TORTURE: ASIAN AND GLOBAL PERSPECTIVES | JUNE 2014
VOLUME 03 NUMBER 03
PAPER – TORTURE IN NEPAL
CONFLICT VICTIMS STILL AWAIT JUSTICE
by MANDIRA SHARMA
THE use of torture, and the impunity for those involved in it, is a major hurdle in promoting human rights and rule of law in Nepal. Thousand of victims suffering from torture during Nepal’s conflict (1996-2006) continue their quest for justice and hope for reparations. During the conflict, torture was widespread. Thousands and thousands of people were subjected to illegal arrest, detention, torture, killings, disappearances, and sexual violence, among other violations. The whereabouts of more than 1,500 people are still unknown and their families continue to suffer from pain and anguish, not knowing the fate of loved ones.
Recently, the government enacted a law to set up Truth and Reconciliation Commission (TRC) and Commission of Enquiry on Disappearances (COID) with the objective of addressing the atrocities committed during the conflict. This article analyses the TRC Act of Nepal and exposes the false promises of providing justice and reparation to the victims of torture of Nepal’s internal armed conflict.
Torture in Nepal predates the conflict. Historically it was used as a form of punishment. Use of torture as a form of punishment for lower castes was especially common. It has also been used as a tool of investigation in the criminal justice system, to destroy the reputation of political opponents, and to spread terror – the latter seen time and again during the internal armed conflict.
Though Nepal’s 1990 Constitution prohibited torture, it continued. The UN Committee against Torture and the UNSR on torture, among others, continued to raise concerns about the widespread practice of torture in Nepal. More recently, the Committee against Torture has found that torture remains widespread and systematic in Nepal.
Nepal has a Torture Compensation Act, which does not criminalise torture. It provides for compensation to the victims up to USD $1,000 if a court finds a person has been subjected to torture. The Supreme Court of Nepal issued a directive to the government in 2008 ordering the criminalization of torture. Civil society organisations and the UNCAT have also been making this recommendations since 1991. However, these calls have not resulted in the criminalisation of torture.
The TRC Act
After many years of struggle by victims and human rights activists, and rulings from the Supreme Court, the major political parties finally passed the Act to establish a TRC and COID, approved by Parliament on 25 April 2014. However, it was enacted without consultation with the major stakeholders, i.e. the victims and civil society organisations. A number of victims’ groups, lawyers, and civil society organisations have raised concerns in relation to the Act, as the Act provides space for amnesty even to those involved in torture and disappearances. Furthermore, the Act also provides powers to the commission to undertake mediation between victims and perpetrators, even in serious human rights violations cases, including torture. As it currently stands, the Act is in breach of international human rights law and a 2 January 2014 Supreme Court ruling. Unless key provisions are amended, the TRC and Commission on Enforced Disappearances will not meet international standards and will promote impunity.
What the TRC Act says on torture
Can the TRC, enacted under this Act, be a tool in providing remedies for survivors of torture in Nepal. The main objective of the TRC Act, as stated in the preamble, is to “investigate the facts about those persons involved in serious violations of human rights and crimes against humanity committed during the course of conflict, and to create an atmosphere of reconciliation in the society.” However, the Act adopts a very narrow understanding of what reconciliation is. Reconciliation in this Act is used and understood synonymously with mediation between victims and perpetrators.
Mediation between victims and perpetrators in the name of reconciliations: Section 22 of the Act empowers the commission to mediate between victims and perpetrators, including those involved in torture. It states, “if a perpetrator or a victim files an application to the Commission for mediation, the Commission may mediate to reconcile mutually between them”.
The OHCHR described this provision (as it appeared in an Ordinance promulgated in 2013, but then ruled unconstitutional by the Supreme Court), as “highly problematic and inappropriate”. While mediation can be used as part of restorative justice processes in civil maters and some criminal matters (usually involving property crimes and minor assaults), there are strong concerns about such processes being used in relation to serious crimes, such as those under the jurisdiction of the TRC. These concerns are heightened where there are power imbalances between the victim and the perpetrator, as are apparent in this context (where alleged perpetrators are often members of the police, military, political parties, or are protected by them, and victims are often from vulnerable and marginalised communities). UN human rights treaty bodies have stated that mediation should not be used in such cases.
