Judicial Body: Commission on Inquiry into Disappearances (Nepal)

Public Statement

A mere 24 months after their launch, the transitional justice (TJ) mechanisms of Nepal faced closing down. TRIAL International, REDRESS, HimRights, Advocacy Forum, JuRI-Nepal and the Discharged People’s Liberation Army Nepal welcome the government’s decision to extend their mandate by one year, but insist the process is accompanied by legislative changes and guarantees against political interference.

The story of Nepal’s TJ mechanisms has been one of delays, political meddling and faulty processes. Contrary to the spirit the Comprehensive Peace Accord, it took nine years for the Truth and Reconciliation Commission (TRC) and the the Commission of Investigation on Enforced Disappeared Persons (CIEDP) to see the day – yet they were only granted two years to fulfill their colossal mission.

Together, the TRC and the CIEDP have received over 61’000 complaints and cases of rights violations committed during the decade long armed conflict. But inherent flaws have seriously impeded their work from the outset: a lack of consultation with victims in the early stages; politicization of the process to appoint commissioners; loopholes in the existent legal framework; inadequate resources and little government support. Without surprise, neither the TRC nor the CIEDP are close to finishing their tasks.

In fact, they have arguably not even started their core functions: so far nothing more concrete than internal regulations have been adopted. No investigation has been carried out, no case has been recommended for prosecution, no report has been published and no reparative measures have been recommended.

Despite these shortcomings, the TRC and the CIEDP remain victims’ best chance to access truth and obtain reparations. The tens of thousands who have filed their complaint – in spite of significant hurdles – cannot simply be ignored.

A welcome but insufficient move

The government’s decision on 9 February to extend the mechanism’s mandate by 12 months is a positive one. But to be meaningful, that extension must go hand in hand with legal improvements: the criminalization and retroactive application of crimes of torture, enforced disappearance and use and recruitment of child soldiers, as well as the lifting of statutes of limitations for rape, murder and torture. Legal ambiguity on the relationship between the criminal justice system and the transitional justice bodies should also be clarified. These changes should be implemented in meaningful consultation with stakeholders, including victims’ communities and civil society.

The bodies will also have to clarify their internal policies and processes: under which criteria will cases be recommended for prosecution? Which safeguards are in place to prevent political interference? How will reparation packages operate and what will be their scope? How will victims and witnesses be protected from potential reprisals?

The extension of the mechanism’s mandate offers victims a short respite. For their sake, all parties must now come together and build at last a credible transitional justice system.

TRIAL International
REDRESS
HimRights
Advocacy Forum
JuRI-Nepal (Justice and Rights Institute-Nepal)
Discharged People’s Liberation Army Nepal

Tej Bahadur Bhandari was forcibly disappeared in 2001. His son, Ram Bhandari, has never given up on justice and is now a prominent human rights defender in Nepal. This is his story.

“My father was forcibly disappeared in 2001, when I was 23 years old. I was at university when I received the phone call from my mother: she was panicked, she said my father had been taken away by the police. I was immediately filled with dread: some of my university friends had been imprisoned, disappeared or tortured by the authorities. I knew what they were capable of.

I rushed back home the next day to be with my mother. Together, we went to the police station. They denied they had taken my father, but what we heard from witnesses was very different: my father was beaten unconscious in broad daylight, in the middle of the street. He was then blindfolded, handtied and taken away by the police. He has never been seen since.”

 

A shattered family

“Because I kept going back to the authorities, I started receiving threats. I was even imprisoned for a few days. My mother was worried for our safety, so we decided to change city. We left our family business behind us, and all our relatives. In the new city, we did not know anyone. My mother could not work, she was sick with worry and she had to be hospitalized.

Family bonds are very important in Nepal. The place of a woman in society depends on her husband. He is also the breadwinner, when she stays at home and looks after the children. So when my father was taken away, my mother was unable to fend for herself, like so many other wives of disappeared men.

These women cannot even receive widowhood funds, because they cannot produce a body or a date of death. They are in an ambiguous position that their community do not understand, so they are often rejected and stigmatized. The children suffer too: for lack of funds they cannot be schooled or nursed properly. When a man is forcibly disappeared, his whole family faces a lifetime of social isolation and psychological suffering.”

 

Seeking justice above State level

“My mother and I were determined to know what had happened to my father. We went to the police, to court, to politicians, we wrote letters, we gathered evidence, all for naught. I thought we had reached our limits when I heard of TRIAL International for the first time. They told me that proceedings did not stop at the domestic level, that we could take the case to the United Nations. We were so hopeful when we learnt that we could still fight for justice, even if Nepali authorities were unwilling to collaborate!

In 2014, the United Nations Human Rights Committee took our side and requested Nepal to serve justice. It was great to finally receive acknowledgment that we have suffered, that what had happened was unlawful and wrong.

Unfortunately, since the UN’s decision, Nepali authorities have done nothing. We still do not know why my father was taken away, what happened to him, and whether he is still alive.”

 

From individual grief to collective action

“I have now dedicated my life to defending victims of enforced disappearances. With the National Network of Families of the Disappeared, we inform people of their rights. We explain the proceedings, we help them gather compelling evidence, and we let them know that they can go before the United Nations if they are dissatisfied with Nepali justice.

Too many of these families have no idea of their rights. They are often from the countryside and live simple lives. A lot of them are scared or think that claiming justice will make no difference. They do not always report enforced disappearances, which means that a lot of these crimes still go unrecorded and unnoticed. We are trying to change that. We encourage people to come forward, because with our collective action we can change things and finally obtain justice.

We also raise awareness on what enforced disappearance is. We explain the psychological torture victims go through, and hopefully in the future there will be less social stigma attached to families of the disappeared. I never want to see another woman shunned like my mother was.”

 

Read more about Tej Bahadur Bhandari’s case

Visit our campaign website for real rights in Nepal

 

An op-ed by Helena Rodríguez-Bronchú Carceller

“It is forbidden to kill; therefore all murderers are punished unless they kill in large numbers and to the sound of trumpets.” – Voltaire

As in any other civil war, people murdered, tortured, raped and made their fellow countrymen disappear, during the decade-long armed conflict between the State security forces and the Maoist insurgents (1996-2006) in Nepal.

Ten years of fragile peace and endless discussions followed, about how the needed transitional justice process should look like. Still today, disagreements between – and among – victims, political parties, the international community and civil society outnumber the common settled points.

How to tackle rampant impunity is one of those disagreements. While most victims’ movements and international actors call for more accountability, the political parties –some of which were involved in the conflict – are seeking ways to avoid it.

Neither the Supreme Court overruling the amnesty provision from the 2014 TRC Act nor the United Nations making clear that the prohibition of amnesties was a red line for their support of the process were enough, apparently: the amnesty debate is still today very much alive in the country, and regular declarations from political actors on the matter fuels it even more.

Equating impunity – a situation where criminals are generally not held accountable or punished – and amnesty – a legal tool to exempt criminal accountability – is a dangerous over-simplification. Impunity is indeed fostered by amnesty rules, but it can also be promoted through many other means. Nepali political parties know it and boast of their commitment not to seek amnesty, leaving aside debates over others of their ploys to avoid accountability.

Hindering changes in legislation is the first one. Torture, enforced disappearance and use of child soldiers will remain unpunished as long as they are not reflected as a criminal offence in national legislation, and as long as the possibility of applying these rules retroactively is not in place. Similarly, legal provisions are needed to overcome the applicable statute of limitations: the well-known 35-day limitation for registering rape complaints, but also the 20-year limitation for cases of murder, which is starting to bar early cases. Furthermore, in order to reflect the magnitude of the crimes at stake, criminal definitions of “war crimes” and “crimes against humanity” need to be incorporated into Nepali legislation.

A flawed transitional justice process also contributes to nurture impunity. Concerns over the two transitional justice Commissions created in 2015 are too numerous to be listed here. Numerous incidents were reported during the period to register complaints: security threats; interference from political parties and security forces; accessibility challenges for inhabitants of remote areas, people with disabilities, the elderly and non- Nepali speakers; lack of awareness and understanding about the process or the Commissions’ mandate; and no confidential reporting setting… among many others.

Leaving aside the ensuing victims’ distrust, the fact is that some victims simply could not register their complaint. Others were unable to provide an appropriate account of their cases, preparing the ground for the Commission’s withdrawal of cases “with insufficient evidence” and barring non-registered cases from any legal remedy in the future. Moreover, the Commission has only six months of mandate left. Looking at its scarce resources and working pace, it is difficult to fathom how the Commission will give a satisfactory response to the 60’000 victims who have registered their complaints. Attempting to mainstream all conflict-era cases to two dysfunctional bodies can also be understood as a strategy to foster impunity.

