HUMAN RIGHTS: AN UPDATE ON DETENTIONS AFTER FOUR

C O N F I D E N T I A L SECTION 01 OF 04 KATHMANDU 000616

SIPDIS

STATE FOR SA/INS

E.O. 12958: DECL: 03/27/2012
TAGS: PHUM PGOV NP
SUBJECT: HUMAN RIGHTS: AN UPDATE ON DETENTIONS AFTER FOUR
MONTHS OF THE EMERGENCY

REF: A. (A) 01 KATHMANDU 2300


B. (B) KATHMANDU 0450

C. (C) KATHMANDU 0615

Classified By: POL/ECON MAHONEY. REASON: 1.5 (B,D).

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SUMMARY
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1. (C) SUMMARY: Despite the Prime Minister's assurances to
donors and the general public that the curtailment of human
rights under the state of emergency is directed only against
Maoists and their supporters (Ref A),the security forces
appear to be casting their nets more broadly, detaining and
holding incommunicado left-leaning journalists, lawyers, and
human rights activists. Although on March 26 the Royal Nepal
Army (RNA) released four such individuals whose cases had
gained international attention, the actual number of other,
lesser-known detainees still being held under the emergency
anti-terrorism ordinance is unknown. On a more positive
note, the RNA has agreed to allow the ICRC access to children
conscripted by the Maoists who are now in Army detention (Ref
B),although the ICRC has not had confidential access to
other prisoners held by either the RNA or the police since
March 7. The Ambassador stressed the need to maintain respect
for basic human rights in a March 20 meeting with the King
and in a March 27 meeting with the Foreign Secretary, while
DATT and emboffs have made the same points with the RNA, Home
Ministry and others in the Ministry of Foreign Affairs. The
Foreign Secretary told the Ambassador March 27 the ICRC
headquarters agreement is in the final stages of approval
(Ref C). The Embassy will continue to put pressure on the
Government of Nepal (GON) to stand by its previous statements
that respect for the basic human rights of the general
population will not be abridged despite the emergency. End
summary.

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TERRORISM LAWS
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2. (U) After the promulgation of the state of national
emergency November 26, Prime Minister Sher Bahadur Deuba
emphasized to the U.S. Embassy and to other donors that the
curtailment of fundamental human rights under this
extraordinary new circumstance and the special powers given
to the security forces under the accompanying Terrorist and
Destructive Acts Ordinance (TADO) were directed only at
Maoists and their supporters, and not at the population at
large (Ref A). Since then, emboffs have repeatedly heard
similar assurances from others in the Government of Nepal
(GON),the police, and the Royal Nepalese Army (RNA).
Although many civil rights have been suspended under the
emergency, the right to file habeas corpus petitions and the
right to counsel during detention--even under the TADO--have
not. In addition to acts that damage or destroy property,
life, or limb, with the aim of undermining the "sovereignty
or integrity of the Kingdom of Nepal, or security or peace
and order of the Kingdom of Nepal," the TADO defines
terrorism as "any other act committed in such a manner as to
spread an atmosphere of fear or terror." The TADO allows for
the arrest without warrant by any member of the security
forces (civilian police, paramilitary Armed Police Force, or
RNA) of any individual suspected of terrorist activity, and
for the subsequent detention of that individual for up to 90
days without charge. Detention may be extended for an
additional 90 days with the permission of the Home Ministry.
(Note: According to both the Ministry of Law and Justice and
a private lawyer, the RNA may pick up suspects but should
then turn them over to the civil police as soon as possible.
End note.)

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TOWARDS A BROADER DEFINITION OF TERRORIST?
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3. (SBU) On March 3 the RNA picked up Gopal Budhatoki, the
long-time editor of the left-leaning vernacular publication
"Sanghu," at about 10:30 p.m. as he was returning home from
the office, without informing either his family or his place
of work. After several Opposition MPs raised his apparent
disappearance, PM Deuba acknowledged in Parliament March 6
that Budhatoki was being detained by the RNA. Several press
contacts speculated Budhatoki had incurred the wrath of RNA
Chief of Army Staff Prajwalla Rana with a recent op-ed piece
criticizing the Army Chief for not being on hand to receive
the bodies of the soldiers killed in the bloody Feb. 17
attack in Achham. Many asserted that Budhatoki, while
decidedly left-wing in outlook, was not known to have Maoist
sympathies.


