The war ended with the Maoist party and the mainstream political parties entering into a Comprehensive Peace Agreement (CPA) in November 2006. This agreement laid down a clear mandate, which includes an important goal of investigating and prosecuting perpetrators of human rights abuses and discouraging immunity (Art 7.1.3 of CPA). This vision of rebuilding this beautiful country, with a strong sense of justice and morality, seems to be obscured by the political parties who not only fail to bring these perpetrators to account but also collude to protect them in the name of national security or revolutionary change. It is one thing to let these alleged perpetrators roam free but another to promote and appoint them to senior government positions and allow them to go on United Nations Peacekeeping duties.
I am a non-practising barrister and in the summer of 2011 I went to Nepal to work for Advocacy Forum. One of my assignments was to research into whether a former child soldier could be prosecuted for crimes committed during the conflict. I also attended a hearing in the Supreme Court of Nepal, where human rights organizations, including Advocacy Forum, were challenging the promotion of an alleged perpetrator, Kuber Singh Rana, and researched jurisprudence for the Sapkota case. Advocacy Forum provides legal assistance to the families of the victims and works closely with them to progress their complaints. Advocacy Forum conducts public interest litigation, advocacy with the Attorney General’s Office and holds regular meetings with government officials.
The politics of it all
There is a lack of political will to bring these alleged war criminals to account. This is damaging the prospect of good governance, promoting justice and the rule of law, and sustainable peace. In late August 2011, the new coalition government, consisting of the Maoist and the regional parties, formally agreed to withdraw criminal cases against individuals affiliated with the Maoist party, Madhesi, Janajati, Tharuhat, Dalit and Pichadabarge movements, and to declare a general amnesty in cases that includes serious crimes and human rights abuses. The Attorney General implied that he would welcome such a move. The Prime Minister and the Attorney General claim that only alleged “politically motivated” criminal cases will be withdrawn but there is no clarity as to how the political nature of such crimes would be determined. At the same time the coalition government speaks of upholding universal fundamental rights, constitutional supremacy, rule of law, freedom of press and an accountable judiciary.
The withdrawal of cases is not the only method of evading accountability for human abuses. There is the practice of granting pardons and amnesties. In terms of withdrawal of cases, the exact number of cases withdrawn by successive governments is unknown, but it is estimated that over 600 cases have been withdrawn. In October 2008, the Maoist led government authorised the withdrawal of 349 cases. Furthermore, in November 2009, the then UML government withdrew 282 cases. The Supreme Court made a ruling against the withdrawal of cases but this position was later reversed in February 23, 2011 when it was ruled that it was lawful under clause 5.2.7 of CPA.
Those who are tried and found guilty of crimes committed during the conflict seek a pardon from the Prime Minister or senior government officials. One such example is the case of Balkrishna Dhungel, an active member of the Maoist party, who was convicted of murder and sentenced to life imprisonment. The government recommended to the President that Balkrishna Dhungel should be pardoned for his crime.
On November 23, 2011, the Supreme Court made a landmark decision to stay the order, which prevented the government from implementing the presidential pardon. Despite the clear mandate to prosecute human rights abuses, the political parties have proposed amnesties. In the drafting of the Truth and Reconciliation Commission and Disappearance bill, there was an attempt to insert a general amnesty clause. However, after intense lobbying by human rights activists the government amended the bill.
Article 19 of the UN Updated Set of Principles for the Promotion and Protection of Human Rights through Action to Combat Impunity, places a duty on the State to investigate violations of human rights and international humanitarian law, and ensure that those responsible are tried and punished. Instead, the Nepalese authorities argue that the transitional justice mechanisms, such as the Truth and Reconciliation Commission and the Commission to Investigate Enforced Disappearances, take precedence over the normal criminal justice system. This conflicts with international law, which states that transitional justice mechanisms do not replace the criminal justice process. This is another example of politicians trying to avoid their responsibility. A moment should be taken to understand the anguish and frustration felt by the families of these victims. These politicians are playing with the lives of ordinary people who want truth, justice and reparation.
Those who are interested in getting involved with Advocacy Forum please visit www.advocacyforum.org. Further reports on this topic by Human Rights Watch, “Nepal: Adding Insult to Injury” and Redress, “Held to Account”.
Sumon Akter LLB, LLM Member of Lincoln’s Inn
Case 1 Maina Sunuwar - Feb 2004
A mother’s desperate cry for justice comes to life in the most high profile case of the conflict. Maina Sunuwar, a 15-year-old schoolgirl, was taken from her home by fifteen uniformed soldiers to an army barracks in Kavre on February 19, 2004. Maina was tortured, disappeared and killed by the soldiers. Maina’s mother restlessly pursued information on her whereabouts by visiting the army barracks, District Administration Office and many other authorities in Kavre and in Kathmandu. There was mounting pressure by the media and national and international actors to undercover the truth about Maina’s disappearance. In April 2005, Maina’s mother fears were confirmed by the National Army Headquarters in Kathmandu. After pressure from the international community, the army conducted an internal inquiry into the incident and three soldiers were found guilty of minor offences such as improper interrogation techniques and not following the procedure during the disposal of Maina’s body. They were sentenced to six months in prison but were set free due to the time served during pre-trial confinement in the barracks.
