confronts them with unmet needs, very often the most basic. Whilst it is asserted that since rights can be claimed they give victims agency,[9] privileging an external discourse can in practice empower elites and outsiders at the expense of victims,[10] particularly the most disempowered who have both the greatest needs and least access to the language of rights. Secondly, whilst the rights discourse claims to address all rights equally, in practice civil and political rights are prioritised over others, notably the social, economic and cultural.[11],[12] Thirdly, the result of ignoring the needs of victims can be a perpetuation of the cycle of conflict, which is largely driven by attempts to address perceived grievances that arise from previous violence. One implication for practice of privileging victim needs over more abstract notions of rights is that victims must be engaged by transitional process: local visions of the future or local meanings of justice must inform the process.

Understanding victim agendas

– Wives as victims?

– Victims: not only direct, but indirect

In many post-conflict interventions both the individual and collective consequences of violations remain largely unexamined. Indeed, much of the literature of transitional justice is of experts speaking for victims.[14] The roots in law of the human rights discourse leads human rights practice in conflict and post-conflict environments to place an emphasis on the collection of testimony and the investigation of the facts of violations, prioritising outcome over a process of engagement with victims. Disappearance gives rise to a need for truth and justice, but the range of needs goes far beyond this. Studies have been made of both the general impact of war on civilians and of families of the disappeared in particular, dominated by approaches that privilege investigations of the psychological sequelae of trauma, and in particular posttraumatic stress disorder (PTSD).[16] Such approaches have been critiqued both for ignoring indigenous understandings[17] and using evidence that the impact of disappearance is very different from that of a single, traumatising event, being of a chronic nature that has emotional, psychological, economic and social consequences. The net impact on families and individuals of having a missing relative will be the sum of these effects, subject to the resources of individuals and communities to cope. Ambiguous loss is an explicitly relational perspective that characterizes the stress of disappearance as external and ongoing that has been applied to families of soldiers missing in action and of victims of the 9/11 attacks on New York whose bodies were never found.[19] The issues of missing persons and human remains necessarily engage with context specific emotional, psychological and spiritual constructs and as such demand an engagement with culture to create process that is steered by needs that are highly local.

A recent development has been the use of social science research methods to determine the attitudes of populations of states in transition as a tool to make transitional process responsive to the perceptions and needs of those most affected. This approach, pioneered by the Berkeley Human Rights Centre, uses a mix of qualitative and quantitative methods with the ambition of delivering “evidence based transitional justice”.[21] It has been used in several contexts, including the former Yugoslavia, Iraq, Rwanda and northern Uganda.[22] Whilst these studies have permitted the priorities of affected populations to emerge, including in some cases the needs of families of the missing and disappeared, their research goals were not to understand the needs of research subjects, but focussed on externally defined agendas. A more recent study in the east of the D.R.Congo used both quantitative and qualitative approaches with a specific remit to ‘understand the priorities and needs of Congolese civilians affected by the conflicts’.[23] In Nepal one empirical study has been made explicitly targeting victims of the conflict,[24] but using methodologies that have been subject to criticism for reflecting an external agenda of retributive justice, and emphasising civil and political rights over victims’ priorities in terms of basic needs. Such exercises can allow transitional justice to respond to needs, but are likely to be less effective than the direct mobilisation of victims. Disappearances in Latin America in the 1970s and 1980s gave rise to longstanding victims’ movements, such as the Madres de Plaza de Mayo, whose members provided both support and solidarity to each other and were able to represent victims’ views to the authorities. Here, empirical studies to understand victims’ agendas are made in collaboration with victims’ organisations.