International human rights principles establish that mediation should never be used in criminal matters without the consent of both parties. The Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters make it clear that “[n]either the victim nor the offender should be coerced, or induced by unfair means, to participate in restorative processes or to accept restorative outcomes”. As the OHCHR noted in relation to the same provision as it appeared in the Ordinance, reconciliation “is more appropriately addressed at an inter-personal level and should not be forced upon people”.
The Special Rapporteur on the promotion of truth, justice, reparation, and guarantees of non-recurrence has stressed that reconciliation should not be seen in isolation, without initiatives that promote justice, truth, reparations, and guarantees of non-recurrence. In the words of the OHCHR, “[r]econciliation at the societal level is more than just one-to-one encounters but requires the establishment of institutions that are trustworthy and that genuinely embody the idea that victims as well as all others are rights holders”.
Prohibition of future prosecution in the cases of Torture: An even more problematic provision is section 25.2. (a), which forecloses prosecution in cases where mediation is done. When read in conjunction with section 25.2 (a), the provision on mediation is extremely problematic. This provision will, given the power imbalances at play, almost certainly result in victims feeling and being pressured to mediate with perpetrators.
It is the duty of the state to investigate and prosecute those involved in crimes that are recognised as crimes under international law and gross human rights violations. These include grave breaches of the Geneva Conventions, crimes against humanity, torture, rape and other forms of sexual violence of comparable gravity, enforced disappearance, and extrajudicial executions. Nepal has accepted this duty by signing core international humanitarian law and human rights-related treaties. It is also in the greater interest of the society to end the culture of impunity and maintain the rule of law, which is a prerequisite for a democratic society.
Amnesty for torture cases: TRC Act further empowers the TRC to recommend amnesty even to those involved in torture. Under Section 26 of the Act reads “the Commission shall not recommend the perpetrators involved in cases of serious human rights violation that lack sufficient reasons and grounds for amnesty following the investigation of the Commission and in cases of rape for amnesty.” It is therefore open to the Commission to recommend amnesty for all of the crimes under the jurisdiction of the Commission except rape, and given the wide discretion allowed there is the clear potential for amnesty to be granted to many perpetrators in an arbitrary way.
This is contrary to international law, which prohibits the granting of amnesty for crimes under international law and gross violations of human rights as set out above. All of these crimes and violations fall within the Commissions’ jurisdiction. That amnesties for such serious crimes are unlawful is a position consistently endorsed by the United Nations, international treaty bodies, and regional human rights courts.
No recognition of victims’ right to reparation: So far, survivors of torture and rape have been denied “interim relief” (monetary compensation that was provided to “conflict victims”), as they have not been included in the government’s categories of conflict victims. The Torture Compensation Act also does not recognise the longer-term impact these crimes have on survivors and fails to provide reparation accordingly. As a result victims of torture and sexual violence, continue to suffer in silence.
Section 2(e) and 23 of the Act deal with reparation to victims. While Section 2(e) defines reparation, Section 23 elaborates it.
Section 2(e) provides that “‘Reparations’ means the compensation, facility or concession to be made available to the victims as stipulated in Section 23”. According to the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted and proclaimed by the General Assembly in 2005, reparation should consist of, as appropriate, measures of compensation, restitution, rehabilitation, satisfaction, and guarantees of non-repetition.
Section 23 states “the Commission shall make recommendations to the Government of Nepal to provide any type of compensation, to provide restitution or rehabilitation or any other appropriate arrangement, as per necessity, to the victim through inquiry and investigation carried out in accordance with this Act”.
Under international law, victims of serious violations of international humanitarian law and gross violations of human rights have the right to “full and effective reparation” for the harm they have suffered, as “appropriate and proportional to the gravity of the violation and the circumstances of each case”. It is extremely important to many victims that the fact that reparation is their right, not something to be granted at the government’s discretion, is explicitly recognized in the Act, and framed in such a way that they may make a claim in court if they are denied the reparation.
No criminalization of torture and enforced disappearances:Given the obligations outlined above to investigate and prosecute crimes under international law and gross violations of human rights, it is imperative that criminal laws are appropriate for the task. For many years, expert bodies of the UN and many national and international organisations have urged the government of Nepal to criminalise such violations. Most recently, the Human Rights Committee, the expert body established under the ICCPR, recommended that Nepal should ensure that “all gross violations of international human rights law, including torture and enforced disappearances, are explicitly prohibited as criminal offences under domestic law”.
