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III. History of Impunity

Abusive behavior by security forces and armed groups spreads when perpetrators are not held accountable for their actions. Rooting out abusive behavior thus requires more than new policies and commitments to reform; it requires that would-be perpetrators know that if they engage in abuses—particularly serious abuses such as torture, “disappearing” suspects, and extrajudicial executions—they will go to prison and their careers will be destroyed. In Nepal, this has not yet happened and impunity, both de facto and de jure, is still the norm.¹⁷

De facto impunity takes place when the state fails to prosecute those responsible for human rights violations due to lack of capacity or will, often for political reasons. In Nepal, even well-documented cases of serious human rights abuses have not been prosecuted on the basis of existing laws due to a complex interplay of many factors, including political pressure and interference.

De jure impunity, in which laws or regulations are either too limited or explicitly provide immunity from prosecution, extends and strengthens the impact of de facto impunity, protecting perpetrators of human rights abuses. Nepal has several such provisions in its laws, aimed at shielding its military personnel and civilian officials from legal accountability. Such laws are contrary to the right to a remedy and reparation for gross violations of international human rights law.¹⁸

In Nepal, both forms of impunity have led to grave human rights violations, and undermined faith in the government and security forces.

Impunity in Nepal also has to be understood in the context of the society, its sources of law, and the criminal justice system. A study by the Asia Foundation¹⁹ cites impunity in Nepal as resulting from lack of judicial independence, the non-functioning of constitutional bodies (such as the Commission for Investigation of Abuse of Authority), corruption in quasi-judicial bodies such as the District Administrative Office, social and cultural factors (including concepts of chakari and afno manche),²⁰ and finally, denial of justice for human rights abuses. 

Impunity for human rights abuses was widespread during the Panchayat era between 1960 and 1990.²¹ Prominent among the many cases which went unpunished were six “disappearances” reported in mid-1985 during a civil disobedience campaign against the government and a series of bomb explosions in the capital. The UN Working Group on Enforced or Involuntary Disappearances (WGEID) retains four unresolved cases from that period. In at least two of these cases, credible reports state that detainees had been held at the Maharajgunj Police Training Centre. A commission of inquiry was established but its findings were never acted upon. 

The inability of the state to punish perpetrators of human rights abuses during Nepal’s turbulent transition from an absolute monarchy to multi-party democracy in the early 1990s signaled the continuation of de facto and de jure impunity for human rights abuses. In the aftermath of the 1990 Jana Andolan (people’s movement), Prime Minister Krishna Prasad Bhattarai’s interim government established a judicial commission to investigate abuses committed by the Panchayat government in suppressing protests. The three-judge commission—named after its lead investigator, Justice Janardan Mallik—submitted its report to the government in December 1990. The report concluded that 45 people had been killed and 23,000 injured during the Jana Andolan and named over 100 officials and politicians directly or indirectly responsible for the violations. Bhattarai’s interim government did not take action against any of the perpetrators named in the report, arguing that establishing law and order prospectively took priority over punishing those guilty of past offenses. None of the subsequent governments have acted on the report.

The failure of Nepali authorities to prosecute those responsible for human rights abuses committed during the 1990 Jana Andolan represented a major missed opportunity. The establishment of more democratic governance structures in 1990 provided a unique opportunity to introduce effective systems ensuring that perpetrators of human rights abuses would be held accountable.

A petition filed in the Supreme Court in January 1999 by 121 law students and lawyers from 38 of Nepal’s 75 districts and some relatives of those killed or injured during the 1990 Jana Andolan, seeking an order to get the responsible agencies to act on the Mallik Commission report, was summarily dismissed by the registrar of the Supreme Court.²²

Since 1990, various governments in Nepal have set up commissions of inquiry or investigative committees to investigate human rights abuses, especially following widespread public outcry or expressions of international concern at egregious violations. All such bodies have had inadequate power to secure evidence and the cooperation of security forces, their recommendations have not been acted upon, and they ultimately have had no impact on the prevailing climate of impunity, as noted by several UN experts.

Following a visit to Nepal in February 2000, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions urged the government “to put in place strong, independent and credible mechanisms to investigate and prosecute alleged human rights abuses, including extrajudicial executions and disappearances, attributed to the police and other state agents.”²³ She found the objectivity of investigations seriously compromised by the fact that the inquiries were entirely entrusted to the law-enforcement authorities themselves.²⁴ 

In 2000, a National Human Rights Commission (NHRC) was established. Its powers are limited to investigating reports of human rights violations and making recommendations to the government. It does not have clear powers to initiate prosecutions itself by referring cases directly to the Attorney General’s Office or the courts.²⁵ 

Amid increasing criticism of their actions, all three arms of the security forces (the Nepal Police, the APF, and the NA) have established “Human Rights Cells” as internal bodies to investigate complaints about human rights violations. These appear largely cosmetic, although departmental or disciplinary action has been taken against alleged perpetrators in some cases.²⁶ To date no independent mechanisms with full powers to investigate and prosecute have been established.

Despite the existence of its Human Rights Cell, the army has failed to cooperate with police investigating allegations of crimes committed by its forces. The NA Human Rights Cell has conducted investigations into only a few cases of abuses committed by troops. On January 31, 2005, the army announced the result of a high-profile court martial related to the execution of 19 suspected Maoist insurgents who had surrendered near the village of Doramba, Ramechap District. The result was a two-year jail term for one army officer convicted for failure to control his troops. This is the only prison sentence that has been handed down for human rights abuses committed by a senior army officer.

