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Appendix: Case Update and Follow-Up
No Law, No Justice, No State for Victims
The Culture of Impunity in Post-Conflict Nepal
A Nepali man looks at photographs of disappeared persons displayed by human rights activists at an event to mark the International Day of the Disappeared in Kathmandu, Nepal, August 30, 2017. © 2017 AP Photo/Niranjan Shrestha
It has been 14 years since the armed conflict between Maoist insurgents and government forces ended in Nepal. Tens of thousands became victims of enforced disappearances, torture, rape, and unlawful killings in the decade of fighting between 1996 and 2006. They are still waiting for truth and justice.
There have been hardly any successful prosecutions since the end of the conflict for severe violations. Courts have ordered investigations, but the security forces, Maoists, and others have mostly failed to comply with directives. Nor have the Truth and Reconciliation Commission (TRC) or the Commission of Investigation on Enforced Disappeared Persons (CIEDP), which were ostensibly established in 2015 to expedite the legal system to deliver justice, been able to uphold that responsibility. This failure of justice has caused despair among victims and their families. The Kathmandu Post in a January 2020 editorial mourned, "For far too long, Nepal's transitional justice process has been held hostage due to political machinations and insincerity."
Resistance to address past abuses has entrenched impunity in the present and, combined with a failure to ensure security sector reform, has led to repeated lack of punishment in cases of serious human rights violations which still occur in Nepal. In a mounting number of alleged extrajudicial killings by the police, custodial deaths allegedly resulting from torture, and shootings of unarmed protesters in recent years, the authorities refused to take action despite strong evidence.
After the fighting between government forces and the Communist Party of Nepal (Maoist) ended with a 2006 peace agreement, several complaints were filed with the police against all parties to the conflict. For four consecutive years, Human Rights Watch and Advocacy Forum-Nepal examined progress on 62 cases documented in 49 police complaints known as First Information Reports (FIRs) which had been filed in different parts of the country. Our first joint report, Waiting for Justice, was published in 2008. We updated our findings in 2009 in our report Still Waiting for Justice, and in 2010 and 2011 in our reports Indifference to Duty and Adding Insult to Injury. In those reports, we flagged the continuing refusal of the Nepali justice system to respond to allegations of human rights abuses.
This report revisits those cases a decade later, and documents several much more recent cases of alleged human rights violation by security forces. Since then, while there was progress with the government bringing new transition justice mechanisms, we find that those are severely flawed. Meanwhile, the Nepali criminal justice system has not just failed to protect the rights of victims, but—caving under political pressure—has deliberately impeded accountability.
On October 15, 2020, Nepal's National Human Rights Commission (NHRC), in a major report on government responses to its recommendations over the last two decades, said that out of 286 individuals the commission said should face legal action, only 30 had been held accountable. The list includes 16 civil servants, 98 policemen, 85 Nepal Army personnel, and 65 Maoists. Of 1,195 recommendations made by the commission over the last 20 years, the government failed to act on half, and only 163 recommendations were fully implemented. The NHRC's list includes several alleged perpetrators of the 62 cases tracked in this report.
We conclude that failure to provide justice for past crimes creates direct and tangible harms in the present: families who lost loved ones years ago continue to seek justice and are forced to live without closure. And as new cases of abuse by the police show, impunity for past crimes means that unaccountable and abusive individuals and institutions continue to claim new victims in post-conflict Nepal.
Ongoing Violations
The engrained failure of accountability for serious violations, including extrajudicial killings and torture, has continued in the 14 years since the conflict ended in 2006, and has been matched by a lack of security sector reforms.
In October 2020, the NHRC said that a police team on August 6, 2018, summarily executed two men, Gopal Tamang, 23, of Sindhupalchowk and Ajay Tamang, 24, from Nuwakot. Police had claimed that the two men, suspected of abducting a child, had been killed in a gunfight. However, following an investigation, the commission recommended that authorities file criminal charges against five police officers for the killings.
In October 2019, three United Nations special rapporteurs wrote to the government requesting details of investigations, actions taken, and compensation provided to the victims or victims' families in three cases. In its January 2020 response, the government denied the allegations, claiming that "it is explicit and obvious that extrajudicial killing in any form and manner is categorically outlawed by Nepal."
In all three cases, the authorities had failed act properly. Dipendra Chaudhary, 27, a member of the marginalized Tharu community, was allegedly shot and killed in police custody on January 23, 2019. Saroj Narayan Singh, an unarmed protester from the marginalized Madhesi community, was shot in the head and killed by police who were responding to a protest against illegal sand mining in Sarlahi district on June 29, 2019. In both cases the police refused to register complaints.
Police also said that Kumar Poudel, a member of a violent Maoist group who was killed on June 20, 2019, at Lakhandehi forest near Lalbandi, had died in an armed exchange, but, as detailed later in this report, there is compelling evidence that he was taken into custody, tortured, and then shot dead. An NHRC investigation in October 2019 found Poudel's death to be an "extrajudicial killing," and recommended prosecution of the police officials involved in the incident. The authorities promised an inquiry but failed to take action. Instead, in a blatant attempt to sabotage the independence of NHRC, the government asked the commission to change its recommendations relating to the incident. A spokesman for the commission said, "The Home Ministry is asking the NHRC to rethink the recommendation of the commission but actually we have clear evidence…. The NHRC has investigated and concluded it was an extrajudicial killing."
The government has not implemented the recommendations of a judicial commission led by Girish Chandra Lal, a retired Supreme Court justice, into the abuses that occurred during the 2015 Terai protests against a new constitution. About 65 people, including 10 policemen, were killed. The commission report was submitted to the government in December 2017 but has not been made public despite pledges to do so.
Update on Cases
Over the last decade, families of conflict-era victims have repeatedly approached the authorities through the courts or the police. In some of these cases, the courts ordered the police to register FIRs and carry out investigations. In others, there were interventions by the NHRC.
But, with successive governments displaying what can only be described as a more robust commitment to impunity than to accountability, there has been hardly any progress toward prosecution since 2011 in any of the 62 cases tracked here. When Advocacy Forum lawyers reached out to the police seeking information on investigations of these complaints, they were repeatedly told that conflict-era cases were no longer being pursued because they will now be processed by the two transitional justice mechanisms, the CIEDP and TRC, set up in 2015. However, the existence of a transitional justice process does not remove the government's obligation to prosecute serious human rights violations.
The commissions, operating under a law that limits their power, have failed to make progress. Mohna Ansari, a member of the NHRC until October 2020, said that repeated attempts to follow up on the NHRC's directives have failed:
The [transitional justice] commissions do not have the authority to prosecute and I have not seen any progress by the government to address accountability. We have been saying that victim demands should be at the center. But nobody is listening to the victims.
In May 2020, a police officer told Advocacy Forum that police received official instructions in 2010 to stop proceedings and keep conflict-related cases pending until further orders. In Baglung district, police said they had not followed up on any of the cases filed by victims with the support of Advocacy Forum because the cases would be dealt by the transitional justice mechanisms. The Baglung public prosecutor's office said it had not investigated the cases.
In Bardiya district, the current public prosecutor said that he could not even locate records of any of the cases where mandamus orders were issued by the courts directing police to pursue investigations. Nor have the police forwarded any new investigations into conflict-era cases for prosecution since he took office in 2019. "I have not received any files regarding these cases from the police since I am here in the office," he told Advocacy Forum in June 2020.
In acquiescing to government orders, the police have even ignored court directives. In several cases, the Supreme Court has ordered a prompt investigation into killings. The fact that the police are choosing to obey executive orders over rulings by the judiciary exposes deeply rooted problems of the rule of law and political patronage in the police.
The Supreme Court has raised serious concerns over police failure to respect court orders. For example, in the case related to the murder of two brothers, Nar Bahadur Budhamagar and Ratan Bahadur Budhamagar, the Supreme Court issued an order in April 2017 noting that the "constitutional guarantee of human rights remains illusionary if police fails to investigate such a serious crime for such a long period of time." It further said that "such an indifference to the duty to investigate and prosecute severely undermines the public's confidence in the rule of law." The Supreme Court ordered the Home Ministry to coordinate with the Office of the Attorney General to conclude the case. However, when Advocacy Forum checked three years later, police said the investigation had not yet begun.
The government has also ignored the UN Human Rights Committee (HRC) when it called on Nepal to thoroughly investigate alleged enforced disappearances, rape, torture, and other human rights violations, and to prosecute and punish those responsible for crimes identified in individual complaints against Nepal brought to the HRC under the Optional Protocol to the International Covenant on Civil and Political Rights. The government argued that complainants had not exhausted domestic remedies and that the cases would be investigated by transitional justice mechanisms.
In eight cases submitted to the HRC by Advocacy Forum, representing 16 victims, the committee decided that violations had occurred and recommended that the government initiate criminal investigations, bring those responsible to justice, enact legislation criminalizing all gross violations, and remove statutory limitations. The committee also rejected the government's argument that local remedies had not yet been exhausted, reminding it that the proceedings of non-judicial bodies such as Nepal's TRC do not replace a state's duty to prosecute and punish gross violations of human rights.
In some of the cases brought to the HRC, the government has offered interim monetary relief, but has ignored the recommendations to investigate and prosecute.
Flawed Transitional Justice
When the conflict ended in 2006, the Comprehensive Peace Agreement (CPA) between the Maoists and an alliance of seven political parties pledged a transitional justice process to "investigate [the] truth about people seriously violating human rights and involved in crimes against humanity."
There were lengthy, intentional delays from the start. The government initially tried to enact a new law to establish a truth and reconciliation commission in 2010. However, it was not passed by parliament, as the political parties could not reach consensus over its amnesty provisions. In 2013, under new political leadership, the government issued an Ordinance on Investigation of Disappeared Persons, Truth and Reconciliation Commission which contained amnesty provisions. Responding to a petition from victims and human rights lawyers, the Supreme Court struck down the ordinance, ruling that it failed to uphold international standards.
Nepal's Constituent Assembly ignored the Supreme Court ruling, only slightly modifying the ordinance, and passed it as the Commission on Investigation of Disappeared Persons, Truth and Reconciliation Act 2014 (TRC Act). It came into force on May 11, 2014. The Commission of Investigation on Enforced Disappeared Persons and the Truth and Reconciliation Commission were established in February 2015 but without amendments to the law; both commissions have proved to be ineffective.
The TRC Act was challenged in the Supreme Court by 234 victims, with the support of domestic human rights organizations. In February 2015, the Supreme Court found that several sections violated Nepal's constitution and its international human rights obligations, especially rejecting provisions that could give amnesties to those responsible for the most serious abuses. The government filed a petition seeking to overturn the judgment. The Supreme Court, on April 26, 2020, rejected the government's petition.
The UN and international rights groups have provided detailed descriptions of the ways in which the legislation fails to meet basic international human rights standards.
In 2018, the government led by Prime Minister Khadga Prasad Sharma Oli—the first elected under the new 2015 constitution—indicated that one of its priorities was to amend the law to ensure genuine accountability. It drafted amendments in June 2018 and held consultations with stakeholders, including international human rights groups.
However, those amendments, while representing an improvement to the existing TRC Act, still failed to meet international standards. The focus was on reconciliation and providing reduced and alternative sentences in serious crimes. The amendments suggested that an accused's contrition, reconciliation with the victims, and promises not to repeat the offense should influence decisions on whether to prosecute. After criticism, the government halted its efforts to bring those amendments through parliament. To date, Nepal has failed to amend the TRC Act to accord with the Supreme Court decision.
The TRC and CIEDP fall short of international standards, both in constitution and operation. The current legal framework has been condemned by victims' groups as amounting to "forced reconciliation." In a petition to the Supreme Court on proposed mediation, victim groups argued that this policy also fails to consider the inequalities between vulnerable and marginalized victim communities and the perpetrators, who have the backing of powerful institutions and leaders. Victim families say that the authorities are trying to use "reconciliation" to subvert justice, by granting amnesties and effective impunity for gross human rights violations, amounting to grave crimes under international law.
The non-consultative, uncoordinated, and opaque approach to the commissions' work has created distrust among all major stakeholders, including conflict victims and members of civil society. As of February 2018, which was set as a deadline for submitting cases, the TRC had received 60,298 complaints and the CIEDP had received 3,093 complaints but neither had made much progress toward justice. In a February 2020 report, as the extended term of the commissioners ended, Advocacy Forum found that the TRC had completed preliminary investigations in less than 10 percent of the complaints and the CIEDP had commenced preliminary investigation in 75 percent of complaints. Neither had resolved even one case out of the more than 63,000 complaints lodged by victims.
Suman Adhikari, whose father was killed by the Maoists in 2002, said that victims and their families are still searching for truth, justice, and reparation. "It is really frustrating to the victims waiting for justice," he said. "The government is only providing lip service at international forums. The puppet commissioners say nothing. The situation is very difficult." During an Advocacy Forum consultation with victim groups in October 2019, one person said:
These commissions are established just to show they exist. They have not done any investigation. I have filed the complaint about the disappearance of my husband. Since I filed the complaint, no one has come to me with any updates. No investigation is done. Why do all institutions fail to give us justice?
National judicial officials around the world could also investigate and prosecute those implicated in serious international crimes, under the principle of "universal jurisdiction." This principle allows authorities in a third country to pursue individuals believed to be responsible for certain grave international crimes even though they were committed elsewhere and neither the accused nor the victims are nationals of that country.
Over the past two decades, the national courts of an increasing number of countries have pursued cases involving grave international crimes such as war crimes, crimes against humanity, genocide, torture, enforced disappearances, and extrajudicial executions committed abroad. In particular, groundbreaking investigations and prosecutions are underway in some European countries, including Germany, Sweden, and France, against people accused of serious crimes in Syria and Iraq. These cases are made possible by the arrival in Europe of victims, witnesses, and other previously unavailable evidence.
Such cases are an increasingly important part of international efforts to hold perpetrators of atrocities accountable, provide justice to victims who have nowhere else to turn, deter future crimes, and help ensure that countries do not become safe havens for human rights abusers. National experiences in various countries show that the fair and effective exercise of universal jurisdiction is achievable where there is the right combination of appropriate laws, adequate resources, institutional commitments, and political will.
