One of the big arguments in Nepal recently has been whether a certain Mr. Rob Penner had been right in questioning a wide array of human rights activists, journalists and others about their observations that the Human Rights Watch’s 2015 report on Nepal was biased. In the view of his supporters, Mr. Rob Penner is above all criticism because he was on the side of human rights, and therefore it followed that everybody who questioned his methods must be on the wrong side of history.
But let's look at this a little bit more indepth.
Mr. Penner, “Chief Scientist” of Cloud Factory, an outsourcing company, took it upon himself to factcheck the logic and veracity of people questioning the neutrality of the Human Rights Watch Report. Titled “Like we are not Nepali,” the report at first hand is a well-written and well-researched report of human rights abuses by the security forces in the Southern part of Nepal, where a conflict started to emerge around August-September 2015, a few months after the big earthquake had hit Nepal and devastated many of the hill districts. It does what human rights reports are supposed to do – it interviews people and finds out the facts of each incident in which a violation occurred. Note this is not what the Pahadi observers had issues with—I think human rights defenders would be the first one to say this was absolutely necessary.
I think their reservations came from this: that in any conflict, there are two sides of the story. When the state goes in and starts to beat up innocent people and kill them, as happened in the Terai, they are often not doing that because they’ve gone beserk, but something else has triggered this action. That something else—which was the Madheshi Morcha leading a blockade which very soon turned into a very long and destructive blockade which completely shut down the country’s economic life for six months, including its access to cooking gas and medicines – should have received equal attention in the HRW report. And this, unfortunately, did not happen.
Tejashree Thapa, one of the lead writers of the report, answers in a Tweet to the query why HRW hasn’t dealt with the blockade: “We deal with rights violations, not politics. Blockade political issue.”
In every situation of human rights violations, there is a conflict between two or more parties which causes the violations to occur—these abuses are rarely one-sided. How can a report on a conflict which is spiraling out of control claim to do due justice to the situation without reporting on what the triggers and causes may be? And if that report only exhaustively and chillingly described those incidents which is suffered by one party, making it appear that the Nepali state had gone beserk for reasons more to do with Khas-Arya domination than anything else, could it potentially have acted to heighten tensions and lead to the Madeshi Morcha and Black Flag protesters the moral legitimacy to lengthen the blockade for six months? In other words, did the Human Rights Watch report exacerbate conflict—and were the Pahadi observers right in their statements that it was biased?
I’m not sure if I would violate UN confidentiality by sharing this story, but I felt the story below would illustrate what I’m trying to say.
In 2010, I was working for OHCHR in Nepal. My job was to write the narrative for the civil conflict violations report that was being compiled by the organization. The report itself was a mammoth task, and a team of us had been at work on this for a while, going through more than 15,000 human rights violations. Much of the primary data of abuse against individual cases had been collected by INSEC, the only NGO active in multiple districts, including Terai districts, at that time (INSEC is headed by Subodh Pyakurel, a human rights defender whose perception that the HRW report was biased Mr. Penner relentlessly tried to “Factcheck”.) My colleagues then entered them into a database, painstakingly, one by one. It was a wearying task, and I commend my colleagues who were in charge of going through each gruesome violation for months and months on end without losing their mental equilibrium. My task was to write the opening chapter, a historical overview of the conflict. I had a hard drive full of folders and files, with publications from various sources. I spent a great deal of time pouring over the available printed materials, despairing that I would ever be able to pull out a sparing narrative of how the conflict had unfolded. When I thought it was done, I handed it to my supervisor. I was sitting at my desk when he appeared and said sharply: “This is absolutely unacceptable!”
I looked at him in confusion. “Why?”
“It is completely biased!” he said, throwing down the file on my desk. I tried to think back to how he might have read it as a biased narrative. As far as I could tell, I’d done an absolutely neutral job of reportage.
“Biased? Biased towards who?” I asked. I thought he was accusing me of being soft on the state.
“Biased towards the Maoists, of course!” he said, then marched off.
