The NHRC finally lists rights abusers publicly, but will the perpetrators ever be brought to book?

This week, the country witnessed two countervailing developments on the human rights front. Nepal got re-elected as a member of the UN Human Rights Council (HRC) for the second term, but on the heels of that declaration, the National Human Rights Commission (NHRC), the country’s constitutional rights watchdog, published a list of 286 rights violators who have never been brought to book for their involvement in rights abuse. 

For many rights activists in the country, the list proves that Nepal should have been more thoroughly vetted before it was re-elected to the HRC. However, Nepal’s election comes as no surprise, as some of the countries elected as members to the HRC--such as China, Russia, Pakistan, Cuba, and Bolivia--have a dubious human rights record themselves.

There are no new names of rights violators on the list. The perpetrators are known entities, who have been written about countless times by the media, and they have routinely been featured in reports published by national and international rights organizations. But the Nepal government, bureaucracy, and political parties kept dismissing these reports: they said that the reports were prepared by rights organizations with the aim of derailing the peace process. Eight years ago, the Office of the High Commissioner for Human Rights, the UN entity on human rights--in support of local rights organizations and the NHRC--had prepared the Nepal Conflict Report 2012, which documented all the major incidents that took place during Nepal’s decade-long insurgency. The recent report has listed all the names of rights violators who were named in that UN document.

But with this list, the NHRC--the national constitutional body--itself has officially named rights violators, meaning the crimes committed by the individuals listed in the report technically have been officially acknowledged by the state itself. The international rights community, donors, and bilateral donors are now free to question the state’s record on human rights, if they so wish. That said, such follow-ups seldom happen in Nepal. 

Most figures on the list are, or were, high-ranking officials of security agencies, the bureaucracy, and the erstwhile Maoist rebels. Their involvement in crimes, mostly committed during the conflict period, were investigated by the national rights watchdog, and the investigations concluded that those mentioned on the recently published list were guilty. The commission had recommended action against them. However, all the governments that came to power after the conclusion of the investigations never implemented the NHRC’s recommendations--even though it is obligatory for the government to implement them. 

Many of the security officials and bureaucrats mentioned on the list have already retired, while a few continue to hold public office. Narendra Dahal, commissioner at the Election Commission, and Toyam Rayamajhi, secretary at the Ministry of Labour, Employment and Social Security, are two high-profile officials who are still holding public posts, for example. Earlier, they were the chief district officers of Kapilvastu and Morang, respectively.

Conflict victims, in particular, know many of the officials on the list and have mentioned their names in their complaints registered at the Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP). Both those commissions are practically in limbo, and the government has been deliberately dismissing the recommendations of the commissions.

 Among the big names listed in the NHRC report, there is clear mention of former Nepal Police chief Kuber Singh Rana as a rights violator. And while it has not directly mentioned former Army Chief Pyara Jung Thapa for committing human rights violations, it has suggested that he should be brought to justice.

 Thapa was the chief of the army when the infamous Bhairabnath Battalion incident occurred, in which the battalion arrested and detained hundreds of individuals in Maharajgunj. The detainees were tortured to extract intel information about the Maoist rebels, and at least 49 people detained in the battalion were disappeared.

 The NHRC had also established Rana’s involvement in the murder of five youths in Godar, Dhanusha, in 2003. The commission exhumed their bodies from the banks of the Kamala River in 2011 and identified the disappeared youths after DNA tests on the bodies were conducted in Helsinki University, Finland. The National Forensic Science Laboratory in Nepal verified those results. Rana, who was a superintendent of police at the time, was later promoted to chief of police in 2012 by the Baburam Bhattarai government. In a cynical move, the political parties had named SSP Chuda Bahadur Shrestha, another officer involved in the murder of the five youths, as a member of the taskforce for drafting a crucial transitional justice bill. Shrestha was forced to quit in the face of objections from other members of the taskforce.  

 Of the violations that took place during the conflict period, the security agencies committed the majority of them. No official has, however, been held responsible for their crimes, some of which were heinous. For instance, the NHRC had established the involvement of Nepal Army official Ramesh Swar in 10 incidents of disappearance and murder. But the commission has not listed all his crimes. Captain Swar was infamous as an Army captain, and many in Banke and Bardiya districts experienced his cruelty. The report also names Ajit Thapa, who was Swar’s commanding officer, for committing the second highest number of crimes over the period examined. 

 Many observers are not surprised by the fact that the army officials on the list haven’t faced punishment: The Nepal Army has been the most stubbornly defiant of the NHRC’s recommendations. The army has also been ignoring court orders. For instance, the army made an appeal to review the verdict on the Maina Sunar case by the Kavre District Court (the appeal is still stuck in the Supreme Court), and the army still has not taken any action against its officials involved in torturing 14-year-old Sunar to death. For years, it has stalled similar proceedings by claiming that civilian courts can’t try army officials.

Read also : The courts can’t try us, Nepal Army tells Supreme Court

Disappointingly, the NHRC report has not mentioned the cases related to Maina Sunar and her cousin Rina Rasaili. In fact, the report has grossly omitted cases of sexual violence committed in the past two decades. Security agencies, in particular, had used rape as a method for extracting information and for exacting revenge during the conflict period. 

