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Nepal: Updates from Advocacy Forum

December 16, 2011 Leave a comment

Updates from Advocacy Forum

14 December, 2011

1. Impunity reports released

Expressing their grave concerns over the endemic impunity of Nepal for crimes committed both in the past and the present, AF and two other human rights watchdogs of UK and USA (REDRESS and Human Rights Watch respectively) have jointly released their reports and have reiterated their calls for the government to bring the perpetrators of gross human rights violations to book.

A report on de jure impunity titled “Held to Account: Making the Law Work to Fight Impunity in Nepal” has observed 20 pieces of Nepali legislations currently in force that are not only inconsistent with international standards but also contribute to impunity for serious human rights violations. The report also makes the case for legislative review and reform. It has mainly observed the flaws and lacunae in legislations like the Army Act, the Police Act, the Local Administration Act, the Forest Act, the Armed Police force Act, the State Cases Act any many others under which authorities concerned are given widespread powers to arrest and detain people amounting to serious breach of human rights of individual(s) and also points to areas in which the same law can be used as a positive force in shaping institutions and practices to fight impunity. The report focuses in particular on impunity for arbitrary arrest and detention, enforced disappearances, extrajudicial executions, rape and torture- all of which were widely committed during the conflict and which continue to greater or lesser extent today.

Another report “Adding Insult to Injury: Continued Impunity for Wartime Abuses ” construes impunity in terms of what is seen in practice as denial of justice to victims of violations- a de facto impunity. It expressly sets forth six emblematic cases of killings, disappearances and torture of the conflict and post-conflict Nepal and shows how the investigation authorities have been derelict in their duties and failed to conduct investigations even in the face of Supreme Court orders, fuelling impunity in practical terms. Against such a backdrop, the report calls on the government to abide by its public commitments and international obligations. The successive government’s moves vis-à-vis case withdrawal, amnesties and pardons as well as decisions with regards to laurelling the alleged perpetrators implicated for grave violations to lucrative positions, have also come under a close scrutiny and scathing critique of the report. It has flatly denounced such acts, tagging them as stumbling blocks to those thousands of victims who are ever waiting for justice.

Click the link below to read the full version of the reports:

http://advocacyforum.org/downloads/pdf/publications/impunity/held-to-account-nov-30-2011-english-version.pdf

http://advocacyforum.org/downloads/pdf/publications/impunity/adding-insult-to-injury-nov-30-2011-english-version.pdf

2. Government Says No to OHCHR-N term Extension

December 8, 2011. The government on Wednesday asked the Office of the High Commission for Human Rights (OHCHR-Nepal) in Nepal to end its operations in Nepal, notwithstanding assurances from political parties and mounting pressure at national and international level for the latter’s year-long extension. The Ministry of Foreign Affairs (MoFA) has asked the OHCHR to wind up its activities within six months as agreed during the last term extension in June. OHCHR’s term has expired on Thursday.

The opposition parties have, however, strongly objected to the government’s move and have pronounced it as what they called “a unilateral decision”, citing former consent among the parties to offer a final extension to the UN human rights body. They demanded the government to scrap its decision lest they are compelled to take stern steps. Maoist Chairman Prachand and Premier Baburam Bhattarai had previously agreed on one final extension of the OHCHR. Contrary to this, the MoFA on Wednesday wrote two separate letters to the OHCHR headquarters in Geneva and its country office in Kathmandu stating that the government has not taken any new decision with regards to its term extension and that by default the June 1 decision was in force under which it has to prepare exit strategy and pack up within six months followed by a short “wrap up” time. In response to the UN Secretary General Ban Ki-moon’s plea to extend the term of the OHCHR-N, Prime Minister Bhattarai said that efforts are being carried out towards consolidating and strengthening local institutions including the National Human Rights Commission “(NHRC). Paradoxically, the government has asked the NHRC not to investigate into conflict-related cases.

The international community has also opposed the government’s decision. The Asian Human Rights Commission (AHRC) has reiterated the necessity of OHCHR’s presence in Nepal from the vantage point of continued challenges still seen in the human rights sector and the rule of law. In its annual report on the state of human rights protection in Nepal, AHCHR emphasizes that Nepal should abide by its commitments made during the Universal Period Review in January in which the government had committed to defending human rights and maintaining zero tolerance against impunity. Nepal’s peace process is still in transition and extreme political polarization and politicization of almost all aspects of social life, political instability, feeble institutions and escalating insecurity are seen as stumbling blocks in guaranteeing human rights and ensuring the rule of law. Still, lots of cases of grave violations are reported, with a few investigated and adjudicated, let alone thousands of cases of grave violations relating to the conflict period. Given such bleak situation, the exit of OHCHR-N would further jeopardize the peace process and the entire issue of accountability and justice.