A Special Court is still to be created, but what would its role and regulations mechanisms concretely be? Would rules of command responsibility be applied? Would military jurisdictions play any role in this process? Key questions for the promotion of accountability that remain, not only unanswered but too little discussed by main stakeholders. The path of transitional justice in Nepal is still a long and rocky road.

Helena Rodriguez-Bronchú Carceller, Head of Nepal Programme
@Helena_RBC

 

Story

In October 2010, TRIAL submitted a complaint to the United Nations Human Rights Committee on behalf of Chakra Bahadur Katwal, victim of enforced disappearance in 2001.

Katwal was the headmaster of Shree Kuibhir Secondary School (Kuibhirtar, Okhalkdhunga District), where he also taught science. He was married and the father of four children. On 9 December 2001, Chakra Katwal received a letter at his school asking him to go to the district’s education office in the Okhaldhunga village in order to respond to an inquiry. When Katwal arrived at Okhaldhunga a few days later, an employee of the education office told him that he had to go to the district police office in order to answer some questions. From there, Katwal was allegedly forced into one of the army buildings. The following day, witnesses saw soldiers carrying him by his arms and legs. Chakra Katwal seemed unconscious, his clothes were covered in blood and his body showed signs of beating. The victim was transported into the police buildings and has never been seen since.

Since Chakra Katwal’s disappearance, his spouse has not ceased to seek the truth about his fate and whereabouts. Not only have her efforts proved to be in vain, but she has also suffered from harassment by the Nepalese army. She was also abused during her arrest and detention in 2005, which aimed at silencing her on the issue of the army’s involvement in the enforced disappearance of her husband. Her daughter equally suffered from severe physical and psychological abuse during the six weeks in which she was arbitrarily detained by the army. She had to be hospitalized and is still suffering from significant long-term consequences despite medical treatment.

 

 

Case

In July 2006, Chakra Katwal’s relatives petitioned Nepal’s Supreme Court. On 1st July 2007, the Supreme Court confirmed that Katwal had been arbitrarily arrested and detained by the Nepalese army and police and that the torture he was subjected to had led to his death. The Supreme Court ordered that the people involved in this case and who were cited in the inquiry report be prosecuted. To date, however, the Nepalese authorities have not followed-up on the decision and impunity continues to reign. Katwal’s family still does not know what has happened to his body.

On 27 October 2010, TRIAL therefore submitted a complaint to the United Nations Human Rights Committee asking it to :

  • Recognize that Nepal violated numerous articles of the International Covenant on Civil and Political Rights subsequently to Chakra Katwal’s enforced disappearance;
  • Require an independent inquiry in order to precisely locate the place of his remains and to exhume them in order to allow the family to organize a funeral according to their traditions;
  • Ask Nepal to prosecute the people responsible for Katwal’s disappearance;
  • Declare that Nepal also violated the Covenant with regard to the suffering caused by Katwal’s spouse and family owing to his disappearance;
  • Require that Nepal offer integral, prompt, just and adequate reparation for the suffering and the loss due to Katwal’s disappearance and to pay for the exhumation and funeral costs;
  • Ask Nepal to provide the necessary guarantees for the non-repetition of similar acts to those suffered by Katwal and for his family’s safety during the course of the procedure.

 

Decision

In 2012, the UN Human Rights Committee declared the complaint admissible, holding that Chakra Katwal’s wife had used all available remedies without obtaining justice and redress and clarifying that she did not have to wait until domestic transitional justice mechanisms were in place before referring her case to the Committee. Transitional justice mechanisms, such as truth commissions, are important tools for the establishment of the truth, but cannot replace criminal prosecution.

On 1 April 2015 the Human Rights Committee issued a decision on the case, finding Nepal internationally responsible for the violation of several provisions of the International Covenant on Civil and Political Rights, including the rights to life, juridical personality, and personal liberty and the prohibition of torture. In particular, the Committee declared that the State is responsible for the arbitrary deprivation of liberty, ill-treatment, and enforced disappearance of Chakra Bahadur Katwal, for not having investigated such violations and not having duly prosecuted and sanctioned those responsible, and also for having subjected his wife to inhumane and degrading treatment because it has not unveiled the truth about Katwal’s fate and whereabouts.

The Committee requested Nepal to:

Investigate and locate the remains of Katwal, and return them to his family;

Identify, prosecute and sanction those responsible;

Ensure that the Katwal’s wife receives effective reparation, including adequate compensation and satisfaction for the harm suffered;

Prevent similar violations in the future, making sure that torture and enforced disappearance are duly codified under domestic criminal legislation.

Nepal has now 180 days to inform the Committee about the measures taken to implement this decision.

 

The Case

In September 2011, TRIAL submitted an individual communication to the United Nations Human Rights Committee regarding the arbitrary deprivation of liberty, subsequent enforced disappearance, torture and alleged arbitrary execution of Mr. Gyanendra Tripathi in September 2003.

Mr. Tripathi was a Central Committee member of the All Nepal National Independent Student Union-(Revolutionary) (ANNISU-R), the student wing of the Communist Party of Nepal – Maoist (CPN-M). The ANNISU-R had been declared an illegal organisation by the Government in 2002. Following the breakdown of the second ceasefire in August 2003, the Royal Nepalese Army (RNA) began to systematically arrest and detain known CPN-M/ ANNISU-R sympathisers in the Kathmandu Valley.

On 2 August 2003, Mr. Tripathi was arrested for the first time for 34 days by members of the RNA and the Police before being released without charge. He spent several days incommunicado and was blindfolded and beaten severely with metal pipes for the duration of his detention.

Following his release, fearing for his own safety and that of his family, Mr. Tripathi left the accommodation he was sharing with his wife and baby and went underground, however maintaining daily contact with his family. On 26 September 2003 at 11:00 a.m., Mr. Tripathi left his lodgings to meet another alleged CPN-M member and never returned. He was seen for the last time by former prisoner, Mr. Krishna K.C. in poor physical conditions and with visible signs of torture at the Maharajgunj barracks run by the RNA. According to a submission to the OHCHR by Mr. K.C., on 20 December 2003, Mr. Tripathi was taken from his cell by State agents and arbitrarily executed.

Between 2003 and 2004 the Maharajgunj became notorious. In May 2006, the UN Office of the High Commissioner for Human Rights (OHCHR) published a report after an investigation of the Maharajgunj RNA barracks in Kathmandu. These barracks played the primary role in the arrest, illegal detention, torture, extrajudicial killing and disappearance of hundreds of people suspected of affiliation with the Maoists.

In spite of scant information on the moment of the arrest, detention and enforced disappearance of Mr. Tripathi, numerous and concurrent elements allow concluding that he was indeed abducted by State agents, subsequently detained at the Maharajgunj, RNA barracks and arbitrarily executed.

On 28 September 2003, Mrs. Tripathi reported her husband’s arrest to the District Police Office in Hanumandhoka, Kathmandu. She was told by the officer in charge at that moment that such incidents were not the responsibility of the police and was sent away. Between 2003 and 2006, Mrs. Tripathi went to several RNA barracks in search of her husband but the officers would simply ignore her.

On 29 September and 1 October 2003, Mrs. Tripathi and her legal counsel filed two habeas corpus writs on behalf of Mr. Tripathi before the Supreme Court. However, all respondents denied their involvement in Mr. Tripathi’s arrest and denied having him in their custody. The Supreme Court quashed the writs arguing that the petitioners had failed to provide enough information regarding the condition of the detained or in whose custody he was.

In September 2011, TRIAL submitted an individual communication to the United Nations Human Rights Committee asking it to recognise that Nepal violated numerous articles of the International Covenant on Civil and Political Rights due to Mr. Tripathi’s arbitrary deprivation of liberty, enforced disappearance, torture, and alleged arbitrary execution, and to the severe mental anguish brought about to his family. TRIAL also asked the Committee to request Nepal to inter alia: disclose the fate and whereabouts of Mr. Tripathi and in the event of his death, to locate, exhume, identify, respect and return to his family his mortal remains;

  • bring Mr. Tripathi’s perpetrators before the competent ordinary authorities for criminal prosecution, judgment and sanction;
  • ensure that Mrs. Tripathi obtains integral reparation and prompt, fair and adequate compensation covering both material and moral damages.

