The Many Faces of International Justice (2/4): Nepal

Over the summer, as part of the Crossroads project, ASF is bringing you the latest news about international justice. Our teams on the ground give you the lowdown on progress, hold-ups, hopes and worries surrounding international justice and improving access to justice for victims. This week, Prashannata Wasti, who works for our partner INSEC, shares the latest news from Nepal. Find out how last April’s terrible earthquake is interfering with access to justice.

Q.: In May 2015, parts of Nepal were hit by a terrible earthquake. How does this natural disaster impact on progressing towards more access to justice and dealing with the crimes of the past?
A: Following the earthquake, the issue of international justice has suffered a setback. However, one ‘silver lining’ of the earthquake is that all the major political parties agreed to promulgate the new constitution by the end of July.  At present, Nepal has an Interim Constitution drafted to gear the transformation process from a unitary, constitutional monarchy to a federal republic. A participatory process allowing human rights defenders to review and comment on the new draft constitution has been set up. We hope that once the new constitution is promulgated, politicians and human rights organizations will again focus their attention on the crucial issue of international justice in our country.

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Prashannata Wasti, Senior Officer, INSEC Nepal

Q: How do you see the role of the international community at present on supporting international justice in Nepal?
A: We are very grateful to the international community for its support in responding to the emergency following the earthquake. Obviously, major aid agencies are focused on the reconstruction of the damaged infrastructures. The first objective is to normalize people’s daily lives. After such a dramatic event, which caused over 8,000 deaths, injured thousands and thousands others, and left so many people homeless, it’s completely understandable that issues like justice are not the main focus. However, we wish for a swift recovery for Nepal and hope that international justice will be back on the agenda soon.

Q: How is the earthquake affecting victims of human rights violations committed during the war, and access to justice?
A.: Some of the most war-torn districts, such as Gorkha, Kavre and Dhading have also been affected by the earthquake. So the victims of the conflict are also victims of the earthquake. It has been more than two months, but people are still in shock. All the attention goes to the earthquake, at every level. For example, human rights defenders are busy providing and monitoring the distribution of aid, ensuring it is being done following principles such as non-discrimination. We could say that even if human rights organizations keep raising the issue of access to justice, this might not be seen as a priority.

Q: Since World Human Rights Day (10 Dec. 2014) has any major progress been made in the area of international justice in Nepal?
A: Yes some progress has been made. A law adopted in 2014 (The Commission on Investigation of Disappeared Persons, Truth and Reconciliation Act) held the possibility to grant amnesty to perpetrators of international crimes and gross human rights violations. Victims and the population at large feared that perpetrators would be exempt from trial. More than 200 victims decided to file a petition to the Supreme Court of Nepal, thus challenging the discretionary powers of the two Commissions responsible for addressing the crimes of the past: the Truth and Reconciliation Commission and the Commission on Investigation of Disappeared Persons.
On 26 February 2015, the Supreme Court curtailed the discretionary powers of both Commissions to grant amnesty and said that the victim’s consent should be made mandatory for any act of reconciliation. This Court decision has been welcomed by victims and since February, the Nepalese government set up the framework for these two commissions and appointed commissioners.
Another positive development concerns Colonel Kumar Lama. Arrested in London in 2013, this high ranking officer of the Nepali Army is charged with two counts of torture during the civil war in 2005. His trail started in early 2015 in the United Kingdom.

The Crossroads project: convinced that trying crimes of the past can help build a better future, ASF and its partners, ASF Canada and INSEC, support access to international criminal justice for the most vulnerable people whilst respecting the rule of law and international standards. The project involves six countries on three continents, with the specific aim of strengthening justice systems in the six countries in question. Discover the stories of those involved in international justice in Burundi, Colombia, Democratic Republic of Congo, Guatemala, Nepal and Uganda. Read and watch their testimonies www.roadtojustice.eu.
Cover picture: Nepal © 2014 Universal TV Media

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Nepalese women’s quest to claim rights

Nepal, 23 April 2014 – In Nepal, when a man abandons his wife and family it is common for the woman to be left in the lurch as destitutes. Women are systematically denied their rights under the law especially property rights, inheritance and alimony. Avocats Sans Frontières (ASF), in partnership with local bar associations, plays a crucial role in not only empowering women’s awareness of the law to claim their rights but also accompanying them through the legal processes.  

