Summary

“As it embarks on the final stages of the peace process with transitional justice… the United Nations stands ready to support Nepal to develop a process that meets international standards, the Supreme Court’s rulings, and the needs of victims – and to put it into practice.”

– António Guterres, the United Nations Secretary-General, while on an official visit to Nepal in October 2023.

“Even though I’ve lost my husband, when I was registering the case, I felt that I was progressing. I felt a sense of peace almost, and growing confidence. At last, I was able to speak. Right now, there is no way for me even to get my husband’s pension. Either they have to tell me that my husband is no longer alive and give me the body. Or they should give me hope. The people who did this should be made to stand in a court of law.”

– Yog Maya Dahal whose husband was forcibly disappeared by security forces in 2002. Despite a court case and other promised investigations, she said that there is no apparent progress.

It has been almost two decades since the civil war in Nepal ended in 2006 with the Comprehensive Peace Agreement. The former Maoist insurgents have been demobilized and an elected assembly has adopted a federal, republican constitution. Conducting a transitional justice process remains the major outstanding commitment of the peace agreement. A moment of opportunity now exists to deliver a truth and justice process that is sought by victims, and one that would help protect the rights of all Nepalis in the future.

On his visit to Nepal in October 2023, UN Secretary-General António Guterres noted that Nepal is closer than it has ever been to beginning a meaningful transitional justice process. The government has pledged to enact a new law, with Prime Minister Pushpa Kamal Dahal saying in December 2023, "The victims want the speedy advancement of this process. The government too shares the same aspiration. There is no situation to remain in confusion and doubt.”

But the draft bill that is before parliament, while it contains some good provisions including for reparations, still needs significant amendments if it is to meet standards set by Nepal’s Supreme Court, and clearly established in international law, as well as victims’ justice needs. Under the bill as it currently stands, some of the gross violations of human rights described in this report may be placed outside the scope of Nepal’s transitional justice process.

There is a risk that – if the law falls short – the process will unravel again, failing victims and everyone else with a stake in completing the peace process or strengthening the rule of law in Nepal.

This report by Human Rights Watch and Nepal-based Advocacy Forum-Nepal describes survivors and victims’ decades-long search for truth, accountability, and reparations. There has been little or no progress in the 62 cases of conflict-era extrajudicial killings filed before Nepali courts with the support of Advocacy Forum-Nepal (see appendix), which we have tracked through a series of five previous reports since 2008. In defiance of court orders to investigate these killings, successive governments instructed police not to act in these cases, claiming that all conflict-era violations must be handled by a transitional justice process that has never been in operation.

As the table in the appendix shows, these families of victims of extrajudicial killings have typically received “interim relief” payments, but recommendations by the National Human Rights Commission to pay them compensation have been inconsistent, and frequently such recommendations (when made) have not been implemented.

Victims of the armed conflict between Maoist insurgents and government forces from 1996 to 2006, which killed up to 17,000 people and left up to 3,288 “disappeared,” have long been denied justice and reparations. They have gone to Nepali courts, to transitional justice commissions established by government, to the United Nations, and foreign jurisdictions. But accountability efforts at the domestic level have repeatedly been stalled by authorities that remained committed to impunity.

In addition, many survivors of sexual violence, who have faced severe social stigma, were unable to register their cases when conflict-era human rights violations were being recorded by the government between 2016-2018. Unlike the victims of some other crimes, survivors of sexual violence and torture and ill treatment never received financial “interim relief,” although many suffer from lasting physical and psychological injuries.

In several of the cases described in this report, witnesses and relatives of the victims alleged that commanding officers were directly responsible or were present when violations occurred. Some of the worst, well documented, human rights violations occurred in Banke district and the adjoining Bardiya district, in southwest Nepal. Families said that they found no remedy after engaging with the dysfunctional transitional justice institutions that have existed to date, and that they are still struggling financially.

One of the alleged perpetrators of torture, sexual violence, enforced disappearances and extrajudicial killings at the Chisapani army camp in Banke district, identified by the United Nations Office of the High Commissioner for Human Rights (OHCHR) and Nepal’s National Human Rights Commission, as well as by witnesses who spoke to Human Rights Watch and Advocacy Forum, is former army captain Ramesh Swar. His former commanding officer, then army major (later brigadier general) Ajit Thapa is also alleged by OHCHR and the National Human Rights Commission to be responsible for torture and enforced disappearances. Although several complaints have been filed against them the police have not acted. While Swar and Thapa are yet to be prosecuted and have the right to defend themselves in proceedings where they have the presumption of innocence, these are only two examples among many alleged perpetrators where the police have not acted to investigate allegations, while the victims and their families continue to wait for truth and justice.

Until Nepal implements a transitional justice process that meets international standards, foreign governments and the United Nations should tighten vetting measures to prevent alleged perpetrators of serious violations who continue to obstruct justice from receiving international appointments. Alleged perpetrators who do travel abroad should be investigated under the principle of universal jurisdiction, which enables national authorities to investigate and prosecute certain of the most serious crimes under international law no matter where they were committed, and regardless of the nationality of the suspects or their victims.

Accountability for serious crimes under international law is an essential component of any credible transitional justice process, but it is not the only element. The UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence has identified five pillars of a transitional justice process. They are: truth, justice, reparation, memorialization, and guarantees of non-recurrence. Nepal has so far failed to deliver any of these.

Many survivors and families of victims are in urgent need of relief and reparation for the harms they suffered and are living in difficult circumstances because of ongoing harms from the conflict, such as the loss of a wage-earner in their family, or injuries they sustained including psychosocial injuries. In numerous statements made during and after Secretary-General Guterres’s October 2023 visit to Nepal, victims’ groups called for a process that includes all the different elements of transitional justice, including accountability and reparations.

Nepal’s Crisis of Impunity

In 2014 Nepal’s legislature adopted the Commission on Investigation of Disappeared Persons, Truth and Reconciliation Act (TRC Act), which was struck down by the Supreme Court in 2015 because it failed to meet Nepali and international legal standards, especially by providing amnesties for serious crimes.

“Amnesties for these atrocities would convey to Nepalese society that some people are above the law,” UN experts had noted in July 2014, warning that, “Legislation which should enable the country to come to terms with its past, may further entrench impunity.”

It is now widely recognized by human rights defenders that a lack of accountability for conflict-era violations has led to a crisis of impunity in Nepal. The police and security forces are rarely, if ever, investigated for deaths in custody allegedly resulting from torture, or the killing of protesters. Nor are politicians and officials held accountable for widespread corruption that undermines public services and impinges economic and social rights.

Although the Supreme Court ruled against the TRC Act in 2015, two transitional justice bodies provided for in that law – the Truth and Reconciliation Commission (TRC) and the Commission of Inquiry on Enforced Disappearances (CIEDP) – were established that year. While the law has been suspended, the two commissions have continued to exist, although neither has completed a single investigation.

Advocacy Forum lawyers have consistently requested updates from police and prosecutors every three months on the 62 investigations tracked by Advocacy Forum and Human Rights Watch since 2006. They are repeatedly told that conflict-era cases are no longer being pursued because they will be processed by the two transitional justice mechanisms (the TRC and the CIEDP). In several of these cases, the Supreme Court itself has ordered a prompt investigation into killings. In acquiescing to government orders, the police ignored court directives. The fact that the police are choosing to obey executive orders over rulings by the judiciary exposes deeply rooted problems of the rule of law and political interference in the police.

This pattern of impunity is maintained in numerous cases of human rights violations committed since the conflict ended; there has been little or no attempt to hold alleged perpetrators to account, further eroding the rule of law. The government has failed to act on hundreds of recommendations by the National Human Rights Commission to prosecute alleged human rights abusers, or numerous recommendations of the UN Human Rights Committee.

The recommendations made in this report include measures that would help to prevent ongoing abuses by security forces and hold those responsible to account.

Legislation Before Parliament

On March 19, 2023, the newly elected coalition government led by Prime Minister Dahal tabled a bill in parliament titled A Bill Prepared for the Amendment of the Investigation of Enforced Disappeared Persons, Truth and Reconciliation Commission Act, 2071 (2014).

