The long, elusive wait for justice

The whereabouts of Surya Prasad Sharma, a cadre member of the then-underground CPN (Maoist) party, is still unknown. He was last known to have been arrested by army personnel from the Baglung-based Kalidal Gulm army barracks on January 14, 2002. According to what his wife Yasoda Sharma heard, the army had tortured him upon arrest.

Unable to locate Sharma, Yasoda filed an application at the National Human Rights Commission (NHRC). On February 4, 2002, she also filed a writ petition at the Supreme Court (SC), naming as defendants the home and defense ministries, the police and army headquarters, the district administration office of Baglung, and the Khadgadal Brigade which had replaced the previous army force. Upon inquiry, the Banglung DAO said that on January 22, the Maoists had tried to ambush security personnel while Sharma was being taken for identification, but that the arrestee had jumped into the Kaligandaki River and escaped taking the benefit of a landmine explosion. The rest of the defendants, however, claimed that security forces had never arrested him.

 Later, in line with the defendant’s claims, a government commission formed to probe the status of missing persons published a notice mentioning how Sharma had never been arrested. Based on the same grounds, the apex court scrapped Yasoda’s writ petition.

Feeling betrayed by both the NHRC and the SC, Yasoda filed a complaint at the United Nations Human Rights Council (UNHRC). This was to become the first war-era case to be filed at the UN against human rights violations committed during the decade-long Maoist insurgency. The council asked the government to investigate the case and book the perpetrator. The Nepal government, however, has not implemented the council’s recommendations so far. 

Yasoda’s case is just one amongst many failed attempts by seekers of justice around war-era atrocities in the UN’s highest human rights body. Of late, the UNHRC has made 25 similar recommendations for justice, none of which have been implemented owing to a delay in identifying the perpetrators. It appears that the government wants to continue to be defiant in implementing their recommendations. 

 “Nepal should carry out a thorough and diligent investigation, provide information resulting from the investigation to Surya Prasad’s family, and try to prosecute those responsible,” said the council, concluding that Sharma had been forcibly disappeared and that this was a violation of his right against torture, his right to humane treatment during detention, and his right to liberty. “Nepal should release Surya Prasad Sharma immediately if he is still alive, provide adequate compensation to Yasoda Sharma and her family, and take measures to prevent similar violations in the future,” the council further added.

So far, no effective probe has been conducted on the case, neither has anyone been booked for it. 

“I was forced to raise this issue in an international forum after receiving inadequate responses from the NHRC and the SC,” says Yasoda. “The UNHRC asked the government to make my husband’s whereabouts known within 180 days, but it hasn’t done anything yet.”

Yasoda is from the village of Srinagar in Baglung Municipality-2 and lives alone as both her daughters are married and a son lives abroad. After failing to run a grocery store, she closed shop. 

“The UN recommended adequate compensation, but the government only gave me NRs 1 million. Investigations into the complaint registered at the Commission of Investigation on the Disappeared Persons (CIEDP) haven’t been processed either. Unlike in the past, nobody invites me to attend programmes organised by conflict victims these days. I feel alone and insecure,” says Yasoda. 

Read also: Bardiya Tharus wait for justice

----

Purnamaya (name changed), 47, of Narayan Municipality-3 in Dailekh has relentlessly approached the Nepal Police and the court ever since she was raped by four army personnel, including a lieutenant colonel of the Kadachaur-based Bhawani Box Gan army barracks. Despite her complaints, the police would not initiate an investigation, citing the 35-day statute of limitations.

In 2004, having found no other means of making a living, Purnamaya had been operating an eatery for trekkers in a makeshift tent arranged by her parents. In November of that year, however, a group of army personnel arrested her on the charge of feeding Maoist rebels. Two youths the army allegedly identified as rebels had visited her eatery just before she was arrested. She was also blamed for hiding her husband, a forest guard working in Jumla whom the army suspected of being a Maoist.

 Purnimaya says that the army personnel blindfolded her before taking her to the barracks. There they raped her between 4 pm to 8 pm, then left her unattended on the road. She recounts how they had brutally beaten her when she had tried to fight back. The scars from her retaliation are still visible across her forehead, legs, and feet. The army personnel tortured and sexually abused her to such an extent that her inner injuries have still not healed. Responding to her complaint, the UNHRC recommended that the government arrest and punish those involved in her rape and torture. But the recommendation has not been heeded so far.