The case of Col. Kumar Lama, prosecuted in the United Kingdom by the Crown Prosecution Service, is one such example. Lama was charged with crimes of torture which allegedly occurred during the conflict. Nepal refused cooperation with the UK police investigation. Although Lama was acquitted of the charges against him, with the jury failing to reach a verdict on one count, the UK proceedings had an impact in Nepal, giving fresh impetus to victims' demands for justice and making clear to the authorities that international justice is a realistic prospect. Further, the case provided valuable lessons to the UK authorities in conducting such challenging prosecutions.
Nepal is striving to build a democratic and prosperous society. A new constitution, promulgated in 2015, espouses these principles. But an open and rights respecting society, built on the rule of law, cannot be rooted in a system which provides entrenched impunity for the worst human rights violations. By refusing to allow accountability for the crimes of the past and the present, Nepal's rulers are thwarting the principles on which a better future can be built.
To examine how the Nepali justice system responds to allegations of human rights abuses, Human Rights Watch and Advocacy Forum have recorded progress on 62 cases documented in 49 FIRs filed with the police since June 2006. Of these, 46 relate to cases of alleged extrajudicial killings, enforced disappearances, torture, or rape committed by security forces in the period between 2002 and 2006.[1] The remaining FIRs relate to cases of alleged killings by members of the Communist Party of Nepal-Maoist (CPN-M).[2]
Our first joint report, Waiting for Justice, was published in 2008. We updated our findings in 2009 in our report Still Waiting for Justice, in 2010 in our report Indifference to Duty, and in 2011 in Adding Insult to Injury.[3] This report is a follow-up of these cases a decade later, documenting the continued failure of justice. Advocacy Forum lawyers assisted and continue to assist the families in seeking justice in all these cases.
In May and June 2020, Advocacy Forum contacted district police offices, offices of the district public prosecutors, courts, and families of victims to update the information with any progress in investigations and prosecutions related to these cases. Because of Covid-19 restrictions, staff could not visit all the offices of the police and prosecutors in the districts, but contacted relevant officials over the telephone in the districts of Baglung, Banke, Dhanusha, Kanchanpur, Kaski, Morang, Rupandehi, Kavre, Dhading, Udaypur, Kapilvastu, and Ramechhap.
Families of all victims in the report consented for their cases to be included. No payments were made for information included in this report.
Human Rights Watch and Advocacy Forum wrote to the government of Nepal asking for their response to the issues raised in this report but received no reply.
I. Unending Rights Violations
Over 13,000 Nepalis were killed and over 1,300 were subjected to enforced disappearance during a 10-year internal armed conflict which lasted from 1996 to 2006.[4] The Comprehensive Peace Agreement, with which the conflict ended in 2006, contained a commitment to transitional justice. Pledges to ensure accountability and reparations for conflict-era abuses have been repeated over the years since then.[5] Yet, 14 years later, there has been no meaningful progress. Instead, without accountability and security sector reform, abuses have continued, and a culture of impunity has become entrenched.
A 10-Year Armed Conflict
In 1996, the Communist Party of Nepal-Maoist (CPN-M)[6] declared a "people's war" against the "ruling classes," which included the monarchy and mainstream political parties.[7] During the first years of the armed conflict, the ill-equipped and poorly trained Nepal police was entrusted by the government with fighting the Maoists.
The Maoists attacked members of mainstream parties and landowning families. As a key target of the Maoists, hundreds of police officers lost their lives. Ultimately, a total of 1,271 out of 1,971 police posts across the country stopped functioning after they were destroyed in attacks by the Maoists, or after police personnel were withdrawn for security reasons.[8] By mid-2001, the Maoists had established effective control in 22 of Nepal's 75 districts, exercising authority over development projects, schools, and health facilities; imposing taxes; running "people's courts"; and attempting to assume the functions of a state.
Peace talks between the government and the Maoists, which began on August 30, 2001, broke down on November 23, 2001, after the Maoists unilaterally withdrew and attacked police and army posts in 42 districts, killing as many as 80 members of the security forces.[9] The authorities responded on November 26 by declaring a nationwide state of emergency and deploying the Royal Nepal Army (RNA, now Nepal Army, NA).[10]
The army's involvement did little to quell the insurgency, but did make it increasingly lethal for civilians. Over 8,000 mostly civilian deaths were recorded after November 2001. Security forces were accused of extrajudicial executions, enforced disappearances, torture, and arbitrary arrests. The Maoists abducted and executed "class enemies," practiced widespread extortion, and forcibly recruited children into combat.[11] Both sides stand accused of rape.[12]
In May 2002, parliament was dissolved, and later that year King Gyanendra fired the prime minister, Sher Bahadur Deuba. Over the following years, a series of prime ministers were appointed and dismissed by the king, while parliamentary parties protested the palace's role in politics. Also in 2002, the government introduced the Terrorist and Disruptive Activities (Control and Punishment) Ordinance (TADO), granting wide powers to the security forces to arrest people involved in "terrorist" activities, and declared the CPN-M a "terrorist organization."[13]
There was a second failed round of peace talks in 2003, which broke down after the army massacred 17 Maoists and two civilians in custody at Doramba, in Ramechhap district, in August that year.[14] In November 2003, the government put the police and the paramilitary Armed Police Force (APF) under the unified command of the army.[15] While the Maoists had established control over much of the countryside, the security forces operated from heavily fortified bases in the district headquarters, launching search operations and crackdowns.
The international community finally acted on longstanding calls from national and international human rights groups to set up a monitoring mission of the Office of the United Nations High Commissioner for Human Rights (OHCHR) in April 2005.[16] The Maoists allowed OHCHR to investigate alleged abuses, and at least in some cases took action in response to concerns raised by the monitors.[17] Complaints of enforced disappearances by the security forces reduced, although there was only limited cooperation from the military, which refused OHCHR full access to its records of courts of inquiry and courts martial.[18]
On February 1, 2005, King Gyanendra declared a state of emergency, and with the army's backing assumed direct executive authority, citing the inability of the civilian government to resolve the conflict.[19] He ordered the detention of activists, journalists, and human rights defenders, and imposed severe restrictions on civil liberties.[20] Protests broke out, backed by the major mainstream political parties and the Maoists.
The Maoists' unilateral decision to begin a four-month ceasefire, from September 3, 2005, was not joined by the royal government. The political parties represented in parliament established a Seven-Party Alliance (SPA) and entered a dialogue with the Maoists, facilitated by the government of India.[21] On November 22, 2005, the SPA and the Maoists adopted a 12-point "Letter of Understanding," which included a call for the election of a constituent assembly and committed the Maoists to multi-party democracy, respect for human rights, and the rule of law. The agreement, strongly criticized by the royal government, was welcomed by the UN Secretary-General.[22]
Following the end of their unilateral ceasefire in January 2006, the Maoists called for a blockade of Kathmandu and all district headquarters nationwide, starting from March 14, and announced an indefinite countrywide strike from April 2. Following talks with representatives of the SPA in New Delhi in March, the Maoists joined the political parties in a combined show of strength. Tens of thousands of people took part in massive demonstrations across the country in defiance of curfew orders.
On April 24, the king announced the reinstatement of parliament.[23] A government under Prime Minister Girija Prasad Koirala, leader of the Nepali Congress party, was formed. It started negotiations with the Maoists on a full-fledged peace agreement.
The Comprehensive Peace Agreement
The Comprehensive Peace Agreement (CPA) between Nepal's government and the CPN-M was signed on November 21, 2006. It consolidated a series of commitments to human rights including an end to discrimination, arbitrary detention, torture, killings, and enforced disappearances.[24] The CPA also contained a commitment to "investigate [the] truth about people seriously violating human rights and involved in crimes against humanity, and to create an environment of reconciliations in the society."[25]
A United Nations Mission to Nepal (UNMIN), characterized as "a focused mission of limited duration," was established in early 2007.[26] UNMIN's mandate was confined to "monitoring arms and armed personnel" of both sides, providing technical support for the planning, preparation, and conduct of elections, and assisting in the monitoring of ceasefire arrangements.
The ceasefire endured, but years of political instability followed due to disagreements within and between the political parties. None of the parties took meaningful steps toward keeping their pledge to ensure accountability for serious human rights violations, although the issue frequently became embroiled in political negotiations.[27]
A New Constitution
A central plank of the peace agreement was the election of a Constituent Assembly to draft a new democratic constitution. This process was repeatedly delayed because of political disagreements.[28] The first Constituent Assembly was elected in 2008. After it failed to complete the charter before its term expired in 2012, a second Constituent Assembly was elected in 2013.
Following the massive earthquakes of April and May 2015, four major parties signed an agreement on June 8 to complete the constitution by a "fast track" process without proper consultations.[29] A new draft was passed by the second Constituent Assembly on September 16, 2015.[30]
The 2015 constitution declares Nepal to be a federal republic and contains measures to address diversity in a country of multiple languages, caste, and ethnic identities. The country was restructured into seven provinces which have some legislative and policing powers and the authority to levy taxes and disburse income from natural resources at the provincial level. Establishing provincial boundaries had been complex and controversial, and was the main reason for repeated delays in completing the constitution.[31]
Protests broke out in 2015 in the final weeks of the constitution drafting process. Marginalized groups in the Terai—the lowland region that stretches across southern Nepal between the Indian border and the foothills of the Himalaya—objected to the "fast track" process and the constitution which emerged from it.
The protests against the new constitution involved two relatively large ethnic or social groups: Madhesis, concentrated in the eastern and central Terai, and Tharus, concentrated in the far western Terai, who argued that the new constitution abrogated previous commitments made to their communities. They particularly objected to the new provincial boundaries, and also opposed the unequal distribution of parliamentary constituencies and restrictions on the right of women to pass citizenship to their children.
Impunity for human rights violations was the norm before the start of the armed conflict in Nepal and, according to widely held analysis, was a factor that led people to support the Maoists.[32] The engrained failure of accountability for serious violations, including extrajudicial killings and torture, has continued in the 14 years since the conflict ended in 2006, and has been matched by a lack of security sector reforms.
Research by Advocacy Forum over several years has found that torture is widespread in police custody, and that members of the Dalit—formerly so-called untouchable—community, as well as other marginalized communities including Tharus and Madhesis, are more likely to be tortured than members of so called upper castes.[33] There have been no convictions for the crime or torture since it was recognized in Nepali law in 2018.[34]
Activists say police often refuse to register FIRs, the initial complaints to police which formally initiate investigations, from victims of serious rights violations. When FIRs are registered, police and prosecutors procrastinate in carrying out investigations, even in the face of orders and legal rulings by district courts, courts of appeal, or the Supreme Court.[35]
When there is political pressure or considerable public outcry, the authorities set up investigation committees, or even high-level commissions, to defuse the situation.[36] The outcomes of these investigations are invariably flawed, and the authorities fail to act on any meaningful recommendations. The reports of high level commissions of inquiry, such as the Malik Commission, which investigated the lethal suppression of the 1990 People's Movement; the Rayamajhi Commission, which investigated the lethal suppression of the 2006 People's Movement; or the Lal Commission, which investigated the lethal suppression of protests in the Terai in 2015, remain unpublished, despite public commitments to do so.
Recent Killings and Deaths in Custody
This denial of justice is undermining the rule of law in Nepal today, helping to sustain an ongoing pattern of abuses.[37] On October 28, 2019, three UN special rapporteurs wrote to the government requesting details of investigations, actions taken, and compensation provided to the victim or victim's family in three such cases.[38]
According to the special rapporteurs, Dipendra Chaudhary, 27, a Nepali citizen and member of the marginalized Tharu community, who had been arrested in India and handed over to the Nepal police, was allegedly shot and killed in police custody on January 23, 2019. Saroj Narayan Singh, an unarmed protester from the marginalized Madhesi community, was shot in the head and killed by police who were responding to a protest against illegal sand mining in Sarlahi district on June 29, 2019. In both cases, the rapporteurs noted, police refused to register FIRs.[39]
In a third case which was addressed by the special rapporteurs, Kumar Poudel, a member of a violent Maoist group, was killed by police on June 20, 2019, at Lakhandehi forest near Lalbandi.[40] The police said Poudel had been killed in an armed exchange, but there is compelling evidence that he was taken into custody, tortured, and then shot dead. Photographs of his body and the post-mortem report showed that the victim had gun shots to the back of his head, and there were injuries to other parts of the body including a broken hand.[41]
Responding to the joint communication from the UN rapporteurs in January 2020, the government denied the allegations, claiming that "it is explicit and obvious that extrajudicial killing in any form and manner is categorically outlawed by Nepal."[42] The government said that Poudel was a "wanted terrorist" belonging to a banned armed group, that he had been involved in crime and extortion, and that he had died in crossfire during an armed exchange with police while his other companions fled the scene.[43]
However, by that time a National Human Rights Commission investigation had already concluded that Poudel's death was an "extrajudicial killing."[44] On October 21, 2019, the NHRC recommended investigation and prosecution of the police officials involved in the incident.[45] The authorities promised an inquiry.[46] However, the government has since failed to take action.[47] Hari Krishna Poudel, Kumar's brother, said the family has received threats and warnings. "How can we expect justice when the state itself protects the perpetrators?" he said.[48]
In a blatant attempt to sabotage the independence of NHRC, the police, through the Ministry of Home Affairs, asked the commission to change its recommendations relating to the incident.[49] A spokesman for the commission said, "The Home Ministry is asking the NHRC to rethink the recommendation of the commission but actually we have clear evidence.… The NHRC has investigated and concluded it was an extrajudicial killing."[50]
Shambhu Sada, 23, a member of the Dalit community, was reportedly found dead inside his police cell in Dhanusha District on June 10, 2020.[51] He had surrendered two weeks earlier, after a vehicle he was driving was involved in a fatal road accident. The police claimed Sada's death was a suicide, but his relatives alleged that he was tortured to death. The police initially refused to register an FIR, amid protests alleging police brutality. The NHRC said it was a case of caste-based violence.[52]
Raj Kumar Chepang, 24, a member of the Chepang indigenous community, died on July 22, 2020, six days after he and a group of friends were detained and allegedly tortured by soldiers after entering Chitwan Park, reportedly to collect snails.[53] The army initially denied causing his death and the NHRC opened an investigation.[54] Although Raj Kumar Chepang's family submitted a FIR at the Chitwan District Police Office on July 23, 2020, the police only registered it a day later after sustained pressure.[55] Subsequently, a Nepal Army soldier, Kiran Kumar Budha, was arrested on charges of murder. On October 13, 2020, the Chitwan district court ordered him to be detained pending the outcome of his trial. According to the judicial order, he will remain in army custody while awaiting trial.[56]
On August 26, 2020, Bijay Mahara (also known as Bijay Ram Chamar), 19, a member of the Dalit community, died in police custody. Police initially claimed that he had died of kidney failure, but Mahara recorded a video in hospital before he died alleging that he had been severely abused in detention.[57] Mahara's family say he was in good health at the time of his arrest on August 16. Doctors found injuries on his hands and back. The NHRC opened an investigation.[58]
In yet another case, in October 2020, the NHRC concluded that a police team, on August 6, 2018, had summarily executed two men, Gopal Tamang, 23, of Sindhupalchok and Ajay Tamang, 24, from Nuwakot. Police had claimed that the two men, suspected of abducting a child, had been killed in a gunfight. The NHRC, however, after its investigations, recommended that the government file criminal charges against five police officers for their involvement in the killing.[59]
2015 Terai Violence
Among the most egregious abuses of the post-conflict period occurred during the 2015 Terai protests against the new constitution.[60] About 65 people, including 10 policemen, were killed.[61]
The government ordered an independent investigation led by Girish Chandra Lal, a retired Supreme Court justice. The commission report was submitted to the government in December 2017.[62] However, the government has refused to keep its pledge to make the Lal Commission's findings public and is yet to comply with Supreme Court orders to release the report.[63]
According to portions of the report leaked to the media, the commission found that the police "did not fulfil their important duty" to protect members of the indigenous Tharu community from mob attacks. The commission said that the killing of bystanders and protesters involved excessive use of police force and concluded that the use of lethal force against protesters in the eastern Terai region could not have occurred "without the direction and orders from the local administration."[64] The report includes detailed recommendations on police reform.[65]
The Case of Dharmendra Barai
Dharmendra Barai, 14, was tortured and killed in July 2010 in police custody in Rupandehi district.[66] On August 3, 2010, the police refused to let Barai's father register an FIR to investigate the killing.
