NEPAL: HUMAN RIGHTS IN THE CONTEXT OF THE

C O N F I D E N T I A L SECTION 01 OF 05 KATHMANDU 000500

SIPDIS

STATE FOR SA/INS
LONDON FOR POL - GURNEY
NSC FOR MILLARD

E.O. 12958: DECL: 03/15/2014
TAGS: PHUM MOPS PGOV NP
SUBJECT: NEPAL: HUMAN RIGHTS IN THE CONTEXT OF THE
INSURGENCY

REF: A. KATHMANDU 0463


B. KATHMANDU 0141

C. KATHMANDU 0432

D. KATHMANDU 0458

Classified By: AMB. MICHAEL E. MALINOWSKI. REASON: 1.5 (B,D).

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SUMMARY
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1. (C) The Maoist insurgency poses special challenges for
the Government of Nepal's (GON) efforts to improve its human
rights performance. At the same time, our ability to make
objective, fact-based assessments of the GON's performance is
hindered by a number of complicating factors, including the
inaccessibility of many sites of purported violations, the
absence of impartial observers in civil society or the media
to document allegations, an institutional culture of
non-transparency, the lack of GON capacity to conduct
adequate investigations, and a weak judicial system. The
painful scrutiny donors and members of civil society have
directed at the GON's performance may force improved
implementation of long-standing--and long-ignored--human
rights commitments. While the end of the ceasefire has
brought a number of troubling allegations against the
security forces, it has also brought some encouraging
indications of an evolving institutional responsiveness to
the need for greater accountability. Although there
obviously is substantial room for improvement, we believe
that as long as we continue to observe some signs of
progress, we should remain engaged with the GON and the
security forces as a way to ensure more sustained
improvement. Our human rights messages must be reinforced
through continued U.S.-funded training in civil affairs and
human rights for the military, as well as new U.S. support to
strengthen Nepal's legal institutions and to build capacity
within the NHRC. There is no indication that the Maoists are
doing anything to improve their own human rights record or to
mitigate the debilitating effects that their operations and
campaign of terror have on average Nepalis. End summary.

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GREATER SCRUTINY, MORE REPORTS OF VIOLATIONS
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2. (SBU) Over the past few years of the Maoist insurgency,
Nepali security forces in general and the Royal Nepal Army
(RNA) in particular have faced growing international and
domestic criticism for human rights violations. The chorus
of complaints has grown in volume since the Maoists
unilaterally ended a seven-month ceasefire in August and
resumed hostilities against the Government of Nepal (GON).
For independent observers, it is often difficult to determine
the validity of many of the allegations against the security
forces for a number of reasons, including the inaccessibility
of many sites of purported violations, the absence of
impartial and competent institutions in civil society or the
media to document allegations, and a widely accepted culture
of non-transparency. The current emotionally charged,
politically polarized climate, which fosters a popular
predisposition to believe the worst about the GON, further
clouds the often incomplete picture we receive. Nepal's
free--and often irresponsible press--also complicates the
problem. For many of the same reasons, it is equally
difficult to judge whether more violations actually are
taking place, or whether civil society and the media (and
possibly the Maoists themselves) simply have become more
adept at publicizing such incidents.


3. (SBU) These complications aside, it remains obvious that
the number of casualties has escalated dramatically since the
RNA entered the fight on November 26, 2001. By the second
week of November 2001, for example, fewer than two thousand
people had been killed in more than five and a half years of
the insurgency. After just one year of RNA involvement, the
toll had more than tripled. Current statistics indicate that
eighty percent of all people killed in all the eight years of
conflict have died in just the last 28 months since the RNA's
mobilization. Of the 8800 Nepalis who have died since
February 1996, more than 65 percent were identified as
suspected Maoists. The casualty tolls for civilians and
police (including Armed Police Force) are at near parity
(about 15 percent each). The RNA accounts for less than 5
percent of the casualties.


4. (C) The RNA, which is leading the counterinsurgency
effort as head of the newly established Unified Command, has
found itself catching most of the criticism for violations.
Some of the scrutiny may be politically motivated; the Army
is closely associated with the King, whom party leaders have
accused of overstepping his constitutional boundaries.
Moreover, given the general absence of civilian GON
initiatives to address the insurgency, e.g., restoring
disrupted government services in Maoist-affected areas, RNA
efforts to fill the gaps have earned it often unjustified
criticism for trying to "militarize" the government or
otherwise usurp civilian functions. The RNA's historic
association with the Palace has, moreover, helped foster a
culture of non-transparency and aloofness within the
institution. Unused to criticism or public scrutiny, the RNA
never before found it necessary to cultivate good relations
with civil society, the media or with political parties. Its
officer corps, their loyalty to each other and the King
reinforced by interlocking caste and family relationships,
may lack a clear understanding of the harsh conditions and
extreme poverty under which most Nepalis, including members
of the Maoist movement, must live.