The bill includes several positive provisions. It guarantees the right to reparation, although it provides few details of how this will be done, as well as interim relief for some victims who were left out of earlier relief packages. It guarantees the right of the families of victims of enforced disappearance to their relatives’ property. It also mandates the TRC to study the root causes and impact of the conflict and recommend institutional reforms.

Under the proposals, the TRC and CIEDP would investigate alleged crimes committed during the conflict. Cases classified as “serious violations of human rights” could be referred to and prosecuted in a special court. However, the bill’s definition of “serious violations” – which includes rape and “serious sexual violence,” enforced disappearance, “cruel or inhuman torture,” and a definition of unlawful killing that remains to be finalized – excludes numerous serious crimes under international law including some acts of torture and some unlawful killings thus creating a significant accountability gap.

In a separate category from those crimes defined as “serious,” the bill defines “any acts against the domestic law, international human rights law or humanitarian law” as rights violations that cannot be referred to the special court. This language risks providing de facto amnesties to alleged perpetrators of some serious human rights violations and grave crimes under international law. Amnesties for serious crimes are contrary to international law and standards, and raise serious concerns for victims.

In particular, the definition of both “serious” violations and other violations of human rights stipulates that the offence was committed “in a targeted or planned manner against an unarmed individual or community.” This means that perpetrators of crimes committed against combatants, or in a non-targeted or planned manner, are excluded not only from any possibility of criminal accountability but also that the victims of these crimes are not eligible for consideration for other measures outlined in the bill, such as reparations.

In addition, the bill does not ensure the independent appointment of judges to the special court, nor the selection of qualified personnel to handle the complexities of serious crime investigations and prosecutions.

The government has come under pressure from victims’ groups, activists and international human rights organisations, the United Nations and others, to address the shortcomings of the bill including the critical issue of amnesties for serious crimes. On May 19, 2023, the Parliamentary Committee on Law, Justice, and Human Rights formed an 11-member sub-committee to propose amendments to the bill. The result of its deliberations became public in October 2023. Several of the sub-committee’s proposals, if they are adopted, would help to address some of the concerns that have been raised. However, the proposed amendments do not fully address several important shortcomings.

Under the proposed amendments, the requirement that any rights violation (whether defined as “serious” or not) must have been committed “in a targeted or planned manner against an unarmed individual or community” to fall within the scope of the process remains, excluding many victims and their families. Only crimes defined as “serious human rights violations” may be prosecuted, and these continue to exclude some war crimes and crimes against humanity, which, contrary to international law, would therefore be subject to amnesties. The status of the crime of extrajudicial, summary or arbitrary killings was not settled by the sub-committee, but left open for further discussion.

Finally, the bill does not provide for the financial independence of the transitional justice bodies, and the sub-committee report does not address this. According to a recent report by the UN special rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, transparent funding that provides sufficient material and human resources is key to guaranteeing the independence of transitional justice mechanisms.

While public debate and human rights activism have helped to introduce improvements to the bill, and there is important progress towards adopting a long overdue law on transitional justice, the draft law and proposed amendments do not currently comply with the rulings of the Supreme Court, international legal standards, or the demands of many victims. If it is passed without appropriate amendments, the law risks hindering the search for justice setting it back years once again. If it is appropriately amended, it can be the basis for a meaningful, nationally owned process that upholds the rights of victims by providing accountability and reparations, and benefit all Nepalis by strengthening institutions and the rule of law.

 

Recommendations

To the Government of Nepal

On Transitional Justice

• Amend the transitional justice bill to ensure that all conduct amounting to gross violations of human rights and grave international crimes, including summary and arbitrary killings, torture, all war crimes and crimes against humanity, and including violations committed against combatants, are brought to the jurisdiction of the Special Court and are not subject to amnesties.
• Amend the transitional justice bill to ensure that the definition of victims of any rights violation is not limited to “unarmed civilians,” but also includes combatants.
• Allow adequate time for those victims, including survivors of sexual violence, who have not filed a complaint to register their complaint once the commissions are set up under the new act and conduct a broad public awareness campaign to ensure that people across the country are aware of this process. The currently proposed window of three months to register sexual violence cases is not adequate.
• Create a specialist unit within the TRC to handle cases of sexual violence and other forms of gender-based violence. Ensure that it is staffed with people with training and skills in assisting survivors of gender-based violence, and has policies in place to protect survivors’ confidentiality and to support them in a respectful and victim-centered manner.
• Ensure the bill provides for financial and administrative independence from the government for the commissions, and that the commissions can access additional resources if and when required.
• Ensure that the bill provides for the independent appointment of judges to the Special Court, consistent with the standards in Nepal’s constitution. ·       Having adopted the necessary amendments, present the bill for passage by parliament without further unnecessary delay.
• Establish the Special Court as soon as possible after the amended bill is passed, ensuring that the Special Court is adequately resourced, and that it is staffed with qualified personnel to handle the complexities of serious crime cases.
• Establish a dedicated unit within the Office of the Attorney General to handle the prosecution of cases before the Special Court, based on adequate criminal investigation of serious crimes.
• Appoint qualified and independent commissioners to the TRC and CIEPD through a credible, transparent, and consultative process.
• Develop a robust framework for reparations, based on recommendations from the TRC and the CIEPD though extensive consultations with victims, civil society, reparation experts, and other relevant stakeholders. This framework should:
  • Recognize that victims of gross human rights violations and serious international crimes have a right to reparations under international law.
  • Acknowledge the possibility of different forms of reparations based on victims’ needs, encompassing restitution, compensation, rehabilitation such as access to health services including mental health services and access to good quality education for victims and their family members, satisfaction, and guarantee of nonrecurrence. These reparations can be collective or individual and should include assistance to the children of victims and survivors.
  • Extend to all victims of gross human rights violations and serious international crimes, including those previously excluded by the Interim Relief Program (i.e. survivors of torture, rape, and sexual violence).
  • Be gender-sensitive and inclusive.
  • Ensure that relief, service, and reparations are not one size fits all for all recipients, but are responsive to the specific needs of different recipients, including taking into account the specific needs of survivors of sexual violence and their families.

On the Criminal Justice System

• Improve training and equipment, including strengthening the crime-investigation curriculum at police academies and training low-ranking officers to assist in crime investigations.
• Enforce in practice section 9 of the Evidence Act, which excludes from court any evidence police obtain by using torture or cruel, inhuman, or degrading treatment in interrogations.
• Revise the Penal Code to abolish the statute of limitations for rape cases.
• Conduct training and adopt new policies to improve how police handle cases involving gender-based violence, and hold accountable any officers that fail to comply with these policies.
• Clearly and unequivocally signal, through statements and measures by state officials and the highest-ranking police, that the use of torture or other mistreatment in police custody is unacceptable and will not be tolerated. Explicitly define acceptable interrogation techniques in police rules and manuals.
• Ensure that police officers implicated in torture and other ill-treatment, regardless of rank, are disciplined or prosecuted as appropriate.
• Stop transferring police alleged to have committed abuses, which only endangers other citizens. Establish that if a police officer is being investigated for abusive conduct they will be assigned to desk duty or suspended with pay, depending on the allegation, until the incident is investigated and resolved.
• Bolster independent investigations into complaints of police abuse and misconduct through the national human rights commission and police complaints authorities. Prosecute accused officers where sufficient evidence exists.
• Reduce delays and malfeasance by requiring police to register a First Information Report (FIR) for any complaint, regardless of jurisdiction, before transferring a case to the appropriate police station. Where sufficient grounds exist, investigate suspected crimes when no FIR has been registered.
• Strengthen public prosecutors and develop a strong public legal defense system.
• Allow all detainees access to lawyers, with communication in confidence, without obstruction by the police.

