Indifference to Duty

Impunity for Crimes Committed in Nepal

Map of Nepal

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Summary

It sends the wrong message to the public when authorities involved in a criminal investigation remain indifferent to its progress. It also mortifies common people's desire to see justice done promptly. The delay in investigation becomes advantageous to the criminal because he can find an easy way to conceal the evidence. It can render the whole criminal justice system a failure.  
— Supreme Court Chief Justice Anupraj Sharma and Justice Ram Kumar Prasad Shah in their ruling on a writ petition in the Subhadra Chaulagain case, December 14, 2009

Impunity for human rights violations remains the norm in Nepal. This is true of the extrajudicial killings, enforced disappearances, torture, and other abuses committed by both sides during the decade-long war between the Maoists and the security forces that ended in 2006—no one has yet been held accountable for any of those violations in a civilian court. And it is also true of serious violations, including extrajudicial killings and torture, allegedly committed by armed forces and members of the United Communist Party of Nepal-Maoist (UCPN-M) since the conflict ended.

A central driver of impunity is failure on the part of the police to rigorously investigate cases, and in many instances, to investigate at all. Police routinely refuse to accept complaints from relatives of victims and to register First Information Reports (FIRs, the initial complaints to police which formally initiate investigations); even when FIRs are registered, police and prosecutors routinely procrastinate in carrying out investigations, even in the face of orders and legal rulings by the Supreme Court. Such failures are due at least in part to the continued sway of the army and Maoist forces, and to police knowledge that the Nepal Army (NA) and political party officials, including Maoist officials, are unlikely to cooperate with investigations.

In some cases, when there is political pressure or considerable public outcry, the authorities set up investigation committees to defuse the situation. The outcomes of these investigations are invariably flawed, and the authorities fail to act on any meaningful recommendations.

There is an urgent need for Nepal’s political leaders—with the support of the United Nations, donors, and influential countries—to develop a coherent and sustainable plan to strengthen the rule of law and the criminal justice system and to end impunity. Ensuring that abusive officers and soldiers are prosecuted and removed from the ranks of the army and Maoists is crucial, particularly amid fears that the peace process may break down.

This report, a follow-up to our 2008 and 2009 reports, Waiting for Justice and Still Waiting for Justice, provides updates on 62 cases of grave human rights abuses by the Nepal Army, Armed Police Force, and Nepal Police, as well as the UCPN-M, highlighted in those earlier reports. It also provides information on 30 more recently filed cases, including six arising since the conflict ended, demonstrating that many of the practices that impeded justice in the past continue today. Separate chapters address both ongoing impunity for violations during the conflict period and impunity for violations since the conflict ended.

In the vast majority of cases from the conflict period, the state has failed to initiate meaningful investigations and prosecutions. In 13 of 62 cases we have previously reported on, the police continue to refuse even to register FIRs, despite continuous attempts by family members and sometimes even despite court orders (cases 4, 22-26, 27, 35, 36, 37-38, 40-42, 46, 48-53, and 59 in the appendix to this report). What little progress has been made in those cases has been uneven and made only as a result of sustained pressure from local and international groups. In most cases, police have not yet even questioned suspects, instead pursuing “investigations” by sending letters requesting information to the Nepal Army or police. In several cases, the Supreme Court has ordered relevant authorities to investigate cases, but these orders have largely been ignored.

The government is also ignoring findings of the United Nations Human Rights Committee which in October 2008 called on Nepal to thoroughly investigate an alleged enforced disappearance and to prosecute and punish those responsible.  The government argues that this and other cases will be investigated by the yet-to-be established Disappearances Commission and Truth and Reconciliation Commission. While the November 2006 Comprehensive Peace Agreement included a pledge to establish these commissions, the pledge has not been fulfilled; bills to establish them are still pending in Parliament.

There has been some international pressure for justice for crimes committed during Nepal’s conflict, but it has been limited. Australia and the US have denied visas to a Maoist implicated in abuses; and in the well known case of 15-year-old Maina Sunuwar, killed while in custody of the Nepal Army, Maj. Niranjan Basnet, implicated in her murder, was returned from peacekeeping duties in Chad at the request of the UN. Police charged Major Basnet with her murder but did not arrest him on his return. Instead, superficial military proceedings found him innocent despite evidence pending in a civilian court. Other persons against whom there is strong evidence of involvement in serious crimes continue to serve in the army; some have even been promoted.

Families who have come forward more recently to file FIRs are facing similar problems. Advocacy Forum has helped dozens of families file new cases since Waiting for Justice was released in October 2008. Of a further 30 FIRs involving 51 victims—most from the period of the conflict but several more recent ones as well—only 10 have been successfully registered at this writing. On December 10, 2009, Human Rights Day, families of victims and lawyers tried to file 28 FIRs with police authorities in 12 districts. Police refused to register any of the FIRs, stating that they first had to consult with “higher authorities.”

Given Nepal’s ongoing failure to address impunity for past and ongoing abuses, there is a clear need for a comprehensive plan of action, one that includes the immediate establishment of effective transitional justice mechanisms to deal with crimes of the past and comprehensive reform of national laws and institutions to better deal with past, current, and possible future crimes.

