Unlawful Killing – Issue Brief

Unlawful Killing

Issue Brief

Factual Details of the Incident: On 10th August 2015, three protesters were killed in Surkhet district of Nepal[1], during a protest demanding undivided Far-west province and Surkhet as its capital. Police ‘open fired’ at protesters when the assembly turned violent and started pelting stones at the house of Nepali Congress joint General Secretary Purna Bahadur Khadka.[2]

Issues Related to the Incident: Unlawful Killing; Right to Assembly; Excessive Use of Force.

Legal Analysis of the Issues:

On the face of the incident, protestors were exercising their right to assembly. Right to assembly is a basic human right that helps one in exercising other rights.[3] Though, right to assembly is a constitutionally guaranteed fundamental right in Nepal,[4]  it is a limited right. In line with Article 21 of the International Covenant on Civil and Political Rights (ICCPR, 1966), a state can restrict this right on certain conditions where it is found that the assembly may not be peaceful and might hinder public safety, public order, the protection of public health/morality and rights, and freedoms of others. In the given context, it is seen that the government had reasonable grounds to declare curfew on 10th August 2015 after witnessing several protests nationwide,[5] which was likely to disrupt public order.

Though declaration of curfew can be justified on the above grounds, excessive use of force cannot be. Law enforcement officials whenever find the lawful use of force and firearms unavoidable while policing unlawful assemblies, have to exercise restraint and act in proportion to the seriousness of the offence[6], minimize injury, respect and preserve human life[7], and only when less dangerous means are not practicable.[8]

Intentional lethal use of firearms may be made only when strictly unavoidable in order to protect life.[9] In the given situation the protestors were reported of vandalizing public and private properties and stoning police officers. However, the security force was reportedly capable enough to handle the protestors with non-lethal measures. Thus, the reciprocity of the force used, that is, 25 rounds of open firing, is not proportionate and the killing cannot be justified. Neither any alternative non-lethal measures were taken. Hence, this has obviously resulted in unlawful killings.

The responsibility of the state authorities is not limited to ensuring lawful use of force but also to investigate, prosecute and if indicted, punish the offender.[10]  If the government does not convene a panel to review the case, the threat of impunity looms ahead.

For further clarification, please contact:

akriti@inhuredinternational.org

priyanka@inhuredinternational.org

[1] The local administration has only confirmed the death of Tikaram Gautam, 45. According to the protestors, another person Yambahadur BC has also died. Setopati confirmed BC’s death through family sources. Demonstrators also stated another person who is not yet identified has also died. Cited from http://setopati.net/politics/8435/3-killed-in-Surkhet-as-police-open-fire-(UPDATE) , [Accessed on 11 August 2015]

[2] http://setopati.net/politics/8435/3-killed-in-Surkhet-as-police-open-fire-(UPDATE) , [Accessed on 11 August 2015]

[3] To elucidate, for right to exercise political expressions, right to assembly has to be protected by the State.

[4] Interim Constitution 2063 B.S of Nepal, Article 13 (3) (c)

[5] The Himalayan Times, ‘Six Province Model Draws Mixed Reaction From People’, August 10, 2015, p.7; The news article states about protests being held in Baglung, Rukum, Nawalparasi, Mugu, and Salyan on 9th August 2015.

[6] UNGA, United Nations Congress on the Prevention of Crime and the Treatment of Offenders, ‘Basic Principles on the Use of Force and Firearms by Law Enforcement Officials’, 1990, principle 5(a), available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/UseOfForceAndFirearms.aspx, [Accessed on 12 August, 2015

[7] UNGA, United Nations Congress on the Prevention of Crime and the Treatment of Offenders, ‘Basic Principles on the Use of Force and Firearms by Law Enforcement Officials’, 1990, principle 5(b), available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/UseOfForceAndFirearms.aspx, [Accessed on 12 August, 2015

[8]  UNGA, United Nations Congress on the Prevention of Crime and the Treatment of Offenders, ‘Basic Principles on the Use of Force and Firearms by Law Enforcement Officials’, 1990, principle 14, available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/UseOfForceAndFirearms.aspx, [Accessed on 12 August, 2015

[9]   UNGA, United Nations Congress on the Prevention of Crime and the Treatment of Offenders, ‘Basic Principles on the Use of Force and Firearms by Law Enforcement Officials’, 1990, principle 9, available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/UseOfForceAndFirearms.aspx, [Accessed on 12 August, 2015

[10]    UNGA, United Nations Congress on the Prevention of Crime and the Treatment of Offenders, ‘Basic Principles on the Use of Force and Firearms by Law Enforcement Officials’, 1990, principle 22, 23, 24, 26 available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/UseOfForceAndFirearms.aspx, [Accessed on 12 August, 2015

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