In the Nepalese society, when a woman gets married, she is expected to  renounce her own family and adopt her husband’s family. She is very dependent on this new family who becomes her sole source of livelihood, social security and social status.

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Malati Rajbanshi Lama – with daughter Jasmin Lama – brings her case to a legal aid clinic supported by ASF© @ASF – N. de Oliveira

Malati Rajbanshi Lama (see photo) lives in a remote village, some 100 km from the capital city of Katmandu. “After my husband left me, I never received any financial support from him either for me or for my children. My in-laws refuse to recognize my marriage and deny access to my house”, she recounts. “My children used to go to school but now they cannot do so as education is very expensive”.

With the intervention of a local bar unit supported by ASF, Malati became aware about her rights and legal procedures. In the nearest legal aid clinic, she received legal counseling and felt empowered to file a case in the local court.

Malati now lives in a government safe house with her three children and gets daily wages just enough to support her family. Her case has been filled for partition of property, alimony and marital status recognition which, in Nepal, is important for registration and citizenship rights for Malati and her children. She now awaits the court decision which should improve her living conditions: “We expect a decision from the Court in the next five months. It is long but my lawyers are positive”.

ASF’s legal awareness activities such as mobile clinics to village development communities and radio sensitisation programs aim at providing information about the law and the legal services available for people in vulnerable situations, like Malati.

Other ASF objectives include increasing the demand for legal services offered by the Districts Bar Units, strengthening the capacities of Bar Units and individual lawyers to assisting vulnerable and marginalized people.

Over one million people have been reached through legal awareness program like radio programs, school programs and mobile clinics, in five districts in the country. 1,277 people directly benefited from legal advice, legal assistance and, where applicable, representation in court.

ASF has worked in close partnership with the Nepal Bar Association and two other organisations (*). The project is financed by the Belgian Ministry for Foreign Affairs.

(*) The PPR (Forum for Protection of People’s Right) and the LACC (Legal Aid & Consultancy Center)

Cover picture: Malati Rajbanshi Lama © ASF – N. de Oliveira

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Law Talk Aired Out

Kathmandu, 27 November 2013 – How does one ensure that people know their rights when a large part of the population is illiterate, poor and lives in remote rural areas? In Nepal, community radio is a perfect medium to raise legal awareness and disseminate information. ASF has been broadcasting radio jingles and talk shows on subjects such as gender and reproductive rights, child rights, and anti-discrimination laws, prompting people to share their stories and participate in legal discussion on the air.

The numerous laws enacted in Nepal to address social and economic exclusion and discrimination of marginalised groups have not yet succeeded in changing the realities on the ground. With 30% of the population unable to read or write, and living in extreme poverty, and four people out of five living in remote rural areas, most people are unable to participate in the political transformation of the country, nor do they have access to justice mechanisms.

Advocate Hari Prasad Adhikari hosts a talk program twice a month on Radio Jockey © ASF.
Advocate Hari Prasad Adhikari hosts a talk program twice a month on Radio Jockey © ASF.

In close cooperation with the Nepal Bar Association and five District Bar units*, ASF has been broadcasting radio jingles and talk shows to raise legal awareness and disseminate information to the population. “Community radio is the most trusted communication agent”, explains Biswo Jit Khadka, ASF’s National Program Officer. “We use it to inform people about the legal aid centres and services available in the districts, but they can also call us about their personal situation. We estimate that about 30,000 people listen to our programme in each district”. Since July 2011, out of the 1277 cases registered in the ASF-Nepal Bar Association district legal aid centres, 300 sought legal services as a result of the radio sensitisation programmes.

