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Nepal: Peace and Justice International Crisis Group 2010-01-14

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Asia Report N° 184 - 14 January 2010
Crisis Group
A. Better to Forgive and Forget? 2
B. Pushing the Peace Process 3
C. Dangerous Cycles 4
A. A Decade of Dirty War 6
1. The state 6
2. The Maoists 8
B. Why Did Systematic State Violations Take Place? 9
C. The Maoists: Playing by Revolutionary Rules 11
D. Reinforcement at Home and Abroad 12
B. The Army 15
C. The Maoists 16
D. The Victims 17
E. Party Approaches 17
F. Civil Society 18
B. Building Better Commissions 20
C. Linking International Military Assistance to Justice 21
D. Umted Nations: Principles and Peacekeeping 23
A. Map of Nepal 27
B. Glossary 28
C. About the International Crisis Group 29
D. Crisis Group Reports and Briefings on Asia since 2007 30
E. Crisis Group Board of Trustees 32
Crisis Group
Asia Report N°184
14 January 2010
Failure to address the systematic crimes committed during
Nepal's ten-year civil war is threatening the peace process. There has been not a single prosecution in civilian
courts for any abuses. The cultures of impunity that enabled the crimes in the first place have remained intact,
further increasing public distrust and incentives to resort to violence. The immediate priorities should be
prosecutions of the most serious crimes, investigation
of disappearances and action to vet state and Maoist
security force members.
There are tensions between the pursuit of justice and the
pursuit of peace. An absolutist approach to accountability for past abuses is impossible in practice and could
obstruct the compromises needed to bring formerly warring parties together to forge a stable political settlement.
But tackling impunity and improving accountability has
a direct and acute relevance to managing Nepal's fractious
transition. Unaccountable and heavy-handed security
measures by a state with weak legitimacy have escalated
conflict before and threaten to do so again.
Multiple grievances are not being effectively channelled
through the constitutional process, and dealing with them
is fraught with risk as long as political violence remains
a viable tool. Yet moving from a state of impunity to one
of accountability will be a painful transition for many
individuals in the security forces and political parties.
Avoiding, or deferring, this discomfort may appear tempting but is counterproductive. Longstanding cycles of abuse
have undermined prospects for improved public security
and peaceful political debate.
Both sides carried out repeated and systematic violations
ofthe laws of war during the conflict, which ended with
the November 2006 Comprehensive Peace Agreement
(CPA). State security forces accountable primarily to the
interests of party leaders or the palace felt unconstrained
by legal requirements. They were responsible for hundreds of disappearances and unlawful killings, rampant
torture and other abuses of the civilian population. Of
the more than 13,000 people killed during the war, the
vast majority died at the hands ofthe state. The Maoists,
in challenging a state they portrayed as unjust and ille
gitimate, sought to characterise violence - including
brutal killings of civilians and political opponents - as
an essential, and justified, plank of political strategy.
At the heart of the peace deal lay a commitment to recognise that both sides had broken fundamental rules.
But neither believes its actions were wrong. Both insist
on judging their own, meting out no real punishment,
and have refused to cooperate with civilian authorities.
Lack of action on justice is not for lack of promises.
Commitments to human rights norms and specific steps
such as investigating disappearances have been central
to successive agreements, including the CPA. Lip service,
however, has only become entrenched as a substitute
for action.
Concern for victims has been inconsistent. The most
tangible response has been interim relief payments to
families of those who died or were disappeared. Yet this
has been weakened by political manipulation and the lack
of effective oversight of fund distribution. For relatives
ofthe more than 1,000 still missing, distress, frustration
and a sense of betrayal have grown.
Political parties have shown no interest in dealing with
past crimes. Indeed, they have exploited the lack of
accountability to avoid reining in the unlawful activities
oftheir own activists and to justify regular interference
in the criminal justice system. This has left a demoralised, ineffective and increasingly desperate police force
to confront growing insecurity and small yet still dangerous local, regional and ethnic struggles.
But political leaders alone are not to blame. The domestic constituency for justice is minimal. Despite the pioneering work of some activists, rights and justice are
not rallying calls for the politically influential middle
classes. Citizens are not keen to re-examine what the
state did in the name oftheir security, and see no need for
national dialogue and catharsis. Many victims were from
disadvantaged communities long marginalised by the state
and more influential social strata. Media and parliamentary attention to questions of justice is sporadic.
 Nepal: Peace and Justice
Crisis Group Asia Report N°184, 14 January 2010
Page ii
International efforts are no substitute for national will.
Nevertheless, international commitment is to support a
peace process based on fundamental rights. Allowing
words to replace substance undermines such principles.
The UN has lost credibility as its core values have been
marginalised during the process. With no systematic
vetting of peacekeeping troops by either the government
or the UN, even high-profile alleged abusers have been
deployed in lucrative posts in UN missions - including,
in September 2009, one army major sought by Nepal's
police and courts for questioning over the torture and
murder of a teenage girl in 2004 inside a Nepali peacekeeping training centre. Countries providing military
assistance, including the U.S., UK, India and China,
have rarely or never restricted training and opportunities
for individuals or units accused of serious violations.
Clear priorities are required. The first should be prosecution ofthe most serious conflict-era cases. Without a
credible threat of prosecution, any commissions of inquiry will not get beyond the inadequate explanations
the army and Maoists have already provided. The second
is to ensure the commissions on disappearances and on
truth and reconciliation specified in the CPA meet basic
standards and, more importantly, are domestically owned
and have clear, achievable goals. Finally, vetting is needed
- both domestically and internationally - to help ensure
the stability of any future security forces.
To All Political Actors Party to the Peace and
Constitutional Processes:
1. Act to fulfil the commitments to justice made in the
Comprehensive Peace Agreement, focusing on the
manageable and urgent priorities of establishing a
commission on disappearances and investigating
and prosecuting the most serious conflict-era crimes
for which there already is substantial evidence.
2. Forge an all-party consensus and publicly commit to
work towards ending impunity, initially by ending
political interference in criminal proceedings, including the withdrawal of cases by the council of ministers, and halting illegal activities of party youth wings
or other affiliated groups.
3. Within negotiations over the future of Maoist combatants and state security forces, most immediately
in the work ofthe special committee and its technical
sub-committee, establish procedures to vet all potential members of future security forces to exclude
human rights violators.
To the Government of Nepal:
4. Direct and equip the police and attorney general's
office to pursue investigations and prosecutions of
all serious conflict-period crimes by:
a) giving direct instructions to police to execute
outstanding arrest warrants;
b) setting up special police and prosecutors' units to
investigate and prosecute war crimes, with senior
and experienced staff backed by sufficient resources and insulated from politically motivated
c) shielding courts and judges from pressure and
taking firm action against any individual or institution that obstructs the course of justice;
d) establishing simple, effective channels for victims
and others to communicate with police and prosecutors; and
e) identifying resource gaps, such as forensic capacity and witness protection, and drawing up plans
to address them, including by requesting international assistance if appropriate.
5. Refuse, and if already granted revoke, promotions and
UN peacekeeping positions to members ofthe security forces accused of grave violations unless and until they have been exonerated in credible independent investigations; suspend individuals who are the
subject of police investigations or for whom arrest
warrants have been issued.
6. Instruct the Nepalese Army to cooperate fully with
investigations, including by making records of
internal investigations and court-martials and other
relevant internal documents available to police and
prosecutors and making individuals available for
police interview or court appearance when formally
7. Implement existing Supreme Court decisions relating
to war crimes, disappearances and the obligation of
police to register complaints and investigate alleged
8. Offer official responses to reports and recommendations of the National Human Rights Commission
and the UN Office of the High Commissioner for
Human Rights (OHCHR).
To the Unified Communist Party of Nepal
9. Respect the authority ofthe police and civilian courts
and cooperate fully with investigations and prosecutions of crimes committed during the conflict and
ceasefire periods by:
 Nepal: Peace and Justice
Crisis Group Asia Report N°184, 14 January 2010
Page iii
a) making suspects available for questioning or,
where warrants have been issued, arrest;
b) handing over internal investigation reports;
c) sharing any other relevant evidence or records;
d) cooperating in the establishment and functioning
of the disappearances commission, in particular
by full disclosure of all information relating
to disappearances in which Maoist forces are
To the International Community, in particular
the UN and Donors Represented in Kathmandu:
10. Build on the emerging common strategy on impunity
to focus attention on practical measures to encourage
progress on justice issues by:
a) introducing visa bans on individuals facing credible, documented allegations of war crimes;
b) reviewing donor assistance to areas such as interim
relief payments for victims and their families and
setting clear benchmarks for continuing direct
financial support;
c) establishing principles for possible future support
to Maoist combatants' integration and rehabilitation, such as an effective vetting mechanism and
prosecutions ofthe most serious crimes; and
d) pressing for a government response on OHCHR's
reports and recommendations, raising the issue
at the UN Human Rights Council if there is no
11. UN member states, the Security Council and the UN
system should urgently work to ensure that peacekeeping contributions conform to universal human
rights principles and are consistent with the UN's
responsibilities to the peace process in Nepal, by:
a) establishing a comprehensive human rights vetting
policy for peacekeeping missions and ensuring
systematic pre-deployment screening of Nepali
b) linking levels of peacekeeping contributions and
senior appointments to demonstrable progress on
accountability for war crimes and steps to ensure
non-repetition; and
c) preparing enhanced training and support for possible additional deployments once the CPA provisions on security sector reform, including integration and rehabilitation of Maoist combatants,
are implemented.
To Providers of Military Assistance and Training,
in particular India, China, the U.S. and UK:
12. Condition all military assistance and training on cooperation with civilian investigations and prosecutions of war crimes, at a minimum excluding all
security force personnel and units facing credible allegations of human rights violations from training.
Kathmandu/Brussels, 14 January 2010
Crisis Group
Asia Report N°184
14 January 2010
From the start ofthe Maoist insurgency in 1996 through
the signing of the Comprehensive Peace Agreement
(CPA) in 2006, the state security forces and the rebels
killed over 13,000 people.1 November 2001 marked a
significant escalation. A state of emergency brought broad
powers of warrantless arrest and detention without trial;
the mobilisation ofthe then Royal Nepalese Army (RNA)
intensified the military confrontation. Over 11,000 were
killed - nearly two thirds by the state - in the remainder
ofthe conflict.
The gross abuses by both sides during the war continue
to threaten the peace process.2 Local and international
1 Statistics collected by the Informal Sector Service Centre
(INSEC), a well-respected but Communist Party of Nepal
(Unified Marxist-Leninist, UML)-linked organisation, show
that 13,347 people were killed in the conflict through the end
of 2006 with 37 per cent of those deaths attributed to the
Maoists and 63 per cent to state security forces. "No. of Victims Killed by State and Maoist in Connection with the
'People's War' (13 Feb 1996 - 31 Dec 2006)", INSEC, at These numbers and
proportions are generally accepted as accurate, although the
allocation of responsibility in certain cases is disputed. Data
released by a task force of the ministry of peace and reconstruction in September 2009 places the number of deaths significantly higher, at 16,274. The secretary of the task force
explained that the toll had increased "because more people in
the villages lodged complaints about losing relatives during
the conflict". Its final findings have yet to be published. "Nepal
government raises war death toll", AFP, 22 September 2009.
