Jun 21, 2021 | Advocacy, News
Victims of sexual and gender-based violence during Nepal’s 10-year-long civil war still face major obstacles to justice, concluded the participants of a virtual consultation on 19 June 2021, on the occasion of the International Day for the Elimination of Sexual Violence in conflict.
The consultation was organized by the International Commission of Jurists (ICJ), in collaboration with the Conflict Victim Women National Network (CVWN), to address “Enhancing Access to Justice for Survivors of Conflict-Related Sexual Violence”. The Nepali version of ICJ Briefing Paper on “Nepal: Transitional Justice Mechanisms with Gender Perspective” was also launched as part of the consultation.
The ICJ consultation with stakeholders highlighted Nepal’s obligation under international law to ensure right to an effective remedy to the victims of sexual and gender-based violence of Nepal’s decade-long armed conflict, which came to a close with a peace accord in 2006.
Around 80 participants, including human rights defenders and conflict victims from different parts of the country attended the consultation. The participants expressed particular concern at lack of attention to gender issues in the context of Nepal’s transitional justice process since its very beginning, and urged that gender considerations be mainstreamed in the transitional justice process.
Ms. Shrijana Shrestha, Chairperson of the CVWN, underscored the lack of government data on victims of conflict-related sexual violence, and denounced the hurdles victims face in seeking justice, due to social and cultural taboos, lack of a support system, and the current statute of limitation to register complaints of sexual violence.
Ms. Mandira Sharma, ICJ Senior Legal Adviser, highlighted that, as a party to various international human rights instruments, Nepal has an obligation to ensure victims’ right to an effective remedy. Further, she expressed concern about the lack of political will since the beginning of the peace process to address the needs of women victims, in particular of victims of conflict-related sexual violence. She emphasized the need to amend the Truth and Reconciliation (TRC) Act in consultation with victims of the armed conflict.
Similarly, Dr. Susan Risal, human rights activists, emphasized the need to develop strong strategies to deal with conflict-related sexual violence in Nepal, taking into consideration the best practices of different countries.
Ms. Laxmi Pokharel, ICJ Legal Adviser, pointed out that the ICJ Briefing paper (“Nepal: Transitional Justice Mechanisms with Gender Perspective”) has analyzed the TRC legislation comprehensively, and can therefore be of use as a powerful advocacy tool for legal reform. She summarized the main findings of the briefing paper and its recommendations, including:
- Amend the TRC Act, through consultative and participatory process, in line with the Supreme Court’s order and Nepal’s international obligations;
- Ensure the participation of women in both Commissions (i.e., the Truth and Reconciliation Commission and the Commission on Investigation of Disappeared Person) at all levels of staffing and in the appointment of Commissioners with a view to ultimately achieving gender parity;
- Provide gender-sensitive training to the Commissioners and staff of the Commissions in order to enhance their ability to address gender issues in their operation;
- Amend the Criminal Code to remove the statutory limitation for filing complaints of rape and other instances of sexual violence;
- Ensure that amnesties and mediation will not be granted to perpetrators of gross human rights violations, including rape and other forms of sexual violence.
During the discussions, the participants highlighted the following major concerns:
- Despite more than six years of its establishment, the Truth and Reconciliation Commission (TRC) and the Commission on Investigation of Disappeared Person (CIDP) have failed to ensure victims’ right to truth, justice, reparation and guarantee of non-repetition;
- There is an urgent need to identify victims of conflict-related sexual violence and provide them with support in order to address their immediate needs;
- The TRC Act needs to be amended in consultation and with the participation of all main stakeholders;
- The existing statute of limitation to file complaints of rape and other forms of sexual violence is a major barrier for victims of conflict-related sexual violence, and must be amended so that victims can access justice.
The event was organized under the ‘Enhancing Access to Justice for Women in Asia and the Pacific’ project funded by the Swedish International Development Cooperation Agency (SIDA). Due to the COVID–19 pandemic, the webinar was conducted virtually via Zoom and broadcasted live on Facebook. The webinar was conducted in Nepali with simultaneous English translation.
