Nepal finds itself at a critical juncture, grappling with the aftermath of recent youth-led protests and an overarching climate of uncertainty. While an investigation into alleged state suppression of these demonstrations is ongoing, the nation’s youth remain divided on the movement’s core objectives. Amidst this complex landscape, a beacon of hope emerges in the form of an increasingly favourable environment for the upcoming general elections scheduled for March 5.
To gain deeper insights into these pressing issues, a conversation was held with Surya Subedi, a distinguished international jurist, Professor at the University of Leeds, and former UN Special Rapporteur for human rights in Cambodia. The discussion delved into human rights violations during the protests, the efficacy of the probe panel, the international scrutiny of the impending elections, and broader global legal matters.
Analyzing the Gen Z Protests and State Response
Professor Subedi characterized the Gen Z movement as a conduit for widespread dissatisfaction within Nepal. He cited a pervasive lack of good governance, rampant corruption, and the government’s failure to deliver on its promises as underlying causes for the public discontent. The subsequent state response, particularly the use of force and targeting of individuals above the knee, was deemed condemnable and contrary to international standards.
“After so many people died, there should have been an immediate investigation to collect evidence,” Professor Subedi stated, highlighting a failure on the part of Nepal’s government and state mechanisms. He also reflected on Nepal’s historical tendency to make hasty decisions during crises, suggesting that dissolving Parliament was a missed opportunity. Instead, he proposed that Parliament could have served as a platform for the Gen Z movement to articulate demands for legislative reform.
The State Investigation: A Missed Opportunity
The jurist expressed that Nepal missed a crucial window to address the root causes of the protests. “The momentum of the Gen Z movement and its dissatisfaction should have been made legally meaningful,” he explained. He argued that prior to the dissolution of Parliament, a period of reflection and analysis was needed to address constitutional shortcomings, identify necessary institutional changes, and draft new legislation.
Professor Subedi observed a disconnect between the demands of the Gen Z movement and the government’s actions. He posited that the youth were likely not advocating for mid-term elections or the dissolution of Parliament. This divergence, he noted, is a recurring pattern in Nepal, where movements with specific demands often result in entirely different political outcomes. He quoted a Nepali poet, stating, “one who misses an opportunity is a fool,” to underscore the significance of the moment that was lost.
While acknowledging the general soundness of Nepal’s constitutional framework, Professor Subedi pointed to significant implementation challenges. He described a centralization of power within the hands of the prime minister and major party leaders, diminishing the influence of Members of Parliament and other state institutions. The country, in his view, was largely dictated by the power struggles of a few leaders who, he suggested, lacked the necessary capacity, study, and vision.
Understanding Proportionality, Necessity, and Legitimacy in the Use of Force
Professor Subedi drew upon his experience in Cambodia, where he investigated instances of violence. He emphasized the international law doctrines of proportionality, necessity, and legitimacy as crucial benchmarks for the use of force. He elaborated on how these principles were applied during his tenure as UN Special Rapporteur, where casualty incidents prompted immediate investigations and engagements with government officials. In Cambodia, his findings pressured the government to accept suggestions for judicial and political reforms.
In contrast, Nepal’s situation was marked by a lack of significant international involvement and internal confusion among national power centres. Professor Subedi suggested that had the initial protests been managed effectively, the subsequent escalation and destruction might have been averted. He firmly stated that the force employed in Nepal far exceeded the requirements of the demonstration and that immediate resort to firing was unnecessary. He concluded that the state’s use of force deviated from the established standards of legitimacy, necessity, and proportionality.
International Scrutiny and Domestic Mechanisms
The absence of substantial international pressure, Professor Subedi explained, was partly due to Nepal’s different context compared to Cambodia. While Cambodia was emerging from prolonged conflict, Nepal was on a path to democratic consolidation post-2015 Constitution, thus not requiring a heavy international presence.
However, he critically assessed the effectiveness of Nepal’s National Human Rights Commission (NHRC) and other domestic institutions. He argued that the NHRC could have played a more assertive role, similar to his own as a UN representative, by immediately informing the government about its non-compliance with international standards and holding it accountable. Instead, he observed a focus on collecting statements and conducting studies, with a fear that the issue might be forgotten.
