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Nepal Monitor: The National Online Journal

Wrong for OHCHR Nepal to Withdraw Now?

A human rights body based in India says, yes, it's wrong.

Despite its unsatisfactory performance, it would be wrong for OHCHR to withdraw
now, says a report by the New Delhi-based Asian Centre for Human Rights (ACHR). The following is the executive summary of the 21-page report released on June 3, 2011

On 10th May 2011, the government of Nepal announced a plan to withdraw murder charges against Mr Agni Sapkota, Minister for Information from the Maoists. Sapkota is alleged to have direct involvement in the abduction and killing of Arjun Bahadur Lama in June 2005 in Kavre District. In March 2008, the Supreme Court of Nepal issued an order to the police to register the case. The police registered the First Information Report but three years later, nothing has been done. In the Nepal context, this announcement is an effective declaration of an amnesty. The announcement leaves the rule of law and the transitional justice process in tatters.

There has been no public comment from the United Nations Office of the High Commissioner for Human Rights in Nepal (OHCHR-Nepal). This only underlines questions over the performance of OHCHR as it approaches the end of its mandate on 9th June 2011. With the government of Nepal proposing to extend the term of the OHCHR only for six months with the same mandate, it is unlikely that OHCHR will speak up. Repeated evaluations have underlined that the High Commissioner (HC) Navi Pillay must address increasingly visible lack of political skills, leadership and strategy. It is difficult to conclude that she has acted appropriately and there is sufficient evidence to suggest that she has actively denied the Nepal Office the support it needs.

The HC's mishandling of the mandate negotiations in 2010 is a case in point. Prior to the negotiation, OHCHR-Nepal had a powerful mandate, strong field representation outside Kathmandu and, enjoyed a formal place in the peace process; an agreement that the Nepal Government had no power to change unilaterally. Yet, in defiance of the peace accords, and the prevailing human rights situation, the HC conceded everything. The field offices outside Kathmandu were abandoned. And, what is less well understood, monitoring of human rights violations were handed over to Nepal's imploding National Human Rights Commission (NHRC).

Yet another emblem of dysfunction has been the recent decision, in January 2011, to place Nepal's National Human Rights Action Plan (NHRAP) at the centre of OHCHRNepal strategy. It is now clear that OHCHR-Nepal gave its political support to the NHRAP without actually understanding the content, as they did not have an English translation of the NHRAP when they announced support.

When an English copy became available, the scale of the blunder became clear. The NHRAP is terminally flawed: poorly defined (indeed non-existent) problems, illdefined outcomes, ill-defined and vague activities, activities that have little link to the problems and, little link between activity and result. The approach to measuring progress is almost uniquely process oriented, addressing 'number of attendees' and training etc.' (See note 1)

OHCHR-Nepal continued to offer the NHRAP uncritical support even after these issues became clear. The recent withdrawal of key human rights cases by the government reveals the real agenda behind the NHRAP. The NHRAP appears to be little more than a log frame for impunity: only one dimension of ongoing attempts by all successive Nepal governments to avoid accountability.

Impunity is mentioned only in passing; entirely consistent with the current political environment. The interest in not addressing accountability is a rare example of cross party consensus amongst the major political parties of Nepal. The new government is no different, as the announcement to provide amnesty to Sapkota and many others, demonstrates.

The Maoists could choose to cooperate with the civilian judicial system but they instead choose intimidation, threat, and now, overruled the civilian judicial system. The Army has the capacity to prosecute. It can and does rapidly prosecute criminals within the military, when it chooses to.

The decision not to prosecute human rights violators is a choice; and, given that Armies tend to be highly rule bound, this rather implies that this choice is a policy; and is a policy because the violations are, and have been, part of military operations; a finding consistent with the large body of documented evidence of OHCHR-Nepal. A conscious policy choice would suggest that the Army's problems would not be solved by the awareness training offered by the NHRAP. This policy choice explains the ongoing intimidation and threats to lawyers defending victims of crimes.

Nepal is effectively placing conditions on its international human rights obligations. This conditionality is more than sufficient to undermine improvements in human rights. These are conditions that make human rights technical assistance and funding to the NHRC and the NHRAP, at best, a waste of funds.

In terms of the government action on human rights, the only logical position for donors is to suspend human rights and transitional justice funding to government institutions pending a profound review. Funding should only be renewed if and when the government demonstrates political will, by actually implementing commitments and reversing policy decision like the one involving Sapkota.

To lend political support to what is clearly a political agenda deleterious to compliance with international human rights standards and obligations, is to agree to undermine the whole transitional justice process; a critical process at this delicate moment in stalling peace.

How, for example, are transitional justice mechanisms supposed to work if the Nepal Army has already punished all the violators in its ranks, as the prior government repeatedly claimed. And politically, how far will the transitional justice process proceed if one side is exempted? And how convenient would this exemption be to the leadership of the UCPN (M)?

The political risk of continuing with unconditional support, like that extended by OHCHR to the NHRAP, is that engagement, whatever the intention, provides de facto political support for a continuance of the current consensus - a policy which add up to little more than a stream of commitments with no visible implementation, balanced by acts like appointing suspected murderers to the cabinet, and declaring an effective amnesty.

OHCHR-Nepal is in a position of leadership; where it leads on human rights, the international community is likely to follow. But, rudderless, maladroit and increasingly impotent, OHCHR is bowing to the agenda of the leading political actors in Nepal, all of them with no interest in addressing impunity.

If OHCHR-Nepal is to have any meaningful role it must now demonstrate willingness to undergo urgent reform. ACHR would suggest that donors' evaluations of OHCHRNepal's work would serve as more than an appropriate guide to the changes to the Nepal Office. This should be signalled with the immediate announcement of an expedited process for the appointment of a suitably experienced and high level Country Representative. Technical support should be immediately suspended. And supported by the international community OHCHR-Nepal must now insist on concrete measures of progress on impunity before engaging in any human rights initiatives with the authorities.

Despite its unsatisfactory performance, it would be wrong for OHCHR to withdraw now as this would imply that the concerns over human rights in Nepal had been addressed. The reality is the opposite; national institutions to promote and protect human rights are as weak as or weaker than in 2005, a low point for human rights in Nepal.

Human rights defenders are reporting increasing concern over their security suggestive of levels similar to the take over of 2005 which triggered the establishment of the deployment in the first place. To withdraw OHCHR-Nepal now or to simply extend it with its current lack of strategy and leadership would be to publicly acknowledge that five years of funding since mid 2006 has been wasted. This outcome would reflect badly both on the HC and also on donors who have failed to insist on a serious standard of work by the Nepal office.

1. Asian Centre for Human Rights (ACHR) recognises that development indicators, in some cases are well developed. The focus of the critique is on civil and political rights.

Here is the link to the report

Posted by Editor on June 5, 2011 7:40 AM