Aug 30, 2013 | News
The ICJ is highly concerned by the deteriorating health of Nanda Prasad and Gangamaya Adhikari who are on hunger strike, protesting the failure of the state to investigate and prosecute the 2004 killing of their son Krishna by Maoist insurgents.
Ben Schonveld, the South Asia Director of ICJ said: ” Mr and Mrs Adhikari are just one of thousands of families in Nepal who are asking for something very simple: justice. They are not looking for more commitments or words. They are asking the State of Nepal to obey its own laws and investigate and punish very serious crimes (committed by both sides to the conflict) that violate international human rights law; laws that Nepal has repeatedly committed itself to uphold.”
Contact:
Ben Schonveld, South Asia Director, t: +977 9804596661; email: ben.schonveld(a)icj.org
Photo by eKantipur.com
Aug 30, 2013 | News
On the 30th annual International Day of the Disappeared, the ICJ urged the Nepali Government to act immediately to disclose the fate and whereabouts of “disappeared” persons and to provide accountability for the perpetrators of these gross violations of human rights.
The systematic practice of enforced disappearance during Nepal’s 1996-2006 armed conflict was among the worst anywhere in the world, the ICJ says.
The fate and whereabouts of more than 1,300 possible victims of enforced disappearance are still unknown.
To date, not one individual suspected of criminal responsibility for serious human rights violations or crimes under international law committed during the conflict has been brought to justice.
“The Government must meet its human rights obligations”, said Ben Schonveld, ICJ’s South Asia Director. “Ending impunity, ensuring accountability, and strengthening the rule of law are essential for a durable transition from armed conflict to sustainable peace in Nepal”.
On 21 November 2006, the Government of Nepal and Communist Party of Nepal (Maoist) signed the Comprehensive Peace Agreement (CPA), committing 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.”
Almost seven years later, the promises made in the CPA have still not been fulfilled, the ICJ says.
Instead, the Government has actively protected and even promoted those suspected of committing human rights violations.
On 14 March 2013, Nepal’s President promulgated 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 in a number of respects.
First, the process of the appointment of the Chairperson of the Commission does not ensure independence and impartiality.
Second, the Commission has wide discretion to recommend amnesty for crimes under international law, including enforced disappearance, to those who repent.
When combined with the fact that the crime of enforced disappearance is not yet a distinct offence punishable under the law of Nepal, there are grounds for real concern that impunity for the hundreds of enforced disappearances carried out during the course of the conflict will continue.
“The framework for the Commission set out in the Ordinance was the result of a bargain between the political parties”, Schonveld added. “The Commission seems designed to enable those suspected of criminal responsibility to avoid accountability for human rights violations and crimes under international law committed over the course of Nepal’s decade-long conflict”.
The ICJ urges the Government of Nepal to:
1. Withdraw the Ordinance, or establish a mechanism for its review and amendment, which includes inclusive consultation with victims of conflict related human rights abuses and representatives of civil society, with the aim of ensuring that the Commission established is consistent with international law and standards;
2. Promptly accede to the UN International Convention for the Protection of All Persons from Enforced Disappearance;
3. Ensure that enforced disappearance, as defined under the International Convention for the Protection of All Persons from Enforced Disappearance, is included as a distinct offence and is punishable by penalties that are proportionate with its gravity criminalized under domestic law;
4. 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;
5. Ensure that victims of enforced disappearance, other human rights violations and crimes under international law have access to effective remedies and receive adequate reparation, including appropriate compensation, restitution, rehabilitation and measures of satisfaction;
Contact:
Ben Schonveld, ICJ South Asia Director, (Kathmandu); t: 977 9804596661; email: ben.schonveld(at)icj.org
NOTES:
Enforced disappearance occurs when a person is arrested, detained or abducted by an agent of the State and then officials refuse to acknowledge the deprivation of liberty or conceal the fate or whereabouts of the “disappeared” person.
These acts remove an individual from the protection of the law, leaving the individual at the mercy of his or her captors.
Enforced disappearance violates many rights of the victims and their families alike, which are guaranteed under the under the International Covenant on Civil and Political Rights (ICCPR), which Nepal, as a State Party, is obliged to respect.
The UN General Assembly has described enforced disappearances ‘an offence to human dignity’ and a grave and flagrant violation of international human rights law.
Aug 13, 2013 | News
The ICJ today called on the Nepalese Government to release the body of Tibetan Monk Karma Nyidon Gyasto to the Tibetan community to carry out his last rites in accordance with Nepal’s laws and international obligations.
“We are deeply concerned about this rejection of Nepal’s laws and its international obligations,” said Asia Director Sam Zarifi.