Advocate Hari Prasad Adhikari (picture), a District Legal Aid Lawyer from Kaski, hosts a talk programme twice a month on Radio Jockey: “The program is an effective platform for lawyers, justice actors and the public to discuss opportunities and constraints in accessing justice. We answer telephone calls, mostly from victims from villages to discuss their daily sufferings such as domestic violence, caste-based discrimination, fundamental rights, and other rights violations. Their stories are moving and we are always eager to find solutions using all our resources. When discussing the legal problems of one radio guest from a remote village, we also help the other listerners facing the similar issues.”

Nepalese laws are at times ambiguous and difficult to understand for people unfamiliar with legal jargon. “Community radio is an important tool to engage the population in discussions on law and development that affects their lives and that of their community”, concludes Biswo Jit Khadka.

* in Kanchanpur, Kaski, Makawanpur, Morang, and Rupandehi

ASF’s projects in Nepal are financed with the support of the Belgian and British Governments.

Cover picture: Villagers from the Kaski District (Central Nepal) listen to ASF’s radio programme © ASF.

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Nepalese women lawyers improve knowledge of medico-legal techniques

Kathmandu – Courts dealing with criminal cases take forensic matters such as DNA profiling, post-mortem reports, and finger prints as first hand or direct evidence. Lawyers must understand these technical subjects which can play a crucial role in court decision-making. A training organised by Avocats Sans Frontières (ASF), in cooperation with the Nepal Bar Association and the Women Lawyer’s Committee of the Supreme Court Bar Association, supports women lawyers to improve their practice, especially in cases of women’s rights violations.

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Medical-legal terms and practice need to be understood by lawyers, ASF training, Kathmandu, August 2013 © ASF

Medico-legal terminology, experts’ writing and other forensic actions used by doctors and experts in cases and trials are often difficult for lawyers and judges to understand. Yet, issues raised in these reports can be crucial in deciding the case. “Scientific evidence is important in crime investigation. Proving or disproving allegations against an accused, like DNA profiling, can help identify potential suspects”, explains Advocate Biswo Jit Khadka, ASF Program Officer in Kathmandu. “In some cases, only scientific evidence can reveal the truth. This is why the different stakeholders – including lawyers – must be able to understand this type of evidence.”

The ASF mission in Nepal is focused on improving access to justice for people in vulnerable situations, on building capacity of legal service providers, such as lawyers, and ensuring effective and quality legal aid services. In Nepal, it is particularly difficult for women lawyers to get training in medico-legal terms and practice, partly because of nepotism and favouritism but also because of gender discrimination in the selection of participants. “Yet, women lawyers need to improve their understanding in these matters, especially because they are often the ones to deal with the high number of women’s rights violations such as sexual harassment, witchcraft hunting, domestic violence, homicide, suicide and rape, and other forms of violence and discrimination against women.”- Advocate Sunil Kumar Pokharel, Secretary General of Nepal Bar Association.

This is why ASF, in cooperation with the Nepal Bar Association and the Women Lawyer’s Committee of the Supreme Court Bar Association, organised a one-day training session in Kathmandu at the end of August on the “Medico-Legal Role in Effective Legal Aid” geared toward practicing women lawyers. Some 50 woman lawyers representing various Bar Associations in the country participated in this training, which included key medico-legal experts and  forensic scientists.

“This training was very useful for me as I defend women’s rights. Currently, I am dealing with a case of rape and need to understand how I can best use evidence collection and results to strengthen my legal arguments”, said Advocate Ms. Radha Sigdel, member of the Kathmandu District Court Bar Association.

“By improving their knowledge in forensic sciences, we aim to support these lawyers in their work defending and protecting women and their rights”, concludes the ASF Program Officer Biswo Jit Khadka.

Cover photo: these women lawyers will improve their practice in cases of women’s rights violations, Kathmandu, August 2013 © ASF

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International Criminal Court (ICC) and Its Application In Nepal

Nepalese lawyers help counter human trafficking

Makawanpur, Nepal, 3 June 2013 – Enhancing people’s access to justice is crucial in the fight against impunity for human trafficking in Nepal. Together with its partner NGO, the Forum for Protection of People’s Rights (PPR) and the local district bar, Avocats Sans Frontières (ASF) is organising mobile legal clinics as a way to counter this widespread phenomenon. Thanks to these mobile legal aid centres, communities are sensitised about their rights and are provided with counselling when they face legal problems.