 Purnimaya faced serious health complications in her uterus after the incident. She had to eventually remove her uterus in order to get rid of the persistent pain. Even now, total recovery seems unlikely. To add to this, she has also suffered from several psychosomatic issues like chronic headaches and memory loss. She often gets dazed and wants to avoid crowds. She has additional issues in her urinary tract and stomach and her vision has been impaired by injuries above her eyebrows. Purnimaya has been on medication since the day she was raped.

“I’ve only been living for my daughter. Now that she has grown up, I can finally die,” says Purnimaya. “But I wish to drink the blood of my rapists before I do so.”

 After knowing that she had been raped, Purnimaya’s husband no longer supported her. He ended all communication with her, stopped sending her money, and married another woman instead. After she was told her uterus couldn’t be treated in Dailekh or Surkhet, Purnimaya travelled to Lucknow across the border seeking treatment.

Years after the incident during which Purnimaya made several futile pleas for investigations into the violence committed against her, on September 30, 2011, she along with her legal experts moved the plea to the District Administrative Office (DAO). The DAO would not register the complaint, however, citing the 35-days statute of limitations which made her complaint invalid. Her writ petition to the apex court was similarly scrapped. Feeling betrayed by national rights authorities, Purnimaya took her plea to the UNHRC on December 19, 2012, demanding that her abusers be held accountable for their actions.

 In its order issued on June 23, 2017, the UNHRC wrote, “The state party has undertaken [the responsibility] to ensure that all individuals within its territory or subjects within its jurisdiction have their rights recognised in the covenant and that an effective and enforceable remedy will be given after it has been determined that a violation has occurred. The committee wishes to receive from the state party, within 180 days, information about the measures taken to give effect to the present views. The state party is also requested to publish the present views and to have them widely distributed in the official language(s) of the state party.”

Read also: No justice for conflict victims in a state that operates with unbridled impunity

---

Of the total war-era complaints filed at the UNHRC, 25 have been settled, with orders issued in the name of the Nepali government between 2008-2019. The Universal Periodic Review (UPR) is slated to be held in January next year to discuss the state of human rights in Nepal. The government hasn’t implemented most of its commitments from 2015’s UPR session, including the completion of transitional justice (TJ).

Organisations advocating for justice for victims of the decade-long conflict have reported to the UNHRC that the government has failed in delivering truth, justice, reparations, and institutional reforms. They add that the government has shown an unwavering unwillingness to implement recommendations given by rights bodies. The orders issued by the committee are related to torture, unfair trail, forced disappearance and murder, sexual violence, and recruitment of child soldiers. In its recommendations, the committee had concluded that Nepal has violated its international commitment as far as cases of rights violations are concerned. 

Of a total of 25 orders issued by UNHRC, 13 orders assessed by himalkhabar.com show that Nepal has violated several fundamental human rights: the right to compensation or relief, judicial remedy, rights against torture, personal freedom, forced labour, and the right to life. The committee has ordered the translation and dissemination of its documents in the Nepali language and the provision of educational support to families of victims, adequate compensation, ethical probe into cases of human rights violations, and the implementation of punitive justice against those proven guilty. The committee has also asked the government to provide free psychological counselling, formulate new torture laws, and revise the provisions for the statute of limitations and forced disappearances in accordance with international standards. The government has also been asked to investigate missing persons and release them if they are still alive or handover their remains if they are dead. 

According to a study conducted by Trial International, Advocacy Forum, and the Human Rights and Justice Centre, none of the orders have been executed. Neither has a single culprit been identified, nor any action been taken against anyone. The family members of missing persons still don’t know about their whereabouts.

 Even though laws in Nepal related to forced disappearance and torture have been revised, they still do not meet international standards. Of UNHRC’s 25 orders, only nine were translated into Nepali and uploaded on the website of the Office of the Prime Minister. An under-secretary at the Ministry of Foreign Affairs said that only seven of these orders are currently being implemented. 

Nepal’s rank as category C is based on the government’s performance in implementing the committee’s previous orders. The country’s image is further tainted by the fact that it has not yielded to any recommendations made by the UPR either.

