"The agony of families is being prolonged"- Nepali Times

Nation
"The agony of families is being prolonged"
Lena Sundh, representative in Nepal of the United Nations High Commissioner for Human Rights

FROM ISSUE #351 (01 JUNE 2007 - 07 JUNE 2007) | TABLE OF CONTENTS

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Lena Sundh, representative in Nepal of the United Nations High Commissioner for Human Rights, spoke with Nepali Times about the new Disappearance Bill and the stalling on an independent investigation into Bhairabnath.

Nepali Times: What message does the Disappearance Bill send out about institutional accountability and impunity?
Lena Sundh: Under international human rights standards, states have a clear obligation to investigate and prosecute persons allegedly responsible for serious human rights violations, such as enforced disappearances. The bill reflects the government's recognition that enforced disappearance is not only a serious human rights violation, but also that it must be made a criminal offence under Nepali law. OHCHR welcomes the bill as a step towards ensuring such accountability.

But we are very concerned that the Bill does not fully meet international human rights standards. One concern is that the bill is not intended to apply to acts of disappearance which were committed in the past. Also, crimes of disappearance are considered to continue until the fate or whereabouts of the disappeared person are clarified. So most disappearances in Nepal would not be considered past crimes, but ongoing crimes.

Another concern is that it does not address the fact that military courts have jurisdiction over Nepal Army personnel accused of disappearance under the existing Army Act. This is contrary to international human rights principles which allow only ordinary civilian courts to exercise jurisdiction over persons accused of serious human rights violations.

There are other problems. The definition of disappearance in the Bill does not include all the elements of the internationally-accepted definition of enforced disappearance-for example, by ensuring not only that government officials, but also any person acting with the support or acquiescence of the government, may be held responsible. The penalty the bill provides (up to five years of imprisonment and a fine of up to Rs 50,000) is not at all reflective of the very serious nature of the crime of disappearance.

The bill in its current form is limited to individual criminal accountability. According to international human rights standards, states also have the responsibility to undertake a range of institutional and other measures to prevent, terminate, investigate, and punish acts of enforced disappearance. OHCHR recommends that a more comprehensive law on disappearance be adopted in Nepal in the near future.

What else needs to happen to address the issue of disappearance and the needs of the families?
Since the office in Nepal was established in 2005, OHCHR has been gathering information on the disappeared and has maintained contact with relatives of the disappeared and organisations working on their behalf. We have presented information on cases to the authorities and to the Working Group on Involuntary and Enforced Disappearances. We have also carried out an in-depth investigation into allegations of disappearances from the Bhairabnath Battalion and published a report in May 2006. Many times we have called on the authorities to carry out independent investigations into the disappeared, but so far there has been little response. At times we have been given inaccurate and misleading information by the Nepal Army, which also never provided us with a copy of its report on investigations into our May 2006 report. We have also raised cases of those abducted by the CPN-M and whose whereabouts are also unknown.

The 8 November 2006 agreement between the SPA and the CPN-M committed them to setting up a high level commission of inquiry on disappearances. Unfortunately, nothing appears to have been done so far to set up such a commission. OHCHR believes that such a commission must be independent, credible, and competent, and only established after broad consultations with civil society and other stakeholders, including relatives of the disappeared. The delay in setting up proper, independent inquiries to clarify the fate of all the disappeared is prolonging the agony of families waiting to know the fate and whereabouts of their loved ones, and denying them the right to justice and reparations.

Should disappearance be part of the mandate of the truth and reconciliation commission (TRC) decided upon in the comprehensive peace agreement?
In addition to the truth and reconciliation commission in the CPA, there is also a commitment to create a commission of inquiry on disappearances. The establishment of such a commission would not substitute for an eventual TRC, which would look into a broad range of human rights violations, including disappearances. Effective investigations into individual cases of disappearances by a commission of inquiry would allow a TRC to focus on broader issues related to disappearances, such as the general pattern of disappearances, institutional and political responsibility, and effective measures to prevent disappearances in the future. It would also allow the TRC to focus on supporting processes for reconciliation and healing the wounds.