Tracing Disappeared Persons
Jaya Shor Chapagain
Enforced disappearance is not a new phenomenon in Nepal. Many people are believed to have been the victims of enforced disappearance during the democratic uprisings. The history of enforced disappearance in the country can be traced back to the 1951 people’s movement against autocratic Rana Regime. The trend of intimidation, threat, arbitrary arrest, undisclosed detention and enforced disappearance of revolution supporters increased during the Panchayat rule. That practice did not come to an end even after the restoration of democracy in 1990. Unfortunately, enforced disappearance became a part of the conflict strategy even after the establishment of democracy. The number of enforced disappearances increased significantly during the decade-long conflict (1996 to 2006) between the State and the then CPN (Maoist).
High number of victims
Different sources revealed that the number of victims of enforced disappearance increased significantly when a state of emergency was declared on November 26, 2001 along with promulgating the Terrorist and Destructive Act (Control and Punishment) subsequently. According to the National Human Rights Commission (NHRC)’s data, whereabouts of as many as 846 persons, who had disappeared during the insurgency, are still unknown. Among them, 606 were disappeared by the State side while 146 were abducted by the rebel side. The remaining 94 were disappeared by the unknown persons or groups. There is lack of uniformity in data about the number of the disappeared persons. Different organisations have publicised different data. For example, INSEC, an NGO working in this field, has mentioned only 932 people became the victims of enforced disappearance. Out of them, 825 were disappeared by the State and 107 by the non-state actors. Likewise, ICRC said 1,333 people were missing during that period. The data may have varied due to ease of access of victims’ families to the organisation. The number might be more than that as the victims’ organisations often claim that the number of enforced disappeared persons stand at over 2,000.
The families of those disappeared are facing lots of problems in their daily lives. They always expect their dear ones would appear suddenly and speak about the injustice meted out to them. They are used to seeing the illusion of appearance of their lost ones as they used to wake up at mid-night heading the sounds of their lost family members. If someone knocked on their door, they wondered whether their stolen heart had returned. So, every minute, they look out the roads expecting a miracle that their loved one would come, hug, kiss and share the plights s/he had faced during their unseen detention. Presently, the families are worried that they may die without knowing the truth about their loved ones and receiving justice.
Earlier, mostly spouse, parents and siblings looked after the whereabouts of their lost ones. Now, the situation has changed a little; even the children who were infants or in mother’s womb have now become adolescents and are actively involved along with their seniors in seeking truth and justice. Furthermore, the sequence of plights is even worsening for women whose husband’s whereabouts is unknown. They are deprived of property rights. In practice, all responsibilities like rearing and caring of children, parents, household activities fell automatically on single women excluding the property rights. Due to the existing legal provisions, without having a death certificate or 12 years of their disappearance, no woman is able to claim their share in ancestral property.
The successive governments have made lots of efforts to materialise the peace process. The decade-long insurgency came to an end with the signing of the Comprehensive Peace Accord (CPA) on November 21, 2006. Thereafter, many agreements have been made in regard to the issue of enforced disappearance, i.e. finding and publicising the whereabouts of the disappeared persons within 60 days, establishing the Truth and Reconciliation Commission and the Commission of Investigation on Enforced Disappeared Persons for seeking truth, justice and providing compensation and reparation. However, they were unable to find a roadmap to address the problem. They seem confused as to how to resolve the issue. They even could not gain confidence from victims’ family and civil society for their work. Ultimately, the four-year tenure of the commissions expired without achieving the targeted result.
Presently, we have the Criminal Code, which came into force on Bhadra 1, 2075 B.S. This law takes an enforced disappearance as a crime and the responsible authority or person may be liable for 15 years of jail sentence. But, in principle, it does not cover the crimes committed prior to its enforcement. However, Nepal has already signed seven out of nine major international treaties related to human rights. Enforced disappearance violates multiple human rights. Although we have not ratified the International Convention for the Protection of All Persons from Enforced Disappearance, 2006, most of its provisions were applied through other different human rights related treaties to which the country is a party. The International Convention on Civil and Political Rights (ICCPR), 1966, which is domesticated by Nepal, does contain a number of rights, such as right to an effective domestic remedy (Article 2(3), right to life (Article 6), prohibition against torture and cruel, inhuman and degrading treatment (Article 7), right to liberty and security of person (Article 9), the right of detainees to be treated with humanity and dignity (Article 10), and right to recognition as a person before the law (Article 16) that are relevant to situations of enforced disappearance. Some or all these rights may be implicated in an enforced disappearance. That is why Nepal is obligated to take effective legislative, administrative, judicial or other measures to prevent the acts of enforced disappearance. Additionally, the Guiding Principles for the Search for Disappeared Persons approved by the UN Committee at the 16th Session in April 2019 adopts about 16 principles. That may be the guiding path in our context, too. It presumes disappeared persons are alive and focuses on human respect and dignity, advocates for comprehensive public policy or strategy, ensures meaningful participation and representation of victim’s family and continuous search until their whereabouts are known.
Review past efforts
To sum up, the State has to review the causes of failure of the two commissions and formulate a new Act based on the spirit of the constitution and the Supreme Court’s Verdict 2007 which explicitly mentioned the provisions in line with international human rights standards and commitments made on national and international forum. It would be better to empower the commissions to handle the complaints. To make the work more reliable, the Disappearance Commission should formulate victim and witness protection policy and develop the psycho-social counseling mechanisms targeted to victims’ family. Similarly, it should ensure that the commission’s recommendations are implemented with adequate reparation to victims’ family. Additionally, in crime against humanity, to provide speedy justice at the recommendation of the Disappearance Commission, the State may alternatively run the Special Court through the fast-track. These are the minimum standards which could gain people’s confidence in the commission. Provided the Commission deals with these components, it will definitely be successful in making public the whereabouts of disappeared persons, investigating into the complaints and meeting legal procedures. All this is necessary to provide adequate justice to the victims’ family.
(Chapagain is a researcher on human rights)