Introduction: The mathematics of barbarity and zero rule of law in Nepal

Editorial board, article 2

The daily escalating disappearances, killings, torture and other gross abuses of human rights committed by the state security forces in Nepal are the subject of this latest special report published in article 2. Both the Asian Legal Resource Centre and its sister organisation, the Asian Human Rights Commission, have spoken out with increasing alarm at the unfolding tragedy in Nepal during the course of 2004. Although the Secretary-General of the United Nations recently expressed his alarm at the worsening conditions there, by and large the international community has remained oblivious to the impending disaster. To the extent that the problems already overwhelming the country have been given any attention, they have typically been reduced to a simple ‘government versus terrorists’ equation. When seen as two-dimensional, all of the country’s problems are then likewise reduced to finding a solution to the conflict. Reductive reasoning of this kind is attractive. It makes the problems manageable, and makes the government institutions approachable. Unfortunately, it also suggests possibilities where they do not exist, and blunts the search for alternatives.

This report is again raising the call for the international community to approach the problems in Nepal in terms of the almost zero functioning of the rule of law there. The non-functioning of agencies intended to uphold the rule of law and basic human rights is no accident. It has been achieved through deliberate steps taken by the government of Nepal in allowing the security forces a free hand in pursuing their counter-insurgency objectives. As the lessons of history demonstrate, the consequences of planned weakening of controls over the institutions for law and order and security – the army and police in particular – are inevitably far greater than anything envisaged by their architects, and far beyond their control. Nepal is today facing the emergence of such consequences.

The title of this report is taken from the opening commentary of the Asian Human Rights Commission, that the grim equation upon which the actions of the security forces are premised

Is that as the Maoists do so must the military, as the only means to eliminate insurgency. This equation is not derived from law or any standards of civility. It is the mathematics of barbarity. The state cannot abdicate its obligations to its citizens simply because it is engaged in a fight with a formidable enemy who is not fighting according to the civilised rules. There is no legitimacy to the tenet that if the state’s opponent engages in casual killings and bloodshed, the state is likewise free to do the same. Even when fighting an insurgency the role of the state is to protect the rights and interests of its citizens. In Nepal, however, all parts of the state apparatus – the king, parliament, judiciary, police and army – have abandoned this latter principle in favour of the former illegitimate one. In so doing the state in Nepal too has ceased to have any legitimacy.

The body of the report consists of 20 case studies of forced disappearance at the hands of the Nepalese security forces, involving 26 victims, and 20 case studies of torture, involving 38 victims. It also contains a short study of the highly flawed and virtually non-operational Torture Compensation Act.

A number of lengthy appendices expand upon the body of the report. The first contains summaries of forced disappearances at the hands of the security forces involving some 161 victims, and summaries of extrajudicial killings involving 116 victims. The second appendix contains over one thousand names of persons who are known to have disappeared. This is not even the total number of documented cases: the National Human Rights Commission alone has some 1600 cases on its books, which is but a fraction of the total number likely to have actually occurred in the country during recent years. Other contents include recent statements and appeals by the Asian Human Rights Commission on the situation in Nepal, extracts of pertinent legislation, and text of the online petition calling for an end to mass disappearances in Nepal.

Many of the cases raised speak to particular patterns of abuse and inaction, and in particular, the sheer unwillingness and inability of the now impotent Nepalese judicial system to prevent arbitrary and illegal detention and massive torture. The courts are increasingly unwilling to entertain habeas corpus writs on behalf of disappeared persons, as to do so challenges a wider policy approving of forced disappearances. Where court orders are in fact issued to have detainees released, they are flagrantly disregarded by the security forces, who either simply ignore the instructions, or – in a cynical exercise speaking to a brutal disregard for human rights and all basic norms – immediately rearrest a person as they are freed. However, in most cases of disappearance and extrajudicial killing, the facts never even enter the courts as the losses are recorded as the result of “encounters” with insurgents. Tragically, these “terrorists” taken down in combat include everyone from children as young as their early teens, such as 12-year-old Rupa Chaudhary, to elderly persons like 80-year-old Sukmaya Dhalan. The agreed policies that drive these atrocities do not discriminate between victims.

The Asian Legal Resource Centre is publishing this special report jointly with Advocacy Forum, Kathmandu, Nepal, which is in fact responsible for most of its contents. Despite present and growing dangers, Advocacy Forum continues to investigate and take up cases of torture, disappearance, and other gross abuses, representing a powerful commitment to human rights values in some of the most extreme conditions for defenders of these rights anywhere in Asia. Its ongoing work, without which conditions of human rights in Nepal would be even worse than at present, has made this report possible. In turn, the work of Advocacy Forum is made possible by the courage of victims and their families, in the face of overwhelming adversities, to stand up for their rights. Our appreciation goes out to these persons above all others, and with them, the citizens of Nepal, with the strong hope and expectation that an end can be put to the madness which is at present gripping their country.

PRESS RELEASE
AHRC-PL-96-2004
AHRC runs online signature campaign to stop Nepal’s disappearances

(Hong Kong, November 19, 2004) The Asian Human Rights Commission (AHRC) has launched an online signature campaign to pressure the Nepali authorities and the insurgent Maoists to take immediate and effective measures to end the massive disappearances and arbitrary killings in the country despite their ongoing conflict.

“The situation is so grave and urgent that by every passing hour human life is lost in Nepal either by military action or by opposing Maoist counteraction. The savage attack on innocent people must be stopped now,” said Basil Fernando, executive director of the AHRC, a Hong Kong-based regional human rights group.

Individuals and groups across the world are called on to urge His Majesty’s Government of Nepal, as well as the good offices of the United Nations, to act by signing a petition posted on “Stop Disappearances in Nepal” at http://nepal.disappearances.org, a new Web site run by the AHRC for the campaign.

The Web site also contains a cyber memorial with information of 897 men, women and children as young as 13 years old, who have been forcibly disappeared in Nepal.

The actual number of the disappeared victims is unknown due to difficulties in gathering information within and outside the country. Many cases are unreported.

The AHRC believes that the exact figure of disappearances could be in thousands and is growing every day. The National Human Rights Commission of Nepal earlier documented more than 1,400 cases.

“The police and the military establishment refuse to admit that large scale disappearances are happening in the country. The domestic law enforcement agencies including the courts are not able to address this situation,” the rights group said in the petition.

“All government organs responsible for disappearances enjoy absolute impunity thereby creating a climate of complete fear, helplessness and silence. The situation in the Maoist-controlled region is equally bad since practically there is no civilian law enforcement agency working within this region at all,” the group said.

“Disappearances and arbitrary execution cannot be justified by any means and no cause could be held reasonable for summary killings,” the AHRC said.

Nepal has the responsibility to protect its people in accordance with the international humanitarian and human rights laws, particularly the International Convention on Civil and Political Rights, and the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment that the country has ratified, the group said.

The AHRC will send the petition and the signatures collected to the office of King Gyanendra and other high-ranking officials of the government.

The online appeal will also forward to the U.N., including its senior human rights adviser to Nepal, the special rapporteur on extrajudicial, summary or arbitrary executions, the Working Group on Enforced or Involuntary Disappearances, and the special rapporteur on the question of torture and disappearances.

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