A Joint Statement by the Asian Human Rights Commission and Advocacy Forum
On 25 January 2011, the state of human rights in Nepal was assessed for the first time under the United Nations Human Rights Council’s Universal Periodic Review. 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.” During the sessions, peer countries engaged in a dialogue on key human rights issues such as torture, forced disappearances, security of human rights defenders, discrimination, freedom of expression, and the overarching problem of impunity. They made comprehensive recommendations to the government of Nepal to strengthen its approach to human rights. The outcome report of the UPR will be adopted at the 17th session of the Human Rights Council on 7 June. Prior to that event, Advocacy Forum and the Asian Human Rights Commission offer their comments on some of the central issues raised during the UPR and call for the prompt and thorough implementation of the recommendations accepted and a serious reconsideration of the recommendations rejected or simply noted as a basis for a comprehensive, credible and effective approach to human rights in Nepal.
Advocacy Forum and the Asian Human Rights Commission wish to express their concern toward the rejection of recommendations of the Universal Periodic Review urging the government to take necessary and immediate action to put an end to the impunity surrounding allegations of extrajudicial killings in the Terai. Although the issue was raised as a subject of concern by a number of peer countries taking part in the review, the government of Nepal refused to acknowledge the seriousness of the issue, suggesting that it is unlikely to take appropriate action. At the eve of the adoption of the final report of the UPR on Nepal, we urge the government to review those crucial recommendations and commit to implement them in good faith, in a transparent and verifiable manner.
Although human rights bodies have acknowledged that the occurrence of extrajudicial killings has undoubtedly reduced since the end of the conflict, the persistence of such allegations in the Terai and the absence of credible investigations surrounding them remain an issue of serious concern. In 2009 alone, 12 possible incidents of extrajudicial killings by Nepalese security forces were documented by Advocacy Forum, claiming the lives of 15 people and injuring 8. Advocacy Forum’s report “Torture and Extrajudicial executions amid widespread violence in the Terai” analyses that “Each of these killings is presented by the security forces as killings during “encounters” between the police and the alleged members of these groups. However in none of the incidents is there any indication that members of the Nepal Police or Armed Police Forces were killed or injured. Instead, in several cases, witnesses have confirmed how they saw the victims initially being taken into custody and later saw them being deliberately killed or that they heard shots soon after they saw the police take away the arrested persons with their hands tied.” In some of the cases documented, witnesses have also confirmed seeing the police shooting at an unarmed victim, and later disposing weapons around the victim’s body to make the death appear like the outcome of an encounter. Similarly, the Office of the High Commission for Human Rights in Nepal indicated that between January 2008 and June 2010, it had “received reports of thirty-nine incidents, resulting in fifty-seven deaths, which involved credible allegations of the unlawful use of lethal force.”
The case of Sahid Ullah Dewan, alias Adbul, shot in broad daylight by three policemen from Police Post, Bethary, Rupandehi District on 26 October 2009 illustrates at length the seriousness of the issue and the lack of government action to bring it to an end. The police claim that the victim was killed in an encounter and that they shot him in self-defence. However, several eye-witnesses assert that the victim was unarmed and shot in cold blood in a staged manner. Witnesses further asserted that they saw police officers placing pistols around the dead body. The District Police Office, Butwal, refused to register an FIR in that case. Despite of an order from the Appellate Court, Butwal, Rupandehi to promptly register the FIR and initiate an effective investigation, no investigation has been conducted so far. It has surfaced that the Public Prosecutor Office, Rupandehi is trying to withdraw the case, putting an end to investigation and preventing prosecutions and has sought approval from the Attorney General’s office in that regard. This is in disregard of an order from the Appellate Public Prosecutor Office to investigate that case.
As part to the International Covenant on Civil and Political Rights, Nepal has an obligation to protect the right to life of all, to ensure that no one shall be arbitrarily deprived of his life and to ensure that those who had such rights violated have access to an effective legal remedy. Nepal has therefore a subsequent obligation to ensure that all case of use of lethal force by security forces are investigated by an independent and impartial body to determine the circumstances of the killings and undertake prosecutions against the state agents found to have illegally used lethal force against individuals which did not pose serious threats to their life.
Nevertheless, during the UPR process, the government has appeared unwilling to take concrete commitments to effectively address extrajudicial killings, in spite of its repeated lip-service to end impunity. Of particular concern is the government’s rejection of a Czech Republic recommendation to implement the recommendations included in the OHCHR’s investigative report and its indication that it objected to the findings of the report in its totality. AF and the AHRC take exception of that turn down as it denotes the government refusal to acknowledge the seriousness of the issue and to commit to concrete, specific and accountable measures to bring it to an end.
In response to recommendations respectively made by Japan and Hungary, the government indicated that it was already taking “necessary measures for the prevention” of extrajudicial killings, “ensuring swift and fair investigations on alleged misconduct by law enforcement authorities” and “ensuring the delivery of justice regarding these serious human rights violations”. On the contrary, the cases documented indicate that the police almost always refuse to file First Information Reports at the demand of the family and to launch investigations into the circumstances of the killings. Court orders and National Human Rights Commission recommendations to investigate the circumstances of the killings are disregarded. When investigations are launched, they fall far from being independent, as they also involve police officers, sometimes from the same police station as those under investigation, thereby creating a direct conflict of interest. As shown in Dewan’s case, witnesses and victims’ families regularly fall prey to intimidations, threats and pressures from the alleged perpetrators. AF and ALRC are of the opinion that the current state of lack of investigation into allegations of extrajudicial killings accounts for a deep-entrenched climate of impunity which encourages further abuses and contribute to the degrading security climate of the Terai. We therefore urge the government of Nepal not to settle for the current state of investigation of allegations of extrajudicial executions in the Terai in Nepal, but instead to commit to develop mechanisms to guarantee thorough and independent investigations.
In light of the above, AF and the ALRC call upon the government of Nepal to accept the recommendations formulated by Denmark to “Investigate credible allegations of extra-judicial killings and introduce an independent complaint mechanism on the conduct of the security forces”, which is currently being examined. In a context of regular police refusal to file FIRs, collusion of interests in investigations, allegations of police cover-up of the incident, we are of the opinion that it is only with such an independent oversight body that investigations can be considered credible and effectively guarantee the right to redress of the victims’ families.
The government should also take concrete and specific commitments to ensure that the outcomes of such investigations should lead to legal prosecutions against the perpetrators and accept an Italian recommendation in that sense. Similarly, the government of Nepal is urged to accept the Italian recommendation to accept the request for a visit by the Special Rapporteur on extrajudicial, summary or arbitrary execution, which would contribute to lift the veil upon the current extent of extrajudicial killings in the Terai.
The recommendations related to concerns of extrajudicial killings formulated during the UPR process if accepted and seriously implemented by Nepal would form a framework to develop accountability for all the allegations of excessive and unlawful use of force by security forces in the country and would undoubtedly play an important part in the stabilisation and security of the Terai region, as well as develop trust between the state and the people. We therefore urge the government of Nepal to accept those recommendations and to commit to implement them promptly, transparently and in good faith.
Advocacy Forum and the Asian Human Rights Commission will continue to closely monitor the state of implementation of the UPR recommendations in Nepal.