2 Crisis Group has published many reports detailing abuses
during the war. See in particular Crisis Group Asia Reports
N°50, Nepal Backgrounder: Ceasefire - Soft Landing or
Strategic Pause?, 10 April 2003; N°94, Nepal: Dealing with
a Human Rights Crisis, 24 March 2005; and N°115, Nepal:
From People Power to Peace?, 10 May 2006. On the peace
process so far: Crisis Group Asia Report N°149, Nepal's
Election and Beyond, 2 April 2008 on the constituent assembly election, and the companion post-election Asia Reports
N°155, Nepal's Election: A Peaceful Revolution? and N°156,
Nepal's New Political Landscape, 3 July 2008; on the strains
following the Maoists' first six months in government, Asia Report N°163, Nepal's Faltering Peace Process, 19 February
2009; and on the collapse of consensus with the fall of the
human rights organisations have documented extensively
the crimes ofthe state security forces and Maoist insurgents.3 Those that left the most enduring mark on society are the killings and disappearances of thousands of
civilians. The Maoists inflicted much of this suffering.
But the security forces, supported by the palace and at
times the mainstream political parties, were much more
The cumulative effect was to cement a fundamental
distrust of state institutions and political leaders within
large segments ofthe population. Such distrust is not
new to Nepal. Unresponsive, self-interested and often
predatory leaders and security forces have been among
the drivers of unrest in the country for decades, including
in the democratic uprising of 1990, the Maoist insurgency itself and the April 2006 people's movement.
Each of these brought demands that officials be held
accountable for killing and injuring civilians. Yet no
government has taken action. Commissions have been
formed and reports written, but in the end all actors
have refused to let others judge their misdeeds.
The November 2006 CPA included commitments to
address the crimes ofthe conflict. But its provisions favour
reconciliation over justice and provide no practical means
for implementation. With the parties to the conflict believing their actions were justified, there is little will to
turn words into reality. This mutually convenient stalemate has encouraged the cultures of impunity that already
Maoist-led government in May 2009 and the inherently unstable current government led by the centrist UML, Asia Report N°173, Nepal's Future: In Whose Elands?, 13 August
2009. Full Nepali translations of all reports and briefings from
2007 onwards are available at
3 These include, domestically, Advocacy Forum, INSEC, and
the National Human Rights Commission (NHRC), and, internationally, Amnesty International, Human Rights Watch,
the International Center for Transitional Justice (ICTJ), International Commission of Jurists (ICJ), UN Office of the
High Commissioner for Human Rights in Nepal (OHCHR-
Nepal) and UN Working Group on Enforced and Involuntary
Disappearances (WGEID). Collectively they have produced
dozens of reports on violations of international law during
the conflict, which are available on their respective websites.
Many are referenced herein.
 Nepal: Peace and Justice
Crisis Group Asia Report N°184, 14 January 2010
Page 2
run deep in the security forces and the Maoists, as well
as the rest ofthe political elite. It has also allowed various ethnic, regional and criminal groups to exploit such
cultures and avoid sanction when they use violence for
political or other ends. With no one willing to accept
responsibility for his or her own conduct, no one can
demand it from others, paralysing policy and contributing to a severe crisis of confidence and insecurity.
This report examines the impact ofthe abuses and impunity on the peace process, the institutional cultures that
allowed the crimes to be committed in the first place,
and the prospects for progress on justice.4
A. Better to Forgive and Forget?
Peace and justice can sometimes appear to be opposing
goals.5 Transitional settlements are fragile and pushing
for full accountability for conflict-era crimes could threaten
political leaders to the extent that the entire process is
destabilised or abandoned. In Nepal as well, there is a
temptation to ignore justice issues and focus on establishing a stable political environment. Faced with the
immediate pressures of security, development and governance, constitution-writing and elections, questions of
justice easily appear less urgent. Putting the unexamined
past behind them is a more attractive option for many.
Tough measures for justice may bring short-term costs,
but inaction also means direct risks. The longstanding institutional cultures which enabled past abuses in Nepal
continue to drive current political violence. They are
also among the factors that brought about the war in the
first place and could encourage violent uprisings in the
future. Moreover, the risks of justice are often overplayed by those who stand to lose from it. Whether immediate threats to stability warrant compromises on justice has been subject to little scrutiny, largely because
political leaders and security forces have been so effective in ensuring prosecutions are not an option.
Some fear that taking robust justice measures could mean
locking up most political leaders, leaving no one to implement the peace process. As one district official said:
"Don't forget but forgive. It's better for Nepal. What
are we to do? Even if we were to have the prosecutions
according to the FIRs [First Information Reports - an
initial police complaint of a crime], you have to remember
that the allegations are against the very top political
4 While this report underlines the detrimental effect these cultures and the lack of accountability have had on public security, a separate forthcoming policy report will examine public
security issues in detail.
Crisis Group has published a number of reports and articles
that discuss the complex relationship between peace and justice, including Crisis Group Africa Reports N°152, Sudan:
Justice, Peace and the ICC, 17 July 2009; N°146, Northern
Uganda: The Road to Peace, with or without Kony, 10 December 2008; and N°150, Congo: Five Priorities for a Peace-
building Strategy, 11 May 2009; and Latin America Briefing
N°21, The Virtuous Twins: Protecting Human Rights and
Improving Security in Colombia, 25 May 2009 and Report
N°16, Colombia: Towards Peace and Justice?, 14 March 2006,
as well as Nick Grono and Caroline Flintoft, "The Politics of
Ending Impunity" in "The Enforcement of International
Criminal Law", Aegis Trust, 2009, and Nick Grono, "Looking to the Future: What Role Can International Justice Play
in Preventing Future Conflicts?", speech at Wilton Park Conference "Pursuing Justice in Ongoing Conflict: Examining
the Challenges", 9 December 2008.
 Nepal: Peace and Justice
Crisis Group Asia Report N°184, 14 January 2010
Page 3
leaders as well. Then who will move the peace process
This scenario, however, is not the most plausible. Prosecutions are unlikely to start at the top. While cases could
eventually be built against certain top leaders, the political and evidentiary barriers to doing so are high. Most
ofthe cases registered to date for conflict-related offences
target those who directly ordered or carried out specific
acts. That could implicate some local political leaders.7
The problem then is not the peace process grinding to a
halt but requiring the parties to impose basic discipline
and not interfere with the criminal justice system.
As for prosecuting individuals from the state security
forces and the Maoist People's Liberation Army (PLA),
there are concerns that handing over alleged perpetrators to civilian courts could weaken internal authority
and morale. Investigations could open up opportunities
for denunciations and blackmailing and generate an atmosphere of distrust.
Ifthe Nepalese Army has fairly evaluated its own conduct, as it claims it has, then it has little to fear from a
judiciary that is likely to give it more than a fair trial. If
it has not, then investigations may be painful in the short
term. Great care must be taken to safeguard due process.
But cooperating with investigations would serve the
army's core concerns if they are to preserve the institution itself and its lucrative peacekeeping opportunities.
The question of undermining authority and morale within
the PLA is perhaps more acute. A sudden reversal of
the Maoist position that institutions and not individuals
should bear responsibility (see below) would be difficult for the party leadership to manage, particularly in
the absence of other concrete deliverables for the thousands of combatants still in cantonments.8 Yet the party
leadership has managed to maintain discipline despite
the other pressures ofthe peace process. Fulfilling explicit commitments to address past wrongs should also
reinforce the strategic decision, still poorly demonstrated,
to pursue social justice by non-violent means.
Crisis Group interview, Besishahar, May 2009.
7 At least one Maoist constituent assembly (CA) member,
Agni Sapkota, has been implicated in a conflict-era crime. He
is listed as one of six alleged perpetrators in the FIR filed for
the murder of secondary school management committee president Arjun Bahadur Lama in Kabhrepalanchowk in April
2005. "Still Waiting for Justice: No End to Impunity in Nepal", Advocacy Forum and Human Rights Watch, October
2009, p. 30.
8 For details on the PLA cantonments and the impasse over
integrating the two armies, see Crisis Group Reports, Nepal's
Future: In Whose Hands?, op. cit., and Nepal's Faltering Peace
Process, op. cit, pp. 13-16.
Another, not completely unreasonable, fear is that generals under pressure may take matters into their own hands
and defy political actors. But this scenario overlooks serious constraints. First is the strong international presence
in Nepal, parts of which have become increasingly concerned (even if no more vocal) about the army's overt
political role. The UN and Western donors, particularly
the U.S., would have little reason to mute their reaction
to open military resistance to a legitimate government
and could cut significantly into the army's international
opportunities and prestige. Second is India which, despite
its embrace of the army and renewed scepticism of the
Maoists, still does not want a destabilised neighbour
between itself and China, a situation which military adventures could quickly precipitate. Given these factors,
there is potential for plenty of sabre-rattling but little
B. Pushing the Peace Process
Accountability is central not only to justice but to the
implementation and completion of the peace process as
a whole. The Maoists have repeatedly breached signed
commitments, undermining the process and their own
credibility. The same applies, to a different extent and
in different areas, to the state as a whole and to other
political parties. The overall failure to monitor and push
forward the peace deal has eroded the authority of many
individuals and institutions. This weakened legitimacy
has been a major destabilising factor throughout the
ceasefire period.
In these terms, even a symbolic demonstration of accountability for serious crimes would have a positive impact
on the peace process as a whole. As long as no political
actors feel bound by law or the commitments they have
accepted in the agreements, there is little hope for lasting peace.
The lack of progress on security sector reform (SSR) is
the greatest single threat to the peace process. Some
might argue that focusing on the crimes committed during the conflict will set reform back further by making
both sides even more defensive and upsetting the delicate relations between them. However, in more than three
years since the CPA, there has been no progress on SSR
in any case. Rather, the two sides' positions appear as
entrenched as ever. This does not mean there is no risk
of making the situation worse: heavy-handed or partisan
intervention on justice issues by domestic or international
actors could be counterproductive. But incorporating
steps to address past violations in benchmarks for progress on SSR could move the process forward without
derailing it. For example, the special committee handling
 Nepal: Peace and Justice
Crisis Group Asia Report N°184, 14 January 2010
Page 4
Maoist combatant integration, rehabilitation and supervision9 and its technical sub-committee have the mandate to consider establishing a vetting mechanism for
human rights violators.
While pursuing justice will not resolve disputes at the
heart ofthe peace deal, the public investigation, trial and
prosecution of some ofthe worst abuses could create an
atmosphere more conducive to confidence-building and
negotiations. Such steps would send a clear message that
all major parties and institutions are committed to the
rule of law, enhancing the prospects for peace and reducing the scope for other groups to resort to violence. Jus-
tice being seen to be done, even if only in a few high-
profile cases, would boost public confidence in the state's
commitment to law and order and would restore the
moral authority to take action against crime. Restoring
trust in state security agencies would directly benefit
the peace process.
C. Dangerous Cycles
Impunity for past crimes encourages political violence
now. While overall violence is down significantly from
the conflict period, party youth wings and armed groups,
particularly in the Tarai, still resort to extortion and
intimidation and have been responsible for scores of
killings. The state's response risks falling into the same
patterns that accelerated the growth of the Maoist insurgency.
Political parties shelter their own activists and armed
groups. Both the former Maoist-led government and the
current administration have used a CPA provision on
"political cases" to withdraw hundreds of criminal cases
by cabinet decision.10 Originally intended to prevent po-
The original term in the Interim Constitution is: "a special
committee to supervise, integrate and rehabilitate the combatants of the Maoist Army". Interim Constitution, Art. 146.
This report uses the term "special committee" in line with
official government documents, eg, "Agreement between the
political parties to amend the Constitution and take forward
the peace process", 25 June 2008. Past Crisis Group reports
used the short form Army Integration Special Committee
(AISC), and most media publications including state media
continue to follow this format.
