Impunity in Nepal

Impunity in Nepal is embedded in its laws, the criminal justice system and in its social structure. Impunity in Nepal is the result of the non-functioning of constitutional bodies, lack of independence of judiciary, corruption in quasi-judicial bodies such as the District Administration Office, social and cultural factors and finally, denial of justice for human rights abuses.

During the days of Panchayat rule, between 1960 and 1990 many cases went unpunished. Between 1985 and 1990 more than 50 persons were disappeared. Unfortunately not a single perpetrator has been punished till date.

After the success of the Jana Andolan (people’s movement) in 1990, Prime Minister Krishna Prasad Bhattarai’s interim government established a judicial commission to investigate abuses committed by the Panchayat government in suppressing protests. The three judge commission led by Justice Janardan Mallik—submitted its report to the government in December 1990. The report concluded that 45 people had been killed and 23,000 injured during the Jana Andolan and named over 100 officials and politicians directly or indirectly responsible for the violations. Bhattarai’s interim government did not take action against the perpetrators, on the ground that maintaining law and order was more important and punishing those named in the Mallik report would demoralize the police force.

None of the subsequent governments have acted on the Mallik Commission report. The failure of Nepali authorities to prosecute those responsible for human rights abuses Committed during the 1990 Jana Andolan represented a major missed opportunity. The Establishment of more democratic governance structures in 1990 provided a unique opportunity to introduce effective systems ensuring that perpetrators of human rights abuses would be held accountable.

In post conflict Nepal persistent impunity for human rights violators during the ten- year long insurgency (1996-2006) continues to pose a serious challenge to the country's transition to peace and making of a new constitution. The Comprehensive Peace Agreement (CPA) signed by all major political parties of Nepal included commitments to address the crimes of the conflict. Yet no government, whether the interim government headed by the late G.P. Koirala of the government led by the CPN (Maoists) after the election to the Constitution Assembly (CA), the government led by Communist Party of Nepal-Unified Marxist Leninist (CPN-UML) and the present government headed by CPM-UML Chairperson Mr. Jhalanath Khanal in coalition with the UCPN-Maoists have taken any action.

Task Force of the Ministry of Peace and Reconstruction in September 2009 reported that 16,274 persons were killed during the ten-year long insurgency in Nepal (1996-2006). A report of the Informal Sector Service Centre (INSEC) claims that nearly 70 percent of the deaths were caused by the Army, while about 30 percent deaths was caused by the Maoists. (www.insec.org.np/pics/1247467500.pdf.)

Several Commissions have been formed, Task Forces were set up and reports written, but in the end all actors have failed to translate their promise to punish those who committed serious crimes against the people of Nepal.
Failure to end Impunity:
Despite the professed commitment to end impunity, all political parties in Nepal have been shielding the perpetrators of massive abuse of impunity. In 2008, the government withdrew more than 400 cases against members of the seven major political parties terming these as "politically motivated". These cases included charges of serious crimes of abduction, torture, murder, and torture. On January 1, 2009 the Supreme Court ordered the government not to implement its decision to withdraw the cases. This order was ignored. In fact the government continued to withdraw cases of serious criminal charges against party workers. (OHCHR-Nepal report of February 5, 2010 A/HRC/13/72)

The government lost credibility when G. P. Koirala led interim government promoted Lieutenant Rookmangud Katawal to the position of the Chief of the Army. General Katawal was implicated by the Rayamajhi Commission which was set up be the Koirala government to investigate the complaints of abuse of human rights by the RNA during the Jana Andolan II. Government's credibility was further compromised when the Nepali Congress (NC) and CPN-UML coalition government led by Mahdav Kumar Nepal promoted Brigadier Toran Bahadur Singh to the position of Lieutenant General and second in command of Nepal Army. Lt. General was Commander of the Tenth Brigade of RNA, in 2003-2004 which is accused of enforced disappearances.

The Prime Minister of Nepal in his speech at the UN General Assembly in September 2009 committed to end impunity for conflict and post-conflict human rights violations. Yet judgments of the Supreme Court of Nepal, hundreds of recommendations of the Human Rights Commission (NHRC) and the Office of the High Commissioner for Human Rights (OHCHR) remains ignore.

