The ICJ said today that the Nepal Army’s petition before the Supreme Court seeking to overturn convictions of soldiers for the 2004 killing of 14-year-old Maina Sunuwar was riddled with legal flaws. Its success would be a blow to the fight against impunity in Nepal.
On the 12th Anniversary of the signing of the Comprehensive Peace Agreement (CPA), the ICJ released an analysis of the Nepal Army’s legal arguments in the petition to upend the convictions issued by the Kavrepalanchowk District Court for the killing Maina Sunuwar while in Army custody.
“The Nepal Army has sought to overturn the convictions of Maina’s killers by putting forth specious legal arguments that do not hold up under Nepali or international law, or in light of the past decisions of the Supreme Court,” said Frederick Rawski, ICJ Asia Pacific Director.
In the legal briefing, the ICJ sets out (i) Nepal’s obligations under international law and the Nepal Supreme Court’s jurisprudence to investigate and prosecute perpetrators of human rights violations; (ii) the impropriety of jurisdiction by a military court-martial in cases of serious human rights violations; and (iii) refutes the argument that the convictions violated principles of ‘double jeopardy’.
The briefing sets out international law and jurisprudence establishing the Government’s duty to prosecute serious human rights violations as distinct and separate from its obligation to establish the truth, including as part of a transitional justice process.
The briefing comes at a moment when the future of justice for conflict era crimes and human rights violations in Nepal is uncertain.
In July, a draft bill amending the existing legislative framework governing the transitional justice process was criticized by civil society, victim groups and human rights organizations – including in a joint analysis by the ICJ, Amnesty International and Trial International.
While a government panel elicited comments at consultations with victims and civil society, the government never produced a revised draft or conducted follow-up.
“How can the people of Nepal, and particularly conflict victims, have faith in government proposals to press forward on transitional justice when the Nepal Army continues to fight even minimal accountability with disingenuous legal arguments, such as in the case of Maina Sunuwar?” said Rawski.
“The foundation for any process moving forward must be the best interests of victims, a commitment to accountability, and respect for international human rights obligations. This has been affirmed many times over by the Supreme Court,” he added.
Frederick Rawski, ICJ Asia Pacific Director, t: +66 64 478 1121 ; e: firstname.lastname@example.org
Maina Sunuwar was subjected to enforced disappearance, torture and unlawful killing after a covert military operation, which included the involvement of then captain Niranjan Basnet on 17 February 2004.
The military refused to acknowledge Maina’s detention for many months.
After overcoming a number of procedural and political hurdles stretching over years, on 16 April 2017, the Kavre District Court sentenced three retired army officers to life imprisonment for Maina Sunuwar’s murder.
In September 2017, the Nepal Army filed a writ petition in the Supreme Court challenging the decision of the Kavre Court on several grounds, including that military courts had proper jurisdiction over the original case, that the District Court convictions violated the principle of ‘double jeopardy’ because the defendants had already been tried by a court-martial, and that the court system no longer had jurisdiction over conflict-related cases following the establishment of transitional justice institutions.
Nepal-Petition to overturn convictions for Maina Sunuwar killing-Advocacy-Analysis brief-2018-ENG (Full Analysis brief, in PDF)
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