Summary

The Government is committed to establishing constitutional supremacy, to ensuring the rule of law and good governance, to implementing the understandings and agreements [associated with the peace process], and to providing a positive conclusion to the peace process by eliminating anarchy, insecurity, and impunity.

Policies and Programmes of the Government of Nepal for the Fiscal Year 2009 — 2010, as presented to parliament on July 9, 2009, unofficial translation.

There is no justice in Nepal, no rule of law and no government but I want to see a Nepal where even the senior most government officials cannot escape justice. The security officials must be punished, they are not employed to kill citizens. All those responsible for human rights violations must be brought to justice.

— Dhoj Dhami, uncle of Jaya Lal Dhami, killed by security forces in February 2005, Kanchanpur, September 18, 2009

Three years after a historic peace agreement ended a decade-long armed conflict, specifically promising greater respect for human rights and accountability, impunity remains firmly entrenched in Nepal. No member of the security forces or the Maoists has been held to account in civilian courts for grave human rights abuses committed during the conflict; most cases that have been filed are stalled. Human rights violations committed since the end of the conflict also continue to go unpunished: cases against suspects are routinely withdrawn, with the victims offered token amounts of money. Ending impunity for past and continuing violations is essential if Nepal is to continue to move away from violence and more firmly establish the rule of law.

One emblematic case is the torture and death in army custody of 15-year-old Maina Sunuwar, (Case 31 in the Update on Pending Cases below), in February 2004. Sunawar’s mother, when offered NRs100,000 (US$1,307) compensation for her daughter’s death and suffering, said, “If there is liberty of killing a human being on payment of NRs1 lakh, the right to life has no meaning at all."

This report is a follow-up to our 2008 report, Waiting for Justice: Unpunished Crimes from Nepal’s Armed Conflict, and provides updates on the 62 cases highlighted there. Despite official commitments to end impunity, and intensive litigation and campaigning by families of those killed or disappeared during the armed conflict of 1996–2006, no one has been arrested, let alone brought to justice in civilian courts, for the crimes we documented. Only in a couple of cases, including that of Maina Sunuwar, military tribunals have convicted soldiers on minor charges and handed out weak punishments.

After the Communist Party of Nepal (Maoist) (CPN-M, the former armed group which declared the “people’s war” in 1996), won Constituent Assembly elections in April 2008, the political consensus vanished and was replaced by an increasing lack of trust between the main political parties. As a result, there was little or no progress in the peace process.

At another level, all the political parties (including the CPN-M) have put pressure on the police not to investigate certain cases in order to protect their members. Institutions long opposed to accountability—most notably the Nepal Army—have dug in their heels and steadfastly refused to cooperate with ongoing police investigations. Nepal Army assurances that army officers responsible for human rights violations will be excluded from United Nations peacekeeping duties or from being promoted appear meaningless, since the army not only makes no efforts to investigate the worst abuses but indeed resists such investigations by police. Furthermore, the army command has recently nominated for promotion several officers suspected of being responsible for grave human rights violations. Among the Maoists elected to the Constituent Assembly are alleged perpetrators of human rights abuses who are under police investigation.

As a result of political instability, the Constituent Assembly (which also functions as the parliament, formally called the Legislative-Parliament) has been largely paralyzed. Key legislation to put in place transitional justice mechanisms as well as initiate reform of the criminal justice system has not progressed.

As the evidence presented here demonstrates, the quest of family members of victims for justice and clarity on what happened to their loved ones continues to be blocked by both de facto and de jure impunity. De facto impunity refers to the state’s failure to prosecute human rights offenders under existing laws due to factors such as lack of political will or pressure from perpetrators. De jure impunity occurs when laws are either vague, or explicitly permit offenders to escape punishment.

De Facto Impunity: Problems Remain

Analysis of developments in the past year on the 62 cases shows continuing obfuscation and failure by state authorities to initiate meaningful investigations and prosecutions relating to past grave human rights abuses. All 62 cases are, or were, the subject of formal complaints lodged with police in 49 different First Information Reports (FIRs), which the police are charged with investigating.

Only in the case of Maina Sunuwar have the authorities filed charges, and then only under the pressure of sustained campaigning and litigation. However, although the police and public prosecutor identified four army officers as suspects in that case, murder charges were brought in absentia. Despite the court issuing arrest warrants, to date police have not arrested the suspects. Very recently, on September 13, 2009, the court ordered the army to suspend one of the accused and to submit all the documentation it has on the case to the court.