Over the past few years, human trafficking has become an increasingly severe problem in Nepal. Men, women and children run the risk of being abducted, transported and exploited or sold by means of coercion.

“Trafficking mainly occurs for the purpose of organ transplants, marriage, prostitution and domestic servitude, mostly in countries abroad. India, Korea, Hong Kong (*), China, Tibet (**) and the Gulf countries are the main destinations”, explains Mr. Mukunda Adhikari, PPR’s District Coordinator. It is estimated that about 11,500 people were trafficked or attempted to be trafficked in 2011 – twice as much as in 2010. Every year, 5,000 to 7,000 women and girls are being trafficked to India for prostitution.

To address this problem, the district bar of Makawanpur, PPR and ASF have decided to organise specific mobile legal clinics around human trafficking.

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A legal clinic in Makawanpur

The legal clinics are taking place on a monthly basis in three municipalities and target representatives of the police, women groups, community-based organisations and other lawyers, as well as affected populations. They are conducted by two lawyers from the district bar association. During the first awareness-raising part of the clinic, they clarify legal issues relevant to local context or raised by the participants, such as human trafficking, fundamental rights, and women rights. Afterward, they provide legal counselling, for example, about the procedure to file complaints in the case of a human trafficking incident. If people need court representation, the clinic refers them to the district bar association, where they are provided with free legal aid.

Recently, in Hativa, this particular initiative gained the support of a district court judge, Mr. Tek Narayan Kunwar, who participated and interacted with the attendees. “The challenges in tackling human trafficking are various”, he said. “Its underlying causes vary from one victim to another; they range from poverty and unemployment to discrimination and impunity. This complexity makes human trafficking tough to tackle”.

Mr. Gopi Parajuli, ASF Head of Mission in Nepal: “By supporting the mobile legal clinic, we are contributing to enhancing people’s access to justice and to combatting impunity in Nepal.”

(*) (**) respectively Special Administrative Region and Autonomous Region of China

District court judge interacting with the attendees © ASF
District court judge interacting with the attendees © ASF
Cover picture © Kate Holt/IRIN

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Preparing to implement the Rome statute in Nepal

Combating torture: Beware of “false victories”

Brussels/Bukavu/Kathmandu, 26 June 2012 – On the occasion of the International Day in Support of Victims of Torture on 26 June, Avocats Sans Frontières (ASF) reiterates the need to ensure torturers do not escape punishment. ASF highlights two “false legal victories”: defining the term “torturer” (too) broadly and compensating victims so that they are dissuaded from seeking prosecution.

Under the 1984 United Nations Convention against Torture, torture is defined as any act whereby a public official or any other person acting in an official capacity intentionally inflicts severe pain or suffering on a person. This violence must be exercised for the purpose of obtaining information or a confession, punishing the person for an act he is suspected of having committed or intimidating him. “The State is actually considered to be responsible for this violence perpetrated in its name,” explains Jean-Charles Paras,  ASF expert in civil and political rights.

Progress has undoubtedly been made in several countries. Torture and other cruel, inhumane or degrading treatment is prohibited by laws criminalising these practices. However, a broad definition of perpetrators of torture does not necessarily support prosecuting genuine “state torturers”.  This is the case in Uganda, which has just passed a law defining torture in national law but applying it to any individual, not just agents of the State. “There is therefore a high risk that the State will only prosecute private individuals to show that it is proactive in combating torture but refrain from prosecuting its own police officers or soldiers,” warns Jean-Charles Paras.

ASF finds the same phenomenon in the Democratic Republic of Congo. “Before the Torture Act was passed in 2011, it was difficult to convince judges to prosecute torturers,” recalls Sylvestre Biswima, a lawyer working with ASF in Bukavu. Even today, the judicial system shows a certain tolerance for the practice of torture and successful prosecution of agents of the State remains all too rare. “Trials can be long and drawn out. For instance, I’ve been following a torture trial for three years where the accused – a security guard – has not attended a single hearing!” reports the lawyer.

