Negotiating Peace in Nepal

by Liz Philipson, Himal, March-April, 2006

Now is the time to decide on how Nepal’s eventual negotiations can be structured, to maximise both effectiveness – and the hope of success.

In April, Nepal will once again be debated at the United Nations Human Rights Commission in Geneva. The Nepal Office of the High Commissioner on Human Rights (OHCHR) has made its report to the Commission public in mid-February and it gives indications of the increasing misery in the rural areas of the country. This is matched by an increasing political impatience in the urban areas, as well as among the political players nationally and internationally. However, any armed conflict that continues as long as the Nepali Maoist conflict will demonstrate the complexities of intractability. Intractable conflicts require patience and collaboration in the search for a solution.

Since the start of the conflict, there have been changes in power relationships within and between the major political forces in Nepal. For instance, at the start of the conflict, the Maoists were ignored and dismissed – something that could not be contemplated now. The actions taken by the king on 1 February 2005 appear to have pushed the political parties and the Maoists closer and catalysed greater coordination between important donors and diplomats. However, for the people of Nepal there have been new problems. The issues of structured social alienation, economic inequality and regional disparity, which have contributed to the success of the Maoist revolution in rural Nepal, still persist. But those who have become more powerful or wealthy through the use of the gun are not about to meekly return to serfdom or penury. In addition, there are new problems associated with displacement. Economically active people have left the country; seasonal workers have not returned from India; and there are sharp increases in female-headed households and bereaved dependents. People are moving to the urban areas, either to the district headquarters or, when they can, to Kathmandu. Those with more money and opportunity are leaving the country altogether. The loss of social capital from war-torn areas is always much harder to replace than the infrastructure.

None of these problems will be addressed by a simple ‘power agreement’ in Kathmandu, but such an agreement is necessary for this to take place. A complex negotiations process is needed but, sadly, even a simple political deal remains elusive. The path to an agreement requires political will on the part of all the parties – the will to come to the negotiating table and the will to remain there despite the inevitable obstacles. Political will was singularly missing from previous negotiations in Nepal. Although it was the Maoists that broke both the 2001 and 2003 ceasefires, the king never directly put his political weight behind those negotiating on his behalf. This weakened the process. The parties to the conflict have gone to the negotiating table on their own terms, whereas they have to be prepared to consider the positions of others. As of today, the government remains committed to King Gyanendra’s three-year roadmap, which he announced at the time of the royal takeover on 1 February 2005, and it has not publicly shown any inclination for a negotiation of that plan. The other two sides to the conflict, the political parties and the Maoists, while they may have indicated non-negotiable bottom lines, have recently indicated some flexibility.

The November 2005 12-point understanding between the rebels and the political parties indicated a step in this direction, even though both remain fundamentally distrustful of each other. The people of Nepal understood that the four-month-long unilateral ceasefire called by the Maoists last autumn was a demonstration of a willingness to negotiate. Both the 12-point understanding and the ceasefire were popular.

Awaiting the decisive moment
The political parties are focused on a re-enactment of the Jana Andolan of 1990, a people’s movement that will mark the decisive moment. However, the democratic struggle in which they are engaged today against the palace is taking place in somewhat different conditions, as this democratic struggle cannot be settled in isolation from the ten-year-old Maoist armed rebellion. The understanding the political parties have reached with the Maoists is a recognition of that. A more comprehensive peace process will require a concentration on political processes, not decisive moments or endgames. Processes are the ‘how’ rather than the ‘what’ or ‘who’ of negotiations. According to Henry Kissinger in 1969, “the way negotiations are carried out is almost as important as what is negotiated. The choreography of how one enters negotiations, what is settled first and in what manner, is inseparable from the substance of the issues.”

