Disappeared, dead or alive- Nepali Times

On 15 February Gorkhapatra carried four pages of names in fine print. They were a list of Nepalis disappeared in the conflict compiled by the International Committee Red Cross (ICRC).

The families of the 812 people on that list had no idea about the fate of their relatives. Since then, more families have come forward, and ICRC's disappeared count stands at 937 now.

A new bill on disappearance aims to criminalise the act, but activists say it fails to address past crimes, is not in line with international norms and doesn't treat enforced disappearance as a very serious crime.

"The bill effectively lets perpetrators of disappearance during the war off the hook," says human rights lawyer Govinda Sharma, who until recently sat on a supreme court panel to investigate four cases of disappearance.

In its current form, the bill will not be effective retroactively and has a six-month statute of limitations which, says the UN's Office of the High Commissioner for Human Rights (OHCHR) in Nepal, doesn't reflect the 'extreme seriousness' of the crime or that it is 'continuous' (ongoing until the fate of the disappeared person are known).

The bill also does not demand institutional accountability and holds only people immediately involved in an act of enforced disappearance liable. Both OHCHR and the International Commission for Jurists (ICJ) suggest that it explicitly address the responsibility of superiors for crimes committed by subordinates and prohibit 'just following orders' as justification.

Hari Phuyal, a legal consultant with ICJ-Nepal says the bill is framed as an amendment to an "outdated" civil code that lacks the "modern structure and procedural provisions" that comprehensive and independent legislation on enforced disappearance needs. Phuyal says it also fails to address multiple offences involved in disappearance, such as deprivation of liberty, ill treatment, torture, right to life, fair trial, and other fundamental rights.

Nepal Army personnel alleged to have committed enforced disappearance and torture are subject only to military court jurisdiction and the bill does not require that they be tried in civilian court.

One way to address these loopholes would be for Nepal to sign and ratify the UN convention on enforced disappearances and on non-international armed conflict to the Geneva convention, which addresses disappearance, says ICRC. The interim constitution requires the government to implement treaties it is party to and because the Treaty Act states that the provisions of a treaty ratified by the government of Nepal are 'automatically' applicable at the national level. But Nepal is notoriously poor at implementing conventions even after they have been ratified (\'Bepatta\', #188, \'A climate of intense fear\', #217, \'Not knowing if they are dead or alive is killing us...\', #292, 'Conventional wisdom', #330).

"Disappeared family groups, media, and civil society must keep the pressure on for answers," says a human rights worker. There are some divisions within the groups of people who were for a time 'disappeared', particularly between Maoists, and civil society activists and those secretly detained for no apparent reason. But in Bardiya, where most of the disappeared people were Tharu, families have come together regardless of who they hold responsible.

Who, how many?
The ICRC and the National Human Rights Commission (NHRC) maintain detailed dossiers on the missing. The ICRC only adds a name when approached by family members who have no news of their relatives. Their figures show the people still 'missing' are overwhelmingly male, and close to a third of them are between 18-24. Kathmandu has the most missing (119) followed by Bardiya which has close to 100.

The number of disappearances increased sharply after the army entered the conflict in November 2001 and during the state of emergency in 2002, and declined with the setting up of the OHCHR office here.

The NHRC divides its list into those disappeared by the state and those 'abducted' by the Maoists. The commission registered 2,105 cases of disappearance, and the status of 653 people remains unknown. Of the 814 people documented as abducted by Maoists, 158 remain missing.

The words 'missing' and 'disappeared', used interchangeably, refer to the same thing, though activists say the latter conveys a greater sense of agency. Now, 'enforced disappearance' is considered the most accurate description.