I was confused. I tried to think back to why my report, carefully balanced, to the point where I was allocating one paragraph for each conflicting party, might have come across as biased. Then I realized that a researcher is only as good as his or her primary source material. In my case, almost all of the materials I had used in research had come from the Maoists, who had documented their People’s War in rich detail. Every single battle, every single ideological argument and policy, was documented in journals and publications. In addition, there were reportage from the field from insiders like Comrade Parvati and reporters like Li Onesto, who followed the Maoists to the battlefield and reported from there. In contrast, the state had almost nothing from its side—the Army did not put out detailed public information about its actions, and campaigns like Kilo Sera 2 are better known from the critiques done by the public than by the actual information from within the army. The police did not have public information about its campaigns during the conflict, or why it took decisions that it did. Since we were not doing primary interviews but working from printed materials already available, it meant my report had to be collated from already existing sources, which were heavily in favor of the Maoists.
Might this not have been the case of the Human Rights Watch report as well? It appears to me there is graphic detail of what happened to the innocent bystanders and protesters, but little information on why the state may have been compelled to take the action that it did. This seems to be due less to the availability of information from the state—Nepal has much easier access to state officials than during the conflict, and an interview could probably have been arranged with the police and government officials, upon request—than to the fact HRW simply didn’t think this was within its mandate.
So why did the state act in the way that it did? The action of the protesters, which seriously blocked the pipeline of food, cooking gas and medicine for the entire country, was a criminal act. But somehow the Nepali state could not or would not think of prosecuting those who were conducting the blockade. Why? Was the state so weak it couldn’t enforce the law? Or is it that the blockades have been a time honored part of Nepali politics, and politicians have always been above the law in Nepal? Was Mr. Oli’s government simply too weak to enforce the rule of law on Mr Rajendra Mahato of the Madeshi Morcha—preferring instead to slide into extrajudicial police action to scare the protesters by killing innocent villagers and teenagers?
No analysis was done on how the killings in the Terai were triggered by the political action of the Morcha, including its decision to impose a destructive, human rights violating blockade on the entire country. But without this analysis, we are fated to repeat history. HRW reports selectively: the political context which led to the killings is explained as a result of the protests triggered against the Constitution, and demands for federalism, but it is mostly silent on the blockade. Its one paragraph on the blockade doesn’t examine how the shutdown of the border was a very deliberate strategy used as a pressure tactic by the Morcha to make their political demands on federalism met, putting the government in a very difficult situation as they tried to grapple with a law-and-order situation that didn’t have an easy solution.
Reading the report, one can come away thinking the state’s violent killings may be simply due to systematic racial discrimination of the Madheshis. If racial discrimination was the motive for state persecution, surely the state would have been doing that persistently and over a period of time (as in Sri Lanka or Palestine), not just in that specific timeframe? It is unquestionable that racial discrimination against Madeshis exist—but was that the reason why these specific killings occurred?
The HRW itself admits:
The first serious violence occurred on August 24, when Tharu protesters in Kailali attacked and killed eight police officers. An eighteen-month-old child was also killed. Violence then spread east to Madhesi-dominated areas, but in that ensuing violence almost all of the victims were members of the public killed by police.
This incident, which eeirely mirrored Maoist attacks on police during the civil conflict days, was obviously the trigger. Law and order had broken down, and the out-of-control police action that followed was a response to this attack. Clearly the police feared more attacks of this nature, and they systematically went about shooting citizens in a random manner, designed to evoke fear in the populace. But this rather critical point—that the state was responding to an attack on police that appeared to be co-ordinated and organized in a manner recognizable from the 1996-2006 civil conflict is not elaborated upon. The HRW report could be accused of the same “nebulousness” its critics were accused of.
Below is a paragraph from the HRW report:
The Kathmandu-based media has sometimes represented the current protests as animated by Madhesi communal anger toward people of hill origin. Commentators have noted an outpouring of racial hostility toward Madhesis in the Kathmandu-centric social media since September 2015, partly focusing on alleged anti-Pahadi communal violence in the Terai.
In this paragraph, the Kathmandu media is shown to have poured racial hostility towards Madeshis, but the “Communal anger” of the Madeshis is suggestively written up to be a fiction of the Kathmandu elite’s imagination. The anti-Pahadi communal violence is “alleged,” unlike the real violence experienced by the Madeshis. Perhaps Ms. Thapa wasn’t here long enough to document when Madeshi parties did hand out ultimatums to Pahadis to evacuate the Terai, nor was she there for the time when actual communities did get displaced from the Terai in a close approximation of ethnic cleansing of Pahadis. I remember leaflets handed out by these armed groups which ordered all Pahadis to leave the region. I remember relatives who did leave the Terai because the atmosphere of intimidation and threats had become all too common. Although this happened a few years ago when numerous armed groups were active in the Terai, yet this is part of the history of Pahadi-Madhesi relations—and one which I think would have been critical to include in the HRW report.
