forex trading logo

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Impunity and Rule of Law PDF Print E-mail

FOHRID has identified various issues that need to be intervened with priority under impunity and rule of law theme. Overall objective of this theme is combating impunity for promotion of accountability, and strengthening the notion of rule of law. Enabling non-state actors to combat impunity so as to strengthen rule of law and organize, enable and forward concerted efforts of rights-holders seeking accountability is necessary to combat impunity and promote accountability in Nepal. We cannot significantly improve human rights situation till we prevent torture and impunity, and work for criminalizing disappearance and torture as well as replace existing Torture Compensation Act, 1996. We need to formulate and enforce new Bill Relating to Prohibition of Torture in line with the Convention Against Torture (CAT) and build public campaign for accession and domestication of Optional Protocol of CAT.

The Supreme Court has made landmark decisions on some cases relating to impunity and victim's justice. But these decisions have not been implemented effectively till now. Therefore, it is necessary to carry out campaign for implementation of impunity related verdicts of the Supreme Court. At the same time, it is necessary to file cases (FIR/PIL) on behalf of victims of serious crimes under international law including torture to ensure their access to justice. Dealing with past violence and prosecute perpetrators / emblematic cases of human rights violation, work to formulate a new legislation against impunity, and amendment of existing laws that encourage impunity, alongwith reform in criminal justice and penal system is necessary to end impunity and promote accountability. Ending impunity and promotion of rule of law is possible when we carry out sensitization on international human rights instruments including CAT, Convention Against Enforced Disappearance, Rome Statute of ICC, and reform and formulate new legislation accordingly; build public campaign for accession to Rome Statute and it's domestication in Nepal; combat child recruitment in armed groups and impunity; and address equal representation of women in the judiciary. FOHRID has implemented number of activities covering various specific areas and issues under this theme.

 

1. Impunity Strategy Review Meeting:
Cases of Human Rights Violations The problem of impunity in Nepal is mainly related to the government, political level, political parties, law enforcement agencies as well as armed groups. Ending impunity is the responsibility of the government, ruling system, political leadership, law enforcement agencies and policy makers. However, they have not made due consideration and efforts in this regard. It is impossible to bring the perpetrators under justice system till we defeat impunity. Ending impunity is the prerequisite for protection and promotion of human rights. It is difficult to investigate, prosecute and take action against perpetrators involved in the serious violation of human rights and humanitarian law as impunity has posed a challenge before the state and the criminal justice system. We could not file the perpetrators of the Jana Andolan I and II. Lack of political will power and inadequate legal framework are responsible for this. The existing criminal laws in Nepal are based on traditional criminal jurisprudence. There are provisions in the Muluki Ain and other laws to address the crimes committed at the individual level. But, there is no domestic legal provision to address serious violation of human rights and humanitarian law committed by the state against individuals or citizens. FOHRID, INSEC and ICJ jointly organized a workshop entitled "Impunity Strategy Review Meeting: Cases of Human Rights Violations" at Sauraha, Chitwan on 3 December 2011. This workshop reviewed the current activities and strategies of human rights and civil society in Nepal and recommended strategies for action plan at following three levels:

 

I. Prosecution and litigation against perpetrators involved in human rights violation:
Several problems and hurdles have been seen in the efforts to prosecute perpetrators. Lack of victim centered concept, incomplete coordination and network, lack of trust, lack of protection of the witness, victims and lawyers, lack of awareness are the obstacles for successful prosecution and litigation. The international donor agencies have not focused their attention to this sector. The Office of the Attorney General of Nepal has not played effective role to assist this. The recommendations of the National Human Rights Commission and the court decisions are not implemented. Following strategies must be implemented to address these problems:

  • To prepare detailed manual for empowerment of human rights defenders and lawyers on prosecution and litigation and to conduct training based on it.
  • To empower and expand the Citizen's Task Force to Combat Impunity and Transitional Justice Advocacy Group.
  • Capacity building of human rights organizations, human rights defenders, civil society and journalists.
  • To work for policy and structural reform for protection of those who conduct advocacy against human rights violation including witness and victims.
  • To form litigation group and Rapid Response Team to timely raise the issues of human rights violation and to conduct advocacy and pleading and to make the legal aid agencies more effective.
  • To sensitize political parties and exert pressure on the issue of prosecution and litigation against perpetrators.

 

II. Implementation and follow up of court decisions:
The Supreme Court decisions are not implemented effectively. There is lack of clarity at the policy level about the time limit to send the decision and process to follow up for implementation. In light of these problems, following steps should be taken to implement Supreme Court decisions made against impunity:

  • To make effective the process of speedy decisions and timely information to the concerned parties.
  • To discuss on the need to clearly mention about order and remedies in the decisions.
  • To conduct advocacy to make the decision implementation agency accountable.
  • To monitor agency responsible for decision implementation.
  • To set up a mechanism at the National Human Rights Commission to regularly monitor the issue.

 

Following common action plan is recommended to implement these strategies:

Compilation of court decisions.

  • Research on the status of implementation of court decisions.
  • File contempt of court case against concerned authority for not implementing the court decisions on time.
  • Widely disseminate information through media about non implementation of court decisions.
  • Set up mechanism to monitor implementation status of the recommendations of National Human Rights Commission.
  • Legal and structural reform is necessary for implementation of Supreme Court decisions. The state should pay attention to strengthen decision implementation directorate, make separate legal provisions for decision implementation, update record of decisions waiting for implementation and to take action to resolve them within a set period of time, to make the decision implementation monitoring process effective and institutional coordination for decision implementation.

