Opinion

Mind the gap

Transitional justice is not detached from foreign policy Mind the gap

Binod Kumar Paudel & Rajendra Senchurey

Published at : January 22, 2019

Updated at : January 22, 2019 08:19

The statement of the bilateral meeting between Nepal’s Foreign Minister and his US counterpart has raised the need for an earnest discussion on the various aspects of the ‘Indo-Pacific Strategy’ and its implications for Nepal. The statement by the Deputy Spokesperson Robert Palladino reads, ‘The two leaders discussed Nepal’s $500 million Millennium Challenge Corporation compact; Nepal’s central role in a free, open, and prosperous Indo-Pacific; and global issues, including North Korea’. The language used in the statement relays the impression that the US is expecting Nepal to play a central role in their Indo-Pacific Strategy.

However, the statement by the Embassy of Nepal in Washington has kept the issue a bit vague—identifying the subject as ‘matters pertaining to regional and global affairs’. From this generalisation, it is apparent that the Nepal Government seems cautious about not explicitly expressing their position regarding the Indo-Pacific Strategy. This is further clarified by our Foreign Minister’s remark, ‘We discussed Nepal’s central role in the Indo-Pacific region, but not on the basis of strategic partnership’.From this, it becomes clear that there is a glaring gap between US expectations and Nepal’s intention.

However, even if Nepal were reluctant to participate in the strategy, the US can apply various approaches to incorporate Nepal into its strategy if it is determined to not compromise on its conceived framework.One such approach could be by influencing our troubled transitional justice system.Transitional justice is not detached from foreign policy—especially as balancing domestic and international imperatives is one of its crucial goals.

Annie R. Bird, a policy advisor with the US Department of State, in her masterful book ‘US Foreign Policy on Transitional Justice’ articulates that the US has deployed transitional justice as a core diplomatic tool in countries like Cambodia, Liberia and Colombia. She traces these sequential histories and argues that US policies on transitional justice have been strategically based on a clear cost-benefit analysis.

It is likely that the US uses the ‘carrot and stick approach’—an idiom that

alludes to a policy of offering a combination of reward and punishment to induce good behaviour—to influence Nepal in its Indo-Pacific Strategy. It can incentivise Nepal for espousing that strategy by, inter alias, supporting the country in its transitional justice issues—as was the case in Colombia.

Colombia was its long-standing ally, so it sustained lenient laws to deal with human rights abuses related to the war-era. If Nepal denies the strategy, the US can raise international attention to establish an international/hybrid court in Nepal through the United Nations. This occurred in Cambodia and Sierra Leone. The US Congress had already passed a decision to establish and operate the Khmer Rouge Tribunal in Cambodia even before the United Nations and Cambodia had decided to do so. And in the Liberian case, in order to prosecute the incumbent President Charles Taylor, the person who had intensified neighbouring Sierra Leone’s civil war by deploying his troops and military equipment across borders in the exchange for blood diamonds, the US made efforts in establishing the war crime tribunal in Sierra Leone.

We cannot say that it can’t happen in Nepal. In fact, one section of human rights activists in the country is already calling for international engagement. Stepping on that background, the US can resort to the extent of raising issues about Nepal’s war-era human rights abuses in the UN Security Council, just as India did to Nepal in 2015 besides imposing an embargo, to put extra pressure on settling the disputes between two countries on issues related to the promulgation of the constitution by Nepal.

However, by not endorsing the ‘Indo-Pacific Strategy’, infamously deemed as a counter to the China-led ‘Belt and Road Initiative’, we will have appeased China—whose actors would possibly cast a veto if the US made such a decision. Till date, the permanent members of the UN Security Council, unfortunately, have not suspended their right to veto on the issues of war crimes, crimes against humanity and genocide—despite staunch lobbying from other member states. In December 2016, China and Russia exercised their veto when the UN Security Council, under the Chapter VII of the UN Charter, wanted to refer the situation in Syria to the International Criminal Court for taking necessary actions against the mass atrocities that took place during the Syrian Civil War.

From that standpoint, there won’t be an immediate danger if we turn down the US proposal of the Strategy. But if we choose to endorse, it might exasperate our relationship with China. As a consequence, our dependency on India will inevitably increase—which will make us vulnerable to the gamut of blockades (as we learned in 1989 and 2015). To defend our nation from such forms of dependency, we cannot belittle or ignore our ties with China. As Keshar Bahadur KC, who was the ambassador of Nepal to China during the period of Sino-Indian Border Conflict, once said, ‘If there was no China, Nepal would have ceased to exist’.

Contrastingly, the partnership to the strategy can canalise, inter alias, an opportunity to solve our transitional justice issues, as was the case in Colombia. However, this is just a single factor and we cannot trade-off all other concerns while narrowing down our diplomatic priorities as such. Also important to note is the fact that these two giants will not support Nepal at the cost of their relationship. If both of them find us inimical, we can wind up getting ‘Sikkimised’ if not ‘Bhutanised’ from India as Mr KC speculated.

The international relations theory on Ontological Security posits that the states are ready to jeopardise their physical security in order to save their ontological security, that is a sense of stable self or assurance of own continuity in the world. Maria Malksoo in a journal article, ‘The Transitional Justice and Foreign Policy Nexus: The Inefficient Causation of State Ontological Security-Seeking’ posits that the ontological security-seeking attitudes of a state can lead transitional justice mechanisms to compromise on foreign policies. It suggests that, while taking steps on transitional justice to reassure self-conception, it is probable that Nepal can forget other consequences that these decisions can result in. Therefore, it has been quite important to alarm the state on this matter at this moment.

In realpolitik, the foreign policy of a state is mostly determined through a cost-benefit analysis. History shows that powerful states can go to any extent in order to affirm their benefits. It can be fatal to think that the US, the purveyor of justice and human rights, cannot play politics over principles of transitional justice for assuring Nepal’s participation in the Indo-Pacific Strategy. As has been discussed, the US can influence its allies and the UN to tone down pressure for accountability on war-era human rights abuses in Nepal. Nevertheless, this should not serve as the only ground for adhering to the strategy. We need a prudent policy approach before we endorse any agreement. Needless to say, we also need extraordinary diplomats to engage in such sensitive issues.

In the case of Nepal, the international transitional justice norms can be compromised on the behest of the US foreign policy in line with the Indo-Pacific Strategy. Such a situation, however, would cause obstructions to peace and stability. Nepal should in no way forget its obligation to provide truth, reparations and justice to the decade-long conflict victims. Shortly after taking oath, Prime Minister KP Oli’s mantra for foreign policy— ‘Amity with all, enmity with none’—should not be undermined in an endeavour to, amongst other things, accomplish our long-held transitional justice issues.

Senchurey is a peace and conflict analyst and rights activist and Paudel is the Research Manager for the Projects of Evidence for Policy Design (EOPD), Harvard University in Nepal.