With the support of Advocacy Forum-Nepal, the victim's family filed a writ of mandamus at the High Court which, on January 26, 2011, ordered the District Police Office, Rupandehi, to register the FIR and investigate the incident. However, instead of implementing court directives, the police filed an appeal in the Supreme Court. The Supreme Court upheld the decision of the High Court, but no action had been taken on the incident at time of writing.
In our 2010 report, Human Rights Watch and Advocacy Forum wrote that despite two inquiries by national and local government, no reports had been made public.[67] Instead, according to the victim's lawyers, the victim's family was offered 150,000 Nepali rupees (US$1,250) to drop all legal actions.
Restrictions on Freedom of Expression and Association
Human rights activists, lawyers, and civil society groups have played a key role in pursuing justice for conflict-era violations, and in seeking reform. However, they have come under increasing pressure to end any criticism.
The current government of Prime Minister K.P. Sharma Oli is even proposing new laws that threaten to undermine the right to freedom of expression, including the Media Council Bill, Information Technology Bill, and the Mass Communications Bill, which contain numerous loosely defined but potentially draconian measures. These include offenses such as harming the nation's "self-pride" or damaging an individual's "image or prestige." Provisions to control online and social media activity are especially sweeping. Many of the new offenses carry fines and lengthy prison sentences.[68] The Special Service Bill contains provisions that would give Nepal's intelligence agency unlimited search and surveillance powers.[69] The government has also proposed amendments to weaken the NHRC.[70] These bills are currently before parliament.
National Human Rights Commission
NHRC investigations seldom lead to action. On October 15, 2020, the commission published 20 years of data, naming 286 people, including 98 police officers, 85 soldiers, and 65 former Maoist rebels, where its investigators concluded there is evidence warranting investigation and prosecutions of abuses including torture, enforced disappearance, and extrajudicial killing.[71] The report presents and analyzes the commission's findings and recommendations spanning two decades since it was established in 2000. In total, it has registered 12,825 complaints, reached conclusions in 6,617 cases, and made 1,195 recommendations to the government. The commission's recommendations have been fully implemented only in 13 percent of cases, partially implemented in 37 percent of cases, and not implemented at all in in nearly 50 percent of cases. The government has often implemented recommendations involving the payment of compensation, but very rarely in relation to investigating and prosecuting abuses.
II. Stalling Transitional Justice
The Nepali criminal justice system has not only failed to protect the rights of victims, but caving to political pressure, has deliberately blocked accountability. Over the last decade, victims' families have repeatedly approached the authorities through the courts or the police. In some of these cases, the courts intervened and ordered investigations. In others, there were interventions by the NHRC. But the justice process has been stalled by the government, which insists that these cases will be handled by a transitional justice mechanism, which itself remains seriously flawed.
The Legal Framework for Transitional Justice
The government drafted and revised two bills to establish a truth and reconciliation commission and a commission of inquiry into enforced disappearances. In February 2010, it presented both bills in Parliament. These bills ruled out amnesty for murder, enforced disappearances, torture, and rape. However, they did not enter into law.
In 2013, the Nepal government issued the Ordinance on Investigation of Disappeared Persons, Truth and Reconciliation Commission, based on the earlier bills but removing the provisions that prevented the commissions from recommending amnesty for those four categories of violations, and incorporating mediation irrespective of the nature of violations.[72]
The ordinance was successfully challenged in the Supreme Court, which rejected the Truth and Reconciliation Ordinance in January 2014, ruling that any mechanism for transitional justice must conform to international legal standards, lead to accountability for serious human rights violations, and guarantee victims their right to remedy and reparation.[73] The Supreme Court also said that the government should enact laws that criminalize gross human rights violations, including enforced disappearances, torture, crimes against humanity, and war crimes, saying that even if there is political will to prosecute these offenses, in the absence of a distinct criminal law, these human rights abuses will not be fully justiciable.[74]
On May 11, 2014, Nepal's Constituent Assembly ignored the Supreme Court ruling and enacted the Commission on Investigation of Disappeared Persons, Truth and Reconciliation Act 2014 (TRC Act), which only slightly modified the ordinance.[75] The act retained the provision of amnesty and mediation, irrespective of the nature of violations. It provided for the creation of two commissions, the Commission of Investigation on Enforced Disappeared Persons (CIEDP) and the Truth and Reconciliation Commission (TRC), which were established in 2015.[76]
The UN provided a detailed analysis of the ways in which Nepal's transitional justice legislation fails to meet basic international human rights standards, pointing particularly at the problematic "amnesty" provision and provision for "reconciliation" to be imposed against the wishes of victims.[77]
Following an appeal against the TRC Act, in February 2015, the Supreme Court ruled that it was unacceptable, especially provisions that give impunity to those responsible for the most serious abuses, such as crimes against humanity and war crimes.[78] The government filed a petition seeking to overturn the judgment.
In June 2018, the attorney general, Agni Kharel, invited national and international human rights organizations to discuss a proposed bill amending the 2014 law. While some of the draft amendments were a welcome step forward, to comply with international standards the law needed further strengthening. In a letter to the attorney general, Human Rights Watch set out international standards including on universal jurisdiction, saying:
The current draft law fails to address the many gaps in Nepali law that make it difficult to prosecute, especially at senior levels, for international crimes such as torture and crimes against humanity. As you are aware, the existing law falls far short of international standards, as has been reflected both in Supreme Court rulings and in a technical note provided by Office of the United Nations High Commissioner for Human Rights. The amendments should take those concerns into account.[79]
A group of national human rights organizations also provided their preliminary observations on the proposed bill, recommending several changes including informed consultations and the transparent appointment of commissioners.[80] They called upon the government to publish an operational plan including a clear timeline for establishing all components of the transitional justice process, such as the setting up of the special court, amendments to the Penal Code and other relevant laws, and structures for paying reparations.[81]
However, the government shelved the proposed amendments to await a Supreme Court ruling on its appeal against the February 26, 2015 verdict which had struck down the amnesty provisions. On April 26, 2020, the government's petition against the Supreme Court's 2015 verdict was rejected.[82] An OHCHR spokesperson said that the Nepal government should treat the Supreme Court ruling as "an opportunity to change course and pursue a truly fair and transparent transitional process that will win the trust of key stakeholders." He said:
The Supreme Court's decision reconfirms that the only way for the Government to credibly proceed with the transitional justice process is to abide by the key human rights and transitional justice principles reflected in the Supreme Court's 2015 ruling, including the centrality of victims and the importance of accountability for serious violations. Victims' advocacy groups and civil society members have welcomed the court's decision, and so do we.[83]
At time of writing, victims were still awaiting the government's proposed amendments to the 2014 Transitional Justice Act.
The Commission of Investigation on Enforced Disappeared Persons (CIEDP) and the Truth and Reconciliation Commission (TRC)
In response to several pending habeas corpus writ petitions, the Supreme Court in June 2006 directed the government to establish a separate commission of inquiry on enforced disappearances.[84] The Comprehensive Peace Agreement (CPA), signed in November that year, provided for a Truth and Reconciliation Commission.[85] When they signed the CPA, the Nepal government and the Maoists agreed to publicly reveal the whereabouts of those "disappeared" during the conflict within 60 days. Nearly 14 years later, the transitional justice bodies have completed no investigations, and the fate of over 1,300 "disappeared" people remains undisclosed.
The Commission of Investigation on Enforced Disappeared Persons (CIEDP) and the Truth and Reconciliation Commission (TRC) were established on February 10, 2015, under the contentious Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act, 2014. Recognizing the urgency of creating a justice mechanism, both national and international civil society organizations had made a series of recommendations for setting up independent commissions but were ignored.[86]
The TRC and CIEDP fall short of international standards. Commissioners were selected through a flawed process led by political parties and without the involvement of victims' groups. The current legal framework gives the commissions powers to promote "reconciliation" among victims and perpetrators.[87] Victims' groups fear that because perpetrators have the backing of powerful institutions, victims will end up being pressured and face "forced reconciliation."[88]
In their initial two-year term, the commissions could barely begin work as they struggled to set up operations, lacked sufficient human and financial resources, fell prey to in-fighting among members, and were hampered by political interference.[89] After the two-year mandates of the TRC and CIEDP expired on February 9, 2017, the government extended their mandates for one year, although several commissioners expressed concern that an extension without the necessary legal amendments would render any future work meaningless and would not lead to justice for victims.[90]
On January 20, 2018, the president approved an ordinance to extend the mandate of the two commissions by another year, without the recommended reforms.[91] The National Human Rights Commission of Nepal (NHRC) made a series of recommendations to improve the functioning of the commissions, but was ignored.[92] Mohna Ansari, a member of the NHRC from 2014 to 2020, said that the government had failed to show real commitment to justice: "I have not seen any progress by the government to address accountability. Where is the law amendment? We have been saying that victim demands should be at the center. But nobody is listening to the victims."[93]
As of February 2018, when there was a deadline for filing cases, the TRC had received 60,298 complaints of human rights violations, and the CIEDP had received 3,093 complaints of enforced disappearance.[94] The commissions made little progress, however, in investigating these complaints.[95] Suman Adhikari, whose father was killed by the Maoists, told Human Rights Watch that victims' groups were disappointed. "The TRC Act is faulty, the process is faulty. We don't trust the commission, but we have filed petitions to test it. What choice do we have?"[96] "These commissions are established just to show they exist," one woman whose husband is among those "disappeared" said during an Advocacy Forum consultation with victim groups in October 2019. "They have not done any investigation."[97]
On March 25, 2019, the government appointed a committee chaired by a former chief justice, Om Prakash Mishra, to recommend new commissioners, as the terms of the existing team would expire in April.[98] According to Advocacy Forum, at the time their tenure expired in 2019, the commissions were still in the preliminary phase of their work:
The TRC had completed preliminary investigations in less than 10 percent of the complaints and the CIEDP had commenced preliminary investigation in 75 percent of complaints at the time of the expiry of their tenure. Neither had resolved even one case out of the more than 60,000 complaints lodged by victims.[99]
Pointing out that the process to appoint new commissioners provided an opportunity for the government to bring the transitional justice process on track, a number of national and international civil society organizations recommended that the government initiate consultations on the amendments that had previously been presented in June 2018.
Advocacy Forum and national rights groups helped victims' associations hold consultations in 20 districts to solicit preliminary recommendations.[100] They demanded that the government proceed systematically by first holding wider consultations with victims and civil society, then amending the transitional justice law incorporating directives of the Supreme Court and Nepal's international human rights obligations, and finally appointing new commissioners after the act had been amended.[101]
However, in November 2019, the recommendation committee published a list of candidates.[102] Victims and civil society groups raised concerns that the government would make political appointments, staffing the commissions with people who are not adequately impartial and independent.[103] On January 18, 2020, the committee submitted its nominations of new commissioners, ignoring demands by victims' groups and civil society.[104] Instead, the government held rushed consultations on January 13, 2020, in all seven provincial headquarters at only three-days' notice, a process that "victims and civil society perceived as window dressing."[105] The appointments were made without amending the legal framework.[106] The new commissioners took their oath of office on January 23, 2020.[107]
On March 16, 2020, five UN special procedures wrote to the government raising concerns about the failure to hold proper consultations with victims, the lack of independence and transparency in the process to appoint new commissioners, and flaws in the process of amending the transitional justice law.[108] The government responded on June 12, 2020, stating that it was working on the amendments taking into account the demands submitted by the victims' representative organizations and suggestions and feedback from the international community, including the relevant UN bodies. Consultations at the higher political level were also underway. However, the government said, the Covid-19 pandemic had affected the process.[109]
III. Failure of Justice and Universal Jurisdiction
Nepal's political leaders—despite repeated recommendations from the United Nations, donors, and influential countries—have failed to develop a coherent and sustainable plan to ensure that abuses committed by Maoist fighters and by security forces are properly prosecuted. Instead, the authorities have consistently ignored court orders for investigations, prosecutions, and convictions for conflict-era violations. None of the parties to the conflict—whether political parties including the Maoists, or security forces including the military—respond properly to police complaints or court orders.[110]
On May 5, 2016, the then-coalition partners in the government of Prime Minister K.P. Sharma Oli—the Communist Party of Nepal-Maoist Centre (CPN-M) and the Communist Party of Nepal-Unified Marxist Leninist (CPN-UML)—agreed to a 9-point deal containing provisions to shield perpetrators of abuses.[111] The agreement entrenched impunity for those who planned and carried out serious violations, directing authorities to withdraw all conflict-era cases and to provide amnesty to alleged perpetrators.[112] The two parties later merged in February 2018.[113]
Even in cases where courts have ordered arrests or convicted people, the accused have refused to submit themselves. The political leadership has said that wartime cases should be handled under the TRC Act instead, which to this day specifically recommends amnesty in contravention of international practice and Supreme Court rulings.[114]
Shielding Perpetrators
Nepali authorities have not only prevented police investigations and ignored court orders, they have, in the few cases where a prosecution proceeded, actively attempted to protect perpetrators. The emblematic cases discussed below show how the authorities are actively impeding accountability.
