Head of the UN Office of High Commissioner for Human Rights (OHCHR) in Nepal, Ian Martin, has said peaceful protest is a right (of the citizens) and should be upheld and that security forces should use only absolute minimum force in maintaining the law and order.

Addressing a ‘Face to Face programme’ organized by the Reporters Club in Kathmandu on Monday—three days ahead of major protests planned by the opposition parties, Martin said the right to peaceful assembly should be respected and nobody should be arbitrarily arrested and detained for exercising their right to peaceful assembly. “ If we go back to what happened in January, it is our view that both the preemptive arrests that took place on the 19th of January and many of the arrests that then followed, arbitrary detentions were contrary to the Nepali law as the Supreme court found and also contrary to International Human Right standards.”

The further concern, of course, is (that) there should not be the improper and unnecessary use of force, and in particular, use of firearms in context that do no justify that, he said.

Martin further said the Communist Party of Nepal (Maoist), in this phase of the conflict, had been increasingly targeting urban areas. “They have been making use of civilian buildings, indeed targeting civilian buildings, and I want to stress, particularly how great is the concern of not just OHCHR but the United Nations as a whole and international community at the use of schools and the impact on the schools of this conflict. The fact that urban areas are been targeted means that is where the clashes are taking place and the risk to civilians has become greater,” he added.

In his statment, Martin said the Maoists are also making use of bombs or improvised explosive devices, many of those have been placed in locations where they were likely, or there is serious risk that it would be civilians as well as perhaps members of security forces who will be injured or killed as a result. He strongly deplored the act of placing bombs at the Saraswati Boarding school in Dailekh district last Friday.

“I note, of course that have been a number of denials from spokesperson for Maoists that this was carried out by them, that it was not in accordance with their policy and one of those statements say that there will be a serious investigation by the Maoists and a public report and strong action. But we have been promised investigations before and without there ever being a clear statement as to who was responsible and what action is being taken. So, there must be that serious investigation and we, of course, along with others, will be conducting our own investigation,” said martin.

Among the other concerns about the breeches of international humanitarian law by the Maoists is the continuing use of children within the People’s Liberation Army (PLA), he said. “Despite denials that they recruit children under 18, we continue to interview many such children who have been in their ranks. And the continuing abductions of civilians, although I hope we are increasingly able to bring about the release of those civilians who are abducted by the Maoists. We all know that at least one civilian has died in custody, the Deputy Regional Administrator of the Eastern Region, and others continue to be held in circumstances that cause their family great concern,” he added.

Turning in to the response by security forces. one of the things that troubles us most in the Royal Nepalese Army (RNA) response is the use of helicopters to fire upon areas where Maoists have allegedly been operating, even more of concern is the dropping of mortar bombs from those helicopters, said Martin. “Such action cannot properly distinguish, as is required by international humanitarian law, between those who are legitimate targets because they are Maoists fighters, and civilians. And most recently of course we have seen the use of helicopters at Thokarpa of Sindhupalchowk, where one villager, an elderly civilian in his 60s, was killed. We are continuing to investigate,” said Martin, adding, “In that particular case, the PLA Maoists army had chosen to hold their event on the premises of the school, so again that falls into the pattern of using schools. But the fact that the Maoists are using schools or school premises, or other civilian buildings, still leaves the RNA with the responsibility of not to choose themselves to target schools or civilian buildings,” he added.

“ I note in fact that the RNA is reported to be taking action against those of its personnel responsible for abuse of civilian population in Kanchanpur district recently. But we are far from seeing the full accountability of RNA personnel and other security forces personnel for violations of international humanitarian law and human rights. Although the RNA, the Police and the Armed Police Force offer statistics as to how many of their personnel have been investigated and disciplined, we are unable to get the kind of information that satisfies us that there are effective investigations and appropriate punishments,” said Martin.

Our office very much shares the widespread public concern at the number of lethal shootings that have taken place by the police and other security forces recently, he said. “From the shooting by the RNA of Umesh Thapa in Dang to the shooting by police of Dayaram Pariyar of NHRC and Ram Chandra Yadav of RPP in Janakpur on the 24th of March, there have been various numbers of cases of shootings by the police and the others. In that situation, what one would want to hear from the Government, from Ministers, is a very strong reminder to the security forces that they must use only minimum force in any law and order situation, and that it is their duty and that of the Government,” said Martin.

Martin then quoted and read some of the international obligations that security forces have and the kind of requirements that he thought the Ministers need to be making clear that they support and expect the security forces to follow. These are parts of what you call Basic Principles of Use of Force and Firearms by Law Enforcement Officials. These are not drawn up by human rights activists, these are drawn up and agreed by governments within the framework of United Nations, he said.

“Law enforcement officials, in carrying out their duty, shall as far as possible, apply non-violent means before resorting to the use of force and firearms…

“Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall: (a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved; (b) Minimize damage and injury, and respect and preserve human life…

“Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.

“Exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any departure from these basic principles…

“In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where this is not practicable, shall restrict such force to the minimum extent necessary.

“In the dispersal of violent assemblies, law enforcement officials may use firearms only when less dangerous means are not practicable and only to the minimum extent necessary…

“Persons affected by the use of force or firearms or their legal representatives shall have access to an independent process, including a judicial process. In the event of the death of such persons, this provision shall apply to their dependants accordingly.

“Governments and law enforcement agencies shall ensure that superior officers are held responsible if they know, or should have known, that law enforcement officials under their command are resorting, or have resorted, to the unlawful use of force and firearms, and they did not take all measures in their power to prevent, suppress or report such use…

“Obedience to superior orders shall be no defence if law enforcement officials knew that an order to use force and firearms resulting in the death or serious injury of a person was manifestly unlawful and had a reasonable opportunity to refuse to follow it. In any case, responsibility also rests on the superiors who gave the unlawful orders.”

Martin deplored that seven of the people arrested before the planned demonstration of January are still, more than two months later, held under the Public Security Act, despite the fact that the Supreme Court has consistently found such detentions to be unlawful. “OHCHR has many concerns about the use of the PSA, as well as of TADO which was due for review yesterday and I regret, though we asked to be consulted on how TADO ought to be in line with human right standards, we have not had opportunity to see the latest draft of TADO that we expect to be issued now,” he said.

“As it is important to prevent further human rights violations in the present, it is also important not to forget those human rights violations of the past. And I think in particular about the need to clarify the fate of those who disappeared in recent years. It is the responsibility of the State not only to clarify the circumstances of those who disappeared in custody, but also to hold accountable those responsible,” said Martin.

Martin also applauded the determination of many journalists to ensure, in particular, that human rights violation are reported. He said his Office would continue to do whatever they could to protect those who may be threatened with victimisation whoever it may be, by Maoists, or State security forces, for their journalistic activity. nepalnews.com by Apr 03 06