The UN team—that is visiting Nepal at the invitation of the Nepal government– to study the situation of disappearance has said despite national provisions and international obligations, fundamental norms of human rights are reportedly widely violated in the country.
In its interim report made public at the end of its nine-day long fact-finding mission to Nepal, the UN Working Group on Enforced or Involuntary Disappearances said lack of legal protections for people detained on suspicion of being Maoists or having information about the Maoists was one of the issues of most serious concern.
Reports of so-called “preventive 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, said the Working Group, in its statement.
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, the statement said.
Anti-terrorist legislation in the form of Public Security Act and the Terrorism and Disruptive Activities (Control and Punishment) Ordinance 2004 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 another public emergency, may be involved to justify enforced disappearances, the Working Group said.
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 violations and their future participation in United Nations Peacekeeping Operations, the Group said.
Analysts say it could be seen as a veiled threat to Nepali security forces to clean up their act.
The Working Group has also urged Nepali 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 is revealed,” the statement said.
The Working Group further said that 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.
“We hope these actions will be taken and we call upon the authorities to take these action,” said Prof. Stephen J. Toope, who led the two-member UN delegation.
Responding to a query by Nepalnews during the press meet organised at the UN premises in Lalitpur Tuesday, Prof. Toope said the Group was studying the legislation related to the Commission for Investigation of Abuse of Authority (CIAA)—a constitutional body—to see if it could be involved to prosecute officials involved in abuse of their authority.
“We may have something to say (in this regard) in our final report,” he added. The Working Group will present its final report to the UN High Commission on Human Rights in March next year.
Article 98 of the Constitution of the Kingdom of Nepal, 1990, says the CIAA may, in accordance with law, conduct or cause to be conducted inquiries into, and investigations of, improper conduct or corruption by a person holding any public office.
Human rights activists say involving the CIAA to prosecute officials allegedly involved in sanctioning illegal detention and authorizing their personnel to make people disappeared could have a significant deterrent effect.
“Keeping people in illegal detention and making them disappeared is, clearly, a far greater abuse of authority. Hence, besides corruption, the CIAA should also look into the cases of disappearances,” Dr Bhogendra Sharma, president of Centre for Victims of Torture (CVICT), Nepal told Nepalnews Tuesday.
Dr Sharma further insisted that since NHRC was a toothless tiger and CIAA a tiger with tooth, the latter must be involved so as to arrest and bring to an end the practice of making people disappeared in the country.
NHRC has said it has compiled over 1,600 cases of disappearances in the country of which majority of the cases are caused by the security forces.
The UN Working Group met with many relatives of the disappeared, who are also defined as victims and 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 tries or even charged, the statement said.
The Working Group on Enforced or Involuntary Disappearances was established by the UN Commission on Human Rights in 1980 to assist relatives of disappeared persons in ascertaining their fate and whereabouts and to act as a channel for communication between the families and governments concerned.
“We will continue to be actively engaged in pursuing each and every case (of disappearance) that is brought to us,” said Prof. Toope. nepalnews.com by Dec 14 04