Nepal's southern plains which is known as Tarai as well as Madesh has emerged as one of the most violent regions of the after the signing of the 2006, CPA. Several armed groups whose demands include regional autonomy to independence have been indulging in serious crimes. Under pressure of Madeshi parties, the weak government has not been able to take action against these armed groups. Instead, it held negotiations and sign agreements making huge concessions to these armed groups. Unfortunately the violence has not abetted. During the year 2009, out of the total of 471 persons killed in Nepal, about 240 persons were killed in the 15 districts of Tarai. Of these 213 were victims of Tarai based armed groups. Not a single perpetrator has been brought to book till date.

The gross abuses by both sides during the war continue to threaten the peace process in post-conflict Nepal. This culture of impunity has had a corrosive impact on rule of law and compromised the credibility of the law enforcement agencies and judiciary.


Documentation of Human Rights Violations:
Local and international human rights organisations have documented extensively the crimes of the state security forces and the Maoist. Several reports of international and national human rights groups and the teams of OHCHR have highlighted many cases of severe human rights violations.

SAFHR's teams which observed the street rallies in Kathmandu during the culminating phase on the Jana Andolan II, is witness to use of excessive force by the police and the army on peaceful agitators. SAFHR's documentation of systematic abuse of human rights based on interviews with victims of torture and families of abducted persons, disappearances and extrajudicial killings.

The CPN (Maoists) were guilty of abduction and summary killing. According to the statements of persons interviewed in Kathmandu during 2003, the Maoists destroyed Village Development Committee (VDC) offices, bridges, schools and water supply systems. A government report, in May 2005 claimed that Country-wide about 1,500 VDC administrative offices were destroyed by the Maoists. Maoists are guilty of deliberately causing terrible injuries like severing limbs, gouging out eyes and killing by beheading. They forced people to give “donations”, recruited children as soldiers and abducted
students for political indoctrination. “In order to achieve the maximum deterrent effect
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.” (Waiting for Justice
Unpunished Crimes from Nepal’s Armed Conflict – Report by Human Rights Watch and Advocacy Forum- Nepal, 2008)

The army allegedly indulged in large scale killings, arrests, rape and torture of innocent civilians suspected of Maoists sympathisers. They killed “suspects” in fake encounters, forced villagers to sign false certificates and systematically tortured detainees inside army camps and cantonments. Many women were sexually molested and raped in army custody. According to a 2006 NHRC-Nepal report, between 2003 and 2004 the United Nations (UN) Working Group on Enforced or Involuntary Disappearances received the highest number of highest yearly number of new cases of “disappearances”. (http://www.internal-displacement.org/8025708F004CE90B)

No Justice for Maina Sunwar Tortured and Killed by Nepal Army
In this context it is important to recall the case of torture and killing of Maina Sunwar, a 15 year old girl by officials of (Royal) Nepalese Army in February 2004 at the Birendra Peace Operations Training Centre in Panchkhal, Kavrepalanchowk District. Her body was buried at the centre. Seven years have passed since then, despite all efforts by her family, national and international human rights organisations and the UN High Commissioner the tortures and killers have not been punished. A defence minister of Nepal Government categorically refused demands for trial of the army officials in a civil court.

The investigations by the civil police with which, the army had refused to cooperate came to nought. The order of the trial court that the accused army officers should be brought before the court was ignored. The government also did not act on the Supreme Court's order upholding the order of the trial court.

However, under intense public demand and international pressure Nepal army constituted a court martial and started an" internal investigation". Apparently, the report of the army's Court of Inquiry Board concluded that Nepal army officers took Maina Sunuwar from her home in Kavrepalanchowk District to the Birendra Peace Operations Training Centre in Panchkhal on 17 February 2004. At the Training Centre, she was subjected to torture in the presence of seven Nepal Army officers and soldiers, including two captains who ordered that Maina Sunuwar’s head be submerged in a large pot of water for one minute six or seven times under the orders of then Lt. Col. Babi Khatri. 1

According to the report of the army’s Court of Inquiry Board, the soldiers administered electric shocks to Maina Sunuwar’s wet hands and feet four or five times and the torture continued for one and a half hours. After this she was detained in a building on the premises of the Training Centre, where she was left blindfolded and handcuffed. She later began vomiting and foaming at the mouth, and died before medical assistance could arrive. The Court of Inquiry Board concluded that “It was indeed as a result of torture inflicted during the course of interrogation that the death of Maina Sunuwar occurred” and that “the tortuous treatment, done in an inexperienced and unskilled manner, was inhumane.” (Our emphasis)

