Failure to address the systematic crimes committed during Nepal’s ten-year civil war is threatening the peace process. There has been not a single prosecution in civilian courts for any abuses. The cultures of impunity that enabled the crimes in the first place have remained intact, further increasing public distrust and incentives to resort to violence. The immediate priorities should be prosecutions of the most serious crimes, investigation of disappearances and action to vet state and Maoist security force members.

There are tensions between the pursuit of justice and the pursuit of peace. An absolutist approach to accountability for past abuses is impossible in practice and could obstruct the compromises needed to bring formerly warring parties together to forge a stable political settlement. But tackling impunity and improving accountability has a direct and acute relevance to managing Nepal’s fractious transition. Unaccountable and heavy-handed security measures by a state with weak legitimacy have escalated conflict before and threaten to do so again.

Multiple grievances are not being effectively channelled through the constitutional process, and dealing with them is fraught with risk as long as political violence remains a viable tool. Yet moving from a state of impunity to one of accountability will be a painful transition for many individuals in the security forces and political parties. Avoiding, or deferring, this discomfort may appear tempting but is counterproductive. Longstanding cycles of abuse have undermined prospects for improved public security and peaceful political debate.

Both sides carried out repeated and systematic violations of the laws of war during the conflict, which ended with the November 2006 Comprehensive Peace Agreement (CPA). State security forces accountable primarily to the interests of party leaders or the palace felt unconstrained by legal requirements. They were responsible for hundreds of disappearances and unlawful killings, rampant torture and other abuses of the civilian population. Of the more than 13,000 people killed during the war, the vast majority died at the hands of the state. The Maoists, in challenging a state they portrayed as unjust and illegitimate, sought to characterise violence – including brutal killings of civilians and political opponents – as an essential, and justified, plank of political strategy.

At the heart of the peace deal lay a commitment to recognise that both sides had broken fundamental rules. But neither believes its actions were wrong. Both insist on judging their own, meting out no real punishment, and have refused to cooperate with civilian authorities. Lack of action on justice is not for lack of promises. Commitments to human rights norms and specific steps such as investigating disappearances have been central to successive agreements, including the CPA. Lip service, however, has only become entrenched as a substitute for action.

Concern for victims has been inconsistent. The most tangible response has been interim relief payments to families of those who died or were disappeared. Yet this has been weakened by political manipulation and the lack of effective oversight of fund distribution. For relatives of the more than 1,000 still missing, distress, frustration and a sense of betrayal have grown.

Political parties have shown no interest in dealing with past crimes. Indeed, they have exploited the lack of accountability to avoid reining in the unlawful activities of their own activists and to justify regular interference in the criminal justice system. This has left a demoralised, ineffective and increasingly desperate police force to confront growing insecurity and small yet still dangerous local, regional and ethnic struggles.

But political leaders alone are not to blame. The domestic constituency for justice is minimal. Despite the pioneering work of some activists, rights and justice are not rallying calls for the politically influential middle classes. Citizens are not keen to re-examine what the state did in the name of their security, and see no need for national dialogue and catharsis. Many victims were from disadvantaged communities long marginalised by the state and more influential social strata. Media and parliamentary attention to questions of justice is sporadic.

International efforts are no substitute for national will. Nevertheless, international commitment is to support a peace process based on fundamental rights. Allowing words to replace substance undermines such principles. The UN has lost credibility as its core values have been marginalised during the process. With no systematic vetting of peacekeeping troops by either the government or the UN, even high-profile alleged abusers have been deployed in lucrative posts in UN missions – including, in September 2009, one army major sought by Nepal’s police and courts for questioning over the torture and murder of a teenage girl in 2004 inside a Nepali peacekeeping training centre. Countries providing military assistance, including the U.S., UK, India and China, have rarely or never restricted training and opportunities for individuals or units accused of serious violations.

Clear priorities are required. The first should be prosecution of the most serious conflict-era cases. Without a credible threat of prosecution, any commissions of inquiry will not get beyond the inadequate explanations the army and Maoists have already provided. The second is to ensure the commissions on disappearances and on truth and reconciliation specified in the CPA meet basic standards and, more importantly, are domestically owned and have clear, achievable goals. Finally, vetting is needed – both domestically and internationally – to help ensure the stability of any future security forces.

Kathmandu/Brussels, 14 January 2010