VI. Nepals Record in Addressing Human Rights Abuses and Disappearances
On March 26, 2004, the government of Nepal announced its commitment to abide by international human rights and humanitarian law, and published a comprehensive twenty-five-article statement on the matter.234 Among other things, the statement reiterated and elaborated the protections against enforced disappearances, affirming the governments commitment to take measures to prevent illegal or arbitrary detention and enforced disappearances.235
The government announced its commitment during the sixtieth session of the United Nations Commission for Human Rights. It appeared to be crafted mostly to avoid the anticipated condemnation of Nepal under Item 9 proceedings.236
The March 2004 statement stipulated the authorities responsibility to inform a detainee of the reasons for his or her arrest, to inform the relatives and legal representatives about the detainees whereabouts and transfers, and to maintain a register in every place of detention that would contain the name of every person detained and the dates of entry, discharge or transfer.237 It stated that the detainees should be held in officially recognized places of detention, and reiterated the ban on torture and inhumane treatment, prescribing that any person responsible for such treatment shall be prosecuted and punished according to the law.238 The government also pledged to provide necessary facilitation to the National Human Rights Commission in discharge of all of its activities,239 and guaranteed the right to verify the status of the detainee, his/her health condition, and the right to identify the authorizing and arresting authorities, proclaiming the need to honor the courts orders to make judicial remedies effective.240
The March 2004 commitment provides an improved conceptual and operational framework for upholding important human rights safeguards and promoting accountability. The government, however, still has to demonstrate the seriousness of its commitment by taking practical action to implement it.
So far the commitments have remained empty declarations, unsubstantiated by real efforts to stop the violations. Since March, the rate of illegal detentions and disappearances has not decreased. Human Rights Watch has documented several cases that occurred after the commitment was announced, and many more have been documented by local human rights groups. The security forces have continued to undermine judicial remedies by ignoring court orders, and the obstruction of the NHRCs activities has grown more egregious. In September 2004, the NHRCs chair Nayan Bahadur Khatri told diplomats and donor agencies in Kathmandu that the commission was deeply disappointed by the governments failure to fulfill its pledge to protect human rights.241
The National Human Rights Commission and non-governmental human rights groups have also criticized the governments National Human Rights Action Plan (NHRAP), which was devised with the assistance of the United Nations Development Program (UNDP), and made public in July 2004. The plan addressed a wide range of human rights and development concerns, largely focusing on the issues of education, health and culture, as well as the rights of women, children, and ethnic minorities.242
The NHRC denounced the NHRAPs failure to focus on the gross human rights violations such as illegal detention [and] cases of disappearances. According to the commissions chair, at a time when people are being killed everywhere including Kathmandu, and an individuals right to freedom is at stake, the plan should have devised programs to address these issues.243 The non-governmental organization Human Rights and Peace Society accused the government of adopting various plans and never implementing them, tagging the NHRAP as the government's ploy to hoodwink the international community that [the] human rights situation is under control in Nepal.244
The most significant step undertaken by the Nepali government in addressing the problem of disappearances has been the establishment of the five-member Committee for the Investigation of Alleged Disappearances of Persons by the State. The committee was formed in July 2004 in response to a hunger strike organized by the families of the disappeared. Since then, its initial one-month tenure has been renewed several times. It is headed by the Home Ministrys Joint Secretary Narayan Gopal Malego. Its other members are the Joint Secretary at the Ministry of Defense, Deputy Inspector General of the Nepal Police, Deputy Inspector General of the Armed Police Force, and Deputy Chief Office of the National Investigation Department.245
The committees initial report, released on August 11, 2004, was generally a disappointment, causing the frustrated families of the disappeared to resume their hunger strike. In a public statement, the NHRC excoriated the ineffectiveness of the committee, which had by then dealt with only thirty-six cases of disappearance. It had established the whereabouts of twenty-four of the thirty-six persons, but had not sought the assistance of the NHRC, which had hundreds of complaints on file.246
Since then, however, the committee has released three other reports, allegedly establishing the whereabouts of a total of 320 persons. The September 14, 2004, report made public the whereabouts of fifty-four persons, of whom, according to the committee, thirty were already released, seventeen still in government detention, and seven killed in encounters with security forces.247
The next report, released on October 12, 2004, revealed the whereabouts of another 126 individuals. The committee reported that three were killed in clashes, seventy-four were still in detention under TADA, twenty-one were released after interrogation, ten have surrendered, and another fourteen were released after detention.248
Finally, during the WGEID visit to Nepal in December, a list of another 116 disappeared was disclosed. Among them, according to the committee, six individuals were killed in encounters, one surrendered to the authorities, fourteen were released after interrogation, seventeen were set free after being detained, thirty-three remained in detention, and forty-five are being held at an investigation center at Sundarijal.249
In December 2004, the committees tenure was renewed for another two months. Some human right activists are skeptical about the work of the commission, claiming that instead of sincerely searching for people who had been disappeared, the government had embellished the list with the names of many people who were released a long time back in order to make the list look long.250 Of the more than 200 cases of disappearances documented by Human Rights Watch in this report, the work of the commission has provided answers in only a tiny minority of those cases.
A major problem is the limited mandate of the committee. For example, the committee does not examine the circumstances that led to a given disappearance and does not address the issue of the security forces responsibility for unlawful arrests and detentions in cases where the detainees were subsequently released. The committee has not investigated whether some of the disappeared who were allegedly killed in encounters were in fact victims of extrajudicial executions in custody. The committee has also not examined whether the detainees who were reportedly released were indeed set free or whether, as documented in several cases in this report, they actually remain disappeared. as has been evidenced in several cases in this report. In cases in which detainees reappear, moreover, the committee lacks the mandate to hold security forces accountable for having kept detainees incommunicado in unofficial places of detention.