3. HRO sensed a foul play in TRC and Disappearance Commission Bills

The Government’s initiatives to establish the much-hyped the Truth and Reconciliation (TRC) and the Disappearance Commissions have met with controversies and contentions, for human rights watchdogs and civil society have sensed a foul play the government is intending to act against the conflict victims. Their dream of justice is likely to shatter under the amnesty or similar provisions the government is proposing to incorporate in the bills. The government’s explicit focus on reconciliation and reparations have left many to suspect whether or not the commissions are mandated to hold individual accountable for the crimes committed in the past. A truth commission is valued as an important post-conflict mechanism. So the establishment of such a commission in Nepal sans judicial prosecution or individual accountability could preclude the objective of achieving a meaningful sense of justice by victims and by society. Reconciliation and reparations, as are the battle cry of the government in the bills, have an effect to supersede the part of prosecution.

The government is all set to repeal section 24 of the TRC draft bill under which the commission is mandated to recommend for prosecution and has focused on loose reconciliation and reparations provisions. This provision, if implemented, is sure to make the commission a paper tiger. If the government really wishes justice to happen to victims then the commission should be given wider mandates to recommend for prosecution.

Furthermore, the bills tabled before the legislative parliament have come with major changes in Section 25 which prevents any sort of amnesty and pardon for the crimes listed in the Section. Again, the government is intending to repeal crimes other than rape and disappearance from the list. Averting amnesty and pardon for rape and disappearance and not for other ones like torture, extrajudicial killings, abduction etc. manifests the government’s ploy to grant immunity to Maoists, as the security personnel (army, police and armed police force) are mostly implicated in the crimes of rape and enforced disappearance during the conflict. Amnesty provisions for gross human rights violations and violations of international humanitarian law, including extrajudicial execution and torture are inconsistent with Nepal’s obligation under international law.

The Transitional Justice Advocacy Group has vehemently denounced the government’s proposals for TRC bills and has reiterated that law or mechanism lacking the minimum international human rights standards aimed at establishing truth and delivering justice will not be acceptable. In its press release, the TJ Advocacy Group has set forth minimum standards that should be incorporated in the proposed draft bills.

Please click the link below for the press release:

http://www.advocacyforum.org/downloads/pdf/press-statement/truth-without-justice-will-not-be-acceptable.pdf

4. Interim Order: Not to pardon Balkrishna Dhungel, CA members convicted for murder

An Interim Order from the Supreme Court has stalled the controversial amnesty process for Maoist CA member Bal Krishna Dhungel, convicted by the Supreme Court for the murder of Ujjan Kumar Shrestha.  In what can be analyzed as the Maoists’ attempt to test the waters for the evasion of prosecution for crimes committed during the period of conflict, the Maoist-led government has put its credibility at stake by sheltering a convicted offender, much to the vexation of victims and anyone rooting for the rule of law. The Maoists seem to have feared that this case would precipitate the prosecution of similar other cases implicating their rank and file cadres in serious human rights abuses during the conflict.  Arguing that every case from the conflict period is a political crime, the Maoists remain effortful to let all their cadres accused of rights abuses go scot free.  It appears that the Maoists are testing the strength of the human rights movement in Nepal via this case. Balkrishna Dhungel is the only person convicted of an offense from the conflict period.  He was convicted for homicide and sentenced to life imprisonment and confiscation of property as he was found guilty of murdering Ujjan Kumar Shrestha on 24 June 1998 owing to personal matters. He served time in pretrial detention and also subsequent to the decision by the District Court of Okhaldhunga on 10 May 2004. The Appellate Court, Rajbiraj, later repealed the decision of the District Court Okhaldhunga and acquitted him four months before the Comprehensive Peace Agreement.  The victim’s family moved the Supreme Court against the decision of the Appellate Court. The Supreme Court on 3 January 2010 upheld the decision of the district court.  After the police failed to arrest and incarcerate Dhungel and the government attempted to seek amnesty for Dhungel, the victim’s family filed a writ requesting an interim order for the implementation of the SC verdict. The Court on 21 June 2011 clarified that there was no legal obstacle to incarcerate Dhungel.  

Visit links below for details:

http://www.advocacyforum.org/fir/2011/10/ujjan-kumar-shrestha.php

http://www.advocacyforum.org/news/2011/11/sc-stays-dhungel-clemency.phphttp://www.advocacyforum.org/news/2011/11/government-pressured-for-refraining-from-amnesty-to-dhungel.php

http://www.advocacyforum.org/news/2011/11/pardon-to-dhungel-contravenes-cpa.php