Nepal: Transitional Justice Mechanisms Inadequate, says United Nations

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:

• Read the Katwal case on TRIAL website
• Read the decision on admissibility of the HRC
• Read TRIAL webpage on Nepal