In January 2011, Nepal will face scrutiny of its rights record as part of the Universal Periodic Review process at the Human Rights Council in Geneva. These discussions, as well as discussions in the Security Council in mid-January on the termination of the United Nations Mission in Nepal (UNMIN), should lay out steps to address impunity in Nepal, including possible referral of cases to the International Criminal Court should Nepal continue to fail to make progress.F[1]F  

In the meantime, China, the European Union, India, Japan, and other influential countries should follow the example set by the United States and Australia in the Agni Sapkota case and deny visas to persons against whom there is credible evidence of having committed serious crimes, whether or not investigations have progressed. If individuals credibly believed to have committed a crime of universal jurisdiction, such as torture, are present in a country with universal jurisdiction laws, they should be investigated and prosecuted in that country accordingly.

Furthermore, as evidenced by the case of Niranjan Basnet, profiled in this report, the UN Department of Peacekeeping Operations should develop better vetting procedures to ensure that persons accused of grave human rights violations do not end up on peacekeeping missions.

Methodology

Human Rights Watch conducted the original research into the 62 cases highlighted in this report in October 2007 with the assistance of Advocacy Forum. Advocacy Forum provides legal assistance to the victims in these cases and has continued to monitor cases, visit police stations and courts, review files, and conduct interviews with victims and their families. Lawyers and staff based in the respective districts have met with the victims many times. This report draws on dozens of Advocacy Forum interviews with families in Baglung, Banke, Bardiya, Dhading, Dhanusha, Kanchanpur, Kapilvastu, Kaski, Kavre, Morang, Rupandehi, Tanahun, and Udayapur districts. Interviews were conducted with the full consent of the interviewees and, as far as possible, in private. Interviewees were informed of the purpose of the interviews and provided information on a voluntary basis. At no time did the interviewers offer or promise compensation. In September 2010, Human Rights Watch met with the Human Rights Unit of the Nepal Police.

 

I. Impunity for Past Human Rights Abuses

Since the publication of Still Waiting for Justice in October 2009, lack of progress in the peace process has developed into outright political impasse. Several key provisions of the 2006 Comprehensive Peace Agreement still remain to be implemented, chief among them the adoption of a new Constitution and integration of the Maoist People’s Liberation Army (PLA) soldiers into the Nepal Army.  

The main goal for the political parties in the immediate future is the adoption of a new constitution, though progress to date has been limited amid the political stalemate and uncertainty about the future of Maoist ex-combatants. The drafting task is further complicated by conflicting expectations on the exact nature of the federal character of the state. In particuIar, members of communities along Nepal’s southern plains, known as the Madheshis, are agitating for considerable autonomy in line with a February 2008 agreement which provided for an autonomous Madheshi province and for proportional representation for Madheshis and other minorities in government. That agreement has remained largely unimplemented.

Against this background, and despite a number of strong court decisions, the Nepal Police and Attorney General’s Office are not proceeding with investigations and prosecutions. Relatives of victims are being forced to file motions to argue procedural issues for which there is well established case law precedent. For example, while the Supreme Court has already decided in the Maina Sunuwar case, among others, that civilian courts have jurisdiction over alleged criminal acts committed by the security forces during the armed conflict, police and prosecutors continue to drag their feet. In the Reena Rasaili case (case 29), the Supreme Court in December 2009 stated:

An act declared a crime by the law is a crime … no matter who the perpetrator is or what the circumstances are. The law does not prevent anyone from investigating an FIR stating that a woman sleeping at night in her home was forcefully arrested ... and shot dead by the army or security personnel. It would be a mockery of the law and of the natural rights of civilians.F[2]

Lack of consistency in court rulings, especially at the appellate court level, is not helping.  Several appellate courts have continued to reject writ petitions, accepting the authorities’ arguments that these crimes should not be investigated by them (cases 9, 36, 41, 42, and 43), while others have issued orders to the police and Attorney General’s Office to proceed with investigations.

In the cases of Reena Rasaili and Subadhra Chaulagain (cases 29 and 30), the Supreme Court directed that the Kavre police should proceed with investigations and criticized the Nepal Police and Attorney General’s Office, respectively, for having failed in their duty to investigate and actively supervise the investigations. In strongly worded decisions in mandamus petitions in both cases, the court stated that written correspondence with army officials:

…[d]oes not comprise an investigative procedure in homicide cases. Correspondence cannot be called investigation. It is undisputed that [the] FIR relating to [Subhadra’s] homicide case was lodged long after the incident. But an oral complaint was filed the day following the incident. Afterwards too, the complaint was lodged time and again. But nothing substantial happened.

The court found that the Kavre District Police Office (DPO) had completely overlooked the investigation, thereby failing in its legal duties. It noted that the district attorney had been “passive” in fulfilling his legal duties by failing to give necessary direction to police personnel. The court concluded:

[A] writ of mandamus has been issued against the opponents to conduct prompt investigation as per the FIR. Similarly, a judicial stricture has been issued against Police Headquarters, the Mid-regional Police Office, and the Zonal Police Office, Bagmati, to become serious, proactive, and alert, and to take necessary and appropriate steps as they have continuously shown indifference to fulfilling the duty of investigation.