Ethnic cleansing is a loaded term—and before a legion of online activists start jumping on me questioning my veracity, I’d like to note it's not mine. HRW quotes a lot of impressive reports but fails to look up this one:
Nepal’s Terai: Constructing an Ethnic Conflict, by Jason Miklian. The report was published by the International Peace Research Institute (PRIO), Oslo.
Here is a quote from that report:
The anti-Pahadi fire stoked by the UDMF in grassroots supporters has manifested into action, resulting in calls for not only autonomy, but also secession and a Pahadi-free Terai. In response, ethnic cleansing of Pahadis by hardcore supporters has already begun in some parts of eastern Terai.39
The accompany footnote says:
39 Gellner, p. 1827, & Indo-Asian News Service, “400 Civil servants Quit in the Terai,” 7 November 2007.
The extent of this cleansing will be researched firsthand and reported in a forthcoming article.
This report also notes:
Madhesi leadership movement on structural issues in Nepal beyond identity and/or federalism will determine how serious they are about institutional change instead of their own legacies and coffers to consolidate personal power. Many Madhesi supporters were frustrated during the election, openly wondering why Madhesi parties seemed more interested in securing exclusive power in the Terai than ensuring a share of power in Kathmandu, lending credence to fears that secession is the final endgame of the UDMF.64 UDMF lionizing of the Madhesi brand threatensto increase violence and ethnic cleansing, and it will be tempting for UDMF leadership to scapegoat further to distract from a lack of real leadership or development in the area. At some point grassroots supporters may expect more than identity from their leadership, recognizing that the Madhes agenda is only a peripheral cover used to push personal and institutional goals. Further, demands of independence and cultural division can take a life of their own, as followers increasingly subscribe to the narratives politicians broadcast.
To return back to the HRW report’s reportage on the blockade:
Politicians in Kathmandu sought to blame India, claiming that India was unofficially imposing an economic blockade on Nepal in order to force constitutional change in line with the Madhesi demands. The Indian government denied this charge.
Politicians “Sought to blame India”? Isn’t the language rather tilted in favor of India, which undoubtedly had a significant hand in keeping the blockade in place for six months, despite its denial?
Penner’s army of supporters are convinced and vociferous that the Khas-Arya Kathmandu elites are nationalists against all freedom of speech and against all human rights. This narrative of evil Pahadis out to get the Madeshis hasn’t been effective in either furthering Madeshi rights or ending the “cold war” between the two sides. This narrative is also a bit of an irony, considering that individuals like Subodh Pyakurel spent a great part of their lives defending all victims of human rights violations, including the Madheshis, innocent bystander and leftist political activist alike, during the civil conflict and beyond. Incidentally, if it were not for people like Mr. Pyakurel, the violence of speech and verbal abuse noted by HRW about the Nepal Police would be much higher than it is now—unlike HRW, we’ve been around long enough to note that the Nepal Police (comprised of all hill ethnicities) uses verbal violence with racial connotations on not just Madeshis but the entire population, and this was a big part of the way they tried to control their opponents during the People’s War. In other words, HRW noted Madeshis felt targeted by the racist language used by the police, but failed to note this is a systematic problem—and not just one which singles out the Madeshis only—with the Nepal Police.
Oddly, for an organization that claims not to deal with political issues, HRW takes a very pronounced political stance on federalism. Those who demand a “Akhanda” state are depicted as landlords with bonded laborers—in other words, slaveholders.
The Tharus were opposed by the Akhanda Sudur Paschim (United Far West) movement, largely composed of people who live in Kailali and neighboring Kanchanpur district but whose origins lie in the hills to the north. The Akhanda movement opposes dividing the hills from the plains in separate federal provinces. It enjoys powerful support from individual leaders in the largest three political parties, the Nepali Congress (NC), the Communist Party of Nepal – Unified Marxist Leninist (CPN-UML), and the Unified Communist Party of Nepal – Maoist (UCPN-M) who come from the far west. Many leading members of the Akhanda movement are landlords, one of whom told Human Rights Watch that they are motivated by the fear that they may lose their property in Kailali if it is made part of a Tharu state. The same Akhanda member also advocated for the reintroduction of the kamaiya system of hereditary debt bondage, a system frequently compared to slavery, in which many Tharus were constrained as bonded agricultural laborers until it was legally abolished in 2001.
