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UPDATE (Nepal): Maina Sunuwar's murderers have still not been prosecuted, six years on

February 10, 2010

Korean

ASIAN HUMAN RIGHTS COMMISSION -- URGENT APPEALS PROGRAMME

Urgent Appeal Update: AHRC-UAU-004-2010



10 February 2010

[RE: UP-136-2005: NEPAL: Police refused to register First Information Report (FIR) into the custodial death of a girl in Kavre, Dhulikhel; STM-247-2009: NEPAL: Democracy - a dream in waiting]
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NEPAL: Maina Sunuwar's murderers have still not been prosecuted, six years on 

ISSUES: Enforced disappearance; torture; impunity; rule of law
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Dear friends,

The Asian Human Rights Commission (AHRC) is deeply concerned about the impunity of those involved in the murder of Maina Sunuwar. Four military officers are accused of having illegally arrested, raped and tortured this 15-year-old girl to death on 17 February 2004. Despite the enormous national and international attention this case has received and the recent repatriation of one of the accused from the UN Peacekeeping operations in Chad (STM-247-2009), the perpetrators have not yet undergone prosecution.

The AHRC has been reporting regularly on this case since 2005 (UP-136-2005) and since that time little progress has been made in obtaining justice for the victim's family. This case has become emblematic of the malfunctioning justice and police system in Nepal, and of the complete absence of accountability of those who committed human rights violations during the conflict. An unsuccessful legal prosecution will be a huge setback for those who try to establish rule of law in Nepal.

UPDATED INFORMATION:

When the AHRC first reported the case of Maina Sunuwar in February 2004 (UA-22-2004) the victim was already in the custody of the army. The army officers took Maina when they came searching for her mother, Devi Sunuwar, who had reportedly witnessed the gang rape and killing of her niece by security personnel earlier the same month. Evidence and testimonies since then have proven that Maina was raped and tortured to death in the army barracks.

The Advocacy Forum, a Kathmandu-based human rights organisation, has helped Maina's family since her disappearance. After relentless efforts and the direct involvement of the Office of the High Commission of Human Rights in Kathmandu, Maina's unmarked grave in the Panchkal army camp was excavated and the remains were examined and successfully identified using DNA fingerprinting (see UP-136-2005 and UP-173-2006). The family approached the courts and was able to obtain arrest warrants against the army officers. One of the accused, Mr. Niranjan Basnet, had been posted in an UN Peacekeeping mission in Chad and was repatriated after his posting was exposed and lobbied against (see STM-233-2009).

Despite this the courts in Nepal are dragging their feet. This has been openly addressed by the UN. On 16 February 2009 the OHCHR-Nepal representative Richard Bennett stated that 'Nepal has made remarkable strides since the beginning of the peace process. However, lack of accountability and a widespread perception that human rights violators are not subject to the rule of law threatens to undermine the many successes of the process so far. The successful prosecution of human rights violators, including in the case of Maina Sunuwar, will demonstrate to all Nepalis, and to the world, that the Government is fully committed to justice as an integral component of durable peace and stability'.

Those words are still relevant almost six years after Maina's murder. The AHRC is calling for strong political involvement in this case so that justice is accessed by her mother, allowing her to finally pay her daughter a last homage.

BACKGROUND INFORMATION:

Maina's mother, with support from the Advocacy Forum, has been constantly fighting for a legitimate and impartial investigation, to determine the exact circumstances of her daughter's death and see the perpetrators properly prosecuted. They have faced frequent obstacles and opposition from army officers and the police. The attitude of the military extended beyond a simple lack of cooperation, involving the obstruction of the inquiry and denial of Maina's initial arrest, the threatening of witnesses and the fabrication of allegations about how she had been killed, among other ploys.

Police officers also first refused to file the case because it concerned the military. In a statement released in November 2005 the AHRC denounced the collusion between the military and the police, which has severely hindered the progress of the case. For more details see AL-03-2005.

On 8 September 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. This statement was challenged by Maina's mother, supported by the Advocacy Forum. Due to mounting national and international pressure – including the direct involvement of the head of the OHCHR office in Kathmandu – on September 18, 2007 the Supreme Court ordered the authorities to carry out the 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.

