Aug 22, 2020 | News
On 15 and 22 August 2020, the ICJ, in collaboration with the National Judicial Academy (NJA) of Nepal, organized the National Judicial Dialogue on the Elimination of Discrimination against Women and Enhancing Women’s Access to Justice.
Due to the exigencies caused by the COVID-19 pandemic, the judicial dialogue was conducted through virtual means.
Fifteen trial court judges from Kathmandu Valley participated in this judicial dialogue with judicial experts from other countries.
Judge Amy Alabado Avellano, a Regional Trial Court judge from the Philippines, engaged with the judges on the application of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in their judicial decisions. Roberta Clarke, ICJ’s Executive Committee Chairperson and UN Women’s OIC for UN Women’s East and Southern Africa Regional Office, spoke on the right to access to justice under international human rights law.
The second day featured a discussion on specific barriers that women in Nepal face when they access justice. The judges discussed their own role and measures available to the judiciary as an institution to enhance access to justice for women in Nepal. Hon. Justice Sapana Pradhan Malla from the Supreme Court of Nepal and Dr. Diwakar Bhatta from the National Judicial Academy of Nepal led these discussions.
At the Dialogue Emerlynne Gil, ICJ Senior International Legal Adviser, remarked that “judges have a responsibility to uphold the fairness and integrity of the justice system by ensuring that proceedings are conducted in a fashion that does not subordinate the fact-finding process to myth and stereotype.” Honorable Top Bahadur Magar, the Executive Director of the National Judicial Academy, stressed that, “Trial court judges play a pivotal role in debunking myths and gender stereotypes.”
Highlighting the importance of continuing the work towards eliminating gender discriminatory practices among frontline justice actors, even during the COVID-19 pandemic, Emerlynne Gil said. “The COVID-19 pandemic is aggravating existing gender inequalities and women are experiencing more violations of their human rights.”
Contact
Laxmi Pokharel, National Legal Advisor, International Commission of Jurists, t: 977 9851047588, e: laxmi.pokharel(a)icj.org
Jul 10, 2020 | Advocacy, News, Non-legal submissions
Today, the ICJ submitted a report to the UN Human Rights Council Working Group on the Universal Periodic Review (UPR) ahead of the review of Nepal’s human rights record in January-February 2021.
In the submission, the ICJ, Advocacy Forum – Nepal (AF), Terai Human Rights Defenders Alliance (THRD Alliance) & University of Passau, provided information and analysis to assist the Working Group to make recommendations to the Government of Nepal to take measures to prevent acts of torture and ill-treatment; to implement a human rights compliant legal framework for accountability and remedy and reparation for victims; and institute other measures to comply with its international obligations, including ratification of international human rights instruments.
In light of the concerns set out above, the ICJ, AF and THRD Alliance call upon the UPR Working Group and the Human Rights Council to recommend the following to Government of Nepal:
- Ensure that the law criminalizing torture is consistent with international law, through the passage of an anti-torture law, and/or through amendment to the current Penal Code, including that the:
-
- Definition of torture in national law is in line with the CAT and other international treaty provisions;
- Statutory limitation or prescription periods for the filing of complaints or cases of torture or other ill- treatment be removed;
- Penalties for torture are commensurate to the gravity of the offence;
- Definition of reparation encompasses restitution, compensation, rehabilitation (including medical and psychological care, as well as legal and social services), and guarantees of non-repetition;
- Independent mechanisms for the regular monitoring of places of detention are established, or existing mechanisms adequately supported.
- Ensure that all allegations of torture are registered, investigated and prosecuted by an independent and impartial investigative body;
- Ensure that all detainees have access to legal representation;
- Collect and publicize data on allegations of torture and ill-treatment, including prosecutions and any measures, including disciplinary measures, taken against perpetrators;
- Establish an independent police service commission or equivalent body to ensure fair and transparent appointment, promotion, transfer of police officers and to oversee disciplinary complaints against the police;
- Establish a consistent system of documentation in each police station and at any detention facilities, in particular, concerning the entry into and release of detainees from custody, as well as the procedure during interrogations;
- Systematize human rights education and training in police training programmes, including medico-legal training (based on Istanbul Protocol);
- Ensure that victims are adequately involved in criminal proceedings, in accordance with international standards developed for this purpose;
- Ratify OPCAT and establish a national preventative mechanism that complies with its requirements; become a party to other core human rights treaties to which Nepal is not yet a party;
- Accept the requests to visit Nepal from UN special procedures, including the Working Group on Enforced and Involuntary Disappearances, the Special Rapporteur on Torture, Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence.
Download
Nepal-UPR-Submission-2020-ENG (PDF)
Contact
Frederick Rawski, ICJ Asia and Pacific Regional Director, e: frederick.rawski(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
Download
English
Nepali
Jan 25, 2020 | News
Recent steps taken by the government are a serious setback on Nepal’s transitional justice process, the ICJ, Amnesty International, Human Rights Watch and TRIAL International said today.