Contact
Laxmi Pokharel, ICJ Legal Adviser – Nepal, e: laxmi.pokharel(a)icj.org
Download
Briefing paper on “Nepal: Transitional Justice Mechanisms with Gender Perspective” in English and Nepali.
Mar 1, 2021 | News
The Nepal government should immediately withdraw an ordinance that undermines the independence of constitutional human rights bodies and rescind recent appointments that were made without consultation or parliamentary approval, the ICJ, Human Rights Watch, and Amnesty International said today.
These government actions undermine public trust and confidence in the integrity of the judiciary and other constitutional bodies such as the National Human Rights Commission and the Election Commission. The illegitimate appointments process is not simply an abstract irregularity but will lead to ineffective and weak implementation of critical mandates to protect human rights and other rule of law objectives, the groups said.
“The government’s actions are a severe dent in Nepal’s long struggle for a rule of law-based constitution, which was finally adopted in 2015 to guarantee human rights,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “It is sad to see some of the same politicians who drafted the Constitution playing fast and loose with the charter just a few years later.”
On December 15, 2020, President Bidya Bhandari endorsed an executive ordinance to amend the law governing the Constitutional Council, which makes appointments to the judiciary, the National Human Rights Commission (NHRC), and other constitutional bodies including the Election Commission. Under the Constitutional Council Act, five out of six members must be present, but under the ordinance a simple majority is sufficient. Because one seat on the council is vacant the quorum has been reduced to three.
The Constitutional Council met the same day with a newly reduced quorum. Three council members made 38 nominations to vacant positions on constitutional bodies at that meeting. They included all five seats on the National Human Rights Commission (NHRC), as well as nominations to bodies established to protect the rights of Dalits, women, and marginalized minorities, and to investigate corruption allegations.
Under the Constitution, appointments to these key institutions are supposed to be vetted by parliament. However, parliament was abruptly dissolved on December 20, five days after the appointments were announced. The nominees were sworn in on February 3, 2021, despite legal challenges in the Supreme Court to the constitutionality of the nominations and the dissolution of parliament. On February 23, the Supreme Court ruled that the dissolution of parliament was unconstitutional.
“In a context where repeated calls for institutional reforms have gone unheeded for decades, this move by the government further weakens the effectiveness of constitutional bodies that are supposed to be beacons of hope for victims of human rights violations and abuses,” said Mandira Sharma, senior international legal adviser at ICJ. “Independence, impartiality and legitimacy are preconditions for these bodies to effectively and efficiently deliver their mandates.”
Nepal’s Human Rights Commission, until recently, had played an important role in calling for accountability, including by releasing the names of people allegedly responsible for serious human rights violations such as torture and extra-judicial killing and recommending that they should be prosecuted. It is currently graded ‘A’ by the Global Alliance of National Human Rights Institutions (GANHRI) for its compliance with the Paris Principles, which were adopted by the UN General Assembly as the basic standards governing the mandate and operation of effective national human rights organizations. Core among the Paris Principles is that a national human rights institution must be independent and that its independence must be guaranteed by law. The organizations are concerned that following the new appointments the commission no longer meets those standards.
Among the other constitutional bodies to which new commissioners have been appointed in the same manner are the Election Commission and the Commission for the Investigation of Abuse of Authority (CIAA), Nepal’s anti-corruption agency. The Election Commission is seen by many people as playing an important role in efforts to achieve a society based on the rule of law and respect for human rights , while the CIAA has the authority to bring corruption cases against politicians.
Numerous appointments have also been made to commissions with mandates to protect the rights of people from vulnerable groups, including the National Women’s Commission, National Dalit Commission, and National Inclusion Commission. Many of these positions had lain vacant for years.
At least two Supreme Court petitions have been filed challenging the ordinance amending the Constitutional Council Act, and the new appointments to constitutional bodies. The chief justice, Cholendra Shumsher Rana, who sits on the constitutional bench of the Supreme Court, participated in the three-member Constitutional Council meeting that made the disputed nominations, and he administered the oath of office to the new commissioners on February 3.