To Foreign Governments Seeking to Support Transitional Justice in Nepal and the United Nations

• Help the government of Nepal to seize the current opportunity by urging it to amend the current bill to meet international standards, and then promptly pass it into law.
• Liaise directly and regularly with victim and survivor groups, including survivors of sexual violence, to ensure that international engagement with the government of Nepal is informed by their views.
• Provide financial support to victims’ groups, to ensure that they have the means to conduct meetings, discussions, and awareness campaigns among their members.
• Offer technical and financial assistance for a process that complies with Nepal’s obligations under international law.
• Ensure that any donor funding for Nepal’s transitional justice process is delivered through a mechanism that ensures best practice, including transparency and independence from the government. Consider a structure to coordinate donor support that is under the auspices of the United Nations.
• Closely observe the process of appointment to help ensure that TRC and CIEDP commissioners are selected through a credible and independent process that has the confidence of stakeholders.
• Ensure that funds allocated for reparations to victims are administered in a transparent and accountable manner according to clearly articulated principles and procedures.
• Investigate and prosecute alleged serious crimes committed in Nepal using the principle of universal jurisdiction.

Methodology

Human Rights Watch and Advocacy Forum have tracked the status of 62 cases documented in 49 FIRs filed with police since June 2006. Of these, 46 relate to cases of alleged extrajudicial killings, enforced disappearances, torture, or rape committed by security forces in the period between 2002 and 2006. The remaining FIRs relate to cases of alleged killings by members of the Communist Party of Nepal-Maoist (CPN-M). Advocacy Forum lawyers assisted and continue to assist the families in seeking justice in all these cases. Advocacy Forum’s lawyers based in seven provinces of Nepal monitor any progress in these cases quarterly.

In February 2023 Human Rights Watch visited Banke and Bardiya districts with Advocacy Forum to interview victim families, some of whom were involved in the cases mentioned above. In addition, a Human Rights Watch researcher conducted interviews in Kathmandu with survivors of sexual violence from various districts. All of the survivors, victims and families mentioned in this report consented for their cases to be included. No payments were made for the information included in this report. We also reviewed documents including draft legislation and analyses of the bill by various organizations, recommendations made by victims and civil society organizations, and communications from UN Special Procedures.

Human Rights Watch wrote to Ajit Thapa and Agni Sapkota asking for their response to the issues raised in this report. We were unable to identify an address at which to write to Ramesh Swar. Human Rights Watch also wrote to Prime Minister Pushpa Kamal Dahal asking for his response to the issues raised in relation to the transitional justice bill. We had not received a response at the time of publication.

On February 2, 2023, Advocacy Forum wrote to the human rights cells of the Nepal Police and Nepal Army requesting meetings and a response to the issues raised in this report, but received no response. On May 15, 2023, Advocacy Forum wrote to the office of the Attorney General about the issues raised in this report, but received no response. The National Human Rights Commission responded to Advocacy Forum’s RTI application, providing their decisions on some of the cases mentioned in the report. Those updates are included in the table in the appendix.

I. Background, Nepal’s Maoist Conflict 1996-2006

In 1996, the Communist Party of Nepal-Maoist (CPN-M) declared a “people’s war” to establish a communist republic. Nepal had been a constitutional monarchy and parliamentary democracy since a democratic street movement in 1990, which had forced an end to absolute monarchy. By 2001, the insurgents had established significant control in around 22 of Nepal’s 75 districts, attempting to assume the functions of a state.

During the early years of the conflict, the government relied on the ill-equipped and poorly trained Nepal Police to confront the Maoists. The Maoists attacked police stations, killing hundreds of police officers. By the end of the conflict in 2006, 1,271 out of 1,971 police posts across the country had stopped functioning after they were destroyed in attacks, or police personnel had been withdrawn for security reasons.[1] The Maoists also targeted and killed “class enemies” in rural areas, including members of the parliamentary parties and landowning families.

Peace talks between the government and the Maoists, which began in August 2001, broke down in November that year after the Maoists unilaterally withdrew and attacked police and army posts in 42 districts, killing around 80 members of the security forces.[2] The authorities responded by declaring a nationwide state of emergency and deploying the Royal Nepal Army (RNA, now Nepal Army, NA).[3] The Nepal Police and the paramilitary Armed Police Force (APF) were placed under the “unified command” of the army.[4]

Following the deployment of the army the conflict escalated. In particular, the civilian death toll mounted. Over 8,000 mostly civilian deaths were recorded between November 2001 and the end of the war in 2006, out of a total death toll estimated by the UN in 2012 at over 13,000 people.[5] Other widely cited estimates of the total death toll have later been revised upwards to around 17,000 people.[6]

In 2002, the government introduced the Terrorist and Disruptive Activities (Control and Punishment) Ordinance (TADO), granting wide powers to the security forces to arrest people involved in “terrorist” activities and declared the CPN-M a “terrorist organization.”[7] In May that year parliament was dissolved, and in October, King Gyanendra fired the prime minister, Sher Bahadur Deuba. Over the following years, a series of prime ministers were appointed and dismissed by the king, while parliamentary parties protested the palace’s role in politics.

A second failed round of peace talks in 2003 broke down after the army massacred 17 Maoists and two civilians in custody at Doramba, in Ramechhap district, in August that year.[8] While the Maoists had established control over much of the countryside, the security forces operated from heavily fortified bases in the district headquarters, launching search operations and patrols.

The international community acted on longstanding calls from national and international human rights groups to set up a monitoring mission of the Office of the United Nations High Commissioner for Human Rights (OHCHR) in April 2005.[9]

On February 1, 2005, King Gyanendra declared a state of emergency and – with the army’s backing – assumed direct executive authority, citing the inability of the civilian government to resolve the conflict.[10] He ordered the detention of politicians, activists, journalists, and human rights defenders, and imposed severe restrictions on civil liberties.[11] Protests broke out, backed by the parliamentary parties and the Maoists.

The Maoists’ unilateral decision to begin a four-month ceasefire, from September 3, 2005, was not joined by the royal government. The parliamentary parties established a Seven-Party Alliance (SPA) and entered a dialogue with the Maoists, facilitated by the government of India.[12] On November 22, 2005, the SPA and the Maoists adopted a 12-point “Letter of Understanding,” which included a call for the election of a constituent assembly and committed the Maoists to multi-party democracy, respect for human rights, and the rule of law. The agreement, strongly criticized by the royal government, was welcomed by then UN Secretary-General, Kofi Annan.[13]

There were talks between representatives of the SPA and Maoists in New Delhi in March 2006, leading to a combined, peaceful street movement. Thousands of people took part in massive demonstrations across the country in defiance of curfew orders.

On April 24, 2006, the king announced the reinstatement of parliament.[14] A government under Prime Minister Girija Prasad Koirala, leader of the Nepali Congress party, was formed. The government started negotiations with the CPN-M on the Comprehensive Peace Agreement, which was signed by Prime Minister Koirala and the Maoist leader Pushpa Kamal Dahal on November 21, 2006.

II. Rights Violations in Southwest Nepal

Human rights abuses occurred across the country during the conflict. Security forces were accused of extrajudicial executions, enforced disappearances, torture, and arbitrary arrests. The Maoists abducted and executed “class enemies,” practiced widespread extortion, and forcibly recruited children – including into combat.[15] Both sides stand accused of rape, although the majority of allegations are against the security forces.[16]

Many well documented violations occurred in Banke and Bardiya districts, in southwestern Nepal. OHCHR received reports of over 200 enforced disappearances in the custody of the security forces in Bardiya district alone between December 2001 and January 2003, as well as 14 similar cases in Maoist custody between November 2002 and October 2004.[17]

The marginalized Tharu Indigenous group then made-up 52 percent of Bardiya’s population and accounted for over 85 percent of the people forcibly disappeared by the state in cases documented by OHCHR. Most victims appear to have been civilians – among the “disappeared” just 23 were acknowledged by their families or by the CPN-M to have been members of the Maoist party at the time of their detention.

OHCHR found that three units of the RNA based in Bardiya District during this period were primarily responsible for enforced disappearances, as well as unlawful detentions, torture in custody and extrajudicial killings. Among them was Bhimkali Company, based at the Chisapani army camp on the border of Bardiya and Banke districts, which operated in both districts.[18] In several of the cases described in this report, witnesses and relatives of the victims alleged that commanding officers were directly responsible or were present when violations occurred.

