Published in the My Republica on Aug. 30 ::
International Commission of Jurists (ICJ) has renewed its call on the Nepali authorities to provide justice to hundreds of victims of enforced disappearances during the decade-long armed conflict in Nepal.
Issuing a statement on the eve of the annual International Day of the Victims of Enforced Disappearances, the ICJ alleged that members of both the state security forces and the Maoist insurgents engaged in widespread human rights abuses, many of which constitute crimes under international law.
“It has been eight years since the end of the armed conflict, but even now the fate and whereabouts of more than a thousand possible victims of enforced disappearance are unknown and perpetrators have still not been brought to justice,” the statement quoted ICJ´s Regional Director for Asia and the Pacific Sam Zarifi as saying.
Conflict-related “disappearances” were reported as early as 1997 and escalated significantly following the declaration of a state of emergency and mobilization of then Royal Nepalese Army in November 2001.
“The impunity for enforced disappearances has continued even after two landmark rulings by the Supreme Court on accountability for enforced disappearances,” the statement said.
In Rajendra Prasad Dhakal v. Government of Nepal (2007), the Supreme Court directed the Nepali government to criminalize enforced disappearances in accordance with the UN International Convention for the Protection of All Persons from Enforced Disappearance, take action against officials found guilty of perpetrating enforced disappearances, and ensure that amnesties and pardons were not available to those suspected or found guilty of the crime.
More recently, in Madhav Kumar Basnet v. the Government of Nepal (2014), the Supreme Court reiterated the findings of the Rajendra Dhakal judgment, and expressly held that provision of amnesty goes “against the victims´ fundamental right to justice, including their right to life and liberty, right to information, right against torture, and the accepted principles of justice”.
Alleging that the TRC Act was endorsed by parliament as a part of a cynical bargain between political parties, the ICJ said, “… the law empowers the Commission of Inquiry on Enforced Disappearances to recommend granting amnesty for enforced disappearance and other gross violations of human rights carried out during the conflict.”
Key provisions of the act, ICJ said, are not in accordance with Nepal´s international law obligations, including under the International Covenant on Civil and Political Rights (ICCPR), which Nepal acceded to in 1991.
The act also blatantly flouts the Supreme Court´s 2007 and 2014 rulings and still does not criminalize enforced disappearances in the country.
“It is essential that laws establishing justice mechanisms for countries in transition comply with the Supreme Court´s judgments and Nepal´s obligations under international law,” said Zarifi. “Nepal must recognize that reconciliation can only be built on a foundation of justice and accountability, not on impunity for serious crimes and human rights abuse,” the ICJ added.
The ICJ has urged the government to amend the Commission on Investigation of Disappeared Persons and Truth, Reconciliation Act to ensure it meets Nepal´s international human rights obligations and directives of the Supreme Court, criminalize enforced disappearances in the penal code in line with the internationally agreed definition set out in the International Convention for the Protection of All Persons from Enforced Disappearance, ratify International Convention for the Protection of All Persons from Enforced Disappearance and ensure that in Nepal´s legal system, the victims of enforced disappearance, including family members of the “disappeared” persons, have the right to obtain reparation and prompt, fair and adequate compensation.