Nepal’s Enforced Disappearance Commission: Roles of International Community
TRANSCEND MEMBERS, 18 May 2015
Dr. Bishnu Pathak - TRANSCEND Media Service
Abstract
Enforced disappearance has been a long, but a neglected history in Nepal. It is derived from the laws of war where a person secretly arrest, detain, torture and disappear either by a State or armed force refusing to acknowledge whereabouts of his/her fate. The force tries hard to decompose the dead body in such a way not to be ever being found. Nepal is in a phase to conclude the peace process forming a Truth-finding Commission named Commission of Investigation on Enforced Disappeared Persons (CIEDP). The CIEDP is an independent, autonomous, professional, impartial and high-level statutory body. It investigates to discover and reveal past wrongdoings, to exhume the possible remains, to deliver the justice to the victims and their families and perpetrators not to go scot free. The method shall lead to office preparation, field initiation, research continuation and recommendation. The victims and their families demand justice delivery and reparation to them prosecuting to the perpetrators. International community, human rights organizations and the Supreme Court are against the provision to grant amnesty to the victimizers on serious human rights violations or abuses. The Government and political parties look forward granting more amnesty to the crimes against humanity under reconciliation. However, none of the amnesty and reconciliation mentioned in the Act 2014 attract to the case of CIEDP. The amnesty and reconciliation shall be applicable to the TRC only. That is why the Government and political parties have given the highest priority to the TRC shadowing work of the CIEDP. The CIEDP encounters all round constraints in the lack of office, staff, equipments and logistic supports. The CIEDP shall only be succeeded if the international community provides moral encouragement, technical cooperation, programmatic enhancement, knowledge sharing visit and financial support. The demerits of the South African Commission on Truth and Reconciliation shall be corrected by the CIEDP following the Peruvian Truth and Reconciliation Commission model.
Eight years, two months and 21 days after the Government of Nepal and the then insurgent Communist Party of Nepal (Maoist) signed the Comprehensive Peace Accord in November 2006, the Commission of Investigation on Enforced Disappeared Persons (CIEDP) and the Truth and Reconciliation Commission (TRC) have formally been formed on February 11, 2015. The CIEDP is established investigating the cases of enforced disappearance and bring the perpetrators into the judicial system. The CIEDP 2014 Act says, “If any person is arrested or abducted or taken control of or deprived of his/her personal liberty in any other ways by any organization or organized or unorganized group during the armed conflict”.
Enforced Disappearance
Enforced Disappearance (ED) has been a neglected history. Enforced Disappearance is denial of all accegn to the families and relatives, lawyers and courts and holds outside the protection of the law. The ED is a deprivation derived from the laws of war[1] where a person secretly abducted or involuntarily imprisoned either by a State or armed group and refuses to acknowledge whereabouts of his/her fate. The ED is a complex human rights violation[2] and a crime against humanity. Protection to the disappeared persons addresses by the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) 2006 and Inter-American Convention on Forced Disappearance of Persons 1994[3]. The ICPPED defines “(a) detention or deprivation in whatever form, (b) refusal to acknowledge the deprivation to liberty, or the fate or whereabouts of the disappeared person, and (c) placing the disappeared person outside the protection of law and all recognized rights[4].” The ED was first recognized as a grave human rights violations and abuses in Latin American Dirty Wars (1970s to 1980s) while some of the prisoners were kept in solitary confinement in custody by the security forces. The Enforced Disappearance then practices geographically in diverse countries including Spain, Guatemalan, Philippines, El Salvador, Sri Lanka, Syria, Nepal and so forth.
The article 2 of the International Convention on the Protection of All Persons from the Enforced Disappearance states, “Enforced disappearance” is considered to be the arrest, detention, abduction…by agents of the State or by persons or groups of persons…followed by a refusal to acknowledge the deprivation of liberty…whereabouts of the disappeared person, which place such a person outside the protection of the law”[5]. At first, the Rome Statute of the ICC was reluctant to include Enforced Disappearance as a crime against humanity on par with murder, rape and torture[6], but accepted later when it understood the relative gravity of it. Nepal is yet to ratify UN Convention for the Protection of all Persons from Enforced Disappearances[7] and Rome Statute of International Criminal Court.
The ‘Act of Disappearing a Person’ on Article 2.k of the CIEDP and TRC Act 2014 shall refer, “If any person arrested, detained, or taking control of by any other means … by a security personnel is not allowed to meet … as to where, how and in which state he/she is kept in after abducted or taken control of or deprived of his/her personal liberty in any other ways by any organization or organized or unorganized group during the armed conflict”.
