Feb 13, 2018 | News
The one-year extensions of Nepal’s two transitional justice mechanisms without necessary legal and institutional reforms ordered by the Supreme Court and the UN are insufficient to comply with international standards, the ICJ, Amnesty International and Human Rights Watch said today.
The three organizations warned that the mere extension of the terms of the Truth and Reconciliation Commission (TRC) and the Commission on the Investigation of Enforced Disappeared Persons (CIEDP) is likely to prolong the justice process without meaningfully improving the chances that victims will have their demands for justice, truth, and accountability met.
“The net worth of these two bodies has now been tested by the victims in Nepal who are deeply dismayed and disappointed at not having been served truth and justice—even after years of delay,” said Biraj Patnaik, Amnesty International’s South Asia Director.
On February 5, 2018, the Government of Nepal extended, for the second time, the mandates of the TRC and CIEDP by one year without taking any measures to ensure their credibility and human rights compliance, and to increase the capacity of the Commissions as demanded by victims, civil society groups, and the National Human Rights Commission of Nepal (NHRC).
On the same day, the NHRC called on the government to amend the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act, 2014, in line with international standards and the judgements of the Supreme Court of Nepal.
The TRC and CIEDP have fallen short of international standards, both in constitution and operation, despite repeated orders by the Supreme Court of Nepal.
Among other flaws, the current legal framework allows for the possibility of amnesties and effective impunity for gross human rights violations amounting to grave crimes under international law, and the broad authority to facilitate reconciliation, including without the informed consent of the victims and their families.
In addition, a non-consultative, uncoordinated and opaque approach to their work has also created distrust with all major stakeholders, including conflict victims and members of civil society.
Where the Commissions have made efforts to work effectively, they face problems due to a lack of sufficient human and financial resources.
“Families and victims of Nepal’s decade-long civil war have waited far too long for answers, and cynical government attempts such as extending the mandate without broader reform as directed by the highest court is a further slap in the face,” said Meenakshi Ganguly, South Asia director at Human Rights Watch.
“The two commissions have gathered a lot of documentation, but the authorities seem more committed to protecting perpetrators than ensuring justice in the process.”
Despite flaws in the law, and questions of legitimacy and capacity, victims and their families have given the benefit of the doubt to these bodies, and submitted thousands of complaints.
As of February 2018, the TRC has received 60,298 complaints of human rights violations, and the CIEDP has received 3,093 complaints of enforced disappearance.
Though the Commissions have stated that they have initiated investigations into some of these cases, there are serious concerns about the quality of these investigations, and to date, not a single case has been recommended for prosecution.
“Now a member of the UN Human Rights Council, the international community has high expectations of the government of Nepal,” said Frederick Rawski, Asia Director of the International Commission of Jurists.
“It needs to commit to ensure that these institutions function independently and free from political interference, and in accordance with international standards that prohibit impunity for gross human rights violations. Merely extending their mandates without addressing the underlying problems is not adequate.”
Contacts
Frederick Rawski, ICJ Asia Pacific Regional Director, t: +66 64 478 1121, e: frederick.rawski@icj.org
Meenakshi, Ganguly, South Asia Director, Human Rights Watch, e: gangulm@hrw.org
Omar Waraich, Deputy Director, Amnesty International South Asia, t: +94 72 737 5467; e: omar.waraich@amnesty.org
Background
The TRC and CIEDP were established on 10 February 2015 through the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act, 2014.
The two-year mandates of the TRC and CIEDP expired on February 9, 2017.
The government extended the mandates for one year.
On 20 January 2018, the President approved an Ordinance extending the mandate of the two Commissions.
On the basis of the Ordinance, the Council of Ministers, on 5 February 2018, extended the mandates of these bodies for an additional year.
Jan 31, 2018 | Advocacy, Non-legal submissions
The ICJ submitted a written statement on impunity and transitional justice, ahead of the March 2018 session of the UN Human Rights Council.
The written statement can be downloaded in PDF format below:
In English: UN-HRC37-WrittenStatement-NepalPeruImpunity-EN
In Spanish: UN-HRC37-WrittenStatement-NepalPeruImpunity-ESP
Dec 21, 2017 | News
On the 10th anniversary of the Supreme Court’s decision in Sunil Babu Pant on the protection of the rights of lesbian, gay, bisexual, transgender and intersex people (LGBTI), the ICJ calls on the Government of Nepal to fully implement the Court’s ruling.
