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IX. Recommendations
- Take all steps necessary to ensure that military, police
and other security forces comply in full with the requirements of
international human rights and humanitarian law. In particular, bring an
end to the widespread practice of extrajudicial and summary executions,
“disappearances” and unlawful arrest and detention. Forces must not
conduct direct or indiscriminate attacks on civilians or civilian objects.
- Conduct prompt, independent and impartial investigations
into serious allegations of violations of human rights and humanitarian
law by the security forces. Discipline or prosecute as appropriate all
those implicated for their direct participation in abuses or as a matter
of command responsibility in accordance with international due process
standards.
- Cooperate with investigations conducted by the National
Human Rights Commission and other independent and impartial bodies into
allegations of serious violations of human rights and humanitarian law.
- Ensure that all prosecutions of military personnel for
violations of human rights or humanitarian law are brought, to the extent
possible, before the civilian criminal justice systems, rather than before
the military courts, as recommended by the U.N. Acting High Commissioner
for Human Rights. This would ensure greater transparency and would
provide concrete evidence that the government is acting in good faith when
it says it seeks to stop criminal behavior by forces under its control.
In cases where prosecutions are conducted by courts martial, the
proceedings should be as transparent as possible, and proceedings,
including judgments and sentences, should be public.
- Hold superior officers, whether civilian or military,
criminally accountable if they knew, or should have known, that forces
under their command had committed or were about to commit criminal acts,
and nothing was done to prevent such commission.
- Take all necessary steps to stop the practice of enforced
disappearances. Make disappearances a criminal offence. The security
forces should immediately make known the whereabouts or circumstances of
persons whose enforced disappearances are on file with the National
Commission for Human Rights. In addition to prosecuting those
responsible, the government must provide suitable compensation for the
victims or family members of those who have “disappeared.”
- Order the Home Ministry and the Defense Ministry to comply
promptly with all habeas corpus orders issued by the courts. As the
government itself stated on March 26, 2004, “any malicious exercise
against the right to [habeas corpus] remedy shall be punishable by law.”
The government must ensure an effective and prompt remedy in the case of
violations of this right.
- Ensure that all persons detained by the security forces
are held at recognized places of detention, and are not subjected to torture
or cruel, inhuman or degrading treatment. Their whereabouts must be made
known to family, counsel and the International Committee of the Red Cross.
Any persons detained by the security forces must be allowed contact with
family and unhindered access to legal counsel of the detainee’s own
choice. All procedural rights guaranteed under the Constitution and the
Code of Criminal Procedure must be respected.
- Ensure that TADA, which expired in April 2004, and no
longer has any legal force, is not used by law enforcement authorities or
prosecutors, either as a grounds for prosecution or a threat against
political opponents.
- Organize, or allow others to organize, regular and
suitable training to relevant officials in all branches of the security
forces on human rights law, humanitarian law and the code of criminal
procedure.
- The security forces receive training in conducting
operations in compliance with international humanitarian law, such as is
offered by the International Committee of the Red Cross. Forces engaged
in law enforcement should receive training in the U.N. Basic Principles on
the Use of Force and Firearms by Law Enforcement Officials and the U.N.
Code of Conduct for Law Enforcement Officials.
- Fulfill the government’s commitment to strengthen the
National Human Rights Commission’s capacity to monitor, report, and
investigate allegations of violations of human rights abuses. This
includes: adequately funding and staffing the NHRC, ensuring that the NHRC
receives unfettered access to the technical assistance of the United
Nations and others, guaranteeing free and safe movement of NHRC staff,
allowing NHRC staff free and private interviews with potential witnesses
and sources of information, guaranteeing the safety of persons who give
evidence to the NHRC, reporting allegations of violations by the security
forces to the NHRC, responding promptly to requests for information and
assistance put forward by the NHRC, and protecting the independence of the
NHRC commissioners and staff.
- Stop undermining and discrediting the work of persons
working to protect and report on human rights abuses, such as the NHRC,
the Nepal Bar Association, human rights lawyers, journalists and others.
In its pledge of 26 March, the government undertook to “protect” human
rights workers and activists “working for the implementation of human
rights and international humanitarian law.” The government should act
with determination to fulfill this pledge.
- Follow through on its proposal to invite the special
procedures of the UNHCHR. In particular, the government should invite the
UN Special Rapporteur on Torture, the Special Rapporteur on Freedom of
Opinion and Expression, the UN Special Rapporteur on Extrajudicial,
Summary or Arbitrary Executions, and the UN Working Groups on Enforced and
Involuntary Disappearances, and Arbitrary Detentions to Nepal to investigate and report on the situation. Recommendations which may be made by
these thematic agencies should be implemented in a timely manner.
- Consistent with the Human Rights Accord promoted by the
NHRC and the government’s March 26, re-commitment statement, outline an
implementation plan, with firm deadlines and measurable benchmarks, to
provide for the government’s compliance with international human rights
and humanitarian law obligations.
- Include within any political settlement provisions to
ensure the long-term protection of human rights. Such provisions could
include the deployment of international human rights monitors, the
expansion of offices of the NHRC, resolution of all outstanding cases of
disappearances and compensation for victims and their families.
- Implement the Poverty Reduction Strategy (PRS) agreed with
the donor community, especially the commitment to mainstream “the very
poor, deprived communities and backward regions through the increased
involvement of local bodies in improving service delivery and accountability
[and that] deprived groups will be involved in decision-making and will be
adequately represented in the decision making process” The government
should, with strong support of the donor community, implement its PRS
fully with regard to disadvantaged groups, and focus on reforms to (i)
revise existing laws to eliminate discrimination against deprived
communities and women; and (ii) implement affirmative action programs to
increase the social diversity of public services.
