NEPAL: Nepal urged to accept and implement UPR recommendations and end impunity

January 27, 2011

A Statement by the Asian Legal Resource Centre

NEPAL: Nepal urged to accept and implement UPR recommendations and end impunity

(Hong Kong, January 27, 2011)

On Tuesday, Nepal’s human rights record was reviewed for the first time under the United Nations (UN) Human Rights Council’s Universal Periodic Review (UPR). The UPR process was established by the UN General Assembly on 15 March 2006 through resolution 60/251 to “review the fulfilment by each State of its human rights obligations and commitments.” The procedure assessed Nepal’s compliance with its international obligations to protect and promote human rights.

The UPR review, which represents an important opportunity to scrutinize the challenges Nepal faces in upholding human rights and strengthening its rule of law framework, was conducted on the basis of three reports: a report by the government of Nepal; a report by the UN’s Office of the High Commissioner for Human Rights (OHCHR) comprising information and recommendations by United Nations mechanisms and experts; and a report compiled by the OHCHR summarising the input by other stakeholders, including civil society organisation and the National Human Rights Commission.

The ALRC welcomes the dialogue held, notably the many questions raised by States concerning key issues such as torture, forced disappearances, gender- and caste-based discrimination, human rights defenders, freedom of expression, weakness of national institutions and legislation, and the overarching problem of impunity. The Government of Nepal now has the primary responsibility to implement the recommendations made as part of the review. As part of the UPR process, the government will now decide which recommendations it accepts and those it only “notes.” The ALRC strongly urges the government to accept and implement the recommendations made concerning these key issues, if its approach to human rights is to have any credibility.

During the review, the government of Nepal declared its full commitment to “establishing constitutional supremacy, ensuring the rule of law, good governance and human rights and guaranteeing the fundamental rights enshrined in the constitution of Nepal.” It added that, “Addressing impunity entails two aspects: addressing the past and maintaining the rule of law at present. The government is fully committed to work on both fronts.” The ALRC welcomes the government of Nepal’s commitment to tackle impunity and expects that this commitment will be followed by concrete steps in line with the recommendations made during the course of the review and international human rights laws and standards. The ALRC cautions that similar commitments have been made in the past by the Government of Nepal, but have remained unfulfilled to date. It must be noted that the ALRC is seriously concerned by the Nepalese delegation’s apparent reluctance to acknowledge some human rights violations during the UPR review, as will be seen below.

The ALRC and Nepalese NGO Advocacy Forum submitted a joint report to the UPR on 5 July 2010, which can be found here, along with a background document found here. The report focused on the impunity which persists for conflict-related and ongoing abuses, which have not been effectively investigated or prosecuted, as well as on the failure of the institutions of the rule of law to protect Nepal’s citizens. The report recommended that addressing the problem of impunity should be the prime focus of the UPR and action by the government of Nepal. It pointed to the institutional weaknesses of the judicial system, the lack of criminalization of certain human rights abuses such as torture, enforced disappearances and caste-based discrimination, as well as the absence of the right to effective remedy, which, together, greatly hamper the realization of the fundamental rights enshrined in the 2007 Interim Constitution. The report urged the Working Group on the UPR to consider as a priority under the UPR, issues such as the breakdown of the rule of law and the increased insecurity in the Terai region, forced disappearances, endemic torture, extra-judicial killings by security forces, persisting caste-based discrimination, gender-based violence, the vulnerable situation of human rights defenders, and the inability of the State to respond to such abuses.

During the review, questions and recommendations raised by a number of governments during the three-hour long UPR session reflected many of these concerns. The ALRC welcomes this and urges the Government of Nepal to accept the urgent need for it to address these serious issues and take appropriate action as a result.

Concerns about persisting impunity for past and ongoing abuses was repeatedly raised by delegations, including those from Japan, Czech Republic, Sweden, South Korea, France, Germany, the United Kingdom, Norway, Hungary, the Netherlands, New Zealand, Denmark and Switzerland. In questions submitted in advance to the government of Nepal, France had, for instance, said that it was “deeply preoccupied by the persistence of impunity enjoyed by the alleged perpetrators of numerous grave human rights violations committed during and since the conflict,” and recommended during the session that, “the decisions of the judiciary taken in this respect should be fully respected by all institutional actors especially the army and the police forces”. Norway recalled that addressing impunity is fundamental to foster peace, democracy and stability. In questions in advance, the Czech Republic stated that “failure to act on human rights abuses undermines respect for the rule of law” and Canada underlined that “addressing abuses committed by all sides during the decade long conflict and post conflict period in Nepal is an important element of transitional justice”.