10Under Article 5.2.7 ofthe CPA, "[b]oth sides guarantee to
withdraw political accusations, claims, complaints and cases
under-consideration against various individuals". The implementation ofthe Maoist government's October 2008 decision
to withdraw 349 criminal cases, 91 of them murder cases, was
stopped by a stay order of the Supreme Court in January
2009. "SC stops gov from withdrawing cases", nepalnews.
com, 2 January 2009. This did not deter them from recommending a further 238 cases for withdrawal in April 2009.
"NHRC takes government to task over case withdrawals",
litically motivated prosecution, it in effect allows perpetrators of grave political violence to avoid legal consequences. For instance, the majority ofthe 238 cases
the Maoist-led government decided to withdraw in April
2009 concerned individuals accused of involvement in
deadly 2007 riots in Kapilvastu district.11 The UML-led
government also invoked similar authority to drop charges
against a prominent journalist so that he could accompany the prime minister and foreign minister to New
York for the UN General Assembly session in September 2009.12 The withdrawal of charges against cadres has
become a routine bargaining chip in negotiations between
political parties, and between the state and armed groups.13
Well-connected individuals often do not have charges
against them registered in the first instance. As one
police official said: "Ifyou arrest a criminal, he belongs
to some group, some political party. There is no criminal,
there is a person who is connected to some ethnic or
political group".14 Susceptible to politically motivated
transfers, police regularly give in to pressure by political
leaders not to investigate., 1 May 2009. The current UML-led government recently withdrew cases against 282 individuals, 200 of
them charged with murder and 82 with arson. "Gov retracts
some 300 murder, arson cases", Republica, 17 November 2009.
11 "NHRC takes government to task over case withdrawals",
op. cit. Fourteen people were killed and at least nine injured
in riots between members of plains and hill communities after unknown attackers killed an influential Madhesi Muslim
leader in September 2007. "Investigation by the Office ofthe
High Commissioner for Human Rights in Nepal into the violent incidents in Kapilvastu, Rupandehi and Dang districts of
16-21 September 2007", OHCHR-Nepal, 18 June 2008.
12 Journalist Rishi Dhamala had been arrested alongside three
other persons on charges of being linked with an armed
group and conspiring to extort a Kathmandu-based businessman. "Police allege Dhamala link with armed outfit", Republica, 4 February 2009. The cabinet withdrew the charges
against Dhamala and two other defendants in September. A
court later ruled the withdrawal violated an earlier Supreme
Court ruling. "Govt can't withdraw Dhamala case: District
Court", Republica, 23 October 2009.
13 For the 349 cases ordered withdrawn in October 2008, senior
government officials acknowledged that the lists were drawn
up by the political parties. Crisis Group interview, Kathmandu,
May 2009. Madhesi parties had pressed for charges against
their cadres to be retracted as part of the April 2009 decision.
"NHRC takes government to task over case withdrawals",
op. cit. Blanket withdrawals of cases against cadres have long
been a mainstay of negotiations between opposition groups
and the government. See, for example, "MJF chairman rules
out talks on May 18",, 16 May 2007. For further history of politically motivated case withdrawals, see fn
29 below.
14 Crisis Group interview, Biratnagar, June 2009.
 Nepal: Peace and Justice
Crisis Group Asia Report N°184, 14 January 2010
Page 5
Police authority is also sapped by the force's own lack
of accountability. While allegations of police torture have
declined,15 the disturbing frequency of state killings indicates a return to war-time tactics.16 The fact that many
involved Tarai-based armed groups has fuelled accusations of discrimination against Madhesis.17 The killings
of some infamous criminals may be welcomed by local
populations tired of extortion and fear of abductions.18
But resorting to illegal summary justice is in itself a
serious threat to the rule of law. Indiscriminate and
heavy-handed measures threaten to undermine widespread public support for more assertive policing.19 The
resulting loss of trust is further exacerbated by frequent
allegations that police personnel are protecting local
criminals for a share oftheir profits.20
Facing up to past violations should improve professionalism in the security forces. Lessons from counter-
insurgency duties remain relevant. Quite apart from the
moral and legal rights and wrongs, the security forces'
overall approach was counterproductive. Instead of
winning hearts and minds, systematic and indiscriminate
abuse of the civilian population served as one of the
Maoists' best recruiting agents. Given the contentious
political transformations to come, increased unrest is a
possibility. The security forces need to be able to deal
with political violence without escalating it, which they
still rarely prove capable of doing.21
"Prevention of Torture in Nepal", quarterly briefing, Advocacy Forum, April-June 2009. However, the period from
July to September 2009 saw the first increase in the prevalence of torture by the police in years. "Prevention of Torture
in Nepal", quarterly briefing, Advocacy Forum, July-
September 2009.
16INSEC reported 37 killings by the state in 2007, 50 in 2008
and 20 from 1 January to 6 July 2009. This compares to fourteen, four and three for the Maoists (including Young Communist League (YCL) activity) in the same periods. See
"Human Rights Yearbook 2008" and "Human Rights Yearbook 2009", as well as "No. of Victims Killed 1 Jan 2009 -
06 Jul 2009", all by INSEC, at
17 Prashant Jha, "Angry aftermath: 'Encounter' killings escalate in the Tarai", Nepali Times, 24-30 July 2009.
18 Crisis Group interviews, Janakpur, October 2009.
19 For example a medical student was killed when police
opened fire during a clash with suspected fertiliser smugglers
in Saptari. "Student prey to police firing", The Himalayan
Times, 18 August 2009.
20 Crisis Group interviews, Lahan and Biratnagar, September-
October 2009.
21 For example, police were accused of using excessive force
after they killed three people during a clash with landless
squatters in Kailali on 4 December 2009. The police had been
deployed to dismantle their shelters. "Maoists announce banda
to protest Kailali killings",, 5 December 2009.
The human toll of the conflict illustrates the degree to
which both sides fought well outside the laws of war.
Arrests and abductions were rampant, as was torture and
other inhumane treatment.22 While many people were
eventually released, the fate or whereabouts of up to
1,000 or even more are still unknown, with the state accused of some four fifths of those cases.23 It is impossible to determine precisely how many conflict-related
killings were unlawful. However, reliable early estimates
suggested at least half of state victims were killed unlawfully, and reports of such killings increased.24 There were
of course legitimate (if often flawed) military attacks25
and significant deaths among the security forces and
Maoist fighters.26 But in the end, thousands of civilians
22 In both 2003 and 2004, Nepal had the highest number of
new cases of disappearances reported to WGEID of any
country. Throughout the conflict, NHRC received reports of
1,619 alleged disappearances, with 1,234 attributed to the
security forces, 331 to the Maoists and 54 unidentified. "Waiting for Justice: Unpunished Crimes from Nepal's Armed
Conflict", Advocacy Forum and Human Rights Watch, September 2008, p. 11.
23 Different organisations have reported different numbers of
those still unaccounted for. This is due partly to variations in
definition and purpose, but also reflects the need for a comprehensive review of cases. For example, INSEC reported
933 as of August 2008 - 828 "disappeared" by the state and
105 "abducted" by the Maoists, while noting that NHRC had
recorded 998 as of May 2008 - 732 disappeared by the state
and 266 abducted by the Maoists. "Impaired Accountability",
August 2008, p. 6 and Annex I, at www.humansecuritygateway.
info/documents/INSEC_Nepal_Disappearances.pdf. The International Committee of the Red Cross (ICRC), which employs
a broader concept of "the missing" given its humanitarian
mission, reported over 1,300 missing as of April 2009.
"Families of Missing Persons in Nepal: A Study of Their
Needs", ICRC, April 2009, p. 1, at
24 See "Nepal: A Deepening Human Rights Crisis", Amnesty
International, 19 December 2002, p. 1, noting that Amnesty
believed half of the 4,366 deaths reported by the RNA and
home affairs ministry from November 2001 through October
2002 may have been unlawful.
25 See Sam Cowan, "The Lost Battles of Khara and Pili", Himal
Southasian, September 2008.
26The Nepal Army reported that 1,014 personnel were killed
during the conflict, with the vast majority "killed in action"
but a notable 30 "murdered after abduction" by the Maoists.
A further nine personnel were reported as "disappeared" following abduction by Maoists. "Human Rights Journal 2008",
Nepalese Army Directorate of Human Rights, June 2008, pp.
90-150. The Nepal Police, which suffered the brunt of the
fighting through 2001, have recorded 1,485 police personnel
that "attained martyrdom fearlessly fighting the terrorists".
See "Tribute to Martyrs", at
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were unlawfully killed, tortured, made to disappear or
subjected to other abuses, as were some combatants, because neither side would stick to repeated promises to
abide by international humanitarian and human rights law.
The vast majority of crimes during the conflict were not
random acts of violence or insubordination. They were
the product of strong sets of beliefs, values and experiences at the core of the security forces and the Maoist
movement. These institutional cultures not only enabled
the crimes to be committed, but gave both sides reason
to reject accusations that they had acted unlawfully and
to insist that they alone could legitimately judge their
conduct. Neither side has changed its approach. In fact
both have worked hard to cloud the record and protect
their interests.
The blanket rejection of accountability for crimes committed during the conflict reflects broader patterns in
society. The Nepalese state has a long history of both
breaking its own rules and allowing impunity as privilege
for the powerful or well connected. During the Shah and
Rana eras, local leaders were largely left to do as they
pleased;27 aspects of this local autonomy remained in
place during the Panchayat years.28 With the democratic
transition in 1990, protection from the law became a
currency of patronage in the emerging party networks.
This could take the form of impunity for violence or
other crimes29 but also of direct police support in local
The Armed Police Force has not published specific statistics,
but has also paid public tribute to "the valiant warriors who
paid with their lives thwarting the act of terrorism and violence". See "Revered Brave Martyrs", at
tribute/tribute.php. INSEC statistics show a total of 689
"army personnel", 1,364 "police personnel" and 139 "security personnel" killed in the conflict. "No. of Victims Killed
by State and Maoist in Connection with the 'People's War'
(13 Feb 1996 - 31 Dec 2006)", at
27 John Whelpton, A History of Nepal (Cambridge, 2005).
The Shah dynasty ruled from 1743 to 1846; the Rana regime
lasted from 1846 to 1951. Both administrations took little
interest in local governance other than the revenue collection,
and local leaders historically resembled strongmen who met
challenges to their authority with force.
28 This was reflected in the continuing importance of powerful families in the village panchayats. See, for example, Philippe Ramirez, De la disparition des chefs (Paris, 2000).
29After the 1990 people's movement, the Mallik Commission was established to investigate the deadly suppression of
protests by the Panchayat government. Despite findings of
excessive force and recommendations that legal action be taken
against specific individuals, the interim government did nothing. See Crisis Group Report, Nepal: Electing Chaos, op. cit.,
pp. 5-6. Only a single copy ofthe report was made accessible
to parliament. It was later copied and published by a human
conflicts. This deeply violated many people's sense of
justice. It also provided fertile ground for Maoist mobilisation, as less well connected factions started looking
to them for support. When this happened in Rolpa and
Rukum in the early 1990s, intra-village conflicts spiralled out of control.30
Although the term "impunity" has gained particular currency in the post-ceasefire period, it long predates the
conflict. Especially after the 1990 people's movement,
human rights activists and analysts identified impunity
- the absence of punishment where it is due - as a systemic problem requiring urgent attention.31 There has
been little discussion of the ways in which pre-existing
patterns were modified during the conflict. A closer examination of the cultures within the state and Maoist
forces helps outline the challenges of institutional transformation.
