FOR IMMEDIATE RELEASE
AS-203-2006
August 31, 2006
A Statement by the Asian Human Rights Commission
NEPAL: Prosecute acting Army Chief and remove the Army Act’s machinery of impunity
The Asian Human Rights Commission is gravely concerned by the lack of credible action being taken by the authorities in Nepal to address the culture of impunity that has accompanied the endemic violations of human rights in the country. The peoples’ democratic movement in April 2006 that brought about historic political changes has been heralded as ushering in a new era in Nepal, in which it is hoped that conflict, gross violations, violence and tyranny will be replaced by security, democracy and the respect for human rights. A fundamental requirement for building a stable and successful future for Nepal is the establishment strong, accountable and transparent institutions of the rule of law that can deliver justice.
Impunity is the main barrier to the creation of such a future, and yet there is little to indicate that the government is taking adequate measures to prosecute the perpetrators of gross violations in the country’s recent, bloody past. In fact, there are several worrying developments that indicate that the authorities are sacrificing justice for political expediency. These include provisions in the draft Army Act, which give blanket impunity to members of the armed forces, as well as the appointment of an acting Army Chief who has allegedly been involved in gross human rights and humanitarian law violations in recent years.
Acting Army Chief accused of gross violations
The government of Nepal Government has appointed army Lieutenant General Rukmangat Katuwal to the post of acting Army Chief. He is currently replacing incumbent Army Chief, Pyar Jung Thapa, who is on leave and is set to retire on September 9, 2006. Mr. Katuwal is himself due to retire in the near future, but his current appointment has led to suggestions that he may instead be offered the Army Chief position. It is alleged that gross human rights violations were perpetrated while Mr. Katuwal was the regional army chief in Nepalganj, in command of the Mid-Western Divisional Headquarters from 29 December 2003 to 10 September 2004. During his tenure, the mid-western part of the country experienced systematic and gross violations of human rights.
A list of alleged violations that took place under Mr. Katuwal’s command, provided by local organisations including Advocacy Forum, can be found here. The allegations include the use of torture, the launching of aerial attacks that result in the killing of civilians, extra-judicial executions of Maoist insurgents as well as civilians, the burning down of houses, forced disappearances, death threats to journalists attempting to cover incidents as well as the killing of one journalist. In several instances, the killing of civilians is blamed on “crossfire” or encounter incidents
An example that illustrates the grave nature of the alleged abuses is the case of 18-year-old girl Junkiri Thapa of Kalika VDC-4, who was reportedly arrested by the security forces on March 17, 2004, in Padnaha VDC-9, Bardiya District. She was reportedly forced to carry a spade to a local nursery and to dig a pit in the ground. She was then executed and buried in the pit that she had been forced to dig.
Mr. Katuwal is under investigation by a High Level Probe Commission that was established by the government in the wake of the April peoples’ movement. The commission is only mandated to investigate the cases of human rights abuses that occurred since February 1, 2005 (the date on which the King of Nepal claimed absolute authority over the country, dismissing parliament). The High Level Probe Commission is only investigating Mr. Rukmangat Katuwal’s role with regard to abuses that occurred during the April 2006 popular uprising. It is alleged that he had played key role in ordering the suppression of demonstrations and the human rights abuses that accompanied the security forces actions at that time. The commission in question does not have the mandate to investigate the numerous allegations of other grave human rights violations for which Mr. Katuwal is reportedly responsible, as they occurred before February 1, 2005.
The appointment of Mr. Katuwal is an indication of the government’s failure to tackle the question of impunity of members of the Nepal Army. In appointing an official to the top military job despite the fact that he is under investigation for past wrongs sends a dangerous signal to all past perpetrators that they will also continue to enjoy impunity and can even be promoted. In doing so, the government has also failed to create a deterrent for future violations. It is vital that the authorities immediately remove Mr. Katuwal from the position of acting Army Chief, ensure that he is not given the post permanently, and guarantee that all allegations of human rights violations purported to have taken place under his command are thoroughly and impartially investigated by an independent body. If members of the security forces under Mr. Katuwal are found to be directly responsible for the alleged violations, they should be tried under the laws of Nepal and in accordance with international human rights laws and standards. Under the principle of command responsibility, Mr. Katuwal should also be held accountable and prosecuted.
Blanket impunity for security personnel must be removed from draft Army Act
The fact that Mr. Katuwal has been appointed as acting Army Chief is an individual example of the impunity that pervades Nepal. This problem is not reserved to individual cases, but rather, is enabled by a machinery of impunity within Nepal’s system. A key example of this are the provisions contained within the proposed draft to amend the existing Army Act. These must be removed, as they continue to ensure, or even expand, the blanket impunity currently enjoyed by members of the security forces. The provisions in question are to be found in Sections 13, 21, 54, 58, 61, 62, 90, 93, 105, 110 of the draft document that is being prepared to replace the 1959 Army Act.
Under Section 21 of the draft document, despite whatever other laws prevail in Nepal, any member of the security forces cannot be prosecuted in any court for any actions taken while ‘fulfilling his duty’, even if he has caused the death of or severe injuries to another person. This amendment to the 1959 Army Act will ensure and reinforce the impunity with which members of the security forces can act. Similarly, Section 26 ensures that there cannot be an appeal against decisions by military courts, as it precludes the citizens of Nepal from having the right to seek justice in civil courts and challenge unsatisfactory decisions made by the military courts and authorities. Under Section 71 (2), military courts are to be held in closed hearings unless otherwise ordered by the court, which will lead to the continuing lack of transparency of the armed forces and their actions.
In addition, Section 13 of the proposed Army Act deals with the disqualification of persons from serving in the military, but it fails to include necessary human rights record safeguards. Any appointment to a position within the military, from officer to Army Chief, should be dependent on the individual’s human rights record and should be subject to a “No Objection Letter” from the National Human Rights Commission. Furthermore, the appointment of the Army Chief should only be made following parliamentary approval. Any armed forces personnel involved in corruption should be investigated and punished by the Commission for Investigation of Abuse of Authority (CIAA). The establishment of a public audit system is urgently required in order to ensure accountability and transparency with regard to the financial activities of the military. The other Sections listed above also provide further barriers to justice and reinforce impunity and must therefore be removed from the draft document.
Inhuman treatment and violations of human rights by military personnel involving civilians should be exclusively tried in civilian courts. This will help combat partiality and impunity. Military courts should only be involved in internal military matters. Military obstruction to investigations by civil authorities should be punished, with a new law required to deal with such issues.
Prior to the popular uprisings in April 2006, there were increasing questions being raised concerning the participation of Nepal Army personnel in UN peacekeeping forces. Unless the provisions that engender impunity within the amended Army Act are removed and unless the perpetrators of human rights violations are brought to justice, Nepal Army personnel should no longer be able to serve in international peacekeeping forces.
The authorities have the opportunity to take immediate action to show their intention to improve the situation, by removing acting Army Chief Rukmangat Katuwal from his post. Furthermore, all of the long list of allegations concerning his involvement in human rights violations must be investigated thoroughly, without restrictions, by an independent body. If found guilty, Mr. Katuwal must be punished in line with domestic law and international laws and standards. In addition, the draft Army Act must be amended to remove all provisions that lead to the continuation of impunity, and to add safeguards to tackle the issues of corruption, a the lack of transparency and appointments of persons with dubious rights records. Without such actions, the authorities will be failing to live up to the expectations of the people of Nepal following the historic political changes in April 2006, and will become complicit in any future abuses by members of the Nepal Army.