4. (C) In a March 14 meeting with Chief of General Staff
Gen. Pyar Jung Bahadur Thapa and Director of Military
Operations Brig. Gen. Pradip Malla, A/DCM, DATT, and poloff
raised the detention of Budhatoki. Poloff acknowledged that
during the state of emergency certain restrictions on the
press must be maintained in order to safeguard information
vital to national security. It is important to maintain a
distinction between threats to national security and other
situations, however. Recalling the PM's previous statements
that emergency curtailments of human rights are directed only
at terrorists, she said that respect for basic human rights
should, as far as possible, be upheld despite the emergency.
The case had attracted significant attention, including from
the U.S., and the Embassy is concerned at his continued
detention incommunicado and his family's lack of access to
him.


5. (C) Malla responded that Budhatoki posed a security
threat because he had published a "seditious" article
intended to incite "mutiny" among RNA ranks. Thapa added
that the RNA planned to hold Budhatoki for just "a few days
to scare him" and would then release him. If the RNA
released him too soon, Thapa predicted, Budhatoki would not
be sufficiently chastened and it would appear the release had
come "under pressure." Both men asserted that Budhatoki was
being well treated. (Note: According to a local human
rights group, about 30 journalists, including some clearly
affiliated with Maoist publications, are currently in
detention in different parts of Nepal. End note.)


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AND MORE ARRESTS
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6. (SBU) According to the local human rights group Center
for Victims of Torture (CVICT),on March 12 Saligram Sapkota,
President of the Banke District Appellate Court Nepal Bar
Association, was arrested from his home at 4:00 a.m. by
plainclothes RNA. Sapkota is a member of the little-known,
leftist Janabadi Morcha (Democratic Front) and had just
recently, according to the British Embassy, filed a habeas
corpus petition for another individual detained by security
forces. After his wife and other relatives visited him the
following day at the Chisapani Army Barracks in Nepalgunj,
Banke, his wife asserted he had bruises on his face and body
and claimed he appeared to have been mistreated. (Note: The
Embassy has not independently confirmed any evidence of
mistreatment. End note.) Sapkota reportedly told his wife
his RNA captors had accused him of "indirectly" supporting
the Maoists.


7. (SBU) On March 16 GON security forces, believed to be
RNA plainclothesmen, picked up Shyam Shrestha, a journalist;
Pramod Kafle, a human rights activist involved in Bhutanese
refugee affairs; and Mahesh Maskey, a medical doctor active
in human rights, at Tribhuvan International Airport as they
were preparing to board a flight to New Delhi. The three
were planning to attend a seminar, convened by organizers
believed to have links to Maoist groups, with the purported
aim of finding ways to re-start dialogue between the GON and
the insurgents. Kanak Dixit, a well-respected journalist and
long-time Embassy contact who was traveling to New Delhi on
other business, observed the arrests. The GON subsequently
acknowledged the detentions a few days later but declined to
reveal the detainees' whereabouts or allow them access to
their families or lawyers. Only Opposition Leader Madhav
Kumar Nepal was permitted to see the men, a visit he declined
(in not very characteristic fashion) to discuss publicly.
Many journalists and human rights activists contacted
speculated the trio might be released after the March 25
return of Prime Minister Deuba from an official visit to
India. Upon receiving an Embassy inquiry, a Home Ministry
official said he was unaware of the detentions and speculated
the three were in RNA custody.


8. (C) In a March 20 call on King Gyanendra, the Ambassador
stressed the need for the security forces to maintain respect
for human rights despite the emergency. The King said he
fully understood the need and would ensure that the basic
human rights of the general population are not infringed upon
during the emergency. (Note: The Ambassador made similar
points in his March 27 call on Foreign Secretary Madhu Raman
Acharya--Ref C. End note.)