 

General context

In February 1996 the CPN-M overtly declared war against the official governmental authorities of Nepal, which at the time was ruled in the form of a constitutional monarchy.

The conflict rapidly spread all over the country. In 2001, when violence truly escalated into a civil war, a state of emergency was declared. The state of emergency allowed the State to increase its repression against persons who were suspected of helping the Maoist insurgents and to derogate from fundamental rights and liberties. The recourse to enforced disappearances, torture, summary executions and arbitrary detentions by State agents and Maoists was generalized during this period. Arbitrary detention and torture were used years after the end of the state of emergency against all those suspected of affiliation with the Maoists. It is within this context that Mr. Tripathi, a high-ranking member of the CPN-M was arbitrarily arrested, forcibly disappeared, tortured and allegedly arbitrarily executed.

 

The Decision

On 28 October 2014, the UN Human Rights Committee adopted its decision on the case of Mr. Gyanendra Tripathi. The Committee found Nepal responsible for violating several provisions of the International Covenant on Civil and Political Rights, including the right to life, to personal liberty, to recognition before the law and the prohibition of torture. Nepal was condemned for failing to conduct an investigation into the crimes in order to identify those responsible and to prosecute, judge and sanction them. The State was also held responsible for failing to locate, exhume and identify the remains of Mr. Tripathi. Moreover, the Committee declared that Nepal subjected the wife and the daughter of Mr. Tripathi to inhumane treatment by showing indifference to their suffering.

The Committee requested Nepal to:

  • Conduct an investigation into the enforced disappearance of Mr. Gyanendra Tripathi and prosecute, try and punish those responsible
  • Release Mr. Tripathi in case he is still alive and, in the event of his death, hand over his remains to his family
  • Ensure that the daughter and wife of the victim receive adequate compensation, psychological rehabilitation and medical treatment
  • Adopt appropriate measures of reparation, including restoration of the dignity and reputation of the victim and his relatives
  • Amend the existing legal framework to codify the crimes of enforced disappearance and torture
  • Translate into Nepalese and publish the Committee’s decision.

Nepal now has 180 days to inform the Committee of the measures taken to implement the decision.

 

The case

In January 2012, TRIAL submitted an individual communication to the United Nations Human Rights Committee regarding the enforced disappearance of Mr. Rajendra Prasad Dhakal in January 1999. In this case TRIAL also represents the victim’s wife, Mrs. Bimala Dhakal, the victim’s brother, Mr. Rabindra Dhakal and the victim’s elder daughter, Ms. Manjima Dhakal.

Mr. Rajendra Dhakal is a lawyer and human rights defender. He used to be the Chairman of the Gorkha district branch of the Forum for the Protection of Human Rights (FOPHUR), a national human rights organization.

After being illegally arrested in March 1996 and ill-treated by the Nepalese police, on 8 January 1999 Mr. Rajendra Dhakal was again arbitrarily deprived of his liberty by police forces and forcibly disappeared. On that day Mr. Rajendra Dhakal was attending a closed-door political awareness programme at Jamdi village, in Tanahun District, when he was approached by a patrolling police team and arrested. At the same time, two primary school teachers were also arrested and the three of them were taken to the Belchautara Area Police Office. On arrival to the Area Police Office, the two teachers were separated from Mr. Rajendra Dhakal, who was put in solitary confinement. Mr. Rajendra Dhakal was seen for the last time by the two teachers, who were both eventually released two days later. The whereabouts of Mr. Rajendra Dhakal remain unknown since.

His relatives took numerous steps in order to find him. In the days following the arrest, Mr. Rabindra Dhakal searched for his brother at the District Police Office in Tanahun, District Police Office in Newalparasi, District Police Office in Pokhara and the Armed Police Battalion in Pokhara. In each of these places, the officers in charge denied having arrested his brother. At the District Police Office in Gorkha however, the officers stated that Mr. Rajendra Dhakal was under their custody but that Mr. Rabindra Dhakal could not visit him.

On 21 January 1999 Mr. Rabindra Dhakal lodged a writ of habeas corpus on behalf of Mr. Rajendra Dhakal before the Nepalese Supreme Court. The proceedings before the Supreme Court did not reveal any additional information on Mr. Rajendra Dhakal’s fate. The affidavits of the two teachers who were arrested and held together with Mr. Rajendra Dhakal in January 1999, were presented at the request of the court in December 1999, confirming that the arrest and detention of Mr. Rajendra Dhakal had indeed taken place on 8 January 1999.

On 28 August 2006 the Supreme Court decided to establish a Detainee Investigation Task Force (DITF) to inquire into various cases of enforced disappearances, including Mr. Rajendra Dhakal’s. The DITF report conclusively stated that “Mr. Rajendra Dhakal was arrested on 8 January 1999 by a police team comprised of 10 to 12 policemen under the command of erstwhile Police Inspector K.B.R. (name omitted) of Area Police Office, Bel Chautara, Tanahun” and “he was disappeared on the same date”.

On 1 June 2007 the Supreme Court finally ruled on the habeas corpus petition of 83 disappeared people, among which Mr. Rajendra Dhakal. The Court endorsed the judicial findings of the DITF about the conditions of arrest and the status of Mr. Rajendra Dhakal as a disappeared person and ordered the Government to enact domestic legislative measures defining and criminalizing enforced disappearances, prosecute the officials found responsible for these crimes and provide a substantial compensation to victims and their families.

Apart from a minimal interim compensation of 150,000 NRs received (approximately 1.500 euros) on 3 August 2007 by Mr. Rajendra Dhakal’s wife, the final decision by the Supreme Court has fallen on deaf ears as it has not been acted upon or implemented to date by the national authorities in any meaningful way.

In January 2012, TRIAL submitted an individual communication to the United Nations Human Rights Committee asking it

  • to recognize that Nepal violated numerous articles of the International Covenant on Civil and Political Rights due to Mr. Dhakal’s enforced disappearance, the ongoing failure of Nepalese authorities to conduct an effective investigation and prosecution of the crime and the ensuing suffering endured by Mr. Dhakal’s spouse, brother and elder daughter owing to the disappearance of their loved one;
  • to require a thorough and independent investigation into the arbitrary deprivation of liberty and enforced disappearance of Mr. Rajendra Dhakal and in the event of his death, the localization, exhumation, identification and restitution of his mortal remains to the family;
  • to request Nepal to prosecute the people responsible for Mr. Dhakal’s disappearance;
  • to require Nepal to immediately suspend from office all army officials against whom there is prima facie evidence that they were involved in the enforced disappearance of Mr. Rajendra Dhakal pending the outcome of investigations against them;
  • to request Nepal to ensure that the authors obtain prompt, fair and adequate compensation covering both material and moral damages and that measures of reparation adopted in their favor incorporate measures aiming at providing restitution, rehabilitation, satisfaction (including restoration of dignity and reputation) and guarantees of non-repetition.

 

General context

The enforced disappearance of Mr. Dhakal is part of the context of internal armed conflict which Nepal has experienced between February 1996, when the Communist Party of Nepal (Maoist) overtly declared war against the official governmental authorities of Nepal, and November 2006, when the different parties to the conflict signed the Comprehensive Peace Agreement sanctioning a formal end to hostilities.

The decade long armed conflict from 1996-2006 caused not only severe economic and social damages in Nepal but also put the country’s name in the list of the top human rights violators worldwide. The recourse to enforced disappearances, torture, summary executions and arbitrary detentions by State agents and Maoists was generalized during this period. Reportedly thousands of enforced disappearances occurred through the practice of unofficial detention by the security forces.

 

The Decision

On 17 March 2017 the UN Human Rights Committee issued a decision on the case, finding Nepal responsible for the violation of several provisions of the International Covenant on Civil and Political Rights, including the right to life, the prohibition of torture, the right to personal liberty and the right to recognition as a person before the law in respect of Mr. Dhakal. The Committee also found that the wife and the daughter of Mr. Rajendra Dhakal are victims of inhuman and degrading treatment because of the lack of information on the fate and whereabouts of their loved one and the ensuing anguish and suffering.

