WORKING GROUP ON ENFORCED OR INVOLUNTARY DISAPPEARANCES OF UNITED NATIONS COMMISSION ON HUMAN RIGHTS CONCLUDES VISIT TO NEPAL

14 December 2004


The following is the statement by Professor Stephen J. Toope, Chairperson-Rapporteur of the Working Group on Enforced or Involuntary Disappearances of the United Nations Commission on Human Rights, made today at the conclusion of the Working Group’s visit to Nepal:

“The Working Group visited the Kingdom of Nepal from 6 to 14 December 2004 at the invitation of the Government. The purpose of the visit was to discuss the cases of enforced or involuntary disappearance received and transmitted by the Working Group to the Government of Nepal and to examine the situation of disappearances in Nepal in the light of international human rights standards.

During the visit, the Working Group met with state officials, representatives of local non-governmental organizations from Kathmandu and across the country, as well as representatives of the international community. The Working Group’s delegation was composed of the head of the delegation, Professor Stephen J. Toope, Chairperson-Rapporteur of the Working Group, and Professor Saed Rajaie Khorasani, member of the Working Group. Their work was supported by the Working Group’s Secretary and another member of the United Nations Secretariat. The Working Group wishes to express its appreciation for the assistance provided by the United Nations in Nepal for this mission. The Working Group was deeply impressed by the level of professionalism and commitment exhibited by members of Nepalese civil society, and expresses its thanks to those non-governmental organizations with which it met. The Working Group also wishes to express its gratitude and recognition of the full cooperation of the Nepalese authorities in assuring that all meetings requested were held, and that all discussions took place in an open and constructive manner.

The Working Group held meetings with His Majesty the King, as well as with the Prime Minister, Chief Justice of the Supreme Court, Foreign Minister, Chief of the Army Staff, Chief of Staff of the Royal Nepalese Army, Judge Advocate General of the Royal Nepalese Army, Attorney-General, Inspector General of Police, Members and Secretary of the National Human Rights Commission, National Director of the National Human Rights Promotion Centre of the Office of the Prime Minister, Chair of the Investigative Commission on Disappearances, representatives of many non-governmental human rights organizations from across Nepal, relatives of the disappeared, the Nepal Bar Association, legal experts, journalists, and representatives of the international community in Nepal. Due to time constraints, the Working Group held all meetings in Kathmandu. However, funding was provided for NGO representatives from the regions to travel to meet with the delegation to present their concerns.

During its visit, the Working Group visited the Kathmandu Central Jail, and the Sundarijal Detention Centre. Requests to meet with specific detainees, who had been the subject of cases of disappearance submitted to the Working Group were granted. This contributed to the clarification of the whereabouts of the persons concerned. In addition, the Royal Nepalese Army provided new information that could lead to the clarification of 52 cases under consideration by the Working Group. The Working Group was also provided with copies of the first three reports of the Investigative Commission on Disappearances. The Working Group expresses its appreciation for the concrete assistance provided by the Government of Nepal in moving to the clarification of cases.

The Working Group was informed by all parties of the damaging effects of the internal conflict in Nepal. The Working Group recognized the extremely difficult situation being faced by the population of Nepal and its authorities. Atrocities committed by the Maoists were frequently mentioned to the Working Group by all interlocutors. While this information is important in order to understand the context of the visit of the Working Group to Nepal, the mandate is restricted to the international human rights law obligations of the state authorities in Nepal. This in no way reduces the urgent need for the Maoists to respect international humanitarian law obligations and the physical integrity of their fellow citizens to reduce their suffering.

The Working Group received numerous documents testifying to the authorities’ understanding of what is needed to be done to stop disappearances in Nepal. Significant among them are the Human Rights Commitments of the Government, issued on 26 March 2004, and directives of the Royal Nepalese Army, as well as the Constitution, confirming the rights of all detainees to be free from arbitrary arrest or detention; the requirement of arresting authorities to identify themselves; the rights to be informed of the reason for arrest and to make information about the whereabouts of detainees available to family and legal representatives; the right to be present during a hearing with legal defense; the right to be held in an officially recognized place of detention in humane conditions; the right to be tried in a fair court within a reasonable period of time; the right to be free from torture or abuse; and finally that court orders are to be honoured, including writs of habeas corpus.

The Working Group welcomed other efforts underway by the Government and Army to address the issue of disappearances, including the signing of the Memorandum of Understanding with the Office of the High Commissioner for Human Rights to support the important work of the National Human Rights Commission, the work of the Investigative Commission on Disappearances, cooperation by the Army in providing information on the whereabouts of some cases of disappeared persons, the opening of the civilian run Sundarijal Detention Centre where some detainees formerly held in Army barracks have been transferred, and where they may be visited regularly by their families.

