Torture: A Time To Heal

A year after the cessation of armed conflict, torture still figures as number one human rights problem. As the world marks the UN Day in Support of Victims of Torture on June 26, Nepal would do well to quickly ratify the Optional Protocol on Convention Against Torture (OP-CAT) that lays the ground for domestic visiting mechanisms to check the detention centres – widely regarded as an effective tool to curb as well as prevent torture.

By SANJAYA DHAKAL

The issue of involuntary disappearances, which continues to haunt the people of Nepal even a year after the cessation of armed conflict, has a lot to do with torture.

Human rights activists believe that oftentimes a person is ‘disappeared’ after the latter is subjected to extreme torture, which leads to his/her death or severe mental/physical injury. In order to suppress the consequence, the victim is made to ‘disappear.’

According to the International Committee of Red Cross (ICRC) Nepal Office, 973 families have reported a disappearance to the ICRC and are still seeking information on the fate of their loved ones. The National Human Rights Commission (NHRC) has put the figure at over 800 – 600 by the state and 200 by the Maoists.

Of these disappearances, the case of 49 missing people from Bhairavnath battalion of the army is particularly pertinent here. Former inmates of the battalion like Krishna KC and Jitman Basnet have come out with horrifying tales of torture.

A study of situation in jails by Centre for Victims of Torture (CVICT) – which monitors the situation of torture and also provides the victims with rehab facilities - has shown that 79 percent of inmates were found to have been subjected to varying degrees of torture during the course of interrogation. Currently, on an average, there are around 6000 jail inmates while similar number of persons remain under police custody at any given time.

This, however, still marks an improvement from the time of conflict when every year, 100,000 people in the country were directly or indirectly traumatised by torture – mental or physical – perpetrated against them or their family members. As per the study conducted during the conflict period by the CVICT, every year around 8000 people were arrested - and released from the custody of the security forces. Similar number of people were arrested/released by the Maoists. Around 80 percent of them complained of torture.

The trend of using torture had dramatically increased in the past couple of years. According to the CVICT data, during 1991-1996 only around 3000 victims of torture had approached them for service. This number rose astronomically to 17,000 between 1997 and 2003. Although the new study has not been carried out in recent times after the end of active conflict, the number of victims approaching the Centre has come down substantially.

However, torture is still used as a favoured tool to extract confessions; and routinely practiced to subdue opponents. In Nepal, various forms of torture like isolation, deprivation, blind-folding, humiliation, threats, threats to relatives, sexual abuse and mental tormenting are employed.

“As the current laws do not yet designate torture as a crime, the situation has not improved despite the ending of internal strife. Torture is still routinely practiced,” said Dr. Bhogendra Sharma, executive president of CVICT.

Dr. Sharma added that in the last one year, it was due to initiative taken by the masses and not the state that torture was brought to public notice. Just last week, a boy had died in the custody of Balaju police post, allegedly of severe torture. Families and local people subsequently gheraoed the post forcing the police to investigate the charges.

Disturbingly, in the last one year despite the end of Maoist conflict, various groups have sprouted, particularly in southern plains, carrying out low intensity insurgency. A recent Home Ministry report said that there are nine different armed outfits in Terai who have taken recourse to violence, crime and rights abuses including torture in the name of upholding rights of people of Terai. This apart, the Maoist-affiliated Young Communist League (YCL), too, has been accused of engaging in indiscriminate abductions and torture.

Subodh Pyakurel, president of INSEC – a human rights organisation, said that although the incidents of torture at the hands of state has come down dramatically, those by non-state actors such as YCL, Madhesi Janadhikar Forum (MJF), and various armed outfits have increased substantially. “In case of state, the incidents have come down not because they have improved their behaviour but because in last one year, the state security forces have turned into mute spectators to the situation of worsening anarchy,” Pyakurel said.

Terming the state of torture as “dangerous,” Pyakurel said that the level of torture caused by “social divide” has grown exponentially. “In Terai, communal feelings have been sown that is causing the social divide. And social divides cause far greater intensity of mental torture among general population,” he said.

OP-CAT: The Way Forward

One way of controlling and preventing torture is to institutionalise the mechanism of visits to detention centres, say rights activists. The regular and unannounced visits by designated organisations can not only discourage the perpetrators but also educate the entire security system, they believe.

Rights activists and civil society organisations have said that although Nepal is a state party to the CAT, it needs to ratify the Optional Protocol if it is to consolidate domestic visiting mechanism to detention centres. They also believe that joining the International Criminal Court (ICC) would also go a long way to deal with crimes against humanity and end impunity – the single most cause of concern raised by UN rights body vis-à-vis Nepal’s efforts to uphold human rights.

In order to set up National Preventive Mechanism (NPM) – which has been found to be effective in preventing torture – the United Nations adopted the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on December 18, 2002.

The NPM refers to setting up or designating one or several domestic level visiting bodies for the prevention of torture. Bound by code of conduct, these domestic bodies can engage in visits of detention centres.

“In our experience, we have seen that undertaking of regular visits at the detention centres help in bringing down the level of torture there. We have had a lot of experience where after we discovered torture being practiced, authorities discussed and improved the situation. Till now we have undertaken such visits on our initiative without legal cover. Once the OP-CAT is ratified, this process can be systematised,” said Dr. Sharma.

The cases like the one seen in Bhairavnath battalion could be prevented in future if the OP-CAT is ratified and domestic visiting mechanism is institutionalised, say rights advocates. “We cannot always remain dependent on visits by international organisations. That is neither feasible nor sustainable,” said Dr. Sharma.

In fact, a resolution to adopt the OP-CAT had been registered at the restored House of Representatives last year. “But the House was dissolved before it could adopt the OP-CAT and the interim parliament is now in place. However, the parliament is positive towards adopting the OP-CAT,” Speaker of the legislature-parliament Subas Nemwang said.

“I urge the government to introduce the proposal to ratify the OP-CAT,” said Speaker Nemwang.

Pyakurel, too, agrees that the first step to control torture could be ratification of OP-CAT. But, he remains apprehensive about the honesty of political leadership. “Take for instance the ratification of Optional Protocol of CEDAW (Convention on Elimination of All Forms of Discrimination Against Women) which the parliament ratified last year. At the last moment, it was ratified along with a restrictive clause that would forbid us from filing complaints at CEDAW Committee and/or seek their intervention. That totally defeated the whole purpose. By agreeing to pass such impotent law, the women political leaders and MPs of even so-called revolutionary parties exposed the naked fact that though they have body of women, their mind resembles to those of feudal males,” Pyakurel said.

Pyakurel’s cause of concern appears genuine in the face of indifference exhibited by the government even to implement the existing legal provisions. “There is a Torture Compensation Act of 1996. But till now, only 7 victims have actually received compensation. The courts have asked the government to take departmental action on 13 cases. Its implementation has not been made public. Similar situation is there regarding NHRC’s decisions,” said Jamuna Poudyal, an advocate associated with the CVICT. The civil society organisations have been demanding the UN to ban the perpetrators of torture from joining peace force but that has not succeeded totally.

As such, it is hard to expect that the dismal situation of rampant use of torture can change overnight. However, ratification of OP-CAT; implementation of court judgments and recognition of role of domestic rights organisations in improving human rights record would pave the way for achieving the destination of new Nepal where liberty of individuals are taken in highest esteem and their fundamental rights respected – not only by the state but also by the non-state actors. nepalnews.com Jun 25 07

(Comments on this write-up can be sent to editors@mos.com.np. The writer can be reached at sandhakal@gmail.com)

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