Despite this, the government did not use the opportunity of introducing the TRC bill in Parliament to criminalise war crimes, crimes against humanity, torture or enforced disappearances, none of which are currently crimes under Nepali law. Nor is there any sense that the government is taking measures to proceed with criminalization of torture or enforced disappearances through other means.
Statutory limitation in torture cases: In addition, there are concerns about statutory limitation for prosecution of rape and other violations such as murder, which remains in force despite the Supreme Court ordering the government to amend the law, and recommendations from treaty bodies to repeal the provision. For instance, there is a statutory limitation of 35-days for the filing of complaints in cases of rape. This provision is very likely to bar investigation and prosecution of conflict-era rapes, even if they are recommended for action. Under international law, limitation periods should not apply to the prosecution of crimes under international law or gross violations of human rights, and this must be clarified.
Conclusion: It is clear that the TRC Act does not meet international standards. As requested by the victims groups and civil society, the Act has to be amended before the commissions are set up.
Torture should not be seen as a crime where victims and perpetrators can mediate to avoid any accountability. The possibility of amnesty in torture needs to be prohibited. The TRC should look into wider aspects of conflict, what made torture to be practiced so widely in Nepal, analyse the patterns, objectives and methods, and recommend a range of reforms that are needed for these crimes to be addressed.
Torture needs to be prevented by criminalizing it and requiring transparency in pre-trial detention. The legal frameworks need to be developed so the investigations and prosecutions are possible in cases of human rights violations including torture. Ratification of OPCAT and development of national preventive mechanism could be a good ways of preventing torture.
 United Nations, Report of the Special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. Mission to Nepal, UN Doc. E C/CN.4/2006/6/Add.5, available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G06/101/19/PDF/G0610119.pdf?OpenElement.
 OHCHR, Nepal conflict report, October 2012, available at http://www.ohchr.org/EN/Countries/AsiaRegion/Pages/NepalConflictReport.aspx.
United Nations, Report of the Committee against Torture, 1994, UN Doc. A/49/44, page 22, para 149, available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=A%2f49%2f44(SUPP)&Lang=en.
 United Nations, Report of the Special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. Mission to Nepal, UN Doc. E C/CN.4/2006/6/Add.5, available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G06/101/19/PDF/G0610119.pdf
 Committee against Torture, Summary account of the results of proceedings on the inquiry into Nepal, October 2012, available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=A%2f67%2f44&Lang=en.
 B. Harber & G. Kelly, Reconciliation, a Working Definition. Reconciliation can be defined as “the process of addressing conflictual and fractured relationships, covering a range of activities such as: developing a shared vision of an interdependent and fair society; acknowledging and dealing with the past; building positive relationships significant cultural and attitudinal change and; substantial social, economic and political change”, available at www.democraticdialogue.org.
Section 22 (1).
 OHCHR Comments on TRC Ordinance, above n. 3, p. 2.
 See Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, adopted by Economic and Social Council 2002/12 (E/2002/INF/2/Add.2, Annex), Principle 9 (‘Disparities leading to power imbalances, as well as cultural differences among the parties, should be taken into consideration in referring a case to, and in conducting, a restorative process.’)
 In relation to violence against women see, Committee on the Elimination of Discrimination Against Women, Concluding Observations on Côte d’Ivoire, CEDAW/C/COD/CO/6-7 (2013), para. 12; Angola, CEDAW/C/AGO/CO/6 (2013), para. 20; Lesotho, CEDAW/C/LSO/CO/1-4 (2011), para. 23; Finland, CEDAW/C/FIN/CO/6 (2008), para. 174; Czech Republic, CEDAW/C/CZE/CO/5 (2010), para. 23. In relation to violence against children see, Committee on the Rights of the Child, Concluding Observations on Costa Rica, CRC/C/CRI/CO/4 (2011), para. 54; Nicaragua, CRC/C/NIC/CO/4 (2010), paras. 58-59.
Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, adopted by Economic and Social Council 2002/12 (E/2002/INF/2/Add.2, Annex), Principle 13. See also Principle 7.
 OHCHR Comments on TRC Ordinance, p. 6.
