Ending the culture of impunity in Nepal

Those responsible for institutionalised extrajudicial killings and disappearances have yet to be brought to justice

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• • Jagannath Lamichhane
  • guardian.co.uk, Tuesday 21 December 2010 14.00 GMT
  • Article history

It is more than 25 years since Saket Mishra, a democratic fighter of Nepal, was arrested and disappeared at the hands of the panchayat government, along with four of his friends. His mother, now 75, is still waiting for her son to come back. In the course of those 25 years, there has been a sea of political changes in Nepal, but the misery in the general population has been manifold, so people like Mishra and their families have largely been forgotten.

King Mahendra imposed the "partyless" panchayat system in 1960 and dissidents began to be kidnapped or disappear at the hands of both state and non-state actors.

Maoists institutionalised the culture of extrajudicial killings and disappearances by non-state actors during their 10-year insurgency(1996-2006). According to the International Committee of the Red Cross,more than 1,300 people are still missing as a result of that conflict.

The ICRC has published a list of their names and circulated it widely. A study by the international body found that the overriding need among families of those arrested or disappeared is to be told officially what happened to their missing relatives.

The ICRC is submitting detailed cases to the former parties to the conflict, along with any information that could facilitate their investigations. It is working with forensic and legal experts and institutions such as the National Human Rights Commission "to build up the country's capacity to perform exhumations and to clarify the fate and whereabouts of missing persons".

Another problem is that, despite the disappeared receiving public attention, sympathy and international support, the state has so far failed to take a single action that would bring the culprits of disappearance to justice. This culture of impunity has raised many questions.

The recent report, Indifference to Duty, published by Human Rights Watch and the Advocacy Forum, points out:

"A central driver of impunity is failure on the part of the police to rigorously investigate cases, and in many instances, to investigate at all. Police routinely refuse to accept complaints from relatives of victims and to register first information reports (FIRs, the initial complaints to police which formally initiate investigations ); even when FIRs are registered, police and prosecutors routinely procrastinate in carrying out investigations, even in the face of orders and legal rulings by the supreme court. 

"Such failures are due at least in part to the continued sway of the army and Maoist forces, and to police knowledge that the Nepal army (NA) and political party officials, including Maoist officials, are unlikely to co-operate with investigations."

Crime and impunity are deeply politicised in Nepal. Many persecutors against whom there is strong evidence of involvement in serious crimes continue to serve in political party and security forces; some have even been promoted and honoured by the government. The well-known case of 15-year-old Maina Sunuwar is one example. She died while in custody of the Nepalese army and an officer was implicated in her murder – yet he continues to serve.

For victims of the disappeared, justice is still denied. The government argues that justice will be delivered by the yet-to-be establishedDisappearances Commission and Truth and Reconciliation Commission. While the 2006 comprehensive peace agreement commits to establish these commissions, there is no progress; bills to establish them are still pending in parliament.

So as not to fail the peace process in Nepal, there is an urgent need to implement the recommendations put forward by Human Rights Watch. Its report emphasises "the need for political leaders – with support of the United Nations, donors and influential countries – to develop a coherent and sustainable plan to strengthen the rule of law and the criminal justice system to end impunity. Ensuring that abusive officers and soldiers are prosecuted and removed from the ranks of the army and Maoists is crucial".

On 25 January next year, Nepal will come under scrutiny for the first time under the UN human rights council's universal periodic review system. If the government still fails to make progress in addressing impunity in Nepal, some major cases of political and security involvement should be referred to the international criminal court.

To the family members of the disappeared who are endlessly waiting for their loved ones, like the mother of Saket Mishra, justice must be ensured.

http://www.guardian.co.uk/commentisfree/2010/dec/21/nepal-justice-disappeared

Nepal: Justice Denied for Crimes During Decade of Conflict

Lack of Accountability Affects Current Security Situation

DECEMBER 14, 2010

Kedar Chaulagain, father of 17-year-old Subhadra, showing the bed from which soldiers dragged her before killing her in February 2004.

© Emma Burgess

DOWNLOADABLE RESOURCES: 

"Nepal: Justice Denied for Crimes During Decade of Conflict," Nepali Translation

RELATED MATERIALS: 

Waiting for Justice

Still Waiting for Justice

Inaction from the Nepal government enables people responsible for killings, torture, and disappearances to evade justice, sometimes in defiance of court orders. If past abusers aren't held to account, this sends a clear signal to current perpetrators that they too will be immune from prosecution.