In his report following a visit to Nepal in September 2005, the UN Special Rapporteur on Torture concluded that torture was systematically practiced in Nepal by police, APF, and NA in order to extract confessions and to obtain intelligence. He reported that he had received repeated and disturbingly frank admissions by senior police and military officials that torture was acceptable in some instances, and was indeed systematically practiced. He expressed deep concern, “with the prevailing culture of impunity for torture in Nepal, especially the use of compensation for acts of torture as an alternative to criminal sanctions against the perpetrator.” Perpetrators are also sanctioned through “departmental action” such as demotions, suspensions, fines, and delayed promotions as provided for under the Police Act and Army Act. According to the Special Rapporteur, departmental action “is so grossly inadequate that any preventive or deterrent effect that may have been envisaged is meaningless in practice.”²⁷

In a report published after its visit to Nepal in late 2004, the WGEID made a number of recommendations to the government for the prevention and proper investigation of “disappearances.”²⁸ Hardly any of these have been implemented, such as a call on the army to release full and complete details, including any written judgments, of all court-martial proceedings undertaken against army personnel.

Under increasing international pressure, Prime Minister Sher Bahadur Deuba on July 1, 2004, established an Investigative Committee on Disappearances to determine the status of reported “disappearances.” Led by a joint secretary from the Home Affairs Ministry, Narayan Gopal Malego, the Committee issued four reports with information about the status of 320 persons in 2004. The work of the Malego Committee barely went beyond consolidating lists of the “disappeared” reported to the authorities. Lack of cooperation by the army meant that it was impossible to establish the fate or whereabouts of the “disappeared.” Furthermore, the Committee lacked the necessary powers to compel the security forces to cooperate with it.

In May 2006, OHCHR released a report documenting the “disappearance,” illegal detention, ill-treatment, and, in many cases, torture, of 49 individuals confirmed by OHCHR to be in the custody of the Bhairabnath Battalion of the NA at Maharajgunj, Kathmandu, as of December 2003, and urged the government to set up an independent commission of inquiry to determine their fate or whereabouts. The government never provided a detailed response to the report. The NA has to date not acknowledged responsibility for any of the documented cases. The NA did not transmit to OHCHR the report of its task force set up to investigate the 49 cases.²⁹ 

On June 1, 2006, the government formed a further one-member committee, this time chaired by Baman Prasad Neupane, a joint secretary in the Home Affairs Ministry, to find the whereabouts and status of people “disappeared,” allegedly at the hands of security forces. The Committee faced the same problem of lack of cooperation from the army, but claimed to have established the status of 104 “disappeared” persons. In some cases such clarification was based on scant information provided by the security forces which had not been independently verified.³⁰

The government established a full-fledged high-level commission of inquiry under the 1969 Commission of Inquiry Act to investigate killings during the April 2006 Jana Andolan demonstrations as well as allegations of abuse of power during the time the King had control of the government. The report recommended that action be taken against 202 officials of the King’s government, including the King himself, and that 31 members of the security forces should be prosecuted. However, the home minister stated that the government had already taken action against those responsible and that “most recommendations” of the report had already been implemented and others had been forwarded to the competent authority for further investigation. The attorney general has taken no action to prosecute as he reportedly believes that the evidence gathered is insufficient.³¹

A Parliamentary Probe Committee set up in 2006 examined two cases of indiscriminate killings committed outside the context of the armed conflict and the Jana Andolan. The cases concerned the rape and killing of a woman on April 25, 2006, and the killing of six unarmed demonstrators by the army at Belbari, Morang District, the next day (see Appendix, Cases 48-53). The Committee’s report was finally made public in January 2008. It recommended investigations and criminal prosecutions of three of the security forces personnel allegedly involved in the killings, and investigations and prosecutions under the Army Act against 16 others. The Committee also recommended record amounts of compensation to the victims and their relatives.³² Whether all the Committee’s recommendations will be fully implemented remains to be seen.

To date, despite various inquiries and investigations into killings, “disappearances,” and excessive use of force by the security forces, no case has resulted in a prosecution. The doctrine of command responsibility, where officers in command can be held accountable for the actions of those serving under them has not been applied. Furthermore, any recommendations for institutional reform have so far been completely ignored by the government. For example, recommendations on army reform and barrack discipline made by a three-member commission led by former Supreme Court Justice Top Bahadur Singh, which investigated killings by an off-duty soldier at Nagarkot on December 14, 2005, are yet to be implemented by the government.

The work of commissions of inquiry and other investigative bodies set up by the government have failed to hold perpetrators accountable for abuses. More than two years after the ceasefire, there are no signs of any political will to address accountability for serious human rights abuses committed before, during, or after the conflict. On the contrary, repeated initiatives by the government such as draft bills to set up a TRC or a commission to investigate disappearances aim to give amnesty for crimes against humanity. Not one member of the security forces or of the CPN-M has been held criminally accountable and convicted for killings, “disappearances,” torture or other abuses by civilian courts.³³

Commanders or other superior officers are directly liable in law for crimes they order to be committed. But under the internationally-recognized doctrine of command responsibility, they can also be held criminally liable for the actions of subordinates where they knew, or should have known, that subordinates were committing, or about to commit crimes, and failed to take all necessary and reasonable measures to prevent them, or ensure that the persons responsible were investigated and prosecuted by the competent authorities.³⁴ Command responsibility can apply to all levels of political or military leadership where subordinates have committed major crimes. Given that national and international organizations including the NHRC and UN human rights experts repeatedly have raised concerns with Nepal’s political and military leadership, up to the highest level, about grave and persistent human rights abuses such as “disappearances,” and given that such leaders have failed to prevent or punish these crimes, the concept of command responsibility needs to be understood and applied in the Nepali criminal justice system.

Nepali law is silent on the concept of command responsibility, and the FIRs currently before the police may indeed be the first opportunity to test whether and how Nepali courts will apply the doctrine. That is, if such cases ever make it to court, given the delays and lack of police investigations. Impunity will remain a major problem without reforms to the criminal justice system.