In some cases, the Supreme Court has gone further and actually ordered prosecutions of the alleged perpetrators. In a June 2007 landmark judgment it found evidence that Chakra Bahadur Katwal had died in army custody as a result of torture even though his body had never been found and ordered the police and prosecutors to initiate criminal prosecutions.F[3]F

Instead of implementing court orders, the government has sometimes disregarded them. In August 2010, the Prime Minister’s Office issued a response to the Supreme Court, stating that “the perpetrators will be punished after an investigation by the to-be-formed commission[er]s.”F[4]F This ignores an earlier Supreme Court decision rejecting police attempts to justify inaction with claims that the cases will be dealt with by the Truth and Reconciliation Commission.F[5]F

Nepal authorities also did not act on, and indeed argued against, findings of the UN Human Rights Committee (HRC) in a case brought before it under the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). In October 2008, in its first Optional Protocol case from Nepal, the HRC found violations of article 2(3) of the ICCPR (the right to an effective remedy), article 7 (the right not to be tortured), article 9 (the right to liberty and security of person), and article 10 (respect for the inherent dignity of a human person) of the ICCPR.

Referring to the enforced disappearance of Surya Prasad Sharma, the HRC affirmed Nepal’s obligation to “not only conduct thorough investigations into alleged violations of human rights, particularly disappearances and acts of torture, but also to prosecute, try and punish those held responsible for such violations.”F[6]F

In subsequent correspondences with the HRC, which Advocacy Forum has been privy to, the government has repeatedly argued that the “disappearance” of Surya Prasad Sharma will be investigated by the yet-to-be-established Disappearances Commission and has thus not acted on the HRC’s decision that those responsible should be prosecuted.

In September 2010, the National Human Rights Commission (NHRC), with support from the Office of the High Commissioner for Human Rights in Nepal (OHCHR Nepal), led an exhumation in Dhanusha of the suspected burial site of Sanjeev Kumar Karna and four other students (cases 15-19) who were the alleged victims of enforced disappearance in 2003. The team found the remains of four persons, but the exhumation was then temporarily closed for unclear reasons. To date, there has been no exhumation of the remains of the fifth body. How the investigations will proceed from here is not clear and the NHRC has articulated no clear strategy on how to move forward, at least not publicly. Police told Human Rights Watch that they could not proceed with the investigation (including questioning any alleged suspects) until they received DNA results.

In December 2009, Maj. Niranjan Basnet, one of the accused in the February 2004 murder of 15-year-old Maina Sunuwar in army custody (case 31), was repatriated by the Nepal government from peacekeeping duties in Chad at the request of the UN. In February 2008, a police warrant had been executed for his arrest. However, upon his arrival back in Nepal, the army immediately took Major Basnet under its control and he never reported to the police to face the charges levelled against him. The Nepal Army ignored an initial order from the prime minister and appeals from the UN secretary-general and the NHRC for it to comply with the court order.F[7]F

In July 2010, the army announced that it had concluded its own internal inquiry into the case, found Major Basnet innocent, and determined that his return by the UN was “against all international norms and regulations.”F[8]F  According to Major General BA Kumar Sharma, chief of the Nepal Army Legal Department, “It is clear that the Army was acting against a common enemy then and functioning under TADA [The Terrorism and Disruptive Activities Act],F[9]F” and that “therefore there is no case against Basnet.”F[10]F

The Nepal Army continues to maintain this position despite the Supreme Court’s September 2007 ruling on the admissibility of the case in civilian courts and its referral of the case to the Kavre District Court after it had reviewed earlier court martial findings. The Nepal Army is not formally challenging this Supreme Court decision but it is undermining the rule of law by not cooperating with the Kavre District Court. The case remains stalled, and both police and the public prosecutor’s office, in the absence of political support, appear powerless to force the Nepal Army to cooperate.

This is just one example of the Nepal Army’s at times provocative conduct. The promotion and subsequent appointment of Maj. Gen. Toran Bahadur Singh as acting army chief in October 2009 is another example. As commander of the 10th Brigade, Singh was accused of involvement in cases of enforced disappearances and custodial torture in the notorious Maharajgunj barracks in Kathmandu in 2003 and 2004.F[11]

The other party to the conflict, the United Communist Party of Nepal – Maoist (UCPN-M), has similarly refused to cooperate with the criminal justice system. In the case of Arjun Bahadur Lama (case 32), who disappeared after abduction by Maoists in 2005, there has been little progress, in part because UCPN-M officials have not cooperated with investigations by the police and NHRC and, like the government, have argued that cases such as Arjun Lama’s will be dealt with through transitional justice mechanisms yet to be established. A FIR was filed in the case in August 2008 only after the Supreme Court ordered the police to register it. In January 2010, the Kavre police wrote to local police at the location where Lama’s body is thought to be buried, asking them to secure the site. The Foksingtar police subsequently cordoned off the area with a rope, but failed to deploy police to protect the site.

Both Australian and US authorities (in February and June 2010, respectively) refused a visa to Agni Sapkota, a Central Committee member of the UCPN-M, on whose orders Lama was allegedly killed.F[12]F  The US embassy in Kathmandu cited concerns over “serious and specific human rights allegations associated with his [Sapkota] conduct during the insurgency” as the reason for denying the visa. The leader of the UCPN-M, Pushpa Kamal Dahal, alias Prachanda, later publicly accused Human Rights Watch and Advocacy Forum of fabricating evidence against Sapkota but did not provide any evidence to contradict the claims against him.

Truth and Reconciliation and Disappearances Commissions

Both sides to the armed conflict agreed to publicly reveal the whereabouts of those “disappeared” during the conflict within 60 days of signing the Comprehensive Peace Agreement (CPA) in 2006. They also agreed to set up a high-level Truth and Reconciliation Commission (TRC) and to “rehabilitate people victimized and displaced by the war.” Nearly four years later, these promises remain unfulfilled.

The government has drafted and revised two bills to establish a TRC and a commission of inquiry into enforced disappearances. In April 2010, the government proposed both bills in Parliament.