5. (C) The RNA faces indisputable challenges in attempting
to address the insurgency. RNA advocates note that the Army
was thrust unprepared overnight into the middle of a violent
insurgency when the Maoists attacked soldiers in their
barracks after breaking the first ceasefire in 2001. (Other
observers contend that, after five and a half years of
steadily worsening violence, the RNA should have anticipated
being deployed. It was successive democratically elected
governments, however, that steadfastly refused to deploy the
RNA in a counter-insurgency role for fear of somehow
strengthening the Army and the Palace.) Before late 2001,
the RNA was a small, parade-ground military with some
experience in international peacekeeping, untrained,
unstaffed, and unequipped to mount a full-scale
counterinsurgency effort. It now must face a foe who employs
savage, take-no-prisoner tactics and who is virtually
indistinguishable from the rest of the population. The
battle takes place across some of the most rugged,
uncompromising terrain in the world, posing special
difficulties for the RNA, with its minimal air assets, in
providing adequate security. Finally, the RNA has
experienced unprecedented growth over a short period of time,
swelling its enlisted ranks by more than 40 percent over the
past 28 months since its deployment. Many of the new
recruits have had inadequate training in a whole array of
military skills and lore, including the Law of Armed Conflict
and human rights. Officers and non-commissioned officers,
moreover, are not being trained fast enough to provide
necessary command and control.

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A WEAK INSTITUTIONAL ENVIRONMENT
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6. (C) While many critics accuse the security forces of
deficiencies in applying human rights standards, the same
charges may be leveled against the GON, the National Human
Rights Commission (NHRC),the judiciary, and some elements of
civil society. Many of these problems reflect long-standing
institutional weaknesses unrelated to (but certainly
exacerbated by) the insurgency. For example, while the GON
has signed a number of international human rights agreements,
such as the International Covenant on Civil and Political
Rights and the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW),efforts to implement
those agreements remain inconsistent and incomplete.
Although the GON signed CEDAW 13 years ago, a local NGO has
identified more than 100 different pieces of existing
legislation that discriminate against women. When the NHRC
was formed in 2000, party leaders saw it as a vehicle to
dispense political patronage, rather than to monitor human
rights, and duly appointed a quota of members on the basis of
partisan loyalty, rather than professional competence. The
result, while predictable, has been especially damaging to
the development of national capacity in this important field.
Commission members' personal and partisan enmities routinely
subverted constructive cooperation and inappropriately
politicized investigations into cases. Unfortunately, the
bitter partisanship that tainted NHRC operations was
replicated in a plethora of human rights NGOs aligned with
particular parties, further politicizing monitoring and
reporting. Inaccurate and irresponsible journalism, in which
rumor is often misrepresented as fact, compounds the problem.


7. (C) The right to a fair trial is undermined by an
inefficient judicial system. In 2003 district courts in
Nepal reported a combined backlog of more than 32,000 cases,
while the Supreme Court's backlog totaled more than 16,000.
Of the hundreds of individuals detained as suspected Maoists
under special anti-terror legislation, only 24 have been
brought to trial. Emboffs' queries to three different GON
agencies (the Attorney General's Office, the Supreme Court,
and the Ministry of Law and Justice) about the specific
rights afforded to detainees under Nepali law elicited three
separate and conflicting responses, highlighting the lack of
clear guidelines and enforcement mechanisms in the domestic
legal framework.