A. A Decade of Dirty War
1.    The state
The patterns of violence carried out by the state security
forces throughout the conflict reflected failed counter-
insurgency strategies and the increasingly politicised role
rights organisation. That same interim government ordered the
withdrawal of criminal cases against 1,150 people. A further
1,450 cases were withdrawn by successive governments between May 1991 and 1997. "Impunity inNepal: An Exploratory Study", The Asia Foundation, September 1999, p. 7. See
also "Politics of impunity",, 28 May 2008.
30 The violent escalation of village-level conflicts with the increasing participation ofthe Maoists in 1995 led to Operation
Romeo, a "sweep and clean" operation involving more than
300 police under the newly formed Nepali Congress (NC)-
led government. The widespread abuses committed during
Operation Romeo in Rolpa, Rukum and Dang districts increased the Maoists' support base and created the conditions
for the more systematic armed revolt the following year. This
is illustrated by a recent article examining the history of Jel-
bang village in Rolpa before and during the civil war. Jelbang
was particularly heavily targeted by the police. The biographies of local Maoists killed later during the conflict show
that "87% of these people joined the Maoists around the time
preparations were being made for the 'People's War' or after
it had begun, indicating that the Maoists had not struck deep
roots in Jelbang before 1996". Deepak Thapa, Kiyoko Ogura
and Judith Pettigrew, "The social fabric ofthe Jelbang killings,
Nepal", Dialectical Anthropology, published online 7 November 2009. See further: Anne De Sales, "The Kham Magar
country: between ethnic claims and Maoism", in David Gellner
(ed.), Resistance and the State: Nepalese Experiences (New
Delhi, 2003); Kiyoko Ogura, "Maoists, people, and the state
as seen from Rolpa and Rukum", in Hiroshi Ishii et al. (eds.),
Social Dynamics in Northern South Asia (Delhi, 2007).
31 "Impunity in Nepal: An Exploratory Study", The Asia Foundation, op. cit.
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ofthe military. Even before the significant escalation of
late 2001 and entry of the RNA, police actions against
the Maoists were brutal and targeted anyone suspected
of being a sympathiser.32 They resulted in warrantless
arrests, torture, rape and extrajudicial executions, as well
as cases of excessive force - such as the burning of an
entire village at Khara in Rukum district in 2000.33
These actions only increased the rebels' popularity in
the affected areas.
The Maoists eventually drew the RNA into the conflict
in 2001 after attacking the army barracks in Dang district.
With the RNA's mobilisation came sweeping powers
for all three of the security forces - the RNA, Nepal
Police (NP) and the then newly established paramilitary
Armed Police Force (APF) - under the Terrorist and
Disruptive Activities (Control and Punishment) Ordinance
(TADO).34 A nationwide state of emergency was also
declared. From the time it was deployed, the RNA had
de facto control over the police and APF, even though a
formal unified command structure was instituted only
in November 2003. Still answering directly to the palace,
the army was not under democratic control.
It was also angry, ill-prepared and on the defensive. It
was neither battle-hardened nor practised in the complexities of domestic counter-insurgency operations. Around
50,000 strong, it vastly outnumbered the Maoist guerrillas (at the time probably numbering only a few thousand)
but lacked the training and skills to use its forces effectively against them.35
Against this background the security forces began to
commit the worst crimes of the conflict. Clear patterns
of systematic and widespread abuses emerged: victims
arrested from home in search operations, unacknowledged detention in police stations and army barracks,
The next major police operation after Operation Romeo in
1995, the year-long Operation Kilo Sierra II was launched in
May 1998, equally by a NC-led government just a month after
it assumed office. Targeting the population even more indiscriminately than previous operations against the Maoists, it
further galvanised local support for the rebels. See Crisis Group
Report, Nepal Backgrounder: Ceasefire - Soft Landing or
Strategic Pause?, op. cit., pp. 4-5; "Nepal: Killing with Impunity", Amnesty International, 20 January 2005, p. 4.
33 "Nepal: A Spiralling Human Rights Crisis", Amnesty International, 4 April 2002, p. 17. Although rape and attempted rape
by police was often reported during these years, few if any
perpetrators were held criminally responsible. Ibid, pp. 29-30.
34 Parliament voted TADO into law as the Terrorist and Disruptive Activities (Control and Punishment) Act (TADA) in
2002 when the state of emergency lapsed. The king later extended it by decree until it finally expired in September 2006.
35 The actual number of soldiers ready for deployment in
combat was probably much lower. Deepak Thapa and Bandita
Sijapati, .4 Kingdom Under Siege (Kathmandu, 2003), p. 137.
endemic torture, notable reports of rape36 and extrajudicial execution - invariably reported by the army as
"encounter killings". Detainees also were deliberately
hidden from the ICRC.37 In many cases, the victims had
no Maoist connections. A significant number were women
or children.
The most prominent cases, which have been well documented,38 illustrate these trends.
Bardiya torture and disappearances: Widespread torture and at least 200 disappearances after arrest by security forces in Bardiya district mostly from late 2001
to the lanuary 2003 ceasefire. The vast majority of victims were from the marginalised and disadvantaged Tharu
community, who were particularly vulnerable - to both
Maoist intimidation and state abuse - due to weak links
to human rights organisations and existing tensions with
Although many cases of rape likely went unreported during
the conflict, there were significant allegations, particularly
regarding the APF. For example, in October 2003 two young
girls were reportedly gang-raped by seven APF personnel
working in Banke District. "Nepal: Alleged rape of two teenage girls by Nepalese police", Asian Human Rights Commission, press release, 27 October 2003. Cases of rape have also
been documented by OHCHR Advocacy Forum and Human
Rights Watch. See especially the OHCHR report on Bardiya
discussed below, and "Still Waiting for Justice", Advocacy
Forum and Human Rights Watch, op. cit. 44 cases of rape
between 2001 and March 2009 were reported to Advocacy
Forum, with the RNA accused in the majority of cases but
Maoists and other groups accused in others. See "Sexual violence against women in Nepal", at
37 Jitman Basnet, "251 Days in the King's Custody", Tehelka,
12 November 2005.
38 Relevant publications include the series of reports produced
by OHCHR-Nepal: "Conflict-related Disappearances in Bardiya
District", December 2008; "The torture and death in custody
of Maina Sunuwar: Summary of concerns", December 2006;
and "Report of investigation into arbitrary detention, torture and
disappearances at Maharajgunj RNA barracks, Kathmandu,
in 2003-2004", May 2006, all available at http://nepal.ohchr.
org/en/index.html. It also includes NHRC's report, "Doramba
Incident: Ramechhap, On-the-spot Inspection and Report of
the Investigation Committee", 2060 BS (2003), available at
ba_R.pdf; "Clear Culpability: 'Disappearances' by Security
Forces in Nepal", Human Rights Watch 28 February 2005, as
well as "Waiting for Justice: Unpunished Crimes from Nepal's Armed Conflict", Advocacy Forum and Human Rights
Watch, September 2008 and the update of that report "Still
Waiting for Justice", op. cit., which include the case of Maina
Sunuwar; and Amnesty International's "Nepal: A Deepening
Human Rights Crisis", 19 December 2002, and "Nepal: Killing with Impunity", op. cit.
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Page <
high-caste landowners.39 The army tried to cover up its
offences and has refused to cooperate with investigations.
Doramba extrajudicial executions: Killing of nineteen
unarmed Maoists in army custody on 17 August 2003
in Ramechhap district. The timing of the incident - as
peace talks were supposed to be progressing - and lenient response by the government and army commanders
suggested a deliberate effort to derail the negotiations
and further demonstrated that abuses were condoned at
high levels.40 The Maoists pulled out of talks and ended
the ceasefire on 27 August 2003.
Maharajgunj barracks torture and disappearances:
Arrest and torture of hundreds and at least 45 disappearances in Kathmandu from late 2003 into 2004 attributed
primarily to the Bhairabnath battalion ofthe RNA's
10th Brigade.41 After the ceasefire ended, the army was
under intense pressure to deliver results. It undertook a
deliberate intelligence effort targeted at uncovering and
breaking Maoist networks in the capital. Those selected
for detention and torture were largely - but not all -
active Maoists, many of them from the party's student
wing. Despite extensive evidence, the army refuses to
acknowledge the crimes.
Maina Sunuwar torture and death: Arrest and disappearance, then torture and death of fifteen-year-old Maina
Sunuwar at the Birendra Peace Operations Training Centre in Panchkhal, Kabhrepalanchowk district in February
2004. After substantial domestic and international pressure, the army established a court of inquiry. Even
though it confirmed her death resulted from torture, the
subsequent court martial of three officers found them
responsible only for a botched cover-up (improper interrogation and disposal of her body) and passed meaning -
The Tharu were severely marginalised as a plains ethnic group
whose land had been usurped by more powerful migrant communities and many of whom were subjected to generations-
old chains of indentured labour.
40 See Crisis Group Report, Nepal: Dealing with a Human Rights
Crisis, op. cit, pp. 4, 12. The army court-martialled the soldiers
responsible, sentencing the major in charge of the troops to
two years' imprisonment for failing to control his troops
while a non-commissioned officer was demoted by one rank.
41 In its detailed 2006 report, OHCHR-Nepal originally reported
49 people who were in custody of the Bhairabnath battalion
in the Maharajgunj barracks between September and December 2003 and remained disappeared. The army eventually
formed a task force which issued a report rejecting the allegations and asserting that twelve of the 49 were not disappeared. OHCHR-Nepal's subsequent investigation revealed
that four of the twelve had been released but only after illegal
detention and torture, one had died in custody and the remaining seven were still unaccounted for. "Remarks on pending accountability issues in Nepal", Richard Bennett, OHCHR-
Nepal representative, 29 July 2009.
less sentences.42 Under further pressure, the police investigated and the body was exhumed. Arrest warrants for
four army officers were issued in February 2008 but the
army did not hand over any of them to the civilian authorities, even though it currently holds one of the officers
in detention.43
Beyond illustrating clear patterns, these cases show the
extent of potential criminal liability that hangs over army
commanders, if they ever have to face civilian authorities. These were not isolated incidents or rogue soldiers.
They were systematic abuses that were planned, carried
out and endorsed by senior officials who certainly did not
suffer from lack of understanding of human rights and
humanitarian law.
2.    The Maoists
The Maoist military strategy employed violence against
civilians, intimidation and coercion.44 From the start of
their operations they not only targeted police posts and
personnel but also unarmed democratic political activists
and those they suspected of being spies. They used targeted killings - including many teachers, journalists and
human rights defenders - and widespread threats against
civilian populations to build their strength. Coercive
recruitment of adults and children was prevalent, as was
the use of underage soldiers in combat.45
During the post-2001 period the Maoists were consolidating, organising and expanding their armed forces.
What were initially small squads of poorly trained irregulars had been, by 2001, converted into a "People's
Liberation Army" (PLA) that - on paper - consisted of
companies, brigades and divisions on the lines of a state
army. While their forces never approached the size and
organisational sophistication the nomenclature implied,
42 The court martial found the colonel and two captains involved guilty of "not following the standard procedures and
orders". Each was sentenced to six months' imprisonment.
However, since they were judged to already have spent that
time when confined to barracks during the period of investigation, they were released. The two captains were ordered
to pay Rs.25,000 (approx. $335) and the colonel Rs.50,000
($670) as compensation. They were also ruled ineligible for
promotion or one and two years respectively. "The torture
and death in custody of Maina Sunuwar: Summary of concerns", OHCHR-Nepal, December 2006, p. 5.