Disappearances in Nepal

Nepal’s Maoist insurgency was driven by a legacy of centuries of feudalism in a Hindu kingdom built on a codified framework of social and economic exclusion that marginalised indigenous people, lower castes and women. Women marry to gain access to property and social acceptance but have no inheritance rights (ADB, 1999). Their status in the family is traditionally subservient and can be precarious; they are expected to work and to produce sons and their value to the family lies largely in this. As a result the loss of a husband can have catastrophic consequences. Women consistently fall behind men in educational achievement and skill development, often leaving them with few livelihood opportunities. The vast majority of the nation’s almost 30 million people live in rural areas, working in agriculture and living lives of desperate poverty. In 1996 a small party from among Nepal’s fractious Marxist left, the Communist Party of Nepal (Maoist) [CPN-M], declared a ‘People’s War’ against the newly democratic regime. The insurgency grew rapidly from its initial base in the hills of the impoverished Mid-west with the Maoists conducting military operations throughout the country. They propounded a politics that explicitly encompassed an end to exclusion on the basis of ethnicity, caste and gender and as a result a significant fraction of their cadres were drawn from these marginalised groups. The CPN-M has claimed that 40% of its cadres (both military and political) are women but it remains the case that the leadership, even at more junior levels, is dominated by higher caste men.

Whilst disappearances had occurred from the start of the conflict, and even before it, the introduction of the Royal Nepal Army into the conflict in 2001 dramatically increased human rights violations of all kinds[28]. Between 2000 and 2003 Nepal was responsible for a greater number of cases of disappearance reported to the UN’s Working Group on Enforced Disappearances than any other state;[29] disappearance has become the defining violation of the conflict. The conflict came to an end in April 2006, with a second ‘People’s Movement’ uniting the Maoists and the constitutional parties against a king who had seized absolute power. As part of an ongoing peace process the monarchy has been abolished and following elections to a constituent assembly the Maoists are now the largest party in the legislature. The conflict has left a legacy of some 15,000 dead,[30] and more than 1,200 unaccounted for.

Whilst disappearances[32] were perpetrated by the Maoists, the vast majority were the responsibility of the forces of the state, apparently as a deliberate strategy of war by military commanders at several levels in the hierarchy. One motivation was the elimination of those perceived as part of the Maoist threat, and this appears to be what drove the disappearance and apparent extra-judicial execution of students and others perceived to be Maoist activists, often from the streets of Kathmandu. In rural areas there were additional dynamics that encouraged disappearance linked to the traditional power structures of caste, class and ethnicity that were the underlying cause of the conflict. In Bardiya for example, the district worst affected by disappearance, the People’s War was perceived by many as the continuation of a long running conflict over land between the majority indigenous Tharu community and high caste landlords who had established control of much agricultural land over recent decades. In addition to disposing of Tharu activists, the RNA leadership in the region had an interest in enforcing traditional power relations, and the wave of disappearances that followed the declaration of the state of emergency in 2001 achieved this. In Bardiya, the arrest of victims from their homes at night, in many cases by forces acting on information from informers, was in the tradition of authoritarian regimes deliberately creating an atmosphere of terror in communities perceived as being loyal to the insurgency. One of the most well known cases of disappearance in Nepal concerns a fifteen year old girl from a dalit[33] community who was arrested by RNA troops, tortured to death and buried at an army camp; the same group of soldiers had earlier raped and killed other teenagers from the community, putting issues of caste and gender at the heart of the violations.

Families close to the CPN-M first established an association of families of the disappeared in Kathmandu during the conflict, bringing together families to campaign for the state to inform them of the whereabouts of relatives. Soon after the end of the conflict family associations were established in other parts of the country, organised at the district level by families themselves, often independent of any political party and trying to represent victims of both sides. Family associations have articulated the demands of victims, seeking livelihood assistance and advocating for truth and justice from the authorities; they have also been a valuable mechanism of solidarity and support. They have had a sometimes problematic relationship with human rights agencies and in contrast to well funded agencies have had little success in gaining donor support. The authorities have largely declined to engage with the family associations. As in all arenas of life in Nepal, men have taken lead roles in the family associations. Women, however, constitute the bulk of those active in family associations and agendas that emphasise those issues of greatest priority to women, notably the economic, form a large part of the advocacy of their advocacy.