To a casual reader of the HRW report who doesn’t know a lot about Nepal, the Akhandas might come across as very alarming right-wing bloc of slaveholders indeed. In fact, “Akhanda” just means “Undivided”, and it had mass support across the far-west, not just from those who were landlords and had bonded laborers, but also many ordinary and poor farmers who never held a bonded laborer in their life but feel strongly that the ethnic federalism, which would bring states like Tharuhat and the One Madhesh, One Pradhesh, would work to divide the country by dividing up the country along ethnic lines.
In the course of looking for justice, people demand the police involved be prosecuted. Should not the same demand apply also to the Morcha and its leaders for the blockade, for the very same reason we seek justice for the victims who were killed--that it may not happen again? The HRW report has a list of recommendations, which include 11 for the security forces and 2 for protesters, but it metes out different standards of accountability for the two parties.
These are the points for the government and security forces:
Issue clear instructions that anyone holding public office at any level who engages in hateful speech or incitement of serious crimes will face significant consequences, including investigations and dismissal from public office, and possible criminal prosecution if found to have incited crimes.
These are the points for protesters:
*Publicly call on all protesters to desist from violence and other crimes.
*Fully cooperate with the police and others in any criminal investigation into serious crimes.
HRW does not say:
“Blockading food and medicine from a civil population of an entire country, especially during a humanitarian emergency, is a crime, and protesters should immediately cease all activities along the border which stop the flow of essential goods into the country.”
HRW does not say:
All protesters who blockaded the border and caused a humanitarian crisis immediately after the earthquake must be prosecuted and face significant consequences, including investigations and dismissal from public office, and possible criminal prosecution if found to have incited crimes.
Some NGOs like Human Rights Watch may feel conflict is an integral part of social change, and that it's not their job to end it. But I cannot help wondering if this logic is the twin of the American defense apparatus’s hegemonic need to create worldwide conflict. Whether this logic, in fact, is just another way to excuse a global industry of conflict, to which human rights organizations may be opportunitistically attached.
This also brings up the question of how fly-by-night human rights consultants may exacerbate conflict, not just in Nepal in this specific instance but also in other countries where a report of this nature, focusing on just one of the conflicting parties, could end up tilting a volatile situation, thereby fertilizing the field for more violations to occur.
I am urged by Twitter users to self-reflect on how wrong I was on Penner--but those people seem unwilling to engage in that same self-reflectivity. A blockade, especially when it targets an entire country and shuts off basics like food and medicine, is a grave and egregious human rights violation, whatever Human Rights Watch’s stance may be on it. While the Oli government was absolutely wrong in killing innocent bystanders in order to deal with the situation, this also doesn’t mean that those who imposed the blockade can escape their responsibility by claiming to be victims. If you look at the history of post-conflict justice, violators of human rights cannot escape justice simply by claiming they were marginalized and oppressed—if that were the case, most of the Maoists who are now regarded as candidates for war crimes would be able to go about their business as free men. The only reason why they (as well as those of state forces that participated in war crimes) always have to be on their guard, whether they migrate to Europe, USA or elsewhere, is that the arm of justice is long, and they could always be at risk of prosecution throughout their lives, as evidence from other countries where violators from half a century before have been prosecuted.
I am happy to report that the narrative of the civil conflict that I worked on at OHCHR was finished and edited by people more steeped in the culture of neutrality of the UN than myself, and I am convinced the report helped to end the conflict, and not to exacerbate it, in the future.
Without an open and honest debate on mistakes made on both sides, the conflict between the Pahad and the Madhesh will persist, and only get worse.
RELATED DOCUMENTS: Like We Are Not Nepali, Human Rights Watch, October 2015: https://www.hrw.org/report/2015/10/16/we-are-not-nepali/protest-and-police-crackdown-terai-region-nepal
Nepal’s Terai: Constructing an Ethnic Conflict, by Jason Miklian.
International Peace Research Institute (PRIO), Oslo. http://file.prio.no/Publication_files/Prio/Nepal's%20Terai%20(South%20Asia%20Briefing%20Paper%201).pdf
Rob Penner’s factchecking, archived at Madhesi Youth: http://www.madhesiyouth.com/human-rights/nepal-public-figures-challenge-human-rights-watch/