 

III. Policy strategy for combating impunity:
There is lack of policy uniformity among human rights and civil society in their struggle against impunity. The campaign has been divided as they have failed to develop a common strategy and standard. We have failed to draw attention of the international donor community to effectively intervene at the policy level. Therefore, the workshop recommends following policy and action to be forwarded:

These strategies should be incorporated in the Declaration of the Magnameet and the future struggle of the human rights and civil society against impunity should be strengthened through these strategies.

  • To form a technical working group against impunity at the national level and to empower existing networks.
  • To convince the donor community to cooperate in the struggle against impunity according to the national need.
  • To be based on fact and be objective while conducting advocacy against human rights violation.
  • To be clear on cases and incidents while going for media campaign.
  • To implement declaration regarding human rights defenders.
  • The roles of the human rights organizations including National Human Rights Commission and civil society organizations to ensure implementation of these policies have been identified below:
    • The National Human Rights Commission should play role of catalyst.
    • Focus efforts to clarify government perspective against impunity.
    • Capacity building of human rights defenders.
    • Continuation of struggle against impunity and to form common concept, voice and standard against impunity among human rights organizations.
    • Clarify the concept of stakeholders about international standard against impunity.
    • The funding allocated by the donor agencies for Nepal should be provided to the Nepalese NGOs with priority and the grant should be spent in Nepal among Nepalese communities and organizations. This issue should be brought into discussion at the national level.

 

2. Combating Impunity to Promote Accountability
From April 2009 to May 2010 FOHRID implemented Combating Impunity to Promote Accountability - Project with the financial cooperation from Embassy of Finland, Kathmandu. Major objective of the project was to incorporate impunity prohibition provision in the new constitution and to build a public interest campaign against impunity.

Minimization of impunity, promotion of accountability, guarantee of human rights and strengthening rule of law are the major challenges of present Nepal. FOHRID is active to ensure rule of law for democratic, peaceful and prosperous Nepal by institutionalizing achievements of the April 2006 movement. It is the need of the hour to take effective steps for the management of transitional period and to end impunity prevalent for decades. Nepal has the opportunity to formulate a new constitution to address this need by setting in place an effective criminal justice system to address the root causes of the problems such as impunity and serious crimes under international law. For this, we need to widen the scope of right regarding justice in the new constitution. Within this scope, the constitution should criminalize serious crimes of international concern. We need to establish right of the people to receive legal remedy against the crimes under international law and impunity. This shall open door to address the past incidents relating to impunity.

In this backdrop, FOHRID has been exploring measures through consultation and expert opinion of national and international level to prosecute and punish in the cases defined by international law as crimes through a law having retrospective effect and to seek legal remedy in such offences. In this context, consultation meetings are being held at the regional and national level. Feedback and suggestions received from those programs are submitted to the CA Members and the concerned CA Committees at different phases to determine the provision to prosecute and punish in the crimes defined by international law as serious crimes and to seek legal remedy in such offences and impunity.

 

Achievements of this project
The project made series of recommendations to the CA regarding provision to address impunity and serious crimes of international concern. Following provision was recommended at the final stage:

Right regarding criminal justice:

  • No person shall be punished for an act which was not punishable by law when the act was committed, and no person shall be subjected to a punishment greater than that prescribed by the law in force at the time of the offence. Provided that this shall not hinder prosecuting and punishing in the genocide, war crimes and crimes against humanity by formulating law with retrospective effect and such retrospective effect shall be applicable in the crimes that occurred after BS 2017 (AD 1960) only.
  • Any person shall have the right to obtain legal remedy against impunity or genocide, war crimes and crimes against humanity.

This action sensitized stakeholders to incorporate retroactive provision against impunity and serious crimes under international law in the new constitution. CA Members have realized and expressed that a provision with retrospective effect can be incorporated in the new constitution under right to criminal justice to deal with special types of crimes. The issue of incorporating provision with retrospective effect in the new constitution received impetus for discussion in the Committee for Fundamental Rights and Directive Principles. Leaders of Unified CPN-Maoist expressed commitment to discuss possibility of applying retroactive provision against impunity within their party to determine their party line on the issue.

The project has been successful to raise the issue of ending impunity and promoting accountability at the national level. Despite its limited resources, the project conducted intensive discussions on the jurisprudence of retroactive provision to end impunity. About 900 representatives of stakeholders have been directly sensitized in this issue at the regional and district level outside Kathmandu. This has made the political parties and CA Members more sincere to the issue of impunity.

With the efforts of FOHRID, a provision against impunity (retroactive provision) has been included in the draft of new constitution as additional opinion. CA Member Pradeep Kumar Gyawali of CPN-UML recommended a proviso to the Clause of non-retroactivity as an additional opinion that reads, "Provided that this Clause shall not be deemed to prevent punishment by formulating retroactive law in the crimes such as crimes against humanity, war crimes and genocide." CA Member Ramesh Lekhak of Nepali Congress recommended a separate proviso to the same Clause that reads, "Provided that this Clause shall not be deemed to prevent formulating retroactive law and punishment in the crimes to be punished under applicable international laws." Hence, as the two major political parties have proposed additional opinion with similar motive, there is possibility of achieving this result. However, there is also some risk as it requires continuous pressure and lobbying to get complete success.

The preliminary draft of the Committee for Fundamental Rights and Directive Principles has incorporated in Article 1 Right to Dignified life "Every person shall have the right to live a dignified life." There is no different opinion against it.

Altogether 13 analytical papers were prepared under this project. These papers describe jurisprudence of international criminal justice to address serious crimes under international law and impunity. The efforts made under this project have been documented. Expert opinions presented by major stakeholders on the retroactive provision against impunity have been compiled. The compilation has been published as a book of 360 pages.