The International Convention on the Civil and Political Rights, the Convention on the Rights of Child (CRC), the Convention on the Elimination of All Forms of Discrimination against Women and Convention against Torture (CAT) do not directly address the right to protection of enforced disappeared persons. However, a number of other rights try to indirectly deal it. They are: the right to an effective domestic remedy (article 2.3) ICCPR, the right to life (article 6) ICCPR, the right to liberty and security of person (article 9) ICCPR, the right to freedom from torture (article 7) ICCPR, the right to detainee to be treated with full human dignity (article 10) ICCPR and right to recognition of a person before law (article 16) ICCPR; the right to freedom from torture (articles 2 and 16) CAT, the right and protection of children during armed conflict and prohibition of their recruitment into armed forces (article 38) CRC; and right to free from sexual violence (CEDAW).
History of Enforced Disappearance
In 71th BC, a charismatic Thracian Spartacus Gladiator[8] one of the freemen leaders of Third Servile War who had unsuccessfully battled against Roman Government had been arrested but disappeared since then[9]. In 834, Muhammad Qasim (Sunnis Islam), youngest uncle of the Muhammad led a rebellion against the Islamic Prophet Muhammad. He was defeated and detained but he was never seen in public again[10]. The Princes Edward V and Richard of England were disappeared by their uncle Richard III of England in 1483[11]. English socialist politician Victor Grayson had lastly seen entering into the Queen’s Hotel in September 1920, but he never returned[12]. Juliet Stuart Poyntz, founding member of the Communist Party of the USA while resigned from active political life, disappeared from 1937[13]. During Israeli invasion in Lebanon on July 4, 1982, four employees of the Iranian Embassy went missing from Beirut kidnapped by Christian militiamen[14]. Professor Sivasubramaniam Raveendranath, Vice Chancellor of the Eastern University of Sri Lanka was disappeared while he was on his way to attend a conference in Colombo in December 15, 2007[15].
Enforced Disappearance takes place by means excessive use of force during armed conflict on State of War in Afghanistan and Iraq. The disappearance or missing person take under control often tortures and illegally detains and finally killed either by the state security or non-state security forces, often after the interrogation. The dead body decomposes in such a way not to be ever being found or vanished forever. Adolf Hitler had not been a first State-Leader who practiced Enforced Disappearances to repress his political opponents. Stalin’s regime also followed the same method against his rivalries[16].
Some of the nations who practiced Enforced Disappearances are: Angola, Cote d’ Ivoire, Eritrea, Ethiopia, DR Congo, Ghana, Kenya, Namibia, Nigeria, Somalia, Sudan, South Africa and Zimbabwe (Africa); Cambodia, East-Timor, India (Jammu-Kashmir), Indonesia, Nepal, North Korea, Pakistan, Philippines, Sri Lanka and Vietnam (Asia-Pacific), Albania, Armenia, Azerbaijan, Bosnia-Herzegovina, Croatia, Cyprus, Georgia, Kosovo, Macedonia and Russia (Europe); Algeria, Argentina, Bolivia, Chile, Colombia, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Peru and Uruguay (America); and Egypt, Jordan, Iraq, Iran, Lebanon, Libya, Kuwait and Morocco (Middle East).
The post-conflict countries who tried to ensure justice mechanism in transitional period establish Disappearance Commissions, a Truth Commission. Some of the notables are Bolivian National Commission of Inquiry into the Forced Disappearances, Argentinean National Commission on the Disappearance of Persons, South African Commission on Truth and Reconciliation, Sri Lankan Commissions of Inquiry into the Involuntary Removal or Disappearance of Persons, El Salvadorian Commission on the Truth, Jammu-Kashmir Enforced Disappearance Commission, Enforced Disappearance in Pakistan and Peruvian Truth and Reconciliation Commission.
This is prepared from the comprehensive forthcoming paper on Global Practices of Enforced Disappearances: Beyond Humanity. It basically reflects enforced disappearances in Nepal extracting from the secondary literatures, participant observation and personal analyses.
Nepalese History of Enforced Disappearance
It is to be remarkable that there was no any recorded history of enforced disappearances prior to 1950, even in 104 years of authoritarian Rana regimes. However, disappearance initiated immediate after 1951 in democratic regime where Ram Prasad Rai, Nepali Congress activist had been a first victim of enforced disappeared person in 1951[17]. Rai protested against the Delhi Tripartite[18] Agreement conducted from February 1-8, 1951. Sukhdev Singh was arrested in 1956 from Saptari, but disappeared since then[19].
A total of 27 people were forcefully disappeared during Panchayat era (1960-1989). Most of them were offensive with the monocracy and demanding to the restoration of multi-party democracy. There were: Rudra Bhattarai and Kesar Bahadur Khadka from Ramechhap; Kalyan Rai, Dakman Tamang, Pasang Tamang and Lal Bahadur Rai from Panchthar; Baikuntha Adhikari and Sete Tamang from Dhading; Tika Ram Adhikari, Ramhari Dahal, Pahalman Sarki, Maheshwor Chaulagain and Govinda Prasad Dahal from Okhaldunga; Shri Harsa Khanal from Chitwan; Harsa Bahadur Pradhan from Lamjung; Shankar Prasad Sharma from Salyan; Jit Bahadur Rana from Syanja; Ganesh Raj Gautam from Banke and Balabhadra Joshi from Baitadi[20] ranging diverse geographical regions: hill to tarai across Nepal.