- Issue immediate instructions CPN-Maoist forces to cease
the abduction, torture and killing of civilians, including but not limited
to persons suspected of being “informers,” or members of other political
parties who advocate against the Maoists. Take all necessary steps to
ensure the compliance of CPN-Maoist forces with international humanitarian
law. In particular, this includes abiding by Common Article 3 of the
Geneva Conventions which prohibits, among other things, the killing,
torture or other ill-treatment of all persons in their custody. Forces
also must not conduct direct or indiscriminate attacks on civilians or
civilian objects, including the abduction of civilians.
- Ensure that the rights to freedom of opinion, expression
and association are guaranteed in areas under CPN-Maoist’s effective
control, and that no person or community will be punished for exercising
these rights. As part of this commitment, the Maoists must also cease the
practice of forcing entire communities to attend political indoctrination
programs, often for weeks at a time.
- Issue immediate instructions to CPN-Maoist cadres cease
the common practice of forcing villagers to provide food, shelter and
money, and using schools as training and recruitment grounds.
- Guarantee unhindered access of humanitarian, relief and
development supplies to areas under their effective control. Stop
extortion of aid organizations seeking to assist communities under Maoist
control. Undertake to secure the safety of local and international aid
workers in areas under their control.
- Cooperate fully and transparently with the NHRC in its
investigations of allegations of abuse by the Maoist forces. Guarantee
freedom of movement and ensure security of NHRC staff, allow the NHRC
staff to interview freely and privately any potential witnesses or sources
of information, guarantee the safety of persons who provide information to
the NHRC, report allegations of abuse by its forces to the NHRC, and
respond in a timely manner to any requests for information or assistance
put forward by the NHRC.
- Issue an implementation plan consistent with the Human
Rights Accord proposed by the NHRC, with firm dates and measurable
benchmarks, to meet the obligations of international humanitarian law, and
to honor and protect the human rights of civilians within their zones of
control. The undertakings in this plan should be made clear to all Maoist
cadres and workers.
- Comply with the “Minimum Immediate Steps for the
Protection of Human Rights by the Maoists” as issued by the NHRC on May
27, 2004. The Minimum Immediate Steps calls on the Maoists to clearly
identify a command structure which will be responsible for ensuring that
Maoist forces abide by humanitarian and human rights law, to guarantee the
freedoms of assembly, expression and association, and to prohibit any
behavior which amounts to a violation of Common Article 3 of the Geneva
Conventions.
- Include within any political settlement, provisions to
ensure the long-term protection of human rights. Such provisions could
include the deployment of international human rights monitors, the
expansion of offices of the NHRC, and freedom of movement for
humanitarian, aid and development workers.
- Accept the limitations placed on his role under the 1990
Constitution of the Kingdom of Nepal. In particular, the Constitution
unambiguously denies the King the right to choose his own Prime Minister
and Council of Ministers.
- Respect the right of the people as enshrined in the
Constitution to elect their representatives at the local and national
levels. The summary dismissal of an elected Prime Minister and the
failure to hold elections is an unacceptable over-reach of the powers
vested in the King.
- Pressure the Nepali government to abide by its commitments
under international human rights and humanitarian law, the Geneva
Conventions, and international human rights law. Publicly condemn
specific violations and urge the government to address them.
- Actively monitor the end use of any weapons provided and
investigate whether weapons supplied have been used to commit violations
of humanitarian law. Ensure that security forces are well-trained in the
use of weapons.
- Ensure that the Nepali security forces at all levels are
receiving suitable training that would ensure their compliance with
international human rights and humanitarian law. This training should be
woven into the training and operational instructions received by all
soldiers.
To Outside States, such as the U.S., U.K., the E.U., Switzerland, and India, and International Agencies, such as the U.N., and
Donors:
- Continue to press the Nepali government to act on its
stated human rights commitments. The sustained support by the international
community for the NHRC and for the human rights community more generally
over the last year created an undeniable, positive pressure on the
government to take human rights issues seriously. In particular, the role
of the United Kingdom, the E.U. countries, Switzerland, and the United
Nations High Commission for Human Rights has been critical. As a result
of the pressure, on March 26, 2004, the government signed a unilateral declaration reaffirming its commitments to abide by its obligations under
international law. It is critical that the international community
continue to press the Nepali government to act on its stated commitments.
- Ensure follow through on the technical and financial
assistance pledged by the U.N. High Commission for Human Rights (UNCHR) in
April 2004. The UN High Commission for Human Rights must keep its
commitment to providing the NHRC with the necessary technical and
financial expertise it needs to continue reporting neutrally on abuses by
both sides on the ground. In particular, the UNHCHR should assist the
NHRC with the implementation of a nationwide monitoring mission. Because
of the logistical challenges of human rights monitoring in Nepal, effective UNCHR assistance will require a significant increase in international
personnel and logistical support by the UNHCHR to the NHRC.
- Encourage the Nepali government to invite the Special Rapporteurs
of the U.N. High Commission to Nepal for fact-finding investigations on
allegations of abuse by both sides.
- Continue to pressure the Maoists to allow humanitarian aid
and assistance and freedom of movement in areas under their control and to
stop the practice of extortion of aid workers and agencies.
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