In 2007, the Supreme Court of Nepal delivered a judgment in Sunil Babu Pant v. the Government of Nepal and others, directing the Government of Nepal to take necessary measures to ensure that people of diverse gender identities and sexual orientations could fully enjoy their rights without discrimination. Such measures were to include the adoption of new laws or amending existing laws.
However, ten years after the judgment, LGBTI persons are denied equal protection of the law, and their rights are still not fully protected.
“The Supreme Court’s 2007 judgment gave hope to LGBTI people in Nepal and inspired judiciaries in the region and the world,” said Frederick Rawski, ICJ’s Asia Director. “Despite some positive measures, the Government has much more work to do to implement the judgment and ensure that the rights of the LGBTI community in Nepal are fully respected.”
The Supreme Court based its findings on international human rights law and standards, particularly in respect of the right to non-discrimination and equality and the right to privacy. The Court relied in particular on Nepal’s legal obligations under the International Covenant on Civil and Political Rights (ICCPR).
The Court strongly rejected arguments that a person’s LGBTI status was the result of “emotional and psychological disorders”, and found that the petitioners faced violence, stigmatization, and discrimination because of their sexual orientation or gender identity. The Court further ordered that a new Constitution under consideration by the Constituent Assembly should guarantee the right to non-discrimination on the grounds of gender identity and sexual orientation.
Since then, some steps have been taken. The 2015 Constitution that was ultimately adopted contains provisions guaranteeing the right to equality for all citizens and establishing special provisions for the protection, empowerment and advancement of gender and “sexual minorities”. Pursuant to a subsequent Supreme Court ruling, transgender men and women can now change their gender markers to “O” on official documents. However, to use “M” or “F”, they still face prohibitive and unclear restrictions. A recently tabled bill would also criminalize unnecessary medical interventions and provide some, though incomplete, protections to intersex children.
Despite these developments, discrimination against LGBTI people remains rampant in the labour market, in schools and in hospitals. LGBTI people are mistreated and sometimes disowned by their families and singled out for physical attack – often beaten, sexually assaulted and subjected to severe physical abuse. Recent revisions to the Civil Code (2017), effective from mid-August 2018, do not recognize equality before the law related to family life.
“These violations continue in the absence of a state strategy or political will to tackle them,” added Rawski. “The Government of Nepal should prioritize enacting reforms to ensure the protection of the rights of LGBTI persons.”
The ICJ calls on the Government of Nepal to fully implement all aspects of the 2007 ruling and subsequent Supreme Court rulings affecting LGBTI communities. This should include, at the minimum:
- Repealing all discriminatory laws, including provisions of the recently introduced Penal and Civil Codes, against sexual orientation and gender identity in line with the principle of equality, equal protection and non-discrimination;
- Enacting legislation that allows same-sex couples full equality before and protection of the law;
- Enacting legislation that removes any prohibitive or unclear restrictions to changing of gender markers on all official documents;
- Enacting legislation that establishes prior, free, full, informed, genuine and consistent consent, and prevents unnecessary medical interventions on intersex persons; and
- Ensuring that the legal protections are given practical effect, including through implementation measures and administrative instructions binding officials at all levels of government.
Contact:
Frederick Rawski, ICJ Asia Pacific Regional Director, t: +66 64 478 1121, e: frederick.rawski@icj.org
Nov 1, 2017 | News, Publications, Reports, Thematic reports
The arrest of absconding murder convict Bal Krishna Dhungel, a senior Maoist leader, highlights the weaknesses, as well as the promises, for victims seeking accountability through Nepal’s judicial system, said the ICJ as it released a report on accountability mechanisms in the country.
The ICJ’s report Achieving Justice for Gross Human Rights Violations in Nepal concludes that impunity for gross human rights violations is one of the major obstacles to the creation of a stable and legitimate democratic government and lies at the heart of the rule of law crisis in Nepal.
It found that a lack of commitment by Nepal’s political leadership to address past and ongoing human rights violations continues to allow perpetrators to escape justice and undermines victims’ right to effective remedies and reparation.
“In the past, the promise to shield perpetrators for human rights violations has been used as a bargaining chip to garner political support and build political alliances,” said Frederick Rawski, Director of the ICJ’s Asia Pacific Regional Programme.
“It is imperative that accountability for human rights violations remains a priority for Nepal’s political leadership after Parliamentary elections, and that alliances between political parties are not once again used as an excuse to undermine Nepal’s human rights obligations,” added Rawski.
Attempts to thwart justice have also included the cynical manipulation of justice sector actors, from the police to the Attorney General’s office, in a way that threatens the independence and credibility of the institutions responsible for safeguarding human rights and the rule of law in Nepal, the report highlights.
