NAVARAJ PUDASAINI
Each enforced disappearance violates a swathe of human rights: The right to security and dignity of a person; the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment; the right to humane conditions of detention as well as rights related to fair trial and family life. Despite the existence of some international resolutions as well as regional laws in dealing with the cases of disappearance, the International Convention for the Protection of All Persons from Enforced Disappearance adopted by the United Nations General Assembly on Dec 20, 2006, represents an extremely important development in the fight against enforced disappearances and for the protection of victims and their families. Some of its provisions have set important new standards such as the right to know the truth about the fate of a disappeared person. The Convention was opened for signature on Feb 6, 2007. By July this year, 81 states had signed the convention while 13 states had ratified it. It will come into force once it is ratified by 20 states-parties.
Enforced disappearance like other unlawful acts challenges the very concept of human rights: It amounts to the denial of the right of all persons to exist, to have an identity. Enforced disappearance turns a human being into a non-being.No doubt, states are required to lead prompt, impartial and thorough investigations into human rights violations – an indispensable first step towards shedding light on possible criminal behavior, to examine the circumstances in which it took place and identify the persons responsible for the abuses. Whenever these abuses constitute crimes, states must also take necessary measures to ensure that the perpetrators are brought to trial and, when applicable, sentenced to a punishment commensurate with the crime committed. In addition, each state is required to make available effective legal remedies to the victims, meaning that these should be easily accessible and able to compensate the injuries caused. Furthermore, it falls within the duties of the state (1) to ensure that victims receive adequate compensation, (2) to enforce their right to learn the truth about the abuses they or their relatives suffered and (3) to undertake reforms or all other necessary measures in order to avoid the repetition of such acts.
Enforced disappearance like other unlawful acts challenges the very concept of human rights: It amounts to the denial of the right of all persons to exist, to have an identity. Enforced disappearance turns a human being into a non-being. It is the ultimate corruption, the abuse of power that allows the perpetrators, while committing abominable crimes, to reduce law and order to something insignificant. The belief is that the past cannot, indeed must not, be forgotten. Forgetting or ignoring the past means we cannot learn lessons from it and are at great risk of repeating it.
Nepal, having ratified various international human rights treaties, has an international obligation to protect the right to life, safety and security of its citizens. The country is still in a transitional period trying to address the past human rights abuses to overcome future collapse. With the end of the decade-long armed conflict, a number of legal and political commitments have been made by the transitional governments and the major political parties to form commissions such as Truth and Reconciliation Commission and Disappearances Commission to uncover or investigate and figure out the facts that occurred during the conflict. Unfortunately, no particular attention has been paid to the plight of victims and the several written agreements and accords have been largely neglected.
The number of people who disappeared during the decade-long armed conflict in Nepal is very high. The families of the victims are eager to know the whereabouts of their kin. Unfortunately, family members of those who were killed were neither informed about the deaths, nor could they retrieve the dead bodies to carry out the religious rituals. Some of the family members of such victims still live with the belief that their relatives might return any time. Despite the Supreme Court’s directive to the government for immediate formation of a Disappearances Commission, successive governments have remained reluctant to take steps in this direction.
It is high time that a Disappearances Commission is set-up to take proactive steps to address past rights abuses. Dealing with the past is the key for Nepal in advancing peace and in finding a common ground on which to stand. The longer past injustices remain unaddressed, the greater the risk. The question of why the political figures are afraid of establishing such a commission has come along. Healing trauma, listening to voices of victims and holding perpetrators accountable for committed crimes are prerequisites for each country to transform and rebuild public confidence in the state.
The state should no longer delay the formation of Disappearances Commission and the Truth and Reconciliation Commission. Nepal must immediately ratify the International Convention for the Protection of All Persons from Enforced Disappearance. The absence of any serious efforts on the part of a state to take action, including criminal proceedings against those considered to be responsible for violating human rights, constitutes failure on its part to respect an individual’s recognized rights. A state which is not dedicated to putting a stop to abuses perpetrated under its administration is not in a position to claim that it guarantees the rights of its citizens.