 OHCHR, OHCHR Analysis of the Nepal Ordinance on Investigation of Disappeared People, Truth and Reconciliation Commission, 2012, December 2012, http://www.ohchr.org/Documents/Press/Nepal_OHCHR_Analysis_TJ_Ordinance_Dec_2012.pdf, p. 3.
 See Report of Diane Orentlicher, independent expert to update the Set of principles to combat impunity – Updated Set of principles for the protection and promotion of human rights through action to combat impunity, E.CN.4/2005/102/Add.1 (2005) (‘Updated Impunity Principles’), Principle 19. See also the four Geneva Conventions, UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), Articles 5-7 ; Human Rights Committee, General Comment No. 31, Nature of the General Legal Obligation on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13 (2004), para. 18.See further OHCHR, ‘Rule of Law Tools for Post-Conflict States: Amnesties’, available at www.ohchr.org/Documents/Publications/Amnesties_en.pdf, pp. 11ff.
 Updated Impunity Principles, ibid., Definitions, B ; OHCHR, ‘Rule of Law Tools: Amnesties’, ibid., p. 11.
 Including the Geneva Conventions (party since 1964), UNCAT (party since 1991), Arts. 5-7, and the International Covenant on Civil and Political Rights (ICCPR) (party since 1991), Arts. 2(3), 6 and 7.
In his 2004 report on ‘The rule of law and transitional justice in conflict and post-conflict societies’ (UN doc. S/2004/616), the UN Secretary-General reaffirmed that “United Nations-endorsed peace agreements can never promise amnesties for genocide, war crimes, crimes against humanity or gross violations of human rights”. In 2007 the new Secretary-General expressed the same view: “…the Organization cannot endorse or condone amnesties for genocide, crimes against humanity, war crimes or gross violations of human rights, nor should it do anything that might foster them”, Spokesperson for Secretary-General Ban Ki-moon, 24 July 2007. See also OHCHR, OHCHR Comments on the Nepal Commission on Investigation of Disappeared Persons, Truth and Reconciliation Ordinance – 2069 (2013), 3 April 2013 (“OHCHR Comments on TRC Ordinance”), available at http://www.ohchr.org/Documents/Countries/NP/OHCHRComments_TRC_Ordinance.docx, p. 4.
See, eg. Human Rights Committee, General Comment No. 31, above n.26, para. 18, Human Rights Committee, General Comment No. 20: Article 7, 44th session (1992), para. 15 and numerous concluding observations including eg. Uruguay, CCPR/C/79/ Add.19 (1993); El Salvador, CCPR/C/79/Add.34 (1994). See further Committee Against Torture, General Comment 2, Implementation of article 2 by States Parties, CAT/C/GC/2/CRP. 1/Rev.4 (2007), para. 5.
 See, eg. Inter-American Court of Human Rights, Case of Barrio Altos v Peru, Judgement of March 14, 2001, para 41.
 See Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147, 16 December 2005 (‘UN Basic Principles on the Right to Remedy and Reparation’), para. 18. See further UNCAT, Art. 14 ; ICCPR, Art. 2(3) ; Committee Against Torture, General Comment No. 3 : Implementation of Article 14 by States Parties, CAT/C/GC/3, para. 6; Human Rights Committee, General Comment No. 31, above .26, para. 16.
Human Rights Committee, Concluding observations on Nepal, CCPR/C/NPL/CO/2 (2014), para. 10.
Sapana Pradhan Malla v. Government of Nepal, Nepal Law reporter 2065, volume 11, p. 1358-1366.
 See, CEDAW, Concluding observations on Nepal, CEDAW/C/NPL/CO/4-5 (2011), para. 20;Human Rights Committee, Concluding observations on Nepal, CCPR/C/NPL/CO/2 (2014), para. 13.
 See further UN Basic Principles on the Right to Remedy and Reparation, above n. 36, para. 6.
(Mandira Sharma, a lawyer and activist, is the chairperson of Advocacy Forum, an organization of human rights lawyers in Nepal. Mandira studied in Kathmandu and completed her LLM (Master of Law) at the University of Essex. She engages high-level officials in Nepal’s justice system to push for reforms that can enable citizens to hold police and courts accountable. She is an editorial advisor for Torture Magazine.)