Government and army share responsibility for murderers

A Statement from the Asian Human Rights Commission

NEPAL: Government and army share responsibility for impunity of Maina Sunuwar's murderers

Credible action to bring Maina Sunuwar's murderers to trial in Nepal's civilian jurisdiction has been unjustifiably delayed. The government bears responsibility for allowing impunity to become so deeply-entrenched that those who tortured a 15-year-old school girl to death remain unpunished despite arrest warrants pending against them.

On February 17, 2004 a troop of army personnel arrested 15-year-old Maina Sunuwar from her home at Kharelthok VDC-8, Kavre district. Evidence and testimony gathered since then indicate she was tortured to death during an interrogation to make her confess she was a Maoist. She was repeatedly held face in the water and subjected to electric shocks, and subsequently left to die from the torture. As a cover up, her body was shot in the back to make it appear that she had been shot while trying to escape, and the police were summoned to accept this cover-up story.

On September 8, 2005, following the recommendations of a Military Court of Inquiry, a Martial Court held that three military personnel were guilty of not having observed the proper procedures. They were condemned to minor penalties, under charges which had little to do with the actual crime of illegally arresting, torturing and killing a minor. The martial court's findings were challenged by Maina's mother and on September 18, 2007 the Supreme Court ordered the civilian authorities to carry out investigations within three months and prosecute the offenders. A case was subsequently filed against four military officers, Major Niranjan Basnet, Colonel Bobby Khatri, Captain Sunil Prasad Adhikari and Captain Amit Pun on January 31, 2008.

Three of the perpetrators have been declared as absconders, but no credible action has been taken to arrest them. The fourth accused, Major Niranjan Basnet, was repatriated from a United Nations Peace-Keeping Mission in Chad in December 2009, but was taken into the custody of the Nepal Army. Contravening the court orders, the army refused to transfer him to police custody.

On July 14, 2010 the army announced that he had been found innocent by an internal army investigation as the army had been acting under the Terrorist and Disruptive Activities (Control and Punishment) Act, 2002 (TADA) at the time. TADA ensures that any offences involving army personnel cannot be tried by civilian courts. Not only does this violate human rights laws and standards, but it has also provided the army with a tool to shield its personnel from prosecutions. The army further argued that the accused had already been tried in a martial court for the same crime, although his trial was on charge of not following proper procedures in the disposal of the victim's body not of torturing and killing a minor.

The updated UN Set of Principles to uphold human rights through action to combat impunity calls upon states to adopt safeguards against abuses of rules such as those pertaining to the jurisdiction of military courts. In its December 2009 report, in the section regarding Nepal, the UN Working Group on Enforced Disappearances reminded the government that persons alleged to have committed acts of enforced disappearances "shall be tried only by the competent ordinary courts in each State, and not by any other special tribunal, in particular military courts".

In addition, the army announcement runs contrary to the Supreme Court's order to civilian authorities to carry out investigations, which had found in favour of the jurisdiction of civilian courts. Nevertheless, no further action was taken by the civilian authorities to make the army comply with the Supreme Court ruling; instead the Defence Ministry immediately endorsed the military decision.

The army's stonewalling of civilian institutions in the case of Maina Sunuwar is consistent with its opposition to all attempts to hold its personnel accountable for human rights violations. In spite of the challenge the army's refusal to abide by court orders and cooperate with the police poses to democratic principles in Nepal, the government has so far failed to take comprehensive and strong action to bring the military under the rule of law framework.

In its 2011 annual report, the OHCHR field office in Nepal noted the lack of progress on that front and recalled that, "Revision of internal codes of conduct and credible external oversight mechanisms are essential to ensuring the rule of law, including through effective investigations and prosecutions when security forces are responsible for violation."

Since the end of the conflict, the Nepal Army is facing the prospect of an in-depth transformation. It has to be turned from an army deployed in a situation of internal conflict, functioning under an act authorizing it sweeping discretionary powers to deal with whoever it deemed to be a terrorist, without the scrutiny of the judiciary or other civilian institutions, to an army functioning in a democratic set-up in respect of human rights and humanitarian standards, accountable and subject to civilian oversight.

The Interim Constitution and the Army Act, 2006 both contain mild attempts to introduce elements of civilian control over the army and to curb impunity among its ranks, transferring the control of the army from the royal palace to the democratically-elected council of ministers. The Army Act, 2006 stipulated that murder and rape of civilians by army personnel fell under the jurisdiction of civilian courts but torture, arbitrary arrest and detention, and enforced disappearance remain under the jurisdiction of military courts. Nevertheless, the army has continued to resist attempts to hold individuals accountable for human rights violations committed during or after the conflict (see 'Recipe for impunity at work in Bardyia National Park'), while the government's half-hearted willingness to push for accountability and prosecutions of individual soldiers has not permitted justice to overcome the army’s filibustering.

In a report published in 2011, the International Crisis Group drew a bleak picture of the progress accomplished to bring the army under civilian control in practice:Â "There is a barely-there defence ministry, an ineffective national security council and state affairs and parliamentary accounts committees that do not push on difficult questions of transparency, accountability and reform. "

Unless the government shows a strong political commitment to in-depth reforms bringing the army under the rule of law, and to the investigation and prosecution of abuses which occurred during the conflict, victims' families such as Maina's, will keep waiting for justice. Denying the victims' rights to legal redress constitutes a breach of Nepal's international obligations.

Hence, we urge the government to abide by the court orders: a high-level police investigation team must be set-up and entrusted with the investigation of Maina Sunuwar's case; Major Niranjan Basnet must immediately be brought before the Kavre District Court; and the three other accused Babi Khatri, Sunil Prasad Adhikari and Amit Pun should be located and arrested, and prosecuted in a civilian court. We urge the army to show its commitment to democratic principles by cooperating fully with the civilian authorities in the investigation and prosecution of Maina's murder.
Read this statement online
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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.

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