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III. Nepal’s Obligations under International Law

Nepal is a party to six of the major international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR)³¹ and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.³² As a party to the treaties, it is obliged to adhere to human rights law as set out in these instruments.

Nepal also has an obligation to abide by international humanitarian law, which regulates the conduct of hostilities and protects persons affected by armed conflict, including captured combatants and civilians. Specifically, since the conflict in Nepal meets the Geneva Conventions’ definition of an internal armed conflict, Nepal is required to adhere to Common Article 3 of the 1949 Geneva Conventions, which applies to “conflicts not of an international character.”³³

In addition, Nepal must follow the standards set out in the 1992 U.N. General Assembly's Declaration on the Protection of All Persons from Enforced Disappearances (the “Declaration on Enforced Disappearances”).³⁴ Although a non-binding standard, the Declaration reflects the consensus of the international community against this type of human rights violation and provides authoritative guidance as to the safeguards that must be implemented in order to prevent it.

From 2001 until the dissolution of parliament in late 2002, Nepal was under a nationwide state of emergency. The ICCPR allows states to suspend temporarily (or derogate from) certain provisions during an officially proclaimed “public emergency which threatens the life of the nation,” but only to the extent strictly necessary under the circumstances.³⁵ However, certain rights, including the right to life and protection from torture, are never derogable.³⁶ The Declaration on Enforced Disappearances unequivocally states that “no circumstances whatsoever, whether a threat of war, a state of war, internal political instability or any other public emergency, may be invoked to justify enforced disappearances.”³⁷

Prohibition of enforced disappearances

The U.N. Declaration on Enforced Disappearances describes “disappeared” persons as those who are arrested, detained, or abducted against their will or otherwise deprived of liberty by government officials, or by organized groups or private individuals acting on behalf of, or with the direct or indirect support, consent, or acquiescence of the government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or by a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law.³⁸

Enforced disappearances constitute “a multiple human rights violation.”³⁹ They violate the right to life, the prohibition on torture and cruel, inhuman, and degrading treatment, the right to liberty and security of the person, and the right to a fair and public trial. These rights are set out in the ICCPR and the Convention against Torture, and Nepal, as a state party to both treaties, is obligated to respect them.

Under the ICCPR, no one should be subjected to arbitrary arrest or detention. An arrested person should be informed, at the time of arrest, of the reasons for his arrest and is to be promptly informed of any charges against him. Anyone arrested or detained on a criminal charge must be brought in a timely fashion before a judge or other officer authorized by law to exercise judicial power, and every person deprived of his or her liberty by arrest or detention has the right “to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”⁴⁰

International humanitarian law also provides protection against enforced disappearances by prohibiting acts that precede or follow a “disappearance.” Common Article 3 of the Geneva Conventions requires that persons taken into custody, whether civilians or captured combatants, be treated humanely in all circumstances. Such persons may never be subjected to murder, mutilation, cruel treatment or torture, or the passing of sentences and carrying out of executions, without a proper trial by a regularly constituted court.⁴¹

In addition, Protocol II to the Geneva Conventions sets out the minimum standards for treatment of persons deprived of their liberty during the conflict, which include access to relief and communication with relatives.⁴² It also details the due process requirements that apply to all persons detained in connection with offenses arising out of a conflict, which include being charged without delay, the presumption of innocence, the prohibition on forced confessions, and the right to an adequate defense.⁴³ Nepal has not ratified Protocol II, but many of its provisions are recognized as customary international law and are therefore also applicable.

The U.N. Declaration on Enforced Disappearances recognizes the practice of “disappearance” as a violation of the rights to due process, to liberty and security of person, and to freedom from torture. It also contains a number of provisions aimed at preventing “disappearances,” stipulating that detainees must be held in officially recognized places of detention, of which their families must be promptly informed, and that they must have access to a lawyer.⁴⁴

The Declaration urges each state to take “effective, legislative, administrative, judicial or other measures to prevent and terminate acts of enforced disappearance in any territory under its jurisdiction,”⁴⁵ and emphasizes that “no order or instruction of any public authority, civilian, military or other, may be invoked to justify an enforced disappearance.”⁴⁶

“Disappearances” can also involve serious violations of the Body of Principals for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the General Assembly in 1979.⁴⁷ The latter requires, inter alia, that the detaining authority shall produce the arrested person without unreasonable delay before the reviewing authority, and that the proceedings to challenge the lawfulness of detention, which include the writ of habeas corpus, “shall be simple and expeditious.”⁴⁸