In the case of Manoj Basnet (Case no. 44) who was killed by the Armed Police Force (APF) in Morang, in August 2005, litigation to compel the authorities to properly investigate has come to an end. The APF was able to influence the victim’s father not to proceed with the case through the offer of jobs and money. Advocacy Forum tried to convince the Supreme Court to reverse the decision, pleading public interest, but the court quashed the petition.

In several other cases, relatives are losing hope and are no longer actively pursuing the case, tired of constantly fighting obstacles put in their way by the police and other authorities. Bhumi Sara Thapa, mother of Dal Bahadur Thapa and Parbati Thapa, (Case nos. 5 and 6), told Advocacy Forum on September 20, 2009:

When I filed a First Information Report with the police, I had hoped that my family would get justice; the accused would be punished and my family would receive compensation for the living and education of my children. Although it has been years since I started struggling for justice, nothing has happened yet. I have visited the police station many times but there has been no progress in investigation. I don't have much hope because I think the government is reluctant to provide justice.

In one of only two cases concerning victims of Maoist abuses, the family is no longer actively seeking to register the FIR, possibly as a result of threats.

After the Maoist-led government, in August 2008, announced that it would compensate “victims of conflict,” some relatives suspended their pursuit of criminal investigations, fearing that doing so might negatively influence their applications for compensation.

However, the large majority of the relatives of the 62 victims highlighted in this report continue their fight for justice, despite repeated delays and obstacles erected by the authorities.

In ten cases, the local police have still refused to register FIRs, sometimes in the face of a court order to do so. A ruling by the Supreme Court in the disappearance of Sanjeev Kumar Karna and four other students in Dhanusha district, where the court directed the police to register and proceed with investigations, should have solved this matter. Instead the Dhanusha District Police Office informed Advocacy Forum that it would not act on any conflict-related FIRs and that such FIRs have been filed away separately. The Dhanusha police continue to refuse to file FIRs in several other cases.

In 24 other cases, though FIRs were registered, there is no sign of investigations being conducted. In some of these cases, families have sought two writs of mandamus (an order from a superior court directing a government official to perform a duty correctly), the first one to force the police to register the FIR; the second to get a court order for the police to proceed with investigations. Despite two court orders, there are still no meaningful investigations.

In the case of three men who all were killed under the same circumstances in Morang district, in September 2004, the police finally registered a FIR in October 2008, in one case after being ordered to do so by the Biratnagar Appellate Court. The police continue to refuse to file FIRs relating to the other two, forcing the families to also file mandamus petitions, despite the precedent established by the court ruling in the companion case.

In approximately 13 cases, police have seemingly endeavored to proceed with investigations, sending letters to relevant agencies to seek their cooperation to interview the alleged perpetrators. However, the army, Armed Police Force, and Maoists have constantly refused to cooperate. In the killing of Arjun Bahadur Lama (Case no. 32) who was last seen in the custody of members of the Maoist CPN-M party, the Kavre police finally filed an FIR and began investigations to identify the whereabouts of the alleged perpetrators after the Supreme Court ordered them to do so, but without cooperation from the Maoist leadership, police have had no success to date in locating the suspects. Purnimaya Lama, wife of Arjun Lama, told Advocacy Forum on September 22, 2009:

I once met Prachanda, [the chairman of Unified Communist Party of Nepal (Maoist)]. He promised that he would uncover the truth about my husband and then inform me, but I have received no information yet although I have tried to meet him again several times.

Attempts by relatives to force the police either to register an FIR or, if registered, to proceed with investigations by petitioning the courts for writs of mandamus have proved largely unsuccessful. On June 18, 2009, Advocacy Forum assisted 28 families across 13 districts to file petitions. The responses from the police and public prosecutors have varied but show similar patterns of neglect and delay in different districts.

In their responses to the Baglung Appellate Court in three cases, both the district police and public prosecutor informed the court that, “charge sheets can be filed only if investigations find evidence,” and that filing of charges is a decision of the Attorney General’s Office. On that basis, they sought the annulment of the petitions. However, to the best of the families’ knowledge, police have not initiated any investigations to date and Advocacy Forum lawyers have not been able to find evidence of progress in any of the three files.

The authorities’ use of these arguments in court appears to be an attempt to side-step the fact that no investigations have actually been conducted and police have gathered no evidence. In other cases police and public prosecutors have so far simply failed to respond. Jay Kishor Labh, father of Sanjeev Kumar Karna (Case no. 15), told Advocacy Forum on September 22, 2009:

Even after the Supreme Court's order of February 3, 2009, the District Police Office, Dhanusha has not registered the FIR according to law. Although I have visited the DPO at least on 3 different occasions and met the deputy superintendent and the superintendent of police there, there has not been any progress in the investigation of the case. I don't think the police are willing to work in accordance with the law.