Nevertheless by that time, all of them had been promoted. In a benchmark statement on September 13, 2009 the District Court of Kavre ordered the Nepal Army Headquarters to immediately proceed with the suspension of Major Basnet and to submit all the files containing the statement of the people interviewed by the Military Court of Inquiry. Major Basnet was eventually repatriated from Chad on 12 December 2009, casting hopes that he would be prosecuted, which would symbolically mark the end of the area of impunity for human rights violators in Nepal.

On December 8, 2009 in a letter addressed to the Prime Minister, Devi Sunuwar, Maina's mother expressed her hopes that 'Major Niranjan Basnet will be arrested upon his arrival and similar steps will be taken against all other perpetrators'. However, since that day, no progress has been made in the prosecution of the perpetrators. Upon his arrival at the Tribhuvan International Airport the military police arrested Major Niranjan Basnet, committing to his presentation before the court the next day. This has not happened and Major Basnet, though under house custody, has not been prosecuted yet.

Similarly, the file held by the Martial Court which contains evidence that military officers tried to cover up this case, has not been presented before the court yet. The AHRC is therefore extremely concerned that the army might interfere again with the justicial process to prevent their personnel to be prosecuted by a civilian court.

Strong steps need to be taken to stop the circle of impunity of those who have violated human rights during the conflict. As stated before, this case has become emblematic of a thousand others in which the perpetrators of rape, torture or murder have escaped legal prosecution. If justice fails in this case, this would demonstrate once more that the military does not come under the rule of law and cannot be held accountable for human rights violations. An unsuccessful legal prosecution would be a huge setback for those who try to establish rule of law in Nepal.

If the perpetrators are presented before a civilian court and sternly sentenced, and if concrete measures are taken to punish those who have tried to impede the investigation, it would be a strong signal against impunity. The AHRC believes that only this can prove that every Nepali citizen can be equally prosecuted and, by the same token, defended by the justice system, no matter whether or not he belongs to the army.

As Nepal is currently struggling to establish a long-lasting peace after a 10-year conflict that has torn the country apart, politicians have to understand that the scars cannot be healed while those responsible for human rights violations during that time are still unaccountable. This is particularly true in the case of enforced disappearances.

SUGGESTED ACTION:

Please write letters to the relevant authorities to urge for stronger efforts to make sure the four officers involved in Maina’s arbitrary arrest, rape, torture and murder will be promptly brought before a civilian court, and to provide security for the victim’s family.

Please be informed that the AHRC has written a separate letter to the UN Working Group for Enforced or Involuntary Disappearances, and the Office of the High Commissioner for Human Right-Nepal Representative, calling for intervention in this case.

To support this urgent appeal click here:

SAMPLE LETTER:

Dear __________,

NEPAL: Prosecution of Maina Sunuwar's murderers must not be delayed any further

Name of the victim:
1. Maina Sunuwar, 15, permanent resident of Kavre, Dhulikhel
Alleged perpetrators:
1. Major Niranjan Basnet
2. Colonel Bobby Khatri
3. Captain Sunil Prasad Adhikari
4. Captain Amit Pun

Place of the incident: Training centre of the Nepal army's peacekeeping missions' unit, Panchkhal army camp, Kavre district
Date of the incident: February 17, 2004

I am writing to voice my serious concern regarding the latest developments in Maina Sunuwar’s case. I am aware that the case has been delayed due to the refusal of the army to submit the accused officers for trial in the civilian court where the case is pending. I am also aware that there are arrest warrants pending against the accused, which are yet to be executed.

The warrants have been pending since January 31, 2008 and were issued by the District Court of Kavre against Major Niranjan Basnet, Colonel Bobby Khatri, Captain Sunil Prasad Adhikari and Captain Amit Pun. Nevertheless Major Niranjan Basnet was sent to serve in an UN Peace-Keeping Mission in Chad, though on September 13, 2009 the District Court of Kavre ordered the Nepal Army Headquarters to proceed with his suspension, and he was eventually repatriated on December 12, 2009. However though he was arrested by the military police and was due in civilian court the next day, he is still residing at his house and has not been prosecuted yet.

