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Nepal Impunity Report

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Nepal Impunity Report HELD TO ACCOUNT MAKING THE LAW WORK TO FIGHT IMPUNITY IN NEPAL December 2011 ADVOCACY FORUM NEPAL REDRESS Shantiniketan Marg 94/14 87 Vauxhall Walk Gairidhara, Kathmandu London, SE11 5HJ Nepal United Kingdom +977 1 4004007/8 +44 20 7793 1777 www.advocacyforum.org.np www.redress.org Table of Contents Table of Abbreviations ................................................................................ i I. Executive Summary ............................................................................ 1 II. Introduction ..................................................................................... 5 III. Background and context: A culture of impunity .......................................... 8 IV. Nepal’s obligations under international & domestic law ...............................19 V. Laws on control and accountability of the army and police ..........................23 a. The army ........................................................................................................................... 23 b. The police ......................................................................................................................... 28 VI. Laws facilitating human rights violations by state agents .............................31 a. Powers to use lethal force ................................................................................................ 31 i. Powers to shoot at sight in emergency situations ................................................... 34 ii. Powers to use lethal force in relation to minor offences by administrative officers 34 iii. Immunities when use of force results in death ........................................................ 35 iv. Lack of positive safeguards ....................................................................................... 35 b. Wide powers of arrest and detention .............................................................................. 36 i. Arrest without a warrant .......................................................................................... 36 ii. Lack of presumption in favour of bail ....................................................................... 37 iii. Preventive detention ................................................................................................ 39 iv. Detention without charge ........................................................................................ 40 v. Repressive and widely drafted criminal offences ..................................................... 41 vi. Incomplete custodial safeguards .............................................................................. 43 c. Failure to separate judicial and executive branches ........................................................ 43 VII. Failure to criminalise Torture and Enforced Disappearance ..........................48 a. Torture .............................................................................................................................. 49 b. Enforced Disappearance................................................................................................... 53 i VIII. Laws concerning investigation, prosecution and the right to remedy and reparation .......................................................................................57 a. The right to remedy and reparation ................................................................................. 57 b. The right to truth and the obligation to investigate ........................................................ 58 i. International Standards ............................................................................................ 58 ii. Domestic legal framework governing investigations ............................................... 61 iii. Problems in legislation and implementation ............................................................ 62 c. The obligation to prosecute ............................................................................................. 69 i. International standards ............................................................................................ 69 ii. Domestic legal framework governing prosecutions ................................................. 74 iii. Problems in legislation and implementation ............................................................ 75 d. The right to justice and reparation ................................................................................... 80 i. International standards ............................................................................................ 80 ii. Domestic legal framework governing reparation ..................................................... 82 iii. Problems in legislation and implementation ............................................................ 83 IX. Recommendations .............................................................................87 a. To government ................................................................................................................. 87 b. To political parties ............................................................................................................ 89 c. To the judiciary ................................................................................................................. 90 d. To the National Human Rights Commission ..................................................................... 90 e. To the army and the armed police force .......................................................................... 90 f. To the police, public prosecutors and Attorney-General’s office .................................... 91 g. To Nepal’s donors and the international community ...................................................... 91 APPENDIX: BREAKDOWN OF RELEVANT CONCERNS ON SELECTED LAWS ..............95 ii TABLE OF ABBREVIATIONS APF Armed Po lice Force APT Association for the Prevention of Torture CAT Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment CDO Chief District Officer CEDAW Convention on the Elimination of All Forms of Discrimination against Women CERD International Convention on the Elimination of All Forms of Racial Discrimination CPA Comprehensive Peace Agreement CPN -M Communist Party of Nepal (Maoist) CPN -UML Communist Party of Nepal (Unified Marxist –Leninist) CRC Convention on the Rights of the Child FIR First Information Report ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICTJ International Centre for Transitional Justice INSEC Informal Sector Service Centre NHRC National Human Rights Commission OHCHR Office of the High Commission er for Human Rights OSCE Organisation for Security and Cooperation in Europe PLA People ’s Liberation Army RNA Royal Nepal Army TRC Truth and Reconciliation Commi ssion UCPN -M Unified Communist Party of Nepal (Maoist) iii I. EXECUTIVE SUMMARY Nepal is in a period of transition from conflict and abuse of state power to the rule of law and democratic governance. Five years ago a peace agreement brought to an end a decade of violent conflict which saw thousands arbitrarily detained and arrested, forcibly disappeared, extrajudicially killed, raped and tortured. Since then, efforts have been made to reform the constitution and institutions of the state to implement and guarantee basic principles of democracy and human rights, but significant human rights violations persist and the victims of past human rights violations continue to be denied justice. This report considers how the law presents both an obstacle and an opportunity to combat impunity for serious human rights abuses – making the case for legislative review and reform. Despite action taken by brave individuals to seek justice for crimes committed against them and their loved ones, impunity for serious human rights violations by military, police and armed groups remains the norm. Police have been slow to investigate crimes, where courts make orders for cooperation or investigation these are generally not followed, and the military and some leading political figures appear to be keen to obstruct justice rather than promote it. There has been a lack of will by governments of all political colours to ensure accountability. Successive governments have continued to use laws which allow them to authorise the withdrawal of criminal cases pending in the courts, including for serious crimes such as murder, and a constant refrain is that justice must wait for the promised – but not yet delivered – transitional justice mechanisms. In 2011 the situation has continued to worsen with some leading political parties supporting a general amnesty for all those involved in the Maoist insurgency and other ‘political’ movements, the Council of Ministers recommending a pardon for the only person convicted of a conflict-era crime (and who has only served some of his sentence), and the appointment of two Constituent Assembly members accused of serious human rights violations to the position of government minister. Meanwhile, there is no directive from the government to military and police to proceed with or cooperate with investigations, or to comply with judgments and decisions of national courts and international bodies, and downright political interference obstructing certain cases. Legislative reforms to bring the army under civilian and democratic control have not gone far enough, and practical implementation of control and oversight envisaged in legislation has been
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