The Case of Maoist leader Bal Krishna Dhungel
In some cases, those convicted have attempted to evade arrest through political protection. In April 2017, the Supreme Court ordered the inspector general of police to arrest Maoist leader Bal Krishna Dhungel, who was sentenced to 12 years in prison by a district court in 2004 for a 1998 murder, of which he had served almost 8 years when the Court of Appeal overruled the district court verdict on the basis that the case would be dealt with through the transitional justice bodies.[115] Although the district court ruling was later confirmed by the Supreme Court in 2010, Dhungel, a member of parliament, initially evaded arrest, despite the fact that in ordering his detention, the Supreme Court found he had made "objectionable threats of physical attacks on justices and the Chief Justice."[116]
Dhungel remained free until October 2017 when a contempt of court petition was filed against the police chief for failing to act, and he was arrested and taken to serve his sentence. Dhungel's party staged protests calling for his release.[117] Seven months later, on the government's recommendation, he was released for "good behavior."[118]
The Case of Army Officers Bobi Khatri, Amit Pun, Sunil Adhikari, and Niranjan Basnet
The military routinely ignores the courts, refusing to produce suspects before judges or to ensure that those convicted are arrested. On April 16, 2017, the Kavre district court sentenced three officers to life imprisonment for the murder of Maina Sunuwar, a 15-year-old girl who was tortured to death in army custody in February 2004. The trial took place in the absence of any of the four accused, despite repeated court summons. An arrest warrant issued in 2008 was never enforced, with the police telling the court they were unable to trace the accused despite the fact that some of them were still serving in
the army.[119]
Bobi Khatri, Amit Pun, and Sunil Adhikari, the three officers who were convicted and sentenced by the Kavre district court for Maina Sunuwar's murder, are no longer in the army. The one remaining serving officer, Maj. Niranjan Basnet, was acquitted.[120] Despite their convictions the other three accused have not been arrested.
The public prosecutor decided not to appeal Basnet's acquittal, even though it is standard procedure in serious crimes, such as murder, to appeal. Devi Sunuwar, Maina's mother, filed applications before the attorney general, seeking his intervention to file an appeal. However, the Office of the Attorney General, which approved the decision against an appeal, failed to respond to Devi Sunuwar's requests and refused to inform her of the grounds on which they made the decision.
On September 1, 2017, the Office of the Judge Advocate General of the Nepal Army filed a writ of certiorari in the Supreme Court seeking annulment of the convictions ordered by the district court. The army claimed that the incident cannot come under the jurisdiction of the regular court because it happened during a military operation, and therefore military rules should apply.[121] The NA also said that the officers concerned had already been tried by court martial, and were therefore placed in double jeopardy, and that the case should thus be handled by the TRC.[122]
The court martial proceedings did not meet international standards. Ignoring allegations of the torture and custodial death of a child, the court martial, on September 27, 2005, merely found three officers guilty of negligence. After OHCHR sought details of the prosecution and punishment in October 2005, the army, in December, responded that the officers had been found guilty of "not following the standard procedures and orders," and had been sentenced to six months of imprisonment, as well as a fine, for failing to follow proper procedures when disposing of Maina Sunuwar's body.[123]
The army's petition remains pending before the Supreme Court, which has postponed its hearing more than eight times.[124]
Devi Sunuwar, Maina's mother, said she still wanted to see her daughter's killers in prison.
Is prison only for the poor, the Dalit, like us? Otherwise why are these men not arrested despite being convicted by the court? Are we to believe that the entire police cannot find them? I appeal to the national and international community to ask the government why the perpetrators are not arrested and sent to prison.[125]
The Case of Maoist Leader Agni Sapkota
In a further instance of impunity, the government, in January 2020, appointed Agni Sapkota as the speaker of parliament. Sapkota was a Maoist leader during the conflict. In 2010, the United States denied him a visa due to "serious and specific human rights allegations associated with his conduct during the insurgency."[126]
He is accused in the abduction and killing of Arjun Lama in Kavre district in 2005. In 2012 the Supreme Court ordered the police and government to proceed with a criminal investigation, and to provide updates to the court every 15 days. The case remains the subject of proceedings.[127] Purnimaya Lama, widow of Arjun Lama, lamented Sapkota's appointment.
I felt like dying when I heard of Agni Sapkota being appointed as speaker of the house of representatives. There is no law, no justice, no state for victims, it is only for perpetrators. I know it is difficult to get justice now as they are in power. However, our struggle for truth and justice will be continued by my sons and daughters. I urge the international community to put pressure on the Nepali government and ensure justice.[128]
The Case of Army Officers Kaji Bahadur Karki and Saroj Basnet
Reena Rasaili was raped and killed during a security operation in Kavre on February 12, 2004.
On September 9, 2010, the police arrested the accused, Kaji Bahadur Karki, a junior non-commissioned officer, who had left the army after the incident. Saroj Basnet, who was a lieutenant at the time of the incident, was also charged with murder in absentia, and the Kavre district court issued an arrest warrant against him on October 28, 2010. Basnet has not yet been arrested. He is still in the army, and Advocacy Forum has learned that he has received promotions.[129]
In December 2013, the Kavre court acquitted Karki on grounds that if he had acted in violation of the military command structure, he would have faced a court martial, and that there had been no such army action. The court also found that none of the prosecution witnesses had seen Karki shoot Rasaili, and therefore his guilt could not be established beyond reasonable doubt. Gita Rasaili, a sister of Reena Rasaili, who has been active fighting for justice to her sister, said the family was devasted by the ruling. She said:
We were happy to see some progress in the case when Kaji Bahadur Karki was arrested for his crime. We believed that others involved in Reena's death would also be arrested. However, our hope was shattered when Karki was acquitted. Truth and justice have become a distant matter when the main alleged perpetrator is still serving in the Nepal Army and enjoying impunity. Thousands of victims like me are struggling for truth and justice in Nepal.[130]
The NHRC's publication of previous investigations in October 2020 revealed that a court martial had found that Reena Rasaili died as a result of "excessive use of force." Lt. Saroj Basnet served four months imprisonment and was barred from promotion for three years, while the promotion of a major was suspended for one year.[131]
Update on Other Cases
An analysis of developments over the past decade in the 62 cases filed with the help of Advocacy Forum shows continuing obfuscation and failure by state authorities to initiate meaningful investigations and prosecutions relating to past grave violations. All 62 cases are, or were, the subject of formal complaints lodged with police in 49 different FIRs.[132] In almost all these cases, families said they have subsequently also approached the transitional justice commissions, but at time of writing, have received no response.[133]
In two cases, the families said they no longer wished to pursue justice. The family of Man Bahadur Karki, who was killed in September 2006 by Maoist fighters, said that they had withdrawn their complaint because they were told that they would otherwise not qualify for interim relief. The family of Maoist cadre Chandra Bahadur Basnet ("Manoj Basnet"), who was allegedly killed by members of the Armed Police Force in August 2005, have also said they no longer wish to pursue their case, after they were promised financial compensation and a job for Basnet's widow.
When Advocacy Forum reached out to police seeking updates on the remaining cases, they were repeatedly told that conflict-era cases were no longer being pursued because the transitional justice commissions will now process them. Furthermore, the police said that the Home Ministry had sent notices announcing that the government was withdrawing conflict-era cases that had been filed under terrorism-related laws.[134] These cases had usually been lodged against Maoist fighters and alleged supporters. Since joining mainstream politics, the Maoists had been campaigning to have such cases dropped. The Maoist-led government, in October 2008, had announced a blanket withdrawal of 349 cases. On November 17, 2009, the Madhav Kumar Nepal-led government retracted
282 cases.
According to information collected by Advocacy Forum, the cases approved to be withdrawn in October 2008 covered a wide range of crimes, whereas those approved to be withdrawn in November 2009 were murder and arson cases.[135]
In cases involving the security forces, the police are ignoring court directives, including Supreme Court issued mandamus orders. In a number of these cases, the Supreme Court has raised serious concerns over the police's failure to respect court orders. For example, in the case related to the security forces killing of two brothers, Nar Bahadur Budhamagar and Ratan Bahadur Budhamagar, the Supreme Court issued a directive order in April 2017 stating that "such an indifference to duty to investigate and prosecute severely undermines [the] public's confidence in [the] rule of law."[136] Despite the order, there is
no progress.
The government has also ignored the United Nations Human Rights Committee (HRC) when it repeatedly called on Nepal to thoroughly investigate alleged enforced disappearances, rape, torture, and other human rights violations, and to prosecute and punish those responsible in more than 20 cases brought to the Committee under the Optional Protocol to the International Covenant on Civil and Political Rights.[137]
The government routinely argues that complainants have not exhausted domestic remedies to pursue justice and that these cases will be investigated by the CIEDP and TRC. In all eight cases where Advocacy Forum has assisted victims, the HRC has rejected the argument of the government that local remedies have not yet been exhausted, emphasizing that pending commission investigations and proceedings are not sufficient and cannot substitute for criminal prosecution for the most serious abuses.[138]
In all eight cases submitted by Advocacy Forum, the committee determined that violations had occurred, and recommended that the government initiate criminal investigations, bring those responsible to justice, enact legislation criminalizing all gross violations, and remove statutory limitations.[139] In response to the government's assertion that the transitional justice commissions will investigate the cases, the committee reminded Nepal that the proceedings of such non-judicial bodies do not replace a state's duty to investigate, prosecute, and punish gross violations of human rights.[140]
The government has ignored the recommendations of the committee to investigate and prosecute the cases. In some cases, the government has offered monetary relief, but has done so in an arbitrary way. For instance, survivors of rape and torture have in many cases been excluded from receiving interim relief, although these policies have been applied inconsistently.[141]
The prevailing impunity in Nepal is due at least in part to the continued sway of the army and former Maoist forces, and to the acceptance by the police that the Nepal Army and political party officials, including Maoist officials, are unlikely to cooperate with investigations. Political leaders of all parties seldom conceal their interference in the justice process. Girija Prasad Koirala, who was prime minister when the CPA was signed in 2006, admitted a year later to a group of human rights activists that there was a tacit agreement among the political parties "to forget the past and condone impunity."[142]
Several party leaders have backed apparent impunity, such as Sher Bahadur Deuba, who led the government three times during the conflict and has denied responsibility for enforced disappearances.[143] When he was once again prime minister from 2017 to 2018, he stated that security forces should not be prosecuted for counterinsurgency operations.[144] Maoist leader Pushpa Kamal Dahal, who used the nom-de-guerre "Prachanda" when he was commander of Maoist fighters, wants all conflict-era cases against his forces to be dropped. In 2016, he said that he had found that he personally was named in 37 cases.[145]
In January 2020, Dahal complained that the Maoists were unfairly blamed for the deaths of all 17,000 people that he said were killed during the conflict. He said he could only take responsibility for 5,000. "Many things have been aired pin-pointing me. It is not true that I came here after killing 17,000 people," he said. "What is true is that the state forces killed 12,000 people. I take responsibility for only 5,000 deaths and the 'kings' of yesterday should take that for 12,000 others. To say that even those killed by the state were killed by me would not be fair. I will not take responsibility for what I did not do."[146]
However, Dahal, Nepal Army commanders, and others are aware that international crimes cannot be brushed away, and that if justice is denied in Nepal, victims may be forced to take their cases to courts abroad.[147] National judicial officials around the world could also investigate and prosecute those implicated in serious international crimes, under the principle of "universal jurisdiction." This principle allows authorities in a third country to pursue individuals believed to be responsible for certain grave international crimes even though they were committed elsewhere and neither the accused nor the victims are nationals of that country.[148]
The impact of this principle in addressing impunity in Nepali was made clear in 2013, when UK authorities arrested Col. Kumar Lama. He was charged on two counts of torture, including in respect of Janak Raut.[149] After a long trial, in August 2016, he was acquitted on one count (the torture of Karam Hussain), while the jury could not reach a verdict on the second count in respect of Janak Raut.[150] The Crown Prosecution Service, in early September 2016, informed the court that it would not seek a retrial of this second count.[151]
Despite Lama's eventual acquittal, his case shows that those accused of the most serious crimes risk arrest and prosecution in other countries, and that victims will continue to pursue justice throughout the world if they do not see any prospect in their home countries.[152] It also shows that prosecutors can bring cases concerning events far away—and many years ago—when the allegations amount to international crimes such as torture. The case attracted intense political and media attention in Nepal, where victims' groups and activists were inspired by the example of an alleged Nepali perpetrator on trial for serious conflict era abuses, and the authorities were reminded that international justice will remain a threat to perpetrators even—or especially—if justice is denied in Nepal.[153]
To the Government of Nepal
On the Transitional Justice Law and Enforcement
· Amend the transitional justice law to implement the rulings of the Supreme Court and United Nations recommendations to ensure that there is no amnesty for gross violations of human rights and international crimes.