After pressure from national and international actors, a problematic amnesty provision was removed from the TRC Bill, though confusion remains about the powers the commission will have to “bring about” reconciliation. The government has included in the TRC bill a provision that the TRC is to seek assistance from the government in providing security to victims and witnesses. This provision remains in the bill even though justice advocates have argued that separate, more detailed legislation is needed to better address victim and witness protection.

The Disappearances Commission bill would criminalize enforced disappearances but its definition of enforced disappearances is not in line with international standards.F[13]F The proposed maximum punishment of seven years provided for in the bill is also insufficient in cases where the offense constitutes a crime against humanity or war crime.  

At this writing, these bills have not been debated, and the drafts are before the Legislative Committee, which is considering further proposed amendments to the texts.F[14]F

In the meantime, a number of other initiatives are underway. In cooperation with the UN Development Program, the government has drafted a criminal procedure code and a penal code, though these have not been submitted to Parliament. Articles 200 and 201 of the draft penal code recognize enforced disappearances as a crime and impose a maximum penalty of 15 years. This conflicts with the maximum seven-year punishment provided for in the draft Disappearances Commission bill. The draft penal code recognizes torture as a crime, but does not define it. Torture is to be punishable by a maximum of five years and/or a fine, but there is no minimum punishment set out. It also gives victims only six months within which to file cases.

Role of the International Community and the National Human Rights Commission

Since July 2009, all UN Security Council resolutions extending the mandate of the United Nations Mission to Nepal (UNMIN) have recognized the “need to address impunity and to promote and protect human rights through building the capacity of independent national institutions.” Unfortunately, very little has been done by the Nepal government, relevant national and international institutions (including the UN), and donor countries including Australia, China, the EU, India, Japan, and the US to address the pervasive climate of impunity in Nepal.

In light of increased domestic criticism of UNMIN’s role, and under pressure from Nepal’s political leaders and the Nepal Army, the Security Council in resolution 1939 (2010) of September 15, 2010, announced that UNMIN would leave Nepal, effective  January 15, 2011.  Human Rights Watch and Advocacy Forum are urging the UN, as part of a wider exit strategy, to develop an action plan to address impunity. Such a strategy should include the establishment of effective transitional justice mechanisms to deal with crimes of the past and comprehensive reform of national laws and institutions to better deal with past, current, and possible future crimes.

The government also significantly weakened the mandate of OHCHR-Nepal in June 2010, resulting in closure of its field offices. The office no longer has the authority to visit places of detention without prior permission. Under its agreement with the government, its role on human rights issues is limited to monitoring the human rights situation in the country “in cooperation with the National Human Rights Commission (NHRC).”F[15]F

Despite being a constitutional body under the interim constitution, the NHRC continues to lack independence and is regularly criticised for failing to secure police and army compliance with its recommendations.F[16]F  According to the NHRC’s own figures, 86 percent of its recommendations have not been implemented and only 2 percent of its 47 recommendations relating to disappearances have been implemented since the commission started its work in 2000.F[17]F

 

II. Impunity for Recent Human Rights Abuses

The impunity with which government security forces and Maoist cadres operated during the armed conflict continues today. In July 2010, OHCHR Nepal reported an “alarmingly high number of allegations of deaths in custody, or deaths of individuals during “encounters.”F[18]F  Between January 2008 and June 2010, OHCHR Nepal received reports of 39 incidents, resulting in 57 deaths, which involved credible allegations of the unlawful use of lethal force.  Many of these deaths occurred in the context of a more aggressive policing policy in the southern Terai districts where criminal activity by armed groups is a serious problem.F[19]F   OHCHR Nepal stated:

[M]any of the problems underlying the resort to, and lack of accountability for, extra-judicial killings are systemic…. But the main problem – the culture of impunity that pervades the security forces and erodes public confidence in the government – can be addressed by taking prompt action against any individuals potentially implicated in unlawful killings until a proper judicial process is undertaken, or until the framework for an independent government body empowered to investigate these allegations can be established.F[20]

According to Advocacy Forum’s own documentation of a further 30 FIRs involving 51 victims—most from the period of the conflict but six FIRs relating to incidents after the conflict—only 10 have been successfully registered at this writing.F[21]F  On December 10, 2009, Human Rights Day, families of victims and lawyers tried to file 28 FIRs with police authorities in 12 districts. Police refused to register any of the FIRs, stating that they first had to consult with “higher authorities.”

This chapter documents developments in three emblematic recent homicide cases—one implicating the police, one the Nepal Army, one the UCPN-M—that demonstrate that many of the same impediments to justice are still at work. The Attorney General’s Office also does not use its authority to insist that police pursue the cases. Even if FIRs are registered, police do not rigorously pursue the cases, particularly when other police officers are implicated in the crimes. As mentioned above, authorities sometimes set up investigative commissions but those continue to produce no results and serve mainly as temporary distractions.

The powerful role of the Nepal Army and the UCPN-M’s People’s Liberation Army also continues to impede investigations. Police officers fail to seek court sanctions in part because they know the Nepal Army and Maoists will not cooperate with investigations.

In the meantime, there have been concerns about continued insecurity, especially in the southern Terai region, home to the majority of the Madheshi communities. This area has seen a re-emergence of so-called “encounter” killings and an increase in incidents of torture by the police.F[22]F

On July 26, 2009, the government of Prime Minister Madhav Kumar Nepal endorsed a new Special Security Policy (SSP) but the new policy was not made public. There are no indications human rights have been incorporated into the new policy.