Those at army headquarters have argued that he had already been brought before a Military Court, and that the constitution guarantees against double jeopardy. A Martial Court has already judged this case but in a non-independent and non-transparent manner, in what was clearly an attempt to protect members of the military. Its verdict cannot be accepted.

Moreover according to the Nepalese law cases of rape and murder of civilians by military personnel fall under the jurisdiction of civil courts. The December 2009 Report of the UN Working Group on Enforced Disappearances, in the section regarding Nepal, reminded the government that the UN Declaration on the Protection of all Persons from Enforced Disappearances specifically states that persons alleged of having 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” (art. 16.2).

I therefore request your intervention to ensure that Major Niranjan Basnet, along with the three other officers accused of Maina’s murder is tried by an impartial and independent civil court. Those at army headquarters are consequently obliged to provide all the documents regarding the case, currently being held at the Martial Court, to the District Court of Kavre. They have failed to do so, so far, in another attempt to cover up this case.

If the court delivers a guilty verdict the perpetrators must be punished according to the provisions of the Nepalese Penal Law and adequate compensation must be granted to Maina’s family. I am also asking for stern sanctions against those who have tried to obstruct the course of justice through false allegations, threatening witnesses and intimidating the victim's family. It is absolutely necessary that adequate measures are taken to ensure the protection of Devi Sunuwar, the victim's mother.
The responsibility for the delays in this case lies with the military, for systematically trying to protect its personnel from civilian. However civilian bodies, such as the police or the government, are also to blame for the indifference and negligence so far displayed.

To address the first issue, I vigorously urge the government to show that the perpetrators of human rights violations, whether or not they belong to the army, will be systematically brought before civilian courts, along with those who try to hamper the investigation. I also urge that the government cease the collusion between the police and the army by taking measures to compel police officers to register all cases, whether they involve military personnel or not.

Despite strong lip-service from high-level military and civilian figures to fight against impunity, despite the repeated concerns of the OHCHR office in Kathmandu and despite the publication one year ago of an Ordinance that criminalised enforced disappearances, this case shows that impunity is still deeply-entrenched in Nepal. The trial and condemnation of Maina’s murderers would be an important step toward the strengthening of rule of law in the country.

I look forward to your immediate intervention in this matter.

Yours sincerely,

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PLEASE SEND YOUR LETTERS TO:
1. Mr. Madhav Kumar Nepal
Prime Minister's office
Singha Durbar
Kathmandu
NEPAL
Fax: + 977 1 42 27286

2. Dr. Bharat Bahadur Karki
Attorney General
Office of Attorney General
Ramshahpath
Kathmandu
NEPAL
Fax: +977 1 4262582
Tel: +977 1 4262506
Email: attorney@mos.com.np

3. Mr. Kedar Nath Upadhaya
Chairperson
National Human Rights Commission
Pulchowk, Lalitpur
NEPAL
Fax: +977 1 55 47973
Tel: +977 1 5010015
Email: complaints@nhrcnepal.org or nhrc@nhrcnepal.org

4. Bidhya Bhandari
Ministry of Defense
Singh Durbar, Kathmandu
NEPAL
Fax: + 977-1-4211294
Email: mod@mos.com.np
5. Chief of Army Staff
General Chhatraman Singh Gurung
Army Headquarters
Kathmandu
NEPAL
Fax: 977-1-4245020
+ 977 1 4242168
Email: na_humanrights@yahoo.com

6. Honble Rakam Chemjong
Ministry of Peace and Reconstruction
Singh Durbar, Kathmandu, Nepal.
Tel: +977 1 4211189
Fax: +977 1 4211186 and 4211173
Email: info@peace.gov.np

7. Bhim Bahadur Rawal
Ministry of Home Affairs
Singha Darbar
Kathmandu
Nepal
Tel : 00977-1-4211204 / 4211252
Fax: 00977-1-4211246
Email : info@moha.gov.np

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Please be aware that although we regularly update our contact databases, emails to local authorities do sometimes bounce back due to domestic technical issues. If this happens consistently please do inform us at the email address below.

Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)

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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.