The UN found that Bhimkali Company “was under the command of Major Ajit Thapa and Captain Ramesh Swar (second in command), during the period under investigation... Testimonies frequently cited the two commanding officers, Major Ajit Thapa and Captain Ramesh Swar, as being present and involved in interrogation and torture.”[19]

Several victims told OHCHR that torture took place in Major Thapa’s office. Major Thapa and Captain Swar were also named in a 2006 report by the UN special rapporteur on Torture, which included detailed testimony from a man who said he was tortured at Chisapani by both officers.[20] The OHCHR report, and a report by Amnesty International[21] published in 2002, both contain allegations that Captain Swar raped female prisoners.[22]

Several witnesses told Human Rights Watch and Advocacy Forum that Captain Swar was directly responsible for violations including extrajudicial killing. The National Human Rights Commission has alleged that Ramesh Swar was responsible in at least ten cases of enforced disappearance, and that Ajit Thapa was responsible for at least five, and recommended that they be prosecuted.[23]

Families of the “Disappeared” and Victims of Extrajudicial Killings

According to the International Committee of the Red Cross, over 1,300 people remain victims of enforced disappearance since the end of the war.[24] The Commission of Investigation on Enforced Disappeared Persons (CIEDP) was formed in 2015 as part of the transitional justice process to investigate civil war abuses.[25] The CIEDP say they have received 3,288 cases of people allegedly forcibly disappeared, but is yet to complete an investigation into a single enforced disappearance, and to date no perpetrator has been held accountable.[26]

Many victims and their families have struggled to learn the truth of what happened, to gain reparations and redress, including support for victims’ children and rights to the property of the “disappeared.” Several of the families whose interviews appear in this report filed criminal complaints before Nepali courts with support from Advocacy Forum. However, complainants found this route blocked by government directives to the police not to investigate conflict-related cases.

Some sought to advance accountability through international mechanisms. In 2011, the families of eight victims of enforced disappearance in Bardiya brought their cases to the UN Human Rights Committee, arguing that there were no effective domestic remedies available.[27] The Human Rights Committee has adopted views supporting the complainants in this and at least 20 other cases from Nepal, finding that victims have been denied redress for serious human rights violations.

The Enforced Disappearance of Kamal Dahal

Yog Maya Dahal has struggled for justice since her husband, Kamal Dahal, was taken by soldiers from the school where he taught on January 1, 2002.

On the day he was detained, Yog Maya says soldiers came to her house in Banke district, searched it, and demanded to be taken to the school, accusing her husband of being a Maoist.[28] “They took him out of the classroom and said, ‘This is the man who has widowed many wives.’” He was severely beaten before numerous witnesses and, unable to stand, thrown into the back of an army truck and driven away.

Yog Maya said that the soldiers had come from the nearby Chisapani army camp. The following day she went there to see her husband but was denied entry. The day after that news was broadcast on the radio that he had been killed in an “encounter” while trying to escape, but she was not informed or handed his body.

In the months following her husband’s abduction Yog Maya says soldiers from Chisapani including Major Ajit Thapa and Captain Ramesh Swar would visit her house at night. “I came to recognize them. They said, ‘Your husband has buried weapons here. You have to dig them up.’ I said, ‘The only weapons my husband used were chalk and a duster.’” The soldiers would point their guns through the (unglazed) windows of her house. “I would pretend that I was sleeping. ... I would gather the kids around me and sleep in the middle of the room.”

At first, she attached her hopes to finding Kamal’s body, but she never has, and her husband remains “disappeared.” “It feels like a nightmare,” she said.

The police only registered her complaint after a court ordered them to do so. But the case has made little progress. Yog Maya wants a transitional justice process that gives her relief and reparation. She has raised four children on her own, and without a death certificate cannot receive her husband’s pension. Besides reparations and access to her husband’s estate, she wants the perpetrators brought to justice. She believes “the case is stuck because the police haven’t been able to arrest [Major] Ajit [Thapa] and [Captain] Ramesh [Swar]. They didn’t show up in court… They were the ones who beat him up [when he was arrested], Ramesh Swar especially. They kicked him with their boots.”

“I would feel relief and peace if the case moved forward and I could confront them in the court,” she said. “The only thing that can give me a sense of justice is to see them being punished.”[29]

Extrajudicial Killing of Kranti Abhilashi Devkota

Kranti Abhilashi Devkota of Banke district, who his family acknowledge was the district treasurer of a Maoist affiliated student organization, was shot dead by soldiers on December 30, 2001.[30] The family had a tradition of involvement in communist politics and several members had become involved in the Maoist party. According to information received by the family, Kranti was detained by an army patrol at a village in neighboring Bardiya district and summarily executed almost immediately, in front of witnesses, while he pleaded for his life.

In the aftermath of the killing soldiers repeatedly visited the family home at night and threatened them at gunpoint, inflicting “mental torture.”

“Ten years ago, we thought there would be justice but now there is no hope,” said Kranti’s sister Shram Jyoti Devkota. “Those involved should be punished, but I don’t think it’s possible anymore.”[31]

Indiscriminate Killing of Dal Bahadur Thapa and Parbati Thapa

“We are still waiting for justice,” Bhumi Sara Thapa Chhetri, 80, told Human Rights Watch. “I walked to so many places, every place that you have to go for justice, and I cried so much. Now I’ve grown old. I would like to see them brought to court. It feels like it will never come.” [32]

Her family was preparing to go to bed for the night, in Rajhena village in Banke district, on September 10, 2002, when members of the security forces, seemingly including police and soldiers, appeared outside and opened fire into the house through the windows. When the firing stopped, she saw that her youngest son Dal Bahadur was dead and his wife Parbati was fatally injured. The couple’s 10-month-old daughter, the youngest of their two children, had also been wounded.

The security forces appeared to leave, but returned within a few minutes and began asking questions about Bhumi’s other children, whom they suspected of being Maoists, but who were not at home. The family named Major Ajit Thapa and Captain Ramesh Swar among those they accused in a criminal complaint (see table in appendix, cases number 5 and 6).

The security forces removed the bodies of Dal Bahadur and Parbati, and also removed jewelry, a video camera and 11,000 rupees (then worth around US$144). The surviving members of the family were locked inside the house. They were able to take the injured baby for medical treatment the following morning. That day a news item broadcast on the radio claimed that the security forces had killed two Maoists and recovered a video camera, 11,000 rupees and bomb making equipment.[33]

“It was only after the peace agreement [in 2006] that we were able to register the case,” said Bhumi. Initially the police refused to register it, but with help from Advocacy Forum it was registered after a court gave an order to do so. However, there has been little if any discernable progress.

According to her youngest daughter, 38-year-old Lakshmi Thapa, “It was so difficult [to register and pursue the case], people wouldn’t listen, they wouldn’t follow orders. Two kids were orphaned that night. The state should take care of them. And the killers have to be punished for what they did.”[34]

Torture of Prem Bahadur Thapa at Chisapani Army Camp

The Thapa family had had previous encounters with soldiers from the Chisapani army camp. One of Bhumi Sara’s other children, Prem Bahadur Thapa, said he had first been arrested about a year earlier. Accusing him and another villager of being Maoists, soldiers tied them to a stake and beat them. The soldiers also searched the family house, and then took Prem and the other villager in a truck to the Chisapani camp.

Prem Bahadur says he recognized several of the prisoners at Chisapani. “I saw many people from Kohalpur there,” he said. After his arrival, he was blindfolded, his hands were tied, and soldiers beat him in an open area inside the compound. “They probably broke four or five sticks beating me,” he said.[35]

Prem Bahadur alleges that he was repeatedly tortured while held at Chisapani. One of the instruments of torture was a bamboo club wrapped in tires, which was known as the “Hanuman laathi” and left tire marks on the victims’ bodies. The soldiers based at Chisapani would conduct “raids” almost every day, Prem Bahadur said, and if they returned with new prisoners then the existing prisoners would be tortured less that day.[36] He also says that while at Chipasani, he witnessed an officer beat a young woman to death.

