February 10th, 2010 10:50 EST
The Murder of Maina Sunuwar by Four Military Officers
The Asian Human Rights Commission (AHRC) is deeply concerned about the impunity of those involved in the murder of Maina Sunuwar. Four military officers are accused of having illegally arrested, raped and tortured this 15-year-old girl to death on 17 February 2004.
Despite the enormous national and international attention this case has received and the recent repatriation of one of the accused from the UN Peacekeeping operations in Chad (STM-247-2009), the perpetrators have not yet undergone prosecution.
The AHRC has been reporting regularly on this case since 2005 (UP-136-2005) and since that time little progress has been made in obtaining justice for the victim`s family. This case has become emblematic of the malfunctioning justice and police system in Nepal, and of the complete absence of accountability of those who committed human rights violations during the conflict. An unsuccessful legal prosecution will be a huge setback for those who try to establish rule of law in Nepal.
When the AHRC first reported the case of Maina Sunuwar in February 2004 (UAC-22-2004) the victim was already in the custody of the army. The army officers took Maina when they came searching for her mother, Devi Sunuwar, who had reportedly witnessed the gang rape and killing of her niece by security personnel earlier the same month. Evidence and testimonies since then have proven that Maina was raped and tortured to death in the army barracks.
The Advocacy Forum, a Kathmandu-based human rights organisation, has helped Maina`s family since her disappearance. After relentless efforts and the direct involvement of the Office of the High Commission of Human Rights in Kathmandu, Maina`s unmarked grave in the Panchkal army camp was excavated and the remains were examined and successfully identified using DNA fingerprinting (see UP-136-2005 and UP-173-2006). The family approached the courts and was able to obtain arrest warrants against the army officers. One of the accused, Mr. Niranjan Basnet, had been posted in an UN Peacekeeping mission in Chad and was repatriated after his posting was exposed and lobbied against (see STM-233-2009).
Despite this the courts in Nepal are dragging their feet. This has been openly addressed by the UN. On 16 February 2009 the OHCHR-Nepal representative Richard Bennett stated that `Nepal has made remarkable strides since the beginning of the peace process. However, lack of accountability and a widespread perception that human rights violators are not subject to the rule of law threatens to undermine the many successes of the process so far. The successful prosecution of human rights violators, including in the case of Maina Sunuwar, will demonstrate to all Nepalis, and to the world, that the Government is fully committed to justice as an integral component of durable peace and stability`.
Those words are still relevant almost six years after Maina`s murder. The AHRC is calling for strong political involvement in this case so that justice is accessed by her mother, allowing her to finally pay her daughter a last homage.
Maina`s mother, with support from the Advocacy Forum, has been constantly fighting for a legitimate and impartial investigation, to determine the exact circumstances of her daughter`s death and see the perpetrators properly prosecuted. They have faced frequent obstacles and opposition from army officers and the police. The attitude of the military extended beyond a simple lack of cooperation, involving the obstruction of the inquiry and denial of Maina`s initial arrest, the threatening of witnesses and the fabrication of allegations about how she had been killed, among other ploys.
Police officers also first refused to file the case because it concerned the military. In a statement released in November 2005 the AHRC denounced the collusion between the military and the police, which has severely hindered the progress of the case. For more details see AL-03-2005.
On 8 September 2005, following the recommendations of a Military Court of Inquiry, a Martial Court held that three military personnel were guilty of not having observed the proper procedures. This statement was challenged by Maina`s mother, supported by the Advocacy Forum. Due to mounting national and international pressure " including the direct involvement of the head of the OHCHR office in Kathmandu " on September 18, 2007 the Supreme Court ordered the authorities to carry out the investigations within three months and prosecute the offenders. A case was subsequently filed against four military officers, Major Niranjan Basnet, Colonel Bobby Khatri, Captain Sunil Prasad Adhikari and Captain Amit Pun on January 31, 2008.
Nevertheless by that time, all of them had been promoted. In a benchmark statement on September 13, 2009 the District Court of Kavre ordered the Nepal Army Headquarters to immediately proceed with the suspension of Major Basnet and to submit all the files containing the statement of the people interviewed by the Military Court of Inquiry. Major Basnet was eventually repatriated from Chad on 12 December 2009, casting hopes that he would be prosecuted, which would symbolically mark the end of the area of impunity for human rights violators in Nepal.
On December 8, 2009 in a letter addressed to the Prime Minister, Devi Sunuwar, Maina`s mother expressed her hopes that `Major Niranjan Basnet will be arrested upon his arrival and similar steps will be taken against all other perpetrators`. However, since that day, no progress has been made in the prosecution of the perpetrators. Upon his arrival at the Tribhuvan International Airport the military police arrested Major Niranjan Basnet, committing to his presentation before the court the next day. This has not happened and Major Basnet, though under house custody, has not been prosecuted yet.
Similarly, the file held by the Martial Court which contains evidence that military officers tried to cover up this case, has not been presented before the court yet. The AHRC is therefore extremely concerned that the army might interfere again with the justicial process to prevent their personnel to be prosecuted by a civilian court.
Strong steps need to be taken to stop the circle of impunity of those who have violated human rights during the conflict. As stated before, this case has become emblematic of a thousand others in which the perpetrators of rape, torture or murder have escaped legal prosecution. If justice fails in this case, this would demonstrate once more that the military does not come under the rule of law and cannot be held accountable for human rights violations. An unsuccessful legal prosecution would be a huge setback for those who try to establish rule of law in Nepal.
