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| Kathmandu Wednesday March 13, 2002 Falgun 29, 2058. |
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Emergency : Right mission and
wrong vision
By DR GOPAL KRISHNA SIWAKOTI
The 1949 Geneva Conventions (also known as
humanitarian law) to which Nepal is a state party do not encourage war but advocate for
the compliance of the rules of war - both internal and international. In the case of armed
conflict not of an international character occurring in the territory of one of the high
contracting parties, each party to the conflict shall be bound to apply, as a minimum,
humanitarian provisions under the common Article 3 of all four Conventions. Contrary to
the rights categorised as "non-derogable" under any circumstances by the
Constitution of Nepal and the spirit and intention of the Geneva Conventions both the
warring parties of high contracting nature in Nepal have been engaged in blatant breach of
fundamental principles of human rights and humanitarian standards.
Persons taking no active part in the
hostilities, including members of armed forces who have laid down their arms and those
placed hors de combat by sickness, wounds, detention, or any other cause, shall in all
circumstances be treated humanely, without any adverse distinction based on race, colour,
religion or faith, sex, birth or wealth, or any other similar criteria. Total prohibition
is prescribed on violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture; taking of hostages; outrages upon personal
dignity, in particular humiliating and degrading treatment, and the passing of sentences
and the carrying out of executions without previous judgement pronounced by a regularly
constituted court, affording all the judicial guarantees which are recognized as
indispensable by civilized peoples. These humanitarian provisions are ensured at any time
and place whatsoever with respect to the above-mentioned persons.
According to the rules of war, the wounded and
sick shall be collected and cared for. An impartial humanitarian body, such as the ICRC,
may offer its services to the parties to the conflict. The parties to the conflict should
further endeavour to bring into force, by means of special agreements, all or part of the
other provisions of the present Conventions. The application of the preceding provisions
shall not affect the legal status of the parties to the conflict.
Another important international instrument that
has circuitous relevance in the state of internal armed conflict in Nepal is the
Convention against Genocide which bans acts committed with the intent to destroy, in whole
or in part, a national, ethnic, racial or religious group. It declares genocide a crime
under international law whether committed during war or peacetime, and binds all
signatories of the Convention to take measures to prevent and punish any acts of genocide
committed within the jurisdiction. The act bans killing of members of any racial, ethnic,
national or religious group because of their membership in that group, causing serious
bodily or mental harm to members of the group, inflicting on members of the group
conditions of life intended to destroy them, imposing measures intended to prevent births
within the group, and taking group members’ children away from them and giving them
to members of another group.
The Convention declares genocide itself,
conspiracy or incitement to commit genocide, attempts to commit or complicity in the
commission of genocide all to be illegal. Individuals are to be held responsible for these
acts whether they were acting in their official capacities or as private individuals.
Signatories to the Convention are bound to enact appropriate legislation to make the acts
named in Article 3 illegal under their national law and provide appropriate penalties for
violators.
People suspected of acts of genocide may be
tried by a national tribunal in the territory where the acts were committed or by a
properly constituted international tribunal whose jurisdiction is recognized by the state
or states involved. For purposes of extradition, an allegation of genocide is not to be
considered a political crime, and states are bound to extradite suspects in accordance
with national laws and treaties. Any state party to the Convention may also call upon the
UN to act to prevent or punish acts of genocide like in Rwanda during 1994 genocide in
which 1,000,000 people were killed in 100 days-five time faster than the Jewish holocaust.
The Convention against Torture (CAT) is another
vital instrument which bans torture under all circumstances, including the state of
emergency. The Convention defines torture, requires states to take effective legal and
other measures to prevent torture, declares that no state of emergency, other external
threats, nor orders from a superior officer or authority may be invoked to justify
torture. CAT requires states to make torture illegal and provide appropriate punishment
for those who commit torture. It requires states to assert jurisdiction when torture is
committed within their jurisdiction, either investigate and prosecute themselves, or upon
proper request extradite suspects to face trial before another competent court. It also
requires states to cooperate with any civil proceedings against accused torturers.
Nepal, as a party to the treaty, is obliged to
provide training to law enforcement and military on torture prevention, keep its
interrogation methods under review, and promptly investigate any allegations that its
officials have committed torture in the course of their official duties. The state of
emergency must not be an excuse to inflict torture upon the members of the hostile groups.
It must ensure that individuals who allege that someone has committed torture against them
are permitted to make an official complaint and have it investigated, and, if the
complaint is proven, receive compensation, including full medical treatment and payments
to survivors if the victim dies as a result of torture. It forbids states to admit into
evidence during a trial any confession or statement made during or as a result of torture.
It also forbids activities which do not rise to the level of torture, but which constitute
cruel or degrading treatment.
In Nepal, the increasing number of organizations
and individuals, who defend human rights, has opened up new possibilities for action and
considerably strengthen the influence of human rights defenders at national and
international levels even during the state of emergency. Human rights defenders - the only
hope for thousands of survivors, victims and potential victims during emergency must gear
up the campaign to halt attempts by both the government and the rebels to justify or
excuse atrocities against unarmed civilians in the name of ‘encounter’ and
‘retaliation’ against the backdrop of state of emergency or national security
interests. It is the principal obligation of the rights defenders to closely watch and
offensively defend, any misleadingly propagated information by both the warring factions
or media that may harm the innocent civilians.
The prolonged and unmonitored state of emergency
demands siphoning off more budget for defence and security thus aggravating economic and
social insecurity, which in the long-run in its most serious and persistent forms leads to
extreme poverty and exclusion, and constitutes an atmosphere where the fabric of civil
society gets completely ruptured. And those who are subject to conditions of extreme
poverty are among the principal victims of the full range of human rights abuses and that
the efforts they spend in their daily struggle to stay alive place them among human rights
defenders.
The failure of the high contracting parties to
address impunity constitutes one of the main obstacles to the full respect of human rights
and which continues to obstruct the work of human rights defenders. Human rights defenders
and other civil society interest groups now must intensify the campaign for the immediate
ratification of the Statute of the International Criminal Court by Nepal with an aim to
minimise the grave problem of impunity.
It is deplorable that the increase in the number
and influence of human rights defenders has been accompanied by a development and
systematisation of repressive measures and practices used against them. This is high time
the human rights community revamped themselves to denounce the fact that the champions of
human rights have also become the target of the warring parties as they continue to
condemn and expose anti-human rights practices. They are among the victims of summary
executions, enforced disappearances, torture, killings and arbitrary detentions. As the
freedom of opinion, expression, association, assembly, demonstration, movement and the
right to privacy are continuously infringed (of course, in conjunction with the state of
emergency), the human rights community must oppose the proliferation of systematic
measures and practices used by the state and the rebel group to prevent or impede the
legitimate work of human rights activists. This includes censorship and seizure or
publications, defamation, administrative and harassment, intimidation and implication in
criminal cases, their identification with ‘terrorist’ groups, restrictions
imposed on reporting in the pretext of emergency.
Despite all adversaries, the constitutional
right to dissemination of information on non-derogable human rights, as a minimum, must
not be infringed. Grave breach of human rights and humanitarian values — be it at
Sanphe Bagar or Sakranti Bazaar — must be resisted without trade-off.
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