After his release he was ordered to report again to the camp, but instead he fled to India. It was following Prem’s flight to India that security forces attacked his family home, as described above.

Enforced Disappearance of Shivacharan Tharu

“I’ve been to Kathmandu so many times staging protests,” said Mampti Tharu, describing her decades long search for justice.[37]

Her husband, Shivacharan Tharu (also known as Shiv Charan Chaudhari) was arrested by police from his home in Bardiya district along with three other men on December 12, 2001. For over four months she was able to visit him in custody at a police station, and saw that he had been severely beaten. The last time she saw her husband was on April 29, 2002. The police told her that her husband had been transferred to the custody of the army at Thakurdwara. Since then, he remains a victim of enforced disappearance.

According to the United Nations’ 2008 report on enforced disappearances in Bardiya district, referring to Shivcharan and four other men who were detained in the same period, “OHCHR’s investigations suggest they were taken from the DPO [district police office] by a group of RNA, APF and NP [Nepal Police] personnel on 2/3 May [2002] and extrajudicially executed,” despite official claims that they were released.[38]

Mampti registered the case with the CIEDP after they were established in 2015. “Until four or five years ago they [the CIEDP] would tell us ‘We will search for your husband.’ I don’t know what happened. The commission disappeared.”[39]

ExtraJudicial Killing of Rupa Tharu

Rupa Tharu, also known as Rupa Chaudhary, was an 11-year-old primary school pupil when she was dragged from her bed and shot dead by soldiers during a night-raid on her village, Sorhawa, in Bardiya district, on July 21, 2002.

Her mother, Lakshmi Tharu, recalls that at around 10pm soldiers, who appeared to be drunk, broke the family’s door down and entered the house searching for an alleged Maoist named Rupa Tharu. They established that her daughter’s name was Rupa Tharu, kicked and beat her and her father with their gun butts, then dragged the child outside and shot her dead.[40]

After shooting Rupa, soldiers ordered four village men to carry her body to the village primary school, where they had parked their vehicles. Three of the men were then released but one, named Dinesh Tharu, aged around 17 or 18, was taken away. According to Dinesh’s mother, Talukrani Tharu, he was held for around 15 days at Chisapani army camp, where he was continually blindfolded and repeatedly beaten before being released.[41]

According to the OHCHR investigation in Bardiya district, following the killing of Rupa Tharu the Ministry of Defence issued a press statement “claiming that a Maoist was ‘killed in an encounter.’”[42] Multiple witnesses told OHCHR that the security forces who raided the village were a joint team of soldiers from Bhimkali company (which was based at Chisapani army camp) and police from the Mainapokhar area police office.[43]

Abuses Committed by the Maoists in Bardiya District

According to the OHCHR’s report on enforced disappearances in Bardiya, the Communist Party of Nepal-Maoist (CPN-M) was responsible for at least 14 abductions in the period they documented, between 2002-2004.[44] In many cases the Maoists subsequently acknowledged that the victim had been killed, but did not reveal the location of their body.

For instance, on October 21, 2004, five Maoists abducted Anita Bishwakarma from her home, accusing her of extortion. She was breastfeeding her four-month-old son when the Maoists arrived. They handed her baby to a relative before blindfolding her and marching her away. In 2008, a CPN-M district representative acknowledged to OHCHR that Anita Bishwakarma had been killed as part of “party action.”[45]

OHCHR also recorded that the Maoists were responsible for other abuses, including “recruit[ing] children under 18 into its ranks, several of whom were reportedly subsequently arrested and disappeared by the army.” Apart from killings, abductions and looting, the Maoists also carried out public executions, including by shooting and beheading. OCHCR concluded that “a significant number” of these actions “were clearly serious violations of IHL [international humanitarian law].”[46]

CPN-M representatives informed OHCHR that all decisions on party “action,” including abductions and killings, were made by the party’s District Committee.[47] The UN report gives the pseudonyms of the two most senior Maoists in the district at the time as Amal (Bright) and Tufan (Storm).

Victims’ Representatives in Bardiya district

Yojana Chaudhary is the chairwoman of a victim/ survivor network in Badhaiyatal Rural Municipality, which includes Sorhawa where 11-year-old Rupa Tharu was killed. She says that within her area, one of eight such local units in Bardiya district, her committee is aware of 65 people who were either killed or “disappeared” and around 65 to 70 others who suffered torture or were otherwise injured during the conflict.

Torture survivors and other injured people, she said, have particularly struggled to support their families. The families are anxious to receive reparations and livelihoods for their children, torture survivors in particular want health insurance and free treatment, and there are also calls for memorialization of victims, such as naming roads or public places after them. They also demand that perpetrators are held accountable. “Many victim families want to see justice served. They want to see perpetrators in court in their lifetime,” she said.[48]

The UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence has identified five pillars of a transitional justice process.[49] They are: truth, justice, reparation, memorialization, and guarantees of non-recurrence. Nepal has so far failed to deliver any of these.

III. Survivors of Sexual Violence

Survivors of sexual violence committed during the conflict – the vast majority of whom are women – have faced even greater difficulty than others in demanding that the crimes committed against them should be acknowledged and that they should receive reparations and accountability. They are also at risk of being neglected by the transitional justice process.[50] Activists campaigning for justice for survivors of sexual violence state that the TRC has recorded 314 alleged cases of sexual violence but argue that the true number of such cases is far higher.

Many of these women are living in dire financial conditions and continue to experience physical and mental health problems linked to the violence they faced. Although some victims of conflict-era abuses, such as the families of victims of extrajudicial executions, had earlier received “interim relief,” survivors of sexual violence and other torture survivors did not.

Due to social stigma, many survivors of sexual violence did not come forward to record their cases when the TRC was registering complaints between 2016 and 2018. Others found that officials were unwilling to register cases as rape or sexual violence, instead for example recording cases as “torture” or simply “injured.”

A statute of limitations in Nepal’s Penal Code prevents the prosecution of rape if the case is registered more than two years after the alleged offence, or three years after the victim turns 18 if she was a minor at that time.

In 2021, a new organization of women survivors of sexual violence, the National Organization of Wartime Rape Victims (NOWRaV), was established by survivors to support one another and advocate for the transitional justice process to address their needs. Their demands include:[51]

• To publicly acknowledge that rapes occurred widely during the conflict.
• To reopen the registration of cases with the transitional justice bodies to allow survivors who had not previously registered to do so.
• To immediately provide interim relief to survivors.
• To immediately make provision for physical and mental healthcare for survivors.
• To remove the statute of limitations for the prosecution of rape.
• To ensure reparation and rehabilitation to survivors.
• To make provision for the children of survivors, including for their education and healthcare. To officially recognize the experience and contribution of survivors.
• To establish a specialized, victim-centric unit within the transitional justice mechanism to meet the needs of survivors of sexual violence.

Goma N.

Goma, a member of the marginalized Tharu Indigenous community, said that when she attempted to register her case with the TRC through the local Peace Committee they refused to write that she had been gang raped by the army, and instead recorded only that she was “injured.”[52] She recalled that the committee was conducting the registration process in an open setting. Both men and women were present, and people laughed at her. There was no privacy or provision of counsellors for survivors.

“Every step of the way, whether I went to the DPO [district police office] or the Supreme Court, they said it wouldn’t be possible to prosecute this case because there is no law,” Goma said. She therefore took her case to special procedures, arguing that there was no domestic remedy for the violation of her rights.

In her submission to special procedures, Goma alleged that she had been beaten unconscious and raped by soldiers in Kailali district in 2021, when she was 13 years old.[53] She became pregnant as a result, and both she and her child suffered stigma and discrimination.”

In February 2022 special procedures wrote to the Nepal government expressing “deep concern” that Goma had not received “redress, justice or reparation” for the “brutal crimes” committed against her.[54]

According to Goma, following the communication by special procedures, local government and police officials in her district summoned her to a meeting. “Even when I came back, they threw down my file and made fun of me,” she said. The police have still not registered her complaint. Shortly after that meeting, in November 2022, unknown arsonists set fire to and destroyed the poultry farm where she lived.[55]

Lakshmi N.

