On 20 June 2019 Kumar Poudel was found dead, reportedly shot in the head, in Lalbandi-1, Chandranagar Forest in Sarlahi district, in what Nepal Police said was a shootout.
He was in charge of the Netra Bikram Chand (‘Biplab’)-led Communist Party of Nepal in Sarlahi, and a probe by the National Human Rights Commission (NHRC) called it an extrajudicial killing, recommending criminal charges against three police officers.
The incident was taken up by United Nations human rights experts based in Geneva. Working under special procedures, each expert focuses on a specific country or mandate, such as minority issues, violence against women, and extrajudicial, summary or arbitrary executions. On 28 October, three of those experts wrote to the Government of Nepal for clarification on the killing of Poudel.
Nepal runs out of excuses to address war crimes, Tufan Neupane
How governments respond to communications from special procedures is one measure of whether they are cooperating with the UN Human Rights Council (HRC). For aspiring members of the HRC that cooperation can affect whether they get elected. Nepal became a member of the council for the first time in 2018, its mandate expires on 31 December and in October it will run in an election for a second term, 2021-23. Many human rights activists believe the government does not deserve a second mandate.
When it was contesting for the seat it won in 2017, Nepal issued a series of pledges, both in a document and at an event in New York organised by Amnesty International and the International Service for Human Rights. Among the pledges were to:
- Address human rights violations during the Maoist conflict, provide justice to victims, and ‘promote sustainable peace, harmony and reconciliation in society’ (see below)
- ‘Continue to strengthen the central role of the National Human Rights Commission with the responsibility of independent investigation into all HR violations’ (see below)
- Foster the growth and diversification of free and competent media and ‘preserve and further promote the right to freedom of expression and other freedoms provided for in the Constitution’.
Women’s rights activist Renu Adhikari says Nepal’s performance on the HRC has been too passive but at home “in terms of violence against women the effort made by the Nepal Government is quite satisfactory. There is a national plan of action, zero tolerance and several laws have been changed.”
Adhikari, who is Chairperson of the National Alliance of Women Human Right Defenders added in an interview: “Definitely there are issues — rape, trafficking in different forms, violence is increasing, and police are not responding the way we expected. At the same time the government is acting sincerely on certain issues.”
“I will support another (HRC) term, but I would say that they need to be a little more serious, a little more proactive. They also have to be more serious within the country, especially on Madhes issues — the rights of Madhesi people keep getting violated,” she said.
At the NHRC, Commissioner Mohna Ansari asks: “What progress have we made after being elected to the Human Rights Council? That is the question. Extrajudicial killing is ongoing. Our outgoing IGP (Inspector General of Police) deployed a special mission to assassinate the Biplab cadres. Can you imagine? Being a member of the HRC and having such a crime happen?”
“When you are championing human rights you need to produce an extraordinary example as a member state,” added Ansari in a phone interview. “After being elected I hardly see progress: in the past year how many incidents have happened? Violence against women is also high, as is caste-based discrimination.”
Contacted by a reporter for the government’s side, joint secretary and spokesperson at the ministry of foreign affairs, Bharat Raj Paudyal, asked: “Why do you have to write about this at this particular time? Who is instigating you to write about this? Someone is inciting you, I am not going to comment.”
On 27 April the Supreme Court of Nepal rejected the government’s appeal of its 2015 decision that said the Transitional Justice Act must be amended because it included amnesty for serious crimes committed during the 1996-2006 Maoist conflict. Observers say that the government has now run out of reasons to delay transitional justice and must act.
According to the UN General Assembly, when they are electing HRC members UN member states should take into account how candidates have contributed to the promotion and protection of human rights as well as to their voluntary pledges and commitments.
It says elected members shall ‘(1) uphold the highest standards in the promotion and protection of human rights; (2) fully cooperate with the Council and (3) be reviewed under the universal periodic review (UPR) mechanism during their term’.
Nepal’s UPR review is scheduled in the HRC later this year. As to point 2 above, cooperation with the HRC includes participating in meetings and other events of the council and responding to communications from special procedures as well as requests for visits.
“We consider that stuff to be important because it’s an indicator of how you live up to your obligations, of a broader willingness and commitment by the state,” said Eleanor Openshaw, New York Director of International Service for Human Rights in a Skype interview. “If you don’t cooperate (with the HRC) that is unacceptable.”
UN member states, which vote for HRC members at the annual General Assembly meeting, are interested in the indicators, added Openshaw. “As Nepal receives aid from the international community they have an interest in looking as if they’re attempting to cooperate.”
Nepali Times reached out to a number of member states for their opinions on Nepal’s candidacy. None who responded would comment on the upcoming vote.