The Army Court of Inquiry Board report also concluded that the officers and soldiers involved in Maina Sunuwar’s torture attempted to cover up the death. The body was shot in the back and buried inside the Training Centre. The colonel in charge of the Training Centre at the time then fabricated a report stating that Maina Sunuwar had been shot while trying to escape NA custody. The Court of Inquiry Board recommended that “the process of punishment according to military law should move forward” against Colonel Babi Khatri, Captain Sunil Prasad Adhikari and Captain Amit Pun.

On 15 March 2005, Nepal Army issued a press release stating that it would proceed to try the alleged perpetrators. Curiously, the press statement also said that the Court of Inquiry Board had concluded that Maina Sunuwar’s death was a mistake.

Six months later, on 27 September 2005, the army publicly announced that the Court Martial had found three officers guilty of negligence and sentenced them accordingly to Army Law. Court Martial sentenced the three officers to six months imprisonment for failing to follow proper procedures when disposing of Maina Sunuwar’s body. The Court Martial ordered the two captains to pay Rs 25,000 and the colonel to pay Rs 50,000 as compensation, and ruled them ineligible for promotion for one and two year(s), respectively.

Systematic Torture by the Nepal Army
According to a 2003 report of UNOHCHR-Nepal team visited the Maharajgung barrack of the Tenth Brigade of RNA popularly known as "Bhairavnath Battalion", several witnesses told the team about horrific forms of torture which included simulated drowning, periodic beating, electric shock to genitals, insertion of metal objects into the rectum and others. Some of the tortured persons also said that the, "members of the medical profession were also involved in the torture, ill-treatment and cruel, inhuman or degrading treatment and punishment, in that they resuscitated those who fell unconscious and treated the wounds without apparently questioning the authorities concerned regarding the treatment meted out. Their care appeared to sustain and facilitate ongoing torture and other ill-treatment. RNA officers monitored their work and sometimes intervened to limit the degree of care that they were able to provide."

In February 2005, King Gyannendra imposed “National Emergency” and ordered arrests of thousands of journalists, political party members and human rights activists and imposed severe restrictions on civil liberties. Concerned with the fast deteriorating situation of human rights in Nepal, the international community finally pressurised Nepal Government to sign a Memorandum of Understanding with OHCHR to set up a large field office. This brought about more effective human rights monitoring and
reporting in the country. The Maoist leadership allowed OHCHR to travel freely and investigate alleged abuses, and at least in some cases took action in response to concerns raised by the monitors. Unfortunately the NA consistently denied the OHCHR full access to its records of courts of inquiry and courts martial.

Non-Cooperation with UN-OHCHR-Nepal
On November 21, 2006 the CPN-Maoists and the Seven Party Alliance of Nepal signed the Comprehensive Peace Agreement (CPA). The CPA included commitments to human and to uphold Nepal’s international obligations to respect, promote, and ensure human rights. The CPA separately mandated the UN OHCHR and the NHRC to monitor the implementation of the human rights provisions of the CPA. Both sides also agreed to make public within 60 days of signing of the agreement the whereabouts of those “disappeared” or killed during the conflict and to set up a high-level Truth and Reconciliation Commission (TRC).

The signing of the CPA raised hopes that the human rights situation would continue to improve, as it had in the aftermath of the ceasefire. In the course of 2007, however, the limited ability of state institutions, including law enforcement agencies, to protect the lives and security of the population became increasingly apparent, especially in the Terai region, where members of the Madheshi community launched a sometimes violent protest movement demanding an end to discrimination.

In early 2008, the International Committee of the Red Cross (ICRC) confirmed that it had the names of nearly 1,150 disappeared individuals from the period of the conflict whose fate and whereabouts are unaccounted for. The ICRC also stated that the total number of disappeared was probably much higher.

Unfortunately the government of Nepal refuses to cooperate with the Supreme Court, National Human Rights Commission (NHRC) the United Nations Human Rights Committee (UNHRC). These agencies have called upon the Nepal government to thoroughly investigate the cases of human rights abuses in the country. However, the government argue that all such cases would be investigated by the yet to be established Disappearances Commission and Truth and Reconciliation Commission.

