OHCHR's challenge in Nepal

By - Jyotsna Poudyal

It could be argued that since the signing of the Comprehensive Peace Agreement in 2006, the human rights situation in Nepal has improved considerably. The war is over, the insurgent party is now leading the government, people are no longer being disappeared or abducted by the Nepal Army or the Maoists; and killings, physical assaults, displacement and incidents of violence have lessened. Although the end of war almost automatically leads to a reduction in the number of human rights violations, the end of conflict by itself does not guarantee protection and fulfilment of human rights. In Nepal, the situation remains the same in many aspects: there has been no improvement in public accountability and political independence of the police and the Nepal Army and the entrenched culture of impunity. In fact, it is possible that impunity may become more formalised and entrenched during this current transition period as many national and international actors hesitate to challenge it fearing that it will "disturb" the peace process.

 

Individuals believed to have violated human rights continue in their government positions. In the absence of effective action by the state, human rights violations and criminality have actually increased in the Tarai. Likewise, the Maoists' commitment to the rule of law is questionable as demonstrated by the activities of the Young Communist League (YCL). Sadly, the decision of the Nepali Congress and the CPN-UML to form their own equivalents has only served to legitimize the YCL and its methods. Many internally displaced persons have not been able to return home, and complex transitional justice issues are yet to be addressed. The recent annual report of the National Human Rights Commission (NHRC) raises many of these human rights issues. Consequently, the human rights community in Nepal faces many challenges: ensuring justice and reparations to those who suffered during the conflict, pressing for accountability of past violations, and ensuring human rights becomes a basis of state reconstitution. A strategy for the overall human rights community for pressing accountability, justice and reparations needs to be drawn up. For this, the role of two institutions -- the NHRC and the Office of the High Commissioner for Human Rights (OHCHR) -- is central to achieving these objectives in the coming days.

 

Established in the middle of the armed conflict in 2000, the NHRC has survived turbulent times and has faced many challenges in these eight years. They range from limited resources and support from the government to a serious loss of credibility and support from key civil society actors between the period when the former king hand-picked commissioners in June 2005 and the fall of the royal government in 2006. This was particularly sad as previous commissioners had built public legitimacy for the NHRC with independent inquiries and reports such as on Doramba in September 2003.

 

Now, faced with an unresponsive government that isn't keen on implementing its decisions, the new commissioners struggle with the challenges of resolving disappearance and abduction cases, pushing for accountability and prosecution to combat impunity, addressing the large case backlog, and reaching out to Nepalis who remain vulnerable to various forms of human rights violations. In addition, addressing the human rights situation in the Tarai is another major challenge as the NHRC has to operate within a space affected by political tensions and divided along ethnic and caste lines.

 

Likewise, the OHCHR, which initially enjoyed strong support from all segments of Nepali society including political parties, faces new challenges: decreasing political support, addressing the issues of the Tarai and the situation of impunity, improving institutional accountability in the police and the Nepal Army, and, particularly, strengthening the relationship with the NHRC which seems to have gone through a tough time recently -- a fact that came to light in July this year after one of the NHRC commissioners made a public statement against the OHCHR.

 

The decrease in political support may be due to the changed political context. The political parties who were "victims" of human rights violations back in 2005 are now the government responsible for human rights protection and now seem less enthusiastic about OHCHR scrutiny. However, there are other factors that could undermine the human rights momentum in Nepal, in particular, the relationship between the OHCHR and the NHRC.

 

During most of the conflict, the NHRC had no or illegitimate commissioners. With the appointment of new commissioners in 2007, the commission got a promising opportunity to rebuild its lost credibility and visibility. As the two institutions - NHRC and OHCHR - are now sharing the same space for human rights work, performing similar functions and reaching out to similar national and international actors for support and trying to prove their own effectiveness, competition or tension between the two institutions may have developed. However, these two large human rights institutions should be seen as complementary rather than competitive. We need a strengthened alliance between the two. For this, both institutions need to have a joint vision and strategy regarding what they want to achieve, at least in the next two years. If they already have such vision, Nepalis need to be informed about it. Key civil society actors believe that a strong NHRC-OHCHR collaboration can bring key structural changes in the human rights situation. Mandira Sharma, a human rights activist, believes that a complementary role for the NHRC and the OHCHR is essential to address the present human rights challenges.

 

"While the NHRC needs to explore ways to challenge cases that they have investigated in the national court, the OHCHR is in a position to provide technical inputs to investigations and litigations as they have access to international experts who have worked in international tribunals," she states. However, she concludes that "any formal agreement between the two organizations should not curtail the mandate of the OHCHR".

 

For the OHCHR, an important indicator of its success will be how strong a national human rights institution it leaves behind. For this, it is important for the OHCHR and the NHRC to forge an alliance that will enable the NHRC to strengthen its capacity in monitoring, investigating, interviewing, promoting, reporting and human rights analysis. Such a capacity-building exercise needs to take place within the political context, such as through mutually agreed collaboration on investigations, monitoring and reporting, and not just through individual trainings to NHRC staff. This kind of mentoring is more likely to enhance the NHRC's capacity to apply human rights investigative skills and analysis to their work. Likewise, the NHRC possesses a strong understanding of local cultures and changing political dynamics; their analysis could inform the OHCHR and help it to negotiate space for human rights with the government by mobilizing international actors.

 

In the current political environment, the NHRC alone will not be able to address post-conflict justice and human rights violations. We need both institutions -- the NHRC, which is strong enough to fight for the protection of human rights for Nepalis, and the OHCHR, which is strategic enough to negotiate space for human rights work and support the government's work in bringing an end to impunity, reforming the criminal justice system and strengthening the capacity of the NHRC while maintaining a clear exit strategy for itself.