The following homicide cases show the obstacles, many of them rooted in practices dating from the armed conflict period, that continue to impede justice where the alleged perpetrators are police, soldiers, or members of the UCPN-M.

Amrita Sunar, Devisara Sunar, and Chandrakala Sunar

On March 10, 2010, 29-year-old Amrita Sunar, 28-year-old Devisara Sunar, and Devisara’s 12-year-old daughter, Chandrakala Sunar, all residents of the Hariharpur Village Development Committee in Surkhet district, were shot dead by soldiers. 

The versions of events given by the survivors and by the army differ drastically. The Nepal Army claims that the three victims were killed during an exchange of gunfire with armed poachers. Two survivors claim that the women were part of an unarmed group of villagers collecting kaulo (medicinal tree bark) when about 17 army personnel surrounded them and opened fire, resulting in the three deaths.

Two eyewitnesses report having seen army personnel carrying the victims’ bodies more than 24 hours after the time of the alleged encounter, and say that the blood appeared fresh.  An independent investigation by Advocacy Forum and the Informal Sector Service (INSEC) found no evidence of blood stains at the site of the alleged encounter. The post-mortem reports state that all three victims were shot from behind from a distance. The reports were inconclusive as to whether any of the women had been raped (the women’s discarded clothing was found near the site, raising concerns that they might have been sexually assaulted).

On March 12, 2010 the Bardiya police went to the crime scene to investigate. Their efforts were limited, however, in part because, despite repeated requests, the army did not give any details about the personnel involved in the “encounter.”

With the help of Advocacy Forum, the husband of one of the women registered a FIR against 17 army personnel and four forestry officials on March 25. According to the families, army personnel threatened them and witnesses, and coerced them into signing an agreement to withdraw the FIR in exchange for Rs25000 (US $340) payout.F[23]F

The government has ignored local and international calls for investigations and prosecutions into the case. An investigation committee led by an assistant attorney general was set up to look into the incident on March 17, 2010. It submitted its report to the government on April 19, 2010. The government subsequently appointed a minister-level committee to study its findings.F[24]F At this writing, it has not made the findings public or reported on the implementation of any recommendations.So far as we have been able to determine, there has been no further investigation into the case.

Dharmendra Barai

On July 3, 2010, Assistant Sub-Inspector (ASI) Nar Bahadur Khatri and two police officers dressed in civilian clothes arrested 15-year-old Dharmendra Barai in connection with the death of a man in a bicycle accident. Police took Dharmendra to Khajuriya Police Post, Rupandehi District. In the evening, his family and some villagers went to the police station, requesting his release. According to the family, the ASI said that Dharmendra would be released the next day at 8 a.m. While they were at the police station, the family could hear the boy crying out to them saying that the police had aimed rifles at him and threatened to shoot him. The family left the police station at about 10.30 p.m. At 4.00 a.m. on July 4, the ASI called the family and told them that Dharmendra was ill, and had been taken to Bhim Hospital in Bhairahawa for treatment. When the family members reached the hospital, they found that the boy was already dead.

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Dharmendra Barai who died in police custody in July 2010. Photograph taken at the hospital morgue. (c) Advocacy Forum

Eyewitnesses present at the hospital reported visible signs of ill treatment and torture on Dharmendra’s body, including marks of what might have been electric shocks on his shoulders and temple. The hospital record reads "Brought dead." The post-mortem report says the cause of death is not known and lists visible injuries as blue marks on the sole of his right foot, a 2-inch by 3-inch wound on his right arm, and multiple scratches on his left palm.

Another suspect detained in the same cell as Dharmendra told Advocacy Forum that he himself was tortured by the police with electric shock treatment that night. He could not say for certain that Dharmendra faced the same treatment, but he said that when police eventually released them from their cell, Dharmendra fell to the ground and started emitting froth from his mouth. The other detainee says he has suffered serious mental problems since his detention.

Amid outcry and persistent calls for justice by civil society organizations, both the national and local government set up investigations. On July 18, 2010, the Home Ministry formed a three-member investigation team, including a senior Home Ministry official, a senior police officer, and a member of the National Investigation Department. The team visited the incident site and investigated the case. However, as of late November 2010, they had not published a report.

On August 3, 2010, the investigation team set up by the district administration made its report public. The report concluded that the cause of death was unknown and that there was insufficient evidence to prove that torture was the cause of death. It said police had failed in their duty to take Dharmendra for a medical check-up on his arrest and to notify higher authorities of his arrest. It also noted that detention facilities at the police office were inadequate and badly ventilated. The report recommended that the government provide the family with adequate compensation, and that departmental action be taken against the police officers of the concerned police station. The government has not provided the family with compensation, apart from Rs. 20,000 to cover funeral costs provided by the District Administration Office in Rupandehi. The case is pending in court, and no disciplinary action has been taken.

On August 22, 2010, the victim’s father, Hariram Barai, tried to file an FIR against the police allegedly involved in Dharmendra’s death, but Superintendent of Police Sher Bahadur Basnet refused to register the FIR, stating that the police had already registered an FIR and that the case was being investigated. According to Hariram, the police also offered to recruit his older brother into the police force if he dropped the FIR.