Prison de Mbandaka, RD Congo - Myriam Khaldi

Copyrights ASF / Myriam Khaldi

Compensation, a temptation for victims

A second “victory” that is a cause for concern for ASF in its fight against torture is compensation for victims when it is designed to dissuade them from seeking prosecution of the perpetrators.

For instance, in 1996, Nepal passed a law allowing victims to receive compensation from the State if they could prove the crime suffered by them. However, the aim of this Act is not to prosecute the criminals responsible. “In practice, this Act has only led to compensation for a few dozen people, out of the thousands of victims of torture during and after the conflict,” says Jean-Charles Paras. Victims are tempted to take advantage of this legislation to obtain financial compensation. As they are mainly poor people, they do not believe that the State will prosecute the torturers and therefore do not file a complaint. So, in practice, this Act changes nothing for the police officers and soldiers who still escape punishment.

Until legislation criminalising torture is passed, ASF, together with several Nepalese NGOs, is engaged in advocacy and supporting lawyers combating torture. “This support helps us to use the existing system and legislation more effectively to bring cases of torture to the attention of the police and judges,” believes Rajendar Ghimire, a Human Rights lawyer in Kathmandu. “In this way, we hope to help to protect, defend and restore victims’ human rights.

Torture is now recognised as one of the worst international crimes. Of course, the efforts made and results achieved, such as the passing of laws criminalising torture in the national legislation of certain countries and compensation for victims, deserve praise. However, there can be no lasting change while torturers generally go unpunished. “We need to beware of ‘false victories’ that are measures taken by States to hide the reality of torture which is, above all, a ‘crime of State’,” concludes Jean-Charles Paras. Continue reading “Combating torture: Beware of “false victories””

Evaluation of knowledge and expertise in international criminal justice in Nepal (Jan. 2012)

ASF uses innovative ways of reaching out to vulnerable groups in Nepal

Mahendra Nagar, 6 February 2012 – It is freezing cold this morning in Far Western Nepal. Gopi Parajuli (ASF) and Anita Neupane (Legal Aid and Consultancy Centre) try to find their way through the bus station. In a typically helpful and gentle manner, a passer-by asks them: “Are you looking for the lawyer’s bus? There it is!” And he points towards a small vehicle with a message painted on it.  It is a so called ‘microbus’, of the kind used by thousands of ordinary Nepali every day to commute to work. The message on its side says: “Are you legally vulnerable because of your economic situation? Please contact the Kanchanpur District Bar Association”.

Kanchanpur is an isolated district with a high incidence of poverty, especially among women. A significant proportion of the population is from the Dalit group, on the lowest rung of the caste hierarchy. Human rights denials are common here; domestic violence, discrimination and abuses by local authorities are widespread.

In Kanchanpur and four other districts, Avocats Sans Frontières (ASF) helps Bar Associations to provide free legal aid services to the population. The local lawyers are very committed to improving access to justice, but data collected recently by ASF in Nepal suggests that people are not aware of these services and that the first challenge is to help them find their way to the legal aid providers.

“That is why, since december 2011, we make use of innovative ways to make the population aware of their rights and and advise them how to obtain justice”, explains Julie Fournier, Head of Mission in Nepal. “That includes the use of radio programs, advertisements on public transport and microphones installed on rickshaws that go around the weekly market to convey the ASF message.”

Gopi and Anita are satisfied: the advert on the bus looks good and people already seem to be familiar with it. Now they can start thinking of new original ideas to pass on ASF’s message.

A villager reading the message “Are you legally vulnerable because of your economic situation? Please contact the Kanchanpur District Bar Association” © ASF - J. Fournier
A villager reading the message “Are you legally vulnerable because of your economic situation? Please contact the Kanchanpur District Bar Association” © ASF – J. Fournier

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