 

3. Strengthening prosecution initiative in Nepal

There are legal and structural hurdles in the way of effective prosecution against perpetrators involved in the serious crimes under international law and the criminal cases are being withdrawn unabated. Prosecution is inevitable to address the past violations. Till now, neither any action has been taken against those involved in the incidents of serious crimes under international law nor do the domestic laws have effective provision to stop withdrawal of criminal cases. Government has withdrawn several cases relating to serious crimes. This trend has compelled us to suspect that the Truth and Reconciliation Commission (TRC), if formed, shall also be used for general amnesty. While analysing the present scenario of Nepal, the trend of withdrawal of criminal cases has made the prosecution initiatives fragile.

The government has contributed to increase de facto and de jure impunity by withdrawing criminal cases in the past. Even well-documented cases of serious human rights abuse have not been prosecuted on the basis of existing laws due to a complex interplay of many factors, including political pressure and interference. De jure impunity, in which laws and regulations are either too limited or explicitly provide immunity from prosecution, extends and strengthens the impact of de facto impunity, protecting perpetrators of human rights abuse.

Trend of political criminalization and withdrawal of criminal cases are some of the major causes contributing to increase impunity and placing obstacle to prosecution. This trend is closely associated with immunity to perpetrators as it provides firm ground for amnesty in the future to the past violators. The government has to ensure punishment to the culprit and justice to the victims. Politicization of crimes challenges administration of justice and implementation of law. Withdrawal of the cases relating to the crime of homicide is in a way protecting crime and criminal. It is unfortunate that the Nepalese politics has turned to be a factory to produce criminals. In this way, the criminalization of politics and politicization of crime has deteriorated the situation of impunity and decreased accountability. Withdrawal of criminal cases by the government affects transitional justice process. Continuation of this may result in the general amnesty from prosecution and punishment to the perpetrators pointed by TRC and Disappearance Commission to be formed in the future. Therefore, this action focuses not to allow amnesty to the perpetrators in the future and to avert the situation of withdrawing cases against them. In this context, FOHRID forwarded "Strengthening prosecution initiative in Nepal" in collaboration with UN Office of High Commissioner for Human Rights.

 

4. Citizen's concerns and advocacy on the draft Criminal Code

With several amendments, Muluki Ain of B.S. 1910 is being applied in Nepal as criminal code. So, a new codified criminal law and procedural law is felt necessary for a long time. Considering this, Nepal government has started process to formulate a new law named Criminal Code, Criminal procedural Code, and Criminal Offence (determination and enforcement of penalty) Bill, 2067. The task force formed for this purpose has already submitted its report to the government. The Ministry of Law and Justice has called the citizens to submit their concerns and feedback on the revised draft of the task force. In light of the widespread impunity in Nepal, FOHRID believes that law relating to criminal code, criminal procedure, and determination and enforcement of penalty should be a means to bring the perpetrators to the justice system. FOHRID has expressed its concern over the development of criminal code and relevant procedural law. In this backdrop, FOHRID and the institutions and individuals involved in the Citizen's Task Force to Combat Impunity (CTCI) have initiated advocacy to incorporate provision in the proposed Bill in accordance with the obligations of Nepal based on the international human rights and humanitarian law.

 

5. Initiative to implement Supreme Court decisions

There are exemplary practices in the Supreme Court of Nepal regarding the cases relating to serious crimes under international law and impunity. Number of writ petitions have been filed in the Supreme Court regarding extrajudicial killings, enforced disappearance, torture and sexual violation including rape, and the Court has made several fair judgments on such writs. Unfortunately, the government has not been able to effectively implement such decisions. Impunity has increased alarmingly due to lack of implementation of the decisions and orders of the Supreme Court. Prosecution against perpetrators involved in serious human rights violations has become difficult as the Office of Prime Minister and other concerned Ministries are not being accountable to implement such decisions. This has created a situation where the perpetrators do not have to face prosecution or become liable for their crimes. Therefore, in the context of deplorable implementation status of the Supreme Court decisions, FOHRID has forwarded initiative to explore this situation to intervene for effective implementation of such decisions.

 

6. Citizen's Task Force to Combat Impunity (CTCI) / ICC Accession Campaign

FOHRID has initiated coordination and loose network formation against impunity since 2006. This loose network has been forwarded under the banner of CTCI. More than 53 organizationsand 299 individual are involved in this network and the number of involvement is increasing. Brief report of the activities accomplished by the Task Force from till end of 2010 is discussed in the following paragraphs.

FOHRID implemented "Initiative for accession of Rome Statute to combat impunity in Nepal" in 2010 with the financial assistance from The Federal Republic of Germany/ Embassy of Federal Republic of Germany.

 

Article 98(2) of Rome Statute and Jurisdiction of ICC
The Bilateral Immunity Agreement (BIA) signed by the USA with several countries around the world creates hurdles in the effective implementation of the Rome Statute and violates its major provisions. A justice loving civilized society should not succumb to such agreement. Hence, a robust campaign must be forwarded to oppose the BIAs and demand its repeal as it obstructs effective functioning of the ICC through the misinterpretation of the Rome Statute, Article 98(2). Likewise, Nepal should request US government to withdraw it through exchange of note. Nepal should immediately accede to the Rome Statute of ICC to protect and respect human rights and humanitarian law. Nepal government should not sign any agreement like BIA with any other country as it promotes impunity.

A state party to the Rome Statute cannot sign an agreement with another state against the spirit of the Statute. The ICC has the jurisdiction when the crime of genocide, war crimes or crimes against humanity occur in a state party to the Rome Statute or a citizen of a state party is involved in such crimes. The ICC has authority to investigate or prosecute if a state shows unwillingness to investigate or prosecute with the consent of the court. This authority is a strong guarantee against impunity. This is an effective and robust aspect of the international criminal justice system entrusted to the ICC. In this context, an interaction entitled "Article 98(2) of Rome Statute and Jurisdiction of ICC" was organized by FOHRID and CTCI on 29 November 2010 (2067 Mangsir 13), Hotel Himalaya, Lalitpur.