9. (C) In a March 22 meeting with CGS Thapa and DMO Malla,
poloff and DATT again raised human rights issues. Malla and
Thapa both deflected questions about reports that the RNA
holds prisoners incommunicado, asserting that many of the
suspects in question are in fact Maoists. If, after
questioning, an individual is determined not to be a Maoist,
he is set free. Malla said that Budhatoki's wife had been
permitted to visit him and that he would be released "within
one week." (Note: Budhatoki's wife later told Embassy she
had not/not met him, an assertion subsequently repeated by
Budhatoki himself. End note.) He went on to say that during
the emergency any statement denigrating the RNA is illegal.
Asked if Nepali law requires detainees be permitted to meet
with counsel and family members, Malla replied, "That's an
American law." When challenged, he corrected himself, but
said the visits need not take place within twenty-four hours
of detention under the emergency. He confirmed that the right
to habeas corpus had not been suspended. Asked if RNA
personnel were conducting operations in plain clothes, Thapa
replied ambiguously that Special Forces from the 10th Brigade
might be conducting such operations. Stating there is
"nothing wrong with operating in civilian clothes," he added
doing so was necessary in some cases in order to get near the
Maoists without alerting them. (Note: We agree.) He
concluded the RNA may or may not be using such practices--he
could not say for certain.

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FOUR DETAINEES RELEASED
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10. (SBU) In a March 26 meeting at the Ministry of Foreign
Affairs, poloff raised the detentions, questioning the
legality--even under the emergency--of holding people
incommunicado, and noting the increasing inquiries the
Embassy was receiving. She added that Foreign Secretary
Acharya might likely encounter similar inquiries during his
April 2-6 visit to Washington (Ref C). MFA Undersecretary
Prahlad Prasai agreed, adding he would ask the Foreign
Secretary and Minister of State for Foreign Affairs to raise

SIPDIS
the matter with the PM during their meeting with him later
that afternoon.


11. (SBU) At about 6:30 p.m. March 26--one day after PM
Deuba's return from India--Budhatoki, Shrestha, Kafle, and
Maskey were released from RNA custody. Budhatoki told
Embassy he never knew where he was being held, and had been
kept blindfolded except during meals and in solitary
confinement throughout the 23 days of his detention. He said
he received no visitors and was never questioned, accused of
any crime, or informed of the reason for his detention.

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CHILD MAOISTS AND ICRC ACCESS
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12. (C) In a March 14 meeting with CGS Thapa and DMO Malla,
DATT raised the children conscripted--and in many cases
abused--by Maoists who now being held in detention at the RNA
barracks in Nepalgunj (Ref B). She recommended the RNA
arrange for the ICRC (which has not to date visited detainees
in RNA custody) to gain access to these children and assess
their needs. Following the visits, other arrangements for
the children--such as relocation to NGO-sponsored shelters
for victims of sexual abuse or other facilities for
juveniles--could be worked out. Publicizing the plight of
these children--and the fact that the Maoists are
conscripting and abusing children--in international fora
would help highlight the atrocities committed by the
insurgents. Thapa and Malla readily agreed to the idea, with
Thapa suggesting the names of NGOs on his own. On March 19
Malla sent letters to the ICRC and two NGOs advising them of
the use of children by the Maoists and asking for the
organizations' assistance. The Acting ICRC Head of
Delegation told poloff March 25 she had already had an
encouraging meeting with the RNA and looked forward to
gaining access to the child detainees soon. On a less
positive note, however, she added that on March 7 the GON
suspended the organization's confidential access to prisoners
held by police. On March 27, however, Foreign Secretary
Acharya told the Ambassador that ICRC's headquarters
agreement is in the final stages of approval (Ref C).

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COMMENT
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13. (C) The RNA reaction to the suggestion that child
detainees be transferred is welcome. Embassy will continue
to follow developments in this initiative. We also welcome
the release of the four detainees; the actual number of
others still being held under the anti-terrorism ordinance is
unknown. Less welcome is the RNA's increasingly expansive
interpretation of just who constitutes a "terrorist" and
under what conditions they can be held. We believe Deuba
himself, a victim of human rights abuses under the Panchayat
regime, is sincere in his pledge to uphold human rights, and
we note the RNA has been deployed for just four months under
new and admittedly very trying and hazardous circumstances.
Nonetheless, the RNA, other security forces, and the GON in
general must uphold the rule of law--including those few
rights not suspended under the emergency, such as the right
to counsel and habeas corpus. The Embassy will continue to
press this point with both the civilian leadership and the
military. End comment.
MALINOWSKI