Methodology of the study

The research methodology is driven by the aim of allowing the voices of victims to contribute to the debate about dealing with the past. The research design and conceptualisation process was executed in a participatory way with the family associations who determined the goals of the research process and the methodology. The output of this process was that the research would be rooted in an advocacy effort, would be ethnographic, and that the family would be the unit of analysis. Families wanted their needs to be communicated; the final research report allowed the dissemination of the results as a tool of advocacy. Whilst the methodology presented here does not replace the mobilisation of victims to represent themselves, it does allow for a process that engages victims and their organisations in a way that not only allows their voices to be heard and identifies local resources, but gives those organisations a concrete advocacy tool to increase their effectiveness. The study emphasised the goals of transition, motivated by the lack of knowledge of potential mechanisms by victims.

Different perceived needs exist in rural and urban, rich and poor families, and between families with significant with human rights agencies and those without; this demands a process that delivers a representative sample of such families. The sampling frame used for this study is a list drawn up by the International Committee of the Red Cross (ICRC) of 1,227 persons missing as a result of the conflict, compiled during ICRC’s presence in Nepal since 1998, through visits to rural communities and from statements made by families who visited ICRC’s offices. A selection of 10 of Nepal’s 75 districts was made that enabled the worst affected districts to be included, whilst also ensuring a spread by region, geography (plains, hills, mountains), ethnicity and alleged perpetrator (state, Maoist). These 10 districts account for 43% of those on the ICRC list. Within these districts a random selection was made, and families visited in their homes. 86 families were interviewed, the majority with the family as a unit; since the power relations within families were visible, where possible younger wives of the disappeared were met alone or in peer groups so as to understand potentially problematic dynamics within the family. The data discussed here focuses on 26 wives of the missing interviewed with their families, alone and in peer groups. The sample of women met can be summarised as follows:

– 21 came from traditionally excluded indigenous ethnic groups or lower Hindu castes;

– 20 cases involved disappearances perpetrated by the state and 6 by the CPN-M.

Interviews typically lasted around 90 minutes and were semi-structured, based on a 7 page script that had been developed in conjunction with family associations over a 2 month period prior to the research. Families were invited to prioritise their needs relating to their disappeared relative through a series of open questions, and then probed about specific elements of those needs. Additionally, 10 focus groups containing a total of 74 relatives of the disappeared were conducted with peer groups selected by family associations; these included groups of wives of the disappeared, members of particular ethnic groups, and groups defined by the perpetrator of disappearance. The research was conducted over a six month period two years after the end of the conflict. Disappearances discussed here took place between 12 and 2 years prior to the study, and on average 5 years before. The disappeared are victims but so too are their families, for whom the suffering of war continues. Whilst a minority of the disappeared are educated and urban most come from rural peasant backgrounds and their families are illiterate and poor. The typical interviewee is thus a rural woman of low educational level from an indigenous ethnic group. All interviews and focus groups were recorded and these translated and transcribed; these texts were iteratively coded for analysis by both frequency of topic data and for selection of relevant text segments.

The collaboration with the family associations served to build trust with research participants and allow effective ’emotional access’. The easily understood advocacy aim of the research ensured an ethical relationship between the researcher and the researched and eased issues around informed consent. In addition to steering the research goals and methodologies, the community of victims was able to provide counselling and support to families around the research process. The response of families to the study varied; some were angry that many agencies had collected data from them, but no action had been taken. In the majority of cases, however, particularly in rural areas, family members were grateful that an interest was being taken in their issues, and understood the advocacy goal of the research: ‘Through you our voice reaches the Government and the work starts as soon as possible.’ (Wife of disappeared man, Kathmandu.) During interviews families were asked about human rights, with none outside the leadership of the family associations having any good idea what rights were:

Sometimes I think that when they took our people, they should not have killed them, they have the right to live. […] It is treating them like beasts to kill them immediately after arrest. They treated our people like dogs. But I don’t know exactly what rights are. (Focus group participant, Bardiya)

For the majority of those met in this study the fact that they have rights, to redress, to justice and to reparation, plays no part in the formulation of their demands in response to their victimhood.

Needs of families of the disappeared

We, the women of Nepal, are living bearing this type of pain. We can’t cry in front of the children, we have to try to console them. (Focus group participant, Gorkha)

Needs of victim families are not static: as the understanding of the fate of loved ones has changed over the years of the conflict and as the peace process has developed, so needs have evolved. This study represents a ‘snapshot’ of those needs at a particular time. The first question asked during the interviews was an open question about the family’s priorities; three types of response emerged far more frequently than others as needs:

§ An answer about the fate of the disappeared, the truth: ‘Is he dead or alive?’ (mentioned by 65 percent of wives).