According to Bikash Basnet, an activist affiliated with the Advocacy Forum, delays in the implementation of these orders and recommendations perpetuates injustice and undermines the rule of law. 

 “This has conveyed a message that Nepal is willing to shy away from its responsibilities and go against international commitments,” says Basnet.

---

Every five years, the UN reviews the condition of human rights in its member nations, sharing the progress achieved in translating their commitments into action. Nepal joined the global human rights meet in 2011 and has been under review by UN member states for its human rights conditions since 2015. The country has only acknowledged 73 of the 195 recommendations made by member states, including India, Pakistan, Bhutan, Singapore, Switzerland, Egypt, Denmark, USA, the Netherlands, and Canada, categorising them into 18 themes. The recommendations include implementing “supreme court orders related to transitional justice, establishing a truth and reconciliation commission as well as a disappearance commission in accordance with international standards, and holding accountable those involved in war-era human rights violations.”

Officially, Nepal has accepted all 15 TJ-related recommendations. 

In May, the International Commission of Jurists (ICJ) prepared a mid-term review of the UPR. As per the review report, Nepal still has a lot to do to ensure that justice is delivered to the victims of conflict. After failing to deliver justice despite two extensions, TJ bodies were revamped with the appointment of a new set of commissioners. But these appointments haven’t been free from controversy and conflict victims have blamed political motives for influencing who gets chosen.

The review report concludes that TJ bodies have made no substantive progress other than collecting complaints from the conflict victims. 

“Nepal has accepted all the recommendations related to TJ, but no progress has been made, even as another round of UPR is around the corner,” says Suman Adhikari, founding president of Conflict Victims’ Common Platform, a national network of conflict victims. “Heads of the government and chiefs of major political parties have continuously ignored the issue of transitional justice. Ahead of the next UPR, all 39 organisations working with conflict victims have shared this information with the UN through a joint report.”

Even as Nepal was recently re-elected as a member of the UNHRC, the country passed off the opportunity to ensure justice for conflict victims. Furthermore, it has demonstrated its resistance to fulfilling this mission by barring the UN Special Rapporteur on human rights from visiting Nepal in accordance with the UN’s mandate.

In the joint letter submitted to UPR on July 9, 2020, the rights organisations have clearly mentioned this failure and expressed serious concern over the delays in taking action against human rights abusers.

Read also: Fifteen years on, no justice in sight for Gangamaya Adhikari

“Through this submission, we would like to draw the attention of the Human Rights Council and the Working Group to the Government of Nepal’s (GoN) persistent failure in delivering truth, justice, reparations, and institutional reform. During the reporting period, we felt and witnessed that the GoN has continued to remain unwilling to sincerely implement the recommendations made in the UPR 2015,” reads the submission.

The report was prepared after legislative consultations and highlights the many TJ mechanisms that Nepal has fallen short in, including interim relief, reparations, protection of victims, and criminalisation of human rights violations. As part of its preparations, the government drafted its own report as well, but government officials refuse to comment on it. 

 The government report as seen by this scribe indicates that Nepal’s government is attempting to give misleading information on the situation. Under Annex-II, the section on ‘Reforms made for ensuring human rights,’ the report states, “efforts to conclude the transitional justice process as per the spirit of the Constitution of Nepal, the Comprehensive Peace Accord (CPA), the Supreme Court verdict, and the concerns of the conflict victims is underway.” The report also mentions that the laws formulated for TJ bodies have been implemented and that TJ bodies are working to resolve cases.

In reality, however, the situation is in sharp contrast to what this report states. On February 26, 2015, the SC ordered the government to amend the law on TJ in accordance with international standards, the Constitution of Nepal, and the CPA. But the law did not incorporate provisions for amnesty, ignored the mandatory requirement of consent from victims before the reconciliation of even the most minor cases, and failed to put the victims’ concerns at the centre.