In the beginning of this program a discussion paper entitled "International Criminal Court, Article 98 (2) and Bilateral Immunity Agreement" was presented. After that, the statement of Mr. William R. Pace, Convener of the Coalition for the International Criminal Court (CICC) was read out. Similarly, the unofficial Nepali translation of the "Agreement Between His Majesty's Government of Nepal and the Government of United States of America Regarding the Surrender of Persons to The International Criminal Court" was read. Kedarnath Upadhyaya, Chairman of the National Human Rights Commission (NHRC) addressed the program as the Chief Guest. Sushil Pyakurel, Former Member of NHRC, Ms. Andrea Arslan, Consul of the Embassy of the Federal Republic of Germany in Kathmandu addressed the program. Nutan Thapaliya, Convener of the CTCI chaired the program conducted by Advocate Raj Kumar Siwakoti, Secretary General of FOHRID as Master of ceremony. Total 95 people representing rights activists, lawyers, journalists, civil society participated the program and expressed their views on the jurisdiction of the Rome Statute and BIAs. This program was accomplished with the funding from the Federal Republic of Germany.

 

Need of accession to the Rome Statute of ICC by Nepal
Four years ago, the then House of Representatives issued a commitment proposal directing the government to accede to the Rome Statute of ICC. However, Nepal has not acceded to the ICC till now. Negative attitude of some political parties on ICC and impunity due to lack of adequate awareness on the issue has obstructed accession to the Rome Statute. The civil society is continuously creating pressure and lobbying for the last one decade to succeed this campaign. In this context, an interaction program entitled "Need of accession to the Rome Statute of ICC by Nepal" was organized to ensure direct consultation between the political leaders/CA Members and international community on 7 October 2010 at Hotel Himalaya, Lalitpur.

The program was held with the round table interaction method that commenced with a warm up presentation by Dr. Trilochan Upreti, Secretary, Office of Prime Minister and Council of Ministers entitled "International Criminal Court: Significance of its Accession for Nepal". Floor was opened for distinguished participants to share their ideas after presentation and speech from dignitaries. Among others, Patrick Vial, Head of Delegation of ICRC, Verena Gräfin von Roedern, Ambassador of the Federal Republic of Germany to Nepal, John Tucknott, British Ambassador to Nepal, Ramesh Lekhak, CA Member of Nepali Congress, Pratibha Rana, CA Member of Rastriya Prajatantra Party, Sita Paudel and Lalbabu Pandit, CA Members of CPN-UML, Kali Bahadur Malla and Ekraj Bhandari, CA Members of UCPN-Maoist, Prof. Kapil Shrestha, Tribhuwan University, Dr. Keshav Jha, former Ambassador expressed their views and suggestions on the occasion. The number of participants was around 50.

There are differences in the political parties regarding whether or not to ratify the Rome Statute. Some of them believe that, if ratified, it can be used against them. Therefore, there is problem in accession and it may take some more time to clear this situation. The issue of ICC is also linked with whether or not to adopt a retroactive provision against impunity in the new constitution. We can either directly ratify to the ICC or make legal provisions through new constitution. UCPN-Maoist agrees that the ICC should be acceded by Nepal. But, they take the possibility of its misuse in the future as a big question. They are not sure that ratification assists to resolve problems and suspect that accession might spoil the country's image rather than improving it. They believe that seeking justice in the international court is acknowledging weak justice system of our country before others. Nepali Congress is explicitly committed to democracy and human rights, and to protect human rights and oppose impunity. The CPN-UML is also in favour of accession to the Rome Statute. However, the commitment of political parties for ICC accession seems to be just their lip service. Such an indecisive situation has created problem. ICC cannot be ratified till the political parties depend upon crime and impunity for their political gain. When this situation prevails, even the ratification shall not bring any positive outcome.

 

Importance of accession to the Rome Statute of ICC by Nepal
Nepal has not acceded to the ICC till now. The poor awareness level of the people, government authority and political parties on ICC and impunity are the hurdles obstructing accession to the Rome Statute. We have to develop political will power and continue pressure from the civil society to succeed this campaign. Adequate public opinion needs to be formed against impunity and in favour of ICC. In this context, an interaction program entitled "Importance of accession to the Rome Statute of ICC by Nepal" was organized by FOHRID in Kathmandu on 31 August 2010. The interaction was held with the round table method that commenced with a warm up presentation. Floor was opened for participants to share their ideas after presentation and speech from dignitaries. Among others, Dr. Alexander Spachis, Ambassador, Delegation of the European Union in Nepal, Anthony Cardon, Head of Coordination and Reporting Unit, OHCHR-Nepal, Robert Godden, Regional Campaign Coordinator/Asia –Pacific, International Secretariat, Amnesty International, Henning Hansen, Charge d' affairs, German Embassy, Dr. Trilochan Uprety, Secretary, Office of the Prime Minister and Council of Ministers, Dr. Neem Chandra Bhowmik, Ambassador of Bangladesh to Nepal, Azizuddin Ahmadzada Panjshiri, Director, Afghanistan, SAARC Secretariat, Gauri Pradhan, Commissioner/ Spokesperson, National Human Rights Commission of Nepal, Prof. Dr. Bharat Bahadur Karki, Attorney General of Nepal, Subodhraj Pyakurel, Chairperson, INSEC/NCICC expressed their views and suggestions on the occasion. The programme was chaired by Nutan Thapaliya, Chairperson of FOHRID and facilitated by Prof. Kapil Shrestha, former Commissioner of NHRC as Moderator. The program was conducted mainly in English language and the speech in Nepali language was summarized by the Moderator in English language. The number of participants was around 65.

