I. Summary
At approximately 11 a.m. on December 27, 2003, Hari Prasad Bolakhe stepped off the bus at the bus station in Banepa town, Kavre District. Eyewitnesses, including Hari’s father, Puspa Prasad Bolakhe, saw a police officer take Hari by force and bundle him into a vehicle. Some of the eyewitnesses recognized the officer as Khadga Bahadur Lama, the head police constable from the Kavre District Police Office (DPO). Hari’s father reported the abduction to the Kavre DPO, but officials there denied arresting his son. For nearly three years Hari remained missing, though there were repeated sightings of him in the company of army personnel operating in the district. In June 2006, following investigations by the National Human Rights Commission (NHRC) into his “disappearance,” Hari’s body was exhumed from a forest in Ganesthan, Kavre District. Hari’s family, accompanied by Advocacy Forum lawyers, tried to register a First Information Report (FIR), a formal complaint, at the Kavre DPO on September 20, 2006, but the police initially refused to lodge it, saying that they could not do so because it was against senior army personnel still working in the same district. On November 8, 2006, Hari's father lodged a petition with the Supreme Court demanding that the Kavre DPO register the complaint. The Supreme Court instructed the Kavre police to “show cause” of why they they did not file the FIR, and in response on December 5, 2006 the Kavre DPO informed the Supreme Court that a FIR had been filed on November 7, 2006. On December 8, 2006, the Kavre police wrote to senior police authorities, including Police Headquarters, seeking assistance to contact the army and interview the alleged perpetrators. But the Kavre police received no reply from any of these authorities. More than four years later, in spite of clear evidence that Hari was abducted and killed, investigations have not proceeded. The case of Hari Prasad Bolakhe highlights the endemic problem of institutionalized impunity for serious human rights violations in Nepal. During the 10-year-long “people’s war” declared by the Communist Party of Nepal (Maoist) (CPN-M), an estimated 13,000 people were killed. The majority were killed by the security forces, but the CPN-M was also responsible for several thousand killings, including hundreds of civilians they suspected of being “enemies of the people” or providing information to the security forces. Both parties were responsible for the indiscriminate killing of civilians during attacks or armed “encounters” between them. To date, none of these killings have been adequately investigated by police and not a single perpetrator has been brought to justice before a civilian court. Though other authorities such as the NHRC and a number of commissions of inquiry set up to investigate specific incidents have carried out thorough investigations of some cases and made recommendations for the prosecution of those responsible, the government has not acted on these recommendations. Under pressure, the army has held a few trials of alleged perpetrators in military courts, though the charges have borne little relationship to the gravity of the violations. The failure of Nepali authorities and the Maoists to adequately investigate or address grave human rights abuses by forces under their control is not only a violation of Nepal’s obligations under international law, but a serious obstacle to a lasting resolution of the country’s political and social disputes. A key challenge for the new Maoist-led government will be to address these failures, and bring the perpetrators of such abuses to justice. To examine how the Nepali justice system responds to allegations of human rights abuses, in this report Human Rights Watch and Advocacy Forum examined 62 cases documented in 49 FIRs filed with the Nepal Police since June 2006. In all 62 cases, Advocacy Forum lawyers are assisting or have assisted the families in seeking justice for the crimes committed against their loved ones. Forty-seven of the FIRs were cases of alleged extrajudicial killings, “disappearances,” torture, or rape committed by security forces in the period between 2002 and 2006. The remaining two FIRs were cases of alleged killings by members of the CPN-M. Most of the FIRs name alleged perpetrators identified by eyewitnesses as well as the officers in charge of relevant army units implicated in the human rights violations, both directly and using the doctrine of command responsibility. These 62 cases are not representative of human rights violations carried out in the conflict. Maoist forces have abducted, tortured, and killed civilians suspected of being “informers” or “enemies of the revolution.” They have extorted “donations” from villagers, recruited children as soldiers and in other conflict-related capacities, and abducted students for political indoctrination. In order to achieve the maximum deterrent effect on the population, the Maoists often executed their victims in public, forcing the victim’s relatives and other villagers to observe the killing. The executions were often preceded by horrendous torture and involved excruciating methods of killing, such as burning a victim alive or breaking the victim’s bones until he or she finally died. The Maoists at times kidnapped individuals for ransom or in order to compel a victim’s relative to resign from the security forces. Yet victims of their abuses or their relatives have so far been very reluctant to file complaints against them. It is a testimony to the fear the Maoists instilled in people that to date only two FIRs have been filed against them with police. In examining the FIRs, Human Rights Watch and Advocacy Forum found a consistent pattern of de facto and de jure impunity. One of the largest obstacles to serious investigations is the ongoing powerful role of the two military forces—the Nepal Army and the CPN-M’s People’s Liberation Army when compared to civilian authorities. The Nepal Army has been and continues to be almost entirely unaccountable, despite a new Army Act of 2006 formally putting the army under civilian control. During the armed conflict, the security forces committed serious abuses without fear of punishment or prosecution. Between November 2003 and April 2006, the police operated under the unified command of the army. Subservient to the army, they felt powerless to investigate their superiors. While the law has changed, practices have not. Our interviews show that the police still identify closely with the army and continue to play an active role in ensuring impunity. Members of the police told Human Rights Watch and Advocacy Forum that they continue to be afraid of reprisals should they initiate investigations against soldiers. As a result, the police invent reasons for not acting. In other cases, police are the alleged perpetrators, and in those cases there is still little chance of a serious police investigation. Existing internal investigative procedures in both the army and police are wholly inadequate. The main tactic used by the police to avoid investigations of human rights abuses is simply to refuse to file a complaint. As with Hari’s family, many relatives of victims