· Publicly and explicitly lift all restrictions on police and prosecutors which prevent them from pursuing conflict-era human rights cases.
· Ensure that the transitional justice law provides a legal basis for all aspects of transitional justice, including definitions of crimes and a sentencing regime. If this is not the case, all penalty and sentencing provisions should be removed from the transitional justice law and the Penal Code should be applied instead, after relevant provisions of the Penal Code have been amended to ensure that prosecution of serious crimes committed during the conflict, including war crimes and crimes against humanity, are not barred by time limits and that prosecutors can pursue superior officers under the doctrine of command responsibility.
· Ensure that any punishment is commensurate with the offense. The law should require Nepali courts to take into account international standards for punishment of the offenses and clarify that prison sentences are the standard punishment for international crimes and gross violations of human rights.
· Enact a law to set out the principle of command responsibility in criminal law according to international standards. This is particularly important because victims are often unable to identify individual perpetrators, and in those cases investigating authorities should locate officers commanding the units responsible for the violations.
· Ensure that the transitional justice and criminal justice mechanisms are independent by removing any role of ministers or ministries in deciding on prosecutions, ending or withdrawing prosecutions, or having any other role in influencing cases.
· Make public an operational plan that includes both a clear timeline setting out how the commissions will take the process forward, including consultations, and a detailed framework for ensuring that all components of transitional justice function effectively. The latter should include a detailed legal framework to ensure prosecutions meet international standards, including appropriate reparations and sentencing guidelines.
· Ratify the Rome Statute as soon as possible and extend the jurisdiction of the International Criminal Court back to 2002, the earliest date possible under the Rome Statute.
On the Commission of Investigation on Enforced Disappeared Persons (CIEDP) and the Truth and Reconciliation Commission (TRC)
· Ensure the operations and jurisprudential standards of the TRC and CIEDP apply best practices from existing international TRCs and commissions of inquiry, and that both commissions comply with Supreme Court directives.
· Ensure a public and transparent appointment process for commissioners. This should happen with full and adequate consultation with all stakeholders, including civil society, victims, and relatives of victims.
· Ensure that issues of contrition, reconciliation, and risk of repeat offenses, though relevant to punishment after conviction, are not taken into account in decisions to prosecute.
· Organize consultations with victims and civil society organizations, allowing them opportunities to have pre-consultations so that they can have informed participation in formal consultations.
· Ensure that the TRC or any other independent commission is specifically tasked with investigating allegations of conflict-related rape and other forms of sexual violence. Such a commission should have adequate powers and resources at its disposal to adopt gender-sensitive procedures that respect the privacy and dignity of survivors; engage counselors, interpreters, or special educators to minimize re-traumatization and to ensure that all procedures are accessible to people with disabilities; and refer survivors and their families to psychosocial counseling and other support.
· Ensure that the whole sentencing regime is properly explained to civil society and victims, and ensure it is made proportionate to the gravity of the crimes.
On the Criminal Justice System and Security Sector Reform
· Ensure that victims can pursue justice through the regular court system and are not barred from doing so by the operations of the TRC and CIEDP. Credibly investigate and prosecute all cases of alleged extrajudicial execution, enforced disappearance, or other grave human rights crime, including by questioning suspects who are members of the army, police, or Maoist forces.
· Adopt and enforce laws that make international crimes—including war crimes, crimes against humanity, and gross violations of human rights such as torture, enforced disappearance, rape and sexual violence, and summary and extrajudicial killing—offenses under domestic law matching the international definitions of these crimes; remove statutory limitations on victims' ability to file complaints; and ensure that any violations of the Convention against Torture occurring after May 14, 1991, the date of Nepal's accession to the treaty, can be prosecuted as such.
· Prevent any interference with the independence of the judiciary, prosecutors, or the attorney general; this includes inappropriate attempts to influence the prosecution of specific cases, to affect judicial decision-making in specific cases, to shield individuals from justice, or to withhold or destroy evidence.
· Ensure that the attorney general and courts can open and pursue investigations and prosecutions for international crimes independently of referrals from TRC
and CIEDP.
· Ensure that every individual and institution in Nepal complies with rulings by civilian courts and make it an offense not to comply.
· Amend laws against torture and enforced disappearances to bring them in line with international standards, incorporating the doctrine of command responsibility
into law.
· Revise vetting procedures for members of the security forces proposed for promotion, overseas UN peacekeeping duties, or specialized training abroad to ensure that human rights violators are identified. Any individual credibly accused of grave human rights violations, including through NHRC inquiries, should be placed on leave and banned from traveling abroad pending investigation.
· Ratify the Convention against Enforced Disappearances, and the Optional Protocol to the Convention against Torture.
· Send clear instructions to all police and public prosecutors that FIRs relating to the conflict period should be registered and promptly investigated, respecting court orders. Take disciplinary action against police who refuse to file FIRs, and against police or prosecutors who fail to follow court orders or credibly investigate cases.
· Hold members of the Nepal police, Nepal Army, and the Maoist party to account whenever they fail to adhere to court orders.
· Strengthen the National Human Rights Commission and ensure that all its recommendations are speedily implemented by relevant state authorities.
· Make public all reports of previous commissions of inquiry, including the Lal Commission report on the 2015 Terai violence and the Rayamajhi Commission report on the suppression of the 2006 People's Movement, and implement their recommendations in full.
To the United Nations, Donors, and Foreign Governments
· Recognize that impunity for gross human rights violations is entrenched in Nepal, which also prevents successful outcomes in development and governance programs and projects. Addressing serious allegations of criminal wrongdoing by powerful individuals through a credible justice process is a necessary step toward supporting the practice of accountable government in the public interest.
· Publicly call for a credible and victim-centric transitional justice process and regular criminal justice process, which are consistent with international standards of justice for international crimes and with the rulings of Nepal's Supreme Court.
· Ensure that interventions by diplomatic missions in Kathmandu aimed at brokering a "solution" to transitional justice meet international standards as set out by OHCHR and the jurisprudence of Nepal's Supreme Court.
· Incorporate a call for accountability and transitional justice in all public and private meetings with the Nepali government, senior politicians, police officers, and
army leadership.
· Ensure that any programs to strengthen policing and rule of law publicly support concrete action to end impunity for abuses committed during the conflict period and subsequently, including ongoing abuses.
· Call for an end to politically expedient approaches to transitional justice without adequate accountability components or support from victims.
· Call for the Lal Commission report to be published and for measurable progress toward the implementation of its recommendations, including holding individuals accountable for serious rights violations.
· Recognize that Nepal has failed to implement recommendations that it had accepted during its Universal Periodic Review. Member states should raise concerns about this failure during Nepal's forthcoming review.
· Consider applying universal jurisdiction in national courts to bring cases against individuals implicated in the most serious conflict-era crimes.
· Insist that the Nepal Army comply with all court orders and with the transitional justice process as a condition of continued participation in UN peacekeeping operations.
· Call for rigorous vetting procedures to identify alleged perpetrators and exclude them from participation in UN peacekeeping missions.
· Consult NHRC data when vetting Nepali security forces participating in UN missions and assess whether Nepal may have cleared individuals to participate in peacekeeping missions despite the fact that they face human rights allegations, as it is known to have done in the past.
To the United Kingdom
· Require clear standards on human rights protections and security sector reform under the UK's existing agreement to provide ongoing funding to the Nepal police. Systematically vet all members of the Nepal Army receiving UK military training.
· Call for the Lal Commission report to be published and for measurable progress toward the implementation of its recommendations, including holding individuals accountable for serious rights violations committed by the police during the period in which it has been receiving funding from the UK.
· Consider individual sanctions, including asset freezes against individuals who face credible allegations of interference in justice or ongoing human rights violations such as complicity in extrajudicial killings or enforced disappearances.
To the United States
· Continue to restrict military engagement, training, and assistance, making future aid conditional on progress on accountability for conflict-era violations and ongoing abuses.
· Order the State Department and Treasury Department to consider targeted sanctions under the Global Magnitsky Act and other applicable US laws, including travel bans, asset freezes, and other financial sanctions, for all Nepali officials credibly implicated in gross human rights violations or in efforts to impede accountability for them.
· Consult with local civil society and human rights groups to identify units and persons implicated in gross human rights abuses to ensure that they are considered for sanctions noted above and made ineligible for military assistance under the US Leahy Law.
This report was written by a Human Rights Watch consultant with research input from Advocacy Forum. This report was reviewed and edited by Meenakshi Ganguly, South Asia director at Human Rights Watch. Specialist review was provided by Param-Preet Singh, associate director, International Justice division. Clive Baldwin, senior legal advisor, and Joseph Saunders, deputy director of the Program office, provided legal and program review. Production assistance was provided by Travis Carr, photo and publications coordinator, and Fitzroy Hepkins, senior administrative manager.
We thank Ingrid Massagé and Mandira Sharma for their external reviews.
We would also like to thank to Advocacy Forum's Director Om Prakash Sen Thakuri and Program Manager Bikash Basnet, as well as the lawyers who offered assistance, analysis, or information that made this report possible. We particularly wish to thank the families of victims who shared their experiences with us. We thank to Bindesh Dahal for translating this report into Nepali.
[1] Since enforced disappearances and torture were not criminalized under Nepali law at the time, which thus provide no remedies for victims, cases where families have reason to believe that their disappeared relatives were tortured and killed were also supported by Advocacy Forum. The statute of limitations for rape was 35 days, making it difficult to file an FIR several years after the crime had occurred. Advocacy Forum, in one case, attempted to circumvent the statutory limitation but failed, so it only assisted cases where rape was followed by murder.
[2] We have referred to the Communist Party of Nepal-Maoist (CPN-M) as Maoists in this report.
[3] Human Rights Watch and Advocacy Forum, Waiting for Justice, September 2008, https://www.hrw.org/reports/nepal0908web.pdf; Still Waiting for Justice, October 2009, https://www.hrw.org/sites/default/files/reports/nepal1009webwcover.pdf; Indifference to Duty, December 2010, https://www.hrw.org/report/2010/12/14/indifference-duty/impunity-crimes-committed-nepal; Adding Insult to Injury, December 2011, https://www.hrw.org/report/2011/12/01/adding-insult-injury/continued-impunity-wartime-abuses-nepal.
[4] Office of the UN High Commissioner for Human Rights, Nepal Conflict Report, 2012, https://www.ohchr.org/Documents/Countries/NP/OHCHR_Nepal_Conflict_Report2012.pdf (accessed July 4, 2020). In 2003 and 2004, Nepal took on the ignominious distinction of having the highest yearly number of new cases of "disappearances" reported to the UN Working Group on Enforced or Involuntary Disappearances (WGEID) in the world.
[5] Meenakshi Ganguly, "Nepal: torture vs democracy," Open Democracy, February 18, 2010, https://www.opendemocracy.net/en/nepal-torture-vs-democracy/ (accessed August 18, 2020).
[6] In that period, Nepal had a number of distinct political parties that operated under the name of Communist Party of Nepal, including the CPN-M, but also mainstream parties such as the Communist Party of Nepal Unified Marxist-Leninist (CPN-UML). Although these parties shared the "Communist Party of Nepal" name, they often had antagonistic relationships, and several non-Maoist communist parties in Nepal rejected the Maoist's resort to armed rebellion against the government. The Maoists entered mainstream politics after a peace agreement in 2006 and entered government following the 2008 election. The CPN-UML remained a major mainstream political force in Nepal and also formed governments in the post-conflict period. On May 17, 2018, the CPN-UML and Communist Party of Nepal (Maoist Centre) (which was essentially the old CPN-M under a slightly changed name, following earlier splits and reunifications in the post-conflict years) announced a merger. The resulting Communist Party of Nepal (CPN) forms the current government of Nepal, although tensions remain within the CPN, partly along the lines of the two parties from which it was formed. See Tika R Pradhan, "Two years after merger, differences remain in Nepal Communist Party over 'people's war,'" Kathmandu Post, February 16, 2020, https://kathmandupost.com/politics/2020/02/16/two-years-after-merger-differences-remain-in-nepal-communist-party-over-people-s-war (accessed July 4, 2020); Biswas Baral, "Nepal Left Parties Merger: How the Political Behemoth Came to Life," The Wire, May 18, 2018, https://thewire.in/south-asia/nepal-left-parties-merger (accessed July 4, 2020).
[7] International Crisis Group, "Nepal's Maoists: Their Aims, Structure and Strategy," October 27, 2005, https://www.crisisgroup.org/asia/south-asia/nepal/nepals-maoists-their-aims-structure-and-strategy (accessed August 18, 2020).
[8] Human Rights Watch and Advocacy Forum, Waiting for Justice, September 2008, https://www.hrw.org/reports/nepal0908web.pdf.
[9] Amnesty International, "A spiraling human rights crisis," April 2002, https://www.amnesty.org/en/documents/asa31/016/2002/en/ (accessed July 4, 2020); "Nepal raiders 'kill dozens of police,'" CNN, November 24, 2001, https://edition.cnn.com/2001/WORLD/asiapcf/south/11/23/nepal.truceends/ (accessed July 4, 2020).
[10] Historically, the army in Nepal was under the command and control of the king and was called the Royal Nepal Army. In September 2006, the Interim Legislature-Parliament approved a new Army Act changing the army's name from Royal Nepal Army to Nepal Army, declaring an end to constitutional monarchy, and making the army accountable to an elected government. Nevertheless, the army has remained immune from effective civilian control. For easy reading, the army is referred to as the NA throughout this report except in the appendix.
[11] Human Rights Watch, Between a Rock and a Hard Place, October 2004, https://www.hrw.org/sites/default/files/reports/nepal1004.pdf; Children in the Ranks, February 2007, http://hrw.org/reports/2007/nepal0207/.
[12] Human Rights Watch, Silenced and Forgotten, September 2014, https://www.hrw.org/report/2014/09/23/silenced-and-forgotten/survivors-nepals-conflict-era-sexual-violence.
[13] The provisions of the Terrorist and Disruptive Activities (Control and Punishment) Ordinance (TADO) were adopted into law by parliament in 2002. After it lapsed, and in the absence of parliament, it was re-promulgated repeatedly by royal decree from October 2004. It was not renewed after it lapsed in September 2006 and is no longer in force.
