Prime Minister Pushpa Kumar Dahal
Singh Durbar
Kathmandu
Nepal

Re: Accountability for human rights abuses

Dear Prime Minister,

We write to you to ask you to make accountability for human rights abuses before, during, and after the conflict in Nepal an urgent priority for your government, and to ensure that those responsible for extrajudicial killings, torture, enforced disappearances and other serious human rights abuses are investigated and prosecuted.

You have repeatedly expressed your Government's commitment to end impunity and respect all human rights, most recently in your address to the nation on January 25, 2009. Your party also played a very important role in bringing about the current peace process and taking the country on the path to a "new Nepal." Your party has repeatedly made commitments to peaceful politics, but elements such as the Youth Communist League continue to use violence as a means to achieve their goals. We note that you have said that your government "is committed to end the environment of impunity" at the time you addressed the United Nations General Assembly on September 26, 2008.  Yet abuses continue and impunity continues to thrive.

In September 2008, Human Rights Watch and Advocacy Forum released a report, Waiting for Justice: Unpunished Crimes from Nepal's Armed Conflict, which examined in detail the state's response to 48 First Information Reports (FIRs) filed in relation to 62 cases of alleged extrajudicial killings, torture, enforced disappearances, and rape between 2002 and 2006 committed by security forces. The report also included two cases of alleged killings by members of the Communist Party of Nepal (Maoist) (CPN-M). Most of the FIRs name alleged perpetrators identified by eyewitnesses. These cases exemplify the longstanding pattern of de facto and de jure impunity that has characterized human rights abuses since the beginning of the conflict.

De facto impunity:

The families of those killed and disappeared have filed detailed complaints with the police seeking criminal investigations, but the Nepali justice system has thus far failed to respond to these complaints. Fearing both the Nepal Army and the CPN-M, at times police have refused to register complaints altogether, saying they will be dealt with by the proposed Truth and Reconciliation Commission (TRC). In cases where the police did register the complaint, they failed to conduct any meaningful investigations and prepare cases for prosecution.

This ongoing impunity is serving as a shield to protect those responsible for serious violations. Lack of cooperation by the Nepal Army and the CPN-M, even in highly publicized cases, continues to the present. In the case of 15-year-old Maina Sunuwar, who "disappeared" after her arrest in February 2004, the Kavre police registered a complaint in November 2005 only after considerable national and international pressure. But slow action by police in the process of identifying and verifying human remains hampered investigations. In July 2008, DNA test results finally confirmed that human remains found buried at the Panchkal army camp belonged to Maina.  Murder charges were filed in February 2008, and the Kavre District Court issued summons for the arrest of four accused army officers. Since then, no one has been questioned by the police, let alone arrested.

To highlight the long-standing problem of impunity in this and so many other cases, on the 5th anniversary of Maina's killing last month various civil society organisations in Nepal, including Advocacy Forum and Amnesty International-Nepal (AI-N) with the support of the Office of the High Commissioner for Human Rights in Nepal (OHCHR-Nepal), launched a campaign under the slogan, ‘Prosecutions Now! Save Justice!' We urge your public support for this campaign.

In another illustrative case, in December 2005 members of the CPN-M abducted and killed Arjun Bahadur Lama. Fearing reprisals, the police refused to register a complaint. Large numbers of CPN-M members intimidated the police and relatives when Lama's relatives tried to file a complaint with the police. Following a Supreme Court order for the police to register a murder case against five CPN-M members and a Central Committee member on August 11, 2008, the Kavre police finally registered a complaint. But no investigations have so far been carried out. Instead, members of the CPN-M Central Committee held a press conference and threatened human rights defenders involved in the case.

We would like to bring to your attention some other recent examples of continuing impunity:

  1. Withdrawal of cases against CPN-M members:

In October, 2008, your Cabinet's decision to withdraw 349 cases of a so-called political nature filed at the district level has added to concerns regarding on-going impunity. Initial findings by OHCHR indicate that most of the persons named in the cases were members of the CPN-M, including some senior members of your government, and that some of the cases related to incidents that occurred after the end of the conflict. While it is unclear whether the current decision is intended as a permanent bar on proceedings, it is vital that these individuals charged with serious violations do not get formal or informal amnesty.