‘Process’ encompasses a wide range of activities by various actors that form a web of support for negotiations, as well as the interactions through which the protagonists approach and maintain talks. This includes initiatives in the public domain by civil society. Good process is critical for the direct interactions between the parties, where it creates a learning environment and builds confidence through inclusivity, predictability and reliability. It should be iterative and have shared ownership. It is initially easier to build trust in the processes and procedures of negotiation than between the warring parties themselves. They build confidence with each other over time within the support of a strong process. This is the ideal; the reality is usually rather more based on the art of the possible, but attention to process makes negotiations possible and helps to sustain them.

In order to build confidence between parties in negotiations, it is important to incorporate a 360-degree sweep of perceptions, so that the points-of-view of all parties are included. There are times when it does not matter if something is true. If a powerful force believes it to be so and will act upon it, it is relevant. Above all, analysis that feeds negotiations must be timely, because the position of the parties will be constantly changing and affecting the trends in the conflict. Only through thorough analysis can one determine whether the ‘conflict glass’ is half-empty or half-full – in other words, Are the parties intent upon war or genuinely seeking a position to negotiate? In 1998, P Saravanamuttu, a Sri Lankan analyst commenting on his own country, stated: “We are in a surrealist situation, the rumour of war and about war has greater credence than the reporting of war. We are blundering, vainly hopeful, whilst the other side has a better grip on its agenda.”

The previous negotiations in Nepal have tended to revolve around zero-sum negotiating tactics, rather than process-oriented dialogue. There have also been reports about the lack of preparation and lack of professionalism in the approach to those negotiations. An inadequate analytical approach and the lack of an information strategy – both inward and outward – should also be added to the critique. It is important to keep in mind, however, that nothing substitutes for political will, as stated earlier.

Ceasefires and negotiations
Ceasefires are often seen as a signal that the parties are ready to negotiate. They provide a humanitarian pause and clear the political space to enable negotiations to take place. However, this is not always true – talking or even full-blown negotiations may precede a ceasefire and a ceasefire can be maintained after negotiations stall. Nevertheless, what we saw in Nepal in both 2001 and 2003 was the pattern of ceasefire, followed by negotiations, followed by a concurrent breaking of negotiations and then the ceasefire. Obviously, that a ceasefire was declared indicated some prior interaction between the parties; but for the future in Nepal, it may be useful to engage in rather more substantive talks about talks, combined with de-escalation. This would give some space for some principles and parameters to be discussed, and perhaps agreed upon, before the pressure and public spotlight of a ceasefire added its own tensions for the parties.
Ceasefires and negotiations are intimately connected but very different activities and agreements. Ceasefires based on agreements between the armed parties will include separation-of-forces agreements, pre-agreed monitoring mandates, investigation and adjudication mechanisms. Negotiations, on the other hand, are about finding a new political compact for the country. It is entirely suitable, indeed desirable, that ceasefires should not be seen as inclusive processes, but rather should be based on technical agreements with a narrow focus.

It is essential that peace negotiations be politically and socially inclusive. This is not simply a liberal aspiration. Those who are excluded almost invariably turn into peace-spoilers – Sri Lanka offers several examples of this, which has contributed to the undermining of the stalled process there. Nevertheless, once the channels of communication are established between armed parties for the purposes of agreeing to a ceasefire, it is not unusual for those channels to continue in the same manner in respect to peace negotiations; thus, utilising the trust and environment already created, and limiting the interaction to those who held the weapons, as has previously happened in Nepal.

A negotiation that purports to deliver a democratic peace requires a democratic process. The parties that have fuelled the war should not be left alone in charge of the peace. In Nepal, the diversity of population and history of exclusion make an inclusive peace process even more important than it might be elsewhere. This does not necessarily mean that there should be a plethora of organisations and parties at the main negotiating table. Peace processes take many forms and each is unique. A Nepali design that is suitable for Nepali conditions needs to be created, and there are many examples for reference.