Nepal is state party to a significant number of international instruments pertaining to human rights. However, we have not acceded to the Rome Statute of ICC. This makes us feel humiliated in case of human rights commitments from our country. The image of Nepal was very positive in the international community before the days of conflict, but now it is deteriorating. For a long time, efforts have been made to ensure ratification of the ICC by Nepal. There is no disagreement about need to accede to the ICC. Various task forces formed by the government in the past have pointed out this need. The civil society is continuously exerting pressure in this regard. The government and the political parties have expressed their commitments, but nothing significant has happened till now.

ICC accession campaign
Regarding ICC accession campaign, FOHRID conducted various activities including public hearing, interaction, translation, documentation, publication and dissemination of resource materials. Alongwith ICC accession campaign, an important resource material entitled "International instruments developed against impunity" was translated and published in Nepali language. This campaign was successful to exert pressure to the key stakeholders including government and political parties for accession into the Rome Statute. On the other hand, this activity encouraged and enabled non-state actors to demand accession to Rome Statute in an organized way.

Publication of Resource Book on Rome Statute of ICC:
A Resource Book on the ICC entitled "International Criminal Court: An introduction" has been published in Nepali language taking “An Introduction to the International Criminal Court” authored by William A. Schabas as major reference. Total 2500 copies of the book were printed and disseminated among stakeholders. FOHRID translated and published in Nepali language the Rome Statute of International Criminal Court, 1998. CA Member Sapana Pradhan Malla, unveiled second edition of the "International instruments developed against impunity", a compilation of 20 international instruments including Rome Statute of ICC, Elements of Crimes and Rules of Procedure and Evidence of ICC. FOHRID disseminated the publication in bulk to the Office of the Attorney General (450 copies), judiciary (200 copies), Security Agencies including Nepal Army (80 copies), Nepal Police (60 copies) and Armed Police Force (60 copies), National Human Rights Commission (20 copies), Nepal Bar Association (15 copies) and ESP Nepal (200 copies) for use by the judges, attorneys, the security officials and other stakeholders. The remaining copies were disseminated to the Ministries, human rights community, civil society, UN agencies, European Union, development agencies, diplomatic missions, donor community, I/NGOs etc. First edition of this publication was brought out with the financial assistance from the EIDHR/EU and the second edition was published with funding from the Enabling State Programme (ESP) Nepal.

FOHRID held several interaction sessions on the regulatory framework of Rome Statute with the representatives of the concerned ministries of the Government of Nepal, law enforcing agencies and non governmental sector. Likewise, interactions were held at different levels on the need of Nepal's accession to the OPT-CAT and its regulatory framework. These events aimed to sensitize stakeholders on the issues such as need of signature, ratification and implementation of Rome Statute and OPT-CAT, need of a law to check torture and impunity, prosecution against human rights perpetrators, ending torture, eradicating impunity and jurisdiction of ICC, implementation of Rome Statute, CAT and its Optional Protocol, need of law reform to check impunity etc.

FOHRID has been coordinating and facilitating events of interaction, public hearing, demonstration and peaceful sit-in programs on behalf of human rights community demanding accession into the Rome Statute of ICC. Such activities are being implemented under the banner of CTCI, a loose coalition of the human rights community coordinated by FOHRID to combat impunity through accession into the Rome Statute. The government has not acceded to the Rome Statute even after the then reinstated parliament passed commitment proposal to accede to it on 25 July 2006. Therefore, a stronger and more effective campaign is required for accession into the Rome Statute. There is no alternate of accession into the Rome Statute to end impunity in Nepal.

Year long campaign against Impunity
The CTCI unveiled "Year long Campaign against Impunity" on 1 June 2008. Calendar of this campaign was made public on behalf of human rights organizations and civil society on the occasion. Those activities were implemented from June 2008 to May 2009. A demonstration was held in Kathmandu on the issue of Campaign for implementation of the Supreme Court decisions on disappearance. The activities conducted under the year long campaign include Campaign against enforced disappearance, Campaign for ICC ratification, Campaign for implementation of Rayamajhi Commission Report, campaign for ratification of OPT-CAT, study on custodial torture, public assembly and passage of Bill Relating to Torture 2065, Campaign for disarmament, VAW and effective implementation of CPA, respect HR to end impunity, Implementation of recommendations of National Human Rights Commission (NHRC), Campaign for promotion of rule of law, and implementation of court verdicts and democratic reform.

Several events of protest and signature campaign for accession to ICC and combating impunity were held under this campaign. Activities of ICC campaign were implemented in July 2008 under the calendar of "Year-long campaign against Impunity" chalked out by CTCI. Aim of these activities was to create awareness in the people and exert pressure to the government in favour of accession to the Rome Statute of ICC. The activities held in the banner of CTCI are coordinated by different human rights organizations including FOHRID and Amnesty International-Nepal.