If the perpetrators are presented before a civilian court and sternly sentenced, and if concrete measures are taken to punish those who have tried to impede the investigation, it would be a strong signal against impunity. The AHRC believes that only this can prove that every Nepali citizen can be equally prosecuted and, by the same token, defended by the justice system, no matter whether or not he belongs to the army.
As Nepal is currently struggling to establish a long-lasting peace after a 10-year conflict that has torn the country apart, politicians have to understand that the scars cannot be healed while those responsible for human rights violations during that time are still unaccountable. This is particularly true in the case of enforced disappearances.
Please write letters to the relevant authorities to urge for stronger efforts to make sure the four officers involved in Maina`s arbitrary arrest, rape, torture and murder will be promptly brought before a civilian court, and to provide security for the victim`s family.
Please be informed that the AHRC has written a separate letter to the UN Working Group for Enforced or Involuntary Disappearances, and the Office of the High Commissioner for Human Right-Nepal Representative, calling for intervention in this case.
NEPAL: Prosecution of Maina Sunuwar`s murderers must not be delayed any further
Name of the victim:
1. Maina Sunuwar, 15, permanent resident of Kavre, Dhulikhel
1. Major Niranjan Basnet
2. Colonel Bobby Khatri
3. Captain Sunil Prasad Adhikari
4. Captain Amit Pun
Place of the incident: Training centre of the Nepal army`s peacekeeping missions` unit, Panchkhal army camp, Kavre district
Date of the incident: February 17, 2004
I am writing to voice my serious concern regarding the latest developments in Maina Sunuwar`s case. I am aware that the case has been delayed due to the refusal of the army to submit the accused officers for trial in the civilian court where the case is pending. I am also aware that there are arrest warrants pending against the accused, which are yet to be executed.
The warrants have been pending since January 31, 2008 and were issued by the District Court of Kavre against Major Niranjan Basnet, Colonel Bobby Khatri, Captain Sunil Prasad Adhikari and Captain Amit Pun. Nevertheless Major Niranjan Basnet was sent to serve in an UN Peace-Keeping Mission in Chad, though on September 13, 2009 the District Court of Kavre ordered the Nepal Army Headquarters to proceed with his suspension, and he was eventually repatriated on December 12, 2009. However though he was arrested by the military police and was due in civilian court the next day, he is still residing at his house and has not been prosecuted yet.
Those at army headquarters have argued that he had already been brought before a Military Court, and that the constitution guarantees against double jeopardy. A Martial Court has already judged this case but in a non-independent and non-transparent manner, in what was clearly an attempt to protect members of the military. Its verdict cannot be accepted.
Moreover according to the Nepalese law cases of rape and murder of civilians by military personnel fall under the jurisdiction of civil courts. The December 2009 Report of the UN Working Group on Enforced Disappearances, in the section regarding Nepal, reminded the government that the UN Declaration on the Protection of all Persons from Enforced Disappearances specifically states that persons alleged of having committed acts of enforced disappearances shall be tried only by the competent ordinary courts in each State, and not by any other special tribunal, in particular military courts " (art. 16.2).
I therefore request your intervention to ensure that Major Niranjan Basnet, along with the three other officers accused of Maina`s murder is tried by an impartial and independent civil court. Those at army headquarters are consequently obliged to provide all the documents regarding the case, currently being held at the Martial Court, to the District Court of Kavre. They have failed to do so, so far, in another attempt to cover up this case.
If the court delivers a guilty verdict the perpetrators must be punished according to the provisions of the Nepalese Penal Law and adequate compensation must be granted to Maina`s family. I am also asking for stern sanctions against those who have tried to obstruct the course of justice through false allegations, threatening witnesses and intimidating the victim`s family. It is absolutely necessary that adequate measures are taken to ensure the protection of Devi Sunuwar, the victim`s mother.
The responsibility for the delays in this case lies with the military, for systematically trying to protect its personnel from civilian. However civilian bodies, such as the police or the government, are also to blame for the indifference and negligence so far displayed.
To address the first issue, I vigorously urge the government to show that the perpetrators of human rights violations, whether or not they belong to the army, will be systematically brought before civilian courts, along with those who try to hamper the investigation. I also urge that the government cease the collusion between the police and the army by taking measures to compel police officers to register all cases, whether they involve military personnel or not.
Despite strong lip-service from high-level military and civilian figures to fight against impunity, despite the repeated concerns of the OHCHR office in Kathmandu and despite the publication one year ago of an Ordinance that criminalised enforced disappearances, this case shows that impunity is still deeply-entrenched in Nepal. The trial and condemnation of Maina`s murderers would be an important step toward the strengthening of rule of law in the country.
I look forward to your immediate intervention in this matter.
PLEASE SEND YOUR LETTERS TO:
1. Mr. Madhav Kumar Nepal
Prime Minister`s office
Fax: + 977 1 42 27286
2. Dr. Bharat Bahadur Karki
Office of Attorney General
Fax: +977 1 4262582
Tel: +977 1 4262506
3. Mr. Kedar Nath Upadhaya
National Human Rights Commission
Fax: +977 1 55 47973
Tel: +977 1 5010015
Email: firstname.lastname@example.org or email@example.com