§ Economic support: ‘compensation’, or a demand for privileges regarding education, medical treatment and jobs for family members (85 percent).

§ Justice, in terms of the punishment of those responsible (15 percent).

The needs expressed by the men or families represented by men in interviews are compared with those expressed by wives in Table 1.

Need

wives

men

Economic support

0.85

0.55

An answer regarding fate

0.61

0.65

Prosecution

0.15

0.51

Table 1 Fraction of interviewees expressing particular need; comparison of wives of the disappeared with male respondents.

This demonstrates the gender dependence of needs: women overwhelmingly emphasise the need for economic support and truth, while men prioritise such support, truth and prosecutions similarly. On asking families if they would like to see someone punished, the vast majority said they would: thus this represents a hierarchy of relative priorities, rather than a set of alternatives. There were also dramatic differences in priorities between more politicised and educated urban families, and poor rural families, most notably concerning justice. For example, of families from rural Bardiya district, predominantly from the indigenous Tharu group, only 7 percent mentioned justice as a priority, while in the capital 69 percent did.

Need to know the fate of the disappeared

Knowing the fate of the disappeared was a priority, not least to end uncertainty:

We hear that our husbands are dead but no one has confirmed if that is true or not. How much longer can we wait and hope for answer? It seems like our life will be finished by waiting. (Focus group participant, Bardiya)

Of wives met, 77 percent demonstrated a degree of ambiguity about what had happened to their husband:

I haven’t made any rituals. I still wear the symbols of marriage. I wear them because I haven’t seen him dead: maybe he is alive somewhere. The Government hasn’t recognised what happened to him. (Wife of disappeared man, Bardiya.)

For families of the disappeared, due to the lack of clarity over their fate, the death of their loved one is something almost impossible to admit to themselves. This can disrupt the normal grieving process and may lead to arrested grief or atypical reactions, known as ‘complicated grief’. This phenomenon can be understood in terms of ambiguous loss:

… ambiguous loss is the most stressful loss because it defies resolution and creates confused perceptions about who is in or out of a particular family. With a clear-cut loss, there is more clarity – a death certificate, mourning rituals, and the opportunity to honor and dispose remains.

Only 6 of the 26 women met accept that their husband is dead; others maintain hope, even after many years that their loved one will return. The time that has passed has reduced hope, but has not extinguished it. In most of the cultures of Nepal traditional healers are consulted that can give hope to families:

I went to a Tharu guruwa and Indian baba. According to them he is still alive abroad. The Tharu guruwa showed in the mirror my husband walking through the jungle and mountains, and the Indian Baba told me he is in another country. (Wife of disappeared Tharu man, Bardiya.)

In one untypical case, it was a message from a traditional healer that ended the ambiguity over one woman’s husband:

I visited 3 different traditional healers. Two of them told me that he is alive and one told me that he’s not alive. That was 3 years ago. One day my daughter was suffering from a stomach ache. I called the guruwa that night, and she told me that my husband is killed so it’s giving you trouble. (Wife of disappeared Tharu man, Banke.)

Others have told of with the spirits of the disappeared, often in dreams, which have reassured them their loved one is alive. For many wives of the disappeared such access to the spirit world is very real and can significantly impact on their understanding of the fate of their loved one. It can also permit an understanding grounded in culture of the repeated dreams that often result from a disappearance. For families to move on, to conduct rituals and to look to the future rather than the past they need an answer that convinces the family beyond all doubt that their missing relative is dead.

Need for human remains

There appears to be a primal need to see the bodies of the dead: it is suggested that the rituals around death break down its denial, permit grief and promote detachment. The traditional treatment of the dead will vary between cultures in Nepal, with Hindus burning bodies and Buddhists, animists and Muslims burying them. Religious attitudes and ritual obligations after death shape views of the importance of human remains to families. Across the diverse religious traditions of Nepal there is however unanimity among families in th


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