 

7. Initiative to combat torture and impunity-project
This project was implemented from January 2007 to December 2008 with funding from the European Commission. Main objective of this project was to build a public interest campaign against torture and impunity for improvement of the state of rule of law, democracy and human rights culture. Activities accomplished in this fiscal year under this project and its reflections can be presented as follows:

Advocacy
Several rounds of interaction, public meeting and demonstration were organized under advocacy. Impact of this action was seen in strengthening struggle against torture and impunity, motivating people to unitedly combat against impunity and realization of the need of a specific law against impunity. The advocacy contributed for public opinion formation against impunity and torture. Compared to the previous situation, the citizens have been more sensitized on the issue of torture and impunity. The general public have started to demand end of impunity. Public pressure has imparted nationwide impact to end impunity. Expansion of the campaign will certainly result in more accountable government. Following table presents a list of stakeholders who were directly involved and benefited from the activities:

Table 3:  Involvement of target groups in the advocacy related activities

#

Activities

Total participants

M

F

Total

1

Public hearing / Mass demonstration

1882

671

2553

2

Interaction / round table discussion

392

89

481

Total

2274

760

3034

Several round lobbying vis-à-vis legislative organ was held as another component of advocacy. The events of lobbying were held on the issues of ratification and accession of the Rome Statute and OPT-CAT, ending impunity and strengthening peace process. Following table gives a glimpse of some lobbying events held so far: 

 

Table 4: Issue and Agencies of lobbying

#

Issue and Agencies

1

Two separate delegations of human rights community met with Bam Dev Gautam, Deputy Prime Minister and Home Minister and Dev Gurung, Minister for Law, Justice and CA Affairs to request them to pass the civil society draft Bill Relating to Torture, 2065 and ratification of Rome Statute of ICC and OPT-CAT. Likewise, Bill Relating to Torture 2065 was disseminated to the Members of CA along with request letter to pass it from the Legislature-Parliament.

2

A memorandum was submitted to the government requesting amendment of the incomplete provisions of the Truth and Reconciliation Commission (TRC). This was held to make the campaign against impunity effective.

3

Lobbying with CA Members for collaboration to ensure "Impunity Free New Nepal". Request letters were submitted to each of the existing 596 CA Members. An interaction with the media on the status of the campaign for ratification of the Rome Statute of ICC was held.

4

Lobbying vis a vis discussion was conducted with the office bearers of NHRC to end impunity and an Action Plan was submitted to take necessary measures and build pressure for ratification of Rome Statute of ICC and OPT-CAT. Agenda against impunity was handed over to the NHRC under lobbying. A list of issues to be incorporated to combat impunity was suggested to the NHRC. The issues suggested to the NHRC were development of political system and will power to end impunity, repeal of domestic laws contributing to impunity, formulation of new law against impunity and legal provision, ensuring fast and empowered judicial administration, stop devaluation of  rule of law and judiciary, revelation of truth and guarantee of justice to the victims, prosecution against those convicted of human rights violation, ending torture and inhuman activities occurring with impunity, creating environment to take responsibility in the serious violation of human rights caused by non state actors, ratification and accession to the international instruments against impunity (Rome Statute of the ICC, OPT-CAT, Disappearance Convention, Convention on the non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, other conventions regarding corruption and other issues), extension of Citizen's Task Force to Combat Impunity and expansion of action against impunity.

5

Submission of request letters to the 8 political parties to ratify the Rome Statute: Separate request letters were submitted to Nepali Congress (Ram Chandra Paudel, Vice-President and Minister for Peace and Reconstruction), Nepali Congress-Democratic (Vice-President Gopal Man Shrestha and General Secretary Bimalendra Nidhi) CPN-UML (General Secretary Madhab Kumar Nepal), C.P. Mainali, Chairman of Bam Morcha, leaders of Nepal Sadbhawana Party (Anandidevi) and Nepal Majdoor Kisan Party to draw their attention to ratify the ICC and OPT-CAT. Lobbying was also conducted with the Members of the Legislature-Parliament.

6

Request letters submitted to Prime Minister and Foreign Minister, and civic lobbying was conducted on the issue of ratification of the Rome Statute of ICC. (Information disseminated through sticker, street drama, interaction, pamphlet, banner, placard, radio program, article, write up etc.)

7

Request letter submitted to the Speaker of Legislature-parliament Subhas Chandra Nembang requesting ratification of the Rome Statute of ICC.

 

Draft legislation / recommendation:
This activity aimed to criminalize torture and recommend an alternate to the existing Torture Compensation Act, 2053 by drafting Bill Relating to Torture, 2065 on behalf of civil society. There was a significant participation of the representatives of government, law enforcing agencies, legal experts, lawyers, journalists, human rights community, civil society, victims, experts and international organizations and institutions who contributed actively from the very beginning to the final stage of the drafting process. Consultation meetings, revision of draft and closed meetings with the experts were held at different phases to accomplish this process. Finally, with the broader participation of all the stakeholders, a consultation was organized in September 2008 to finalize the Bill Relating to Torture 2065.

The draft legislation is based on the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985 and the CAT. After series of consultations, the draft Bill was finalized as a common document of the human rights and civil society. In this way, the Bill Relating to Torture, 2065 was completed with active involvement, consultation and written suggestions of the stakeholders. Efforts of the stakeholders to make torture free new Nepal will be meaningful only when the alternative draft Bill is passed and enforced by the parliament. FOHRID expects continuous cooperation, collaboration and solidarity of all concerned and key stakeholders to make this effort meaningful and to ensure zero tolerance to torture in the new Nepal.

 

Long-term intervention strategy plan of action to implement Rome Statute and OPT-CATwas prepared by accommodating materials relating to awareness creation and action plan for Rome Statute and OPT-CAT. The publication has incorporated two aspects. The first one is basic information regarding Rome Statute and OPT-CAT. The second aspect is a separate action plan for ratification of Rome Statute and OPT-CAT, and a list of activities necessary for their domestication after ratification. Hence, the publication was named "Civic action plan for accession into and implementation of Rome Statute and OPT-CAT." This publication informs stakeholders on the fundamental aspects of Rome Statute and OPT-CAT and the benefits Nepal can gain after ratification of these instruments. The action plan of this publication, printed 2000 copies, has been published in both English and Nepali languages.

 

Publication & dissemination:

Following publications were prepared and disseminated under this project.

List of project produced publications

S.N.

Title of Publication

# of copies

1.

International Instruments Developed against Impunity

2000

2.

An Introduction to International Criminal Court

2500

3.