The Committee requested Nepal to:

  • Conduct a thorough investigation into the disappearance of Mr. Dhakal and, in the case of his death, locate his remains and hand them over to his family;
  • Prosecute, try and punish those responsible for the crimes committed against Mr. Dhakal;
  • Provide the wife and the daughter of Mr. Dhakal with adequate compensation and measures of satisfaction;
  • Provide the wife and the daughter of Mr. Dhakal with the necessary psychological rehabilitation and medical care;
  • Prevent similar violations in the future and ensure that domestic legislation allows for the criminal prosecution of those responsible for torture and enforced disappearance; and any enforced disappearance gives rise to a prompt and thorough investigation.

Nepal has now 180 days to inform the Committee about the measures taken to implement this decision.

 

The case

In January 2012, TRIAL submitted an individual communication to the United Nations Human Rights Committee regarding the enforced disappearance of Mr. Padman Narayan Nakarmi in September 2003. In this case TRIAL also represents the victim’s wife, Mrs. Ram Maya Nakarmi and the interests of their daughter, Ms. Luman Nakarmi, who was three years old at the time of Mr. Nakarmi’s enforced disappearance.

At the time of his arrest and subsequent enforced disappearance, Mr. Nakarmi worked as an iron monger in a small iron grill enterprise in Bungmati, Lalitpur. He had never been arrested previously. On 23 September 2003, Mr. Nakarmi was arrested and taken from his home by approximately half a dozen plain-clothed security personnel who identified themselves by way of their official identity cards as members of the Royal Nepal Army deployed from Bhairab Nath Barracks, Kathmandu. Several people witnessed his arrest, namely his wife, his mother and his brother. As stated in the First Information Report (FIR) submitted to the Kathmandu District Police Office in June 2006, the security personnel informed Mrs. Ram Maya Nakarmi that her husband had been arrested and taken away for interrogation, albeit without giving any further details. This was the last time that Mrs. Nakarmi had any contact with her husband.

His relatives took numerous steps in order to find him. Mrs. Ram Maya Nakarmi visited Bhairab Nath Barracks in Maharajgunj, Lagankhel Barracks in Lalitpur, the Nepal Police Headquarters in Naxal, Kathmandu and the District Police Office (DPO) in Hannumandhoka, Kathmandu on a regular basis for two years following the arbitrary arrest of Mr. Padam Narayan Nakarmi but she was never able to receive further information.

A few days after Mr. Nakarmi’s arrest, Mrs. Nakarmi also attempted to register a First Information Report (FIR) with the DPO in Patan. The DPO refused to register the FIR on the grounds that it was impossible in the current case as enforced disappearance was not a listed crime under national legislation. It was only three years later, in 2006, that Mrs. Nakarmi was allowed to file a FIR with the DPO Hanumandhoka, Kathmandu. But no action whatsoever was undertaken by the authorities on its basis.

In response to the lack of investigation and prosecution, on 4 January 2007, Mrs. Nakarmi filed a writ of mandamus before the Supreme Court of Nepal against different offices of the government and several specific individuals from the then RNA.

In the same year, on 1 June 2007, the Supreme Court ruled on the habeas corpus petition of 83 disappeared persons. While a habeas corpus petition was never filed on behalf of Mr. Nakarmi, his death due to torture under RNA custody in Bhairav Nath Barracks is mentioned in one of the 83 writs examined by the court. The same Supreme Court decision ordered the Government to enact domestic legislative measures defining and criminalising enforced disappearances, prosecute the officials found responsible for these crimes and provides a substantial compensation to victims and their families.

Apart from a minimal interim compensation of 100,000 NRs (approximately 1.000 euros) received in June 2009 by Mrs. Ram Maya Nakamri, the above decision by the Supreme Court has fallen on deaf ears as it has not been acted upon or implemented in any meaningful way to date by the national authorities.

On 26 August 2010, the Supreme Court of Nepal quashed the mandamus writ filed by Mrs. Nakarmi in January 2007. The rationale given by the court was that the applicant had to wait until the government formed a Truth and Reconciliation Commission (TRC) to address the problem of disappearances in Nepal. But in spite of various public commitments by the newly-formed (in April 2008) Constituent Assembly, the continued lack of political will by the main Nepalese parties has meant the impossibility of setting up any sort of accountability system.

In January 2012, TRIAL submitted an individual communication to the United Nations Human Rights Committee asking it

  • to recognize that Nepal violated numerous articles of the International Covenant on Civil and Political Rights due to Mr. Nakarmi’s enforced disappearance, the ongoing failure of Nepalese authorities to conduct an effective investigation and prosecution of the crime and the ensuing suffering endured by Mr. Nakarmi’s spouse and daughter owing to the disappearance of their loved one;
  • to require a thorough and independent investigation into the arbitrary deprivation of liberty and enforced disappearance of Mr. Padam Narayan Nakarmi and, in the event of his death, the localization, exhumation, identification and restitution of his mortal remains to the family;
  • to request Nepal to prosecute the people responsible for Mr. Nakarmi’s disappearance;
  • to require Nepal to immediately suspend from office all army officials against whom there is prima facie evidence that they were involved in the enforced disappearance of Mr. Padam Narayan Nakarmi pending the outcome of investigations against them;
  • to request Nepal to ensure that the author obtain prompt, fair and adequate compensation covering both material and moral damages and that measures of reparation adopted in their favor incorporate measures aiming at providing restitution, rehabilitation, satisfaction (including restoration of dignity and reputation) and guarantees of non-repetition.

 

General context

The enforced disappearance of Mr. Padam Narayan Nakarmi is part of the context of internal armed conflict which Nepal has experienced between February 1996, when the Communist Party of Nepal (Maoist) overtly declared war against the official governmental authorities of Nepal, and November 2006, when the different parties to the conflict signed the Comprehensive Peace Agreement sanctioning a formal end to hostilities.

The conflict rapidly spread all over the country. In 2001, when violence truly escalated into a civil war, a state of emergency was declared.  The conflict caused not only severe economic and social damages in Nepal but also put the country’s name in the list of the top human rights violators worldwide. The recourse to enforced disappearances, torture, summary executions and arbitrary detentions by State agents and Maoists was generalized during this period. Reportedly thousands of enforced disappearances occurred through the practice of unofficial detention by the security forces.

 

The decision

On 10 March 2017 the UN Human Rights Committee issued a decision on the case, finding Nepal responsible for the violation of several provisions of the International Covenant on Civil and Political Rights, including the right to life, the prohibition of torture, the right to personal liberty and the right to recognition as a person before the law in respect of Mr. Nakarmi. The Committee also found the that wife and the minor daughter of Mr. Nayram Nakarmi are victims of inhuman and degrading treatment because of the lack of information on the fate and whereabouts of their loved one and the ensuing anguish and suffering.

The Committee requested Nepal to:

  • Conduct a thorough investigation into the disappearance of Mr. Nakarmi and, in the case of his death, locate his remains and hand them over to his family;
  • Prosecute, try and punish those responsible for the crimes committed against Mr. Nakarmi;
  • Provide the wife and the minor daughter of Mr. Nakarmi with adequate compensation and measures of satisfaction;
  • Provide the wife and the minor daughter of Mr. Nakarmi with the necessary psychological rehabilitation and medical care;
  • Prevent similar violations in the future and ensure that domestic legislation allows for the criminal prosecution of those responsible for torture and enforced disappearance; and any enforced disappearance gives rise to a prompt and thorough investigation.

Nepal has now 180 days to inform the Committee about the measures taken to implement this decision.

 

The Case

In May 2012, TRIAL submitted an individual communication to the United Nations Human Rights Committee regarding the enforced disappearance of Danda Pani Neupane in May 1999. In this communication, TRIAL also represents the victim’s wife, Mrs. Shanta Neupane and his daughter, Ms. Nisha Neupane.

Mr. Neupane had been an active member of the then Communist Party of Nepal – Maoist (UCPN-M) since the party’s inception in 1985. He was imprisoned three times in the 1970’s during the Panchayat period (from 1962 to 1990) for involvement in political activities, which were illegal at the time. He was arrested first in 1972 for five days, in 1973 for 10 days and finally in 1975 for eight months. At the time of his arbitrary arrest and subsequent disappearance, Mr. Danda Pani Neupane was a Central Committe member of the CPN-M and head of the party’s publication department. As a high-level member of the CPN-M, Mr. Neupane went underground following the onset of the “people’s war” in 1996 in order to avoid arrest by the police.

