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Torture Continues: A Brief Report

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At least 1,313 recorded new cases of torture occured after the historic uprsing of April 2006, says a report by Advocacy Forum, a Kathmandu-based rights group.


What follows is the executive summary (for full text in PDF version, click here) of the 15-page report released by Advocacy Forum during an event in Kathmandu to mark the “United Nations International Day in Support of Victims of Torture” on Monday, June 25, 2007:


With the end of absolute royal rule following the People’s Movement of April 2006 and the resulting peace agreement that ended hostilities between the Maoists and the Government, Nepalis hoped for a Naya Nepal characterized by the rule of law, respect for human rights, and democracy. However, one year after the historic Jana Andolan, Nepal still suffers from an enormous deficit in human rights protections. Torture still continues, the culture of impunity reigns, and victims continue to suffer from the mental and physical wounds of egregious human rights violations and abuses.

After Jana Andolan: Human Rights Violations ad Abuses Continue
During the conflict, torture was widely practiced in Nepal. In fact, UN Special Rapporteur Manfred Nowak, after completing a fact-finding mission in Georgia, Mongolia, Nepal, and China, concluded that Nepal was the only country of the four that systematically conducted torture (See note 1) Shockingly, a Nepali official admitted to Nowak that “a little bit of torture helps.” (See note 2)

Despite the abdication of absolute rule and the end of armed hostilities between the Government and the Maoists, violations and abuses have been continue even after the People’s Movement. Advocacy Forum alone has documented 1,313 new cases of torture. Though the power of the military to detain civilians has been curtailed, the Nepal Army (NA) still arrests and detains civilians and inflicts torture upon them. AF has documented 17 cases of torture, 4 cases of rape and 6 cases of illegal detention of civilian by the military after April 2006.

Advocacy Forum’s documentation of police detention centres has shown that the People’s Movement has not led to any significant amelioration in detention practices. Of the 3,908 detainees interviewed since April 2006, 27.6% were subjected to acts of torture. AF has also documented 67 cases of torture, 1 case of rape, and 96 cases of abduction committed by the Maoists since the People’s Movement of April 2006.

Common methods of torture include electrocution; sexual abuse and rape threats; restriction of food, water, and use of toilet; excessive beating by iron rods and bamboo sticks, especially on the soles of the feet and back; and death threats and threats of indefinite detention.

The Failure of the Nepali Legal System to Respond to the Torture Problem
Nepal is bound by several international treaties prohibiting the practice of torture, including the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Right of the Child (CRC), and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT). Despite these international obligations, Nepal’s implementation efforts have been wholly insufficient. Laws that domestically regulate the international prohibition against torture are shallow and poorly implemented. Nepal also suffers from a lack of independent monitoring of detention centres and independent inquiry into torture allegations. Furthermore, the legal system does not offer sufficient opportunities for victims of torture to obtain remedies and make perpetrators accountable for their criminal acts.

The main pieces of legislation regulating the prohibition against torture in Nepal are the Interim Constitution and the Torture Compensation Act. The Interim Constitution, promulgated in 2007, criminalises torture for the first time in Nepal. However, it only criminalises torture that occurs during official detention, whereas the Convention Against Torture obligates Nepal to criminalize any act of torture that is committed or instigated by an official within Nepal’s territorial jurisdiction. Furthermore, the Torture Compensation Act is too narrow to meet international standards; it does not even criminalise the practice of torture, making the Act inconsistent with the Interim Constitution. The Act does not obligate the Government to take institutional action against a perpetrator of torture. Instead, perpetrators may be subjected to “departmental action,” such as demotions, suspensions, and delayed promotions.

Laws and institutions that regulate torture in Nepal have not been wholeheartedly implemented to deter perpetrators from committing torture. Even the provisions of the Torture Compensation Act and the Interim Constitution, in addition to their facial inadequacy, are not implemented. In fact, the Special Rapporteur on Torture, after completing his mission to Nepal, concluded that “basic requirements are not respected by the police, armed police, or the RNA, such as timely access to a lawyer, bringing suspects before a judge within 24 hours of arrest, or medical examinations upon arrest or transfer.” (See note 3)

The culture of impunity that reigns in Nepal is further strengthened by the lack of effective institutions to monitor and take action against human rights violations, including torture. Though the National Human Rights Commission (NHRC) is authorized to request governmental action, including the provision of compensation, in cases of human rights violations, the Government has denied the Commission access to intervene in many cases. In addition, the recommendations of the NHRC are hardly observed by the Government.