Similarly, seven persons namely Padam Bahadur Moktang, Ishwar Chandra Lama, Dr. Laxmi Narayan Jha, Satyanaran Jha, Surya Nath Yadav from Dhanusa and Dilip Chaudhary and Shaket Chandra Misra from Saptari[21] were forcefully disappeared after bomb Explosion on June 20, 1985[22]. Out of seven disappearances, five people were reportedly killed on the suspicious of bomb attack in 1985. It is to be noted that all enforced disappeared persons were males.
Immediately after the restoration of democracy in Nepal in 1990 (post-Panchayat period), the then Prime Minister Krishna Prasad Bhattarai established a commission of Inquiry to Locate the Persons Disappeared during Panchayat period (1961-1990). However, two commissioners from representatives of human rights groups resigned. The Commission was quickly dissolved due to controversy on the process of appointment under Panchayat Constitution 1962. PM Bhattarai again appointed 4-member comprising Basudev Dhungana, Dr. Sachche Kumar Pahadi, Prakash Kafle headed by Surya Bahadur Shakya on July 31, 1990 stating change political context. The reported was submitted with PM Bhattarai on April 21, 1991[23]. The report was made public in 1994 as a result of massive pressure from civil society organizations and individuals. The Commission formally identified a total of 35 persons disappeared in which five of them were killed. Remaining cases were declared unknown[24].
Bhuwan Lal Thapa Magar was arrested during first local elections in 1992 from Doramba VDC in the Ramechhap District. He was last seen on May 23, 1992, but whereabouts he is still unknown. An engineering student Prabhakar Subedi from Butwal Municipality-6 was arrested by police at Ratnapark, Kathmandu on June 25, 1993 while participating on protest program organized by the CPN (UML). Photographs of Subedi being dragged by the police were published by several media, but his family member’s petition was dismissed by the Supreme Court on December 1, 1998[25]. Even court was seen insensitive and heavily influence on Subedi’s case as he was from a poor family background from the countryside.
Formation of the Commission of Investigation on Enforced Disappeared Persons
The article 2.n of the CIEDP and TRC Act 2014 said that “Armed Conflict” means the armed conflict carried out between the State Party and the then Communist Party of Nepal (Maoist) from February 13, 1996 to November 21, 2007. During said period, a total of 17,700 people were extrajudicially killed[26] where Government is responsible to 63 percent and the Maoists 37 percent on the serious violations of IHRL and IHL[27]. The Transitional Justice Reference Archive (TJRA) recorded over 2,000 incidents of killings[28]. On Comprehensive Peace Accord: Human Rights Status 2006-2011 of National Human Rights Commission stated that 78,689 people were involuntarily displaced and 1,327 forcefully disappeared[29].
The Preamble of the CIEDP Act 2014 states that a high-level Truth Commission shall be constituted to investigate the cases of enforced disappeared persons who were arrested or abducted by the warring forces during the course of the Maoist- launched People’s War. The Act was formed under article 33 of the Interim Constitution of Nepal 2007 to provide relief to the families of victims[30].
The CIEDP has its own Charter. The Charter states that the CIEDP in the post-conflict Nepal was constituted by the Government of Nepal based on the recommendation submitted by the Recommendation Commission. The Recommendation Commission was formed under the Commission of Investigation on Enforced Disappeared Persons and Truth and Reconciliation Commission Act 2014. Five members Commission headed by former chief of Appellate Court Mr. Lokendra Mallick, Mr. Bijul BK Dulal, Ms. Nar Kumari Gurung, Mr. Ai Bahadur Gurung and author himself was formed. The Chairperson of a Truth Commission CIEDP is parallel to Chief Justice and members are equivalent to Justice of the Supreme Court in Nepal. The article 3 of the Act 2014 states that CIEDP is an independent, impartial and accountable separate high level Commission.
On the course of Mandate, the CIEDP was created to examine and document a complete truth of cause, nature and extent of disappearance incidents and committed crime against humanity[31] during armed conflict decade (1996-2006); to investigate actual facts whereabouts the fate of victims and make them general public who were the subject of enforced disappearance; provide identity card and post-investigation information to the victims and their families; to assist in restoring the victims’ dignity testifying his/her belongings or recorded testimonies; to recommend reparations to the victims and their families and prosecution against the perpetrators who were involved in serious violations or abuses of human rights.
The article 2.j of the CIEDP and TRC Act 2014 shall state that serious violation of human rights means murder, abduction and hostage taking, disappearance of persons, causing mutilation of disablement, physical or mental torture, rape and sexual violence, looting, seizure, breaking or arson of private and public property, forceful eviction from house and land or displacement by any other means, any types of inhuman act committed against international human rights or humanitarian law or other crimes against humanity.