Legalizing illegal detention: The Sundarijal Investigation Center
Under mounting local and international pressure, the government has also tried to address the problem of disappearances by legalizing illegal detention by security forces. In September 2004, the government opened an inquiry and investigation center in the Sundarijal Old Arsenal and reported its intention to move suspects detained under the Public Security Act and TADO to the new location. The government explained its decision to open a center separate from the existing facilities by citing the necessity to control Maoist terrorism by carrying out an effective inquiry and investigation of those arrested by security forces on the charge of being Maoists, and to stop the practice of illegal detention in military barracks.251
Indeed, the above-cited reports by the government investigation committee show that some of those listed as disappeared were apparently transferred to the center.
The center is headed by a Home Ministry official, although it is located in the former army barracks, and the army seems to have significant influence over the facility, including ensuring its external security. A source at the Home Ministry told The Kathmandu Post in September that both civil police and army personnel will be interrogating detainees at the center, and that they will either release them after questioning or hand them over to be tried in a court of law.252
It is unclear to what extent the center will help solve the problem of illegal detention and disappearance of people arrested by the security forces. The center can house about 115 detainees.253 As mentioned above, on December 8, 2004, the army spokesperson Brigade General Dipak Gurung announced that there were sixty-one detainees at the center, while another forty-seven were still in army detention.254 He did not explain why the remaining detainees were not transferred to the center. Meanwhile, local and international human rights groups continue to document numerous cases of illegal detention in army barracks and the subsequent disappearance of detainees.
The NHRC is quite skeptical about the potential of the Sundarijal center to solve the problem of disappearances. According to the NHRC, very few of the disappeared whose cases are on file with the Commission have indeed reappeared in the investigation center.255 A member of the NHRC also told Human Rights Watch that despite the Home Ministrys assurance, the NHRC representatives have been repeatedly denied access to the Sundarijal center, and the center thus remains no more accessible to outside scrutiny than other detention facilities. Moreover, according to the NHRC member, the warden of the facility had complained to the Commission that he was unable protect the detainees from the RNA, which he said came to the center in the middle of night and took detainees away without any explanation.256
 His Majesty's Government's commitment on the implementation of human rights and international humanitarian law, announced by Prime Minister Surya Bahadur Thapa on March 26, 2004; an unofficial translation of the document can be found at: http://www.mofa.gov.np/hrcommitments.htm (retrieved December 4, 2004). The governments commitment was introduced in lieu of the Human Rights Accord that was agreed in principle by both sides on the conflict during the last ceasefire, but was put aside after the Maoists renounced the ceasefire in response to the Doramba massacre by governmental forces.
 His Majesty's Government's commitment on the implementation of human rights and international humanitarian law, Article 3.
 See Commission Adopts Chair Statement on Afghanistan, Haiti, Nepal. Timor-Leste and Colombia, Commission for Human Rights, U.N. High Commission for Human Rights, April 21, 2004. See also Agenda Item 9: Question of the violation of human rights and fundamental freedoms in any part of the world, Amnesty International statement at Commission for Human Rights 60th Session, AI IOR 41/013/2004, April 6, 2004.
 Ibid, Article 4.
 Ibid, Articles 6 and 8.
 Ibid, Article 23.
 Ibid., Article 10.
 Cited in: NHRC Flays Governments Laxity, The Kathmandu Post, September 9, 2004.
 National Human Rights Action Plan, His Majesty's Government, Office of the Prime Minister and Council of Ministers, Singhdurbar, Kathmandu, Nepal, April 2004. A copy of the action plan is on file with Human Rights Watch. A summary of the action plan can be found in NHRAP Aims at Improving Human Rights Situation, The Rising Nepal [online], July 15, 2004, at: http://www.gorkhapatra.org.np/pageloader.php?file=2004/07/16/topstories/main6 (retrieved December 6, 2004).
 Cited in: Governments NHRAP Draws Mixed Reactions, The Himalayan Times, July 16, 2004.
 Nepalnews.com, Government Forms Panel to Probe on Disappearance Cases, July 1, 2004 [online], http://www.nepalnews.com.np/archive/2004/jul/arc_jul04_01.htm (retrieved January 20, 2005).
 Whereabouts of Fifty-four Missing Made Public, The Kathmandu Post, September 14, 2004. The full list can be found in: Government Makes Public Status of 54 Persons, The Rising Nepal, September 14, 2004 [online], http://www.gorkhapatra.org.np/pageloader.php?file=2004/09/15/topstories/main1 (retrieved December 14, 2004).
 Nepal Reveals Whereabouts of 126 Missing Civilians, Agence France Press, October 12, 2004. The full list can be found in: Report on Whereabouts of 126 Persons Presented, The Rising Nepal, October 12, 2004 [online], http://www.gorkhapatra.org.np/pageloader.php?file=2004/10/12/topstories/main1 (retrieved December 14, 2004).
 Nepalnews.com, Government Discloses Whereabouts of 116 Missing Persons, December 13, 2004 [online], http://www.nepalnews.com.np/archive/2004/dec/dec13/news13.php (retrieved December 14, 2004).
 Government makes names of 126 disappeared public, The Himalayan Times, October 11, 2004.
 Government to Legalize Illegal Detention by Security Forces, The Kathmandu Post, September 17, 2004.
 RNA Brings Guilty Soldiers to Book, The Kathmandu Post, December 8, 2004.
 Human Rights Watch correspondence with a member of the National Human Rights Commission, January 21, 2005.
 HRW interview with NHRC official, January 14 2005, Kathmandu.