Since then, the government hasn’t amended the TJ law. Instead, it filed an application seeking to revoke the previous apex court verdict. The application, filed on April 26 this year, was ultimately scrapped by the SC citing the lack of any need for the verdict to be reviewed. The apex court, along with the conflict victims, Nepal’s human rights leaders, and the international community, has been pushing the government relentlessly to make five major amendments: ensure that there is no amnesty against those involved in heinous crimes, prior consent of victims before granting amnesty to those involved in minor cases of human rights violation, provision of not transferring war-era cases pending at the general court, mandate to address issues of child soldiers, and removal of the statute of limitations on rape, sexual violence, and disappearance of persons. 

“The government, which spent six years reviewing the apex court verdict, has still not shown seriousness on the amendment of TJ laws,” says advocate Om Prakash Aryal.

Law minister Shiva Maya Tumbahange, however, argues the process of law amendment has been delayed due to the reluctance of former Maoist leaders.

---

In a technical note sent to the government in June 2014, the Office of the UN High Commissioner for Human Rights (OHCHR) refused to extend its support to Nepal’s TJ commissions. Instead, the rights organisation urged the government to revise the law in accordance with international standards, arguing that the commissions were mandated to grant amnesty to rights violators. The TJ laws, according to the UN rights body, are in violation of Nepal’s international legal responsibility as well as the UN’s impunity-ending policy.

The UN has consistently been monitoring Nepal’s TJ process. According to advocate Raju Chapagain, the UN’s position remains unchanged due to the government’s reluctance in amending the law.

 Sending a joint-letter in June 2019, UN Special Rapporteurs expressed serious concern over the lack of impartiality, independence, and transparency in the procedures adopted during the appointment of members to the TJ bodies. The government was also reminded about the apex court verdict, the need to abide by international standards, and to amend the TJ laws accordingly. The rapporteurs had written similar letters to the Nepali government on October 22, 2012, July 3, 2014, and July 27, 2017.

In March of this year, five UN Special Rapporteurs dispatched yet another letter to the government to remind it about their pending requests from the UN on the promotion of truth, justice, reparations, guarantees of non-recurrence as well as those from the Working Group on Enforced or Involuntary Disappearances. Nepal, a member of the UNHRC, hasn’t allowed a visit permit to the rapporteurs as mandated by the same body.

The letter also shows how closely international rights bodies such as the UN are following Nepal’s transitional justice process. In the joint letter, they have mentioned that they have been attempting to visit Nepal for long, despite the government’s refusal.

In a press statement issued in May 2020, OHCHR spokesperson Rupert Colville called the government to take the SC’s decision as an opportunity to change course and take a genuinely fair and transparent transitional process and win the trust of key stakeholders. It also urged the government to make the TJ process truly consultative, with the rights and interests of victims firmly at the centre, and amend the TJ legal framework to meet the principles established by the SC in its 2014 and 2015 rulings as well as to abide by Nepal’s commitment under international law. 

Read also: Why victims of Nepal’s civil war may not get justice

 Even though the government has been reiterating its commitment to justice in available public forums, its response in practice has failed to show any such resolve. In a meeting with a team from the UNHCR during the 43rd session of the Human Rights Council in Geneva, foreign minister Pradeep Gyawali had claimed that the TJ process had gained momentum and had assured the gathering that amendments would be made to TJ laws, that justice would be delivered to victims, and that the TJ process would conclude in a credible manner. But the situation back home shows a reality far removed from his claims. 

In his virtual address to the UN General Assembly on September 25, Prime Minister KP Sharma Oli reiterated that the issues of conflict victims will be addressed. But this only echoed his similar but unfulfilled commitment during 2018’s General Assembly.

On January 13, in order to create the impression that consultations with stakeholders are being held, the government organised an interaction programme to bring together conflict victims from all seven provinces before Oli set off for his Geneva visit. But several victims couldn’t attend these consultations as they were informed just a day before the programme. Those in attendance could not put their views forward either due to time constraints. To make matters worse, the very politicians who have been accused of being involved in human rights violations were sharing the dias. 

In the aftermath of these consultations that grossly undermined the conflict victims, Gyawali briefed Geneva that the government has been working on taking the victims in its confidence. 

Human rights defenders and the victims themselves have called this assertion a blatant lie. The law amendment process, which Gyawali had boasted as having already begun during the HRC’s 2019 meeting, has as yet not begun.

 This is the edited version of an article first published in himalkhabar.com in Nepali. Bhadra Sharma translated the article.