In yet other cases, particularly from Kavre district, police claim they are not proceeding with investigations because the court has not returned the file the police were ordered to submit to the courts after the writ was filed. A similar argument has been used by the Morang police in the killing of Sapana Gurung and another related case where police claim investigations cannot proceed because the Parliamentary Probe Committee has not returned the file.

There appears to be a lack of consistency in how these cases are dealt with by the Appellate Courts and Supreme Court. Though the Supreme Court has ordered the police to proceed with investigations in the high-profile cases of Maina Sunuwar and Arjun Bahadur Lama, in other cases it has repeatedly postponed hearings. As Bhakta Bahadur Sapkota, father of Sarala Sapkota (case no. 14) told Advocacy Forum on September 22, 2009:

I think the court has postponed the hearing of my petition because the judges do not know about my daughter’s inhuman killing. If the media had written a lot about the killing, the judge would have known about the case and would have given it priority for hearing.

The Appellate Court in Nepalgunj when considering mandamus petitions in five cases brought with the help of Advocacy Forum expressed skepticism regarding the likelihood of its writs being acted upon when Supreme Court orders were not followed even in high-profile cases like that of Maina Sunuwar.

The Biratnagar Appellate Court has been particularly inconsistent in the way it has handled mandamus petitions. For instance, in the case of two men killed together in October 2005, the court refused a petition on behalf of one of them, while ordering the DPO to register a FIR on behalf of the other.

The underlying reasons for the lack of effective investigations by police are already discussed at length in Waiting for Justice. An important factor is the esprit de corps between the army and the police. In informal conversations with individual police officers, other reasons mentioned include instructions from higher police officers not to investigate cases involving soldiers; fear that the government might change and the army again be in power, putting the police officers concerned at risk; and considerable difference in rank between the junior police officers often responsible for these investigations and senior army officers named in the FIRs. A sub-inspector of police in Pokhara who wishes to remain anonymous told Advocacy Forum on September 20, 2009:

There are many cases of human rights violations filed before the police. As the people implicated are often high-ranking officials, it is difficult to investigate the cases because of their influential positions.

This once again reinforces the recommendation made in Waiting for Justice that a separate specialized police unit should be set up to conduct these investigations, staffed by senior officers.

De Jure Impunity: The Disappearances Bill and Truth and Reconciliation Commission Bill

None of the three governments in power since the peace agreement was signed have introduced any changes to the laws that impede effective criminal investigations into past human rights violations. These laws include the State Cases Act, Army Act, Police Act, Evidence Act, Commission of Inquiry Act, Public Security Act, and Muluki Ain (Nepal’s traditional legal code). There has been little or no progress toward establishing the transitional justice mechanisms called for in the peace agreement despite pledges by all three governments to set these up.

The current 22-member coalition government committed to addressing impunity in the formal “Policies and Programmes” it presented to parliament on July 9, 2009. It stated:

The national security policy will be formulated in keeping with the suggestions of the Legislative-Parliament and political consensus. The national peace and rehabilitation commission, the high-level truth and reconciliation commission, the high-level state structuring suggestions commission, [and] the commission for the investigation of the disappeared will be constituted/re-constituted. The act of monitoring the implementation and compliance of the understandings and agreements will be done by the national peace and rehabilitation commission.[1]

Prime Minister Madhav Kumar Nepal in his address to the UN General Assembly on September 26, 2009, reiterated that the government “was determined to” set up a commission to investigate “disappearances.”[2]

During its time in power, the UCPN-M[3] in November 2008 released the Disappearances (Crime and Punishment) Bill, but the bill was never tabled and discussed in the parliament. Provisions in the Bill—including the definition of enforced disappearances and the punishments provided for violations—fell short of international human rights standards, contravening a June 2007 Supreme Court judgment directing the government to enact legislation that would criminalize enforced disappearance in line with international standards. After the session of parliament was closed, the UCPN-M government in February 2009 passed the bill as an ordinance.