43For a detailed account up to September 2009 see "Still
Waiting for Justice", Advocacy Forum and Human Rights
Watch, op. cit. For the most recent developments, see Section V.D below.
44See Crisis Group Report, Nepal's Maoists: Their Aims,
Structure and Strategy, op. cit, pp. 20-21.
45"Children in the Ranks: The Maoists' Use of Child Soldiers
in Nepal", Human Rights Watch, February 2007.
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Page 9
they were certainly a structured, often uniformed military force subject to a functional command and control
system.46 As early as 2003, the Maoist leadership had
pledged to abide by international humanitarian law.47
There are many documented cases of Maoist killings of
"enemies ofthe people", torture after abduction and killings of hors de combat security forces.48 They are believed responsible for hundreds of civilian deaths and
disappearances.49 These include the bombings of public
buses in Chitwan and Kabhrepalanchok districts in 2005
and at least fourteen cases of disappearances in Bardiya
district mostly in 2003-2004.50 With the RNA deployment
leading to an increase in conventional military clashes,
the proportion of civilians among those killed by the
Maoists fell.51 However, they continued to kill perceived
enemies late into the conflict, with numerous reports of
beheadings and other cruel tactics.52
Substantial evidence of these abuses has long been in
the public domain. While not as pervasive as those by
the state security forces, the patterns of Maoist violence
show that they repeatedly breached both national and
international law in actions that were for the most part
sanctioned or directed from higher up the chain of command.53 Despite recognising "mistakes", such as the
See Crisis Group Asia Report N°104, Nepal's Maoists: Their
Aims, Structure and Strategy, 27 October 2005, pp. 12-14.
47 Their 2003 negotiating agenda demanded fundamental and
human rights among the minimum content of a new constitution. Crisis Group Report, Nepal's Maoists: Their Aims, Structure and Strategy, op. cit. Prachanda in 2004 publicly stated
that the Maoists would accept human rights monitoring by
the UN. Crisis Group Report, Nepal: Dealing with a Human
Rights Crisis, op. cit.
48 "Nepal: Killing with Impunity", Amnesty International, op.
cit, pp. 8-10.
49"Waiting for Justice", Advocacy Forum and Human Rights
Watch, op. cit, p. 3.
50 "Attacks against public transportation in Chitwan and Kabhrepalanchok districts: Investigation report", OHCHR-Nepal,
18 August 2005; "Conflict-related Disappearances in Bardiya
District", OHCHR-Nepal, op. cit, pp. 51-56.
51 Crisis Group Report, Nepal's Maoists: Their Aims, Structure and Strategy, op. cit, p. 21.
52"Nepal: Killing with Impunity", Amnesty International, op.
cit, pp. 8-10.
53 There were incidents of apparent individual indiscipline or
misuse of authority leading to serious crimes, such as the
killing of Dailekh journalist Dekendra Raj Thapa on 11 August 2004. Under intense national and international pressure,
the Maoist western central commander eventually explained
that Thapa had also been an informer in a number of deaths
but that his killing was a "mistake" because central policy
would require a journalist guilty of such crimes to be arrested
but not sentenced to death. See Crisis Group Report, Nepal's
Maoists: Their Aims, Structure and Strategy, op. cit, p. 13.
Chitwan bombing (see below), and confirming their
responsibility for many killings which they deem legitimate, the Maoists have refused to give up a single alleged
perpetrator to civilian authorities.
B. Why Did Systematic State Violations
Take Place?
Licence to act outside the law had implicitly been granted
to the security forces by each government since Operation Romeo in 1995. King Gyanendra made this clear
in his takeover address of 1 February 2005. He warned
that while human rights should be safeguarded, it would
be "unfair to put the state and terrorists on equal footing".54 "To fight a terrorist you have to fight like a terrorist", explained one frustrated general in 2006, "but
our critics can't understand this".55 The army's regular
practice of covering up its violations indicates that senior
officers knew their forces had overstepped the law. It
staged killings to appear as "armed encounters", threatened witnesses to sign exonerating statements, took staged
photographs and publicised false accounts of circumstances of death.56
Some violations were, as the army likes to assert, instances
of random individual indiscipline.57 But these were few
and far between and in themselves highlighted the flexibility of the rules and the absence of serious threat of
punishment if broken. Soldiers were led to believe that
whatever they did, their colleagues and commanding
officers would cover up for them. Despite the army's
protestations, the vast majority of violations were instead
"From now on, such crimes will be dealt with firmly [in]
accordance with the law. Our security forces have been mobilized to carry out their responsibilities more effectively to
end terrorism and restore peace and security in the interest of
the nation and people. All the organs ofthe state must remain
alert in honouring and upholding human rights. However, it
will be unfair to put the state and terrorists on equal footing.
We are confident that all peace-loving Nepalese who have
faith in democracy will, as always, continue to cooperate with
the security forces in maintaining peace and tranquillity".
Proclamation to the Nation from His Majesty King Gyanendra Bir Bikram Shah Dev, 1 February 2005, at
55 Crisis Group interview, Kathmandu, September 2006.
56"Waiting for Justice", Advocacy Forum and Human Rights
Watch, op. cit, p. 27; and "Conflict-related Disappearances
in Bardiya District", OHCHR-Nepal, op. cit, pp. 46-50.
57 For example, the shooting of twelve civilians at a religious
festival in Nagarkot by a drunken soldier angered by an argument. "Cold Blood", Nepali Times, 16 December 2005.
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policy-driven, sanctioned through the chain of command
in pursuit of military objectives.58
The army promised to give the Maoists a "bloody nose"
and was under intense pressure by the high command and
the palace to deliver results. Given its inexperience in
counter-insurgency, the army was only able to deliver
bodies rather than strategic gains. One source in close
contact with the army during the latter stages of the
conflict recalled that "there was tremendous pressure
right down the chain of command every day for a high
kill count".59 There were also incentives: officers and
other ranks were told that delivering results, even in
these terms, would enhance their prospects of a coveted
position on a UN peacekeeping mission.60
The torture and disappearances at the Maharajgunj barracks are particularly telling on where the orders came
from. It is inconceivable that dozens of detainees could
have been detained, tortured and interrogated over a
period of months in central Kathmandu without the explicit permission ofthe army top brass. The battalion
commanders who managed the process were on paper
answerable to their brigade commander but, given their
location and the sensitivity of their work, were almost
certainly reporting directly to army headquarters.61 Any
major operation had to be approved by even higher authorities - including the palace. A decision to load a group
of detainees onto trucks and take them to be executed,
as many former Maharajgunj detainees believe happened
In September 2005, Manfred Nowak, the special rapporteur
of the UN Commission on Human Rights on torture reported
systematic state use of torture, basing his conclusion partly
on the "disturbingly frank admissions by senior police and
military officials that torture was acceptable in some instances,
and was indeed systematically practiced". "Practice of Torture Systematic in Nepal", United Nations, press release, 16
September 2005. The army launched a strong public counter-
offensive. In an interview, spokesperson Deepak Gurung insisted "'Systematic' was absolutely false. Like I said, there
might be some individual cases only". "Between Two Stones
- Nepal's decade of conflict", IRIN Web Special, December
2005. The army continues to deny that systematic abuses occurred: "some violations on Human Rights and IHL, did occur from the Nepalese Army also, but they were unintentional and not policy driven". "Human Rights Journal 2008",
Nepalese Army Directorate of Human Rights, June 2008, p.
1. '"As far as the Nepalese Army is concerned, there was no
policy-driven human rights violation. In the case of individual involvement, the guilty parties have been punished'".
"Nepal's post-war culture of impunity", BBC News, 1 March
2009, quoting Brigadier General Ramindra Chhetri, an army
59 Crisis Group interview, Kathmandu, October 2006.
60 Ibid.
61 Most probably to the director of military intelligence and/
or the director of military operations.
on 20 December 2003, would not have been taken by
a battalion commander on his own initiative, given the
disciplined army hierarchy.
The systematic torture carried out in Maharajgunj required
the participation of entire units, including numerous medical officers who were charged with keeping detainees
alive so that they could continue to be tortured. It does
not appear that soldiers were surprised at what they were
asked to do; they had even developed their own slang
for certain techniques, such as the use of electric shocks.62
Evidence from other cases suggests soldiers were well
aware of established torture techniques and accustomed
to using them frequently. Some survivors of torture
report that the lower ranks showed a "soft corner" but
were under pressure from their superiors.63
The narrow base of army recruitment, particularly in the
officer corps, may well have contributed to the crimes
committed, especially those against marginalised groups
such as the Tharu in Bardiya. The RNA officer corps
and lower ranks had little or no connection with such
communities. It would not be surprising if they viewed
them with the same contempt that higher-caste Nepali-
speaking groups, and the state itself, had always done.
Moreover, given that the Maoists were mobilising support among them, the army and police likely saw more
reason to view them with suspicion. This history of institutional discrimination and detachment helps explain
why the NA may have been quick to see some civilian
populations as potentially hostile, even if unassociated
with the Maoists and unarmed.
None ofthe abuse can be blamed on a lack of training or
limited awareness of legal rights. Quite the reverse: the
army has long insisted that its "rich exposure to International Peacekeeping ensured that it remains one ofthe
few organizations in Nepal where the teaching and practice of Human Rights has been long institutionalized".64 The
torturers came from some ofthe army's best-trained and
most prestigious units. The Bhairabnath battalion that
was primarily responsible for the Maharajgunj abuses
had had advanced U.S. training. Five of its members had
participated in special forces qualification at Fort Bragg,
North Carolina during the 2003 ceasefire, including training in counter-insurgency operations and unconventional
62 "Report of investigation into arbitrary detention, torture and
disappearances at Maharajgunj RNA barracks", OHCHR-
Nepal, op. cit, p. 10.
63 Crisis Group interviews, former detainee in Maharajgunj barracks, Kathmandu, May 2009; former detainee in barracks near
Besishahar, Sundarbazar VDC, Lamjung district, June 2009.
64 "Effort made by the Royal Nepalese Army to protect and
promote human rights", undated, p. 3, available at http://lawasia.
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warfare.65 Two of these individuals completed their course
only days before the resumption of hostilities.66 They
rejoined their prestigious battalion just as it embarked on
its campaign to cleanse Kathmandu of Maoist activists
through illegal detention, torture and disappearance.