Weak Laws:
The existing laws of Nepal offer virtually no protection to victims of abuse by the forces of the state. The laws framed during the period of absolute monarchy continue to remain in force. For example the "Local Administration Act of 1971", which empowers the security forces to arrest any person without giving any reason is still in force. Under this act, the police are permitted to use lethal force against violent demonstrators, without any safeguard. The Public Security Act of 1989 which was enacted primarily to keep members of Communist Party of Nepal-Maoist (CPN-M) and members of main stream political parties in preventive detention. A section of this act provides impunity for any acts committed by the state officials in "good faith" in course of duty.

The "Special Cases Act of 1992", which was enacted after the establishment of the multiparty democracy in 1990, allows the police to keep persons accused of Committing "serious crime" in their custody for months without filing a charge sheet.

The police act of 1995 provides similar impunity to the police personnel and other security forces, while performing duties in good faith. This act entrenches impunity to deeper levels. Similarly there are many more laws in the Nepal, which promotes the human right abuses and provides impunity to the state officials in cases related to human rights violations.

An additional deficiency in existing laws is that judges lack sufficient power to ensure that security forces and other state organs cooperate fully with the courts. A central difficulty that repeatedly has manifested itself during habeas corpus cases is that the Nepalese law on perjury and contempt of court is defective. Although “witnesses” can be liable for perjury, under Section 169 of the Muluki Ain (National Code) which, is still in force, government officials when giving evidence are not obliged to provide the information obtained in their official capacity as per Section 44 of Evidence Act, 1974. Courts have long interpreted these provisions to exclude government officials from provisions applicable to witnesses.

Judiciary Orders Legal Reform: Government Continues to Ignore
Taking note of the weakness and inadequacy on Nepal's legal system to provide justice the victims of human rights violations, in its judgment of June 7, 2007 the Supreme Court of Nepal observed;

"It is found that there is no law in our country with respect to addressing the incidences of disappearance during times of conflict and times of peace; it is also found that on matters pertaining to disappearance, such as arrest, detention, hostage taking, detention standards, the rights of the victims and the remedies available to them and their families, and provisions for effective investigation of disappeared persons, etc., there are no sufficient laws. Even though there is an act for conducting inquiries on matters of public importance, this Act was not intended to conduct inquiries on matters pertaining to disappearance. In the absence of pertinent laws, no real, effective or practical investigation can be carried out. Further, under the existing criminal laws, no provisions adequately address the legal and institutional questions relating to disappearances."

The courted directed the government, "… to urgently enact a law which includes provisions that the act of disappearance is a criminal offence, defining the act of disappearance pursuant to the definition stated in the International Convention for the Protection of All Persons from Enforced Disappearance, 2006."

The Supreme Court had suggested that law must incorporate provisions for the protection of right of detainees, provide the detainees access to their families and lawyer and ensure detainee and his/her families and lawyer are informed the reason for detention. The court said that there must be provisions on judicial remedies. The Court observed that the detainee who is put in illegal detention as well as concerned persons and families of the victims of illegal detention or disappearance must be provided with a complaint filing mechanism against any agency of the state with respect to illegal detention or disappearance. With regard to punishment of perpetrators of human rights violations, the Supreme Court held that it was equally important to enact a law that will "uphold the international standard that pardon cannot be granted to persons who should be prosecuted for their alleged involvement in the act of disappearance, as well as to persons who are convicted for their direct responsibility or complicity in the act of disappearance".

Though the higher judiciary of Nepal has taken bold steps, the lower judiciary, comprising the district and appellate courts on occasions have reject writ petitions of families of the victims. These courts seem to accept the government's that these crimes should not be investigated by them as these fall under the jurisdiction of the Disappearances Commission, which has not been set up till date.

People Loose Hope:
The failure of Nepal government to provide justice has created a situation where the people no longer expect the state to deliver justice. An International Centre for Transitional Justice and Advocacy Forum of Nepal report published in February 2008 says that 63 percent of respondents of the survey who had filed complaints with police "said that no action had been taken, they had been harassed, or their complaint had been refused and not registered." According to the same survey about eighty percent of the respondents felt that the investigation into their complaints would be obstructed by the army, Similar percent of the respondents also said that they had very low expectation from the police as well as the Chief District Officers.

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