Two eye-witnesses reported that Mr. Neupane was stopped by four uniformed policemen in Sundhara, near Tebahal, Kathmandu at approximately 17:30 hrs on 21 May 1999. He was reportedly put into a van with five or six other uniformed policemen before being driven to an unknown destination. In June 1999, a policeman from the same Village Development Committee (VDC) as Mr. Neupane who was temporarily stationed at the Nepal Police training centre in Maharajgunj, Kathmandu, reportedly witnessed Mr. Neupane being held in police custody inside the training centre for a period of approximately one month. This was the last time that Mr. Neupane was reportedly seen, alive or dead. Mrs. Neupane has had no contact with her husband for thirteen years.

The family of Mr. Danda Pani Neupane took a number of steps to try and locate him. Mrs. Neupane visited the Kathmandu District Police Office (DPO), Hanumandhoka on 25 May 1999 in an attempt to locate her husband, although police personnel at the DPO refused to hand over clean clothes and medicine to Mr. Neupane on the ground that he had never been arrested nor held in police custody there. Between 26 and 30 May 1999, Mrs. Neupane visited the three main jails in Kathmandu: the Central Jail, Nakhu Jail and Charkhal Jail, but she was similarly told by the prison authorities that Mr. Neupane had never been arrested or detained.

Having failed to locate her husband, Mrs. Neupane filed a habeas corpus writ before the Supreme Court on 26 May 1999. The Supreme Court quashed the habeas corpus writ on 12 July 1999, reasoning that as the defendants (the Home Ministry; the Nepal Police headquarters, Naxal, Kathmandu; the District Administration Office, Kathmandu; and the District Police Office, Hannumandhoka, Kathmandu) denied holding Mr. Neupane, his status could not be determined, thereby rendering the habeas corpus writ inapplicable. Mrs. Neupane filed a second habeas corpus writ before the Supreme Court on 17 August 1999. The writ was quashed by the Supreme Court on 5 July 2000 with a similar reasoning.

The family of Mr. Neupane also took a number of non-legal measures in an attempt to uncover information about his fate and whereabouts. On 14 June 1999, the family of Mr. Neupane and six other victims of enforced disappeared held a press conference and issued an appeal requesting the general public and government authorities to come forward if they had any information regarding Mr. Neupane. On 20 June 1999, the family of Mr. Neupane submitted a written appeal to the Parliament requesting that the whereabouts of Mr. Neupane and fifteen other disappeared individuals be made public and that they be immediately released from police custody. Mrs. Neupane also contacted Amnesty International (AI) in July 1999 and informed the organisation about her husband’s disappearance. AI issued two urgent action appeals in response to Mrs. Neupane’s request for assistance: the first on 13 August 1999 and the second in February 2000. On 20 September 1999, the Families of Victims of State Disappearance Association (FVSDA), co-founded by Mrs. Neupane, handed over a written appeal to the Prime Minister. On the same date, the FVSDA released a press statement requesting again that Mr. Neupane and other disappeared individuals’ whereabouts be made public and that they immediately be released from police custody.

Apart from minimal interim compensation of NRs. 100,000 (890 Euros) received in 2008, the family of Mr. Neupane has received neither truth nor justice nor adequate reparations from the Government of Nepal for the tragic loss of their loved one.

In May 2012, TRIAL submitted an individual communication to the United Nations Human Rights Committee requesting it to:

  • recognise that the State of Nepal has violated numerous articles of theInternational Covenant on Civil and Political Rights due to Mr. Neupane’s enforced disappearance, the ongoing failure of Nepalese authorities to conduct an effective investigation and prosecution of the crime and the ensuing suffering endured by Mr. Neupane’s spouse and daughter owing to the disappearance of their loved one;
  • request that the State of Nepal initiate a thorough and independent investigation into the arbitrary deprivation of liberty and enforced disappearance of Mr. Danda Pani Neupane and, in the event of his death, the localization, exhumation, identification and restitution of his mortal remains to the family;
  • request that the State of Nepal investigate, prosecute and punish those responsible for Mr. Neupane’s disappearance;
  • request that the State of Nepal immediately suspend from office all Nepal Police personnel against whom there is prima facie evidence that they were involved in the enforced disappearance of Mr. Danda Pani Neupane pending the outcome of investigations against them;
  • request that the State of Nepal ensure that the authors obtain prompt, fair and adequate compensation covering both material and moral damages and that measures of reparation adopted in their favour incorporate measures aiming at providing restitution, rehabilitation, satisfaction (including restoration of dignity and reputation) and guarantees of non-repetition.

 

The Decision

On 21 July 2017 the UN Human Rights Committee issued a decision on the case, finding Nepal responsible for the violation of several provisions of the International Covenant on Civil and Political Rights, including the right to life, the prohibition of torture, the right to personal liberty and the right to recognition as a person before the law in respect of Mr. Danda Neupane. The Committee also found that the wife and the minor daughter of Mr. Neupane are victims of inhuman and degrading treatment because of the lack of information on the fate and whereabouts of their loved one and the ensuing anguish and suffering.

The Committee requested Nepal to:

  • Conduct a thorough investigation into the disappearance of Mr. Neupane and, in the case of his death, locate his remains and hand them over to his family;
  • Prosecute, try and punish those responsible for the crimes committed against Mr. Neupane;
  • Provide the wife and the minor daughter of Mr. Neupane with adequate compensation and measures of satisfaction;
  • Provide the wife and the minor daughter of Mr. Neupane with the necessary psychological rehabilitation and medical care;
  • Prevent similar violations in the future and ensure that domestic legislation allows for the criminal prosecution of those responsible for torture and enforced disappearance; and any enforced disappearance gives rise to a prompt and thorough investigation.

Nepal has now 180 days to inform the Committee about the measures taken to implement this decision.

 

General context

The enforced disappearance of Mr. Neupane is part of the context of internal armed conflict which Nepal has experienced between February 1996, when the Communist Party of Nepal (Maoist) overtly declared war against the official governmental authorities of Nepal, and November 2006, when the different parties to the conflict signed the Comprehensive Peace Agreement sanctioning a formal end to hostilities. The decade long armed conflict from 1996-2006 caused not only severe economic and social damages in Nepal but also put the country’s name in the list of the top human rights violators worldwide. The recourse to enforced disappearances, torture, summary executions and arbitrary detentions by State agents and Maoists was generalized during this period.

Despite the signature of a peace agreement between the Maoists and the government in November 2006, the authorities have failed to initiate any serious investigations into the crimes perpetrated during the war and not a single perpetrator has been convicted to date. As a result, over five years after the conclusion of the conflict, perpetrators still enjoy absolute immunity from prosecution, while victims continue to be denied their fundamental rights to truth, justice and reparations.

 

The Case

In May 2012, TRIAL submitted an individual communication to the United Nations Human Rights Committee regarding the enforced disappearance of Mr. Milan Nepali in May 1999. In this communication, TRIAL also represents the victim’s wife, Mrs. Sabita Basnet.

At the time of his arbitrary arrest and subsequent disappearance, Mr. Nepali was working as a journalist for a left-wing (Maoist) daily newspaper, Janadesh in Kathmandu, Nepal. Mr. Nepali was an active member of the Communist Party of Nepal – Maoist (CPN-M) and participated regularly in party activities.

At approximately 13h on 21 May 1999, Mrs. Basnet witnessed six or seven unarmed policemen – half of them in uniform, half in civilian dress – approach her husband, Mr. Nepali in Sundhara, near Telbahal, Kathmandu and inform him that he had to come with them for questioning. Mr. Nepali was not accused of any offence at the time of his arrest. He was not handcuffed, and walked without resistance with the policemen to a nearby civilian mini-van. Mr. Nepali was then told by the policemen to get in the mini-van and driven away to an unknown destination.

The family of Mr. Milan Nepali took a number of steps to try and locate him following his arrest. On 22 May 1999, Mrs. Basnet went to every police station and sub-station in Kathmandu in search for her husband. She continued to do this until 4 June 1999, when she received an anonymous phone call informing her that Mr. Nepali was being held in the Police headquarters, Naxal, Kathmandu.

The following day, on 5 June 1999, Mrs. Basnet went to the Police headquarters in Naxal and asked to see her husband. The police refused her request but allowed Mrs. Basnet to hand over some clean clothes for Mr. Nepali. On 10 June 1999, Mrs. Basnet and her friend visited the Police headquarters again in order to hand over some more clean clothes for Mr. Nepali. After the exchange of clothes had taken place, Mrs. Basnet and her friend walked to a nearby raised piece of land as its increased elevation enabled them to see into the inner compound of the Police headquarters. It was from this raised piece of land, at approximately 0800 hrs, that both Mrs. Basnet and her friend saw Mr. Nepali for approximately two minutes as he was taken to and from the toilet by a single policeman. Mr. Nepali was reportedly handcuffed, but looked in fairly good physical condition. Mrs. Basnet shouted out to try and get her husband’s attention, but she was too far away and he did not hear. The above sighting of Mr. Nepali inside the Police headquarters in Naxal, Kathmandu on 10 June 1999 was the last time that Mr. Nepali was reportedly seen, alive or dead, following his arrest from Sundhara, near Telbahal, Kathmandu on 21 May 1999.