On the same day, Hariram and his relatives also tried to submit a FIR to Deputy CDO Pitamber Ghimire, who is also the chairman of an investigation team formed by the Rupandehi District Administration Office (DAO), and asked him to order the Rupandehi District Police Office (DPO) to register the FIR. This FIR too was denied on grounds that the FIR was addressed to the Rupandehi DPO and had to be filed there. Hariram then mailed the FIR to both the DPO and DAO.

When Hariram did not receive any information for 15 days, he filed a mandamus petition at the Butwal Appellate Court, Rupandehi district, on September 9, 2010, seeking a court order to force the DPO to file the FIR. In a quick response, on September 12, 2010, the court issued a “show cause” order to the DPO asking for an explanation as to why the FIR was not registered. The DPO replied that it was under internal discussion. At the time of this writing, the relatives await a court ruling.

 

Ram Hari Shrestha

Businessman Ram Hari Shrestha was abducted on April 27, 2008 and later died at the People’s Liberation Army (PLA) cantonment site in Chitwan District. According to investigations by OHCHR, there are credible allegations he died due to severe ill-treatment at the site.

Five UCPN-M cadres have been formally charged in connection with the incident. Police arrested one of them and put him in pre-trial detention, but the other four are at large. According to the Nepal Police, the PLA has failed to respond to letters sent to them by the police on May 23 and June 1, 2008, requesting an interview with the PLA Third Division commander. The Nepal Police maintains that they need the cooperation of the UCPN-M and PLA to carry out Chitwan District Court orders to arrest the suspects. OHCHR has requested the UCPN-M chairperson to instruct the party members involved to surrender to the Nepal Police and to cooperate fully with the investigations. F[25]F However, the UCPN-M and PLA have so far not cooperated and the case before the Chitwan District Court has not progressed.F[26]

 

 III. Recommendations

To the Government of Nepal

  • Order immediate independent and impartial investigations into the alleged extrajudicial executions, enforced disappearances, and other grave human rights abuses documented here and in the previous Waiting for Justice reports. Ensure full cooperation by the Nepal Army, Nepal Police, and Armed Police Force with the investigations.
  • Promptly establish a TRC and commission of inquiry into disappearances, ensuring that their mandates are fully in line with international standards and best practices.
  • Amend pending bills on torture and enforced disappearances to bring them in line with international standards; incorporate the doctrine of command responsibility into law.
  • Revise vetting procedures for members of the security forces proposed for promotion, overseas UN peacekeeping duties, or specialized training abroad to ensure that human rights violators are identified. Any individual under criminal investigation for grave human rights violations should be banned from traveling abroad.
  • Ratify the Rome Statute of the International Criminal Court, the Convention against Enforced Disappearances, and the Optional Protocol to the Convention against Torture.

To the Nepal Police Authorities and the Attorney General’s Office

  • Immediately register FIRs and credibly investigate and prosecute all cases of alleged extrajudicial execution, enforced disappearance, or other grave human rights crime, including by questioning suspects who are members of the army, police, or UCPN-M. Take disciplinary action against police who refuse to file FIRs and against police or prosecutors who fail to follow court orders and credibly investigate cases.
  • Send clear instructions to all DPOs and public prosecutors that FIRs relating to the conflict period should be registered and promptly investigated and a report sent to the court within three months, as per Supreme Court rulings.

To the Judiciary

  • Take initiative to hold members of the Nepal Police, Attorney General’s Office, and Nepal Army in contempt of court in those cases where the court orders have not been adhered to within a reasonable time.
  • Make every effort to ensure consistency in jurisprudence on holding officials accountable for abuse by considering a more effective system of sharing judgments and rulings.

To the National Human Rights Commission

  • Conduct more rigorous investigations of human rights violations, including by drawing up a protocol for exhumations.
  • Make public a list of perpetrators known to the commission, against whom it has recommended that the government initiate investigations and prosecutions and press the government and security forces not to promote them unless and until the allegations are cleared.

To the International Community, especially Australia, China, the European Union, India, Japan, and the US

  • During scheduled UN Human Rights Council discussions in January 2011 on Nepal’s human rights record, and during discussions that same month at the UN Security Council on termination of the UN Mission in Nepal, set out a comprehensive plan to address impunity in Nepal.
  • Deny visas to persons against whom there is credible evidence of having committed serious crimes.
  • Ensure suspected perpetrators of crimes in Nepal found in your countries are prosecuted for international crimes under universal jurisdiction laws. 

 

To the United Nations

  • Improve vetting procedures so that persons accused of grave human rights violations do not end up on peacekeeping missions.
  • Make donor funds to the NHRC contingent on more effective investigations of grave human rights violations.

For a more complete set of recommendations addressed to the government of Nepal, the Constituent Assembly, the Nepal Army, Nepal Police, the UCPN-M, and influential international actors, please refer to Waiting for Justice, pages 52-55.

 

Acknowledgements

This is the third in a series of reports documenting the ongoing impunity for crimes committed during Nepal’s armed civil conflict. This report was preceded by two joint reports, Waiting for Justice: Unpunished Crimes from Nepal’s Armed Conflict, released in September 2008 and Still Waiting for Justice: No End to Impunity in Nepal, released in October 2009, both by Advocacy Forum and Human Rights Watch.

This report was written by Ingrid Massage of Advocacy Forum and Tej Thapa, South Asia researcher for Human Rights Watch. The report was edited by Elaine Pearson, deputy director of the Asia division of Human Rights Watch and Joseph Saunders, deputy director of the Program office. Clive Baldwin, senior legal advisor, provided legal review. Bede Sheppard, senior researcher in the Children’s Rights Division; Sara Darehshori, senior counsel for the International Justice Program; Philippe Bolopion, United Nations advocacy director.