Bill Relating to Torture, 2065

1200

4.

For Accession and implementation to Rome Statute and Optional Protocol of CAT - Civic Action Plan

2000

5.

FOHRID Human Rights Monitor (Project Bulletin- 3 issues)

4500

6.

Final programme report

500



8 .Ending unlawful killings and impunity project

This activity was implemented as a project from January 2006 to December 2007 with the funding from the European Commission. The project goal was to end unlawful killing and impunity for strengthening the rule of law and promotion and protection of human rights. FOHRID conducted activities of campaign and advocacy to attain this goal. Several round public hearing and mass demonstration, focus group discussion and interaction / round table discussions were conducted under this. This project encouraged both state and non-state actors to be united in the campaign against impunity. Involvement of stakeholders in this activity is presented in the following table:

 

Table 1:  Involvement of target groups in the campaign and advocacy

S.N

Activities

Total participants

M

F

Total

1

Public hearing / Mass demonstration

3882

1271

5153

2

Focus group discussion

465

105

570

3

Interaction / round table discussion

490

117

607

Total

4837

1493

6330

 

Bill Relating to Prohibition of Impunity 2007

Through this project, FOHRID sought to set in place statutory framework to address impunity at the domestic level. For this purpose, FOHRID drafted Bill Relating to Prohibition of Impunity, 2007 on behalf of the civil society. Lobbying was conducted with the legislative organs to pass the bill. Through this process, we learned that the serious crimes under international law can be regulated by formulating law at the domestic level. FOHRID drafted and recommended the Bill accordingly. However, the government and the political parties have not shown will power to pass this Bill as a law.

 

File PIL case against unlawful killings

For the first time in the Nepalese judicial history, FOHRID filed 4 PIL cases in the Supreme Court regarding unlawful killing, which is a serious crime under international law. Among these, the Supreme Court has given landmark judgment in the cases relating to the unlawful killing of Umesh Chandra Thapa (Umesh Chandra Thapa was killed on 8 February 2006 at Ghorahi, Dang district when a team of security force led by Police Inspector Deepak Pokharel fired at a peaceful rally organized to protest Municipal elections called by the then King Gyanendra Shah. Thapa was later, in April 2006, declared as the first martyr of the People's movement II. The Supreme Court on 28 February 2006 denied registering a case against the murder of Thapa. On 19 March 2009, FOHRID filed another case to the Supreme Court with a demand to declare the unlawful order void. The Single Bench of Justice Tap Bahadur Magar declared the earlier verdict unlawful and the Writ was registered on 3 May 2006(Writ no 03328 of the year 2063) and the killing of 35 labourers at Kotbada Airport Construction site in Kalikot District(Government security forces killed 35 labourers involved in the construction of an airfield at Kotbada of Kalikot district on 24 February 2002. The innocent labourers came from Dhading, Tanahu, Ilam, Gorkha, Kavre, Ramechhap, Makawanpur, Solukhumbu, Bhojpur, Morang and locals of Kalikot. Among them, 17 people were from Jogimara of Dhading district. On 27 February 2006, FOHRID filed writ petition on behalf of those 17 victims. In this case, the Supreme Court issued mandamus in the name of the defendant Nepal Government and Office of the Prime Minister and Council of Ministers on 2 May 2008) (Writ no 03448 of the year 2063).  After hearing in this case, the joint bench of Justice Anupraj Sharma and Justice Balaram K.C. of the Supreme Court issued mandamus against the Nepal Government, Office of the Prime Minister and Council of Ministers. The Court order has stated, "On the killing of innocent citizens by the responsible government agency, it is required to provide appropriate compensation through the perspective of victimology to end impunity, as well as take immediate steps to formulate a comprehensive law incorporating provisions including fair investigation and effective treatment and arrange an agency to provide necessary counsel and suggestions in such cases; therefore, it is determined that it is necessary to issue order of mandamus in the name of opponent Office of the Prime Minister and Council of Ministers, government of Nepal.".

The cases (Writ no 0238 of the year 2063) of the killing of 5 youths at Kaule VDC of Nuwakot district and the cases of (Writ no 0239 of the year 2063) (When five Tamang youths were returning from a Ghewa ritual celebrated in death of their neighbour at 1.20 a.m. on 27 November 2002, army personnel of the striking force gunned down them. The victims of the killings belong to poor community. This incident was caused by the army personnel temporarily camped at the locality at Kaule VDC-4, Nuwakot district. FOHRID filed a writ petition in this case at the Supreme Court on 11 September 2006. )killing of Khetraj Lamichhani (a dumb The victim Khet Prasad Lamichhani was physically challenged person. He was dumb that's why could not hear and speak. The Army of the striking force stationed in Nuwakot district was patrolling at Bageshwari VDC and they shot to death Khet Prasad on 8 November 2001. The victim was injured by the bullet, but the army killed him by shooting another bullet after taking him in their custody. FOHRID filed writ petition to the Supreme Court in this case on 11 September 2006.) at Bageshwari VDC of Nuwakot on the basis of the international human rights and humanitarian law in the Supreme Court in 2006. The victims had demanded to issue mandamus stating as follows:

· Reasonable compensation to the petitioner and his dependants family

· Imprisonment and fine to the suspect security personnel and order enforcing army officer

· Enactment of a separate legislation on impunity for awarding compensation to the victims of crimes against human rights and humanitarian law

· Establishment of a task force (if required) for the purpose of making investigation and inquiries into the demand of petitioner in fixing the compensation

 

In the above case filed by FOHRID on behalf of victims' families including Pariman Tamang on the incident of Kaule, the Supreme Court joint bench of Justice Anupraj Sharma and Justice Ram Kumar Prasad Sah stated:

"... As stated in the writ petition, it is justified that the state party murdered the relatives of the petitioners through shooting in an illegal and arbitrary ground according to the ground and reasons mentioned above, so it is justifiable to issue mandamus in the name of defendant Office of the Prime Minister and Council of Ministers to form a high level task force led by and comprised of independent and fair persons to conduct independent investigation of the incident and determination of compensation to provide adequate and respectable compensation to the dependent families of the deceased for the loss and effect of the incident to the dependent families of the incident within 2 months of the receipt of this decision and to provide compensation and relief on behalf of the state to the dependent families of the deceased within 3 months of the submission of the report after administering their assignment by the task force. Besides, it is deemed necessary to issue directive order in the name of defendant Office of the Prime Minister and Council of Ministers to formulate a law relating to compensation to enable the citizens and their dependent families in the future to claim compensation from the state and perpetrator party for the loss and effect borne by the citizens by such illegal and arbitrary activities of the state."

This verdict can be taken as an exemplary precedent for justice to the victims of serious violation of international human rights and humanitarian law. However, The writ petition filed by the survivors of the victims of extrajudicial killings and implementation status of Supreme Court verdict shows that the hope for justice of the victims of the past armed conflict is fading away and the perpetrators are living as victors. The government has not demonstrated any interest to implement this decision. It is a discouraging fact that the Court goes on giving verdict for justice and the government continues to ignore it. This has transformed Nepal into a fertile ground to spread impunity. Justice is complete only after implementation of the court verdict; but, the implementation status is deplorable and the government is not being accountable to improve this situation. This is challenging the trust of people to the judiciary and the state itself. Impunity is being encouraged by such inaction of the state and the perpetrators are able to escape from the justice system. The implementation status of the verdicts is not satisfactory in the PIL cases. It is not encouraging to know that only 35% decisions on the cases of disputes relating to the common citizens are implemented. The court has made number of positive decisions in the cases relating to human rights violation during the past armed conflict, but many of such decisions are yet to be implemented.

Executive agency is responsible and accountable for implementation of the Supreme Court decisions on serious crimes under international law and impunity. Office of Prime Minister, Home Ministry, Ministry of Law are mainly entrusted for this. Human Rights section at the Office of Prime Minister and the Secretary heading it have not been ready to address the Supreme Court decisions regarding serious violation and impunity. The Secretary of the concerned Ministry is accountable for the implementation of the court verdicts within 3 months, but they are hardly accountable to this provision.

 

Study of impunity
Under this project, FOHRID conducted an analytical study of impunity in the context of human rights situation in Nepal. The study entitled "Impunity: concept, problem and diagnosis" is the first systematic study on the situation of impunity in Nepal. A thorough trend analysis of impunity has been carried out which has, in particular, covered the political and legal dimensions of impunity. Study and preparation of report on situation of impunity in Nepal was chosen to prepare an advocacy document to contribute for a long term campaign. It has been expected that the project will lay positive impact on policy formation and the policy makers will work to end impunity in Nepal. Impunity and tendency of escaping from justice in the incidents of gross violation of human rights after 1990 has especially been analyzed from the legal and political grounds. Concept of impunity, meaning, context, international norms and practices developed against impunity, problem of impunity in the context of Nepal and measures for its eradication have been included in the study. The document is descriptive and informative as it has been prepared targeting the stakeholders for a campaign against impunity. It reflects the trends of impunity deeply rooted as a culture in Nepal.

The publication, divided into 10 chapters, is 340 pages long. It has encompassed the issues such as Impunity: Concept, meaning and context; Principles against impunity; Concept of impunity and international context of diagnosis; Principles and standards of action and punishment against human rights violators; Individual criminal responsibility in the violation of international humanitarian law in the non-international armed conflict; Armed conflict, violation against women and ending impunity; Impunity in the Nepalese context; Problem of impunity in Nepal; and Measures for ending impunity in Nepal.

Likewise, FOHRID accomplished compilation, publication and dissemination of important resource materials relating to impunity in 2006 and 2007. Following table gives an overview of the materials published:

Table 2: List of publications and number of copies

S.N

Publications

# of copies

1

Study report of situation analysis on impunity

1500

2

Final Programme Report (Nepali & English)

500

3

Six issues of "FOHRID, Human Rights Monitor"

6000

4

Bill relating to the Prohibition of Impunity

1000

 

 

Press Release

Impunity aggravated by promotion of those alleged of serious human rights violation, failure to prosecute and case withdrawal in Nepal 11 October 2012, Kathmandu, Nepal. Nepal government has failed to bring into justice system and prosecute those who are alleged of inv... Read more
International Justice Day-2012, FOHRID Urges Government of Nepal to ratify the Rome Statute of ICC 16 July, 2012, Kathmandu, Nepal Every year on 17 July the world celebrates International Justice Day (IJD) to commemorate the adoption ... Read more
Nepal: Criminalize torture and end impunity June 25, 2012, Kathmandu,Nepal We are observing June 26, 2012, the UN International Day in Support of Victims of Torture. The expressio... Read more
Appeal for immediate accession/ratification of the OP-ICESCR by Nepal Government 07 May 2012 (2069 Baishakh 22), Kathmandu, Nepal Nepal Government should immediately accede/ratify to the Optional Protocol to the Inte... Read more
Nepal must strengthen prosecution against impunity 12 January 2013, Kathmandu, Nepal. UK authorities arrested Nepal Army Colonel Kumar Lama on 3rd January 2013 from Sussex for his alle... Read more
Appeal to Nepal government to become accountable to respect and protect people's right to life 28 January 2013, Kathmandu, Nepal   Similar to the previous years, people in terai faced severe cold wave this winter also, ... Read more

Internship

Please drop your cv and application on email below:
fohrid@wlink.com.np