attempted, but were unsuccessful, in filing an FIR at the time of the alleged violation. Since mid-2006, after King Gyanendra was ousted from power by a people’s movement (Jana Andolan), some relatives have finally been able to file FIRs with the police. But in most cases the complaints were accepted only after several attempts and with the support of an NGO, or only after relatives petitioned the courts to order the police to investigate. Even those who overcome this first hurdle face another, as the police routinely fail to gather evidence and prepare cases for prosecution. Police also have refused to provide information to families on the status of investigations. In cases involving alleged Maoist abuses, many victims or their relatives have been reluctant to file complaints out of fear for reprisals. Local police are reticent to investigate after bearing the brunt of 10 years of Maoist insurgency. During those years, the police were often on the front lines and lost a large number of units and officers to attacks. They continue to fear reprisals by Maoists with little institutional protection from the police force, instead having to negotiate their own protection. In a few cases, the courts themselves have rejected families’ calls for investigations, agreeing with arguments put forward by police that the cases will be investigated by a proposed transitional justice body, so police are not obliged to proceed with investigations. Such spurious arguments by police and courts—the mandate of a truth and reconciliation body has not yet been formulated—demonstrate that state institutions in Nepal are determined to avoid accountability for grave human rights violations. Other factors hampering investigations are the result of a widely dysfunctional criminal justice system, which does not require serious investigations of crimes committed by state agencies. The responsibilities of the police to investigate are poorly defined, bodies can be disposed of without post-mortem or other forensic tests, the availability and use of forensic expertise is limited, public prosecutors are reluctant to scrutinize ongoing police investigations, politicians exert pressure on both police and public prosecutors, and there is a general lack of political will to implement recommendations for further investigations and prosecutions made by commissions of inquiry and the NHRC. The application of Nepali law also contributes to impunity. Provisions in laws such as the Army Act, the Police Act, and the Public Security Act grant members of the security forces and civil servants immunity from prosecution for all actions—including egregious human rights violations—that can be said to have been carried out in “good faith” while they were discharging their duties. These laws may be misused to shield soldiers, police officers and their superiors, who can merely assert “good faith” to escape legal liability. In addition, there are no legal provisions ensuring independent investigations into allegations of illegal killings by the security forces. Enforced disappearances and torture are not defined as crimes under Nepali law. Many gaps in laws such as the State Cases Act of 1992 and the Muluki Ain (National Code) of 1963 allow the police, public prosecutors, and other agencies to leave cases in limbo for months and years on spurious grounds. For instance, while the State Cases Act sets out the procedures to be followed in investigations, it does not set out any procedure for independent inquiry where security forces are implicated in a death. Under the Muluki Ain,witnesses can be tried for perjury, but courts have long interpreted these provisions to exclude government officials (including security forces), and therefore government officials and members of security forces are not obliged to tell the truth. Other laws, rules and regulations regarding civil servants also fail to stipulate any sanction for perjury. The government has occasionally granted compensation to victims or their families. In some cases the security forces have taken administrative action against perpetrators, such as suspension or demotion. In a few cases the army has conducted courts martial, but the convictions bear no relationship to the gravity of the crimes. None of this is a substitute for justice. The end of the King’s rule and the peace process that followed the Jana Andolan in April 2006 has thus far not led to any significant action to establish accountability for human rights violations. As when multi-party democracy was introduced in 1990, little is being done to address the entrenched structures of impunity. Sadly, many of the politicians who came back to power in April 2006 as well as some Maoist politicians have advocated the granting of immunity for past human rights abuses. This has been clear in discussions between major political actors on a draft law to establish a Truth and Reconciliation Commission (TRC), which would provide amnesty if the perpetrator made an application indicating regret, or if victims and perpetrators agree to a reconciliation process. Discussions about a TRC have become part of wider high-level political negotiations and have taken place without the widespread consultation of local human rights organizations and families of victims. Key RecommendationsThe new government of Nepal needs to ensure that perpetrators of grave human rights violations are brought to justice. Human Rights Watch and Advocacy Forum call on the Nepali government to:
Note on MethodologyThis report was jointly produced by Human Rights Watch and Advocacy Forum. Human Rights Watch conducted research in Kathmandu and Kavre District in October 2007, interviewing 10 family members of victims, three victims of torture, four police and military officials, four officials from the Attorney General’s Office, six OHCHR representatives, four members of civil society organisations,three political party representatives (from the Nepali Congress, CPN-M, and CPN-UML), and one NHRC official. No one declined to be interviewed. Interviews of victims and families were conducted in English with Nepali translation. These interviews were conducted in private. Following the visit, Human Rights Watch continued to monitor developments closely with assistance from Advocacy Forum. Additional interviews and research was completed by Advocacy Forum staff between August 2005 and October 2007. Some of the information is from previous Advocacy Forum legal interviews between 2002 and 2004. The 49 FIRs represent nearly all the cases where Advocacy Forum lawyers have assisted victims’ families in filing complaints and accessing justice. The cases are from 15 districts (Baglung, Banke, Bardiya, Dadeldhura, Dhading, Dhanusha, Jhapa, Kavre, Lamjung, Morang, Myagdi, Palpa, Surkhet, Tanahun, and Udaypur) in Nepal; Advocacy Forum staff conducted interviews in each of these districts. For each of the FIRs, Advocacy Forum conducted lengthy interviews with the families, witnesses, and other key informants to obtain the facts of the case, and collected first-hand testimonies. All efforts have been made to update information on the status of the cases documented in this report through August 2008. |