On 26 May 1999, a friend of Mr. Nepali, Mr. Ashok Maharjan, filed a habeas corpus writ before the Supreme Court. The Supreme Court quashed the writ on 12 July 1999 on the grounds that the whereabouts of Mr. Nepali could not be established thereby rendering the habeas corpus writ inapplicable. On 17 August 1999, Mrs. Basnet filed a habeas corpus writ herself before the Supreme Court. The Supreme Court quashed this writ on 5 July 2000 similarly reasoning that since Mr. Nepali’s whereabouts could not be established, the habeas corpus writ was once again inapplicable.

The family of Mr. Nepali also took a number of non-legal measures in an attempt to uncover information about his fate and whereabouts. On 14 June 1999, the family of Mr. Nepali and six other victims of enforced disappeared held a press conference and issued an appeal requesting the general public and government authorities to come forward if they had any information regarding Mr. Nepali’s whereabouts. On 20 June 1999, the family of Mr. Nepali submitted a written appeal to the Parliament requesting that the whereabouts of Mr. Nepali and fifteen other disappeared individuals be made public and that they be immediately released from police custody. On 20 September 1999, the Families of Victims of State Disappearance Association (FVSDA), co-founded by Mrs. Nepali, handed over a written appeal to the Prime Minister. On the same date, the FVSDA released a press statement requesting again that Mr. Nepali and other disappeared individuals’ whereabouts be made public and that they immediately be released from police custody.

Mrs. Nepali also contacted Amnesty International (AI) in July 1999 and informed the organisation about her husband’s disappearance. AI issued two urgent action appeals in response to Mrs. Nepali’s request for assistance: the first urgent action appeal was released by AI on 13 August 1999 and the second in February 2000.

Apart from minimal interim compensation of NRs. 100,000 (890 Euros) received in 2008, the family of Mr. Nepali has received neither truth and justice nor adequate reparations from the Government of Nepal for the tragic loss of their loved one.

In May 2012, TRIAL submitted an individual communication to the United Nations Human Rights Committee requesting it to:

  • recognise that the State of Nepal has violated numerous articles of theInternational Covenant on Civil and Political Rights due to Mr. Nepali’s enforced disappearance, the ongoing failure of Nepalese authorities to conduct an effective investigation and prosecution of the crime and the ensuing suffering endured by Mr. Nepali’s spouse owing to the disappearance of their loved one;
  • request that the State of Nepal initiate a thorough and independent investigation into the arbitrary deprivation of liberty and enforced disappearance of Mr. Milan Nepali and, in the event of his death, the localization, exhumation, identification and restitution of his mortal remains to the family;
  • request that the State of Nepal investigate, prosecute and punish those responsible for Mr. Nepali’s disappearance;
  • request that the State of Nepal immediately suspend from office all Nepal Police personnel against whom there is prima facie evidence that they were involved in the enforced disappearance of Mr. Milan Nepali pending the outcome of investigations against them;
  • request that the State of Nepal ensure that the authors obtain prompt, fair and adequate compensation covering both material and moral damages and that measures of reparation adopted in their favour incorporate measures aiming at providing restitution, rehabilitation, satisfaction (including restoration of dignity and reputation) and guarantees of non-repetition.

 

General context

The enforced disappearance of Mr. Nepali is part of the context of internal armed conflict which Nepal has experienced between February 1996, when the Communist Party of Nepal (Maoist) overtly declared war against the official governmental authorities of Nepal, and November 2006, when the different parties to the conflict signed the Comprehensive Peace Agreement sanctioning a formal end to hostilities. The decade long armed conflict from 1996-2006 caused not only severe economic and social damages in Nepal but also put the country’s name in the list of the top human rights violators worldwide. The recourse to enforced disappearances, torture, summary executions and arbitrary detentions by State agents and Maoists was generalized during this period.

Despite the signature of a peace agreement between the Maoists and the government in November 2006, the authorities have failed to initiate any serious investigations into the crimes perpetrated during the war and not a single perpetrator has been convicted to date. As a result, over five years after the conclusion of the conflict, perpetrators still enjoy absolute immunity from prosecution, while victims continue to be denied their fundamental rights to truth, justice and reparations.

 

The Case

Arrest and enforced disappearance in October 2003

On 10th October 2003, Amrit Kandel was arbitrarily arrested in Kathmandu by a dozen of soldiers. Without being informed of the reasons for his arrest nor produced a warrant, Amrit Kandel was forced into a van and brought to the Maharajgunj military barracks, then headquarter of the Bhairabnath Battalion of the Royal Nepal Army. He was not given any possibility to contact either his family or a legal representative.

As witnessed by his brother Ramhari Kandel, who was also detained at Maharajgunj at that time, Amrit Kandel was held in cruel, inhuman and degrading conditions of detention: he was kept in a small tent where he used to cry and scream out of desperation, he did not receive adequate food or drinking water and had limited access to sanitation. Moreover, he was continuously blindfolded. He was never given the possibility to communicate with people outside the barracks. His body was constantly swollen, covered in bruises and abrasions, indication of the treatments inflicted during interrogations. Following his release on 10th December 2003 neither Ramhari Kandel nor any other member of his family has ever seen Amrit Kandel again. His fate and whereabouts remain unknown to date.

The denunciation of the crimes and the impunity of their authors

Since 2003, Tikanath Kandel, Amrit Kandel’s father, has undertaken all possible effort to find him. Besides engaging in countless advocacy activities and informal meetings with public authorities, Tikanath Kandel registered a formal complaint at the National Human Rights Commission and lodged two petitions for habeas corpus with the Supreme Court of Nepal.

Amrit Kandel’s fate and whereabouts remain unknown and neither investigation nor criminal prosecution has been initiated against his perpetrators. His relatives’ hopes in the Nepalese legal system have faded and the Human Rights Committee now represents their only chance to obtain truth, justice and redress.

In April 2014, TRIAL International submitted a communication to the Human Rights Committee on behalf of Amrit Kandel and his family, Tikanath and Ramhari Kandel.

 

The decision

On 2 August 2019, the Human Rights Committee recognized that the state of Nepal violated articles 6 (right to life), 7 (prohibition of torture), 9 (right to liberty) and 16 (right to recognition as a person before the law) of the International Covenant on Civil and Political Rights, read alone and in conjunction with article 2 para. 3 (right to an effective remedy) of the Covenant with regard to Mr. Amrit Kandel, as well as article 7, read alone and in conjunction with article 2 para. 3, with respect to Tikanath and Ramhari Kandel.

The Human Rights Committee also stated that “the State party is under an obligation to provide the authors with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated to, inter alia:

  • conduct a thorough and effective investigation into the facts surrounding the detention of Mr. Amrit Kandel and the treatment he suffered during detention and disappearance;
  • provide the authors with detailed information about the results of its investigation;
  • release Mr. Amrit Kandel, if he is still alive or in the event that Mr. Kandel is deceased, hand over his remains to his family;
  • prosecute and punish those found responsible for the violations committed and make the results of such measures public;
  • ensure that necessary and adequate psychological rehabilitation and medical treatment are made available to the authors; and
  • provide adequate compensation including appropriate measures of satisfaction, beyond the partial compensation already offered, to the authors for the violations suffered.

The State party is also under an obligation to take steps to prevent the occurrence of similar violations in the future. In particular, the State party should ensure that its legislation:

  • criminalize torture and enforced disappearance and provide for appropriate sanctions and remedies commensurate with the gravity of the crimes;
  • guarantee that such cases give rise to a prompt, impartial and effective investigation; and
  •  allow for criminal prosecution of those responsible for such crimes.”

 

The General Context

The facts of this case took place in the context of the 1996-2006 internal armed conflict, which caused not only severe economic and social damage in Nepal but also put the country’s name in the worldwide list of the top human rights violators. Enforced disappearances, torture, summary executions and arbitrary detentions committed by both State agents and Maoists were widespread during this period. According to the Office of the High Commissioner for Human Rights, some 1,300 alleged enforced disappearances took place during this period.