“I was too scared to register as a rape survivor, so I just say I am a conflict victim. That’s how I am registered in the TRC,” said Lakshmi Nepali, who was raped by Maoist fighters in Far West Nepal in September 2001.[56] Lakshmi had just had a baby and was washing clothes at the river near her parent’s house when a unit of six Maoists appeared. “One of them I recognized as a childhood friend. There was a forest near the river and the six of them dragged me there. There was nobody around and my screams were not heard. I was left naked by the riverbank.”
She says her father and older brother found her and took her to the health post, but they did not want to discuss the rape. “My brother and father knew that I was raped but they did not raise a voice for justice,” she said. “Instead, they sent me to my husband’s house. From that day on I have not returned to my parents. How could I? They have seen my naked body. I am so ashamed.” She never filed a police complaint. However, one of the rapists was later killed by security forces. “I saw the body of that rapist,” she said. “I felt a sense of justice that day.”[57] Lakshmi says she would like some form of acknowledgement and reparation for her pain. “I really need some support with health and treatments. My son has mental health issues. I need to get him treatment, but these things are beyond me.”[58]

Sita N.

“What I need is interim relief so I can fight for justice and take the perpetrator to court,” Sita Nepali told Human Rights Watch.[59]

When she registered her rape case with the Local Peace Committee in her district, she found the committee did not appear to follow any formal procedures or take any steps to ensure confidentiality. The TRC had mandated the Local Peace Committee to record conflict era complaints during 2016-2018. “The TRC is simply not capable of handling these cases,” she concluded.

On June 2, 2020, the National Human Rights Commission gave Sita a letter acknowledging that she had been arrested by the army and police on March 4, 2002, been subjected to sexual violence, and that she should receive Rupees 300,000 compensation (around US$4,000). She said that she went from one government department to another, but never received any money. “I have been to every office at every level of government,” she said.

She was required to bring five witnesses to her local police station, and as a result her entire village knows about her complaint. “The NHRC is so insensitive that when I went back to say I couldn’t get my compensation they all laughed at me.”[60]

Gayatri N.

“I want to be able to sit in front of the perpetrators and confront them in the presence of lawyers. Even if it is the day before I die, I would like to see justice. Even if I can experience it for just one day,” said Gayatri.[61]

Gayatri N. had been a member of a Maoist Party committee representing farmers. On September 7, 2001, she was abducted by pro-government vigilantes. Her home was burnt, and her 12-year-old son became a victim of enforced disappearance. During her captivity she was subjected to extreme sexual violence. Two girls or young women who were abducted along with Gayatri, and who were also raped while held captive, were never seen again. Gayatri was freed after her husband signed over their family’s modest property to the abductors as a ransom for her release.

When she attempted to register her case with the district’s Local Peace Committee she requested a female interviewer, but the committee refused. She does not know whether rape and sexual violence was registered among the numerous violations committed against her.

She said that the men who allegedly “disappeared” her child, burnt her home, abducted and abused her, are currently active in politics.[62]

Other Survivors Seeking Reparations and Justice

Many survivors emphasize other needs, besides criminal accountability. Many are unable to identify the perpetrators. Most still suffer physical or psychological pain and require medical treatment and counselling. Some have not disclosed to their own families what happened to them, and believe they never can. “There is no way we will ever get back the dignity we lost. What we need is health insurance in a good hospital, physical treatment and counselling,” said rape survivor Bhavani N.[63]

“We want scholarships for our children,” said another survivor, Gauri N., pointing out that under Nepal’s citizenship laws it is difficult for a child with an unknown father to obtain citizenship and therefore access to education and formal employment. “We want our children to be able to study without limitations, free of cost.”[64]

 

IV. The Long Struggle for Transitional Justice

The struggle to uphold the rule of law and achieve justice for crimes committed by both sides in Nepal’s conflict began before the conflict ended. At great personal risk, victims, witnesses and Nepali human rights defenders worked to expose abuses and to gather and preserve evidence.[65]

Nepal’s courts intervened in numerous habeas corpus cases, ordering the release of prisoners held in illegal detention. International groups gathered and publicized evidence of abuses and called for accountability.[66] United Nations special procedures repeatedly intervened in individual cases and to document patterns of abuse.[67] In 2012 OHCHR published the comprehensive Nepal Conflict Report covering the entire decade-long conflict.[68]

The 2006 Comprehensive Peace Agreement included a commitment “to investigate [the] truth about people seriously violating human rights and involved in crimes against humanity.”[69] Along with drafting a new constitution, and demobilizing and integrating Maoist former fighters, implementing a transitional justice process was recognized as a core pillar of the peace process.

However, while the integration of Maoist fighters was completed in around 2013, and a new constitution was promulgated in 2015, progress towards delivering justice has been stalled. Transitional justice is composed of five main pillars: providing accountability for perpetrators, reparations for victims, truth telling, memorialization, and guarantees of non-recurrence.[70] These components are necessarily linked. While accountability has been the most difficult issue for politicians in Nepal, they have been unable to proceed without addressing it.

In June 2007, the Supreme Court of Nepal issued a landmark decision in response to habeas corpus petitions in dozens of enforced disappearance cases.[71] The ruling ordered the government to establish a commission of inquiry, enact a law to criminalize enforced disappearances in accordance with the International Convention for the Protection of All Persons from Enforced Disappearance, prosecute those responsible for disappearances, and provide compensation to victims’ families.

In February 2010 the government presented two bills to parliament, to establish a truth and reconciliation commission and a commission of inquiry into enforced disappearances. These bills, which ruled out amnesty for murder, enforced disappearances, torture, and rape, were not enacted.

In 2013, the government issued the Ordinance on Investigation of Disappeared Persons, Truth and Reconciliation Commission, based on the earlier bills, but removing the provisions that prevented the commissions from recommending amnesty, and incorporating mediation between victims and perpetrators irrespective of the nature of violations.[72] The ordinance was successfully challenged in the Supreme Court, which ruled in January 2014 that any mechanism for transitional justice must conform to international legal standards, lead to accountability for serious human rights violations, and guarantee victims their right to remedy and reparation.[73] The Supreme Court also said that the government should enact laws that criminalize gross human rights violations, including enforced disappearances, torture, crimes against humanity, and war crimes.[74]

On May 11, 2014, Nepal’s Constituent Assembly ignored the Supreme Court ruling and enacted the Commission on Investigation of Disappeared Persons, Truth and Reconciliation Act 2014 (TRC Act).[75] The act retained the provision of amnesty and mediation, including for murder, enforced disappearances, torture, and rape. It provided for the creation of two commissions, the Commission of Investigation on Enforced Disappeared Persons (CIEDP) and the Truth and Reconciliation Commission (TRC), which were established in 2015.[76]

In July 2014, UN experts warned that the recently adopted transitional justice law leaves mass violations unaddressed. “Amnesties for these atrocities would convey to Nepalese society that some people are above the law,” and “legislation which should enable the country to come to terms with its past, may further entrench impunity.”[77] OHCHR provided a detailed analysis of how Nepal’s transitional justice legislation failed to meet basic international human rights standards.[78] In February 2015 the Supreme Court ruled that the TRC Act was unlawful, especially provisions that shield those responsible for the most serious abuses from prosecution.[79] The government filed a petition seeking to overturn the judgment. On April 27, 2020, the government’s petition was rejected by the Supreme Court.[80]

Interim Relief

Between 2008-2012 the government implemented an Interim Relief Programme (IRP) to help meet the immediate needs of conflict victims. Local Peace Committees (LPCs), formed from members of political parties at the district level, recorded cases and distributed one-time cash payments to some victims or their families.[81]

Families of the deceased and disappeared were given NPR 100,000 (then around US$ 1,300), and scholarships ranging from NPR 10,000-16,000 (around US$ 130-210) were offered to children of the deceased, and these payments were later increased. Payments of up to NPR 200,000 (US$ 2,600) were offered to people who had suffered disabilities, and compensation was also offered to people whose property was damaged or destroyed during the conflict. Benefits were provided to over 30,000 people who were categorized as “conflict victims” and approximately 80,000 internally displaced people.[82] Funding for the program was largely met through international aid.[83]

However, some categories of victims and survivors, notably those who had suffered sexual violence or torture, were excluded from the program. The LPCs were widely seen to act in an arbitrary and politicized way, for example giving preferential treatment to the supporters of the political parties represented on the committee.[84]

The Commission of Investigation on Enforced Disappeared Persons (CIEDP) and the Truth and Reconciliation Commission (TRC)

The Commission of Investigation on Enforced Disappeared Persons (CIEDP) and the Truth and Reconciliation Commission (TRC) were established on February 10, 2015, under the 2014 act. Commissioners were selected through a flawed process led by political parties and without the involvement of victims’ groups.