Production assistance was provided by Jake Scobey-Thal, associate in the Asia division; Kathy Mills, publications coordinator; and Fitzroy Hepkins, production manager.

Thanks go to all the individuals who offered assistance, analysis, or information that made this report possible. We would like to acknowledge Rabindra Gautam, Kamal Pathak, and Dhiraj Pokharel of Advocacy Forum for their work in compiling cases and updates from the field, as well all the lawyers of Advocacy Forum who have been assisting the victims and following up the cases. We particularly wish to thank the families of victims who shared their experiences with us. Several of their names do not appear in this report at their request because they feared reprisals.

 

Appendix: Updates on 62 Cases of Grave Human Rights Violations from Waiting for Justice.

 
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[1]However, the ICC is limited to crimes that took place after July 1, 2002.

[2]Supreme Court of Nepal, order of December 14, 2009 in Writ no. 0339/2064 (2007), p. 4.

[3]Supreme Court of Nepal, judgment of June 2007 in Writ no. 3775 (1999).

[4] Ananta Raj Luitel,Supreme Court rap brings government to its senses,” The Himalayan Times, August 26, 2010, http://www.thehimalayantimes.com/fullNews.php?headline=Supreme+Court+rap+brings+government+to+its+senses&NewsID=255358

[5]Supreme Court of Nepal, judgment of March 10, 2008 in Writ no. 1231 (2007).

[6] Human Rights Committee, Yashoda Sharma vs. Nepal, Communication No. 1469/2006, http://sim.law.uu.nl/SIM/CaseLaw/fulltextccpr.nsf/160f6e7f0fb318e8c1256d410033e0a1/d9fb23ba0c7f13eac12575430037130e?OpenDocument (accessed October 19, 2010)

[7]NHRC urges govt to proceed cases of HR violation through civil courts,” Nepalnews, December 24, 2009,

http://www.nepalnews.com/main/index.php/news-archive/19-general/3068-nhrc-urges-govt-to-proceedcases-of-hr-violation-through-civil-court.html (accessed October 5, 2010).

[8] Akanshya Shah,  “Army gives Basnet clean chit, claims UN violated norms,” July 14, 2010, available on http://www.southasianrights.org/?p=1233 (accessed October 5, 2010).

[9]The Terrorism and Disruptive Activities Act (TADA) were adopted into law by Parliament in 2002. Its provisions had earlier been promulgated as an Ordinance in the TADO. It lapsed as a law in the absence of Parliament but was re-promulgated as a royal decree from October 2004. It was not renewed after it lapsed in September 2006 and is no longer in force.

[10] Akanshya Shah,  “Army gives Basnet clean chit, claims UN violated norms,” July 14, 2010, available on http://www.southasianrights.org/?p=1233 (accessed October 5, 2010).

[11] These included at least 8 cases documented by Human Rights Watch in the report “Clear Culpability: ‘Disappearances’ by Security Forces in Nepal,” (http://www.hrw.org/en/reports/2005/02/28/clear-culpability-0) released in 2005.

[12]“Nepal: Investigate Maoists’ Role in Killing,” Human Rights Watch news release,July 1, 2010, http://www.hrw.org/en/news/2010/07/01/nepal-investigate-maoists-role-killing

[13] The Bill covers enforced disappearance carried out by a person “having authorisation under the law” to arrest or investigate or implement laws but not “persons or groups of persons acting with the authorization, support or acquiescence of the State” as set out in the definition contained in Article 2 of the UN Convention for the Protection of All Person from Enforced Disappearances.

[14]Rajdhani, “Bills on truth and reconciliation and disappearances gathering dust”, p.2, July 28, 2010.

[15]“Agreement between the Government of Nepal and the United Nations High Commissioner for Human Rights concerning the Office of the High Commissioner for Human Rights in Nepal”, June 9, 2010, http://nepal.ohchr.org/en/index.html (accessed October 2, 2010)

[16]ACHR, The Withdrawal of OHCHR in Nepal. Agreeing an Alibi for Violation, Briefing Papers on Nepal, No. 5, March 4, 2010, http://www.achrweb.org/briefingpapers/BPNepal-01-10.pdf

[17] “86 percent of NHRC recommendations have been ignored,” The Himalayan Times, July 6, 2010

[18]Investigating Allegations of Extra-Judicial Killings in the Terai. OHCHR-Nepal Summary of Concerns,” OHCHR-Nepal, July 2010, http://nepal.ohchr.org/en/resources/Documents/English/reports/HCR/Investigating%20Allegations%20of%20Extra-Judicial%20Killings%20in%20the%20Terai.pdf (accessed October 1, 2010).

[19] Ibid.

[20] Ibid, page 10.

[21] “List of FIRs filed with the assistance of Advocacy Forum,” Advocacy Forum-Nepal, December 2010, http://www.advocacyforum.org/

[22]“Torture and Extrajudicial Executions amid Widespread Violence in the Terai,” Advocacy Forum, January 2010, http://www.advocacyforum.org/TeraiReport_English_English.pdf

[23] In law, the State Cases Act and regulations do not provide for an FIR to be withdrawn once it has been filed with the police; the decision regarding proceeding with the case lies with the Attorney General’s Office.