Key Recommendations for the Karki Commission Report
Professor Subedi outlined essential elements for the Karki Commission’s report. He stressed the importance of examining international best practices from places like South Africa and Cambodia to establish benchmarks for the use of force. He also advocated for an analysis of national and international laws based on objective facts, leading to actionable recommendations for both immediate government action and long-term policy.
He reiterated the urgency of immediate evidence collection, citing his own swift response in Cambodia. He warned that delays lead to the loss of crucial evidence. He also expressed concern that the memory of the September protests was fading, and the commission’s mandate was to prevent this. Professor Subedi lamented the apparent disregard for human life in Nepal, where the sacrifice of young lives seemed to have yielded little more than the prospect of mid-term elections, fearing a return to the status quo.
Moral and Legal Responsibility of Political Leaders
Regarding the state’s response, Professor Subedi suggested that former Prime Minister KP Oli bore moral responsibility, even if his resignation was partly forced. He argued that when state machinery fails so spectacularly, leading to destruction and loss of life, the head of government should resign on moral grounds. He noted the absence of a strong tradition of moral accountability in Nepal’s political sphere.
Electoral Reforms and Rights Protection
Shifting focus to the upcoming elections, Professor Subedi expressed optimism about Nepal’s maturing democracy. He highlighted the generally free and fair nature of the past two elections and expressed hope for a similar outcome. He commended Nepal’s established electoral systems, laws, and practices, and anticipated an election free from rigging. The international community’s close observation, he added, is crucial for regaining the trust of foreign investors and partners, which is essential for Nepal’s economic rebound.
Indicators of a ‘Free and Fair’ Election
Professor Subedi detailed key indicators for a free and fair election under international law. These include:
- Pre-election period: Ensuring neutrality of security forces and civil service.
- During the election: Preventing the misuse of state-owned media and regulating election spending.
- Post-election period: Timely and transparent tabulation of results.
He contrasted Nepal’s electoral practices with those in authoritarian regimes like Saddam Hussein’s Iraq or Hosni Mubarak’s Egypt, where elections were manipulated. He affirmed that Nepal, similar to India, generally upholds free, fair, and neutral electoral practices. Demonstrating the robustness of its system, he stated, would lead to international recognition and legitimacy of the results.
International Observation in a Climate of Uncertainty
Professor Subedi acknowledged that while some might question the legitimacy of the current government, the international community understands the extraordinary circumstances under which it came to power. Their focus, he explained, is on the participation of all major political actors. The widespread participation of Nepal’s numerous political parties, he noted, is a highly positive sign, and elections are viewed as the path out of the current chaos.
He praised the political parties for their responsible participation and emphasized the need to convey a message of Nepal being back on track to rebuild confidence among nation-states and investors. Crucially, he stressed the importance of addressing the concerns of the Gen Z generation.
A significant weakness, in his view, was the parties’ preoccupation with power-sharing rather than focusing on specific economic progress programs. He reiterated that Nepal’s international reputation has been tarnished by corruption and the recent unrest, creating a crisis of confidence, particularly concerning the decision-making capacity of its leaders. A free and fair election, he concluded, is paramount to restoring this reputation.
International Law and the Capture of Venezuela’s President
Turning to the capture of Venezuelan President Nicolas Maduro, Professor Subedi offered a dual perspective. From a human rights standpoint, he acknowledged the necessity of addressing long-standing violations in Venezuela, as documented by UN reports. However, from an international law perspective, he unequivocally stated that the intervention, particularly the abduction of a sitting president, violated the UN Charter and other international legal principles. He described the act as a violation of various international laws, not just the UN Charter.
A Dangerous Precedent for Smaller Nations?
Professor Subedi warned that the “might is right” approach poses a threat not only to smaller nations like Nepal but to all countries. He argued that this development challenges the foundational principles of a rules-based international order and the global governance framework established after World War II. He likened the current state of international law to a “fragile glass bridge,” where the heavy-handed actions of major powers risk cracking the structure for everyone.
