A/HRC/16/23
Commission rather than stipulating its recommendations as binding and does not obligate
Parliament to consult with the Commission on draft laws with human rights implications.
D.
1.
Encouraging developments
The Dhanusha exhumation
36.
In October 2003, five male students were reportedly disappeared by members of the
security forces; credible allegations suggested that they had been killed and their bodies
buried at a site in Dhanusha district. Despite persistent and continued efforts by the
students’ relatives to obtain justice, the police continued to oppose the registration of a
criminal complaint until September 2009, and did so only after being instructed by the
Supreme Court. The police had delayed undertaking the investigation despite detailed
directions from the relevant public prosecutor, including on conducting an exhumation.
37.
However, on 4 September 2010, nearly seven years after the incident, and following
sustained advocacy with the Government, the National Human Rights Commission initiated
an exhumation at the alleged burial site together with the police and international and
national forensic experts, which led to the recovery of the remains of four human bodies
and other pieces of evidence. It is expected that forensic examinations will clarify the fate
of the victims.
38.
This successful operation demonstrates the important role that the National Human
Rights Commission can play in tackling impunity, lobbying for the police to properly
discharge its legal function. The exhumation also establishes the precedent that future
transitional justice mechanisms do not replace regular legal processes, emphasizing police
obligations to undertake investigations into all such pending cases. This progressive step
must now be built upon and the police investigation closely monitored to ensure that public
prosecutorial instructions are complied with and perpetrators brought to justice. It is also
critical that the National Human Rights Commission, with the support of relevant partners,
is further empowered to perform its important role, including by properly clarifying its
mandate regarding exhumations and the central role of the police in the conduct of such
processes.
2.
Assistance to future transitional justice mechanisms
39.
As it will have only two years to complete its work, it is crucial that once established
the truth and reconciliation commission be in a position to plan its work promptly and with
reference to objective data. Recognizing both the historic importance and technical
demands of such a task, OHCHR-Nepal is implementing a project under the United Nations
Peace Fund for Nepal to conduct a data-gathering, compilation and analysis exercise
designed to assist the strategic planning and work of the commissions.
40.
Having consulted with the Ministry of Peace and Reconstruction and with civil
society, in 2010 a team of Nepali and international experts developed a data set of
approximately 7,000 incidents from the conflict period where there is a reasonable basis for
suspecting that serious violations and abuses of human rights or international humanitarian
law have been committed. The compilation of disaggregated data distilled from reports by
credible organizations, including OHCHR-Nepal, will provide the commissions with a tool
that can be immediately used for strategic planning and for referencing to support
investigations. The team has further compiled a reference archive of over 25,000
documents relating to the conflict which may provide the basis for a national archive of
materials. The exercise will culminate in a report providing the commissions with key
information and research, including guidance on the applicable international law; factual
information on the chains of command of the parties to the conflict; and chapters providing
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