Judicial Body: Truth and Reconciliation Commission

Nepal’s Cabinet of ministers announced on 5 January 2018 the extension by one year of the Truth and Reconciliation Commission (TRC) and the Commission on Investigation on Enforced Disappeared Persons (CIEDP).

Both transitional justice bodies were created in 2015, nearly a decade after the end of the civil war. Their mandates were supposed to close last year, but with still thousands of complaints to settle, their mandates were extended.

Back then, TRIAL International and four other NGOs welcomed this decision. They also insisted, however, that the extension of the transitional justice mechanisms’ mandate was but the first step, and should be part of a bigger effort towards accountability.

Today, these conclusions still apply. The bodies’ amount of work is titanic. Every year the clock seems to be ticking louder and history is repeating itself: Nepalese war victims are still waiting for justice and reparation.

Read TRIAL International’s  2017 open letter on Transitional Justice mechanisms

The National Human Rights Commission’s (NHRC) annual report expresses concern over the delay of transitional justice in Nepal. Actions have to be taken urgently, as the relevant bodies’ mandates are to end soon.

The report shows* that from 2000 to 2013, the Commission asked Nepal’s government to make a move regarding 735 cases of rights violations. But only 103 were taken into account. This slow pace of action is a burden for the victims seeking justice and often leads to discouragement.

The NHRC delegation, who presented the report to President Bhandari, also denounced the failure to implement law and lack of resources allocated to transitional justice bodies – preventing them from working effectively and leaving them nearly powerless.

The NHRC pointed out that delaying the transitional justice process in Nepal gives credence to the state of impunity.

 

Clock is ticking for transitional justice bodies

On top of all, the Truth and Reconciliation Commission (TRC) and the Commission on Investigation on Enforced Disappeared Persons’ (CIEDP) mandates will end on February 2018.

But their work is far from being completed. The conflict ended in 2006 and thousands of victims are still awaiting reparations.

Moreover, former child soldiers are still shunned from the transitional justice system. Which has grave consequences alienating them from society.

“War victims have suffered long enough, Nepal’s government should make transitional justice mechanisms stronger to help bring closure to the survivors”, explained Lucie Canal, Acting Head of Nepal program at TRIAL International.

*all figures are taken from an article published by the Kathmandu Post

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 February 2011, TRIAL submitted an individual communication to the United Nations Human Rights Committee regarding the enforced disappearance and torture of Jit Man Basnet in February 2004. In this case, TRIAL also represents the victim’s cousin, Top Bahadur Basnet.

Jit Man Basnet is a journalist and a lawyer in Kathmandu. On 4 February 2004, he was arrested by security forces and brought to a detention camp known as Bairabnath Battalion barracks.

During this time period (2003-2004) the Bhairabnath Battalion Barracks run by the Royal Nepali Army (RNA) became notorious. In May 2006, the UN Office of the High Commissioner for Human Rights published a report after an investigation of the Maharajgunj RNA barracks in Kathmandu. The Bhairabnath Battalion, quartered at 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 2003 and thereafter.

During the first three days of detention Jit Man Basnet was extensively tortured and beaten. There was no fixed routine, the soldiers would come for him at any time of night or day. Beyond the physical pain inflicted by the severe beatings, not knowing when they would come again provoked an ongoing mental distress. The guard accused him having contacts with the Maoists, when he explained he had no information about Maoists, the torture would only get worse. The detention conditions were inhuman. During 258 days Jit Man Basnet was continuously blindfolded and handcuffed.

On 18 October 2004, Jit Man Basnet was finally released. He was strictly forbidden to reveal the existence of the barracks and was forced to sign a paper stating that he was kept in detention for only 90 days, in accordance with state of emergency laws.

More than seven years have passed and, no ex officio, prompt, impartial, thorough and independent investigation has been carried out by Nepal authorities and no one has been prosecuted, judged and sanctioned for the enforce disappearance and torture of Jit Man Basnet, thus fostering an ongoing climate of impunity

In February 2011, TRIAL thus 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 Jit Man Basnet’s enforced disappearance and torture;

to strongly recommend that Nepal initiate immediate investigations into the role of the soldiers attached to the Bhairabnath Battalion stationed at the Maharajgunj Barracks in the period concerned and prosecute those responsible for the arbitrary arrest, enforced disappearance and torture of Jit Man Basnet;

to urge the State party to immediately suspend from office all army officials against whom there is prima facie evidence that they were involved in the Jit Man Basnet’s enforced disappearance and torture;

to declare that Nepal also violated the Covenant with regard to the suffering undergone by Jit Man Basnet’s cousin, Top Bahadur Basnet; and therefore require that Nepal grant him full and adequate reparation;

to require that Nepal offers integral, prompt, just and adequate reparation for the enforced disappearance and torture suffered by Jit Man Basnet.