Elaine Pearson, deputy Asia director at Human Rights Watch

(Kathmandu) - Nepal's government has failed to act on thousands of extrajudicial killings, torture, and enforced disappearances during the decade-long armed conflict with Maoists that ended in 2006, Human Rights Watch and Advocacy Forum said in a joint report released today. This lack of accountability is contributing to a breakdown of law and order in many parts of the country, Human Rights Watch and Advocacy Forum said.

The 41-page report, "Indifference to Duty: Impunity for Crimes Committed in Nepal," renews calls for the government to investigate and prosecute those responsible for crimes committed during the conflict, and documents three emblematic cases since the conflict ended to show how the same neglect of justice applies to new crimes. A lack of political will and consensus, prevailing political instability, and a lack of progress in the peace process have resulted in the government's failure to deliver on its promises in the 2006 peace agreement to prosecute these crimes, Human Rights Watch and Advocacy Forum said.

"Inaction from the Nepal government enables people responsible for killings, torture, and disappearances to evade justice, sometimes in defiance of court orders," said Elaine Pearson, deputy Asia director at Human Rights Watch. "If past abusers aren't held to account, this sends a clear signal to current perpetrators that they too will be immune from prosecution."

This report is a follow-up to two previous reports, "Waiting for Justice: Unpunished Crimes from Nepal's Armed Conflict," published in 2008, and "Still Waiting for Justice: No End to Impunity in Nepal," in 2009. It provides an update on 62 cases of killings, disappearances, and torture between 2002 and 2006 that had been documented by Human Rights Watch and Advocacy Forum. Most of the abuses were carried out by security forces, but a few cases involve Maoist rebels. The families of those killed and disappeared have filed detailed complaints with the police seeking criminal investigations, but so far the Nepali justice system has failed miserably to respond to those complaints, Human Rights Watch and Advocacy Forum said.

One year since the last update on these cases, not a single perpetrator has been brought to justice for grave human rights violations before a civilian court, Human Rights Watch and Advocacy Forum said. In 13 of 62 cases, the police still refuse to register the criminal complaints, sometimes in defiance of court orders. In cases where complaints have been registered, there is little sign of any serious attempts to investigate. Political parties put pressure on police not to investigate, police and prosecutors obstruct and delay justice, and institutions long opposed to accountability - most notably the Nepal Army - have dug in their heels and steadfastly refused to cooperate with police investigations.

What little progress has been made in those cases has been uneven and resulted from sustained pressure by local and international groups. In most cases, police have not yet even questioned suspects, instead pursuing "investigations" by sending letters requesting information to the Nepal Army or police. In several cases, the Supreme Court has ordered relevant authorities to investigate cases, but these orders have largely been ignored.

In some cases in which there has been political pressure or considerable public outcry, the authorities set up investigation committees to defuse the situation. The outcomes of these investigations are invariably flawed, and the authorities fail to act on any meaningful recommendations.

"Families of victims face obstructions at every turn in their fight for justice," said Mandira Sharma, executive director of Advocacy Forum. "The Nepal government's failure to respond means the promised benefits of peace continue to evade those who have suffered the most."

There has been some international pressure for justice for crimes committed during Nepal's conflict, but it has been limited. Australia and the US denied visas to a Maoist leader implicated in abuses. In one well-known case, the killing of 15-year-old Maina Sunuwar in army custody, Maj. Niranjan Basnet, who has been implicated in her murder, was sent home from peacekeeping duties in Chad at the request of the UN. Although police charged Major Basnet with her murder, they did not arrest him on his return. Instead, superficial military proceedings cleared him, ignoring evidence pending in a civilian court. Other persons against whom there is strong evidence of involvement in serious crimes continue to serve in the army; some have even been promoted.

Advocacy Forum has helped dozens of families file new cases since Waiting for Justice was released in October 2008. Of a further 30 criminal complaints involving 51 victims - most from the period of the conflict but several more recent ones as well - only 10 have been successfully registered. On December 10, 2009, Human Rights Day, families of victims and lawyers tried to file 28 complaints with police authorities in 12 districts. The police refused to register any of them, stating that they first had to consult with "higher authorities."