This attempt to provide blanket amnesty to members of your ruling party for serious human rights abuses may offer encouragement to political groups, such as the Youth Force (YF), the youth wing of Communist Party of Nepal-United Marxist Leninist, and the Nepal Tarun Dal, to think they can get away with murder. While groups like the YF and Nepal Tarun Dal have committed serious abuses in recent months, the YCL and other groups associated with the CPN-M have, according to Informal Sector Service Center (INSEC), committed many more violations than all the others combined during 2008. We call on you to urgently address the behavior of the groups under your party's control.

               2. Failure to deal with widespread disappearances:

In 2003 and 2004, Nepal had the ignominious distinction of having the highest yearly number of new cases of "disappearances" reported to the United Nations Working Group on Enforced or Involuntary Disappearances in the world.  The National Human Rights Commission (NHRC) reported it has recorded 1,619 "disappearances" (1,234 attributed to the security forces, 331 to the Communist Party of Nepal (Maoist) (CPN-M) and 54 unidentified). Perpetrators of "disappearances" have enjoyed total impunity, as not one member of the security forces, or of the CPN-M, has been held criminally accountable and convicted for a case involving enforced disappearances, despite detailed evidence presented to the authorities by OHCHR and strong persistent campaigning by the families of the disappeared and national and international human rights organizations. 

•a)   Disappearances in Bardiya district

In December, 2008, OHCHR made public findings of its investigations into 156 cases of enforced disappearances in Bardiya District, most of which occurred between December 2001 and January 2003. The majority of cases occurred following the victims' arrest by the former Royal Nepalese Army (RNA). The Nepal Police (NP) and the Armed Police Force (APF) were implicated in a smaller number of cases. These actions took place in the context of counter-insurgency operations directed at combating Maoist activities in the area.

The fate of most of those who disappeared at the hands of government authorities in Bardiya remains officially unknown, despite repeated requests for clarification by their families and by human rights organisations and OHCHR. According to OHCHR, where the NA did provide information to government commissions and to OHCHR, it has attempted to cover up the fate of some of the disappeared. The OHCHR report cites credible witness testimony suggesting that a number of detainees were killed while in custody, or shortly after being removed from custody by members of the security forces. OHCHR also documented the systematic use of torture and cruel, inhuman or degrading treatment in the RNA's Chisapani Barracks.

In July 2008, the CPN-M acknowledged to OHCHR that it had killed 12 of the 14 persons OHCHR had documented as CPN-M victims of enforced disappearance in Bardiya. Actions such as these demonstrate that your party can cooperate with serious human rights investigations when it chooses to and we urge you to extend this cooperation in all other cases of CPN-M abuses. However, it is inexplicable that no criminal investigations have been initiated against those responsible, no disciplinary actions have been taken by the party, and no reparations have been paid to the families.

•b)   Disappearance and killing of Ram Hari Shrestha 

In one recent case, Ram Hari Shrestha was kidnapped by members of the People's Liberation Army (PLA) on April 27, 2008 and taken to the PLA Shaktikhor Cantonment in Chitwan district and tortured. Shrestha died in a Chitwan hospital as a result of ill-treatment. His body was removed from the hospital and later recovered from a river.  While you publicly stated your commitment to take action against those responsible for Shrestha's killing, your party has dragged its feet over extending full cooperation to the Chitwan police to enable them to carry out their investigation and arrest those charged.

On December 29, 2008, the OHCHR raised concerns about the lack of adequate investigation into Shrestha's disappearance and killing. During a meeting with the Home Minister, OHCHR expressed concern that, "Six months after five persons were charged in relation to the crime only one individual has been arrested. Some of the others charged are believed to be inside the cantonment of the Maoist Army in Shaktikhor, Chitwan. According to OHCHR, two letters sent by Chitwan District Police to the Maoist Army's 3rd Division requesting an interview with 3rd Division Commander Kali Bahadur Kham (‘Bibidh') have not been answered".

Your government should take immediate steps to ensure the full cooperation of the CPN-M with the authorities in this and other cases of CPN-M abuses.