[14] National Human Rights Commission, "On the Spot Inspection and Report of the Investigation Committee: Doramba, Ramechhap Incident," 2003, http://nhrcnepal.org/nhrc_new/doc/newsletter/Reprot_Doramba_R.pdf (accessed July 22, 2020).
[15] Members of each of these three forces often went out on joint patrols. In this report, the term "security forces" is meant to refer to forces under unified command of the army.
[16] Office of the UN High Commissioner for Human Rights, OHCHR in Nepal (2006-2007), https://www.ohchr.org/EN/Countries/AsiaRegion/Pages/NPSummary.aspx (accessed July 4, 2020).
[17] "Report of the United Nations High Commissioner for Human Rights on the situation of human rights and the activities of her office, including technical cooperation, in Nepal," E/CN.4/2006/107, February 2006, para. 16.
[18] See various reports by OHCHR-Nepal including "Human Rights in Nepal—One year after the Comprehensive Peace Agreement," December 2007, https://www.refworld.org/docid/477e3f0d0.html (accessed November 4, 2020).
[19] The earlier state of emergency declared in November 2001 had lapsed in August 2002.
[20] Randeep Ramesh, "King of Nepal seizes power," Guardian, February 2, 2005, https://www.theguardian.com/world/2005/feb/02/nepal (accessed July 4, 2020).
[21] The SPA members were the Nepali Congress (NC); Nepali Congress (Democratic) (NC(D)); Communist Party of Nepal-Unified Marxist-Leninist (CPN-UML); Janamorcha Nepal; Nepal Workers and Peasants Party (NWPP); United Left Front (ULF); and Nepal Sadbhavana Party (Aanandi Devi) (NSP(AD)). The NC(D) later re-merged with the Nepali Congress in late September 2007.
[22] P.G. Rajamohan, "Crisis in Nepal," Institute of Peace and Conflict Studies, May 2006, https://www.files.ethz.ch/isn/95784/IPCS-Special-Report-22.pdf (accessed August 18, 2020).
[23] "Nepal's king restores parliament," Guardian, April 24, 2006, https://www.theguardian.com/world/2006/apr/24/nepal (accessed July 4, 2020).
[24] "Comprehensive Peace Accord Signed between Nepal Government And the Communist Party of Nepal (Maoist)," November 22, 2006, https://peacemaker.un.org/sites/peacemaker.un.org/files/NP_061122_Comprehensive%20Peace%20Agreement%20between%20the%20Government%20and%20the%20CPN%20%28Maoist%29.pdf (accessed July 4, 2020).
[26] Security Council Resolution 1740, January 23, 2007. UNMIN mandate ended in January 2011. See UN Security Council, "On Eve of Closure of United Nations Mission in Nepal, Security Council Reaffirms Support for Peace Process, Urges Stepped Up Efforts to Fulfil Prior Agreements," January 14, 2011, https://www.un.org/press/en/2011/sc10152.doc.htm (accessed July 4, 2020).
[27] Human Rights Watch and Advocacy Forum, Waiting for Justice, September 2008, https://www.hrw.org/reports/nepal0908web.pdf; Still Waiting for Justice, October 2009, https://www.hrw.org/sites/default/files/reports/nepal1009webwcover.pdf; Indifference to Duty, December 14, 2010, https://www.hrw.org/report/2010/12/14/indifference-duty/impunity-crimes-committed-nepal.
[28] Asia Human Rights Commission, "The State of Human Rights in Nepal in 2011," https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/NPL/INT_CCPR_NGO_NPL_14604_E.pdf (accessed August 18, 2020); Nepali Times, "The 2072 Constitution," April 17-13, 2015, https://archive.nepalitimes.com/article/editorial/2072-constitution,2173 (accessed July 4, 2020); Meenakshi Ganguly, "Nepal: Wrong Track, Right Trail," Open Democracy, September 20, 2011, https://www.opendemocracy.net/en/nepal-wrong-trail-right-track/ (accessed August 18, 2020).
[29] Manjushree Thapa, "Nepal's Slippery Fast-Track," The Wire, June 13, 2015, https://thewire.in/south-asia/nepals-slippery-fast-track (accessed July 4, 2020).
[30] Hari Phuyal, "Nepal's New Constitution: 65 Years in the Making," The Diplomat, September 18, 2015, https://thediplomat.com/2015/09/nepals-new-constitution-65-years-in-the-making/ (accessed July 4, 2020).
[31] Charles Haviland, "Why is Nepal's new constitution controversial?" BBC, September 19, 2015, https://www.bbc.com/news/world-asia-34280015 (accessed July 4, 2020).
[32] Frederick Rawski and Mandira Sharma, "A Comprehensive Peace? Lessons from Human Rights Monitoring in Nepal," in Sebastian von Einsiedel, David M. Malone, and Suman Pradhan (eds.), Nepal in Transition: From People's War to Fragile Peace (Cambridge University Press, 2012); Deepak Thapa and Bandita Sijapati (eds.), Understanding the Maoist Movement of Nepal (Kathmandu: Martin Chautari, 2003).
[33] Advocacy Forum, The Rise of Torture in 2018, Challenges Old and New Facing Nepal, June 26, 2019, http://www.advocacyforum.org/downloads/pdf/publications/torture/june-2019-report.pdf (accessed October 27, 2020). For Advocacy Forum reports tracking torture over several years, see: http://advocacyforum.org/publications/torture.php.
[34] International Commission of Jurists, "Nepal: ICJ Submission to the UN Universal Periodic Review (UPR)," July 10, 2020, https://www.icj.org/nepal-icj-submission-to-the-un-universal-periodic-review-upr/ (accessed September 15, 2020).
[35] Advocacy Forum, "Torture in Nepal in 2019: The Need for New Policies and Legal Reform," June 26, 2020. http://www.advocacyforum.org/downloads/pdf/publications/torture/26-june-2020.pdf (accessed October 27, 2020).
[36] International Commission of Jurists, "Commissions of Inquiry in Nepal: Denying Remedies, Entrenching Impunity," June 2012, https://www.icj.org/wp-content/uploads/2012/06/Nepal-Commissions-of-Inquiry-thematic-report-2012.pdf (accessed July 2, 2020).
[37] Terai Human Rights Defenders Alliance, "Extrajudicial killings on rise: Bring those responsible to justice," July 4, 2019, https://www.thrda.org/situation-update/extrajudicial-killings-on-rise-bring-those-responsible-to-justice/ (accessed August 18, 2020).
[38] Joint Communication of the UN special rapporteur on extrajudicial, summary or arbitrary executions, the UN special rapporteur on the rights to freedom of peaceful assembly and of association, and the UN special rapporteur
on minority issues, AL NPL 3/2019, October 28, 2019, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=24902 (accessed August 21, 2020).
[40] Tanka Chhetri, "Chand-led party's Sarlahi in-charge shot dead," MyRepublica, June 21, 2019, https://myrepublica.nagariknetwork.com/news/chand-led-party-s-sarlahi-in-charge-shot-dead/ (accessed August 18, 2020).
[41] Human Rights Watch interview with Bed Bhattarai, secretary of the National Human Rights Commission, August 27, 2020.
[42] Permanent Mission of Nepal to the United Nations, Geneva, "Response of the Government of Nepal on the joint communication of the Special Rapporteur on extrajudicial, summary or arbitrary executions; the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on minority issues," January 3, 2020, https://spcommreports.ohchr.org/TMResultsBase/DownLoadFile?gId=35087 (accessed August 2, 2020).
[44] Binod Ghimire, "Killing of Chand party cadre Kumar Paudel was extrajudicial, human rights commission says," Kathmandu Post, October 22, 2019, https://kathmandupost.com/2/2019/10/22/killing-of-chand-party-cadre-kumar-paudel-was-extrajudicial-human-rights-commission-says (accessed August 18, 2020).
[45] National Human Rights Commission, "Appeal in the Case of Killing of Kumar Poudel, October 22, 2019, https://www.nhrcnepal.org/nhrc_new/doc/newsletter/NHRC_P~1.PDF (accessed August 21, 2020).
[46] Ujjwal Satyal, "Cops involved in killing CPN leader to face action," Himalayan Times, February 4, 2020, https://thehimalayantimes.com/nepal/cops-involved-in-killing-cpn-leader-to-face-action/ (accessed August 18, 2020).
[47] Advocacy Forum, "Obstruction of Justice on Kumar Poudel Case-One Year of Impunity," June 20, 2020, http://www.advocacyforum.org/downloads/pdf/press-statement/2020/obstruction-of-justice-on-kumar-poudel-case-one-year-of-impunity-english-version.pdf (accessed August 21, 2020).
[48] Advocacy Forum interview with Hari Krishna Poudel, August 19, 2020.
[49] Binod Ghimire, "Another case spotlights apathy towards rights body," Kathmandu Post, August 14, 2020,
https://kathmandupost.com/national/2020/08/14/another-case-spotlights-apathy-towards-rights-body?fbclid=IwAR04DiYf_feBIW0BuPDEdAcP70EKgAj5jCwV7dxn5p2nbHhZJ1mP_sYmD (accessed August 21, 2020).
[50] Human Rights Watch interview with Bed Bhattarai, August 27, 2020.
[51] Peter Gill and Abha Lal, "Nepal's Police Custodial Deaths: Patterns of Negligence, Alleged Abuse and Impunity," The Wire, June 22, 2020, https://thewire.in/south-asia/deaths-in-custody-impunity-nepal-police (accessed September 15, 2020); "Dhanusha: Body of man who died in custody awaits postmortem," Onlinekhabar, June 13, 2020, https://english.onlinekhabar.com/dhanusha-body-of-man-who-died-in-custody-awaits-postmortem.html (accessed September 15, 2020); Brij Kumar Yadav, "Kins continue protest demanding fair investigation of Musahar youth's death in Dhanusha," Himalayan Times, June 15, 2020, https://thehimalayantimes.com/nepal/kins-continue-protest-demanding-fair-investigation-of-alleged-suicide-of-musahar-youth-in-dhanusha/ (accessed September 15, 2020).
[52] See National Human Rights Commission report, August 26, 2020, https://www.nhrcnepal.org/nhrc_new/doc/newsletter/NHRC%20Nepal%20Press%20Release-2077-5-12.pdf (accessed September 21, 2020).
[53] Meenakshi Ganguly, "Nepal Park Guards Accused of Persecuting Indigenous People," Human Rights Watch, July 28, 2020, https://www.hrw.org/news/2020/07/28/nepal-park-guards-accused-persecuting-indigenous-people.
[54] National Human Rights Commission, July 16, 2020, https://www.nhrcnepal.org/nhrc_new/doc/newsletter/NepalNHRC_Press_Release_2077-4-9.pdf (accessed September 22, 2010).
[55] Dewan Rai, "Bailed out by blood money," The Record, August 5, 2020, https://www.recordnepal.com/wire/features/bailed-out-by-blood-money/ (accessed October 27, 2020).
[56] "Court sends Nepal Army soldier accused of killing Chitwan man to custody," Onlinekhabar, October 14, 2020, https://english.onlinekhabar.com/court-sends-nepal-army-soldier-accused-of-killing-chitwan-man-to-custody.html (accessed October 27, 2020).
[57] Human Rights Watch, "Nepal: Punish Rights Abusers; Protect Independent NHRC," September 2, 2020, https://www.hrw.org/news/2020/09/02/nepal-punish-rights-abusers-protect-independent-nhrc.
[58] National Human Rights Commission, July 16, 2020, https://www.nhrcnepal.org/nhrc_new/doc/newsletter/NHRC%20Nepal%20Press%20Release-2077-5-12.pdf (accessed September 21, 2020).
[59] Binod Ghimire, "National Human Rights Commission's probe finds yet another case of extrajudicial killing," Kathmandu Post, October 17, 2020, https://kathmandupost.com/national/2020/10/17/national-human-rights-commission-s-probe-finds-yet-another-case-of-extrajudicial-killing (accessed October 27, 2020).
[60] Human Rights Watch, "Like We Are Not Nepali," October 2015, https://www.hrw.org/report/2015/10/16/we-are-not-nepali/protest-and-police-crackdown-terai-region-nepal.
[61] "Lal commission submits report," Himalayan Times, December 16, 2017, https://thehimalayantimes.com/kathmandu/girish-chandra-lal-led-probe-commission-submits-report/ (accessed July 4, 2020).
[63] "Nepal SC directs Govt to make public Lal Commission Report," ANI, October 18, 2019, https://www.aninews.in/news/world/asia/nepal-sc-directs-govt-to-make-public-lal-commission-report20191017234938/ (accessed July 4, 2020).
[64] Human Rights Watch, "Nepal: Release Report on 2015 Protest Violence," October 1, 2019, https://www.hrw.org/news/2019/10/01/nepal-release-report-2015-protest-violence.
[65] Human Rights Watch, "Nepal Events of 2019, World Report 2020, https://www.hrw.org/world-report/2020/country-chapters/nepal.
[66] Advocacy Forum, "Dharmendra Barai," 2011, http://www.advocacyforum.org/fir/2011/10/dharmendra-barai.php (accessed July 4, 2020).
[67] Human Rights Watch and Advocacy Forum, Indifference to Duty, December 2010, https://www.hrw.org/report/2010/12/14/indifference-duty/impunity-crimes-committed-nepal.
[68] Human Rights Watch, "Nepal: Amend Laws Undermining Free Expression," September 3, 2019, https://www.hrw.org/news/2019/09/03/nepal-amend-laws-undermining-free-expression.
[69] Human Rights Watch, "Nepal: Amend Intrusive Intelligence Bill", May 29, 2020, https://www.hrw.org/news/2020/05/29/nepal-amend-intrusive-intelligence-bill-0.
[70] Meenakshi Ganguly, "Nepal Should Not Backslide on Human Rights," Kathmandu Post, May 7, 2019, https://kathmandupost.com/opinion/2019/05/07/nepal-should-not-backslide-on-human-rights (accessed July 4, 2020).