"Some countries have even denied visas to those accused of human rights violations, and the UN returned a major implicated in a killing, yet still the government fails to hold them accountable," Sharma said. "The government needs to restore faith in institutions like the police, who still refuse even to register criminal complaints, much less investigate them."

Given Nepal's ongoing failure to address past and ongoing abuses, the government should develop a comprehensive action plan, Human Rights Watch and Advocacy Forum said. The plan should include the immediate establishment of effective transitional justice mechanisms to deal with past crimes and a comprehensive reform of national laws and institutions to improve the government's response to crimes, both past and future.

In January 2011, Nepal will face the first review of its rights record as part of the Universal Periodic Review process at the Human Rights Council in Geneva. These discussions, as well as discussions in the UN Security Council in mid-January on the termination of the United Nations Mission in Nepal (UNMIN), should lay out steps to address impunity in Nepal, Human Rights Watch and Advocacy Forum said.

In the meantime, Nepal's major donors and neighboring countries should deny visas to persons against whom there is credible evidence of having committed serious crimes, Human Rights Watch and Advocacy Forum said. The UN Department of Peacekeeping Operations should also develop better vetting procedures to ensure that persons accused of grave human rights violations do not end up on peacekeeping missions.

"Nepal should seize the chance of the Universal Periodic Review to clean its record on impunity by executing a clear action plan," Pearson said. "With the UN's Nepal mission packing up soon, security will be at risk if the state continues to deny justice to victims of abuses."

http://www.hrw.org/en/news/2010/12/14/nepal-justice-denied-crimes-during-decade-conflict

Thousands of war crimes unpunished in Nepal: HRW

By Claire Cozens (AFP) – 1 day ago

KATHMANDU — Nepal's failure to prosecute thousands of wartime killings and other atrocities is contributing to a breakdown of law and order in parts of the country, Human Rights Watch said.

In a new report, the New York-based rights group on Wednesday urged Nepal's government to fulfil a commitment made in the 2006 peace agreement to bring those responsible for killings, torture and forced disappearances to justice.

More than 16,000 people died in the 10-year conflict between Maoist rebels and the state, which ended in 2006, and thousands more are still missing.

But no perpetrator of wartime atrocities has yet been successfully prosecuted by a civilian court, and HRW said the lack of accountability was creating a culture of impunity for rights abuses in Nepal.

"Inaction from the Nepal government enables people responsible for killings, torture, and disappearances to evade justice, sometimes in defiance of court orders," said deputy Asia director Elaine Pearson.

"If past abusers aren't held to account, this sends a clear signal to current perpetrators that they too will be immune from prosecution."

The report, "Indifference to Duty: Impunity for Crimes Committed in Nepal", was compiled with Nepalese rights group Advocacy Forum and documents 62 cases of killings, disappearances, and torture carried out between 2002 and 2006.

Most were committed by state security forces, but some were blamed on the Maoist People's Liberation Army, and the report said both forces were using their power to impede investigations.

"Police officers fail to seek court sanctions in part because they know the Nepal army and Maoists will not cooperate with investigations," it said.

One such case involved army major Niranjan Basnet, who was implicated in the murder of a 15-year-old girl tortured to death in army custody during the conflict.

Last year Basnet was sent home from peacekeeping duties in Chad at the request of the United Nations, but he remains free despite a district court issuing a warrant for his arrest on a murder charge.

In 2007 the Supreme Court ruled that he could be tried in a civilian court, but the army still refuses to hand him over to police, saying he has been cleared of any wrongdoing by a military tribunal.

"The Nepal army is not formally challenging this supreme court decision, but it is undermining the rule of law by not cooperating with the Kavre district court," the report said.

"The case remains stalled, and both police and the public prosecutor?s office, in the absence of political support, appear powerless to force the Nepal army to cooperate."

Advocacy Forum, which helps victims of rights abuses and their families to seek justice, said a lack of political will and prevailing political instability were to blame.

"Families of victims face obstructions at every turn in their fight for justice," said executive director Mandira Sharma.

"The Nepal government?s failure to respond means the promised benefits of peace continue to evade those who have suffered the most."

