Unofficial Blockade of Nepal

Issue: Unofficial blockade of Nepal by India.

The unofficial blockade which began around September 2015 has led to a severe humanitarian crisis here in Nepal.

Traditionally a blockade was a method of economic warfare as it affected the relations between blockaded belligerent and neutrals. It was one of the tools employed by neutral countries to maintain their neutrality.[1] Post 19th century there have been very few practices of economic blockades, and most of them are directed against military operations and armed forces instead of the economy.[2]

But in the present Nepalese context, blockade is being used as an underhanded tool for continuing the rebellion by the “Madhesis’ and as way of controlling the economy by the Indian Government. Hence, the present blockade can be analysed as a two pronged attacks on the economy; 1st the border blockade done by the agitating parties here in Nepal[3]; and 2nd the Indian Government withholding necessary supplies like fuel.

Effects of Blockade

The unofficial blockade has had a significant adverse effect in people’s day to day life in Nepal as fuel and medicines are becoming scarcer.[4] The UNICEF suggests that more than three million children under the age of five are at risk of death or severe disease due to lack of medicines and scarcity of fuel.[5] The risks of hypothermia and malnutrition are severely heightened.

The recent events that have been unfolding in Madhesh require an independent and objective human rights monitoring. An open dialogue between the parties involved is the only effective way to reach a lasting agreement. Legitimate demands of Madhesh and other populations has to be taken into consideration. Amendments must be made to the existing constitution to address some of the legitimate demands of Madhesh and other populations. However, before any dialogues can take place, the blockade must to be lifted in order to protect the integrity of any resolutions that are to be forged. If the blockade continues to persist the subsequent resolution will be regarded as the result of taking an entire population hostage. Such viewpoint cannot be conducive in solving the deep-rooted historical and ethical issues that exist in Nepal.

The situation in Saptari district in Eastern Madhesh is now out of control. Activists have been protesting and defying curfew for weeks. The unrests have taken a violent turn, that have already resulted in three deaths. These events have prompted many unconcealed reactions in the social media, giving rise to emotions that prevent the formation of an objective analysis of the situation. Lack of a political commitment on both sides, the government of Nepal and Madhesh based parties, to address the crisis is not only creating suffering for millions across Nepal, it is also pushing the country towards an ethnic conflict.

A simple analysis of the reportings of the recent events shows the emergence of two factions. On one hand we see reports of arbitrary arrests and detentions of protesters. Images that show Madhesh activists and their families as victims of police brutality and prejudicial treatments are followed by the appeals to ‘Stop Killing Madhesi People’. These messages aim to suggest that the state is involved in massive extrajudicial killings of Madhesi population and appalling violations of human rights during the ongoing protest. Despite such atrocities, an entire society (hinting Pahadi population) has shown complete apathy to this situation and the legitimate cause of the Madhesi protesters.

On the other hand we are exposed to images of police officers being burned alive by the protesters; ambulances, vehicles carrying the sick and life saving medical essentials being vandalized; thousands of people queuing for petrol, cooking gas and food stocks; and the closure of hotels and businesses and other images pertaining an economic breakdown throughout the country. Conveying a message that the Madhesi protesters are cruel and inhumane, emphasizing a lack of regards for the most vulnerable and the suffering of an entire population as a result of the blockade. These images show complete apathy to the suffering of millions of people whose grievances are with political parties and the government.

In reality both sides are brutalizing each other; feeding the fires of hatred and animosity among different ethnicities. Such, attitudes are creating divisions in the country, having an inverse effect on the peace-building efforts. It is essential for the government of Nepal to immediately start a genuine process of negotiation with the Madhesi parties. The only feasible option is to forge an agreement that would lead to the amendment of the constitution. It is my firm belief that the only way to protect the sanctity and integrity of any agreement that is to be forged, first the blockade has to be lifted. If not, it will always be seen that the agreement was forged through keeping the entire population hostage. In the long run, such view may not help in tackling the deep-rooted historical injustices that we are attempting to address.