The Article 10 of the CIEDP and TRC Act 2014 says, “A gazetted special class officer of the Judicial Service appointed or designated by the Nepal government shall work as a Secretary”. On the course of Personnel of the Commission, Article 11 of the Act mentions, “The Ministry shall make available personnel required for the Commission. While making the personnel available, the Ministry shall have to consult with the Commission…”. For the office and resource management, the Article 12 states, “The Ministry shall make arrangements for building, materials and other resources required for functioning of the Commission”.
Roles of International Community
The Government was compelled to draft the CIEDP and TRC bill due to massive pressure from the international community. Since the beginning of peace process, international community shapely pressures Government to fully comply peace accord 2006 advocating transitional justice management. International community including OHCHR-Nepal welcomes the ground-breaking decision of the Supreme Court of June 1, 2007 on a large number of enforced disappearance cases including 80 habeas corpus writs[32]. The decision ordered the Government to enact a law to criminalize enforced disappearance in line with the Charter of United Nations, the Universal Declaration of Human Rights, the Declaration on the Protection of All Persons from Enforced Disappearance 1992, Inter-American Convention of Enforced Disappearance of Persons in 1994 and International Convention on the Protection of All Persons from Enforced Disappearances 2006[33].
The Court says to establish a high level Commission of Investigation on Enforced Disappeared Persons in compliance with the international criteria of inquiry, require investigations and prosecutions of persons responsible for enforced disappearances and provide for adequate compensation and relief to the victims and their families[34].
To pursue Court’s order, the Government formed a three-member high-level Commission for the Investigation of Disappeared Citizens headed by ex-Justice Narendra Bahadur Neupane on June 26, 2007. Two members were Raman Kumar Shrestha and Sher Bahadur KC[35]. As, the Commission was formed based on Panchayat Investigation Commission Act 2026 BS, the decision was condemned from all corners. International community including human rights groups severely criticized that the team was as an inconsistent, inadequate and contrary to the spirit of Supreme Court judgment and international standards.
Commission of Investigation on Enforced Disappeared Persons is a last step to implement the landmark peace accord 2006. Against the submission of draft bill on Enforced Disappeared Persons in May 2007, prominent human rights organizations namely Amnesty International, Asian Federation against Involuntary Disappearances, Human Rights Watch, International Center for Transitional Justice, International Commission of Jurists, Asian Centre for Human Rights and Nepalese human rights organizations demanded for its amendment[36]. Finally, Parliamentary Committee on Law, Justice and Legislative Relations compelled to withdraw the draft bill in November 2007 and ordered Government to draft the disappearance bill respecting the Supreme Court decision and international standards. One year later in November 2008, the Government made public a new draft bill on Enforced Disappearance Act 2008. The act criminalized the enforced disappearances. Even though, it did not meet international standards and Supreme Court Guidelines.
On February 5, 2009, the Government introduced the Disappearance Bill and President duly promulgated the Executive Ordinance on February 12 by passing the Constituent Assembly I. The Ordinance formally criminalized the enforced disappearance as a crime against humanity, provide reparation to the victims and their families and prosecution to the perpetrators[37]. However, it did not meet all international standards of enforced disappearance. Even that Ordinance could not be implemented due to tireless campaigning and lobbying by victims and their families and human rights organizations continuously supported by international community[38].
Supreme Court decided to establish a separate Commission to Investigate Enforced Disappeared Persons while the UNOHCHR complied a credible evidence of systematic enforced disappearances and tortures in Bhairabnath Battalion[39] to the Maoist activists under the command of Colonel Raju Basnet in 2003[40]. Even though, the same Maoist leader Dr. Baburam Bhattarai led Government promoted alleged war crime criminal Basnet to Brigadier General on October 4, 2012[41]. Human Rights Watch says, “Cabinet decision reinforces impunity[42]”.
Political activists usually arrest and taken into custody by the security forces in the name to get more information about the leader, party and their future programs. The insurgent abduct person in the name of alleged state-informer or to retaliate. The virtual reality of enforced disappearance or abduction is as follows:
Because it was twilight, it was difficult to recognize newcomers. Someone knocked at the door and asked if the household head or targeted family member was at home. A voice from inside asked, “Who are you?” Someone replied, “It is us, please open the door. We have a little work with you.” Recognizing the voice, those inside open the door. The visitors enter the house and seize the family member of the household. Visitors ask him/her to go out with them. S/he normally resists for not to go with them fearing of possible torture, other cruel inhumane and degrading treatment or missing. The family members scream, begging them not to take him/her. The visitors assure them s/he will return the next day or soon after preliminary inquiries and take him/her outside. The arrested or abducted person never returns[43].