“The doubts over the independence and integrity of the NHRC and other commissions will endanger the protection of human rights in Nepal,” said Dinushika Dissanayake, Deputy South Asia Director of Amnesty International. “The government must immediately reverse these appointments and start a new process in consultation with the civil society and rights holders in Nepal.”
The Accountability Watch Committee, a group of prominent human rights defenders in Nepal, issued a statement on February 12 announcing that they would not “cooperate and engage with the NHRC and other constitutional bodies until the Supreme Court’s decision.” Accountability Watch also called upon “the United Nations, diplomatic missions in Nepal and international organizations not to give legitimacy and cooperate with this appointment process which is currently sub-judice at the Supreme Court of Nepal.”
Foreign donor agencies that have previously engaged with the NHRC, and with the other commissions affected by this process, should stand clearly for a proper, open, and transparent appointments process that is based on international standards, Human Rights Watch, ICJ, and Amnesty International said.
Download the statement in English and Nepali.
Contact
In London, Meenakshi Ganguly (English, Bengali, Hindi): gangulm(a)hrw.org
In Colombo, Dinushika Dissanayake (English): dinushika.d(a)amnesty.org
In Kathmandu, Mandira Sharma (English, Nepali): mandira.sharma(a)icj.org
Aug 30, 2020 | Advocacy, News
While commemorating the International Day of the Disappeared 2020, the ICJ and 47 other national and international organizations and groups of victims, in Nepal, call on the responsible authorities to undertake immediate steps towards reinvigoration of the transitional justice (TJ) process, adopting a transparent and consultative process.
On this occasion, the victims’ groups and human rights organizations in Nepal commend the patience and resilience shown by the family members of those subjected to enforced disappearance during the 10-year-long internal armed conflict from 1996-2006. They have worked tirelessly advanced the TJ process (Truth, Justice, Reparation and Institutional Reform) in Nepal for more than a decade through their peaceful struggle, despite many difficult hurdles.
In 2015 the Supreme Court found several sections of the Truth and Reconciliation Commission (TRC) Act, including the one empowering the commissions to offer amnesty and facilitate mediation/reconciliation between victims and perpetrators, including those involved in gross human rights violations, to be unconstitutional and non compliant with Nepal’s international obligations. More recently, on 26 April 2020 the Court rejected the petitions of the Government to review and revise the 2015 decision.
To date, the Government has not initiated any effort to amend the law as per these decisions. Rather, it has been misusing these Commissions in a manner that has prevented victims from accessing remedies through the regular criminal justice system and has made no efforts to strengthen these Commissions to delivery their mandates effectively. Two years back, Nepal recognized enforced disappearance as a distinct crime for the first time when enacting a new Penal Code. While this step is commendable, these legal provisions have not ensured justice for victims, the police typically refuse to investigate cases from the conflict period,arguing that they come under the jurisdiction of the TJ mechanisms.
Despite civil society’s repeated calls to appoint the Commissioners after amending the TRC Act following wider consultations with victims and civil society, the Government recently appointed Commissioners under the same Act that the SC had deemed flawed five years ago. Moreover, the Government has not addressed the repeated calls and concerns regarding the political interference and lack of transparency in the appointment of the Commissioners and the overall TJ process.
Human rights organizations and many victims groups have lost confidence in and stopped supporting to these Commissions.
The undersigned organizations call upon the Government of Nepal:
- To ensure the Commissions provide for, rather than delay and deny, truth and justice to
victims;
- Start fresh consultations to amend its law in compliance international human rights law
and Supreme Court directives, including by removing of amnesty for the perpetrators
provisions;
- Appoint a new set of commissioners under the revised Act that respects victims basic right
to truth and justice;
- Immediately ensure the social, cultural, economic, psychological and legal support
suffered by the victims and families of enforced disappearance as part of victims’ rights
to reparation;
- Revise the Penal Code to bring it in line with international standards. As a minimum, this
should include:
- amending the definition of enforced disappearances to bring it in line with Nepal’s international obligations and the Convention on the Protection of All Persons from Enforced Disappearance
- revising the penalty for enforced disappearance in the Penal Code to make it proportionate to the gravity of the crime
- removal of the statute of limitations for enforced disappearance cases
- Ratify International Convention for the Protection of All Persons from Enforced Disappearances Punishment.