Peace processes are of necessity complex. They will feature layers of consultation and layered decision-making and recommendations. At different stages, there may be public ‘validation’ of decisions, or elections to decision-making bodies. Due to the nature of Nepali society, inclusivity must be designed into the process. As the making of a new Constitution seems likely to be required, the manner in which it is made would be an outcome of the negotiations process and not necessarily a precondition of negotiations. It would be decided at the negotiating table whether a new Constitution would be created by a newly-elected Parliament or by a different assembly. If it is the latter, then who would it consist of, and in what numbers? Would they all be elected, or would some be appointed – if so, by whom? What would be the limits of the remit of the assembly or the Parliament in this respect? Would all aspects be entirely within their control? Or would they be required to consult interest groups – for instance caste groups – on particular aspects? Would there be preconditions? Negotiations need to set clear parameters for all of these questions and many others in order to ensure a stable basis for the Constitution-making process. Public information and education would also be an essential part of preparations for Constitution-making and all other aspects of the negotiation process.

Third-party assistance
Is there a Nepali solution? Most emphatically, yes. The complex conflicts of Nepal can only be ended by a political agreement among Nepalis. Whether Nepal can find solutions without assistance is doubtful, however. At the moment, there appears to be polarisation between the Nepalis who unrealistically seek the ‘white charger’ upon which the international community will save them, and other Nepalis who see only the Trojan Horse of India, trying to sneak into Nepal in the guise of third-party assistance. The negative ‘big brother’ image of India inhibits support for any international intervention, lest India be part of it or influence the process.

In fact, India’s influence has increased since 1 February 2005. Both the US and UK have recognised that it is India alone who can directly pressurise the monarchy; and since all three support a democratic outcome in Nepal, they have largely followed India’s lead over the last 12 months. Many Nepalis point to the safe haven enjoyed by Nepali Maoist leaders as being evidence of duplicity and a desire to foment the conflict. Realistically, however, given India’s own Naxalite problems, this is unlikely. A stable Nepal must be more attractive to India.

Nevertheless, the evidence of previous Nepali experience is that there is a need for greater expertise and advice to any negotiation process.

This could include mediation or facilitation and ceasefire monitoring. No intractable war has reached a negotiated end without assistance, including in South Africa. For, though there was no formal external mediation in South Africa, they received immense technical assistance and training before, during and after the negotiations. South Africa was able to cope without direct mediation because the parties were able to agree on senior judges, acceptable to all, to chair the negotiations. That, combined with the quality of leadership of both the African National Congress and the National Party, led to a successful conclusion. Peace processes in every continent, including those in Northern Ireland, Sri Lanka
and East Timor, have benefited from third-party assistance.

Both the Maoists and the political parties are currently seeking external third-party mediation. Their motivation is driven by the need for a witness and possibly a moral guarantor but, for all the reasons demonstrated by the 2001 and 2003 negotiations processes, external assistance is also needed at both a technical and ‘process’ level for ceasefire monitoring and negotiations. However, this does not mean that the solution should be external. The object of the negotiations must be a political agreement between Nepalis, and Nepalis should also be intimately involved with the facilitation or mediation of the process.

The United Nations has been mentioned as a possible mediator, and it has the experience to provide comprehensive and complex negotiation support. Secretary General Kofi Annan has taken interest in Nepal, and the UN’s understanding of the situation is deepened by the presence of the OHCHR mission in Kathmandu. The Indian government and the current government of King Gyanendra are opposed to any external assistance. Given relations with Western diplomats since the 1 February 2005 takeover, the reluctance of the royal government is perhaps understandable. India certainly has its own regional and geopolitical concerns, but continuing to block external facilitation may backfire with an increasingly unstable Nepal on India’s border.

Even the most perfect and perfectly facilitated process, however, cannot overcome an absence of political will. In Nepal, the political parties (the only unarmed political force) desperately need and want a peace process. The Maoists have given strong indications that they want to negotiate entry into the political mainstream in order to end their violence. The Royal Palace alone appears to be unenlightened as to the damage this war is inflicting on the Nepali people and, indeed, the country itself.

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