This pattern of impunity persists despite demands for accountability by civil society and victims’ organizations, as well as the National Human Rights Commission and Nepal’s Supreme Court.
“In many ways, the Supreme Court of Nepal has emerged as a beacon of hope for victims of human rights violations,” said Rawski.
“The Court has given domestic effect to Nepal’s obligations under international law and has set high standards for accountability, remedy and reparations,” he added.
However, the Government’s disregard of key judgments has limited the impact of the Supreme Court’s jurisprudence, the report says.
Attacks on the independence of the judiciary, as demonstrated by the impeachment motion against former Chief Justice Sushila Karki, also indicate a worrying trend.
The ICJ’s report found that the mandate and operation of transitional justice mechanisms fall short of international standards despite the repeated reinforcement of such standards by the Supreme Court.
Though ostensibly formed to provide a measure of public accountability, the practice of forming ad hoc commissions of inquiry to investigate rights violations has promoted impunity by diverting investigations from the criminal justice process – where they belong – into parallel mechanisms that are established by means that make them vulnerable to political interference and manipulation.
The ICJ’s report also concludes that gross human rights violations in Nepal are not a thing of the past, but are ongoing.
Notably in the Terai region, the State has responded to the Madhesh movement with excessive use of force, extrajudicial killings, and torture and other ill-treatment.
Political expediency has trumped calls for justice and accountability and the Government continues to use State machinery to shield perpetrators rather than serve the interests of justice.
“In a seemingly perpetual cycle, the weak rule of law in the country contributes to impunity for human rights violations, and this culture of impunity further erodes the rule of law,” said Rawski.
“The search for truth and justice in Nepal will not be realized unless this cycle is ended,” he added.
Additional information
Dhungel had been absconding since the Supreme Court upheld his conviction for murder in 2010. The arrest comes after a contempt of court petition was filed before the Supreme Court against the Inspector General of Police for failing to implement multiple Supreme Court orders directing Dhungel’s arrest.
Contact
Frederick Rawski, ICJ Asia Pacific Regional Director, t: +66 64 478 1121, e: frederick.rawski@icj.org
Alex Conte, ICJ Global Redress and Accountability Initiative, t: +41.79.957.2733; e: alex.conte@icj.org
Download
Nepal-GRA Baseline Study-Publications-Reports-Thematic reports-2017-ENG (full report in PDF)
Read also
ICJ Discussion Paper Nepal’s Transitional Justice Process: Challenges and Future Strategy (August 2017)
ICJ Report Authority without Accountability: The struggle for justice in Nepal (October 2013)
Aug 29, 2017 | News
Today, the ICJ concluded its Regional Conference on Women Human Rights Defenders as Political Actors, which gathered in Kathmandu women human rights defenders (WHRDs) from all over Nepal who were recently elected during the local elections in May 2017.
They were joined by Bushra Gohar, a former Member of Parliament in Pakistan, Ahmed Naaif of the Maldivian Democracy Network, and Sherene Xavier, a filmmaker and WHRD from Sri Lanka.
The discussions focused on how the newly-elected WHRDs can continue to advance human rights in their new roles as elected officials.
Under Nepal’s Local Level Election Act 2017, political parties are required to field female candidates for half of the executive posts (mayor/deputy mayor) and at least 40% for membership at the local community councils.
In May 2017, during the first local election held in the country in almost 20 years, approximately 20,000 women stood for elections, including WHRDs.
Most of the women candidates, however, were fielded by the political parties for the deputy mayor posts. At least 92% of the candidates fielded for the mayoral posts were men.
The discussions during the two-day conference (28-29 August 2017) focused on how these affirmative measures should be utilized by women human rights defenders in Nepal to advance equal participation of women in public affairs and further their advocacy for human rights.
There was some caution expressed by some of the women that these measures may reinforce the already disadvantaged place women hold in public life and may also be viewed as tokenism.
Participants in the conference discussed as well how as WHRDs, they would need to deal with human rights abuses allegedly committed by their political parties against women.
The need for WHRDs in politics to have their own support system was also emphasized during the conference.
The participants of the conference ran under the banner of various political parties in Nepal.
The National Alliance of Women Human Rights Defenders of Nepal collaborated with ICJ in organizing the conference.
The conference was opened with a keynote speech from Justice Sapana Pradhan Malla of the Supreme Court of Nepal, who spoke about the challenging path women politicians face.
Former Chief Justice Kalyan Shrestha, Commissioner of the ICJ, chaired the opening ceremonies.