On 5 August 2013, a Tibetan refugee, Karma Nyidon Gyasto self-immolated at the Boudha Stupa, in Kathmandu. He was taken to Tribhuvan University Teaching Hospital, where he was later declared dead. His body is apparently being held in the hospital’s mortuary.
On 12 August 2013, the Tibetan Refugee Welfare Office, registered an application to the Office of the Chief District Officer in Kathmandu to perform funeral rites. The Tibetan Refugee Welfare Office is acting on behalf of Gyatso given the lack of clear legal status of the resident Tibetan refugee community.
This is the second protest by self-immolation in Nepal. The first was in February 2013. In that case the government refused to hand over the body for funeral rites.
The refusal to hand over the body contravenes Nepal’s national laws.
The Interim Constitution, under Article 23 guarantees the right to religion, including the right to practice and perform religious rites.
Furthermore Article 17 provides that every community in Nepal has the right to preserve and promote its culture.
The action also contravenes Nepal’s international obligations.
Article 18 of the International Covenant on Civil and Political Rights (ICCPR) provides for the right to a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
Furthermore, General Comment No 22 on Article 18 of the ICCPR states that this right includes ritual and ceremonial acts.
Under the Covenant, the Government of Nepal is obliged to respect and ensure the religious and cultural rights of the Tibetan refugee community, who have a legitimate right to receive the body and hold a funeral according to their religion and culture.
CONTACT:
Sam Zarifi, ICJ Asia-Pacific Director, (Bangkok), t: +66 807819002; email: sam.zarifi(a)icj.org
Mar 22, 2013 | Feature articles, News
The inclusion of an amnesty provision, which could cover the worst possible crimes, in Nepal’s new Truth, Reconciliation and Disappearance Ordinance, will make it impossible for thousands of victims of gross human rights violations to obtain justice, ICJ and other right groups said today.
The Asian Centre for Human Rights, Human Rights Watch, the International Commission of Jurists and TRIAL pointed to fundamental flaws in Nepal’s new law, passed by President Ram Baran Yadav on March 14, 2013.
“The new ordinance leaves open the door to amnesties for persons implicated in gross human rights violations and crimes under international law,” said Ben Schonveld, ICJ’s South Asia director in Kathmandu. “Amnesties for serious rights violations are prohibited under international law and betray the victims, who would be denied justice in the name of political expediency.”
At least 13,000 people were killed and over 1,300 subjected to enforced disappearance in Nepal’s decade-long conflict between government forces and Communist Party of Nepal (Maoist) combatants.
The fighting ended with the signing of the 2006 Comprehensive Peace Agreement, consolidating a series of commitments to human rights.
However, the government has yet to take steps to ensure that those responsible for crimes under international law during the fighting are identified and prosecuted.
International and local human rights groups have consistently decried the government’s efforts to side-step promises of justice and accountability, represented most recently by this new ordinance.
The revised ordinance calls for the formation of a high-level commission to investigate serious human rights violations committed during Nepal’s armed conflict from 1996 to 2006.
It grants the commission discretion to recommend amnesty for a perpetrator if the grounds for that determination are deemed reasonable.
The government then decides whether to grant an amnesty. There is no definition of what is reasonable.
Confusion over scope of amnesty provision
The ordinance states that “serious crimes,” including rape, cannot be recommended for an amnesty, but it does not define what other “serious crimes” are not subject to an amnesty.
Gross violations of human rights, such as extrajudicial killing, torture and enforced disappearance, are not mentioned.
Torture and enforced disappearance are not specific crimes under Nepali domestic criminal law.
The organizations expressed concern that the commission’s powers to recommend prosecution may mean little without crimes being adequately defined in law.
The final decision on whether to prosecute can only be made by the attorney general, a political appointee of the government, instead of an independent entity.
Human Rights Watch, ICJ and TRIAL have previously documented the systematic failures of the Nepali criminal law system to address serious human rights violations.
“Nepal has had years to investigate some 1,300 suspected enforced disappearances during the conflict and thousands of other human rights violations, but it has failed to deliver any credible or effective investigations,” said TRIAL Director Philip Grant in Geneva. “The provisions on prosecution contained in this ordinance don’t appear to be strong enough to overcome Nepal’s entrenched practices of safeguarding impunity by withdrawing cases or failing to pursue credible allegations. It does not leave victims with much faith that the commission will fulfill its mandate to end impunity.”
Call for review and consultation
The organizations called upon the government to establish a mechanism to review and amend the legislation in consultation with victims of human rights abuses and representatives of civil society.