•c)    Disappearances from Maharajgunj

Recently, a report by Finnish forensic experts has revealed that traces of human remains of at least one male individual have been found among samples taken from an alleged burial site in Shivapuri forest. The NHRC had initiated an investigation into the site following complaints that 43 individuals disappeared in 2003 at the hands of the Maharajgunj-based Bhairabnath and Yuddha Bhairab battalion of the Nepal Army.  Many survivors, including Jit Man Basnet, a journalist, lawyer and former detainee of the battalion in his recent book, have claimed that the site is the burial site of at least four detainees killed by the Nepal Army. Basnet has charged that the army buried bodies of fellow detainees Gyanendra Tripathi, Rajendra Mali, Dipendra Pant and an unidentified detainee in the Shivapuri forest following their suffering severe torture inside the barracks. Your government should work with the Finnish experts, OHCHR, the NHRC and relevant authorities to fully investigate this case.

De jure impunity:

We welcomed in principle the Cabinet's approval of the Disappearances (Crime and Punishment) bill, 2065, to criminalize enforced disappearances and to provide for a high-level independent commission to investigate disappearances during the 1996-2007 armed conflict. In anticipation of the bill going before the Legislative-Parliament, Human Rights Watch and Advocacy Forum on November 25, 2008 wrote to the Honorable Subash Nemwang, Speaker of the Constituent Assembly, detailing our key concerns about this bill (a copy is attached and is available at https://www.hrw.org/en/news/2008/11/25/human-rights-watch-letter-speaker-nepals-constituent-assembly).  We were subsequently disappointed to learn that the bill was not tabled for debate in the parliament but instead was passed by ordinance without any of the concerns being addressed.

We urge your government to review this decision and introduce the legislation as a fresh bill before parliament at the earliest opportunity, and ensure that its provisions are fully in line with international standards as directed by the Supreme Court in its landmark June 2007 judgment. The elements of "disappearances" as defined in the bill, in addition to the provisions relating to unacknowledged detention and abductions-including by non-state actors-should be made consistent with those in the definition of enforced disappearance as provided for in the Convention against Enforced Disappearance.

Other legislative initiatives are urgently needed to address impunity. The criminal justice system is in need of reform, including the need to review the role of the Nepal Police and Attorney General's Office to improve their effectiveness in investigations of serious crimes.

  • The Nepal Police authorities should sanction officers who do not proceed with investigations.
  • The Government should set up a special unit of senior police investigators, under the oversight of the Attorney General's Office, to investigate all cases of human rights violations.
  • The NHRC should be given clear powers to directly refer cases for prosecution to the Attorney General's Department rather than solely powers to make recommendations for the government to initiate prosecutions.
  • A further legislative measure urgently needed is to establish a witness and victim protection program to guarantee the security of witnesses, victims, relatives, human rights defenders and others investigating or carrying out advocacy regarding human rights abuses against reprisals or intimidation by perpetrators or others. 

 

Recommendations:

The failure of previous governments of Nepal to adequately investigate grave human rights abuses and bring alleged perpetrators to justice was not only a violation of Nepal's obligations under international law, but a serious obstacle to resolution of the country's political and social disputes and to a sustainable peace. Your government has so far not broken with this policy and has instead maintained the impunity of those who commit serious human rights abuses.

The government of Nepal needs to ensure that perpetrators of grave human rights violations are brought to justice and develop a clear strategy to end impunity, taking into account the attached recommendations.

We strongly believe that only when the following recommendations are implemented the edifice of impunity will start to crumble and the "new Nepal" you have discussed can be built. We urge you and your government to:

  • Vigorously investigate and prosecute all members of the security forces implicated in the 48 FIRs highlighted in Waiting for Justice: Unpunished Crimes from Nepal's Armed Conflict, and any other cases of grave human rights violations, and issue clear instructions to the Nepal Police to proceed immediately with investigations.
  • Send a strong message to the security forces that the perpetrators of grave human rights violations will be held to account and that all members of the security forces must fully cooperate with investigations. Those who fail to do so should face appropriate sanctions such as suspension or dismissal.
  • Suspend all security forces personnel named in the 48 FIRs, or in other cases, against whom there is prima facie evidence of criminal activity until the investigations and any prosecutions are complete.
  • Reform the criminal justice system, including by reviewing the role of the Nepal Police and Attorney General's Office to improve their effectiveness in investigations of serious crimes.
  • Enact legislation specifically criminalizing enforced disappearances and torture.
  • Amend the Army Act to ensure that security forces personnel accused of enforced disappearances and torture of civilians can be tried in civilian courts.
  • Amend the Local Administration Act and the State Cases Act to ensure, respectively, the prevention and proper investigation of alleged extrajudicial executions.
  • Amend the Police Act, Army Act, and Public Security Act to remove all provisions that grant security forces or government official's immunity from prosecution for criminal acts.
  • Establish an independent, external oversight body for the Nepal Police.
  • Strengthen the NHRC by giving it the necessary powers to carry out credible investigations, including the power to require the attendance of witnesses and the production of evidence. The government should ensure that all NHRC recommendations are speedily implemented by relevant state authorities. The NHRC should be given clear powers to refer cases for prosecution and to seek legal redress against unlawful acts by state authorities.
  • Make public all reports of previous commissions of inquiry and implement their recommendations fully.
  • Immediately sign and ratify the Statute of the International Criminal Court, the Convention for the Protection of All Persons from Enforced Disappearances, and the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
  • Invite the Special Rapporteur on extrajudicial, summary, and arbitrary executions and the Working Group on Enforced or Involuntary Disappearances to visit Nepal.
  • Set up a Truth and Reconciliation Commission (TRC) and commission of inquiry into disappearances which are fully in accordance with the standards used by international TRCs and commissions of inquiry. This is in line with the June 2007 Supreme Court judgment ordering the government to set up a commission of inquiry into disappearances in line with international standards. This should happen with full and adequate consultation with all stakeholders, including civil society and victims and relatives of victims. No amnesty should be granted for serious international crimes, including crimes against humanity, war crimes and torture.
  • Amend section 169 of the Muluki Ain (national code) to ensure state officials, including members of the security forces, can be charged for perjury and contempt of court.
  • Ensure that habeas corpus petitions can be heard before district courts.
  • Legislate for, or otherwise set up, an effective witness and victim protection scheme and ensure commensurate penalties for anyone who intimidates witnesses and victims.
  • Review existing compensation schemes for victims of crime and human rights violations and develop a fair and equitable scheme applicable across the board.
  • Ensure an effective system of vetting is in place for any members of the Nepali security forces who are proposed for promotion and/or for overseas UN peacekeeping duties, or specialized training abroad, to ensure that anyone under investigation for grave human rights violations is banned from travelling abroad.

Now is your opportunity to demonstrate that the pledges made by your party to peaceful politics in the 12 point agreement of November 2005, the ceasefire accord of May 2006, the eight point agreement of June 2006, the CPA of November 2006, the 23 point agreement signed in December 2007, and subsequent post-election agreements have meaning and are based on clear principles. While Nepal has in many ways made significant progress in the past two years, for the victims of human rights abuses and their family members of victims nothing has changed. All are still waiting for justice.

Thank you for your consideration. We would be pleased to meet with you to discuss these matters. We look forward to hearing from you soon.

Yours sincerely,

   

                                                                  

Brad Adams                                                                                       Mandira Sharma

Executive Director, Asia division                                                            Director          

Human Rights Watch                                                                          Advocacy Forum

cc:       The Honorable Subash Nemwang, Speaker of the Constituent Assembly

Mr. Raghab Lal Vaidya, Attorney General

Mr. Dev Prasad Gurung , Minister for Law, Justice and Constituent Assembly

Mr. Rabindra Pratap Shah, Director General Police

Mr. Rookmangad Katawal, Chief of Nepal Army Staff

Mr. Bamdev Gautam, Home Minister

Hon'ble Kedar Nath Upadhyay, Chairman, NHRC

Richard Bennett, Head of Mission, OHCHR-Nepal

Karin Landgren, UNMIN

Embassy of the USA in Nepal

Embassy of the UK in Nepal

Indian High Commission in Nepal

Embassy of Japan in Nepal

Delegation of the European Commission to Nepal