[1]Wolff Heintschel von Heinegg, “Blockade”, Max Planck Encyclopedia of Public International Law, April 2009, Available at http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e252, [Last accessed on 30 November, 2015]

[2]Ibid

[3]The Himalayan Times, Niroj Koirala, ‘UDMF To Continue Border Blockade’, November 30 2015, available at http://thehimalayantimes.com/nepal/udmf-to-continue-border-blockade/, [Last accessed on 1 December, 2015]

[4] Annie Gowen, ‘Nepal border protests have led to a dangerous humanitarian crisis’, The Washington Post, 3rd December 2015 retrieved from https://www.washingtonpost.com/news/worldviews/wp/2015/12/03/the-indian-blockade-of-nepal-has-led-to-a-dangerous-humanitarian-crisis/ [Last Accessed on December 6, 2015]

[5] UNICEF,  Nepal: ‘Serious Shortage Of Essential Supplies Threatens Millions Of Children This Winter – UNICEF’, November 30, 2015, available at http://unicef.org.np/media-centre/press-releases/2015/11/30/nepal-serious-shortage-of-essential-supplies-threatens-millions-of-children-this-winter-unicef, [Last Accessed on December 7, 2015]

 

For pdf version of the issue brief 3rdIssueBrief

 

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Abuse of Right to Freedom of Assembly

Abuse of Right to Freedom of Assembly

Factual Details of the Incident:  At least 8 policemen and a child[1] were killed in Tikapur, Kailali in the clash between the security personnel and protesters during a protest in Kailali district that turned violent on 24 August, 2015.[2]  Head Constable of Armed Police force was reportedly burnt alive by the protesters. Protesters demanding for undivided Tharuhat, were armed with domestic weapons like spears, khukuris, sickles, slingshots and axes.[3]

Issues Related to the Incident: Abuse of the freedoms of right to peaceful assembly and right of expression; hate speech; murder of a minor.

Legal Analysis of the Issues

An assembly is an “intentional and temporary presence of a number of individuals in a public place for a common expressive purpose”[4]. However the assembly has to be peaceful in order to be protected by International Human Rights Law.[5] The violent acts of protesters cannot be hidden behind the name of right to protest, as the issue here, is purely a subject matter of criminal law and the incident should not be given a political color. The protesters were armed with weapons such as spears, sickles, axes and slingshots, which is indicative of their pre-planned violent intent. Irate protesters killed police personnel using methods that created unnecessary sufferings.  Protesters who employ violent means and methods to express their dissent should be strongly condemned.

Another issue of concern here is, the political leaders’ incitement to commit violence. The International Covenant on Civil and Political Rights 1966 (ICCPR) urges States Parties to prohibit any advocacy on the lines of  national, racial or religious hatred and or constitutes incitement to discrimination, hostility or violence.[6] Political leaders should be cautious of what message they convey to their cadres and the public in general. Hate speech cannot be condoned in the name of freedom of expression.

[1] Republica,Dil Bahadur Chhantyal, ‘SSP among 8 killed by Tharuhat protesters’, available at  http://www.myrepublica.com/feature-article/story/26925/scores-injured-as-demonstrators-clash-with-police.html [Accessed on August 25] The two-year old  was the son of APF Assistant Head Constable Netra Bahadur Saud.

[2] Republica,Dil Bahadur Chhantyal, ‘SSP among 8 killed by Tharuhat protesters’, available at  http://www.myrepublica.com/feature-article/story/26925/scores-injured-as-demonstrators-clash-with-police.html [Accessed on August 25]

[3] Himalaya, ‘Tension Grips Kailali Tikapur’ , August 24 2015,

http://himalayatv.com/news/2015/08/24/tension-grips-kailalis-tikapur/:en, [Accessed on 25 August 2015]

[4]OSCE,  Office for Democratic Institutions and Human Rights (ODIHR), ‘Guidelines on Freedom of Peaceful Assembly’, OSCE-ODIHR, 2nd edition, p. 15, available at http://www.osce.org/baku/105947?download=true [Accessed on August 26 2015]

[5]UNGA, International Covenant on Civil and Political Rights (ICCPR), 1966, entered into force in force from 23 March 1976,  Article 21 explicitly states right to “peaceful assembly” should be ensured, which implies that International Human Rights Law only ensures protection for it.

[6] ibid ICCPR, 1966,  Article 20.

For further information please contact

akriti@inhuredinternational.org

priyanka@inhuredinternational.org

For pdf version of the issue briefsecondIssueBrief

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