[71] National Human Rights Commission, Twenty Years of the Commission's Recommendations and the State of Implementation, October 15, 2020, https://www.nhrcnepal.org/nhrc_new/doc/newsletter/Inner_20_Years_Book_2077_Final_CTP_NHRC.pdf (accessed October 27, 2020).
[72] Commission on Investigation of Disappeared Persons, Truth and Reconciliation Ordinance 2069 (2012), http://www.simonrobins.com/missing/wp-content/uploads/2013/02/Nepal-TRC-Ordinance.pdf (accessed July 4, 2020).
[73] Madhav Kumar Basnet v. the Government of Nepal and Ram Kumar Bhandari and Others v. Government of Nepal, decisions of January 2, 2014.
[74] International Commission of Jurists, "Justice Denied: the 2014 Commission on Investigation of Disappeared Persons, Truth and Reconciliation Act," May 2014, https://www.icj.org/wp-content/uploads/2014/05/Nepal-TRC-Act-Briefing-Paper.pdf (accessed July 4, 2020).
[75] Human Rights Watch, "Nepal: Fix Flawed Truth, Reconciliation Act," July 8, 2014, https://www.hrw.org/news/2014/07/08/nepal-fix-flawed-truth-reconciliation-act.
[76] See Truth and Reconciliation Commission (TRC), Nepal, http://trc.gov.np/ (accessed July 4, 2020); Commission of Investigation on Enforced Disappeared Persons (CIEDP), Nepal, https://ciedp.gov.np/content.php?id=15 (accessed July 4, 2020).
[77] Office of the UN High Commissioner for Human Rights, "OHCHR Technical Note The Nepal Act on the Commission on Investigation of Disappeared Persons, Truth and Reconciliation, 2071 (2014) – as Gazetted 21 May 2014," https://www.ohchr.org/Documents/Countries/NP/OHCHRTechnical_Note_Nepal_CIDP_TRC_Act2014.pdf (accessed July 4, 2020).
[78] Ross Adkin, "Nepal Supreme Court rejects amnesty for war crimes," Reuters, February 27, 2015, https://www.reuters.com/article/us-nepal-rights/nepal-supreme-court-rejects-amnesty-for-war-crimes-idUSKBN0LV0CG20150227 (accessed July 4, 2020).
[79] Human Rights Watch, Letter to the Attorney General of Nepal, August 28, 2018, https://www.hrw.org/news/2018/08/29/letter-attorney-general-nepal.
[80] UN Human Rights Council, Advocacy Forum-Nepal and coalition joint submission to the Universal Periodic Review of Nepal, July 2020, http://advocacyforum.org/downloads/pdf/publications/upr-submission-tj-and-impunity-in-nepal-af-and-coalition-9-luly-2020.pdf (accessed August 19, 2020).
[81] Advocacy Forum, Preliminary review and recommendations by civil society organizations on the draft bill on Transitional Justice, http://advocacyforum.org./downloads/pdf/press-statement/2018/preliminary-review-and-recommendations-civil-society-20-July.pdf (accessed August 19, 2020).
[82] Human Rights Watch, Amnesty International, International Commission of Jurists, and TRIAL International, "Nepal: Supreme Court's Decision Reaffirms the Need to Amend Transitional Justice Law," May 1, 2020, https://www.hrw.org/news/2020/05/01/nepal-supreme-courts-decision-reaffirms-need-amend-transitional-justice-law .
[83] Office of the UN High Commissioner for Human Rights, "Press briefing note on Nepal," May 1, 2020, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25855&LangID=E (accessed August 20, 2020).
[84] In Rajendra Prasad Dhakal v. Government of Nepal (2007), the Supreme Court directed the government to criminalize enforced disappearance in accordance with the UN International Convention for the Protection of All Persons from Enforced Disappearance, take action against officials found guilty of perpetrating enforced disappearances, and ensure that amnesties and pardons were not available to those suspected or found guilty of the crime. See TRIAL International, "Enforced Disappearance of Rajendra Prasad Dhakal in January 1999," April 10, 2017, https://trialinternational.org/latest-post/enforced-disappearance-of-rajendra-prasad-dhakal-in-january-1999/ (accessed July 27, 2020).
[85] Comprehensive Peace Accord, article 5.2.5, 8.4 (2006); Interim Constitution of Nepal (2007), article 33(s); Interim Constitution of Nepal (2007), art. 33(q).
[86] Human Rights Watch and others, "Nepal: Joint Letter Regarding Formation of the Truth and Reconciliation Commission and the Commission on Enforced Disappearances," December 18, 2014, https://www.hrw.org/news/2014/12/18/nepal-joint-letter-regarding-formation-truth-and-reconciliation-commission-and (accessed July 5, 2020); Conflict Victims Common Platform (CVCP), Preliminary Comments of Conflict Victims' Common Platform (CVCP) on proposed TJ draft bill to amend Commission of Inquiry on Enforced Disappearances, Truth and Reconciliation Act, 2014, July 17, 2018, http://advocacyforum.org./downloads/pdf/press-statement/2018/preliminary-comments-of-CVCP-on-tj-bill-english.pdf (accessed August 19, 2020).
[87] Accountability Watch Committee, Position of Accountability Watch Committee's Regarding the Appointment of the Members of Truth and Reconciliation Commission and the Commission of Investigation on Enforced Disappeared Persons, January 19, 2020, http://advocacyforum.org./downloads/pdf/press-statement/2020/awc-press-statement-on-recommendatio-of-officials-19-January-2020-english-version.pdf (accessed August 19, 2020).
[88] The Transitional Justice Advocacy Group, "Truth without justice will not be acceptable," November 28, 2011, http://advocacyforum.org./downloads/pdf/press-statement/truth-without-justice-will-not-be-acceptable.pdf (accessed August 20, 2020).
[89] Om Astha Rai, "The real truth about the Truth Commission," Nepali Times, 24 Feb-2 March, 2017, https://archive.nepalitimes.com/article/nation/truth-about-truth-commission,3565 (accessed July 5, 2020).
[90] Human Rights Watch, "Nepal: Key Moment for Justice," February 3, 2017, https://www.hrw.org/news/2017/02/03/nepal-key-moment-justice.
[91] Kosh Raj Koirala, "New ordinance to extend term of TRC, CIEDP by a year," MyRepublica, January 4, 2018, https://myrepublica.nagariknetwork.com/news/33741/?categoryId=81 (accessed July 5, 2020); Amnesty International, International Commission of Jurists, and Human Rights Watch, "Nepal: Transitional Justice Proving Elusive," February 13, 2018, https://www.hrw.org/news/2018/02/13/nepal-transitional-justice-proving-elusive.
[92] National Human Rights Commission Nepal, Press Note, February 5, 2018, http://www.nhrcnepal.org/nhrc_new/doc/newsletter/Press%20Release%20Commissions%20view%20on%20Transitional%20Justice%2010-22.pdf (accessed July 5, 2020). Based on consultations with victims, human rights activists, political parties, and rulings by the Supreme Court, the commission recommended: "(a) No amnesty, pardon or withdrawal of cases for gross human rights violations such as enforced disappearance, extra-judicial killing, kidnappings, torture, rape and other acts of sexual violence; (b) To bring under the criminal justice system for serious offences, including enforced disappearance; (c) To conduct judicial hearing immediately to the cases recommended by the Truth and Reconciliation Commission (TRC) and the Commission of Inquiry into Enforced Disappearance of Persons (CIEDP); (d) To criminalize torture and enforced disappearance through the enactment of special laws; (e) To provide the dignified and respectable reparation for conflict era victims; (f) To reconciliation only with the consent of victims and only in the issues that are not restricted by the recognized principles of law; (g) To amend the acts of two Commissions Truth and Reconciliation Commission and Commission on Investigation of Enforced Disappeared Persons – 2071, in the line with the Supreme Court verdicts and the International Standards; (h) To punish the perpetrators of war crime and crime against humanity legally without time limitation; (i) To ensure protection and security of victim, witness and evidence; (j) To avoid a situation wherein victims might opt for alternative ways to seek justice; (k) To give top priority to conflict victims and provide them employment and involve them in rehabilitation programs by the all provincial and local bodies of the bodies. Similarly, the Commission supposes the support from all the concerned persons for the documentation of the facts, receiving justice, ensuring the use of right to reparation."
[93] Human Rights Watch phone interview with Mohna Ansari, July 22, 2020.
[94] Some additional complaints have also been accepted since the deadline to register cases passed in 2018.
[95] Amnesty International, the International Commission of Jurists, and Human Rights Watch, "Nepal: Transitional Justice Proving Elusive," February 13, 2018, https://www.hrw.org/news/2018/02/13/nepal-transitional-justice-proving-elusive.
[96] Meenakshi Ganguly, "End the Wait," Nepali Times, June 9-15, 2017, https://archive.nepalitimes.com/regular-columns/Comment/end-the-wait-for-conflict,933 (accessed July 5, 2020). Most of the victims' families involved in the 62 cases filed or tracked by Advocacy Forum were among those that approached the commissions.
[97] Advocacy Forum consultation, Nepalgunj, October 24, 2019.
[98] Office of the UN High Commissioner for Human Rights, "Joint Communication from Special Procedures," April 12, 2019, https://www.ohchr.org/Documents/Issues/Truth/OL_NPL_1_2019.pdf (accessed August 20, 2020).
[99] Advocacy Forum, "Fake Transitional Justice Consultations: How Long Can the Government Fool Victims?" February 2020 http://advocacyforum.org/downloads/pdf/publications/tj/briefing-paper-on-tj-consultation-february-2020.pdf (accessed July 5, 2020).
[100] See "Preliminary review and recommendations by civil society organizations on the draft bill on Transitional Justice," http://advocacyforum.org./downloads/pdf/press-statement/2018/preliminary-review-and-recommendations-civil-society-20-July.pdf (accessed August 20, 2020).
[101] "Rights groups and CSOs demand a credible transitional justice process in Nepal," February 6, 2019, http://advocacyforum.org./downloads/pdf/press-statement/2019/cso-position-on-tj-english-6-feb-2019.pdf (accessed August 20, 2020).
[102] Amnesty International, International Commission of Jurists, Human Rights Watch, and TRIAL International, "Nepal: 13 Years On, No Justice for Conflict Victims," November 25, 2019, https://www.hrw.org/news/2019/11/26/nepal-13-years-no-justice-conflict-victims.
[103] Binod Ghimire, "After deal between parties, selection panel publishes list of probable candidates for transitional justice bodies," Kathmandu Post, November 19, 2019, https://kathmandupost.com/2/2019/11/19/after-deal-between-parties-selection-panel-publishes-list-of-probable-candidates-for-transitional-justice-bodies; Roshan S. Nepal, "Victims decry selection of candidates for TJ bodies," Himalayan Times, November 18, 2019, https://thehimalayantimes.com/nepal/victims-decry-selection-of-candidates-for-tj-bodies/ (accessed July 5, 2020).
[104] Binod Ghimire, "Ganesh Datta Bhatta to lead truth commission, Yubraj Subedi picked as disappearance commission chair," Kathmandu Post, January 18, 2020, https://kathmandupost.com/national/2020/01/18/ganesh-datta-bhatta-to-lead-truth-commission-yubraj-subedi-picked-as-disappearance-commission-chair (accessed July 5, 2020); Advocacy Forum, "Fake Transitional Justice Consultations: How Long Can the Government Fool Victims?" February 2020, http://advocacyforum.org/downloads/pdf/publications/tj/briefing-paper-on-tj-consultation-february-2020.pdf (accessed July 11, 2020).
[105] Advocacy Forum, "Fake Transitional Justice Consultations: How Long Can the Government Fool Victims?" February 2020, http://advocacyforum.org/downloads/pdf/publications/tj/briefing-paper-on-tj-consultation-february-2020.pdf (accessed July 5, 2020); Sewa Bharti, "Victims unhappy as Nepal revives transitional justice process," January 13, 2020, https://www.aljazeera.com/news/2020/01/victims-unhappy-nepal-revives-transitional-justice-process-200113082330798.html (accessed July 5, 2020).
[106] Human Rights Watch, International Commission of Jurists, Amnesty International, and TRIAL International, "Nepal: Recent Steps Undermine Transitional Justice," January 25, 2020, https://www.hrw.org/news/2020/01/25/nepal-recent-steps-undermine-transitional-justice.
[107] "TRC and CIEDP officers administered oath of office and secrecy," MyRepublica, January 23, 2020, https://myrepublica.nagariknetwork.com/news/trc-and-ciedp-officers-administered-oath-of-office-and-secrecy/ (accessed July 5, 2020).
[108] Mandates of the special rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence; the Working Group on Enforced or Involuntary Disappearances; the special rapporteur on extrajudicial, summary or arbitrary executions; the special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; and the special rapporteur on violence against women, its causes and consequences, AL NPL 1/2020, March 16, 2020, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25109 (accessed August 21, 2020).
[109] Response of Government of Nepal to the Joint Communication by Special Procedures, https://spcommreports.ohchr.org/TMResultsBase/DownLoadFile?gId=35339&fbclid=IwAR2lCF-J4hUEL2oKzYTZO0EgrC73bjMRLYuEKzq--oaw_J31O6MHibjEDlw (accessed August 21, 2020).
[110] Meenakshi Ganguly, "End the Wait," Nepali Times, June 9-15, 2017, https://archive.nepalitimes.com/regular-columns/Comment/end-the-wait-for-conflict,933 (accessed July 5, 2020).
[111] Human Rights Watch, International Commission of Jurists, and Amnesty International, "Nepal: 9-Point Deal Undermines Transitional Justice," May 12, 2016, https://www.hrw.org/news/2016/05/12/nepal-9-point-deal-undermines-transitional-justice .
[112] "Victims outraged at 9-point deal," Kathmandu Post, May 12,2016, https://kathmandupost.com/valley/2016/05/12/victims-outraged-at-9-point-deal (accessed July 5, 2020).
[113] "Nepal's CPN-UML And CPN-Maoist Merge, Form New Powerful Bloc," Press Trust of India, February 21, 2018, https://www.ndtv.com/world-news/nepals-cpn-uml-and-cpn-maoist-merge-form-new-powerful-bloc-1815138 (accessed July 5, 2020).