In April 2016 the two commissions began registering cases, largely delegating the task to the Local Peace Committees already established in the districts.[85] The committees, which did not have specialized skills or training, were inconsistent and arbitrary. For example, as several survivors of sexual violence told Human Rights Watch, the committees sometimes refused to register rape allegations or ensure confidentiality for women making complaints.

In their initial two-year term, the commissions could barely begin work as they lacked sufficient human and financial resources, fell prey to in-fighting among members, and were hampered by political interference.[86] After the two-year mandates of the commissions expired in February 2017, the government extended them for one year.[87] In January 2018 they were again extended by a year.[88] By 2018, when there was a deadline for filing cases, the TRC had received 60,298 complaints of human rights violations, and the CIEDP had received 3,093 complaints of enforced disappearance.[89]

In June 2018, the then attorney general invited national and international human rights organizations including Human Rights Watch to discuss a proposed bill amending the 2014 law. While some of the proposed amendments were a welcome step forward, the law needed further strengthening to comply with international standards. The government later shelved the proposal.

On March 25, 2019, the government appointed a committee chaired by a former chief justice to recommend new TRC and CIEDP commissioners, as their terms were once again expiring.[90] Advocacy Forum found that by the end their tenure in 2019 the commissions were still in the preliminary phase of their work:

The TRC had completed preliminary investigations in less than 10 percent of the complaints and the CIEDP had commenced preliminary investigation in 75 percent of complaints... Neither had resolved even one case out of the more than 60,000 complaints lodged by victims.[91]

Hoping that the process to appoint new commissioners would provide an opportunity to bring the transitional justice process on track, rights groups helped victims’ associations hold consultations in 20 districts to solicit preliminary recommendations.[92] They called on the government to proceed systematically by first holding wider consultations, then amending the transitional justice law incorporating directives of the Supreme Court and Nepal’s international human rights obligations, and finally appointing new commissioners after the act had been amended.[93]

Instead, the government held rushed consultations in January 2020 in all seven provincial headquarters with only three days’ notice, a process that “victims and civil society perceived as window dressing.”[94] The appointments were made without amending the legal framework.[95] The new commissioners took their oath of office on January 23, 2020.[96] After being extended in July 2022 the commissioners’ terms expired on October 17, 2022, and their posts are currently vacant.[97]

 

V. Searching for Justice Through the Courts

Since 2008 Human Rights Watch and Advocacy Forum have published six reports tracking 62 cases of extrajudicial killing in which victims’ families, supported by Advocacy Forum, have sought justice through the ordinary Nepali courts.[98] In some of these cases, after the police refused to register complaints known as First Information Reports (FIRs) the courts ordered them to register cases and carry out investigations. In others, there were interventions by the National Human Rights Commission.

While successive governments failed to establish a credible transitional justice process, they also sought to block conflict-related cases in the ordinary courts. There has been hardly any progress toward prosecution since 2011 in any of the 62 cases.

When Advocacy Forum lawyers reached out to the police seeking information on investigations of these complaints, they were repeatedly told that conflict-era cases were no longer being pursued because they will be processed by the transitional justice process.

The government has also ignored the United Nations Human Rights Committee (HRC) when it repeatedly called on Nepal to thoroughly investigate, prosecute, and punish those responsible in at least 21 cases brought to it under the Optional Protocol to the International Covenant on Civil and Political Rights.[99] The HRC rejected the argument of the government that local remedies have not yet been exhausted (a requirement under the HRC rules), emphasizing that pending commission investigations and proceedings are not sufficient and cannot be a substitute for criminal investigations and prosecutions of serious abuses.

In acquiescing to government orders, the police ignored court directives. In several cases, the Supreme Court itself has ordered a prompt investigation into killings. For example, in the case related to the murder of two brothers, Nar Bahadur Budhamagar and Ratan Bahadur Budhamagar, the Supreme Court issued an order in April 2017 noting that the “constitutional guarantee of human rights remains illusionary if police fails to investigate such a serious crime for such a long period of time.”[100] It further said that “such an indifference to the duty to investigate and prosecute severely undermines the public’s confidence in the rule of law.”[101]

On April 16, 2017, the Kavre district court sentenced three officers to life imprisonment for the murder of Maina Sunuwar, a 15-year-old girl who was tortured to death in army custody in February 2004. An arrest warrant issued in 2008 was never enforced, with the police telling the court they were unable to trace the accused despite the fact that some of them were still serving in the army.[102]

On September 1, 2017, the Office of the Judge Advocate General of the Nepal Army filed a writ of certiorari in the Supreme Court seeking annulment of the convictions ordered by the district court. The army claimed that the incident cannot come under the jurisdiction of the regular court because it happened during a military operation, and therefore military rules should apply.[103] The Nepal Army also said that the officers concerned had already been tried by court martial, and were therefore placed in double jeopardy, and that the case should thus be handled by the TRC.[104]

Another emblematic case is the 2005 abduction and killing by Maoist party members of Arjun Lama, a 46-year-old school official in Kavre district. Among the six accused is Agni Sapkota, a senior member of the party.[105] In 2008 the Supreme Court ordered Kavre police to register a case against the accused. In 2009 Kavre police told Advocacy Forum that they were unable to locate and arrest Sapkota in the district. He was a member of Nepal’s Constitituent Assembly at the time. He later became speaker of the House of Representatives from 2020-2022.

Numerous cases under terrorism-related laws have been withdrawn.[106] Since these were largely lodged against Maoist fighters and alleged supporters, after they joined mainstream politics, the Maoists campaigned to have such cases dropped.[107] The Maoist-led government, in October 2008, announced a blanket withdrawal of 349 cases. On November 17, 2009, the Madhav Kumar Nepal’s UML-led government retracted 282 cases.[108]

In January 2020, the Maoist leader Pushpa Kamal Dahal, who is prime minister at the time of writing, said of the deaths caused by the war, “The then state killed 12,000 people. If you hold me responsible for the killing of 5,000 persons, I am ready to accept it.”[109] The Maoists have appointed individuals accused of serious crimes to office.[110] However, pending cases have caused worry among Maoist leaders over the risk that they might face prosecution abroad under universal jurisdiction.[111]

Universal Jurisdiction

National judicial officials around the world can investigate and prosecute those implicated in serious international crimes, under the principle of “universal jurisdiction.” This principle allows authorities in a third country to prosecute individuals believed to be responsible for certain grave international crimes even though they were committed abroad and neither the accused nor the victims are nationals of that country.

Col. Kumar Lama was arrested in the United Kingdom in 2013 and prosecuted for crimes of torture which allegedly occurred in Nepal during the conflict.[112] Nepal refused to cooperate with the UK investigation. Although Lama was acquitted of the charges against him, with the jury failing to reach a verdict on one count, the UK proceedings had an impact in Nepal, giving fresh impetus to victims’ demands for justice and making clear to the authorities that international justice is a realistic prospect.

 

VI. The Latest Transitional Justice Bill

On July 15, 2022, a coalition government led by Prime Minister Sher Bahadur Deuba presented a Bill for the Amendment of the Investigation of Enforced Disappeared Persons, Truth and Reconciliation Commission Act, 2071 (2014) to parliament. The bill was drafted in belated response to the Supreme Court’s 2015 ruling (upheld in 2020) that the transitional justice act should be amended. The bill contained several provisions that were welcomed by victims’ groups and human rights activists, but still required significant amendments to comply with the Supreme Court’s ruling and international legal obligations.[113] It was not adopted before parliament was dissolved ahead of elections later that year.