The Working Group examined the legal structure and national laws and ordinances in relation to disappearances. Some of the issues of most serious concern were the lack of legal protections for people detained on suspicion of being Maoists or having information about the Maoists. Despite national provisions and international obligations, fundamental norms of human rights are reportedly widely violated. Reports of so-called “preventative detention” by plain clothes security forces, and subsequent detention in Army barracks, often with no legal order for detention, and no access to a judge, lawyer or family, came from all parts of the country. Reportedly, no lists are kept by the authorities of those people detained in Army barracks. Torture and abuse of the detainees was also widely reported. These reports related to all three branches of the Unified Security Forces, made up of the Royal Nepalese Army, Police, and Armed Police Force, under the command of the Army. Repeatedly, concerns regarding impunity for violations of human rights abuses by the security forces were expressed to the Working Group. It was recognized that efforts to address impunity have been initiated by the authorities, such as the creation of the Human Rights Cells in the Army and the launching of courts martial. The Working Group looks forward to more concrete steps to combat impunity.

Human rights defenders are widely reported to be under constant threat for their work on disappearances, in particular in the regions of Nepal outside of Kathmandu. One human rights defender who works on disappearances reported having an Army official come to his office and point a gun at his head. In accordance with the mandate of the Working Group, it will continue to follow such threats against human rights workers closely and with great concern.

The National Human Rights Commission has the authority to visit places of detention, but is prevented from visiting detainees in Army barracks without prior notification. Progress on an agreement for cooperation between the NHRC and the RNA which took place during the Working Group’s visit was welcomed, and will be watched closely for its implementation.

Anti-terrorist legislation in the form of the Public Security Act and the Terrorism and Disruptive Activities Ordinance (“TADO”) are reportedly used to violate human rights. The vague definition of what is defined as a legal place of detention, among other provisions, has been used by the military to hold detainees in military barracks, and has resulted in the denial of access to lawyers and relatives. The TADO seems also to have increased the belief of some elements in the security forces that they are shielded from external accountability. In international law and Nepal’s own constitution and national laws, anti-terrorist legislation cannot be used to justify violations of human rights. No circumstances whatsoever, whether a threat of war, a state of war, internal political instability or any other public emergency, may be invoked to justify enforced disappearances.

The Working Group was informed by the Army commanders of the high percentage of their forces who had served for the United Nations, and their pride in that service. Yet, the Working Group heard concerns from civil society and the international community in Nepal regarding the Royal Nepalese Army’s reported human rights abuses and their future participation in United Nations Peacekeeping Operations.

The Working Group met with many relatives of the disappeared, who are also defined as victims under international standards, and with experts on the effects of disappearances on those relatives. Women frequently are left with small children, and no means of support. The social, economic, legal and psychological effects are devastating for families. The Working Group was told of similar consequences which face those people who are released from military or police detention after being suspected of being a Maoist, though they may never have been tried, or even charged.

The situation of disappearances, in conflicts arising from an internal threat, has been seen by the Working Group in other countries. It is important for the Nepalese people not to give up hope that justice may come to perpetrators of disappearances. The evolution of international law, and the increasing use of international jurisdiction, which may be evoked many years after the initial disappearance, has been used by national courts against past perpetrators and in international tribunals. The crime of forced disappearance is considered a continuing crime, from the moment a person is disappeared, until their whereabouts or fate are revealed.

The Working Group calls on the political and military authorities in Nepal to honor their international human rights law obligations, the Constitution, the Commitments of 26 March 2004, and the existing Human Rights Directives of the Royal Nepalese Army, in order to stop disappearances. A complete prohibition on incommunicado detention in Army barracks must be enforced. Human rights defenders must be protected from persecution for their work, as required under international law. The National Human Rights Commission should have unhindered access to all places of detention, without prior notification or permission. Simple acts such as the creation of up-to-date and accessible lists of detainees in each place of detention and a national registry, as well as the granting of access for families and lawyers, would address many of the problems of disappearance in Nepal.”

Background

The Working Group on Enforced or Involuntary Disappearances was established by the United Nations Commission on Human Rights in 1980 to assist the relatives of disappeared persons in ascertaining their fate and whereabouts and to act as a channel for communication between the families and governments concerned. The Working Group also monitors and advises on the compliance of States with their obligations under the Declaration on the Protection of All Persons from Enforced Disappearances adopted by the General Assembly on 18 December 1992.