[24] “Government forms ministerial panel to study report on BNP killings,” Nepalnews, April 19, 2010, http://www.nepalnews.com/main/index.php/news-archive/2-political/5465-govt-forms-ministerial-panel-to-study-report-on-bnp-killings.html

[25]OHCHR letter to Pushba Kamal Dahal, chairperson, UCPN-M,  July 24, 2009, http://nepal.ohchr.org/en/resources/Documents/English/pressreleases/Year%202009/September2009/2009_09_OHCHR_Letter_to_Prachanda.pdf

[26] ibid.

[1]However, the ICC is limited to crimes that took place after July 1, 2002.

[2]Supreme Court of Nepal, order of December 14, 2009 in Writ no. 0339/2064 (2007), p. 4.

[3]Supreme Court of Nepal, judgment of June 2007 in Writ no. 3775 (1999).

[4] Ananta Raj Luitel,Supreme Court rap brings government to its senses,” The Himalayan Times, August 26, 2010, http://www.thehimalayantimes.com/fullNews.php?headline=Supreme+Court+rap+brings+government+to+its+senses&NewsID=255358

[5]Supreme Court of Nepal, judgment of March 10, 2008 in Writ no. 1231 (2007).

[6] Human Rights Committee, Yashoda Sharma vs. Nepal, Communication No. 1469/2006, http://sim.law.uu.nl/SIM/CaseLaw/fulltextccpr.nsf/160f6e7f0fb318e8c1256d410033e0a1/d9fb23ba0c7f13eac12575430037130e?OpenDocument (accessed October 19, 2010)

[7]NHRC urges govt to proceed cases of HR violation through civil courts,” Nepalnews, December 24, 2009,

http://www.nepalnews.com/main/index.php/news-archive/19-general/3068-nhrc-urges-govt-to-proceedcases-of-hr-violation-through-civil-court.html (accessed October 5, 2010).

[8] Akanshya Shah,  “Army gives Basnet clean chit, claims UN violated norms,” July 14, 2010, available on http://www.southasianrights.org/?p=1233 (accessed October 5, 2010).

[9]The Terrorism and Disruptive Activities Act (TADA) were adopted into law by Parliament in 2002. Its provisions had earlier been promulgated as an Ordinance in the TADO. It lapsed as a law in the absence of Parliament but was re-promulgated as a royal decree from October 2004. It was not renewed after it lapsed in September 2006 and is no longer in force.

[10] Akanshya Shah,  “Army gives Basnet clean chit, claims UN violated norms,” July 14, 2010, available on http://www.southasianrights.org/?p=1233 (accessed October 5, 2010).

[11] These included at least 8 cases documented by Human Rights Watch in the report “Clear Culpability: ‘Disappearances’ by Security Forces in Nepal,” (http://www.hrw.org/en/reports/2005/02/28/clear-culpability-0) released in 2005.

[12]“Nepal: Investigate Maoists’ Role in Killing,” Human Rights Watch news release,July 1, 2010, http://www.hrw.org/en/news/2010/07/01/nepal-investigate-maoists-role-killing

[13] The Bill covers enforced disappearance carried out by a person “having authorisation under the law” to arrest or investigate or implement laws but not “persons or groups of persons acting with the authorization, support or acquiescence of the State” as set out in the definition contained in Article 2 of the UN Convention for the Protection of All Person from Enforced Disappearances.

[14]Rajdhani, “Bills on truth and reconciliation and disappearances gathering dust”, p.2, July 28, 2010.

[15]“Agreement between the Government of Nepal and the United Nations High Commissioner for Human Rights concerning the Office of the High Commissioner for Human Rights in Nepal”, June 9, 2010, http://nepal.ohchr.org/en/index.html (accessed October 2, 2010)

[16]ACHR, The Withdrawal of OHCHR in Nepal. Agreeing an Alibi for Violation, Briefing Papers on Nepal, No. 5, March 4, 2010, http://www.achrweb.org/briefingpapers/BPNepal-01-10.pdf

[17] “86 percent of NHRC recommendations have been ignored,” The Himalayan Times, July 6, 2010

[18]Investigating Allegations of Extra-Judicial Killings in the Terai. OHCHR-Nepal Summary of Concerns,” OHCHR-Nepal, July 2010, http://nepal.ohchr.org/en/resources/Documents/English/reports/HCR/Investigating%20Allegations%20of%20Extra-Judicial%20Killings%20in%20the%20Terai.pdf (accessed October 1, 2010).

[19] Ibid.

[20] Ibid, page 10.

[21] “List of FIRs filed with the assistance of Advocacy Forum,” Advocacy Forum-Nepal, December 2010, http://www.advocacyforum.org/

[22]“Torture and Extrajudicial Executions amid Widespread Violence in the Terai,” Advocacy Forum, January 2010, http://www.advocacyforum.org/TeraiReport_English_English.pdf

[23] In law, the State Cases Act and regulations do not provide for an FIR to be withdrawn once it has been filed with the police; the decision regarding proceeding with the case lies with the Attorney General’s Office.

[24] “Government forms ministerial panel to study report on BNP killings,” Nepalnews, April 19, 2010, http://www.nepalnews.com/main/index.php/news-archive/2-political/5465-govt-forms-ministerial-panel-to-study-report-on-bnp-killings.html

[25]OHCHR letter to Pushba Kamal Dahal, chairperson, UCPN-M,  July 24, 2009, http://nepal.ohchr.org/en/resources/Documents/English/pressreleases/Year%202009/September2009/2009_09_OHCHR_Letter_to_Prachanda.pdf

[26] ibid.

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