[114] Human Rights Watch, Amnesty International, International Commission of Jurists, and TRIAL International, "Nepal: Supreme Court's Decision Reaffirms the Need to Amend Transitional Justice Law," May 1, 2020, https://www.hrw.org/news/2020/05/01/nepal-supreme-courts-decision-reaffirms-need-amend-transitional-justice-law.
[115] "Dhungel to stay in jail for 12.5 yeats," Himalayan Times, October 31, 2017, https://thehimalayantimes.com/kathmandu/dhungel-to-stay-in-jail-for-12-5-years-sent-to-dillibazaar-prison/ (accessed October 27, 2020).
[116] "Court to govt: Arrest murder convict Bal Krishna Dhungel," Kathmandu Post, April 14, 2017, https://kathmandupost.com/national/2017/04/14/court-to-govt-arrest-murder-convict-bal-krishna-dhungel (accessed July 5, 2020); "Supreme Court tells police to nab Bal Krishna Dhungel in a week," Himalayan Times, April 13, 2017, https://thehimalayantimes.com/nepal/supreme-court-tells-police-nab-bal-krishna-dhungel-week/ (accessed October 27, 2020).
[117] "Murder convict leader Bal Krishna Dhungel arrested, sent to Dillibazaar prison," Kathmandu Post, November 1, 2017,
https://kathmandupost.com/valley/2017/10/31/maoist-leader-bal-krishna-dhungel-arrested (accessed July 5, 2020).
[118] "Murder-convict Dhungel gets presidential pardon," Kathmandu Post, May 29, 2018, https://kathmandupost.com/valley/2018/05/29/murder-convict-dhungel-gets-presidential-pardon (accessed August 21, 2020).
[119] Amnesty International, Human Rights Watch, and International Commission of Jurists, "Nepal: Need Effective Steps to Enforce Court Verdicts," April 20, 2017, https://www.amnesty.org/en/latest/news/2017/04/nepal-need-effective-steps-to-enforce-court-verdicts/ (accessed July 5, 2020).
[120] Ibid.
[121] Legal Briefing on the Nepal Army's Petition to Overturn Convictions for Maina Sunuwar Killing, November 2018, https://www.icj.org/wp-content/uploads/2018/11/Nepal-Petition-to-overturn-convictions-for-Maina-Sunuwar-killing-Advocacy-Analysis-brief-2018-ENG.pdf (accessed August 24, 2020).
[122] On September 1, 2017, the Office of Prad Vivak of Nepal Army filed a writ of certiorari along with prohibition in the Supreme Court. Rule 2(c) of Court Martial Rules, 2064 (2008) defines the Office of Prad Viwak as the "office of military headquarters where the Chief of the Prad Viwak has been based, and the term shall also indicate the battalion Prad Viwak branch and Brigade Prad Viwak branch."
[123] Office of the UN High Commissioner of Human Rights in Nepal, "The torture and death in custody of Maina Sunuwar," December 2006, https://nepal.ohchr.org/en/resources/Documents/English/reports/IR/Year2006/2006_12_01_HCR%20_Maina%20Sunuwar_E.pdf (accessed July 5, 2020).
[124] Advocacy Forum and Coalition, Joint Submission To The Universal Periodic Review Of Nepal, July 2020, http://advocacyforum.org./downloads/pdf/publications/upr-submission-tj-and-impunity-in-nepal-af-and-coalition-9-luly-2020.pdf (accessed August 18, 2020).
[125] Advocacy Forum interview with Devi Sunuwar, August 19, 2020.
[126] Human Rights Watch, "Nepal: Investigate Maoists' Role in Killing," July 1, 2010, https://www.hrw.org/news/2010/07/01/nepal-investigate-maoists-role-killing.
[128] Advocacy Forum interview with Purnimaya Lama, August 19, 2020.
[129] Advocacy Forum, Letter to Attorney General, July 5, 2011, http://advocacyforum.org/downloads/pdf/press-statement/letter-to-attorney-general-reena-english.pdf (accessed July 23, 2020).
[130] Advocacy Forum interview with Gita Rasaili, August 19, 2020.
[131] National Human Rights Commission, Twenty Years of the Commission's Recommendations and the State of Implementation, October 15, 2020, https://www.nhrcnepal.org/nhrc_new/doc/newsletter/Inner_20_Years_Book_2077_Final_CTP_NHRC.pdf (accessed October 27, 2020).
[132] Human Rights Watch and Advocacy Forum, Waiting for Justice, September 2008, https://www.hrw.org/reports/nepal0908web.pdf; Still Waiting for Justice, October 2009, https://www.hrw.org/sites/default/files/reports/nepal1009webwcover.pdf; Indifference to Duty, December 14, 2010, https://www.hrw.org/report/2010/12/14/indifference-duty/impunity-crimes-committed-nepal.
[133] See appendix.
[134] Copy of order on file with Advocacy Forum.
[135] Advocacy Forum, Occasional Brief, yr. 2, vol. 1, "Evading Accountability by Hook or by Crook," June 2011, http://advocacyforum.org/downloads/pdf/publications/evading-accountability-by-hook-or-by-crook.pdf (accessed July 11, 2020).
[136] Nandakali Budhamagar et al. v. Madhav Prasad Ojha, Chief District Officer, Kanchanpur et al., 066-CR-0058, April 23, 2017.
[137] For details of all cases, see OHCHR Database at https://juris.ohchr.org/search/results/1?typeOfDecisionFilter=0&countryFilter=0&treatyFilter=0. This includes two cases where AF had earlier assisted families to file FIRs, and were among the 62 cases highlighted in previous reports. They are Hari Prasad Bolakhe (see Hari Prasad Bolakhe v Nepal, UN Communication No. 2658/2015, CCPR/C/123/D/2658/2015, https://juris.ohchr.org/Search/Details/2530) and Subhadra Chaulagain (see Subhadra Chaulagain v Nepal, UN Communication No. 2018/2010, CCPR/C/112/D/2018/2010, https://juris.ohchr.org/Search/Details/1899).
[138] See, for instance, Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2556/2015, CCPR/C/125/D/2556/2015, Fulmati Nyaya v Nepal, June 11, 2019. The Committee said: "The Committee notes the State party's claim that domestic remedies have not been exhausted because, on the one hand, the author's writ of mandamus is still pending before the Supreme Court of Nepal and, on the other hand, she still has the possibility to file a complaint before the Truth and Reconciliation Commission. The Committee notes, however, that the author: (a) filed two first information reports concerning the crime of rape and other inhumane and degrading acts with the District Police Office, which were rejected on the basis of the 35-day statute of limitations for the crime of rape; (b) filed a claim for compensation, pursuant to the torture compensation act of 1996, which was also rejected; and (c) filed a writ of mandamus before the Supreme Court of Nepal requesting the non-application of the 35-day statute of limitations for conflict-related individual claims, and that it is still pending. The Committee notes the author's uncontested allegations that she was unable to file a first information report within the legally established 35-day period, given that, during that time, she was still being arbitrarily detained with no access to legal assistance. The author has also argued that, even after her release, she was precluded from seeking support in her community and family due to the social stigma attached to victims of sexual violence. The Committee considers that the proceedings before the Supreme Court regarding the author's writ of mandamus filed in April 2014 are unduly prolonged, particularly considering the gravity of the crimes alleged. It further notes the author's statement that such proceedings are unlikely to bring relief given the long-standing jurisprudence of the Supreme Court on this issue. Therefore, in view of the legal and practical limitations on filing a complaint for rape in the State party, and the unduly prolonged proceedings before the Supreme Court and the unlikelihood of a successful outcome, the Committee considers that the remedies in the criminal justice system were both ineffective and unavailable to the author. With regard to the transitional justice system, the Committee notes the author's argument that the registration of her case before the Truth and Reconciliation Commission is not an effective remedy, considering the Commission's non-judicial nature. In this vein, the Committee recalls its jurisprudence that it is not necessary to exhaust avenues before non-judicial bodies to fulfil the requirements of article 5 (2) (b) of the Optional Protocol, and that transitional justice mechanisms cannot serve to dispense with the criminal prosecution of serious human rights violations. The Committee therefore considers that resorting to the Truth and Reconciliation Commission would not constitute an effective remedy for the author."
[139] Giri v Nepal, UN Communication No. 1761/2008, CCPR/C/101/D/1761/2008 (2008); Sharma v Nepal, UN Communication 1469/2006, CCPR/C/94/D/1469/2006 (2008); Dev Bahadur Maharjan v Nepal, UN Communication No. 1863/2009, CCPR/C/105/D/1863/2009 https://juris.ohchr.org/Search/Details/1238 (accessed July 25, 2020).
[140] Purnamaya v Nepal, UN Communication No. 2245/2013, CCPR/C/119/D/2245/2013, https://juris.ohchr.org/Search/Details/2238 (accessed July 25, 2020).
[141] Purnamaya v Nepal, UN Communication No. 2245/2013, CCPR/C/119/D/2245/2013, https://juris.ohchr.org/Search/Details/2238; Fulmati Nyaya v Nepal, UN Communication No. 2556/2015, CCPR/C/125/D/2556/2015, https://juris.ohchr.org/Search/Details/2568 (accessed July 27, 2020). See also, for instance, Himal Sharma v Nepal, UN Communication No. 2265/2013, CCPR/C/122/D/2265/2013. Himal Sharma received 100,000 rupees interim relief under the category "wounded/injured" of the government's interim relief scheme, but has not been compensated for suffering torture and enforced disappearance, despite the Human Rights Committee finding in his favor in 2013. His sister, Sarita Sharma (UN Communication No. 2364/2014, CCPR/C/122/D/2364/2014), on the other hand, received 25,000 rupees interim relief for her disappearance, and another 50,000 rupees under the category "wounded/injured."
[142] Mandira Sharma, "Transitional justice in Nepal: Low Priority, Partial Peace," in Deepak Thapa (ed.) and Alexander Ramsbotham, Two steps forward, one step back: The Nepal peace process, (Conciliation Resources, 2017), https://www.politicalsettlements.org/wp-content/uploads/2018/09/2017_CRAccord_Nepal.pdf (accessed August 21, 2020).
[143] Deuba was in office from 1995 to 1997, from 2001 to 2002, and from 2004 to 2005. Addressing a meeting organized by the NHRC to mark International Human Rights Day on December 10, 2004, then-Prime Minister Sher Bahadur Deuba heatedly refuted allegations of security force responsibility for "disappearances," saying: "You know, [the Maoists] are not known by their real names.… So, a Maoist gets arrested in one name and may be released with a different name. Some may have died during the battle. Some may have even crossed over to India across the open border. Then, how can the government be blamed for this?" Human Rights Watch, Clear Culpability; "Disappearances" by Security Forces in Nepal, 2005, https://www.hrw.org/reports/2005/nepal0205/nepal0205.pdf.
[144] Ram Kumar Bhandari, "Nepal: Transitional uncertainty," June 19, 2017, https://www.justiceinfo.net/en/justiceinfo-comment-and-debate/opinion/33628-nepal-transitional-uncertainty.html (accessed July 6, 2020).
[145] 'War-era related 37 cases in courts against Prachanda," Rising Nepal, May 13, 2016, http://therisingnepal.org.np/news/11288 (accessed July 6, 2020).
[146] Shirish B. Pradhan, "Nepal's Prachanda says he can be blamed for only 5,000 deaths during civil war," Press Trust of India, January 15, 2020, https://www.outlookindia.com/newsscroll/nepals-prachanda-says-he-can-be-blamed-for-only-5000-deaths-during-civil-war/1709296 (accessed July 6, 2020).
[147] For instance, in June 2016, Dahal (Prachanda) canceled his visit to Australia, apparently due to fears he may be arrested for war crimes. "Fearing arrest, Prachanda cancels Australia visit," IANS, June 24, 2016, https://www.business-standard.com/article/news-ians/fearing-arrest-prachanda-cancels-australia-visit-116062400344_1.html (accessed July 6, 2020).
[148] Clive Baldwin, "Catch them or else," Kathmandu Post, September 10, 2018, https://kathmandupost.com/opinion/2018/09/10/catch-them-or-else (accessed July 6, 2020).
[149] Kumar Lama was accused under section 134 of the UK Criminal Justice Act which provides universal jurisdiction for torture. The UK also has the Geneva Convention Act 1957 allowing universal jurisdiction for war crimes, and the International Criminal Court Act 2001 providing universal jurisdiction for war crimes, genocide, and crimes against humanity (section 51). See Ingrid Massagé and Mandira Sharma, "Regina v. Lama: Lessons Learned in Preparing a Universal Jurisdiction Case," Journal of Human Rights Practice, vol. 10, no. 2 (2018): pp. 327-345, https://doi.org/10.1093/jhuman/huy020 (accessed July 6, 2020).
[150] Owen Bowcott, "Nepalese officer cleared of torturing suspected Maoist detainees," September 6, 2016, https://www.theguardian.com/law/2016/sep/06/nepalese-officer-col-kumar-lama-cleared-torturing-maoist-detainees (accessed July 6, 2020).
[151] Ingrid Massagé and Mandira Sharma, "Regina v. Lama: Lessons Learned in Preparing a Universal Jurisdiction Case," Journal of Human Rights Practice, vol. 10, no. 2 (2018): pp. 327-345, https://doi.org/10.1093/jhuman/huy020 (accessed July 6, 2020).
[152] Human Rights Watch, "Letter to the Attorney General of Nepal; Universal Jurisdiction and Nepal's Draft Law on Transitional Justice," April 29, 2018, https://www.hrw.org/news/2018/08/29/letter-attorney-general-nepal.
[153] See, for example, Sneha Shrestha, "The Curious Case of Colonel Kumar Lama: Its Origins and Impact in Nepal and the United Kingdom, and Its Contribution to the Discourse on Universal Jurisdiction," TLI Think! Paper 2/2018, February 6, 2018, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3105720 (accessed October 27, 2020).
Nepal: Stalling on Justice for Conflict-Era Crimes
Failure to Prosecute Enabling Fresh Abuses