After 8 years’ failed attempt to make single Act, Nepalese Constitutional Assembly II passed Commission of Investigation on Enforced Disappeared Persons and Truth and Reconciliation Commission Act on April 25, 2014 and President promulgated it on May 11, 2014 only. The final text of the Act was not shared with concerned victims, their families and other organizations. Three mainstream political parties namely Nepali Congress, CPN (UML) and UCPN (Maoist) issued a party whip to withdraw their proposed amendments in CIEDP and TRC bill[44]. The CIEDP and TRC Recommended Commission finally recommended five-member team at each Commission to Prime Minister on February 9, 2015. The Chairpersons and Commissioners of both Commissions administered oath of office on February 11, 2015.
CIEDP Working Modalities
The working methods or modalities of the CIEDP may lead into four-phase: Internal Management, Announcement of Application, Interpretation to Field Study and Exhumation and Recommendation to the Attorney General.
The internal management leads to office settlement, management of office instruments, fulfillment of required personnel and collection of secondary data and information and literature reviews. The required legal and other documents are to be developed. In the absence of appointment of secretary for three months, the internal management is much slowed and delayed. It is not because of the CIEDP, but the concerned Peace Ministry ignored to provide logistic and other required supports for this CIEDP.
However, preliminary assessment and analysis of data have been completed. The Peace Ministry provides 1,232 data of enforced disappeared persons from 69 districts ranging east to west in Nepal. The male comprises 91 per cent whereas 77 per cent persons were killed by the state security forces, 13 per cent by unidentified groups and 10 per cent by the Maoists. The highest number 116 (9%) persons were disappeared from Bardia district alone followed by 106 in Dang, 49 in Rolpa, 39 in Kavre and 38 each in Kanchanpur and Salyan districts. Other disappearance affected districts are: Siraha (36), Sindhupalchowk (35), Kailali (33), Baitadi (29), Dhading (29), Kathmandu (29), Chitwan (29), Kalikot (28), Gorkha (27), Nuwakot (26), Baglung (24), Ramechhap (22), Tanahu (19) and Jhapa (19) districts.
The above mentioned 21 districts are recognized as the most enforced disappeared persons. Special attention shall be given on the announcement of application in these districts. One officer-level desk shall be established either in District Peace Committee or District Development Committee for longer period. Similarly, one short-term CIEDP contact person shall be mobilized at each VDC office to gather complaints of the victims and their families. The Government shall be responsible to provide all personnel to the CIEDP Commission. If government fails to address our needs, the CIEDP shall hire short term national and international researchers-consultants and other needed personnel. To get more and accurate information, application form shall be filled up by the CIEDP personnel. Similarly, some attention shall also be given other remaining affected and less affected districts to search and gather applications from the victims’ families. A rapport and good coordination shall be developed with the concerned Ministries and other institutions either directly by the CIEDP or seek support from the line-Peace Ministry. The CIEDP shall request all political parties, media personnel, teachers-students organizations, civil society organizations and individuals to support the endeavors. The active participation of all with full accountability shall subsequently conclude transitional justice or the last-step of peace process.
Interpretation to field information and exhumation is a lengthy process. Risks and assumptions shall clearly be studied. Required security supports shall also be managed. A well-equipped forensic lab and studio (record audio-video for the witnesses and process of exhumation) with experts shall be established before the departure in the field study. Each team shall be comprised of archaeologist, anthropologist, pathologist and other concerned officials. Reference sample from family members (such as son or daughter or father or mother) of each victim shall be collected to set up DNA (profile database) bank prior to initiation of exhumation. The DNA of the human remains shall be matched with data bank and remains shall be delivered for victim’s family to conduct last rites and rituals. Even author himself involves conducting public hearings in countryside in complex cases of disappearance. In a few particular cases, documentaries shall also be produced.
Conclusion
In general, international community and civil society organizations protested against the provisions of amnesty and reconciliation in the CIEDP and TRC Act 2014. On February 26, 2015, the Supreme Court of Nepal scraped granting amnesty to persons who committed serious human rights violations and or abuses. The Government including mainstream political parties demand discretionary power to grant amnesty to the perpetrators. Peace Ministry filed a petition at the Supreme Court seeking more power of amnesty.
There is a single CIEDP and TRC Act 2014, but Government has given highest priority to the TRC minimizing the role of CIEDP. For this, the Government has appointed the Secretary to the TRC 67 days ahead of its formation, but CIEDP functions its roles without Secretary till 90 days of its establishment. Within Government structures, the Secretary in Ministry of Law delayed the appointment. The Government what allocated 50 million Nepalese Rupees for both Commissions, the Peace Ministry released 82 per cent budget to the TRC alone. Moreover, most of the talented officials of Peace Minister are recruited to the TRC ignoring any staff to the CIEDP. All the charges of the rented vehicles from the private parties to the authorities of TRC were paid by the Ministry itself, ignoring to pay the rent to CIEDP till 90 days of its formation. The author himself was compelled to pay rent to them from his own pocket. While renovation to TRC’s office was nearly completed, the Peace Ministry ignored to sign CIEDP’s office space.
