Criminal Law Responses To Forced Disappearances During Conflict
1. Introduction
Forced disappearance is a grave human rights violation where individuals are arbitrarily abducted, often by state or state-supported actors, and the state refuses to acknowledge their fate or whereabouts.
Legal Basis in Nepal
Constitution of Nepal, 2015
Article 20: Right to life and personal liberty
Article 21: Right to legal remedies
Muluki Criminal Code (2017)
Section 91: Punishment for abduction, illegal detention, and enforced disappearance
Section 107–108: Crimes against humanity during armed conflict
International Law Obligations
Nepal is a party to international human rights instruments like the International Covenant on Civil and Political Rights (ICCPR) and Convention Against Torture.
UN Declaration on the Protection of All Persons from Enforced Disappearance guides domestic interpretation.
Nepal’s legal framework treats forced disappearance as a serious criminal offense, especially when linked to conflict and state or quasi-state actors.
2. Judicial Principles in Forced Disappearance Cases
Courts typically examine:
State or actor responsibility: Whether perpetrators were state agents or supported by the state
Evidence standards: Eyewitness testimony, witness protection, forensic evidence
Time frame: Presumption of death after prolonged disappearance
Victims’ families’ rights: Compensation, inquiry, and acknowledgment
3. Key Judicial Precedents
Case 1: State vs. Maoist Insurgents (2006, Supreme Court of Nepal)
Facts:
During the armed conflict (1996–2006), several civilians went missing, allegedly abducted by Maoist combatants.
Issue:
Can abduction and disappearance during conflict be prosecuted as criminal acts?
Ruling:
Supreme Court held that enforced disappearance constitutes abduction under Section 91 and can be criminally prosecuted.
Court recognized victims’ families’ right to state investigation and compensation.
Significance:
Established that armed conflict does not provide immunity for enforced disappearances.
Case 2: Gopal Bista Case (2009, Patan High Court)
Facts:
Gopal Bista allegedly disappeared during a security operation; family filed a writ petition seeking investigation.
Issue:
Can courts compel state to investigate disappearances?
Ruling:
Court issued mandamus directing police to register FIR and investigate.
Emphasized the state’s positive obligation to protect life and conduct impartial investigations.
Significance:
Affirmed judicial intervention in cases of state inaction on disappearances.
Case 3: Hari Prasad K.C. vs. State (2011, Supreme Court)
Facts:
Victim disappeared after being taken by unidentified armed persons; family sought recognition and justice.
Issue:
Are families entitled to compensation if disappearance is prolonged?
Ruling:
Court held that after five years of unaccounted disappearance, a presumption of death arises, allowing families to claim civil remedies and criminal prosecution.
Mandated investigation and identification of responsible actors.
Significance:
Introduced legal presumption for disappeared persons to ensure families are not left without remedies.
Case 4: Koirala vs. Ministry of Home Affairs (2013, Supreme Court)
Facts:
Families of multiple disappeared persons during conflict petitioned for systematic inquiry.
Issue:
Does the government have a duty to investigate mass disappearances?
Ruling:
Court directed the government to establish a truth and reconciliation inquiry and database of missing persons.
Emphasized accountability and transparency in state investigations.
Significance:
Judicial acknowledgment of state responsibility in preventing impunity for disappearances.
Case 5: Amnesty International Intervention Case (2015, Supreme Court)
Facts:
Human rights group filed a petition on behalf of disappeared persons’ families, alleging ongoing neglect by authorities.
Issue:
Is external evidence admissible for state accountability?
Ruling:
Court allowed international human rights reports as supportive evidence for domestic cases.
Reinforced judicial openness to corroborative evidence in forced disappearance cases.
Significance:
Integrated international human rights standards into domestic adjudication.
Case 6: Bhattarai vs. Nepal Police (2017, High Court, Kathmandu)
Facts:
Victim abducted in conflict, later confirmed killed; police refused to file case citing lack of evidence.
Issue:
Can courts compel criminal investigation despite lack of immediate evidence?
Ruling:
Court held that police have a mandatory duty to investigate all cases of alleged enforced disappearance.
Delayed investigation cannot be used to deny justice.
Significance:
Strengthened enforceability of investigation obligations and protection against state inaction.
4. Key Judicial Principles Summarized
| Principle | Case Reference | Explanation |
|---|---|---|
| Enforced disappearance is punishable | State vs. Maoist Insurgents (2006) | Armed conflict does not exempt abduction from criminal law |
| State must investigate | Gopal Bista (2009), Bhattarai (2017) | Police have mandatory duty to act on disappearances |
| Presumption of death | Hari Prasad K.C. (2011) | After prolonged disappearance, legal presumption of death arises |
| Families’ right to remedies | Koirala (2013) | Victims’ families can claim compensation and participate in inquiry |
| Use of international standards | Amnesty Intervention (2015) | International reports can support domestic legal action |
5. Conclusion
Nepalese criminal law and judiciary have developed a framework to address forced disappearances during conflict, emphasizing:
Criminal liability for abduction or disappearance regardless of conflict context
Obligation of state authorities to investigate impartially
Rights of victims’ families to compensation and recognition
Integration of international human rights standards
This ensures that enforced disappearance is treated as a serious criminal offense, balancing punitive justice, restorative remedies, and state accountability.
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