View Points

INSEC has been standing alongside the victims in their fight for justice & will continue to do so. Through various non-violent measures in this course. Activist & opinion bulders were sought opinion on “what measures should Nepal Government take to render justice to the victims of enforced disappearance”.

 

Om Prakash Aryal

Lawyer

We don’t think that the Government of Nepal is serious on measures it has to take rendering justice for the victims of enforced disappearance. The government has intentionally delayed the formation of a disappearance commission, it has been diluting the issue-. For example, it passed an ordinance to merge disappearance commission with the truth commission. This ordinance ignores the norms enumerated in the constitution and international law. We therefore must put pressure on the government to uphold state’s legal obligations towards victims of armed conflict.  Particularly, following recommendations are offered to the Government of Nepal to ensure justice to the victims of enforced disappearance:

• Revoke the ordinance which merged the disappearance commission with truth commission, enact a separate law to form an independent, impartial and competent commission of inquiry on disappearance and criminalize enforced disappearance.
• Implement the Supreme Court’s landmark judgment on enforced disappearance dated 30th May 2007, which has passed a number of binding orders (mandamus), such as the requirement to initiate criminal as well as disciplinary proceedings against government officials responsible for the enforced disappearances of Rajendra Dhakal, Bipin Bhandari and Dil Bahadur Rai; and the murder of Chakra Bahadur Katuwal following his enforced disappearance.
• Proceed to become a state party to the UN convention relating to enforced disappearance with the aim to prevent such crime in future.
• Ensure that reconciliation and amnesty shall not be allowed in the serious crimes, including enforced disappearance.
• Provide adequate reparation to the victims and their family members.
• Proceed to make a vetting law with a view to prevent persons involved in abuse of human rights, including enforced disappearance, to contest election or any public posts.

 

Raju Prasad Chapagai

Chairperson, Justice and Rights Institute-Nepal (JuRI-Nepal)

Regrettably, there is increasing hopelessness of justice for the victims of conflict-era violations within the country, in particular, for the victims of enforced disappearance. In such a situation, it is natural for victims and rights activists to seek options at the international level- e.g. jurisdiction of foreign courts and the UN human rights committee. The support of human rights community to such efforts beyond the border appears to have been aimed at generating pressure upon the State to implement on its repeated commitments to ensure justice within the Country. The Government must take such quest for justice seriously bearing in mind that the legal remedy for the victims of the serious violations including enforced disappearance is not a matter of mercy or prudence but an immutable right of the victim guaranteed under national and international law. Against this backdrop, it is high time for the government and responsible political parties to abandon their hidden policy of de facto impunity and undertake the following steps towards ensuring justice to the victims of enforced disappearance:

• Initiate a constructive engagement with stakeholders including victim groups and garner their confidence that there can be a joint action with a view to advance justice to the victims of enforced disappearance.
• Offer adequate interim relief and reparation measures to help the families of the disappeared to enjoy their fundamental right to live with human dignity.
• Devise a victim and witness protection program and implement it to create a conducive environment for the victims to seek justice.
• Acknowledge the fact that the State committed a mistake by adopting the Ordinance on Disappearance and TRC that undermines the notion of justice and initiate the process to replace this with one that is into line with the Supreme Court decision, international legal standards and best practices.
• Make sure that all apparatus of the Government accept their complementary role of transitional justice and criminal justice and they fully cooperate with the justice system including enforcing arrest warrants and conviction decision issued by the courts in relation to past human rights violations.
• Take concrete initiative to enact a law which criminalizes enforced disappearance

 

 

Ram Kumar Bhandari

Coordinator, NEFAD

Chairperson, Committee for
Social Justice

 

Since the disappearance, families have demanded:

1. a) the disclosure of the truth,
2. b) the return of human remains,
3. c) public acknowledgement and
4. d) respect for family rights: (the right to know the truth, justice, reparation and family peace)

However, these demands go unanswered and as the time passes, it becomes difficult to sustain the necessary pressure on the government to hold the perpetrators accountable. The government is not serious about addressing the legacy of disappearance. Hope for a strong independent commission for the investigation of enforced disappearances has been abandoned. The new Truth and Reconciliation Commission Ordinance has failed to define disappearance as a crime against humanity and to provide victims’ family any support or for the exhumation process, and, instead, has made perpetrators eligible to receive amnesty.

 

Following the end of the conflict, the families of the disappeared started to unite in hopes of achieving justice through a disappearance commission. Now the commission itself has disappeared. Instead of providing answers or admitting the disappearances, the Nepali state distributed monetary compensation, taking advantage of the victims’ economic needs, and tactically diverted the truth agenda. Instead of creating sustainable transitional justice mechanisms, the government drafted a Truth and Reconciliation Commission without consulting the victims, thus strategically diverting the justice agenda. Instead of addressing the needs of the victims and the delivery of justice, the state followed the prescriptions of donors, diverting the victims’ needs and agency in the name of superficial peace and reconciliation. This not only betrays the legacy of disappearances but also neglects the victim families’ right to know the truth. History will neither not forgive those criminals nor forget those who were disappeared. To create a transitional justice environment, enforced disappearances need to be made a national and family agenda to ensure respect towards the victims’ dignity.