The CIEDP’s office is now confined in a single room of 200 sq. ft. within the Ministry. There is no any kitchen room to make tea and prepare any kinds of food to the authorities and others. On the course to resolve the difficulties, the author himself held meeting 12 times with the Minister and more than 50-times to the Secretary at their respective offices in Peace Ministry. The entire team members of the CIEDP met President on April 10 and Finance Minister on April 12 and requested to manage personnel and office constraints. TRC authorities are welcomed in a broad-level due to interest of political parties shadowing the CIEDP. The personnel of the Government ignore to join with the CIEDP due to complex nature of its work. The CIEDP’s work directly links with two post-conflicting forces without the provisions of amnesty and reconciliation.
To successfully accomplish the tasks, the CIEDP always welcomes moral encouragement, technical cooperation, programmatic enhancement, knowledge sharing visit and financial support from international community namely, United Nations, European Union, USA, United Kingdom, Norway, Denmark, Switzerland, Germany and other friendly neighbors. The CIEDP always welcomes comments and suggestions from the international community. The past wrongdoings of many post-conflict countries including the transitional work of the South African Commission on Truth and Reconciliation shall be corrected from CIEDP’s competent, impartial and dedicated works of Nepal and or forthcoming a Truth Commission in Sri Lanka. The Peruvian Truth and Reconciliation Commission may be the best model to the CIEDP too. It is to be noted that none of the “amnesty” and “reconciliation” provisions mentioned in the CIEDP and TRC Act 2014 attract in the case of CIEDP. Both provisions “amnesty” and “reconciliation” shall only be applicable to the TRC.
Less priority to the CIEDP means affront to justice: no justice delivery to the victims and their families but granting amnesty to the victimizers. Such trends further strengthen and formalize culture of impunity in Nepal. Justice un-delivery means restriction to the fundamental human rights and humanitarian law: the right to equal justice delivery and treatment before and under law, freedom from torture and degrading treatment, the right to a fair trial and the right to legal counsel. Justice un-delivery to victims and their families creates mental shock, uncertainty, fear and long-term societal complexity. Each hour to day, enforced disappeared family suffers from sorrow[45], hope[46], un-recognition[47], silence[48] and indignity in the community till their entire life-time.
Enforced disappearance has been a long, but neglected history in Nepal. The CIEDP is formed owing to the constant pressure to the Government and political parties by the international community. The vested desire of political parties to annul the CIEDP writing one-two lines in the forthcoming Constitution is stopped because of the international community. Thus, the entire team is ready to shake hands with international community to discover and to reveal past wrongdoings, to exhume the possible remains, to deliver the justice to the victims and their families and crimes against humanity not to go scot free.
NOTES:
[1] Finucane, Brian. 2010. “Enforced Disappearance as a Crime Under International Law: A Neglected Origin in the Laws of War”. Yale Journal of International Law. Vol. 35, p.171.
[2] Vermeulen, Marthe Lot. February 2012. “Enforced Disappearance: Determining State Responsibility Under the International Convention for the Protection of All Persons from Enforced Disappearance”. School of Human Rights Research Series, Volume 51. Utrecht University of School of Law.
[3] Department of International Law: Organization of American States. Online Available at http://www.oas.org/juridico/english/treaties/a-60.html (March 9, 2015)
[4] International Commission on Jurist. March 2009. Disappearance in Nepal: Addressing the Past, Securing the Future. Geneva. P. 8.
[5] International Convention on the Protection of All Persons from Enforce Disappearance, Adopted on December 20, 2006 by General Assembly Resolution 61/177, UN Doc A/RES/61/177(2006).
[6] Hebel, Herman Von and Darryl Robinson. 1999. Crime without the Jurisdiction of Court. In International Criminal Court: The Making of the Rome Statute, Roy S. K. Lee (ed.).
[7] It is a very extensive Convention upon a wide range of different laws and regulations. The significances of it are: disappearance punishable under penal law, statutes of limitations, criminalize the offence as crime against humanity, the refusal to share information as a crime, absolute prohibition of secret detention, prohibition to use arguments as state secrecy or public security as reason for not informing, appropriation of children whose parents are disappeared a crime, official and centralized registers of detainees, guarantee a non-derogable judicial recourse to determine the whereabouts and fate of a person, and relatives as being also victims of an enforced disappearance. International Coalition against Enforced Disappearances. Online available at http://www.icaed.org/the-convention/ratification-and-implementation-of-the-convention/ Retrieved on November 7, 2012.
