• by Mallika Aryal (kathmandu)
• Tuesday, February 03, 2009
• Inter Press Service

Despite loud opposition, the Maoist-led coalition government of Prime Minister Pushpa Kamal Dahal has vowed to push through an ordinance to resolve the cases of hundreds of people ‘disappeared’ during the decade-long people's war waged between Maoist rebels and the forces of the former monarchy.

Amnesty International (AI) and Human Rights Watch (HRW) are among rights groups asking for participation of public and parliament before passage of the ordinance that would make disappearances a punishable crime and facilitate inquiries into atrocities by the Maoist People’s Liberation Army and the Nepal army and police.

'Those who are protesting against the issuance of ordinance, now, had issued ordinances to kill the people during the ‘people’s war’,' Dahal said, declaring his intention to override objections coming from both within and outside the country.

On Monday, United Nations envoy Ian Martin, who played a key role in the peace process after the Maoists gave up their armed revolt in 2006, said that ‘’there is a need to address the victims of the conflict’’ and that ‘’there are big challenges that still remain’’.

The former rebels, grouped as the United Communist Party of Nepal (Maoist), contested the general elections held last year to emerge as the single largest party that allowed Dahal to become prime minister leading a coalition government.

Dahal’s decision to see through the ordinance comes in the background of discussions in the national sphere on the importance of addressing the atrocities of the past.

Last month, the results of forensic tests on evidence found at the Alle area of Shivapuri National Park, north of Kathmandu, indicated the need for further investigations at the site. Eyewitness and locals over the years have identified Shivapuri to be the location where 43 victims of the Bhairabnath and Yuddha Bhairab battalions lie buried.

In December 2007, Finnish experts Helena Ranta of the University of Helsinki and Pekka Saukko from the University of Turku were brought in to analyse the samples collected in Shivapuri. Final reports of the tests released by the National Human Rights Commission (NHRC) in Kathmandu last month state that the remains of at least one male were found.

'From the six different samples we could extract DNA evidence from only one of the samples,' said Ranta. The NHRC has ruled out the possibility of a mass grave at the site, but says it wants to investigate the area further.

Mandira Shrama of human rights organisation, Advocacy Forum, says such probes will pave the way for investigations at other suspected sites in the future, but stresses that it is important not to let the issue fade from the headlines. 'The investigations have to be detailed, so that the issue is kept alive,' she says.

In an effort to build local forensic capacity for future investigations, the International Committee of the Red Cross (ICRC) recently brought in two experts from Geneva who trained NHRC staff, Nepal police, local forensic experts, medical students and human rights activists in exhumation procedures, collection of data and other skills relating to the identification of human remains.

'It is not clear how many bodies need to be identified, but now that that the conflict is over there is a need to develop appropriate skills and build local capacity for identification,’’ scientist Ute Hofmeister, who has worked on exhumations in Bosnia and Latin America, told IPS.

'Society may not be ready but the loved ones want to know because they never forget,’’ Hofmeister said. Under international humanitarian laws, authorities are responsible for determining what happened to those who went missing during an armed conflict.

Accurate information is impossible without forensic expertise. Identification and evidence are extremely important not just for prosecution but also for humanitarian purposes, she said.

Journalist Jit Man Basnet, who was taken away from Kathmandu in 2004 and tortured by the Bhairabnath battalion for over nine months, says it is imperative that the investigations into enforced disappearance start as soon as possible.

'There are many Bhairabnaths all over Nepal, we don’t even know how many people were disappeared during the ‘people’s war’... investigations need to start right away,'' Basnet said.

However, Basnet added that trying to form a disappearance commission through an ordinance is not the way to go. ‘’The way the government is trying to push this through is wrong.'

Senior government officials say ordinance is in its final stages and awaiting promulgation by President Ram Baran Yadav.

The ordinance proposes a five-member commission to probe the whereabouts of people disappeared by the state and the Maoists. It says that a former Supreme Court judge or a person eligible to be an apex court judge will lead the commission.

A distinguished jurist, a human rights activist, a woman representative and a sociologist or psychologist will also be members of the proposed commission.

According to the ordinance, the NHRC, the constitutional human rights watchdog, will monitor the implementation of the report submitted by the disappearance commission and the recommendations made by it. In addition to probing the whereabouts of the disappeared, the commission will recommend reparation to the families of the victims.

Political opposition to the proposed ordinance comes from the main opposition Nepali Congress (NC) as well as its ally in the government, the Communist Party of Nepal-United Marxist Leninist (CPN-UML).

Former prime minister and president of NC, Girija Prasad Koirala, says: 'The Maoist-led government has undermined the role parliamentary system by promulgating an ordinance soon after closing of the House session.' (The first budget session of Parliament ended on Jan. 19).

The International Commission of Jurists (ICJ) has asked the government to ensure that the legislation on disappearances is adopted through regular democratic process and not by ordinance.

'If the government is serious about respecting the rule of law, these bills must be decided by the elected representatives of the people,' said Roger Normand, ICJ's Asia-Pacific director.

In 2007, a year after the end of the communist uprising – that killed over 13,000 people and saw hundreds disappear –Nepal’s Supreme Court ordered the new multi-party government to enact laws that would criminalise enforced disappearances and establish a high-level 'Investigation Commission for Disappeared People' in accordance with international standards.

However, the drafts of the Truth and Reconciliation Commission Bill as well as the Disappearances (Crime and Punishment) Bill came under fire from rights organisations as falling short of international standards and containing serious flaws that would fatally compromise the credibility and effectiveness of the commissions once they are established.

'It is vital that these bills be reviewed by victims, civil society, and the Constituent Assembly to ensure that they bring justice and are consistent with international standards,' said Brad Adams, Asia director at HRW. 'Adopting these bills by decree will mean little public debate or scrutiny and will disempower survivors and victims.'

'A government ordinance that enacts the two bills as they currently stand would establish two ineffective and flawed institutions and would tragically miss an important opportunity to address impunity in Nepal,' said Sam Zarifi, AI's Asia director.

Both individual cases and the wider practice and policy of enforced disappearances, as identified in several authoritative reports, should be examined say the U.N. Working Group on Enforced and Involuntary Disappearances and the Office of the High Commissioner for Human Rights in Nepal.

© Inter Press Service (2009) — All Rights Reserved. Original source: Inter Press Service

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