 

The decisions of the United Nations Human Rights Committee (HRC) on the conflict-era enforced disappearance cases have gone unimplemented. To date, the HRC has decided ten individual cases against Nepal and eight cases were related with enforced disappearance.

Read the complete news release & media kit

In five cases decided by the HRC, the victims’ fate and whereabouts is still unknown and unaccounted for. Likewise, in three cases linked with torture, the HRC has acknowledged the fact that these victims were illegally detained, tortured and were subjected to enforced disappearance.

In its decisions, the UN holds the Nepalese government responsible for the enforced disappearance and torture of thosevictims. Furthermore, the HRC acknowledges that the relatives of the disappeared are also victims of human rights violations themselves, due to the deep anguish and distress owing to the disappearance of their loved ones. It further urges the authorities to carry out a thorough investigation into the cases, prosecute the culprits and grant appropriate reparations to their relatives.

Out of the cases viewed by the HRC so far, four were filed on behalf of the victims by TRIAL (Track Impunity Always), a Geneva-based NGO, and four by Advocacy Forum-Nepal. Among the cases decided are on the enforced disappearances of Surya Prasad Sharma, Yubraj Giri, Dev Bahadur Maharjan, Mukunda Sedhai, Tej Bahadur Bhandari, GyanendraTripathi, Jit Man Basnet, and Chakra Bahadur Katwal. Each of them was forcibly arrested, tortured and disappeared by state security forces during the 1996-2006 conflict in Nepal. Among them, the fate and whereabouts of Surya Prasad Sharma, Mukunda Sedhai, Tej Bahadur Bhandari, Gyanendra Tripathi and Chakra Bahadur Katwal is still unknown and unaccounted for. Yubraj Giri, Dev Bahadur Maharjan and Jitman Basnet were illegally detained, tortured and were subjected to enforced disappearance and later, they were released from the detention.

The case of Surya Prasad Sharma was the first decided against Nepal in October 2008. Likewise, the cases of Yubraj Giri, Dev Bahadur Maharjan, Mukunda Sedhai were decided in March 2011, July 2012, and July 2013 respectively. The cases of Bhandari, Tripathi and Basnet were decided in November 2014 and Katwal’s case was decided in April 2015.

In particular, the UN HRC urged the government of Nepal to:

  • investigate into the facts and inform the families about the results of such investigation;
  • prosecute, try and punish the perpetrators;
  • provide effective reparation to the victims’ relatives, including economic compensation and measures of satisfaction such as a public apology;
  • provide psychological rehabilitation and medical care to some of the victims’ relatives;
  • translate the decisions into Nepali and to widely publicize them;
  • adopt measures to ensure that similar violations do not occur in the future (for instance, by criminalizing enforced disappearance).

The decisions, rendered by one of the most prominent international human rights bodies, send a message of hope to the families of all victims of enforced disappearances and torture in the country.

However, despite the victims’ efforts to bring the UN decisions to reality, the government has not done anything beyond providing some monetary compensation in one or two cases. This brings to light the utter government apathy towards the victims and their families. In reality, there is no effective procedure in place to implement the HRC’s views.

The perpetual violence of the social, economic and cultural costs of the disappearance of a family member still lives among scores of Nepalese people. The disappearance of a relative has created a deep vacuum in these families. For instance, the wives of the disappeared are called ‘half-widows’ and face countless obstacles to carry on with their lives.

In commemoration of the International Day of the Disappeared, TRIAL and Advocacy Forum-Nepal would once again like to urgeto the government of Nepal to immediately take necessary measures to put the UN Views to implementation and leave no stone unturned to that front.

“If Nepal wants to be perceived as a country governed by the rule of law, it must swiftly implement these decisions. A democratic State cannot longer remain mute over sorrows of its citizens marred by impunity”, says Philip Grant, Director of TRIAL.

Dr. Trilochan Upreti, Director of Advocacy Forum-Nepal says, “The State has made commitments at both the national and international levels to provide justice to victims. When it fails to do so at the national level, bodies at the international level have jurisdiction to consider the case and find Nepal responsible for breaching its obligations. It is in the State’s own interest to implement the decision of the HRC and provide justice at the domestic level.A failure to do so will only lead to further criticisms.”

In reference to the recently formed Commission for Inquiry of Enforced Disappearances (CIED), TRIAL and Advocacy Forum-Nepal welcome the added scope of scrutiny against widespread impunity in Nepal. However, it has to be noted that this transitional justice mechanism have a truth-seeking mandate, and therefore cannot replace a court of law. Moreover, the measures of reparation requested by the HRC are wider than the mandate of the CIED. For this reason, their implementation cannot be left alone to the CIED. TRIAL and Advocacy Forum-Nepal request the government of Nepal to implement the decisions of the HRC promptly and effectively.

Last May, the President of Nepal passed a deeply flawed Truth and Reconciliation Commission Act. Violating human rights law standards, this Act raises great concerns, as it will contribute to further entrench impunity in Nepal.

TRIAL calls for amendments to be made and reminds that current Nepalese transitional justice mechanisms are totally inadequate as they:

  • force reconciliation between victims and perpetrators
  • grant amnesty to the perpetrators of crimes under international law

Moreover, the prosecution mechanisms for crimes committed during the war prevent any kind of criminal liability for the perpetrators.

Providing a detailed analysis of the Act’s main flaws, TRIAL calls on UN human rights bodies to demand that the Nepalese government amends the Act to ensure that the transitional justice process guarantees victims’ rights and finally delivers truth, justice and reparations.

One of the main human rights bodies of the United Nations has just ruled that the transitional justice mechanisms envisaged by the Government of Nepal do not meet international human rights standards, as they do not offer sufficient guarantees to victims of the civil war to realise their rights to justice and truth.

 

 

On 12 October 2012 the United Nations Human Rights Committee (HRC) adopted its views on the admissibility of a case of an enforced disappearance submitted by TRIAL on 27 October 2010. In its decision on admissibility in the case of Yuba Kumani Katwal v. Nepal, made public this week, the HRC rejected the arguments brought forward by the Government of Nepal, hoping that the case be declared inadmissible. The HRC will thus continue examining the merits of the case, pending the Government’s comments due within the next six months.

In October 2010, TRIAL (Swiss Association against Impunity) submitted a communication to the HRC on the enforced disappearance of Mr. Katwal, which occurred in 2001. Representing Mrs. Katwal, the victim’s wife, who since the enforced disappearance has not ceased to try to establish the truth on her husband’s fate and whereabouts and to obtain justice, TRIAL argued that Nepal was violating, among others, Mr. Katwal’s right to life, the prohibition of torture and cruel and inhuman treatment, the right to liberty and security of person, the right to recognition as a person before the law, and the right to an effective remedy. TRIAL also argued that Mrs. Katwal had been the victim of a violation of the right to be treated humanely insofar as she was also arrested, harassed and abused by the Nepalese army in an effort to silence her; due to the anguish suffered as a consequence of the enforced disappearance of her husband as well as for the failure of the Government to establish the truth on her husband, guarantee justice and provide for adequate compensation.

The Government of Nepal requested that the case be declared inadmissible by the HRC arguing, among others, that cases of human rights violations occurred during the conflict will be investigated by transitional justice mechanisms that are currently under consideration by the State, namely a Truth and Reconciliation Commission and an Enforced Disappearance Commission. The Government also argued that a criminal investigation on Mr. Katwal’s disappearance was ongoing.

According to TRIAL, “the HRC brings down a central argument of the Government of Nepal, repeatedly made to victims of human rights violations committed during the conflict, that they must wait and see. This decision clearly shows that Nepal is not heading in the right direction and must quickly implement a policy aimed at providing truth and justice to the numerous victims of grave human rights violations”.

The HRC however accepted TRIAL’s counter-arguments affirming that there is no certainty as to when the proposed transitional justice mechanisms will be approved and what competences they may have and what the consequences would be for the victims and their relatives. Moreover, the HRC recognized that, even if created, such mechanisms would be non-judicial and, as such, would not be considered as an “effective remedy” that applicants have to exhaust before bringing a case before the HRC. It also declared that in the specific circumstances, Nepal failed to demonstrate that it was indeed carrying out a criminal investigation on the alleged crimes committed against Mr. Katwal. Most importantly, the HRC declared that the fact that the very concrete first steps on Mr. Katwal’s enforced disappearance were undertaken only in 2007 and that to date, eleven years after the events, the investigation is still ongoing constitutes an “unreasonably prolonged delay”.