Download
Full joint-statement with detailed information in English and Nepali. (PDF)
Contact
Ian Seiderman: ICJ Legal and Policy Director, e: ian.seiderman(a)icj.org
Mandira Sharma: ICJ Senior Legal Adviser, e: mandira.sharma(a)icj.org
Jun 26, 2020 | News
On the occasion of the International Day in Support of Victims of Torture, the ICJ, Advocacy Forum (AF) and Terai Human Rights Defenders Alliance (THRD Alliance) voiced concerns about the near total failure by authorities to investigate and prosecute acts of torture in Nepal.
Nearly two years after provisions in the new Penal Code that criminalized torture came into effect, not a single torture prosecution appears to have been brought. There have also been very few instances in which victims have received an effective remedy and reparation for their ill-treatment. Nepal has failed to meet its obligations in this regard under article 2(3) of the International Covenant of Civil and Political Rights and article 14 of the Convention Against Torture.
“Nepal has an obligation under international law to hold perpetrators accountable for acts of torture and cruel, inhuman or degrading treatment. This includes obligations as a party to the Convention Against Torture and the international Covenant on Civil and Political Rights,” said Frederick Rawski, ICJ Asia-Pacific Director. “It is disturbing to see that two years after the rightfully celebrated Penal Code provisions criminalizing torture have come into effect, the government has yet to successfully prosecute any acts of torture, which by all accounts continue to occur on a frequent basis.”
The Advocacy Forum and THRD Alliance both published reports today that document instances of torture and other ill-treatment against detainees over the past year. Some 20 percent of the more than 1000 detainees interviewed reported some form of unlawful ill-treatment during confinement.
“Although in some locations there appears to be some improvement in the treatment of detainees, torture and ill-treatment remains far too prevalent,” said Om Prakash Sen Thakuri, Advocacy Forum Executive Director. “Police still continue to rely on “confessions”, typically obtained by ill-treatment or coercion during interrogation, as opposed to conducting proper investigations. Our police institutions need serious reform to ensure that investigative practices conform to international law and standards.”
In a separate report analyzing the obstacles faced by victims in seeking justice for torture and ill-treatment, the THRD Alliance documented the complex challenges faced by torture survivors seeking accountability in the formal justice system. These obstacles included a frequently refusal by police to file a First Information Report on allegations of ill-treatment, statutes of limitation preventing cases from being prosecuted, and a lack of independence of police investigations in the rare cases when they do move forward.
“Despite repeated public commitments by justice sector and human rights institutions, such as the National Human Rights Commission and the Office of the Attorney General, torture survivors still struggle to have their voices heard or have their cases addressed,” said Mohan Karna, Executive Director of the THRD Alliance. “We urge the authorities at both the federal and provincial levels to take action to address the concerns of victims and to institute policies – such as establishing robust detention monitoring and internal accountability mechanisms – that will deter future acts of torture and ill-treatment.”
On the occasion of the International Day in Support of Victims of Torture, the three organizations urged the Government of Nepal to:
- Carry out prompt, thorough, impartial and effective investigations into all allegations of torture and ill-treatment, and to bring prosecutions where warranted under the criminal provisions of the Penal Code.
- Institute structural reform within the police including the establishment of a separate and independent mechanism to investigate allegations of torture and ill-treatment involving police personnel.
- Ensure public availability statistics on the investigation, prosecution and other action taken in response to allegations of torture and ill-treatment.
- Amend the Penal Code and other relevant provisions of law to eliminate the statute of limitations in torture cases, and to ensure that the definition of torture is in line with international law.
- Establish an independent preventative mechanism for monitoring of detention centers.
- Become party to the Optional Protocol of the Convention on Torture
Background
International Day in Support of Victims of Torture is marked worldwide on 26 June every year. Under the International Covenant on Civil and Political Rights (ICCPR) and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), to which by Nepal is a party, the authorities to investigate, prosecute, punish and provide effective remedies and reparation for the crimes of torture and other acts of ill-treatment.
