The agreement this April to establish a United Nations monitoring mission in Nepal, which was endorsed in a resolution passed at the 61st Session of the U.N. Commission on Human Rights (E/CN.4/2005/L.90), has helped to temporarily pull the country back from the brink. The mission is being established in response to rising demands for protection of human rights in the face of the massive violence that has spread throughout Nepal in recent times, aggravated by the king’s taking of power on February 1.
The fear that human rights violations in Nepal would soon escalate completely out of control stirred a strong response at home and abroad. The concern of everyone has been with how to save the lives and liberty of thousands of people who might otherwise become victims of disappearances, extrajudicial killings, torture and displacement. It has also been with how to stop the conflict between the security forces and Maoist groups from worsening into a catastrophe of Cambodian proportions. The U.N. mission has an important role to play in ensuring that the human rights abuses and conflict be diminished, and conditions created that will allow for democratic process to be restored.
The U.N. mission to Nepal should adopt the new approach to the protection and promotion of human rights suggested by the Secretary General, Kofi Annan, who in his address to the Commission on Human Rights at its 61st Session stated that
“The cause of human rights has entered a new era. For much of the past 60 years, our focus has been on articulating, codifying and enshrining rights. That effort produced a remarkable framework of laws, standards and mechanisms – the Universal Declaration, the international covenants, and much else. Such work needs to continue in some areas. But the era of declaration is now giving way, as it should, to an era of implementation.”
The Asian Human Rights Commission and Asian Legal Resource Centre have for around a decade both pointed to the need for this shift from articulation to implementation, and discussed it in detail through a bimonthly publication now in its fourth year. Above all, both organisations have throughout this time done intensive practical work informed by this approach. This has meant doing detailed studies of human rights violations and their causes at the local level, rather than the type of large-scale studies that have formed the body of human rights work over the last 60 years.
The new era of human rights described by the Secretary General has enormous practical consequences, not least of all in terms of human rights monitoring. Monitoring in order to ensure implementation of rights requires a comprehensive understanding of the due process failures that make human rights violations possible. In Nepal this will be a tremendously difficult job.
Under the April 10 Memorandum of Understanding signed between the government of Nepal and the U.N. High Commissioner for Human Rights the mandate of the mission is to “monitor the observance of human rights and international humanitarian law, bearing in mind the climate of violence and the internal armed conflict in the country, with a view to advising the authorities of Nepal on the formulation and implementation of policies, programmes and measures for the promotion and protection ¡K” (article IV[1]).
If the mission is to succeed, this mandate must be interpreted broadly to cover all aspects of human rights violations, and not be restricted to reporting on specific cases. If investigations are limited to specific incidents of torture, killing and abduction, the non-functioning of judicial institutions as a primary cause of these abuses will be missed. It has been well documented, for instance, that the Nepalese courts are unable to exercise any authority even in response to habeas corpus writs issued for persons believed to be in police or army custody. The police are themselves virtually incapable of investigating even general crimes, let alone those pertaining to rights violations. The prosecution system is under the complete control of the executive. The U.N. mission has an important opportunity to study these systemic failures in detail. If this is not done then investigations into specific incidents alone will be of little significance.
To undertake the kind of detailed study necessary, the U.N. mission will have to engage closely with local people. U.N. operations around the world have typically consisted of outsiders, while local people have been employed only as junior staff and interpreters. The bane of many an operation has been the amateur officials from abroad, obtained through the deeply flawed U.N. internal recruitment system. Most of these persons tend to think of themselves as authorities simply because they are wearing a U.N. hat. If such persons get control of the mission in Nepal it will mean that the Nepalese, who are very well aware of their problems and stand ready to contribute, will withdraw from genuine participation. The operation will then be deprived of its only useful source of information and knowledge.
The U.N. operation in Nepal should be managed through genuine and meaningful consultations with sympathetic and interested Nepalese, both inside and outside the country. There are many talented and concerned persons with much to contribute. Engaging them must be a prime concern for the mission. While bureaucratic and administrative obstacles within the U.N. may limit possibilities for direct recruitment, there are ways to overcome these. The mission should consider taking on many local persons as consultants, and setting up the means for routine input from others. If informed and interested Nepalese are made confident in the mission it will do much for the prospects of human rights in the country.
A U.N. mission of this sort is a rare and short-lived opportunity to make a real difference to the lives of millions. The possibility for a lasting contribution depends very much on how the mission gets started. In the coming few months, people in Nepal and abroad will be watching keenly to see how the mission performs. If early steps are taken to inspire hope, they may release the energy needed for the difficult task of protecting and promoting human rights in Nepal. The Asian Human Rights Commission for one will be watching hopefully and informing regularly on the mission’s progress.