“This ordinance was signed by the prime minister and president in record time without any consultation with conflict victims and civil society,” Schonveld added. “If the government had carried out proper consultations, the result would have been different, and we wouldn’t have an ordinance that entrenches impunity.”
The rights organizations also expressed concern about the ordinance’s heavy emphasis on reconciliation at the possible expense of justice for victims.
The ordinance cedes authority to the commission to implement “inter-personal reconciliation” between victim and perpetrator, even if neither the victim nor the perpetrator requests it, which could result in pressure being placed on a victim to give up any claims against a perpetrator.
Although the ordinance mentions the need for victim and witness protection, there are no specific safeguards to ensure the safety and security of victims who become involved in reconciliation processes.
Violation of international obligation for political expediency
Under international law, Nepal is obliged to take effective measures to protect human rights, including the right to life and freedom from torture and other ill-treatment.
Where a violation occurs, Nepali authorities must investigate, institute criminal proceedings, and ensure victims are afforded access to effective remedy and reparations.
“The passage of this ordinance is just the latest example of the Nepali government’s cynical willingness to trade meaningful justice and accountability for political expediency,” said Brad Adams, Asia director at Human Rights Watch. “The government is kidding itself if it thinks it can ignore the voices of Nepal’s thousands of victims of human rights abuses. Nepal needs meaningful government initiatives to address its human rights problems, not the veneer of justice that this flawed ordinance represents.”
Contact:
In Kathmandu, for ICJ, Ben Schonveld: ben.schonveld(at)icj.org
In Bangkok, for ICJ, Sheila Varadan: +66-857-200-723; sheila.varadan(at)icj.org
Mar 14, 2013 | News
Chief Justice Khil Raj Regmi should not keep his position on the Supreme Court after he was appointed today as the country’s interim prime minister so as to preserve the independence of the judiciary and the rule of law.
“The Supreme Court under the leadership of Chief Justice Khil Raj Regmi, has demonstrated a strong commitment to upholding the rule of law and protecting human rights in Nepal,” said Ben Schonveld, ICJ’s South Asia Director in Kathmandu. “To preserve the Nepali judiciary’s hard-won independence, the Chief Justice should step down from his post as soon as he assumes his position at the top of the Executive Branch.”
The Chief Justice Khil Raj Regmi was appointed as Chairperson of the Council of Ministers – effectively the country’s Prime Minister – today.
The country’s four key political parties agreed on an arrangement whereby Chief Justice Khil Raj Regmi will refrain from participating in his duties as Chief Justice of the Supreme Court while exercising powers of the Prime Minister conferred by the Interim Constitution, in brokering an election of the Constituent Assembly.
After the election is held, the agreement provides that the Chief Justice will resume his power and regular duties as Chief Justice.
In the interim, the senior-most judge of the Supreme Court will act as Chief Justice.
“Appointing the serving Chief Justice to act as Chairperson of the Council of Ministers throws the country into uncharted constitutional waters,” Schonveld added. “This agreement obliterates the line between the executive and the judiciary.”
A petition challenging the constitutional validity of the Agreement is currently before the Supreme Court.
The interim Constitution of Nepal guarantees the independence of the judiciary and the separation of powers.
Article 106 bans sitting and retired judges from assuming any appointment in government service apart from a role in the national human rights commission.
To enable the Chief Justice’s appointment as Prime Minister, the President under the recommendation of the Council of the Ministers amended several provisions of the Interim Constitution, including Article 106.
These amendments were made in contravention of the requirements of the Interim Constitution, which calls for a mandatory two-thirds majority of Parliament.
Under international law and standards, including the United Basic Principles on the Independence of the Judiciary, States are required to ensure an independent judiciary at all times.
Under the Bangalore Principles on Judicial Conduct, judges must be free, and be seen to be free, from inappropriate connections with the executive and legislative branches of government.
The Beijing Statement of Principles on the Independence of the Judiciary stresses the importance of the independence of the judiciary in a free society observing the rule of law.
Judges must uphold the integrity and independence of the Judiciary by avoiding impropriety and the appearance of impropriety in all of their activities.
CONTACTS:
Ben Schonveld, ICJ South Asia Director, (Kathmandu); t: 977 9804596661; email: ben.schonveld(at)icj.org
Govinda Bandi Sharma, ICJ Senior Legal Advisor, Nepal (Kathmandu), t: +977 9851061167; email: govinda.sharma(at)icj.org
Sheila Varadan, ICJ Legal Advisor, South Asia Programme (Bangkok), t: +66 857200723; email: Sheila.varadan(at)icj.org
Photo by Bikash Dware
