Asian Human Rights Commission, Hong Kong
Land-locked Nepal escaped the destruction of the massive tidal wave that swept away the coastlines of its neighbours this December 2004. Unfortunately, the country has instead been hit by a political tidal wave that has caused at least as much damage to the people living there. Yet, whereas the international community has commendably sprung into action to address the needs of the millions affected by the natural disaster that devastated the shores of the Indian Ocean, it has all but ignored the man-made disaster causing ruin to the small Himalayan country to the north.
The disaster in Nepal is doing far more than causing death and mayhem. It is also ruining all the institutions responsible for the basic functioning of a country: its courts, law-enforcement agencies, and bureaucracy. It is wreaking havoc on the economy and all areas of social life. Normal life in Nepal is a thing of the past. Trade in goods, including food, has been affected. Some reports have it that pregnant women are not even able to visit hospitals to give birth. Other than the security forces, state institutions outside Kathmandu have gradually ceased functioning altogether. And this disaster is ongoing; it does not pass and leave people to emerge and pick up the pieces. It is an ever-present catastrophe, and is daily intensifying.
It is a tragedy comprised of hundreds of thousands of small tragedies one upon the next. Over 10,000 lives have been lost by official figures, despite the lack of large engagements between the army and insurgents. The state media daily justifies the extrajudicial killings and disappearances of thousands more as the result of encounters between security personnel and terrorists. Outside Kathmandu, people know better. There, virtually not a single family has escaped some kind of family or financial loss, or the suffering of threats from one side or the other.
Those inside the country responsible for the escalation in violence seem oblivious to the consequences. The king, parliament, political parties and insurgents all seem unable to grasp that they are bent on a course towards incalculable suffering. None seem in control, none is able or willing to deviate from this single-minded direction of the use of force as the sole means to obtain their objectives.
Those outside the country, including the United Nations, while at least alerted to what is happening there, seem to have little understanding of the nature and scale of the unfolding crisis, merely being vaguely apprehensive that something terrible is in the making. Powerful neighbours, particularly India, lack clear strategies to address the daily worsening events. Nor do they appear to be taking steps to develop any. Without a quick awakening, it is quite likely that the world will watch another tragedy of Cambodian proportions unfold in Nepal in the not too distant future. At that time it will not be possible to say “we didn’t know”.
The Asian Human Rights Commission has for some time made attempts to alert the global human rights community, wider international community, United Nations and regional neighbours of Nepal about what is happening there. Our first concern has been for the lives of the ordinary folk living within its borders. As the case studies and numerous appendices in this report testify, their collective right to life and wellbeing is very much under threat today. Flows of refugees and internally displaced people are growing. In the recent weeks, they are reported to have been on the move hourly. As usual, those worst affected at such times are women, children and other vulnerable groups in the poorer sections of society. Unable to continue their livelihoods, unable to obtain basic services such as schooling and health, these persons become the victims of all manner of deprivation.
This report documents how the basic civil rights of people in Nepal have been suspended as basic institutions for the rule of law – notably the judiciary and police – have virtually ceased to offer any protection to the people. In fact, the manner of their functioning is now conducive to the maintenance and growth of terror and uncertainty among the general population.
Of particular concern is the callous manner with which the courts in Nepal, including the highest courts, now deal with habeas corpus applications lodged on behalf of the ever-increasing numbers of forcibly disappeared persons. The courts’ failure to exercise authority on this vital legal principle epitomises the collapse of the country’s judiciary. No greater admission of failure can be made than to not even put on a show of legitimacy. Here we see lawyers doggedly taking cases to the courts on behalf of desperate family members, seeking some way, any way, to protect their loved ones. Yet we find that the courts are either unwilling or incapable of doing even this much. When habeas corpus writs for disappeared persons reach a high court, its opening step is to call for records of arrest. In most cases the authorities reply that the records do not exist – for reasons discussed further below. The conclusion is that the person was not arrested. End of case. The court dismisses the application on the grounds that there is no evidence they are in custody. But even where the lawyers and family of the missing person make heroic efforts to prove that the person is in detention, the court does nothing to protect the evidence, the victim, the lawyer representing them or the family members. The unflagging efforts of some lawyers and rights groups to help their clients thereby puts them and others in grave peril before a system that has completely surrendered its independence by refusing to entertain any matter relating to the security forces and their operations.