The findings of the HRC on the nature of the potential transitional justice mechanisms is of utmost importance and show that, even if put in place, these would not be considered as offering enough guarantees to realise the rights to justice and truth of victims. Unless Nepal intends to continue breaching its international obligations, it must ensure that its authorities undertake the necessary measures to investigate without delay the violations committed during the conflict, identify those responsible, judge them before the competent ordinary courts and, where appropriate, sanction them taking into account the gravity of the crimes committed. Anything different from this would be considered as a perpetuation of the overall state of impunity and, as such, a flagrant breach of Nepal’s international obligations.

The decision also paves the way for potential new cases to be brought before the HRC.

 

For further information:

Geneva / Kathmandu – 21 May 2012

After thirteen years of despair, of denial and of waiting for truth and justice, two families of victims of enforced disappearance during the civil conflict in Nepal bring their case to the United Nations. The perpetrators must be brought to account, says TRIAL – a Geneva-based human rights organisation.

Thirteen years ago to this day, on 21 May 1999, Mr. Danda Pani Neupane and Mr. Milan Nepali were arrested in Kathmandu by the Nepal Police as suspected members of the then Communist Party of Nepal – Maoist (CPN-M). Both men were witnessed in the custody of the Nepal Police approximately one month after their arrest in June 1999, but have not been seen since, alive or dead. The Nepal Police have continuously denied having arrested or detained either Mr. Neupane or Mr. Nepali, in spite of eyewitnesses confirming their arrest and subsequent detention inside both the Police headquarters and the Police training centre in Kathmandu.

Tragically, the likelihood that the families of Danda Pani Neupane and Milan Nepali will ever receive the truth about the fate of their loved ones becomes less probable the further the Government of Nepal strays from fully implementing both the decisions of its own Supreme Court and its legally binding obligations under international law.

The family members of the two men have now waited thirteen agonising years for news of their loved ones, but have been met only with official indifference. Indeed, their hopes that the Government of Nepal would implement the landmark Supreme Court judgement of June 2007, which ordered the establishment of a Commission of Inquiry on Disappearances leading to the investigation of cases of enforced disappearance and the criminal prosecution of perpetrators, have long been forsaken.

Almost five years after the Supreme Court judgment was passed, the Constituent Assembly remains paralysed by the power struggles and petty squabbles of its factious political parties, and bills establishing the Disappearance Commission and Truth and Reconciliation Commission (TRC) have yet to be passed into law. There is also very real concern that even if passed, the two transitional justice bills will not be in line with international legal standards regarding victims’ rights to truth and reparations, nor the State of Nepal’s obligations to investigate, prosecute and punish perpetrators of enforced disappearance. Furthermore, recently proposed amendments by political leadership would empower the TRC to grant amnesty to leaders and members of both government forces and armed groups for acts that would amount to serious violations of international human rights or humanitarian law.

Tragically, the likelihood that the families of Danda Pani Neupane and Milan Nepali will ever receive the truth about the fate of their loved ones becomes less probable the further the Government of Nepal strays from fully implementing both the decisions of its own Supreme Court and its legally binding obligations under international law. Nor are the cases of Danda Pani Neupane and Milan Nepali unique: the families of over one thousand victims of enforced disappearance have similarly endured years of official indifference and the prolonged suffering that this has brought about.

On the thirteenth anniversary of the enforced disappearance of Danda Pani Neupane and Milan Nepali, TRIAL (Swiss Association against Impunity) submitted their cases to the United Nations Human Rights Committee. TRIAL has called on the Committee to request that the Government of Nepal ensure a prompt investigation into the arbitrary deprivation of liberty and subsequent enforced disappearance of Danda Pani Neupane and Milan Nepali; bring the perpetrators to justice; provide their relatives with adequate compensation and measures of reparation; and in the event of their death, locate, exhume, identify and return their mortal remains to their families.

Context

In 1996, a violent armed conflict started between Maoist insurgents and the Government of Nepal. Nearly 14,000 persons died during the ten year-long civil war that followed. Grave human rights violations, such as arbitrary arrests, abductions, rapes, torture and extrajudicial executions were committed by both sides. The practice of enforced disappearances was particularly widespread, with more than 2,100 cases reported during the conflict. Despite the signature of a peace agreement between the Maoists and the government in November 2006, the authorities have failed to initiate any serious investigations into the crimes perpetrated during the war and not a single perpetrator has been convicted to date. As a result, over five years after the conclusion of the conflict, perpetrators still enjoy immunity from prosecution, while victims continue to be denied their fundamental rights to truth, justice and reparations.

The cases of Mr Danda Pani Neupane and Mr. Milan Nepali represent the 8th and 9th cases brought by TRIAL before the UN Human Rights Committee. All cases are currently under consideration by the Committee.

On 27 October 2010, TRIAL (Swiss association against impunity) has submitted an individual communication to the United Nations Human Rights Committee regarding the enforced disappearance of Chakra Bahadur Katwal in 2001.

RTEmagicC_Chakra_Bahadur_Katwal_nepal_05.jpgOn 9 December 2001, Mr. Katwal received a letter at his school asking him to go to the district’s education office in the Okhaldhunga village in order to respond to an inquiry. When Mr. Katwal arrived at Okhaldhunga a few days later, an employee of the education office told him that he had to go to the district police office in order to answer some questions. From there, Mr. Katwal was allegedly forced into one of the army buildings. The following day, witnesses saw soldiers carrying him by his arms and legs. Mr. Katwal seemed unconscious, his clothes were covered in blood and his whole body showed signs of beating. The victim was transported into the police buildings and has never been seen since.

The spouse and the daughter: Victims of abuse

Since Mr. Katwal’s disappearance, his spouse has not ceased to seek the truth about his fate and whereabouts. Not only have Mrs. Katwal’s efforts proved to be in vain, but she has also suffered from harassment by the Nepalese army. She was also abused during her arrest and detention in 2005, which aimed at silencing her on the issue of the army’s involvement in the enforced disappearance of her husband. Her daughter equally suffered from severe physical and psychological abuse during the six weeks in which she was arbitrarily detained by the army. She had to be hospitalised and is still suffering from significant long-term consequences despite medical treatment.

In July 2006, Mr. Katwal’s relatives petitioned Nepal’s Supreme Court. On 1st July 2007, the Supreme Court confirmed that Mr. Katwal had been arbitrarily arrested and detained by the Nepalese army and police and that the torture he was subjected to had led to his death. The Supreme Court ordered that the people involved in this case and who were cited in the inquiry report be prosecuted. To date, however, the Nepalese authorities have not followed-up on the decision and impunity continues to reign. Mr. Katwal’s family still does not know what has happened to his body.

On 27 October 2010, TRIAL therefore submitted an individual communication to the United Nations Human Rights Committee asking it to recognise that Nepal violated numerous articles of the International Covenant on Civil and Political Rights subsequently to Mr. Katwal’s enforced disappearance, even though Nepal has ratified the Covenant; to require an independent inquiry in order to precisely locate the place of his remains and to exhume them in order to allow the family to organise a funeral according to their traditions; to ask Nepal to prosecute the people responsible for Mr. Katwal’s disappearance; to declare that Nepal also violated the Covenant with regard to the suffering caused by Mr. Katwal’s spouse and family owing to his disappearance; to require that Nepal offers integral, prompt, just and adequate reparation for the suffering and the loss due to Mr. Katwal’s disappearance and to pay for the exhumation and funeral costs; and to ask Nepal to provide the necessary guarantees for the non-repetition of similar acts to those suffered by Mr. Katwal and for Mrs. Katwal’s and her family’s safety during the course of the procedure.

Context

The enforced disappearance of M. Katwal is part of the context of a state of emergency that was declared by the Nepalese government in November 2001. The state of emergency allowed the State to increase its repression against persons who were suspected of helping the Maoist insurgents and to derogate from fundamental rights and liberties. The recourse to enforced disappearances, torture, summary executions and arbitrary detentions by State agents and Maoists was generalised during this period. Since it launched this project in 2007, TRIAL has submitted almost 60 cases to different international human rights bodies. These cases concern extra-judicial executions, enforced disappearances and torture in Bosnia- Herzegovina, Algeria and Libya. The present case is the first one concerning Nepal.

  • For more information on the cases from Nepal that TRIAL handles, see here.