[8] Spartacus-Slave War had battled with Roman armies between 73-71 BC. Spartacus initiated a gladiator training school that finally formed the army against Rome oligarchy. The army team was comprised of runaway (left without permission) slaves and people with little to lose. The gladiator army defeated two Roman armies and attacked several cities. The Roman Government finally assigned Crassus and Pompey to crush to rebellion in which Spartacus had been killed and his army defeated. Roman armies crucified 6,000 prisoners. See Fields, Nic. July 2009. Spartacus and the Slave War 73-71 BC: A Gladiator Rebels against Rome (Illustrated by Steve Noon). Osprey Publishing Limited.
[9] Roman armies crucified 6,000 prisoners. See Ibid.
[10] Hussain, Jassim M. Undated. The Occultation of the Twelfth Imam Historical Background. Department of Islamic Studies (University of Edinburgh).
[11] Who killed the Princes in the Tower? Online Available in http://www.hrp.org.uk/Resources/2014_PITCharacters_V1.0.pdf (March 19, 2015)
[12] Groves, Reginald. 1975. The Strange Case of Victor Grayson. Pluto Press.
[13] Tresca, Carlo. March 1938. Where is Juliet Stuart Poyntz. New York: The Modern Monthly.
[14] Lebanese Forces chief lashes out at Hezbollah over missing Iranians. Online Available in http://www.lebanonwire.com/0901MLN/09013108DP.asp
[15] Farook, Shabnam. December 15, 2012. Missing and Forgotten: The Disappearance of an Academic. JDS.
[16] Vranckx, An. 2007. “A Long Road towards Universal Protection against Enforced Disappearance”. International Humanitarian Law. Online Available in www.wihl.nl (Accessed on March 14, 2015)
[17] Adhikari, Ankit. September 3, 2011. “Disappearance History dates back to 1950s”. The Kathmandu Post. Kantipur Publication.
[18] Indian authority, Rana and Nepali Congress.
[19] Online available at http://en.wikipedia.org/wiki/List_of_missing_people_from_Nepal (Accessed on March 5, 2015)
[20] Pant, Dipendra Prasad, Prashannata Wasti and Nir Lama. August 2011. Profile of Disappeared Persons. Kathmandu: INSEC
[21] Human Rights Year Book 2010. 2011. Kathmandu: INSEC
[22] Five bombs exploded at King Birendra’s Royal Palace, the National Assembly, the main Government office complex and a hotel lobby where seven people were killed in the first major terrorist attack in Himalayan country Nepal injuring 16 others. The New York Times. June 21, 1985. 7 Reported Killed in Nepal Bombing. New York.
[23] INSEC. August 2011. Enforced Disappearances in Nepal: A Brief Analysis. Kathmandu
[24] Nepal: Commission of Inquiry to Locate the Persons Disappeared during the Panchayat Period. Online Available in http://webfactory.co.za/csvr/csvr/asia-a-australasia/nepal/commission-of-inquiry-to-locate-the-persons-disappeared-during-the-panchayet-period.html#nepal1 (Accessed on May 6, 2015).
[25] INSEC. August 2011. Enforced Disappearances in Nepal: A Brief Analysis. Kathmandu
[26] Asian Human Rights Commission. February 15, 2012. NEPAL: Families of the disappeared in a legal and emotional limbo. Asian Legal Resource Centre
[27] Pathak, Bishnu. March 8, 2008. Human Rights and Nepal Police. Kathmandu: CS Center
[28] UNHR. October 8, 2012. Nepal Conflict Report. Geneva: OHCHR
[29] Pathak, Bishnu. December 2011. Comprehensive Peace Accord: Human Rights Status 2006-2011. Kathmandu: NHRC
[30] “”Victim” means a person dead or physically, mentally, or sexually or economically caused to suffer injury or loss…as a result of serious violation of human rights…”. Article 2 of the Commission of Investigation on Enforced Disappeared Persons and Truth and Reconciliation Act 2014.
[31] The Crime against human dignity is a serious attack on human dignity and human security or inhumane act committed against international human rights, humanitarian law and national human rights instruments. It generally happens by extrajudicial killing/murder, abduction and hostage taking, enforced disappearance to person, physical and mental torture, rape and sexual violence and looting, seizure, breaking or arson of private and public property which are clearly stated in CIEDP and TRC Act 2014.
[32] International Commission on Jurists. March 2009. A Briefing Paper on Disappearances in Nepal: Addressing the Past, Securing the Future. Kathmandu.
[33] United Nations Human Rights: Office of the High Commissioner for Human Rights. Online Available at http://www.ohchr.org/EN/HRBodies/CED/Pages/ConventionCED.aspx (March 9, 2015)
[34] UNOHCHR-Nepal. June 4, 2007. OHCHR-Nepal welcomes Supreme Court’s ground-breaking decision on disappearances. Kathmandu
[35] Human Rights Commission South Asia. Competent Body on Disappearances Needed. Online Available in http://hrcsa.org/Nepal/competent%20body%20on%20disappearances%20needed.htm (Accessed on May 10, 2015).