On March 19, 2023, the newly elected coalition government led by Prime Minister Pushpa Kamal Dahal tabled a nearly identical bill in parliament, which addressed some of the weaknesses that had been identified in the earlier version. At the time of writing that bill remains before parliament.

The bill includes several positive provisions. It guarantees the right to reparation (although it does not detail the reparation process), as well as interim relief for some victims who were left out of earlier relief packages. It also guarantees the right of the families of victims of enforced disappearance to their relative’s property. It mandates the TRC to study the root causes and impact of the conflict and recommend institutional reforms.

However, the bill still includes numerous provisions that would prevent accountability for serious crimes under international law. Under the proposals, the TRC and CIEDP would act as the sole investigation bodies in conflict-era crimes, and cases classified as “serious violations of human rights” could be referred to and prosecuted in a special court. However, the definition of “serious violations of human rights” – which includes rape and “serious sexual violence,” enforced disappearance, “cruel or inhuman torture,” and a definition of unlawful killings which is yet to be agreed by politicians, provided that the offence was committed “in a targeted or planned manner against an unarmed individual or community”– excludes numerous serious crimes under international law, including crimes against combatants, some instances of torture, arbitrary killings which may be war crimes, and some systematic violations which may amount to crimes against humanity, creating a significant accountability gap. Crimes against combatants are excluded.

The bill in its current form defines “violations of human rights” (other than those it terms “serious”) as “acts against the domestic law, international human rights law or humanitarian law, committed during the armed conflict in a targeted or planned manner against an unarmed individual or community.” Because this category of crimes is excluded from prosecution, this means that alleged perpetrators of some serious human rights violations and grave crimes under international law, including some crimes against humanity or war crimes, would receive de facto amnesties. Amnesties for serious crimes are contrary to international law and standards, and raise serious concerns for victims.[114] Once again, crimes in this category must be committed “in a targeted or planned manner against an unarmed individual or community”, meaning non-targeted or unplanned actions and crimes against combatants would fall outside the scope of the entire process, including for the purpose of reparations and guarantees of non-recurrence.

There are other shortcomings in the bill, including:

• It fails to clarify how the principle of non-retroactivity of criminal law would apply in a manner consistent with international law. International law requires the prosecution of certain serious crimes, such as torture and enforced disappearance, if warranted by evidence, irrespective of whether they were crimes under domestic law when they were committed, given they have long been recognized as crimes under international law.[115] Prosecuting war crimes and crimes against humanity for conduct prior to their codification as crimes in domestic law does not violate the principle of non-retroactivity when these were already crimes under international law. As Article 15 of the International Covenant on Civil and Political Rights (ICCPR) states: No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.… [However, n]othing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.[116]
• It fails to clarify which “applicable law” would be used to prosecute those involved in serious crimes. The Penal Code, which came into force in 2018, prevents retroactive applicability of its provisions. Moreover, the Penal Code includes statutory limitations for the crimes of rape, torture, and enforced disappearances.
• It empowers the government to appoint judges on the special court “in consultation with the Judicial Council”, not through the independent process required by Nepal’s Constitution.
• It does not provide any mechanism to ensure the financial independence of the transitional justice bodies.

In a 13-page communication sent to the government of Nepal on June 9, 2023, four UN human rights experts welcomed “some positive aspects introduced by the Bill, such as … examin[ing] the root causes of the conflict and recommending institutional reform, as well as guaranteeing victims’ right to reparation.”[117] But they warned adopting it would “place Nepal in contravention of its international human rights obligation to investigate and punish serious human rights violations, as well as the ruling of the Supreme Court.”

Proposed Amendments to the Bill

The government, under pressure to address the shortcomings of the bill, established a parliamentary sub-committee on May 19, 2023. The result of its deliberations became public in October 2023.

Several of the sub-committee’s proposals – if they are adopted – would help to partially address some of the concerns that had been raised. For example, it proposed:

• To include “serious” forms of sexual violence under the category of serious violations requiring prosecution.
• To make it possible for victims not satisfied with the reparation awarded to appeal in the Special Court.
• To extend the tenure of the commissions from two years to four years.
• To establish specialized units within the TRC to investigate cases involving sexual violence.
• To provide an extra three-month window for sexual violence survivors to register cases, and to remedy the problem of statutory limitations in rape cases.

However, the proposed amendments do not fully address several important shortcomings, including those described above. It would remain the case that only crimes defined as “serious human rights violations” may be prosecuted, despite the fact that the current definition excludes some war crimes and crimes against humanity which, contrary to international law, would therefore be subject to amnesties. Crimes committed against combatants are excluded from both categories of violations. This means that they would not only be excluded from accountability, but also reparations or any other consideration by the TRC.

For violations not defined as “serious,” amnesties would be granted. The bill includes a provision requiring those receiving an amnesty to fulfil certain conditions, such as disclosing the truth, making an apology to victims, or paying compensation, and amnesty can be granted only with the consent of the victims. However, no provision exists to prosecute those cases not defined as “serious” where victims do not give consent, or the perpetrator fails to fulfil the conditions. In effect, alleged perpetrators of abduction, mutilations, beatings, and other crimes would be granted an automatic amnesty, although such violations could amount to crimes against humanity or war crimes. Amnesties for serious crimes are contrary to international law and standards, raising serious concerns for victims.

The status under the bill of the crime of extrajudicial, summary or arbitrary killings was not settled by the sub-committee but left open for further discussion.

The proposed amendments offer a three-month window for survivors of sexual violence who have not registered their case to do so, but this period is far too short.

The sub-committee does not call to ensure the financial independence of the transitional justice bodies. According to a recent report by the special rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, transparent funding that provides sufficient material and human resources, is key to guaranteeing the independence of transitional justice mechanisms.^[118]

Important issues where the sub-committee attempted to but was not able to make a recommendation to address acknowledged weaknesses in the bill include:

• The definition of unlawful killings to be included under the category of “serious human rights violations” that cannot receive amnesties.
• Mechanisms for redress and reparations.
• The system to handle cases where victims and perpetrators do not agree to be reconciled.
• The method of calculating leniency in sentencing. While public debate and human rights activism have helped to introduce improvements to the bill, and there is important progress towards adopting a long overdue law on transitional justice, the draft law and amendment process do not currently comply with the rulings of the Supreme Court, international legal standards, or the demands of many victims. If it is passed without necessary strengthening, the law would risk hindering the search for justice in Nepal, unravelling in the Supreme Court, and once again setting the process back by years.

To uphold the rights of victims, and to protect all Nepalis by strengthening the rule of law and adopting measures to ensure the non-recurrence of violations, the transitional justice bill should be appropriately amended and then passed into law.

 

Acknowledgements

This report was written by a researcher for the Asia division at Human Rights Watch with research support from Basanta Gautam and Bikash Basnet at Advocacy Forum-Nepal. Amisha Adhikary and Kumar Prasad Thapalia at Advocacy Forum prepared the table in the appendix. Interviews with survivors of sexual violence were arranged with support from Devi Khadka and Asmita Khadka Chaudhary of the National Organization of Wartime Rape Victims. Interpretation of interviews from Nepali to English was provided by Nikita Tripathi. Meenakshi Ganguly, deputy director for the Asia Division, edited and provided divisional review. Maria Elena Vignoli, senior counsel, provided specialist review for the International Justice division and Heather Barr, associate director, provided specialist review for the women’s rights division. External reviews were provided by Ingrid Massage and Mandira Sharma. Clive Baldwin, senior legal advisor, provided legal review; and Tom Porteous, deputy program director, provided program review. Editorial and production assistance was provided by Audrey Gregg, associate for the Asia Division; and Travis Carr, publications officer. The report was prepared for publication by Jose Martinez, senior coordinator, and Fitzroy Hepkins, administrative manager. Human Rights Watch and Advocacy Forum wish to thank partners and all of those in Nepal who agreed to be interviewed.