Understanding of the extent to which human rights protection in Nepal has been completely undermined necessitates understanding of the extent to which its legal system has ceased to function. In terms of basic human rights protection, the practice of law in Nepal today is clearly a futile exercise. This is due mostly to the deliberate withdrawal of cooperation by the Royal Nepalese Army and other security agencies, and concomitant threats directed towards legal personnel alongside demonstrated disdain for the institution as a whole. Its contempt for the courts has recently been manifest in the repeated re-arrests of the few persons released from detention under court orders. Some, such as Jivan Shrestha have been rearrested two or three times: in his case, on the last occasion he was released this December, it was on condition that he return to the barracks with written proof that all writs issued against the authorities had been withdrawn. Catching the spirit, a senior police officer is quoted as having said to some UN consultants recently that ‘due process takes too long so we don’t follow it’. Such sentiments are hardly surprising, given that the civilian police and the Armed Police Force have been rendered little more than arms of the army under the Joint Command. The police too are now organised along military lines, which guarantees that they will cease to engage in ordinary law and order functions in accordance with the orders of the courts.
The irony that lies in this contempt for the courts on the part of the security forces is that it was the king of Nepal who precipitated the rot in the system in order to ensure that these same agencies enjoy impunity for their actions. The effect was both to destroy the possibility that institutions of justice may operate effectively, and guarantee continued insurgency. By dissolving parliament, he further removed literally all the checks and balances built into the constitution, in accordance with international law, intended to protect the rights of citizens.
The result of all this is that those citizens have been rendered powerless to stop abuses committed against them. Life for the ordinary citizen has become a nightmare, as the stories of forced disappearance, murder, rape and torture by the Nepalese security forces contained in this report attest. What is disturbing about these stories is the extent to which arrests, beatings, killings and kidnapping are carried out completely at random. Innocent civilians are assaulted, murdered and carried off often just to convey a message to the other side. What is even more shocking is how individual events are often motivated by trivial objectives: a bit of money, sex with a woman.
In a great many of the cases described in this report, and those known to human rights groups in Nepal, the pretext for arrest or detention is the broad accusation of “having links with Maoists”. As the security forces have been given the power to casually arrest anyone suspected of falling into this category, simply making this allegation allows anyone in the security forces to do what he likes to a victim and escape any responsibility.
What is the nature of record-keeping regarding persons who are arrested for “having links with Maoists”? Is there any central registry of arrests at Army Headquarters? Judging by the information coming daily from Nepal, no such thing appears to exist. The absence of records is convenient, as it allows things to be done without fear of consequences later. No one can look in from the outside and see what is going on, whether an international agency, human rights body, or other part of the government. Without documents, plausible denial of arrests, detention and disappearances is much easier. It may be that record keeping has been deliberately abandoned for these reasons, and it is likely that the pattern is repeated across the country.
Worldwide, mass planned disappearances of persons belonging to an ‘undesirable’ category in society have been made possible only by a policy that favours the erasing of records and non-registration of prisoners belonging to the targeted group. In Nepal, these are Maoists or those “having links with Maoists”. The stories in this report are but a few among thousands that clearly show such a policy is operative in Nepal today. Whereas in official reports disappearances number in the thousands, in reality these are only those cases where relatives of the missing had the courage to report their loss and found some avenue through which to register a complaint. There is at present no way to assess the true number of victims. However, the UN Working Group on enforced and involuntary disappearances recently described Nepal as among the worst countries for human security in the world at present. In response, the government made some symbolic gestures such as uncovering the whereabouts of a few hundred people, without any action to hold the perpetrators accountable and uphold the rule of law. The government instead persists in itself permitting the casual killings that occur after casual inquiries and casual arrests that the Nepalese security forces now contrive to employ daily.
It is also clear from international experience that a policy to allow mass disappearances is accompanied by tacit approval at the highest levels of state for the use of massive torture. With planned widespread disappearances, new rules apply in all areas of business. In many instances, disappearances are a necessary consequence after torture. Either the person dies during torture or the wounds caused will incriminate the perpetrators if the person is released. Persons arrested by mistake cannot be released for fear of compromising some aspect of a security operation. They will not return home. From the stories narrated here it is evident that the Nepalese security forces understand this imperative very well and apply it without compromise. Nepal is now in a time of approved killing and torture from which no one in the country can escape.