Maina’s mother was not satisfied with this outcome and filed a first incident report at the District Police Office in Kavre. However, the police failed to initiate investigations. It was only after a Supreme Court directive in September 2007 that the police brought murder charges against the four soldiers. However, these suspects have not been arrested and brought into police custody, despite the numerous court orders. On September 13, 2009, the District Court ordered the National Army to suspend one of the four accused, Niranjan Basnet, who has since been promoted from Captain to Major. The National Army Headquarters ignored the order and decided to send Major Niranjan Basnet abroad on United Nations Peacekeeping duties. When this information became public and Basnet was repatriated, the Nepal Army took him under their control on his return to the country and refused to hand him over to the police, despite orders from the Prime Minister at the time. He continues to remain in the army’s protection and remains unaccountable for this horrific crime. The police and the District Public Prosecutor’s Office are powerless to force the Nepal Army to cooperate because there is no political pressure on the army. It is difficult to see how justice can emerge when the army and the Maoists are refusing to comply with the court order and going further to protect this alleged perpetrator.
Case 2 Arjun Bahadur Lama - April 2005
In April 2005, Arjun Bahadur Lama was abducted by members of the Maoist party. He was paraded through the village by his captors and not seen since that day. There is evidence to suggest that Arjun was taken to Agni Sapkota, a Central Committee Member of the Maoist party, who then ordered for him to be killed and for his body to be buried at Foksingtar. His wife unceasingly pursued for justice, and it was only after an order by the Supreme Court in March 2008 that the police registered the case and proceeded with investigations. Since this day none of the alleged perpetrators have been arrested. Worse still, Agni Sapkota became a member of the Constituent Assembly and severed as a cabinet minister from May to August 2011. He stepped down after human rights activists filed a writ in the Supreme Court challenging his appointment in light of the allegations. The court did not make any interim orders but questioned the moral correctness of him serving as a cabinet minister.
Case 3 Five students - Oct 2003
Another striking case is the story of five students who were arrested on October 8, 2003. The police denied their arrest even though the students have not been seen since that day. The father of one of the students visited all the police stations and army barracks in the district, complained to the Nepal Human Rights Commission, wrote letters to different international and national human rights organisations and gave evidence before the UN Working Group on Enforced or Involuntary Disappearances. After the end of the conflict, the families went to the police station to file a first incident report. This was a deeply frustrating process because of the lack of response and the blatant hostility by the police. The families showed the police the site, where according to villagers, the bodies were buried. The police marked off the site but did not attempt to exhume the bodies despite the repeated requests by the families and Advocacy Forum.
More then three years after the initial inquiry, the National Human Rights Commission received a letter from Human Rights Cell of the army, which stated that five students had been killed in a police operation. However, the letter did not state how they were killed and where their bodies were buried. On January 28, 2007, the father of one of the students filed a writ petition to the Supreme Court. The Supreme Court gave its judgement on February 3, 2009, and ordered the police to immediately register the complaint and investigate promptly. Due to the lack of action by the police, the National Human Rights Commission started to exhume the bodies in September 2010. They found four bodies in September 2010 and the fifth one was recovered in February 2011.
What is more concerning is the way that the government dealt with the alleged perpetrators. Instead of investigating these allegations, the government decided to promote Kuber Singh Rana, one of the people identified as being responsible for the disappearances, to Assistant Inspector General of Police. The organizations working on this case brought proceedings in the Supreme Court for his promotion to be suspended pending the outcome of the investigation. Despite all the strong arguments made by the claimants and a formal NHRC recommendation for prosecutions against him and several others, which I had the chance to observe, the Supreme Court concluded that the allegations were not sufficient to suspend his promotion. Another important issue is that the alleged perpetrator may influence the investigation process, which is something that the court referred to in its judgments and directed the government to guard against. It is clear that a common sense approach was not taken, especially when enforced disappearance is a crime against humanity (Rome Statute 1998 Art. 7).
The timeline of events
Case 3 - Oct 2003
Five students are arrested. Police have denied their arrest even though the students have not been seen since that day
Case 1 - Feb 2004
Maina Sunuwar, a 15-year-old schoolgirl, was taken from her home by fifteen uniformed soldiers to an army barracks in Kavre on February 19, 2004.
Case 2 - April 2005
Arjun Bahadur Lama was abducted by members of the Maoist party. Evidence to suggest that Arjun was taken to Agni Sapkota, a Central Committee Member.
Maina’s mother fears were confirmed by the National Army Headquarters in Kathmandu.
National Human Rights Commission received a letter from Human Rights Cell of the army, which stated that five students had been killed in a police operation
The father of one of the students filed a writ petition to the Supreme Court
Maina’s mother filed a first incident report at the District Police Office in Kavre. police failed to initiate investigations. A Supreme Court directive was ordered.
Arjun Bahadur Lama’s wife relentlessly pursued justice, and it was only after an order by the Supreme Court that police registered case and investigations proceeded.
The Supreme Court gave its judgement and ordered the police immediately to register the complaint and investigate promptly.
District Court ordered the National Army to suspend one of the four accused for Maina’s death.
Due to the lack of action by the police, the National Human Rights Commission started to exhume the bodies. Four bodies are recovered.
The Fifth body is recovered.
Man alleged to have killed Arjun, Agni Sapkota, became a member of the Constituent Assembly and served as a cabinet minister.
Agni Sapkota steps down after human rights activists filled a writ in the Supreme Court challenging his appointment in light of the allegations.