Forum (Spotlight Weekly)

Reporting under Convention against Torture

By Bipin Adhikari

This is the sixteenth year of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The Convention had come into force in June 1987.

The Convention is divided into three parts, in addition to a five-paragraph preamble. Part I (Articles 1-16) deals with the substantive provisions, including inter alia a comprehensive definition of torture, the provision of universal criminal jurisdiction over torturers, and the espousal of the extradition principle aut punire aut dedere. Part II (Articles 17-24) covers the implementation provisions. Part III (Articles 25-33) contains the usual final clauses concerning ratification, entry into force, amendments and the like; in particular, it includes two reservation clauses concerning the competence of the Committee and the judicial settlement of disputes. The Vienna Declaration and Programme of Action, adopted by consensus at the World Conference on Human Rights in Vienna in 1993, further reaffirmed the commitment of all countries to prevent torture and encouraged the speedy ratification of the Convention against Torture by all those Member States who have not ratified it.

Torture and ill treatment continue to be recorded in at least 111 countries throughout the world, and the Convention remains the least ratified of the six existing international human rights treaties. Only 129 of the 189 UN member states have become parties to the Convention. Many of those that have become parties are still failing to ensure its full implementation and allowing the practice of torture to continue unchecked. Nepal is one of these countries.

The government of Nepal has a long history of using torture as a method of controlling dissent and getting information.†The situation has not changed much even after the restoration of democracy in 1990.†Many types of human rights abuses reached unprecedented levels in Nepal during the last couple of years. More than 7,000 people have been killed in the armed conflict led by Communist Party of Nepal (Maoist). A recent report of the National Human Rights Commission of Nepal ñ Study on Insurgency Related Torture and Disability: Human Rights Violations in the Context of Maoist Insurgency ñ shows that the legal provisions against torture incorporated in the Constitution of 1990, the Torture Compensation Act of 1996 and the Convention against Torture have not been able to prevent torture as proclaimed. Cases of torture committed by the Maoist in the name of peopleís war during the year 2002 have been found more brutal than the cases committed by the state actors.

Similarly, another report published by Amnesty International "Nepal: a deepening human rights crisis" (ASA31/072/2002) just before the declaration of ceasefire on January 29, 2003 revealed that nearly half of the victims of the 'people's war' were civilians targeted for their real or perceived support to the CPN-Maoist; others were Maoists deliberately killed after they were taken prisoner or killed instead of being arrested. The report also highlighted that at least 66 people were reported to have 'disappeared' in the last year, after being taken into custody by the security forces. The total number of 'disappearances' reported to the organization in the context of the 'people's war' is over 200. This makes Nepal the country with the third highest number of 'disappearances' reported worldwide in the last four years.

The report of the Amnesty International also said that Maoist forces have also been responsible for a number of human rights violations including the killing of an estimated 800 civilians considered 'enemies of the revolution', hostage taking for ransom, torturing of people taken captive and the deliberate killing of members of the security forces after they were taken captive. The Maoists have also been responsible for recruiting children into their army. It has pointed out that torture by the army, Armed Police Force (APF) and police used to be reported almost daily. The APF which was established in 2001 had been increasingly cited in allegations of torture. The army also held people blindfolded and handcuffed for days, weeks or even months. Impunity is the single most destructive factor affecting the human rights situation. Members of the security forces feel entirely shielded from outside scrutiny for their actions.

In this context, the Convention against torture is as true and relevant today as when this pact became a reality about a decade and a half ago. Implementation of the Convention is monitored by a ten-strong committee of independent experts, the Committee against Torture, which reviews state party periodic reports, decides on individual communications and is empowered to carry out confidential inquiries. By ratifying the Convention, Nepal has taken the responsibility to curb torture and report to the Committee about its compliance periodically. This responsibility has not so far been fulfilled according to the standard rules of the Convention. The performance of the civil society as far as parallel or independent reporting to the Committee is concerned is also bleak. As such, the treaty body has not been able to monitor and assess the extent to which Nepal is respecting its obligations under the Convention. This means Nepal is yet to receive the advantages of being a signatory of the Convention.

In this regard, a five-day training workshop jointly organized by the National Human Rights Commission and the Danish Institute for Human Rights on the 1984 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) was concluded recently in Lalitpur. The training program, which began on 24th March, was organized with a view to drafting systematic reports and regularly sending the periodic reports to the institutions related to the Convention in accordance with international norms and standards and also by virtue of Nepal being a party to the Convention since 1991.

About 30 participants from His Majestyís Government, non-governmental organizations involved in torture issues, and officials of the National Human Rights Commission participated in the workshop in which two instructors from the Danish Institute for Human Rights provided training on the concepts, standards and implementation aspects of the Convention Against Torture (CAT). The participants were also trained on how to draft reports under the CAT Convention according to the requirements of CAT Committee. Trained manpower is now available and further capable enough to draft formal and shadow reports to be submitted by Nepal. The Commission has shown further commitment to assist the Government and related NGOs in the process of drafting and sending the periodic reports to Committee against Torture.

Even though His Majestyís Government is a party to the 1984 Convention, it has not been able to eradicate torture in Nepal. It has not even been able to continuously work with the Committee to meet its obligation to take effective legislative, administrative, judicial and other measures to prevent acts of torture. As stated above, for the past many years, the Government has also been unable to submit the periodic reports to the Committee in a regular manner. Similarly, Nepal has yet to define torture as a criminal offence as required and stated by the Convention Against Torture.

[Adhikari is a lawyer]