(Writer is a human rights lawyer.)
navaraj.law@gmail.com
Published on 2009-09-01 08:15:38
Source: http://www.myrepublica.com/portal/index.php?action=news_details&news_id=9267
Sunday, December 6, 2009
Disappearance Commission
REPUBLICA
In a welcome move, albeit a belated one, the government has taken steps to form a commission to look into disappearance cases during the 1996-2006 Maoist conflict. Once the cabinet approves the disappearance bill, and the parliament passes it, the work towards finding the ultimate truth on missing persons should begin in earnest. The political parties avoided forming the Disappearance Commission – and the Truth and Reconciliation Commission (TRC) – by erroneously thinking that it would rupture the peace process. The government, if we may add, also needs to initiate forming TRC since it can cover crimes other than disappearances.
The Disappearance Commission was long overdue. That it took so long reflect very badly on our decision makers. In the meantime, those whose near and dear ones were made to disappear are made to suffer an agonizing wait. We have had three governments since April 2006 but this essential task was never given a priority. Tall talks and big promises were regular features during these three years, though. People who lost their loved ones need to be told what happened to those who never returned home.
But we are very skeptical. Will the commission, when it is formed, truly be an independent body? Can it sincerely dig out old cases and publish its findings? Can it carry out its task without fear or favor? We have doubts, and very serious ones. After all, our political leaders are yet to give shape to an institution that is free from political bias or selfish motives. Powerful and influential people who could be in the dock for gross violations during the conflict period are still in a position to obstruct the functioning of the commission. The fiasco over TRC is still fresh in our memory. The then government, with tacit approval from the then Communist Party of Nepal (Maoist) and the Nepal Army, came up with a draft bill that aimed more at protecting the perpetrators of serious crimes than punishing them and providing justice to the families of the victims.
The need, therefore, is to make the Disappearance Commission very effective. The first essential for an effective and unbiased commission is to appoint people with integrity as members of the commission. Have at least a former jurist or lawyer, an ex-police officer, a human rights worker and a psychologist among the five members. Preferably, at least one of them should be a woman. The three mandates of the commission – probing disappearances, identifying those responsible for such crimes and recommending reparations for victims – must be backed by adequate resources. The manpower, money and logistics needed for the commission to carry out its responsibilities must be beyond question. The sincerity of the government and the parties on providing justice to victims will hinge on these factors
Published on 2009-09-08 07:27:11
Source: http://www.myrepublica.com/portal/index.php?action=news_details&news_id=9531
In a welcome move, albeit a belated one, the government has taken steps to form a commission to look into disappearance cases during the 1996-2006 Maoist conflict. Once the cabinet approves the disappearance bill, and the parliament passes it, the work towards finding the ultimate truth on missing persons should begin in earnest. The political parties avoided forming the Disappearance Commission – and the Truth and Reconciliation Commission (TRC) – by erroneously thinking that it would rupture the peace process. The government, if we may add, also needs to initiate forming TRC since it can cover crimes other than disappearances.
The Disappearance Commission was long overdue. That it took so long reflect very badly on our decision makers. In the meantime, those whose near and dear ones were made to disappear are made to suffer an agonizing wait. We have had three governments since April 2006 but this essential task was never given a priority. Tall talks and big promises were regular features during these three years, though. People who lost their loved ones need to be told what happened to those who never returned home.
But we are very skeptical. Will the commission, when it is formed, truly be an independent body? Can it sincerely dig out old cases and publish its findings? Can it carry out its task without fear or favor? We have doubts, and very serious ones. After all, our political leaders are yet to give shape to an institution that is free from political bias or selfish motives. Powerful and influential people who could be in the dock for gross violations during the conflict period are still in a position to obstruct the functioning of the commission. The fiasco over TRC is still fresh in our memory. The then government, with tacit approval from the then Communist Party of Nepal (Maoist) and the Nepal Army, came up with a draft bill that aimed more at protecting the perpetrators of serious crimes than punishing them and providing justice to the families of the victims.
The need, therefore, is to make the Disappearance Commission very effective. The first essential for an effective and unbiased commission is to appoint people with integrity as members of the commission. Have at least a former jurist or lawyer, an ex-police officer, a human rights worker and a psychologist among the five members. Preferably, at least one of them should be a woman. The three mandates of the commission – probing disappearances, identifying those responsible for such crimes and recommending reparations for victims – must be backed by adequate resources. The manpower, money and logistics needed for the commission to carry out its responsibilities must be beyond question. The sincerity of the government and the parties on providing justice to victims will hinge on these factors
Published on 2009-09-08 07:27:11
Source: http://www.myrepublica.com/portal/index.php?action=news_details&news_id=9531
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