Victims who seek legal remedies face significant hurdles. First, Nepal does not offer any sort of protection to victims and witnesses who are threatened with future bodily harm by perpetrators. Second, geographical barriers to consulting with lawyers and filing claims, in addition to many victims’ lack of knowledge of legal remedies, make civil action against perpetrators difficult. Third, the Torture Compensation Act’s requirement to file a claim within 35 days of the alleged act of torture or release from detention denies victims an adequate opportunity to seek legal redress for the wrongs committed against them. Fourth, the Interim Constitution and the Torture Compensation Act lack any mention of providing for a victim’s rehabilitation needs. Fifth, the Torture Compensation Act places a ceiling on the amount of compensation at a paltry sum of Rs. 100,000, approximately $1,610. Sixth, the legal aid regime in Nepal, implemented under the Legal Aid Act, does not attend to the needs of victims of human rights violations. In addition to all of these deficiencies, the Torture Compensation Act deters potential claimants from seeking relief by imposing fines on those parties found by a court to be making groundless claims.

Facing Impunity: The Need for Transitional Justice and Urgent Reform
Unquestionably, one of the primary challenges that Nepal currently faces is tackling the culture of impunity. To date, the Government has failed to properly investigate and prosecute a single case of extrajudicial execution, enforced disappearance, or torture. Despite changes in leadership, the NA has failed to cooperate with investigations about the fate of hundreds of disappeared Nepalese and other cases of human rights violations. The police have lacked the courage and professionalism to bring perpetrators of violations to justice. Moreover, popular demands for a comprehensive transitional justice mechanism have also been ignored. Therefore, because perpetrators of human rights violations continuously enjoy impunity and victims are routinely denied justice, popular confidence in the potential success of the People’s Movement is waning.

As there can be no concrete political stability and democracy without addressing past abuses, a comprehensive program for transitional justice, including a Truth and Reconciliation Commission and prosecutions, is needed to lay the foundations for sustainable peace. Aggressively and fairly unpacking the truths of human rights violations and abuses during the conflict and years of oppression will give Nepalis a better, unified understanding of the structural, political, social, and economic reasons that permitted these atrocities to occur. In turn, this will allow current policymakers to address the roots of the conflict in order to prevent a further outbreak of violence. The pursuit of transitional justice will provide a forum for survivors of atrocities to present their stories and receive reparations for their pain. Moreover, holding perpetrators accountable for their actions can help break the cycle of impunity and lay the foundations for the rule of law and indeed, Naya Nepal.

The Government of Nepal must also urgently address the legal issues that perpetuate the practice of torture and the culture of impunity. A law must be enacted which gives full breath to the international prohibition against the practice of torture so that any act of torture committed by a state official is criminal offence in Nepal. Nepal must also implement measures to ensure that the acts of torture are properly investigated and perpetrators are held accountable for their actions. The torture compensation scheme must be overhauled to provide victims with opportunities for fair and adequate compensation, including rehabilitation. Finally, independent checks on human rights practices in Nepal must be made available. In addition to strengthening the capacity of the NHRC, Nepal should ratify the Optional Protocol to the Convention Against Torture (OPCAT). The implementation of the OPCAT regime would obligate the Nepali state to create a national inspection mechanism and to host international inspections of its detention facilities; in turn, this will help ensure that Nepal is meeting its international commitments. Ratifying the OPCAT would also send a clear message to the people that the Nepali Government is serious about representing them and respecting their inalienable human dignity.

Nepal currently stands at the crossroads between a future that honors and enforces human rights and the rule of law and a future that merely perpetuates past inaction and abuse. One year since the so-called reemergence of democracy in Nepal, it appears that the political leadership has merely allowed the human rights practices of the pre-Jana Andolan era to continue indefinitely into the future. However, the desires for democracy articulated in the People’s Movement and the demands from Nepalis to live in a country characterized by the rule of law must not be lost in the noise of political bickering. Torture and the deprivation of fundamental human rights can never be justified. It is time for Nepal to finally learn this lesson.

Full report is here (PDF), from Asian Human Rights Commission, Hong Kong.

Notes

1 UN News Centre, “Torture ‘conducted on systematic basis’ in Nepal’: UN Rapporteur.” 2 May 2006, http://www.un.org/apps/news/story.asp?NewsID=18325&Cr=Nepal&Cr1 (last visited 13 June 2007).
2. Ibid.
3 U.N. Economic and Social Council [ECOSOC], Commission on Human Rights, Civil and Political Rights, Including: The Questions of Torture and Detention: Report by the Special Rapporteur on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 20, U.N. Doc. E/CN.4/2006/6/Add.5 (9 January 2006) (prepared by Manfred Nowak).

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CPA
Brihát Śhānti Sámjhautā, 2006
(Comprehensive Peace Agreement)








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