Where tortured detainees are not killed, they are usually put through a few legal formalities to keep them under detention until the worst of their injuries pass and all evidence is lost. Those who have been kept in military barracks for extended periods – usually subjected to the most horrific forms of abuse – are sent to the police, to get an arrest on record. However, most are not released. The police readily obtain further detention orders, many times under draconian laws such as the Public Security Act and the Terrorists and Disruptive Activities (Control and Punishment) Ordinance, after which they may be kept under police custody, sent to prison, or handed back to the army. The government abolished the previous Terrorist and Disruptive Activities (Punishment and Control) Act on 12 October 2004, but immediately replaced it with a more severe version, the Terrorist and Disruptive Activities (Control and Punishment) Ordinance. Section 9 of this new regulation states that if a security official feels the need to prevent a person from carrying out any terrorist or disruptive activity, such a person can be kept under detention for a maximum period of one year. The first six months are at the official’s discretion; the second six months after obtaining permission from the Home Ministry. This section provides security officials with the means to rearrest detainees immediately upon their release by court orders, and thereby weaken, threaten and humiliate the courts, lawyers, and the victims, so that they might refrain from challenging illegal detentions again. Such systematic rearrest practices under these and other provisions indicate the failure of the judicial system in Nepal to safeguard the authority of its decisions or stop the security forces from abusing legal process by rearresting individuals freed by the courts.
Among the most damning practices of the judiciary at present in Nepal, and one frequently reported, is the refusal of judicial officers to accept and record complaints of torture, even where victims brought forward for ‘processing’ have clear physical injuries that could only be explained by abuse while in custody. Although these officers are duty-bound to make enquiries and keep records on such abuses, they invariably deign to take up their responsibility. In other cases, the judicial officers may be prepared to take complaints, but it is the victim who fails to speak out due to fear of the very real consequences. The immediate result is often that a person standing before a judge in dire need of medical attention does not get help. This is convenient for the perpetrators. For the same reason that persons are disappeared, those still detained cannot be given medical care, as it would mean unnecessarily involving the outside world, and again suggest the keeping of records. At every step, all basic principles of the rule of law – civilian oversight, judicial review, and constitutional and international norms – are abandoned.
Since 26 November 2001, when the Royal Nepalese Army was unleashed on the population under a one-year-long national state of emergency, it has unceasingly violated virtually every humanitarian and human rights norm. There is no evidence to suggest that it will be discouraged from continuing with this trend into the future. But internally it is suffering from deep fissures caused by a lack of professionalism, non-existent leadership, personality-driven orders, and a zero morality. Attempts to shore-up control by senior officers have only further undermined the internal command structure, deepening mistrust between different ranks and units. The only strategies available to deal with emerging problems are the cover-up and non-interference in the workings of field detachments. Confusion is permitted to reign free so long as the herds of soldiers are kept in check regardless of facilities, guidance and training. “Do whatever is necessary to keep control”, is the only order that counts.
The grim equation upon which all of this is 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.
International agencies calling for peace in Nepal have sought quick negotiations between the government and rebels. In fact, things are moving in the opposite direction. Recent weeks indicate that any remaining feeling of a need for restraint on either side is being abandoned. As the few remaining obstacles to total war are removed, the country edges closer to anarchy. Signs are of much worse to come.
For so long as the government of Nepal continues with policies to perpetuate mass disappearances, killings and torture there can be no ethos conducive to negotiations and compromise. All persons of goodwill within Nepal and outside have a legitimate right to intervene in any way possible and demand that these practices come to an end. International organisations, and particularly strong neighbours like India, must bring all their influence towards ending the extreme violence enveloping the country. It is neither in the interests of the people of Nepal, nor the international community – and neighbouring countries in particular – that the United Nations and concerned governments maintain a disinterested silence on Nepal and expect that things will sort themselves out.
Nepal is rare among countries in Asia in that it is a party to most of the important international human rights conventions and their attendant bodies. Yet the number and intensity of violations within its borders now outstrip virtually all other territories in the region. Ironically, very few individual complaints are ever brought from Nepal to the United Nations bodies to which it is answerable.
The government of Nepal must be made to understand that it has no option other than to bring its security forces under control. The blanket of impunity covering the army and police must be removed without delay. The Torture Compensation Act must be amended and made into a working piece of legislation as envisaged by the UN Convention against Torture to which Nepal is a party, rather than the cruel parody that it is at present. Programmes for witness protection are also desperately needed.
It cannot be presumed that the government of Nepal is capable of making the necessary decisions to do all this of its own accord: every piece of evidence suggests the opposite. With the majority of the country already lawless, a king interested only in holding onto his seat and keeping all his own people in charge of everything else, the signs are not good. International intervention must amount to more than the posting of some advisers to the government. Serious initiatives must be directed towards ending the practices of large-scale disappearances, killings and torture, and ensuring thorough investigations of those atrocities that have already been committed. UN treaty bodies in particular cannot afford to sit idly by drafting finely worded statements arguing this point or that for further discussion in Geneva. In the face of overwhelming chaos, their means for effective monitoring and intervention must be put to the test. Attempts to legitimise the ongoing violence on the pretext of counter-insurgency operations will only bring more of the same onto all parties. The casualties, of course, will continue to be the innocents.