Despite strong condemnation from national and international organizations, the then government went ahead with the promulgation.[4] However, amid the political crisis, the ordinance was not endorsed by the next session of parliament and it lapsed. At this writing, a new draft of the bill is on the verge of being presented again to parliament. A group of national and international human rights organizations have issued a strong joint appeal to bring the bill fully in line with international standards.[5]

The organizations proposed a number of amendments to the draft of the bill, including:

• Defining “enforced disappearance” consistent with the internationally recognized definition and in recognition that, under some circumstances, the act of enforced disappearance amounts to a crime against humanity;
• Defining individual criminal liability, including responsibility of superiors and subordinates, consistent with internationally accepted legal standards;
• Establishing minimum and maximum penalties for the crime of enforced disappearance, and for enforced disappearance as a crime against humanity;
• Ensuring the independence, impartiality, and competence of the Commission;
• Ensuring that the Commission is granted the powers and means to effectively fulfil its mandate;
• Ensuring that all aspects of the Commission’s work respect, protect, and promote the rights of victims, witnesses, and alleged perpetrators;
• Ensuring that the recommendations of the Commission are made public and implemented.

An important aspect of the Comprehensive Peace Agreement (CPA) of November 2006 was a promise to create a Truth and Reconciliation Commission (TRC) to, in the words of the document, “investigate those accused of serious violations of human rights and crimes against humanity during the course of the armed conflict and develop an atmosphere for reconciliation in the society.”[6]

Some TRCs have been helpful in acknowledging the grievances of those affected by conflict or repression.  So long as such a commission is viewed as a complement to justice efforts, not a substitute for them, and does not lead to amnesties for serious human rights abusers, it could assist the peace process in Nepal. Many of the extrajudicial and other unlawful killings and disappearances listed in this report are largely unexplained, leaving the families of victims yearning not only for justice or reparations, but for truth and, ultimately, reconciliation. The creation of a TRC could be an important step in this process. Unfortunately, the current parliament has been almost totally paralyzed since it came into being after the April 2008 elections and has not considered many legislative initiatives.

In the absence of independent bodies such as a Disappearances Commission or a TRC which would normally make recommendations for compensation and other forms of reparation to the victims, some reparation initiatives are underway. However these are informal and decisions to award compensation are being made without law or standards to guide them.

Under the Common Minimum Program of the Maoist-led government, a decision was made by the government to compensate, “victims of conflict and those who suffered during the People’s Movement, People’s War and Madheshi agitation.”[7] As a result, a process has been put in place where people can make applications solely based on a reference from their Village Development Committee. Non-governmental organizations (NGOs) like Advocacy Forum have assisted victims and their families to receive the interim relief of NRs100,000 (US$1,307) provided by the government to conflict victims. NGOs help victims by drafting applications, getting their case registered in the District Administration Offices (DAOs), and opening bank accounts. However, reports from Advocacy Forum staff and other non-governmental sources in some of the districts, especially Bardiya, show that the disbursement of the interim relief has not been impartial. These reports suggest that most of the victims receiving the money have been members of influential political parties. On several occasions, Advocacy Forum expressed its reservations that governmental reparation policies and schemes of economic assistance and relief for conflict victims would not be comprehensive. Furthermore, as highlighted in the “Update on Pending Cases” chapter of this report, some families are not proceeding with litigation fearing that it may affect their requests for compensation under this scheme.

The National Human Rights Commission (NHRC) is mandated to investigate alleged violations of human rights.[8] However, it has repeatedly expressed concern about the lack of implementation of its recommendations by successive governments.[9] At this writing, the Commission is awaiting information on whether its recommendations have been implemented and in particular, whether compensation it recommended has been provided.[10]

There is a need for appropriate and fair mechanisms to identify who is entitled to reparation and ensure there is no political manipulation or duplication. The lack of clarity is confusing families and is stopping them from taking further legal action, as explained above. Others continue to wait for the government to pay compensation recommended by the NHRC and are confused about whether or not the compensation they applied for and/or received from the government will jeopardize this.[11]

Despite the lack of accountability as a result of police investigations and the government’s failure to provide adequate compensation, relatives of victims are continuing to file FIRs. In the last year, another 16 FIRs have been filed, bringing the total number of FIRs filed with the help of Advocacy Forum so far to 65 concerning 77 cases.

Extrajudicial executions by the police and APF continue, especially in the southern Terai region where there is continuing political unrest in the ethnic minority Madeshi[12] community, with a rise in crime and villagers taking the law into their own hands.[13] Once again, the relatives of the victims are facing familiar obstacles: police are refusing to file FIRs, police are not taking bodies for post-mortem examinations and, when they are, the hospitals are not providing families access to post-mortem reports.

Unless and until Nepal’s political leadership puts in place and implements a comprehensive plan to address impunity, including prosecution of those responsible for crimes and compensation for affected families, victims and their relatives will continue to wait for justice.