The Penal Code criminalizing torture came into force in August 2018. While it was welcome as positive step, the provisions fall short of international standards in a number of respects, including failure to recognize the continuous nature of the crime of enforced disappearance or its status as a crime against humanity; an unacceptably brief six-month limitation period to file complaints; and penalties incommensurate with the gravity of the crimes.
Download
Nepali (PDF)
English (PDF)
Contact
Frederick Rawski, ICJ Asia-Pacific Director, e: frederick.rawski@icj.org, t: +66 644781121
Om Prakash Shen Thakuri, AF, Executive Director, e: opsenthakuri@gmail.com, t: +977 9841275732
Mohan Karna, THRD Alliance, Executive Director, e: karnamohan90@gmail.com, t: +977 9841449139
May 1, 2020 | News
The decision by Nepal’s Supreme Court to reject a petition by the government asking that it review its 2015 ruling against amnesties for grave conflict-era crimes is an important step in securing truth, justice and reparations for the thousands of victims of the country’s decade-long conflict, the ICJ and other groups said today.
The armed conflict between Maoist and government forces ended in 2006, but victims of serious abuses by both sides are still awaiting justice, accountability and reparations.
The ICJ, Amnesty International, TRIAL International, and Human Rights Watch called upon the Government to revise the 2014 Transitional Justice Act and ensure its implementation in accordance with the Supreme Court’s judgments, so as to assure access to justice for the victims of conflict-era abuses.
Nepal’s transitional justice law, which was passed by Parliament in April 2014, established a Truth and Reconciliation Commission and a Commission of Investigation on Enforced Disappeared Persons.
However, it contained provisions that could allow for amnesties even for crimes such as torture, including rape and other sexual violence and ill-treatment and enforced disappearance.
On 26 February 2015, the Supreme Court struck down the amnesty provisions and ordered the act to be amended accordingly. However, the government immediately petitioned to overturn the ruling. That petition was rejected by the court on April 27, 2020.
“With the Supreme Court’s decision, there can be no further excuse for government backsliding on ensuring truth, justice, reparations and guarantees of non-recurrence. The government should immediately amend the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act, 2014 in line with the Supreme Court’s orders and its own international obligations,” said Biraj Patnaik, South Asia Director at Amnesty International.
With its latest ruling the Supreme Court has upheld the principle that there can be no amnesties for those suspected of criminal responsibility for crimes under international law and human rights violations. More than 13 years since the Comprehensive Peace Agreement of November 2006 promised justice to the victims, no one has been made accountable for any conflict era crimes.
“The request filed by the Nepal Government to review the decision of the Supreme Court was another attempt to evade the real issue: accountability for mass human rights violations. We are delighted that the Supreme Court held its ground and reaffirmed the importance of fair and efficient transitional justice mechanisms,” said Cristina Cariello, the Head of Nepal Program at TRIAL International.
Amnesty International, the ICJ, Human Rights Watch and TRIAL International have repeatedly expressed concerns about the faltering transitional justice process. Besides the failure to amend the law to uphold basic principles of justice, there have been long delays and repeated political interference in appointments to the two transitional justice commissions.
“Over the past decade, the Supreme Court of Nepal has produced some of the most human rights compliant jurisprudence in South Asia. This petition cynically sought to have the Court undermine its own judgement, so that the government could sidestep its responsibility to provide accountability for conflict-related human rights violations,” said Frederick Rawski, ICJ Asia Pacific Director. “The government has no excuse for not immediately amending the transitional justice legal framework so that it is consistent with the Court’s jurisprudence and Nepal’s international legal obligations.”
An effective transitional justice system requires strong legal foundations consistent with international law and standards, and the political will to address the demands of victims of the conflict, the organizations said.
“When Nepal stood for election to the United Nations Human Rights Council the government promised to uphold its human rights obligations, but 3 years later, as it seeks re-election, there has been nothing but impunity and evasion on transitional justice,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “These are crimes under international law, subject to universal jurisdiction, and if justice is denied at home victims may take their cases abroad.”
Contact
Frederick Rawski, ICJ Asia-Pacific Director, frederick.rawski(a)icj.org, +66644781121
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English
Nepali