Copyright © 2010 AFP. All rights reserved.

http://www.google.com/hostednews/afp/article/ALeqM5i8hmQIczJ2NIWkW8RjJYGUT-CjyQ?docId=CNG.a6a63e1c21d8141da33e6d95ce511830.1f1

‘Impunity hobbling law, order situation’

POST REPORT

KATHMANDU, DEC 15 -
Rights groups have accused that the Nepal government’s failure to act on grave human rights violations during the armed conflict has contributed to a breakdown of law and order in the country.

“Nepal government has failed to act on thousands of extrajudicial killings, torture, and enforced disappearances during the decade-long armed conflict with Maoists that ended in 2006,” said Human Rights Watch, a New York-based rights group and a Nepali NGO, Advocacy Forum, in a new joint report released on Tuesday. “This lack of accountability is contributing to a breakdown of law and order in many parts of the country.”

The 41-page report, “Indifference to Duty: Impunity For Crimes Committed in Nepal” has also renewed calls for the government to investigate and prosecute those responsible for crimes committed during the conflict.

The report has identified lack of political will and consensus, political instability and a lack of progress in the peace process as major reasons for the government’s failure to make good its promises made in the 2006 peace agreement to prosecute these crimes.

“Inaction from the Nepal government enables people responsible for killings, torture, and disappearances to evade justice, sometimes in defiance of court orders,” said Elaine Pearson, deputy Asia director of Human Rights Watch. “If past abusers aren’t held to account, this sends a clear signal to current perpetrators that they, too, will be immune from prosecution.” The report provides an update on 62 cases of killings, disappearances, and torture between 2002 and 2006, most of them carried out by security forces. There are also a few cases involving the Maoists.

According to the report, one year since the last update on these cases, not a single perpetrator has been brought to justice for grave human rights violations in a civilian court.

“In 13 of the 62 cases, the police still refuse to register criminal complaints, sometimes in defiance of court orders”, the report said.

“In cases where complaints have been registered, there is little sign of serious attempts to investigate.”

The rights groups have blamed political parties and state security forces for the prevailing impunity.

“Political parties put pressure on police not to investigate, police and prosecutors obstruct and delay justice, and institutions long opposed to accountability—most notably the Nepal Army—have dug in their heels and steadfastly refused to cooperate with police investigations,” the report added.

The rights groups have jointly urged the government to develop a comprehensive action plan quickly to address the problem of impunity. Voicing urgency of such a plan, Mandira Sharma, executive director of AF said, “It is now time for political leaders to deliver; we already have piles of lip-service.”

Dismissing the accusations, the government said it is serious about providing justice to the victims. “The government is doing its best to deliver justice to the victims of the conflict,” said Sadhuram Sapkota, Joint Secretary at the Peace and Reconstruction Ministry. “However, key Bills like the Truth and Reconciliation Bill and a Bill related to forced disappearances are stuck in Parliament. In absence of these Bills, the government cannot move forward.”

“With the UN’s Nepal mission packing up soon, security will be at risk if the state continues to deny justice to victims of abuses,” Pearson said.

Posted on: 2010-12-16 08:52

http://www.ekantipur.com/the-kathmandu-post/2010/12/15/nation/impunity-hobbling-law-order-situation/216077/

Govt defends promotion of tainted Col Basnet

EKANTIPUR REPORT

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KATHMANDU, DEC 12 -

The government has defended its decision to extend the tenure of an army officer who was implicated in human rights violation.

Responding to an inquiry of the National Human Rights Commission (NHRC), the Defense Ministry has forwarded an explanation to the Prime Minister's Office maintaining that there should be no reason not to extend the term of Col. Raju Basnet as "he was found guilty of any crime".

On the allegation of human rights defenders that Basnet was responsible for disappearance of 49 persons from Bhairabnath Battalion during 2003-04, government officials argued that it was a matter that the proposed commissions on disappearances as well as truth and reconciliation should look into.

“The government listens to what the Supreme Court says, not what rights defenders say,” said a senior Defense Ministry official on condition of anonymity.

“In its ruling on the disappearance of Bhairabnath Battalion, the Supreme Court had directed the government to act on the allegations relating to crimes committed during the conflict period by formulating necessary laws which have not been formed yet," he said. "The government will take action if anyone is found guilty by the proposed mechanisms on transitional justice.”

The NHRC, however, is yet to receive a reply in response to its inquiry dispatched in October.

Posted on: 2010-12-13 12:39

http://www.ekantipur.com/2010/12/12/top-story/govt-defends-promotion-of-tainted-col-basnet/326427/