C.   The Maoists: Playing by
The Maoists pursued policies that violated not only
domestic but international laws. But their behaviour
cannot be understood simply in terms of abiding by or
violating established laws and human rights norms. They
did not just break the usual rules, they played a different
game by different rules. They viewed and presented
themselves not as rebels but as a parallel state, with its
own authority and values. This revolutionary logic sought
to justify the use of violence by establishing alternative
forms of legitimacy, for example administering punishments (often characterised as, fan karvahi or "people's
action") and carrying out killings based on the decisions
oftheir own "people's courts".67
This sense of ideological legitimacy informs most Maoists'
approach to evaluating actions which all others categorised as crimes. As one - a former detainee in Maharajgunj barracks - said: "If through injustice to one person,
Foreign Military Training In Fiscal Years 2003 and 2004,
Volume I, U.S. Department of Defense and U.S. Department
of State Joint Report to Congress, released June 2004, available at:
66 Ibid.
67 As Prachanda explained it: "Our policy is that if he is an informer, we'd capture him, stand him in front of the people's
court, and take action as per the verdict ofthe court. Considering the degree of the crime, he could be given a labour punishment for a certain time, or for a while kept under the custody of people, and if the crime is big, he could even be executed. The party policy is to follow this process". "Prachanda
interview", BBC News, 13 February 2006. Although little is
known about the operation of "people's courts" during the
conflict, it is virtually impossible that they could have met the
standards of impartiality or provided the guarantees required
by international law. Specifically, Common Article Three of
the Geneva Conventions, which applies to armed conflicts
not of an international character, prohibits the "passing of
sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court,
affording all the judicial guarantees which are recognized as
indispensable by civilized peoples". See also "Nepal: The
Rule of Law Abandoned", ICJ, March 2005, and "Nepal:
Justice in Transition", ICJ, February 2008, p. 11, note 21,
stating "[l]ocal Maoist leaders denied that any state security
personnel or political opponents were executed following a
judgment of a 'people's court'. They said any such deaths
were legitimate killings in the course ofthe armed conflict".
ten people can be liberated, we cannot call that one person's injustice a true injustice".68 Most shared a deep-
seated belief that targeted violence was part ofthe "price
the country has had to pay for political change".69
By the latter stages of the conflict the party leadership
had diluted its claim to parallel authority by making repeated commitments to abide by universal norms, from
the body of international humanitarian law (such as the
Geneva Conventions) governing combat to a broader
acceptance of human rights.70 This shift weakened the
internal justification for the use of violence but did not
in itself lead to changes in behaviour or attitude. The
Maoists remain reluctant to abandon illegal tactics and
the party position that emerged on accountability: "The
Maoists are prepared to provide information and justifications. We cannot expose the individual who did it. However, we are ready to take responsibility institutionally".71
Institutional responsibility for ideologically inspired violence sits uneasily with a culture of recognition for individual sacrifice. The concept of martyrdom is strong in
Nepali society, and the Maoists have used it to attempt
to de-legitimise state violence and sanctify their own
position as victims.72 Throughout the conflict and since,
they have issued "certificates of martyrdom" to scores
of families who lost loved ones to the security forces
(often regardless oftheir association with the movement).
The main Maoist victims' committee for the families of
the disappeared has even changed its name recently from
the "society ofthe families ofthe disappeared citizens
by the state" to the "society for the missing fighters" to
emphasise victims' political contribution.73
This reflected an effort to place the Maoist movement
in a longer historical narrative linking it to previous uprisings against the "semi-feudal" state. Even before the
start ofthe insurgency, the Maoists had called for those
Crisis Group interview, Kathmandu, June 2009.
69Crisis Group interview, Besishahar, June 2009.
70For example, in a 10 August 2005 press statement, Prachanda
said: "We have publicly stated our principled adherence to
the core and the spirit of the Geneva Conventions in regard
to human rights in the course of armed conflicts, and we have
emphasized our determination to adhere to these standards
ever since the people's war in Nepal began under the leadership of our party".
71 Crisis Group interview, Biratnagar, June 2009.
72 While the Maoists have made some gestures to the families
of the victims of their crimes since the peace process, during
the conflict they had no sympathy - illustrated by their alleged responsibility for the 15 February 2004 shooting ofthe
head of the Maoist Victims Association. "Amnesty International condemns killing of Ganesh Chiluwal", press release,
17 February 2004.
73 Crisis Group interview, Kathmandu, May 2009.
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Page 12
who had been killed or disappeared in the 1990 democratic uprising to be declared martyrs and the perpetrators
punished.74 Despite their claims to revolutionary excep-
tionalism, they had from the outset claimed to inherit and
represent a more eclectic range of reformist struggles. The
attempt to square ideological purity with broader appeal
always represented a philosophical challenge and threatened to undermine their self-justification.
The cultures of impunity within the security forces and
Maoists are not entirely self-made. Both domestic and international actors contributed to or failed to check them.
Governments and political parties. While many ofthe
abuses committed by state security forces took place
under direct palace rule, some ofthe worst occurred while
elected governments were in place and fully functional.
This is true ofthe brutal police operations that preceded
the army's deployment as well as the widespread abuses
in Bardiya. Members of parliament freely voted the permissive Terrorist and Disruptive Activities (Control and
Punishment) Ordinance into law in April 2002. What
this says about the lack of human rights and democratic
credentials of those governments and other parties, as
well as the fiction of a democratically controlled military
even before the first royal takeover of October 2002, is
as relevant as ever today.
Civil society. Domestic human rights organisations strained
under successive government restrictions from the 2001
state of emergency to the January 2005 royal coup.75
Often facing threats from both sides, their operations
were limited by the inaccessibility of certain regions
and sources of information.76 The politicisation ofthe
judiciary did not help their cause, especially as the king
grabbed more power and the courts refused to rein in the
RNA.77 There were notable exceptions, such as NHRC's
2003 report on the Doramba massacre, but overall the
See the "40-point demand" submitted to Prime Minister
Sher Bahadur Deuba on 4 February 1996 by Dr Baburam
Bhattarai on behalf of the United People's Front Nepal, reproduced in Crisis Group Asia Report N°104, Nepal's Maoists: Their Aims, Structure and Strategy, 27 October 2005,
Appendix F.
75 Crisis Group Report, Nepal: Dealing with a Human Rights
Crisis, op. cit, pp. 5-7.
76 Crisis Group interviews, Nepalgunj, Gulariya, Dhadingbesi,
Besishahar, May-June 2009.
77 Crisis Group interview, human rights lawyer, Nepalgunj,
May 2009. "Thejudges changed after the king's rule. Before
that they were liberal, sympathetic to the accused and detainees. There was a regular channel for their promotions. But
after, they were motivated by fear and greed - the king could
do anything with anyone".
excesses ofthe palace and army, and intimidation by the
Maoists, kept the domestic human rights community in
The impact of Nepali civil society was also limited by
its own weaknesses. First, it has often suffered from the
same exclusive tendencies as the state itself. Long-
circulating rumours about the systematic violations carried out against Tharu communities in Bardiya received
little civil society attention at the time, and some human
rights defenders privately admit that their own organisations' caste and ethnic make-up led them to ignore or
downplay these cases.78 Awareness has grown, but this
pattern has yet to change decisively. As one commentator
put it, "For us ordinary citizens, living amidst anarchy
and fear, what has become glaringly evident is the lack
of civil society, particularly in the human rights sector. ...
National human rights groups, such as the Informal Sector (INSEC) utterly lack credibility thanks to their lack
of inclusiveness and past actions".79 Second, most human
rights organisations are politicised. Many are directly
associated with particular parties, and thus throughout the
conflict and since have been limited in the extent to which
they have been able to press for real accountability.80
International military support. All ofthe most serious
army abuses uncovered to date took place as the U.S.,
UK and India stepped up military aid to the state, and
in particular to the RNA.81 Despite some lip service to
human rights, this assistance was largely unconditional
right up to the February 2005 palace coup - and was
accompanied by strong political support to the state and
the military. During the same period, the UN Department of Peacekeeping Operations (DPKO) also steadily
Crisis Group interviews, Kathmandu, January 2009.
79Daulat Jha, "The chilly winter ahead", The Kathmandu
Post, 23 December 2008.
80 Crisis Group interviews and observations, Bardiya, Banke,
Dhading, Morang, Kathmandu, May-June 2009.
81 Overall U.S. military aid from October 2001 to October
2004 was over $29 million. "US jittery over Nepal", Asia
Times, 16 March 2005. U.S. training expenditure increased
steadily from the November 2001 state of emergency reaching its highest point from October 2002 to September 2003 at
$1,470,892. "Foreign Military Training In Fiscal Years 2003
and 2004, Volume I", U.S. Department of Defense and U.S.
Department of State Joint Report to Congress, June 2004.
The palace and army had played effectively to U.S. preoccupations regarding terrorism, drawing a "terrorist group" designation for the Maoists in October 2003. UK assistance was
also substantial, some £8.9 million between April 2002 and
April 2004 including helicopters. "Nepal: Between a Rock and
a Hard Place", Human Rights Watch, 6 October 2004, pp.
89-91. India significantly stepped up its longstanding military
assistance from late 2001, supplying the bulk of RNA weaponry and ammunition and being the first (after the Nepali
government) to brand the Maoists "terrorists".
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Page 13
increased Nepali participation in peacekeeping operations,
continuing to do so even after the palace coup.82 UN missions not only serve an internal patronage system (allowing the top brass to reward or punish officers by
granting or denying postings) but are a major source of
income and prestige for the army as a whole, and senior
officers in particular.83
By refusing to take seriously the solid evidence of systematic state crimes - which was available at an early stage
in the conflict and in shocking detail with the Doramba
massacre - and the RNA's unwillingness to impose any
internal accountability, these international backers not
only encouraged a flawed military strategy but undermined their own moral and political leverage. They also
weakened calls by the European Union (EU) and others
for an end to the abuses. The U.S. saw its military support and pressure as one of the factors that had pushed
the Maoists to the negotiating table in lanuary 2003,
but in the face of mounting evidence of abuses the U.S.
Congress imposed conditions on funding in December
2004. Before this change in stance could be tested, the
royal coup led to a more confrontational situation in
which the king's ministers accused the U.S. of double
The CPA included multiple provisions on rights and justice.85 The primary commitments were to publicise (within
60 days) the names and status of the disappeared86 and
to create a truth and reconciliation commission (TRC)
"to investigate truth about those who have seriously
violated human rights and those who were involved in
crimes against humanity in course ofthe war and to create an environment for reconciliation in the society".87
There was also agreement to withdraw political cases,88
to end impunity,89 and to provide relief for victims and
the families ofthe disappeared.90 The Interim Constitution,
promulgated in lanuary 2007, further specified that the
state's responsibilities include "provid[ing] relief to the
families ofthe victims, on the basis ofthe report ofthe
Investigation Commission constituted to investigate the
cases of persons who were the subject of enforced disappearance during the course ofthe conflict".91
These sweeping pledges masked fundamental problems.
Most notably, neither ofthe parties that made them represented or controlled the army. Those who concluded
the deal were also unrepresentative of many ofthe victims ofthe conflict - especially women and marginalised
groups.92 There were no provisions for implementation
or meaningful monitoring. Although OHCHR and NHRC
The number of Nepali military observers, police and troops
deployed in peacekeeping operations was just under 1,000
from 2001 to September 2003. It nearly doubled in October
and grew to over 2,200 in December 2003. It was 3,400 by
the end of 2004, at which time Nepal was the fourth-largest
troop contributing country overall (having been eleventh in
2001). It has stayed in fourth or fifth position since then and
had approximately 4,300 people deployed in late 2009.
83 Following a court case filed in 2001, senior officers have
been accused of misuse of the Army Welfare Fund - into
which deductions from Nepali peacekeepers' salaries are paid.
The fund had been completely unaudited for decades and the
army has repeatedly defied Supreme Court orders to disclose
information. "NA accused of violating SC order", The Himalayan Times, 1 June 2009.
84 As Tulsi Giri, the deputy premier following the palace coup,
said: '"What did America do after 9/11? What is India doing
in Kashmir ... Every country has a problem which it is trying
to solve, but then it's not justice that you make comments on
how Nepal is dealing with it'". "Nepal govt hits out at foreign criticism", Indian Express, 16 February 2005.
The full text of the agreement is available with side-by-side
English and Nepali versions as a schedule to the UNDP-
produced copy of the Interim Constitution, at
86CPA, Articles 5.2.3 and 7.3.2.
87 CPA, Article 5.2.5.
88CPA, Articles 5.2.2 and 5.2.7.
89CPA, Article 3.4. There is also a promise to "ensure that
impunity shall not be encouraged". Article 7.1.3.