The organizations expressed concern about the decision to appoint commissioners to the two transitional justice commissions without adequate consultations, and without amending the legal framework to make it consistent with international human rights law and Supreme Court of Nepal rulings.
“Nepal’s political leaders know that a transparent process is essential to ensure justice and accountability for egregious rights violations during the conflict, but they keep trying to protect those responsible for the abuses,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “If the political leadership continues to evade responsibility, they leave little choice but for victims to approach courts outside the country.”
On January 18, 2020, a five-member committee formed by the government to recommend names for commissioners for the Truth and Reconciliation Commission (TRC) and the Commission on the Investigation of Enforced Disappeared Persons (CIEDP) submitted its nominations. The committee sent the names forward despite longstanding demands by victims’ groups and civil society for the government to first amend the transitional justice legal framework to ensure that it complies with Nepal’s international obligations and is responsive to victims’ concerns.
Instead, the Ministry of Law, Justice and Parliamentary Affairs on January 13 hastily convened provincial consultations on the transitional justice laws lasting just three hours, which allowed little time for meaningful participation by victims’ groups and civil society.
“The government’s decision to carry out another rushed and secretive set of consultations fails to give due respect to the long-standing demands of victims and civil society,” said Frederick Rawski, ICJ’s Asia-Pacific Director. “It also makes it very difficult to take seriously the statements of political leaders that they are committed to supporting a victim-centred and human rights compliant process.”
Victims’ groups and human rights organizations have rejected these appointments and consultations, and have reiterated that they will not support a transitional justice process that is opaque, non-consultative, and undermines the victims’ right to truth, justice and reparations.
In addition, in its secretariat meeting earlier this week, the Nepal Communist Party (NCP) nominated Agni Sapkota as the speaker of the Federal Parliament. Sapkota, a member of parliament and the party standing committee, has been accused of responsibility for the abduction and killing of Arjun Lama in 2005 in Kavre. The case is the subject of proceedings including before the Supreme Court of Nepal.
NCP should reconsider Sapkota’s nomination as speaker of the parliament until there is a thorough and independent investigation, the organizations said.
“Nepal authorities should not appoint to high office people that are under investigation for human rights abuses, when they could interfere with that investigation,” said Audrey Oettli, Program Manager at TRIAL International. “Such appointments are yet another illustration of the government’s unwillingness to demonstrate a basic commitment to holding perpetrators of conflict-era rights abuses accountable.”
In March 2008, the Supreme Court directed the police to register a case against Sapkota for abducting and killing Lama and to carry out an investigation. The police did not comply. In 2010, Australia and the US rejected visa applications from Sapkota in light of the allegations of serious human rights violations.
When Sapkota was appointed information communication minister in May 2011, the UN Office of the High Commissioner for Human Rights issued a statement expressing concern, saying that states have a responsibility “to ensure that the name of a person is fully cleared following a thorough investigation before any appointment to a high public office is announced.”
The ICJ, Amnesty International, Human Rights Watch and TRIAL International have repeatedly expressed concern about the transitional justice process. 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 organization said.
Concerns raised about the legal framework include: disparities between the definitions of specific crimes under international law and human rights obligations and violations under national, and international law; inadequate provisions to ensure that serious crimes under international law are subject to criminal accountability, including punishment proportionate to the seriousness of the crimes; and a reliance on compensation at the expense of other forms of reparation and remedy for conflict survivors and their families.
The government should amend the the 2014 Transitional Justice Act to make it consistent with the Supreme Court’s rulings and international human rights standards, the groups said. It should initiate a genuine consultative and transparent process for the appointment of commissioners. And it should conduct credible and impartial investigations instead of appointing people accused of conflict-era crimes to high public offices.
“The government and the political parties in Nepal are increasingly showing that they are unwilling and incapable to deliver truth, justice and reparations to the conflict victims domestically,” said Biraj Patnaik, South Asia Director at Amnesty International. “Their signal of impunity will further push the victims and activists to seek justice internationally under universal jurisdiction. Instead of putting those suspected of criminal responsibility into positions of power, the government should bring them to justice in fair trials.”
To download the statement in Nepali, click here.
Contact
- Frederick Rawski, ICJ Asia-Pacific Director, e: frederick.rawski(a)icj.org, +66 644781121
- Biraj Patnaik, Amnesty International, South Asia Director, e: biraj.patnaik(a)amnesty.org, t: +94 716123280
- Meenakshi Ganguly, HRW, South Asia Director, e: gangulm(a)hrw.org
- Audrey Oettli, TRIAL International, Program Manager, e: a.oettli(a)trialinternational.org