 

General context

In February 1996 the Communist Party of Nepal (Maoist) 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 Jit Man Basnet was detained and disappeared for over 8 months.

 

The Decision

On 29 October 2014, the UN Human Rights Committee adopted its decision on the case of Mr. Jit Man Basnet. The Committee held Nepal internationally responsible for violating several provisions of the International Covenant on Civil and Political Rights, including the right to personal liberty, to humane treatment, to recognition before the law, and the prohibition of torture. In particular, the Committee found the State responsible for its lack of investigation into these crimes and for the ongoing impunity of those responsible. The Committee also condemned Nepal for violating Mr. Top Bahadur Basnet’s right to humane treatment by disregarding his acute anguish and denying that his cousin had been subject to enforced disappearance.

The Committee requested Nepal to:

  • Investigate into the facts surrounding the detention of Mr. Jit Man Basnet and prosecute, try, and sanction those responsible
  • Ensure that Mr. Jit Man Basnet and Mr. Top Bahadur Basnet receive compensation, psychological rehabilitation and medical treatment
  • Adopt measures of satisfaction, including restoration of dignity and reputation of the two men
  • 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 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

In April 2013, TRIAL submitted an individual communication to the United Nations Human Rights Committee concerning multiple human rights violations related to the enforced disappearance, torture and arbitrary detention suffered by Mr. Himal Sharma between 21 October 2003 and 19 December 2005. In this case TRIAL also represents the victim’s wife, Mrs. Devi Sharma.

At the time of his arbitrary arrest in October 2003, Mr. Himal Sharma held the post of Secretary-General of the All Nepal National Independent Student Union Revolutionary, the student wing of the Communist Party of Nepal (Maoist).

On 21 October 2003, Mr. Himal Sharma was arbitrarily arrested in Kathmandu by members of the security forces wearing civilian clothes. Blindfolded, he was taken to the Maharajgunj barracks and forcibly disappeared by members of the Bhairabnath Battalion of the Royal Nepal Army for almost one and a half years. A husband and father to three young children, the disappearance of Mr. Himal Sharma had devastating consequences for the whole family. Throughout his enforced disappearance, Nepali authorities repeatedly denied Mr. Himal Sharma’s detention and failed to reveal his fate and whereabouts to his representatives and his family despite several attempts carried out by his wife, Mrs. Devi Sharma, to locate him.

In February 2005, he was transferred to the Mahendradal Battalion barracks in Gorkha district. Mr. Himal Sharma’s fate and whereabouts remained unknown until 8 March 2005.

During the entire period of his enforced disappearance, Mr. Himal Sharma was subjected to severe mental and physical torture. A report published in May 2006 by the Office of the High Commissioner for Human Rights (OHCHR) following an investigation into the Bhairabnath Battalion barracks, as well as the oral and written testimonies of former co-detainees confirm Mr. Himal Sharma’s account of events.

Following tireless efforts led by Mrs. Devi Sharma and a belated investigation ordered by the Supreme Court of Nepal, Mr. Himal Sharma’s whereabouts were eventually revealed by the Nepali government on 8 March 2005, but he was arbitrarily kept in detention and ill-treated until 19 December 2005 when the Supreme Court declared his detention unlawful and ordered his liberation.

Mr. Himal Sharma took a number of steps to seek the formal recognition of his enforced disappearance and torture at the hands of the Nepali army, to obtain criminal and disciplinary sanctions for those responsible for the crimes concerned and fair compensation and redress for the harm suffered.

On 1 June 2007 the Supreme Court ordered the Nepali government to promulgate a statute of law criminalising enforced disappearance in accordance with international standards; form an independent commission to investigate on the status of disappeared persons and the causes of their disappearance and submit the findings to competent authorities for prosecution; and provide victims of enforced disappearance with effective remedies and reparations.

Apart from an interim compensation of 100,000 NRs received (approximately 1,130 US dollars) received in 2011, the final decision by the Supreme Court has fallen on deaf ears and no ex officio, prompt, impartial, thorough and independent investigation has been carried out, no one has been subjected to criminal nor disciplinary sanctions and no effective reparation has been granted for the arbitrary detention, enforced disappearance and torture of Mr. Himal Sharma.

In April 2013, 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. Sharma’s enforced disappearance, the ongoing failure of Nepali authorities to conduct an effective investigation and prosecution of the crime and the ensuing suffering endured by Mrs. Devi Sharma owing to the disappearance of her husband and the attitude of official indifference maintained by Nepali authorities in the face of her serious concerns;
  • to require a thorough and independent investigation into the arbitrary deprivation of liberty, torture and enforced disappearance of Mr. Himal Sharma and the prosecution and sanction of the perpetrators;
  • to require the amendment of the Commission on Investigation of Disappeared Persons, Truth and Reconciliation Ordinance adopted on 14 March 2013 in order to make sure that no person accused of gross human rights violations, including torture and enforced disappearance, may benefit from any amnesty provision exempting him or her from criminal responsibility
  • to request Nepal to ensure that the authors obtain prompt, fair and adequate reparation covering both material and moral damages.