90CPA, Article 7.1.3.
91 Interim Constitution, art. 33. Although the specific provision
for a disappearances commission did not make it into the
CPA, it was already in the "decisions of the meeting of high
level leaders of the Seven Political Parties and the CPN
(Maoist) held on November 8, 2006" which was referenced
in the CPA. That agreement provides: "A high-level commission to investigate and publicize the whereabouts of citizens that were alleged to be disappeared by the State and the
Maoists in past shall be constituted". It also includes a provision for a TRC. A copy is available at
92 Not a single member ofthe negotiating teams, or signatory
or witness to the CPA was a woman. "Women's participation
in peace negotiations: Connections between presence and influence", United Nations Development Fund for Women
(UNIFEM), September 2009; see also "Negotiating Peace in
Nepal: Implications for Justice", ICTJ, June 2009.
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Crisis Group Asia Report N°184, 14 January 2010
Page 14
were to monitor the human rights provisions ofthe deal,93
no one was bound to listen to them. The agreement was
silent on prosecutions, instead focusing on reconciliation
and compensation. There were strong signals from the
beginning that the parties preferred a closed-door deal
on justice to any inclusive or consultative process.94
This paying of lip service rather than taking action on
accountability and impunity set a strong pattern. The
NHRC sent a letter to the UML-led government in lune
2009, complaining that its recommendations in hundreds
of cases had never been implemented.95 When a major
newspaper reported in November that the cabinet had
decided to finally implement nearly 500 of those recommendations, the government's only response was to
issue a denial the following day.96
This is not to say there has been no progress at all. The
government has proposed draft legislation for both the
TRC and disappearances commission.97 The two iterations
of the TRC bill were prepared by the ministry of peace
and reconstruction prior to the constituent assembly elections and were criticised for insufficient public consultations and including amnesty provisions. After the elections,
the ministry began consultations under the UCPN(M)-led98
93 CPA, Articles 9. land 9.4.
94 For an example reduced to writing, the 22 November 2005
twelve-point understanding between the Maoists and mainstream parties provides: "Regarding the inappropriate conducts
that took place among the parties in the past, a common
commitment has been expressed to investigate the incidents
raised objection and asked for the investigation by any party
and take action over the guilty one if found and make informed publicly. An understanding has been made to resolve
the problems if emerged among the parties now onwards
through the dialogue by discussing in the concerned level or
in the leadership level". A copy is available at http://peace.
95 "Memorandum to Prime Minister Nepal", NHRC, 26 June
96"Govt to act on NHRC recommendations - a positive step:
NHRC chief, Republica, 24 November 2009. For the government's denial, see "Govt refutes report on action against
security officers",, 25 November 2009.
97 Draft legislation to criminalise torture was prepared in 2007
under the interim government, but never made public. In a 17
December 2007 decision, the Supreme Court ordered the
government to criminalise torture in accordance with the Interim Constitution and the country's treaty obligations under
the Convention Against Torture and its Optional Protocol. The
government has yet to comply with that decision. "Criminalize Torture", Advocacy Forum, 26 June 2009. Available at:
98 The CPN(M) was renamed the Unified Communist Party
of Nepal (Maoist) following its merger with the Unity Centre
(Masai) in January 2009. This report uses "CPN(M)" for the
pre-unification party and "UCPN(M)" for the post-unification
government and has held several sessions since the UML-
led coalition took over in May 2009.99
Work on the disappearances commission has been more
and less problematic. A landmark Supreme Court decision
in lune 2007 provided much needed standards.100 This
created space for human rights organisations to play a
somewhat more effective scrutinising role but did little
to speed up the process. Following a November 2008
cabinet decision, the UCPN(M)-led government started
providing interim relief of Rs. 100,000 (approx. $1,358)
to each family ofthe disappeared.101 In February 2009 it
presented legislation criminalising disappearances and
setting up a commission. However, its decision to do so
by ordinance, bypassing parliamentary debate and without broad consultation, was controversial. Critics accused
the government of flouting democratic process and attempting to prevent scrutiny of Maoist abuses.102 The
party as well as for references that span both periods, such as
the coalition government led by the CPN(M) and then
UCPN(M) from April 2008 to May 2009.
"Between December 2007 and December 2009 consultations
were held in Palpa, Dhankuta, Nepalgunj, Dhangadhi, Hetauda,
Lalitpur, Udaypur, Ramechhap, Jumla and Dang. A national
consultation and three thematic consultations were held in
100 On the basis of dozens of habeas corpus petitions filed on
behalf of people disappeared by the security forces, the court
ordered the government to establish a commission of inquiry
on conflict-related "enforced disappearances" in compliance
with international standards, enact a law to criminalise enforced disappearances, prosecute those responsible and provide adequate relief to families.
101 The government has also been providing relief to the
families of those who were killed and to internally displaced
persons (IDPs). The families of the deceased have been receiving Rs.100,000 (approx. $1,340) under the Emergency
Peace Support Project (EPSP) approved by the World Bank
in May 2008, with a promise of another Rs.900,000 ($12,080
- a total of Rs. 1 million or $13,420) to be distributed at a
later date. According to the peace ministry's website as of
December 2009, the number of families who had received
EPSP funds was 11,038. A complete list of the names and
beneficiaries is available at
page=deceased_main. A number of organisations reported
that some families of the disappeared had registered as families ofthe deceased to receive more certain relief. As of 15
January 2009, 52,160 IDPs (14,031 families) had been identified and Rs.370 million under the Special Program for IDPs
under the Nepal Peace Trust Fund had been disbursed. "Nepal Peace Trust Fund Four-Monthly Progress Report: Fifth
Report (16 Sep 2008 - 15 Jan 2009)", Peace Fund Secretariat,
Ministry of Peace and Reconstruction, 28 February 2009, at
102"Maoists are laying disappearances blame at state's door",
The Himalayan Times, 10 February 2009; and "Politics of ordinance",, 23 March 2009. A copy of the ordi-
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Page 15
ordinance lapsed in the absence of ratification by parliament. The most recent draft proposed by the UML-led
government in October 2009 still fell short of basic
The pending legislation for both commissions provides a
ready excuse for not prosecuting conflict-related crimes
through ordinary courts. No person has been prosecuted
in civilian courts for serious abuses committed during
the conflict or since. The police have now registered at
least 65 formal complaints (FIRs) related to killings or
disappearances of civilians during the conflict, but only
after extraordinary efforts by the victims and human
rights organisations and often under court order.104 One
of the few cases in which arrest warrants have been
issued is that of Maina Sunuwar, but no one has been
taken into custody.105 For most ofthe other complaints
there has been no investigation at all. Although legally
bound to investigate, many police officials and some
judges have claimed they cannot proceed because these
are "political cases" or will be dealt with by the TRC.106
B. The Army
There is ample scope for individuals to be prosecuted for
war crimes committed by the security forces and a strong
basis to consider charges of crimes against humanity,
particularly for the concentrated patterns of torture and
disappearances in certain districts.107 However, there are
two primary obstacles to establishing criminal liability.
First, while crimes such as murder and rape are on
Nepal's statute book, some of those which were most
persistent during the conflict - in particular torture and
enforced disappearance - have not been domestically
criminalised; crimes against humanity are recognised in
customary international law and by the International
Criminal Court (see below) but have never been prosecuted in Nepal's courts. Secondly, and more importantly,
is reluctance to challenge the army's self-policing and
prosecute cases in the civilian courts - even those involving other security officials who are not subject to military
jurisdiction. Despite extensive evidence of systematic
crimes committed by the security forces, no prison sentence
has been imposed on a senior army officer for human
rights abuses.108
The army acknowledges that there have been allegations
of disappearances, extrajudicial killings, torture, intimidation and "extrajudicial custody".109 It says that nearly
60 per cent of over 4,300 cases raised by the NHRC,
OHCHR, ICRC and other organisations have received
"clarification" with relevant "justification" forwarded to
the concerned party.110 However, in the vast majority of
cases they have refused to make any details public and
often the "justifications" simply confirm that an individual was "killed in crossfire" or deny the incident.111
nance was made available on the peace ministry's website at
103 An earlier draft of June 2009 had been widely criticised
for flawed legal definitions and lacking minimum and maximum penalties. "ICJ calls for amendments to Bill on Disappearances", press release with accompanying letter to Minister for Peace and Reconstruction Rakam Chemjong, 16 July
2009; "Nepal: Joint Memorandum on the Disappearances of
Persons (Crime and Punishment) Bill", Accountability Watch
Committee (AWC), Advocacy Forum, Amnesty International,
Asian Federation Against Involuntary Disappearances (AFAD),
Human Rights Watch, ICJ, ICTJ, INSEC, 30 August 2009.
Most of the criticism still applies to the more recent draft.
Importantly, only maximum but no minimum penalties have
been introduced, and significant concerns regarding the formation and operation ofthe commission remain.
104 Advocacy Forum and Human Rights Watch have compiled
detailed information about these cases in "Waiting for Justice" and "Still Waiting for Justice", both op. cit.
105 One of the accused, Niranjan Basnet, was able to leave
Nepal for deployment in a UN peacekeeping mission in September 2009. See further discussion below.
106"Still Waiting for Justice", Advocacy Forum and Human
Rights Watch, op. cit, pp. 27, 34. As the father of a girl killed
by the security services said: "The police out here always
say, 'I can't do anything against the army officers'. The district police chief said directly: 'Until the TRC is formed, I
can do nothing'". Crisis Group interview, May 2009.
Crimes against humanity, as defined in the Rome Statute
of the International Criminal Court, are "any of the following
acts [including "murder", "torture" and "enforced disappearance of persons"] when committed as part of a widespread or
systematic attack directed against any civilian population,
with knowledge of the attack. ... 'Attack directed against any
civilian population' means a course of conduct involving the
multiple commission of acts ... against any civilian population,
pursuant to or in furtherance of a State or organizational policy
to commit such attack". In its report on Bardiya, OHCHR-
Nepal recognised that enforced disappearances can constitute
a crime against humanity, but stopped short of concluding
such crimes had been committed. "Conflict-related Disappearances in Bardiya District", OHCHR-Nepal, op. cit, pp.
24, 69. Crimes against humanity also have not been made
criminal offences under Nepali law.
108 Military courts did impose custodial sentences on two mid-
ranking officers: Lieutenant-Colonel Babi Khatri (later promoted colonel) for his involvement in the murder of Maina
Sunuwar and Major Ram Mani Pokharel for the Doramba
Human Rights Journal 2008", Nepalese Army Directorate of Human Rights, June 2008, p. 62.
110"Human Rights Journal 2008", Nepalese Army Directorate of Human Rights, June 2008, p. 14.
111 Crisis Group interviews, May-June 2009. The army has
further claimed that penalties have been imposed on at least
175 personnel, ranging from demotion to ten years' impris-
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Page 16
The army has refused to cooperate with any police investigations or orders from civilian courts, and has promoted
some accused of serious abuses. For example, in the
case of Maina Sunuwar, one ofthe individuals subject to
an outstanding arrest warrant, Colonel Babi Khatri, was
given a military intelligence post in NA headquarters.112
Another, Niranjan Basnet, was sent on a UN peacekeeping mission (see below). Similarly, a primary alleged
perpetrator in the disappearances in Bardiya has been
promoted.113 While the army has assured OHCHR that
an investigation of the Bardiya allegations is being conducted, it has refused to share any further information.114
The pervasiveness of unlawful behaviour, its close alignment with military objectives and the potential international embarrassment help explain why the security services have gone to great lengths to bar outside scrutiny.