A widespread or systematic pattern of enforced disappearances constitutes a crime against humanity, a term which refers to acts that, by their scale or nature, outrage the conscience of humankind. The Rome Statute of the International Criminal Court (ICC) provides that enforced disappearances are a crime against humanity “when committed as a part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”⁴⁹ Nepal is not a signatory to the Rome Statute, but many of the definitions of crimes contained in the ICC are considered part of customary international law. The U.N. Declaration on Enforced Disappearances also terms “the systematic practice” of enforced disappearances to be “of the nature of a crime against humanity.”⁵⁰

Duty to investigate

Under international law, Nepal has a duty to investigate serious violations of human rights and international humanitarian law standards, and to punish the perpetrators.⁵¹

In its resolutions, the United Nations General Assembly has repeatedly called on governments to devote appropriate resources to searching for the “disappeared,” and to “undertake speedy and impartial investigations.” It has urged states to ensure that law enforcement and security authorities are fully accountable in the discharge of their duties, and emphasized that such accountability must include “legal responsibility for unjustifiable excesses which might lead to enforced or involuntary disappearances and to other violations of human rights.”⁵²

The U.N. Declaration on Enforced Disappearances emphasizes that it is the state’s obligation to ensure that persons having knowledge of an enforced disappearance have the right “to complain to a competent and independent State authority and to have that complaint promptly, thoroughly and impartially investigated by that authority.” Even in the absence of a formal complaint, the state should promptly refer the matter to the appropriate authority for investigation whenever there are reasonable grounds to believe that an enforced disappearance has been committed.⁵³ When the facts disclosed by an official investigation so warrant, any person alleged to have perpetrated an act of enforced disappearance is to be brought before competent civil authorities for the purpose of prosecution and trial.⁵⁴

The Declaration characterizes “disappearance” as a continuing offense so long as the perpetrators continue to conceal the fate and the whereabouts of the “disappeared” persons.⁵⁵ Further, the perpetrators should not benefit from any special amnesty or other measures that might exempt them from a criminal proceeding or sanction.⁵⁶

The latter provision reflects the consolidated view developed in international jurisprudence over the past decade that those responsible for crimes against humanity and other serious violations of human rights should not be granted amnesty.⁵⁷

In cases where “complaints by relatives or other reliable reports” suggest that a “disappearance” has resulted in the unnatural death of the “disappeared” in state custody, Nepali authorities— in accordance with the U.N. Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions—should launch a thorough, prompt, and impartial investigation to “determine the cause, manner and time of death, the person responsible, and any pattern or practice which may have brought about that death.” The investigation should result in a publicly available written report.⁵⁸

Redress for victims

International human rights law obliges states to provide reparations to victims of serious human rights violations. The ICCPR requires states to provide an “effective remedy” for violations of rights and freedoms and to enforce such remedies.⁵⁹ The U.N. Human Rights Committee, which authoritatively interprets and monitors adherence to the ICCPR, has affirmed the state obligation to provide reparations under the ICCPR, noting that “reparation can involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations.”⁶⁰

Guidance on reparation to victims can be found in the draft Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law that is currently being discussed in the U.N.⁶¹ The Principles––still under negotiation and elaboration––reaffirm that a state should provide adequate, effective, and prompt reparation to victims for acts or omissions constituting violations of international human rights and humanitarian law norms.⁶² In the case of Nepal, the issue of reparations for victims or their families is relevant to cases of unlawful detentions, enforced disappearances, and extrajudicial executions.

The U.N. Declaration on Enforced Disappearances specifically reaffirms the right of victims of “disappearances” and their families to obtain redress and adequate compensation, “including the means for as complete a rehabilitation as possible,” as well as the right of dependents to compensation when the victim has died as a result of an act of enforced disappearance.⁶³

Expert Manfred Nowak in his 2002 report on "disappearances" to the U.N. Commission on Human Rights stated:

In the case of enforced disappearance, which is a particularly serious and continuing human rights violation committed with the very intention of evading responsibility, truth and legal remedies, reparation is of the utmost importance, not only as a matter of redress for the individual victims, but also as a pre-condition for establishing truth, justice and peace in the societies affected by such practices.⁶⁴