Several States, such as France, Spain, the UK and the United States, inquired about progress in establishing the transitional justice mechanisms included in the Comprehensive Peace Accord, namely the Truth and Reconciliation Commission and the Commission on Inquiry into Disappearances, and called for the criminalization of enforced disappearances. Norway inquired about measures to protect the police and justice system from political interference and to ensure that suspects accused of serious human rights abuses during the conflict are handed over to the police for proper investigation.

The need to strengthen the National Human Rights Commission as an independent and autonomous human rights body and to implement its recommendations was noted by several delegations, including Canada, the United States, France, India and Norway.

Allegations of misconduct by law enforcement authorities, qualified as “disturbing” by Japan, have also been a serious concern. The issue of the systematic use of torture was raised and the government was asked by several countries about its intention to introduce legislation to criminalize torture in line with international standards. Several delegations called for the effective investigations into all allegations of torture. Furthermore, several States expressed their concerns about allegations of extrajudicial killings in the Tarai and asked what measures were being taken to investigate them and to implement the recommendations of the OHCHR to establish an external oversight mechanism to investigate allegations of human rights abuses by security forces. In questions submitted in advance, the Danish delegation underlined the fact that “credible investigation of alleged human rights violations of security forces is an important part of strengthening the rule of law”. The Czech Republic also urged the authorities to “support and protect witnesses as well as victims and their family members” in the investigation of allegations of human rights violations.

The persistence of gender- and caste-based violence and discrimination at all levels of Nepali society were also raised several times and the government was requested to explain what actions it is taking to address these problems, including with regard to: the levels of implementation of the Caste-based Discrimination and Untouchability Crime Elimination and Punishment Act and the National Dalit Rights Commission Bill; the investigation of allegations of caste-based discrimination; and the strengthening of the National Women’s Commission and National Dalit Commission.

Obstacles to the freedom to speech, the vulnerability of journalists to threats, attacks and harassment, as well as the precarious situation of human rights defenders, were also repeatedly raised during the review. The Czech Republic, the United Kingdom, Norway, France and the United States asked for improved protection of human rights defenders and journalists through the launching of proper and impartial investigations of all allegations of threats and harassment against them.

These issues have been at the centre of the concerns of the civil society in Nepal for a long time. They all deeply impact the democratisation and peace process in the country. Now that they have been raised in the international arena as part of the UPR, it is the Government of Nepal’s responsibility toward its citizens and the international community to respond by properly addressing these issues.

Of grave concern has been the government of Nepal’s denial of the reality of human rights abuses during the review. For example, one of the government delegates asserted that there is no systematic torture in Nepal and that “there are sufficient constitutional and legal safeguards for the prevention of torture in Nepal.” Independent international and national experts and observers have documented that the opposite is true: torture is still used as a common tool by the police as part of interrogation procedures, while the lack of legislation enabling the criminal prosecution of alleged perpetrators of torture has engendered systemic impunity concerning this grave violation of rights. Similarly, the ALRC is seriously concerned by the government’s reluctance to acknowledge the existence of human rights violations committed by the security agencies, including the Nepal Army, which it claimed during the review was a “source of Nepali democracy”. The delegation to the UPR stated that that there was already a “zero tolerance” policy toward “isolated” human rights violations committed by the security agencies. This is a complete denial of the reality on the ground, where not a single perpetrator of serious human rights violations committed during and since the conflict has faced prosecution. The government delegation also kept silent over other crucial issues, such as the need to protect the work of human rights defenders and the freedom of expression of journalists.

The Asian Legal Resource Centre therefore urges the Government of Nepal to acknowledge the reality of these persistent abuses and recognize its responsibility in addressing them. The Government is urged to accept the recommendations made concerning the issues highlighted above and commit to take measures to implement them in good faith and in a prompt, transparent and verifiable way.

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About the ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at the local and national levels throughout Asia.

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The Asian Legal Resource Centre (ALRC) works towards the radical rethinking & fundamental redesigning of justice institutions in Asia, to ensure relief and redress for victims of human rights violations, as per Common Article 2 of the International Conventions. Sister organisation to the Asian Human Rights Commission, the ALRC is based in Hong Kong & holds general consultative status with the Economic & Social Council of the United Nations.

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