 

General context

The enforced disappearance of Mr. Himal Sharma partook place in the the context of internal armed conflict which Nepal 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 damage in Nepal but also put the country’s name in the list of the top human rights violators worldwide. Enforced disappearances, torture, summary executions and arbitrary detentions by both State agents and Maoists was 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 that remain unaccounted for.

 

In December 2013, TRIAL submitted an individual communication to the United Nations Human Rights Committee (HCR) regarding the multiple human rights violations related to the enforced disappearance, torture and arbitrary detention suffered by Mrs. Sarita Devi Sharma between 20 October 2003 and 30 June 2005. In 2018, the HRC reached its decision on this complaint: Nepal has a responsibility in this case.

 

The case

On 20 October 2003, Mrs. Sharma was arrested in the neighborhood of Chandol, Kathmandu, by members of the security forces wearing civilian clothes. Together with a friend of hers, she was handcuffed, blindfolded, forced into a military van and taken to the Maharajgunj barracks, at that time headquarters of the Bhairabnath Battalion of the Royal Nepal Army. There, she was detained in incommunicado and her detention was unacknowledged until August 2004. Nepalese authorities denied any involvement in her disappearance while actively concealing her fate and whereabouts.

In July 2004, due to her critical health conditions, Mrs. Sharma was brought to the army hospital of Chaauni where she remained for around two months. It was in the hospital that, on 25 August 2004, she fortuitously walked into an old friend of hers. Thanks to the latter’s complicity, Mrs. Sharma could sneak a letter out of the hospital and make her whereabouts public.

While her disappearance came to an end, her arbitrary detention was further prolonged. In the month of September 2004 the Army brought Mrs. Sharma back to Maharajgunj, where she was held until 30 June 2005.

During the entire period of her enforced disappearance and subsequent arbitrary detention Mrs. Sharma was subjected to severe mental and physical torture. Her detention conditions were inhuman. Mrs. Sharma’s disappearance and her subsequent arbitrary detention severely impacted on her family life.

Mrs. Sharma was finally released only after repeated attempts undertaken by her husband to find her. After a first petition of habeas corpus was quashed by the Supreme Court in 2004 due to State authorities’ denial of its involvement in Mrs. Sharma’s disappearance, a second petition of habeas corpus led the Supreme Court to declare Mrs. Sharma’s detention unlawful and order her liberation on 28 June 2005.

In despite of numerous efforts undertaken by Mrs. Sarita Sharma, more than 8 years after her release no ex officio, prompt, impartial, thorough and independent investigation has been carried out by Nepal authorities and no one has been prosecuted, judged and sanctioned for her enforced disappearance and for the torture she endured.

 

Procedure

In December 2013, TRIAL International, representing Mrs. Sharma’s husband, Mr. Bijaya Sharma Paudel, and her eldest son, Mr. Basanta Sharma Paudel, submitted the case to the HRC.

On 6 April 2018 the UN Human Rights Committee reached its decision on the communication submitted in 2013.

The UN Human Rights Committee found Nepal responsible for the violations of the rights to life, the prohibition of torture and the right to liberty and security of person and the right to recognition as a person before the law. Therefore, the Human Rights Committee request Nepal to:

  • Carry out a thorough and effective investigation into the detention of Mrs Sharma.
  • Prosecute, try and punish the perpetrators
  • Provide Mrs Sharma with information regarding the investigation
  • Ensure Mrs Sharma with adequate and necessary psychological rehabilitation and medical treatment.
  • Provide Mrs Sharma with adequate measures of reparations including adequate measures of compensation and satisfaction.
  • Prevent similar violations in the future by criminalizing torture and enforced disappearance and provide for appropriate sanctions and remedies commensurate with the gravity of the crimes.

 

General context

The enforced disappearance of Mrs. Sarita Sharma took place in the context of the internal armed conflict affecting Nepal between February 1996, when the Communist Party of Nepal (Maoist) declared war against the official governmental authorities of Nepal, and November 2006, when the different parties to the conflict signed the Comprehensive Peace Agreement.

The decade-long armed conflict (1996 – 2006) caused not only severe economic and social damage in Nepal but also put the country’s name in the list of the top human rights violators worldwide. Enforced disappearances, torture, summary executions and arbitrary detentions 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 that still remain unaccounted for took place during this period.