For instance, Swar, who was an Army Captain back then, had  repeatedly raped Masgit Maniyar’s daughter and her cousin--as “payback” for Masgit’s escape. Similarly, Buddhiram Chaudhary had talked to the media about how his daughter, a development worker, was murdered during the conflict period. A total of 322 complaints related to rapes committed during the conflict, mostly by security personnel, have been registered at the TRC.  

In the past 20 years, the commission recommended action against 1,195 cases of rights violations. Only 13 percent of those recommendations were fully implemented, and all of those cases were settled through the payment of compensation. Half of all recommendations made were only partially implemented.

 The commission had made 208 recommendations regarding the actions of Nepal Army personnel, 131 recommendations regarding the Nepal Police, and 360 recommendations regarding the Unified Command, the combined body of the nation’s security forces. None of the recommendations was ever implemented.  

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Also, disturbingly, the list shows that the Home Ministry has been the state organ most cavalier about the NHRC recommendations. A total of 537 recommendations were made to it, while 305 recommendations were made to the Prime Minister’s Office, and 156 recommendations were made to the Defense Ministry.

 Among the cases of violation investigated by the commission, 779 (65.16 %) were committed by the state, 287 (24.03 %) by the Maoists, and 38 (3.19 %) by both the aforementioned parties.

 Over the past 20 years, a total of 12,826 complaints were registered with the commission, but the commission investigated and reached a conclusion on only 6,616 complaints. “We had to work on the backlogged cases of the previous leadership, which is why we concluded fewer cases than we received,” said Mohna Ansari, one of the NHRC’s commissioners.

Some observers say that the NHRC’s making the names public in such a manner is a welcome move, especially since so many leaders and heads of state organs, rather than pushing for the implementation of past recommendations, have been and were actively seeking to either obfuscate the issue of rights violations or allow the cases to remain unaddressed. Many did nothing to end the culture of impunity--largely because they wanted to protect their minions and to further their own political interests. In the end, this prevailing attitude towards rights abuse was the chief reason that so many of the recommendations documented on the list were never implemented. 

Read also: Bardiya Tharus wait for justice

 “The low number of recommendations implemented is worrying,” said Ansari. “The public must be more assertive in pressuring the government to implement the recommendations if we are to end the state of impunity.”

The commission, which had promised to release the list of perpetrators since the appointment of its current commissioners in 2014, released the report just two days before the commissioners’ term was to expire. This shows the pressure under which the commission had functioned over the last six year. In 2016, Prime Minister KP Oli had summoned the commissioners to his office, seeking clarification from them on a statement delivered at the UN HRC. The summons, which constituted an overstepping of the PM’s bounds, was criticised by many in the national and international rights community. Still, despite this and other overreaches by the government, Nepal got elected as a member of the UNHRC two years later, in 2018. And Nepal’s recent re-election comes at a time when the Nepal government has drafted a bill to amend the NHRC Act 2012, which aims to curtail the commission’s authority and make it subordinate to the government. The bill is currently being deliberated in parliament.

“What we have been witnessing in the national and international forums has not made for a pleasant experience for the victims at all,” Ram Bhandari, a rights defender, told The Record. “Nepal’s questionable rights record has been overlooked internationally, and the state has been promoting and protecting the perpetrators of the conflict period. But the release of the report by the constitutional body has authenticated our claims. If the government does not address the rights violations, and if it continues to perpetuate its culture of impunity, the victims will become more distressed and might seek revenge, which might push the country back into conflict.”

Ram Bhandari’s father, Tej Bahadur Bhandari, was arrested and then disappeared almost two decades ago. Pitambar Adhikari, who was a district superintendent of police back then, had arrested the school teacher in 2001 from Lamjung District. In 2014, the UN Human Rights Committee had recommended that the Nepal government carry out a thorough investigation into the disappearance and book the perpetrator; but this hasn’t happened till date. Tej Bahadur Bhandari’s case is one among 31 conflict-period cases that the Committee had asked the Nepal government to investigate and conclude. But the families of the victims have yet to hear anything from the government.

On Friday, the Conflict Victims Common Platform (CVCP), an alliance of conflict victims, termed the move to publish the list an important step forward in strengthening democracy and the rule of law. “The publication of the  report is a sign of encouragement and hope that the conflict victims will find justice,” reads a statement released by the platform. For years, the CVCP has been advocating that the cases of rights violators be investigated. 

Ram Bhandari said that with the publishing of the NHRC’s list, it was now time to implement the commission’s recommendations and punish the noted perpetrators without delay. “It is the responsibility of the government to punish the named perpetrators. Doing so will help democratise and change the security and public-service institutions, as had been envisioned by the Comprehensive Peace Agreement. And we have to continue to name and shame the known perpetrators in public,” said Bhandari.

But some human rights watchers have met the publication of the list with measured caution. They are of the opinion that the list was published only because the term of the commissioners has come to an end and that the implementation of the recommendations remains uncertain. The tenure of the team expired on Sunday. 

“We are not sure how the commission’s new leadership will respond to the recommendations made by its predecessor,” said Bikash Basnet, a rights lawyer with the Advocacy Forum. “Besides, the commission has concluded only half of the complaints that were registered. It must investigate all cases and recommend action against the perpetrators. But that all depends on how the new leadership regards the importance of bringing rights violators to book.”