The continued reluctance of the Government of Nepal to establish a mechanism to hold accountable even a single perpetrator of  enforced disappearance perpetuates  impunity and threatens rule of law, which  in turn contributes to current failures in the field  of law and order in Nepal.
The Government of Nepal is reluctant to establish any constructive mechanism to investigate the whereabouts of the hundreds of allegedly disappeared persons during the decade-long conflict between the state and the Communist Party of Nepal-Maoist (CPN-M) which ended in November 2006. According to the database of the Informal Sector Service Centre (INSEC), a national human rights organization that monitors cases of human rights abuses throughout the country, 828 persons, disappeared by the state, are still unaccounted for. Despite the Maoists’ claim that they were not involved in any disappearances, 105 persons who are alleged to have been disappeared by Maoist groups remain missing. At the end of August 2007, the International Committee of the Red Cross (ICRC) in Nepal listed more than 1000 people whose whereabouts remained unknown, with cases involving both the government and the CPN-M. 

The Comprehensive Peace Accord (CPA), the formal agreement signed by the Government and CPN-M in November 2006 that ended the conflict, included a pledge to publicize the whereabouts of victims of enforced disappearance within 60 days. The Interim Constitution of 2007 also provides for the establishment of a commission to investigate the whereabouts of the disappeared persons during the armed conflict to provide relief to the victims of the disappeared persons.  Families of the disappeared persons, UN independent experts, and national and international organizations including OHCHR-Nepal remain concerned about the continuing uncertainty regarding the establishment of such a mechanism to deal with the many outstanding cases.

In its Common Minimum Programme of 2007, the Interim Government reiterated its commitment to investigate the fate of those who disappeared during the conflict.  However, ten-months after the promulgation of the Interim Constitution, and despite the continuous concern of the international community, the government has not managed to hold accountable even a single perpetrator. Such ignorance has perpetuated the culture of impunity in Nepal and could lead to gross human rights violations in the future.

On 8 April 2007, the unprecedented investigations carried out by the Supreme Court Task Force, recommended that the Supreme Court issue a directive to the Government to set up a high level commission of inquiry into disappeared persons. The Task Force suggested that the Supreme Court direct the Parliament and the Interim Government to enact a law to punish the guilty, in accordance with international standards categorizing disappearance as crime against humanity. The report also advised the Court to issue judicial strictures to the government and the police to stop illegal arrest and detention.

On 20 April 2007, the Ministry of Law, Justice and Parliamentary Affairs registered a bill to amend the Civil Code with respect to disappearance and abduction (“the Bill”) at the Interim Legislature-Parliament which is still pending approval. This step could be viewed as a fulfillment of the Government’s obligations under international human rights and humanitarian law, in line with the recommendations of the UN Working Group on Enforced or Involuntary Disappearance (WGEID) following its mission to Nepal in December 2004.¹  However, the Bill in fact fails to fully meet applicable international human rights standards.  Many of its provisions are inconsistent with these standards, while several necessary elements are in fact absent. 

The criminalization of enforced disappearance is a positive step towards bringing perpetrators to justice.  However, a comprehensive law on enforced disappearance which encompasses relevant international human rights standards would be stronger indication that the Government of Nepal is serious about ending impunity and ensuring accountability.

On 21 June 2007, the Government of Nepal formed a “High-Level Probe Commission on Disappeared Persons.”  This body does not comply with a recent order of the Supreme Court, ²,and may in fact make it more difficult to ensure justice for past gross human rights violations and to ensure that such crimes do not occur in the future.  There is concern that existing legal arrangements governing the Probe Commission are inadequate, particularly in relation to criminal legislation. Indeed it has been suggested that this move may serve to prolong the culture of impunity that currently reigns in the country. There is a crucial need to form a commission to unearth the truth and find out the number and whereabouts of the disappeared people, to provide compensation to the victims and to bring the culprits to book. Its formation must comply with the verdict of the Supreme Court by introducing a separate law that criminalizes enforced disappearances.

The right to know the fate of relatives is a fundamental concern of international human rights and humanitarian law which must be respected. Legal obligations are laid out in international standards including the latest United Nations Convention for the Protection of All Persons from Enforced Disappearance.  The Government of Nepal must ratify the convention and must ensure that its standards are fully incorporated into the domestic system.

The government’s reluctance to prosecute the perpetrators of these most heinous crimes is a threat to the rule of law in Nepal. A commitment by the government to investigate the truth and to ensure justice for the families of the disappeared would be a key indication of the establishment of accountability and the rule of law in the country, and would be send a clear message to the international community that the Government of Nepal is committed to the protection of human rights.

¹ Report of the Working Group on Enforced or Involuntary Disappearances,  UN Doc. E/CN.4/2005/65/Add.1, 28 January 2005, paragraph 33 and 58
² The order of the Supreme Court of 1 June 2007states that the existing legal framework related to commissions of inquiry is inadequate to address the cases of disappearance that have been systematically practiced during the armed conflict in Nepal. The order instructs the interim Government to introduce new legislation to ensure the establishment of a credible, competent, impartial and fully independent commission. The order also states that, in doing so, the interim Government should take into account the Convention for the Protection of all Persons from Enforced Disappearance and the Criteria for Commissions of Inquiry developed by the United Nations Office of High Commissioner for Human Rights.