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GROUND REALITIES HARD TO UNEARTH
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8. (C) In many of the areas where violations are alleged to
have taken place, there are no independent sources, whether
from the press, civil society, or even civilian government,
to substantiate reports. In this environment, separating fact
from rumor, speculation, and politically motivated
misrepresentations often can be nearly impossible.
Nonetheless, the Ministry of Defense's own press releases,
which convey the daily "killed in action" statistics, raise
some questions. On a typical day, the list reports a number
of incidents nationwide, the majority of which entail one or
two "Maoists" being killed in disparate regions across the
country, often with no accompanying report of an engagement,
of security forces killed or wounded, or of other Maoists
surrendering, being taken prisoner, or being wounded in the
same place. For example, MOD information from February 6
reports 1 Maoist killed in Panchthar District in the
northeast of the country; 1 Maoist killed in Banke District
in the far southwest of the country; 1 Maoist killed in
Dhading District (near Kathmandu); 1 Maoist killed in Kaski
District in the northern-central part of the country; 1
Maoist killed in Udaypur District in the southeast; 2 Maoists
killed in Bardiya District in the southwest; and 7 Maoists
killed in Jumla District in the northwest. Information
regarding the circumstances under which these people were
apprehended and killed and/or how it was determined they were
Maoists is generally not forthcoming. In this situation, we
are unlikely ever to know what percentage of the 5,862
"Maoists" reported killed in the conflict were actual
hard-core members of the movement.

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SOME CASES UNDER INVESTIGATION
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9. (C) Some recent allegations from credible sources
suggest that the deaths of at least some of the "Maoists"
reported killed in MOD dispatches can be attributed to a lack
of adequate discipline and training among new recruits,
flimsy intelligence, or more rarely, personal vendettas.
Poor training certainly contributed to the December 12 death
of 20-year-old Suresh Baral in Pokhara, who was killed when
civilian police manning checkpoints at opposite ends of a
street mistook one another for Maoists and began shooting at
each other. The GON has promised compensation to the Baral
family. Similarly, on February 17 RNA soldiers shot and
killed Biraj Gurung, Sunil Gurung, and Tirki Praja as they
were collecting funds to support a local temple in Kabilash,
Chitwan. (Note: This practice is common around the time of
the Shivaratri Festival, which was being celebrated at the
time. End note.) The RNA later acknowledged the three were
mistaken for Maoist extortionists and has promised
compensation to the victims' families.


10. (C) Hamfisted "intelligence" gathering techniques may
account for other cases of mistaken identity. Captured
Maoists are sometimes taken to checkpoints and village
bazaars to point out their colleagues to the security forces;
fear of retaliation creates an obvious incentive for these
"informants" to tag innocent villagers as Maoists. Other
methods reportedly used by the security forces to identify
Maoists likely also contributes to the death toll. A Nepali
citizen who works for a UN agency told us that during a
recent visit to his village in Gulmi District relatives told
him that members of the security forces disguised as Maoists
come into villages and strike up conversations with local
residents in an effort to identify Maoist sympathizers. The
hapless villagers, according to this source, seeing an armed
stranger in Maoist garb, will generally feign Maoist
sympathy, whereupon they are apprehended. Some of these
"Maoists" are subsequently "shot while trying to escape," the
source suggested. Poloff has heard other such allegations
from local NGO and media sources. The NHRC currently is
investigating reports of a similar incident in Bara District
where Kishori Patel Kurmi and Suresh Raut Patel were shot and
killed by the RNA as suspected Maoists on February 12.
According to one of the NHRC field investigators, villagers
claim that armed RNA soldiers in plainclothes approached the
two men, who had no known Maoist affiliation. The two men,
alarmed at the sight of unfamiliar plainclothes men with
guns, ran away, whereupon the soldiers shot and killed them.


11. (SBU) A few allegations, if true, can be attributed
neither to poor training or bad intelligence. Instead, the
lack of institutional response to earlier reports of
violations may contribute to a perception of impunity that
encourages criminal behavior in some quarters. A local NGO
claimed that RNA soldiers summarily executed 17-year-old
Subhadra Chaulagain and 18-year-old Reena Rasaili after
dragging them out of their homes in Pokhari Chauri, Kavre
District, about midnight on February 13. According to the
NGO's report, Chaulagain offered to surrender before she was
taken outside and shot several times, while Rasaili was kept
in a cowshed with about five or six soldiers for five hours.
Her naked body, with three gunshot wounds, was found by her
family a short distance from the cowshed early the following
morning. On February 17 members of the security forces went
to the home of Rasaili's aunt, who had been visiting the
night Reena was killed and witnessed her being taken away by
the soldiers, looking for her. Finding the aunt away from
home, the soldiers reportedly took her 14-year-old daughter,
Maina Sunwar, into custody, telling her father the girl would
be released when her mother turned herself in to "Lamidanda
Army Camp." (Note: Lamidanda is near the Panchkhal
Peacekeeping Training Center in Kavre District. End note.)
The mother subsequently reported to Panchkhal only to be told
that her daughter was not there. Local residents reportedly
told the mother, however, that they saw two girls being taken
in a truck to the base. RNA Spokesman Colonel Dipak Gurung
acknowledged the RNA killed the two girls, whom he described
as Maoists, but said it was investigating the allegations of
rape and abduction. (Note: The Ambassador hand delivered a
letter to Chief of Army Staff General Pyar Jung Thapa on
March 3 asking for more information on the cases. To date, no
reply has been received. End note.)

