The Nepal Army announced on 14 July that an internal inquiry had found Major Basnet ‘innocent’ of the torturing to death of Maina Sunuwar.
The details of the enforced disappearance, torture and killing of this 15-year-old girl while in army custody triggered the indignation of the Nepalese civil society and the international community. The continuous struggle by her parents to know the truth about the fate of their daughter and to get justice has therefore received overwhelming support. In spite of this continuous pressure, the Nepal Army is still resisting attempts to introduce accountability within its ranks and the civilian justice institutions have so far failed to make the Army abide by its rulings.
On 17 February 2004, fifteen-year old Maina Sunuwar was arrested from her home by 15 personnel of the then Royal Nepalese Army. They were looking for her mother who had reported the gang rape and killing of her niece by security personnel earlier that month. In spite of the army’s initial denial and the contradictory statements given since then, evidence and testimonies have indicated that the girl was tortured to death in detention in order to force her to confess she was a Maoist. She was beaten, held face down in water and subjected to repeated electric shocks. Before the clandestine burial of Maina’s body her corpse was shot to make it appear that she had been killed while trying to escape.
The initial reluctance of the police to investigate a case involving the army, the indifference of the government and the open hostility of the army to have its personnel brought before civilian courts have continuously hampered the progress of the case and the accountability of the army. On 8 September 2005, a Court Martial held that three military personnel were guilty only of not having observed the correct procedures in the disposal of her body. No one was convicted for the torture and murder. This judgement was constantly challenged by internal and international voices and on September 18, 2007 the Supreme Court ordered the civilian authorities to carry out investigations within three months and to prosecute the perpetrators. The District Court of Kavre subsequently issued an arrest warrant against four military officers, Major Niranjan Basnet, Colonel Bobby Khatri, Captain Sunil Prasad Adhikari and Captain Amit Pun on January 31, 2008. To date, these warrants have still not been executed.
In a benchmark statement on September 13, 2009 the District Court of Kavre ordered the Nepal Army Headquarters to immediately proceed with the suspension of Major Basnet and to submit all the files containing the statement of the people interviewed by the Military Court of Inquiry. Major Basnet was the only one of the accused still serving at that time and had been selected to serve in an UN peace-keeping mission in Chad. Upon learning the seriousness of the allegations pending against Major Basnet, the UN repatriated him from Chad, casting hopes that he would be consequently arrested and prosecuted upon his arrival in Nepal. Upon his arrival at Tribhuvan International Airport the military police arrested him committing to his presentation before the court the next day. This did not happen.
In that context, last month came the announcement that Major Basnet had been found innocent by a military internal investigation in continuance of the position that the army has adopted since the beginning of the case. During the army inquiry, Basnet reportedly admitted that Maina might have died due to the interrogation methods used: pouring of water and electroshocks and further admitted his direct participation in the covering-up of her death. Other eyewitness evidence during the inquiry has confirmed his direct involvement in the interrogation sessions. Despite of that, the Army Court of Inquiry gave him absolution on 14 July declaring that the army had been acting against a common enemy and by the same token harshly condemning the UN decision to repatriate him “against all international norms and regulations”. This decision was endorsed by the Defence Ministry who had repeatedly expressed its commitment to protect the accused from prosecutions.
In addition to the lack of credibility the repeated and illegal attempts of those at the army headquarters to hamper the prosecutions of their personnel bring to this decision, the legal reasons the army and the defence ministry put forward to justify the absolution are groundless. They hide behind the principle of double jeopardy, arguing that Major Basnet had been given a clean chit in 2005 by the Court Martial. This is eluding to the fact that not only was the earlier judgement the result of non-transparent and non-independent investigations but also that military courts do not have jurisdiction in cases involving murder and disappearance of civilians, both in internal and international norms. The 18 September 2007 Supreme Court decision to order that the case should be handed by Kavre District Court has already dealt with the issue of double jeopardy and jurisdiction of civilian courts.
Internationally accepted norms and standards also mandate that cases of disappearance fall under the jurisdiction of civilian courts. This was reasserted by the UN Working Group on Enforced Disappearances: in its December 2009 report. In the section regarding Nepal, it reminded the government that the UN Declaration on the Protection of all Persons from Enforced Disappearances specifically states that persons alleged of having committed acts of enforced disappearances “shall be tried only by the competent ordinary courts in each State, and not by any other special tribunal, in particular military courts” (art. 16.2).
The 2006 Comprehensive Peace Agreement includes provisions in which both parties have ascertained that ‘they will not protect impunity and along with it, the rights of the people affected by the conflict and torture and the families of the people who have been disappeared will be safeguarded’ (Article 7.1.3). Nevertheless, the government’s inaction in tackling the issue of conflict-related human rights violations and taking action against the institutions that protect the perpetrators, despite of repeated lip-service paid to it, has directly resulted in victim’s family being denied justice and perpetrators getting away with their crimes. This fuels the perpetuation of a vicious circle, in which the unaccountability of past human rights violations hampers the ability and willingness of the state institutions to restore the rule of law and ultimately results in encouraging the continuance of human rights violations.
The enormous attention brought to Maina Sunuwar’s case and the steps which have been so far taken have made it an emblem of the struggle the victim’s families are now facing to get justice. It raises hope that this case may be the one which can symbolically break this vicious circle of impunity, restore the rule of law in Nepal and the independence of the judiciary and open the path to justice to the thousands of anonymous victims who have faced similar violations during the conflict.
The AHRC therefore urges the government of Nepal to show its commitment to the respect of human rights by ordering the army to hand over Major Basnet to the police. Sanctioning all those involved with interfering with the due course of justice is also required to reassert the absolute necessity to respect the principle of independence of justice for a functioning democracy. Instead of accusing those who want to hold accountable the murderers of a fifteen-year old schoolgirl of wanting to discredit the army, the Nepal Army and the Defence Ministry should realize that their credibility both at internal and international levels will be further damaged if they persist in protecting the criminals within their ranks. They should immediately abide by the civilian court orders and hand over the accused to the police. The international community, especially the countries which have resumed their military aid to Nepal, have a wide range of tools which they can use to uphold the pressure on the government to make sure the issue is not crossed out from the agenda.
For further information concerning the details of this case, please see Urgent Appeal UAU-004-2010 and statement STM-247-2009.