Via the website YourHRC.org, the international organisation Universal Rights Group, along with Norway’s ministry of foreign affairs, produces an annual analysis of the HRC and its members. It shows Nepal’s participation (in debates, panel discussions and dialogues) growing from 51 in 2018 to 70 in 2019. The most active government (Qatar) in the HRC’s Asia-Pacific group participated in 207 events.
But the government’s response rate to communications from special procedures fell from 24% to 20%, tied with India, and in the AP-group better only than Afghanistan (10%). Nepal responded to the last 3 queries sent from special procedures (in 2019) but at press time had not responded to the 6 previous communications (4 sent in 2018, 2 in 2017).
A later communication, about consultation with victims of the Maoist conflict concerning truth and reconciliation, dated 16 March 2020, was posted online on 15 May.
According to Frederick Rawski, Asia-Pacific Regional Director at the International Commission of Jurists, “substantial improvements have been made in Nepal’s legal framework — with the progressive human rights jurisprudence of the Supreme Court particularly worthy of praise,” since the signing of the Comprehensive Peace Agreement in 2006.
“However, Nepal suffers from a chronic problem of non-implementation of human rights protections. Laws get passed but go unenforced. Transitional justice processes and institutions continue to be subordinated to short-term political interests. Government after government, including the current one, fail to respect judicial decisions and even actively seek to compromise judicial independence,” adds Rawski.
“Until the government takes genuine measures to improve the implementation of the human rights commitments that it made when it stood for election to the HRC three years ago, it will continue to be subject to international criticism regardless of whether or not it retains its seat in the next cycle,” he added.
Special procedures: transitional justice
On 12 April 2019 a number of UN human rights experts wrote jointly to the government for clarification on information received concerning the ‘reported lack of impartiality, independence and transparency in the procedure for appointing the members of the Truth and Reconciliation Commission (TRC) and Commission on the Investigation of Enforced Disappearance (CIEDP), the reported lack of progress in the work undertaken by both commissionsand the possible amendment of the Act on the Commission on Investigation of Disappeared Persons, Truth and Reconciliation 2071 (2014)’.
In response, the government wrote on 7 June 2019 that ‘the Committee functions in total independence without any external influence or biases. The Government of Nepal remains fully committed not to allow any form of influence from any quarter on the recommendation process’.
It added: ‘The proposed amendment of the Act will contain a number of elements including main components of the transitional justice process: truth seeking, inquiry, accountability, reconciliation, reparations and measures for non-recurrence. The Government of Nepal reiterates that the perpetrators of serious violations of human rights will not go unpublished.’
In its 2019 Country Reports on Human Rights the US Department of States wrote: ‘The government and judiciary have not significantly addressed conflict-era human rights and humanitarian law violations committed by the NA, Nepal Police, APF, and Maoist parties.’
The report adds: ‘Local human rights advocates cite legal shortcomings that pose obstacles to a comprehensive and credible transitional justice process in the country. For example, the law does not retroactively criminalise torture or enforced disappearance, and the statute of limitations for rape is only 180 days.’
Special procedures: NHRC
On 15 July 2019 UN human rights experts wrote to the government about a proposed amendment to the existing NHRC Act-2012, ‘potentially severely undermining the NHRC’s authority, effectiveness and independence and limiting the Nepali people’s ability to access justice.’
NHRC commissioners and supporters accused the government of using the amendment to make the constitutional body subservient to the attorney-general and keep it financially dependent on the government.
The government responded in writing on 17 January 2020: ‘The intention of the amendment is in no case to curtail or otherwise minimise the independence of the NHRC but to empower it further so that its recommendations are implemented with required investigation and they find sound legal and procedural base during the judicial process and to ensure that the victims are better protected.’
Commissioner Ansari said in a recent interview that the NHRC is already financially dependent on the government. “Financial autonomy means you are free to decide on budget lines but our budget lines are under the Planning Commission guidelines… If we want to spend all our money on investigation we can’t. We cannot deploy emergency missions because we don’t have approval.”
She added: “Every day we see reports of human rights violations in the media and we can issue orders to the police or the attorney-general’s office to take action. Under the proposed amendment the attorney can say ‘stop the investigation’. What is this?”
The NHRC says that since it came into being in 2000, only 12% percent of its 810 recommendations have been fully implemented, 48% were implemented partially and 39% are under consideration. These statistics are misleading as the only recommendations acted upon concern compensation — those calling for action against perpetrators have been ignored.
- 47 States elected by the UN General Assembly
- Replaced the UN Human Rights Commission in 2006
- Holds multiple sessions in Geneva annually
- Members elected for three-year terms from five geographical regions
- Includes Universal Periodic Review, which examines the human rights records of all 193 UN member states once every 4.5 years
- ‘Responds to human rights emergencies and makes recommendations on how to better implement human rights on the ground. The council has the ability to discuss all thematic human rights issues and country-specific situations that require its attention.’
- The decisions of the council are not legally binding.
Read also: The Rome Statute and the Hague, Nischala Arjal
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