Close to two years after Nepal’s new penal code criminalised torture, not a single case has been persecuted, highlighting near total failure by authorities to investigate and prosecute acts of torture in the country.
In fact, there have been very few instances in which victims have received an effective remedy and reparation for their ill-treatment.
Nepal has failed to meet its obligations in this regard under article 2(3) of the International Covenant of Civil and Political Rights and article 14 of the Convention Against Torture. This on top of continued failure to address war crimes and provide transitional justice for the victims of the Maoist insurgency.
All of this makes a bad case for when Nepal runs for re-election at the UN Human Rights Council in October. Many human rights activists believe the government does not deserve a second mandate.
“Nepal has an obligation under international law to hold perpetrators accountable for acts of torture and cruel, inhuman or degrading treatment,” says Frederick Rawski, ICJ Asia-Pacific Director. “It is disturbing to see that two years after the rightfully celebrated Penal Code provisions criminalising torture have come into effect, the government has yet to successfully prosecute any acts of torture, which by all accounts continue to occur on a frequent basis.”
The Rome Statute and The Hague, Nischala Arjal
The Penal Code criminalising torture came into effect in August 2018. But the provisions fall short of international standards in a number of respects: it fails to recognise the continuous nature of the crime of enforced disappearance or its status as a crime against humanity, has only six-month limitation period to file complaints; and penalties incommensurate with the gravity of the crimes.
Nepal’s Advocacy Forum and THRD Alliance (Tarai Human Rights Defenders’s Alliance) have both published reports on the occasion of the International Day in Support of Victims of Torture on 26 June documenting instances of torture and other abuse against detainees over the past year.
Twenty percent of more than 1,000 detainees interviewed reported some form of unlawful ill-treatment during their confinement.
“Police still continue to rely on ‘confessions’, typically obtained by ill-treatment or coercion during interrogation, as opposed to conducting proper investigations,” says Om Prakash Sen Thakuri of Advocacy Forum. “Our police institutions need serious reform to ensure that investigative practices conform to international law and standards.”
In a separate report, the THRD Alliance documented the challenges torture survivors face in the formal justice system, including frequent refusal by police to file a FIR on allegations of ill-treatment, statutes of limitation preventing cases from being prosecuted, and a lack of independent police investigations in the rare cases when they do move forward.
“Despite repeated public commitments by justice sector and human rights institutions, torture survivors still struggle to have their voices heard or have their cases addressed,” says Mohan Karna, Executive Director of the THRD Alliance. “We urge the authorities at both the federal and provincial levels to establishing robust detention monitoring and internal accountability mechanisms – that will deter future acts of torture and ill-treatment.”
Human rights experts have recommended structural reform within the police including the establishment of a separate and independent mechanism to investigate allegations of torture and ill-treatment involving police personnel.
They have also requested amendment to the Penal Code and other relevant provisions of law to eliminate the statute of limitations in torture cases, and to ensure that the definition of torture is in line with international law.
Other recommendations include an independent preventative mechanism for monitoring of detention centers and to become party to the Optional Protocol of the Convention on Torture.