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EVOLVING ATTITUDE
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12. (C) In our continued dialogue with RNA officers, the
Embassy regularly raises the importance of inculcating
respect for human rights, and is just as regularly assured
that all efforts are being undertaken to do so. Since the
establishment of the RNA's human rights cell in July 2002, we
can identify a slowly evolving awareness of the need to
investigate, prosecute and even convict abusers. For
example, the first case the Embassy raised with the human
rights cell--the March 15, 2001 killing of Kancha Dangol in
Kathmandu--resulted in no more than a three-month sentence
for two low-ranking enlisted personnel for dereliction of
duty. (This despite photographic evidence showing the corpse
of Dangol, whom the RNA maintained was "shot while trying to
escape," with a gun shot wound in his temple.) A captain
accused of rape in a controversial April 2001 incident was
held back from promotion for a year after the victims,
probably under pressure from the captain, who remained at his
post (near the girls' home) during the course of the
investigation, withdrew charges. Eventually, however, the
RNA's human rights cell won a few convictions, such as the
seven-year sentence for a soldier convicted of an
extra-judicial killing in January 2003 (Ref B). More
recently, two cases the Embassy has brought before the
cell--the December 6 killings of three civilians in Khotang
District and the December 15 killing of a 15-year-old girl in
Kavre District (Ref B) have resulted in courts-martial. In a
landmark decision, on March 11 the RNA announced it would
court-martial a major--the highest-ranking RNA officer yet to
face charges for gross violations of human rights--implicated
in the alleged extra-judicial killings of 19 suspected
Maoists in Doramba, Ramechhap District (Ref A).


13. (C) Greater scrutiny of Nepal's human rights
performance by both the international community and domestic
audiences is making the GON realize it must improve its ad
hoc implementation of human rights standards and agreements.
Faced with a possible UN resolution on its human rights
record, the GON plans soon to announce a detailed commitment
to fulfil its human rights obligations--including
instructions to the security forces to respect the right to
habeas corpus (Ref C). (Note: Human rights groups and legal
authorities assert that the security forces routinely ignore
writs of habeas corpus. Amnesty International lists 173
individuals as having "disappeared" in GON custody since the
end of the ceasefire in August. End note.) Some European
diplomats here have suggested that fears among the military
leadership that reports of RNA violations might damage the
Army's competitiveness for future UN Peacekeeping missions
may also be a factor in the RNA's evolving attitude toward
human rights.


14. (C) While pressure and scrutiny from the international
community and Nepali civil society may be helping change GON
attitudes and practices toward human rights, the Maoists,
regrettably, have demonstrated no such improvement. Instead,
they continue to murder, torture, rob and intimidate, and
have apparently adopted a fresh outrage--the abduction and
conscription of children--as a new policy (Ref D). Our GON
interlocutors complain that their critics in the media, civil
society, INGOs and certain European donors focus on
allegations of GON abuses while barely commenting on the
Maoists' well-documented depredations.

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COMMENT
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15. (C) That the security forces face formidable challenges
in trying to quell the insurgency is undeniable. That the
Maoists are ruthless and vicious foes is undeniable. That
Nepal lacks the legal and institutional framework to ensure
more systematic implementation of human rights standards is
undeniable. But that the security forces can and must do
better to inculcate respect for human rights throughout their
ranks is also undeniable. While we believe that U.S.
engagement with the military has helped increase this
awareness, more must be done. While we believe abuses are
the exception, rather than the rule, heavy-handed tactics
obviously alienate and intimidate the general public, rather
than win their hearts and minds. We are encouraged that the
GON and the security forces are beginning to demonstrate
accountability at higher levels, as in the Ramechhap
incident. We will continue to emphasize the importance of
human rights in our engagement with the civilian GON, the
Palace, and the security forces. At the same time, these
messages must be reinforced through continued U.S.-funded
training in civil affairs and human rights for the military,
as well as new U.S. support to strengthen Nepal's legal
institutions and to build capacity within the NHRC. We also
need to focus more international attention on the terrorist
tactics and their widespread policy of human rights abuse.
MALINOWSKI