 

The Supreme Court passed a decision on disappearance cases on 1 June 2007, but none of the components of that decision has been implemented. The Court ordered that the government enacts a law to criminalize enforced disappearance in line with the International Convention for the Protection of all Persons from Enforced Disappearance, establishes a high level commission of inquiry on disappearances in compliance with the international criteria on such commissions of inquiry, require investigations and prosecutions of persons responsible for disappearances, and provides adequate compensation and relief to the victims and their families. The families of the disappeared demand to the government of Nepal immediately:

• to implement past agreements and
• to execute Supreme Court decisions

 

In the name of charity and assistance, the government has offered monetary compensation, essentially placing a price on the people lost during the conflict. Money was offered in return for silence; silence regarding the lack of justice in our post conflict transition and silence about the difficulty, hardship and inequality that is perpetuated throughout Nepali society on a daily basis.

 

 

Sunil Kumar Pokharel

Secretary General,

Nepal BAR Association

During the armed Maoist insurgency in Nepal, cases of enforced disappearance occurred massively. Enforced disappearances were carried out by both state and non-state actors. This kind of serious human right violence created bad face of Nepal in international community.

 

In the Comprehensive Peace Agreement (CPA) and promulgation of Interim Constitution 2007, cases of enforced disappearance were considered as serious issue to be dealt about.

Article 33(q) of Interim Constitution has mentioned about formation of disappearance commission and proper compensation to victim’s family.

 

Supreme Court, too, in its ruling on Rajendra Dhakal v. Nepal Government, Ministry of Home Affairs, among others cases, has issued directive orders in the name of government to make necessary arrangements to provide justice to victims, formulate necessary laws to address the crime against humanity and for formation of inquiry commission to find out truth of cases of enforced disappearance occurred during the conflict.

 

In spite of above constitutional provisions and Supreme Court’s ruling, victims of enforced disappearance are still struggling for justice. Hence, Nepal Government, without any delay, must take following initiatives to render justice to the victims of enforced disappearance.

 

Make public of whereabouts of disappeared person or disclose their status Immediately

Formulate effective laws or amend existing laws to guarantee of no repetition of the cases of enforced disappearance

 

Provide necessary financial support to victims’ families and make necessary arrangement for education to children and employment to the victims’ spouses.

 

Make necessary arrangement for rehabilitation of the families, whose loved ones were subjected to enforced disappearance and those who have lost their lives in quest of justice.

 

Prosecute those who were involved in perpetrating enforced disappearance

 

 

Rameshwar Nepal

Director, Amnesty International Nepal

 

Nepal witnessed a serious trend of disappearances during a decade long conflict between 1996 and 2006. The number of disappearances reached at the top and this country was known as “country with highest number of disappearance in the world” in 2003 and 2004. The fate and whereabouts of more than 1,300 possible victims of enforced disappearance are still unknown.

 

Victims, their family members and human rights organizations are campaigning regularly, urging Nepali government to ensure that the investigations to determine the fate and whereabouts of disappeared persons are carried out without further delay, and that those suspected of criminal responsibility for these gross violations of human rights are brought to justice in fair trials. But the progress to that end is almost non and not a single person suspected has been brought to justice.

 

The Government of Nepal and Communist Party of Nepal (Maoist) signed the Comprehensive Peace Agreement (CPA), which committed both parties to investigate and reveal the fate of those killed or disappeared during the armed conflict within 60 days. Both parties promised they would “not protect impunity” and vowed to safeguard the rights of families of the disappeared. More than six years later, the promises made in the CPA have still not been fulfilled. Instead, the government has actively protected and even promoted those accused of committing human rights violations.

 

Early this year, the President approved an ordinance to establish a Commission on Investigation of Disappeared Persons, Truth and Reconciliation to investigate human rights violations committed during the armed conflict. However, the establishment of the commission was temporarily halted after the Supreme Court issued a stay order in April following legal challenges. The proposed commission is not in compliance with international law and standards on commissions of inquiry, to effectively discharge Nepal’s duty to provide remedy and reparation to victims because the Commission has wide discretion to recommend amnesty for crimes under international law, including enforced disappearance, which violates a number of Nepal’s obligations under international law. Similarly, the Commission would not have the power to recommend prosecutions against suspected perpetrators.

 

The ordinance to establish a Commission on Investigation of Disappeared Persons, Truth and Reconciliation is the result of a bargain between political parties, and seems designed to enable those suspected of criminal responsibility to avoid accountability for human rights violations and crimes under international law. Enforced disappearance is not recognized as a crime or even defined under Nepali law.

In such a complex scenario, the government must take meaningful initiatives to address its human rights obligations. Ending impunity, ensuring accountability, and strengthening the rule of law are essential for a durable transition from armed conflict to sustainable peace in Nepal.

 

The government of Nepal has to begin following steps at a minimum to ensure justice to the victims of disappearance:

• Ensure that any transitional justice mechanisms established to address conflict era violations do not replace judicial proceedings and are in accordance with international law and standards and do not have the power to grant or recommend the granting of amnesties for crimes under international law;
• Respect court orders calling on the police to investigate human rights violations and crimes under international law and, if there is sufficient admissible evidence, prosecute those suspected of criminal responsibility in trials that meet international due process standards;
• Define and criminalize enforced disappearances in domestic law in line with international standards;

Promptly accede to the International Convention for the Protection of All Persons from Enforced Disappearance and the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, without making any reservation or declaration amounting to reservation.