[36] Amnesty International. Nepal: Disappearances Law must meet international standards. Online Available in http://www.amnestynepal.org/campaigns/ai-nepal-activities/nepal:-%E2%80%9Cdisappearances%E2%80%9D-law-must-meet-international-standards.html (Accessed on May 10, 2015)
[37] “”Perpetrator” means a person involved in a crime committing gross violation of human rights in the course of armed conflict and the term also includes a person giving order to commit such crime as well”. Article 2 of the Commission of Investigation on Enforced Disappeared Persons and Truth and Reconciliation Act 2014
[38] Advocacy Forum-Nepal, TRIAL and REDRESS. June 2014. Nepal Playing Lip Service to Justice: The Newly Adopted TRC Act Breaches International Law and Flouts the Decision of the Supreme Court of Nepal. The Report Submitted to UN Special Rapporteur on Promotion of Truth, Justice and Reparation and Guarantees of Non-Recurrence, UN Working Groups on Enforced Disappearance or Involuntary Disappearances, etc.
[39] On May 26, 2006, the UN OHCHR Nepal published a report on investigation of disappeared persons arrested by the Nepal Army and held in Maharajgunj barracks in Kathmandu in 2003 on suspicion of being linked to the Communist Party of Nepal (Maoist). The report says, “…at least 49 persons, and probably a significantly higher number, remain disappeared.” During interrogations, officers stopped asking questions related to any of these former detainees. Most former detainees interviewed by OHCHR believe that these detainees were executed. However, few of them are now on public. For more see, Pathak, Bishnu and Chitra Niraula. September 15, 2006. Ratification of International Criminal Court to Just Peace. Situation Update 8. Kathmandu: Peace and Conflict Studies Center.
[40] Human Rights Watch. October 5, 2012. Nepal: Promotion of War Crimes Suspect Affront to Justice: Cabinet Decision Reinforces Impunity. New York
[41] Dahal, Phinendra. October 5, 2012. After all the hue and cry, Basnet Gets Promotion. The Kathmandu Post. Kantipur Publications.
[42] Human Rights Watch. October 12, 2012. Nepal: Promotion of War Crimes Suspect Affront to Justice. Washington.
[43] Pathak, Bishnu. June 20, 2007. Missing Persons in Nepal. Situation Update 40. Kathmandu: Peace and Conflict Studies Center
[44] Advocacy Forum-Nepal, TRIAL and REDRESS. June 2014. Nepal Playing Lip Service to Justice: The Newly Adopted TRC Act Breaches International Law and Flouts the Decision of the Supreme Court of Nepal. The Report Submitted to UN Special Rapporteur on Promotion of Truth, Justice and Reparation and Guarantees of Non-Recurrence, UN Working Groups on Enforced Disappearance or Involuntary Disappearances, etc.
[45] recalling whereabouts my beloved one(s)
[46] whether s/he shall come home without any pre-notice
[47] by their opponents or competitors
[48] who opposes and criticizes them
________________________________
Bishnu Pathak, a Ph.D. holder in conflict management and human rights, is president and director of the Conflict Study Center. He is a Board Member of TRANSCEND International for Nepal and also a BM of the TRANSCEND Peace University. Besides writing the book Politics of People’s War and Human Rights in Nepal, he has published a number of research articles on issues related to Human Rights, UN, Security, Peace, Civil-Military Relations, Community Policing, and Federalism.
This article originally appeared on Transcend Media Service (TMS) on 18 May 2015.
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Thank you for this. It is certainly a complicated situation – as restorative justice always is. This is especially so when concerning chain of command and individuals who remain in powerful positions. Do you have any international lawyers/representatives from AI or HRW on your commission? The TRC clearly has a different role, but one can see why this may be more attractive as it is maybe seen to have less consequence for perpetrators.
My best wishes on your efforts in this important area of society rebuilding.
I hope to be back in Nepal after not too long, so see you soon!
I thank you so much for your “valuable article”. I have gone through and noted few points.
I would like to request you and need your “permission”. We,Rotary Club of Jawalakhel (RCJ) is going to publish “Souvenir 2015/16” by end of May 2015.If you grant us permission to publish your attached “article” would be academic and useful for entire Rotary.
Looking forward to hearing from you soon to forward in the Board Meeting.
Once again thank you so much.
Great Thought.
Congratulations. Bishnu Jee.
Thanks
Dear Professor Pathak,
Namaskar. Many thanks for sharing your article. I will be sure to read and share with colleagues of mine who are interested in the developing situation in Nepal regarding the TRC and addressing the missing person issue. My good friend Apurba Khatiwada, son of Sriman Ishwor Khatiwada, will doubtless be interested. I will forward to him.
Many thanks again and Namaste!
Ben Britton
Concordis International
Thank you very much for your email. I never knew about the conditions in Nepal before. I
have never been to Nepal but I am grief stricken by the eartquake and , thus, I have started reading about Nepal only recently. I shall forward the article to others.