C. The Maoists
The Maoists have been more forthcoming than the security forces in accepting responsibility for killings and
disappearances.115 Instead of issuing denials or patently
false versions of events, they often have claimed justification and in some cases admitted "mistakes". Beyond
that their response has been similar. They have carried
out their own internal investigations but taken no concrete
action against high-profile perpetrators and refused to
cooperate with the police and judiciary.
For example, immediately after the Chitwan bus bombing
which killed some 35 civilians in lune 2005, Prachanda
issued a public statement admitting responsibility, expressing his "shock" and condolences and stating that such
an attack was against the party's policy.116 The Maoists
conducted an internal investigation which concluded that
onment, but have not disclosed who or for what. "Nepal's postwar culture of impunity", BBC News, 1 March 2009, referencing a statement by Brigadier General Ramindra Chhetri,
an army spokesperson. In another instance in February 2009
the army claimed to have sentenced 66 personnel for human
rights violations. Crisis Group Report, Nepal's Faltering Peace
Process, op. cit, p. 21 (footnote 125).
112 In May 2009, he was reportedly sent into retirement when
the defence ministry rejected an army request to extend his
tenure. "Accused in Maina's killing pensioned off', Republica, 28 May 2009.
113 "Tharu samharaklai samman", Himal Khabarpatrika, 16
July 2009.
114 Crisis Group interview, Kathmandu, May 2009.
115 It is worth noting that relatively few formal accusations
have been made against the Maoists - no doubt attributable
in part to their continuing intimidation and harassment of opponents.
116 "Attacks against public transportation in Chitwan and Kab-
hrepalanchok districts: Investigation report", OHCHR-Nepal,
op. cit, para 38.
the incident was a "grave mistake", recommended that
the five persons responsible be suspended and informed
OHCHR that they had been detained and sent to a "labour camp".117 Even though four ofthe five names were
eventually made public, the Maoists have refused to cooperate with a police investigation. They benefited from
playing to "the people" and OHCHR in their initial reaction, but have faced no consequences for failing to do
anything since; indeed, it has been a pain-free way for
Prachanda to avoid upsetting the powerful PLA.
Their reaction to the fourteen alleged disappearances in
Bardiya hit a similar dead end but for different reasons.
The Maoists admitted to OHCHR that they had killed
twelve ofthe fourteen in fan karvahi (people's action)
but denied responsibility for the other two.118 This
largely confirmed what the Maoists had announced publicly or told the families at the time - that the individuals
had been killed because they were informants or criminals judged by "people's courts". For example, the wife
of one of the victims said a cadre came to her house
with a newspaper report and said: "It was like this.
People in the neighbourhood reported him and we hanged
him until he was dead".119
The Maoists have long signalled that their use of violence is not subject to normal jurisdiction, a message that
carried over into the ceasefire period, even after explicit
acceptance that they would no longer lay claim to separate
standards. Their cadres continue to commit serious abuses,
and the Maoists continue to shelter them. The most prominent case involves Kali Bahadur Kham ("Bibidh"), former commander of the PLA Third Division, accused of
overseeing the kidnapping, torture and murder of businessman Ram Hari Shrestha in the PLA cantonment in
Chitwan in April-May 2008. The Maoists have refused
police requests to interview Bibidh,120 claiming he has
been found not guilty in an internal investigation.121 They
also reinstated him to the central committee and in May
2009 appointed him commander ofthe PLA Fifth Division.122 Separately, two suspects in the October 2007
117 Ibid, para 41.
118 "Conflict-related Disappearances in Bardiya District",
OHCHR-Nepal, op. cit, p. 53.
119 Crisis Group interview, Bardiya, May 2009.
120 The police have formally charged five Maoist cadres in the
case. Only one, Govinda Bahadur Batata, has been arrested;
he remains in police custody. Local Maoist leaders have not
cooperated with the police to make further arrests. See "Remarks on pending accountability issues in Nepal", Richard
Bennett, OHCHR-Nepal representative, op. cit.
121 "Party acquitted me of Ram Hari murder charge: Kham",, 23 January 2009.
122"PLA commanders transferred",, 28 May
2009; "Ram Hari murder accused gets Maoist CC berth",
Republica, 15 January 2009.
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Page 17
murder of journalist Birendra Sah were reportedly promoted to the UCPN(M) Bara district committee secretariat in December 2009.123
D. The Victims
Victims' dissatisfaction with the lack of progress on
accountability since the end ofthe conflict is on the rise.
OHCHR, other internationals and national human rights
organisations have played a crucial role in bringing attention to the crimes, but there is great public impatience
with their inability to produce results.124
The impact on the families of those unlawfully killed or
disappeared has been devastating. Those left behind are
predominantly women with small children and the elderly,
who have lost their primary breadwinners.125 Many are
from rural, agricultural backgrounds.126 The families were
often caught between the army and the Maoists during
the hostilities. Those perceived to be collaborating with
one side - even under coercion - became the target of
the other. Fear of reprisal did not necessarily end with
the end ofthe conflict. Although those victimised by the
state rarely knew the perpetrators or saw them again,
those victimised by the Maoists sometimes did.
These overlapping frustrations are increasing tensions and
low-level confrontations may step up a notch. This is
particularly true in regions where alleged informers are
"OHCHR concerned about promotion of alleged killers of
Birendra Sah",, 4 December 2009. Sah was
killed soon after his abduction on 4 October 2007, as was
later admitted by an internal investigation committee of the
Maoists. "Maoists admit their cadres killed scribe Sah",, 5 November 2007.
124 Crisis Group interviews, Bardiya, Dhading, Lamjung, May-
June 2009. Frustration with national human rights organisations is particularly high in the case of the NHRC, as illustrated
by the occupation of its office by activists of the Maoist Victims' Association in December 2008. "Maoist victims lock
NHRC office", The Himalayan Times, 15 December 2008.
125 At least among the missing, indigenous ethnic groups and
Madhesis are also over-represented. "Families of Missing Persons inNepal: A Study of Their Needs", ICRC, op. cit, p. 2.
126 According to INSEC, 73 of Nepal's 75 districts saw killings during the conflict, with the highest numbers in the Mid-
Western region, but at least a dozen other districts with over
200 each. 2,381 ofthe reported killings were of "agricultural
workers" while another 1,456 were "unidentified persons",
the two biggest categories after "political workers" (5,717).
"No. of Victims Killed by State and Maoist in Connection
with the 'People's War' (13 Feb 1996-31 Dec 2006)", at See also "Families
of Missing Persons in Nepal: A Study of Their Needs", ICRC,
op. cit, p. 2, noting that most ofthe missing come from "rural peasant backgrounds".
still in or close to affected communities.127 Some organised victims' groups are providing direction and support
for peaceful campaigns; a few are taking a more aggressive stance.128 There is little chance of widespread uprisings of victims as such, given that most of them are
from extremely disenfranchised backgrounds, but their
grievances may reinforce other issues, such as ethnic
and regional rights, around which more militant campaigns are developing.129
Increased activism is also not without risk. Families and
human rights defenders who have pursued cases against
the security forces or the Maoists have faced serious
harassment and threats of retaliation.130 Moreover, victims
are seeking justice in a still insecure environment where
rule of law institutions have limited capacity. Calls for
action are largely unheard.
The major political parties view justice primarily as one
element in a broader system of patronage and political
negotiations. By leaving criminal cases in limbo, they
have opened the door to massive political meddling in
the criminal justice system and are actively taking part
in it, including the withdrawal of hundreds of criminal
At the district level, victims' interests and their right to
compensation have been used as a political football. This
has been particularly evident in the drawing up of lists
of various categories of victims to be compensated.
Procedures varied across districts, but in many the process appears to have included plenty of horse-trading
and historical revisionism, often in meetings of what
was or was to become the district's local peace committee (LPC). As one human rights activist said: "There are
more fake victims than real victims. ... The IDPs are 100
per cent fake. The others, maybe 50/50".132 In his view,
the compensation is feeding into patronage networks.133
Crisis Group interviews, Bardiya, Dhading, Lamjung,
Morang, May-June 2009.
128 Crisis Group interviews, Gulariya, May 2009.
129 A notable 15 per cent of victims of the state among the
missing said they were prepared to return to armed rebellion
if the issue is not addressed. "An assessment of the needs of
families of the Missing in Nepal", Post-war Reconstruction
and Development Unit, University of York, April 2009, p. 6.
130 Crisis Group interviews, May-June 2009. See also "Waiting for Justice", Advocacy Forum and Human Rights Watch,
op. cit.
131 See Section II. C above.
132Crisis Group interview, Nepalgunj, May 2009.
133 Ibid.
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It is difficult to know the degree to which this process
has deprived true victims of killings or disappearances of
much-needed relief134 But these reports should encourage donors, who have underwritten relief payments, to
monitor the use oftheir funds more effectively.135
Although all of the parties have courted victims for their
own purposes, the Maoists have had an advantage given
the excesses ofthe security forces.136 They have formed
victims' committees, pressed for information about the
disappeared and helped families obtain the relief funds
they secured for victims when they were in government. They have not shied away from using the issue
forcefully,137 as they did during the constituent assembly
elections in livanpur in Dhading district.138 Indeed,
Maoist leader Prachanda, in comments to PLA troops
before the elections, said that proposed relief payments
were not "just money" but part of politics: "So you see,
if we plan to hold open meetings at the same time as we
give out the money to martyrs' families, then that will
be our preparation for revolt. That's not getting ready
for an election but getting ready for revolt. This will
improve our deteriorating relations with the people".139
Some victims are willing to interpret political motivations
pragmatically. As one said: "If [the Maoists'] efforts get
more attention, then I have to go along with it. Even dur-
There are certainly individual cases where families are
still trying to satisfy local officials with documentation to
prove death or family relation, causing great aggravation and
encouraging suspicion that the government is discriminating
or the security forces are interfering. Crisis Group interviews,
Kaski, Morang, Dhading, May-June 2009.
135 The World Bank suspended a grant for Maoist combatant
salaries after the emergence of the Shaktikhor video in May
2009 (see fn. 139 below), on suspicions that the Maoists diverted some ofthe funds for party use. "WB to release $18m
peace grant", Republica, 21 November 2009.
136 As a woman living in Kaski said: "Now after my husband
has gone, I have nothing left to do. The state made us Maoists. The only thing I have now is the party". Crisis Group
interview, June 2009. Similarly: "The reason the number of
people supporting the Maoists increased is because the state
went around disappearing people! It's not because they believe in the ideology, but because of what the state did". Crisis
Group interview, father of disappeared man, Urlabari VDC,
Morang, June 2009.
137 "Kin of missing to act tough", The Himalayan Times
Online, 12 May 2009.
138See Crisis Group Report, Nepal's Election: A Peaceful
Revolution?, op. cit, p. 5.
139 Prachanda, address to PLA training meeting, Shaktikhor
cantonment, 8 January 2008, translated from transcript published as "Yasto chha maovadi janayuddhako dirghakalin
rananiti", Nagarik, 6 May 2009. For an analysis of the address
and its implications, see Crisis Group Report, Nepal's Future:
In Whose Hands?, op. cit, pp. 9-11.
ing the war we had to be on one side or the other. Now it's
the same".140 But the message that reparations should serve
party political self-interest is impossible to ignore. It also
reinforces counterproductive divisions between the victims ofthe state and victims ofthe Maoists.
The Maoists are willing to reap the benefits of helping
victims seek compensation and agitate for information
about the disappeared, but they have stopped short of
taking the steps necessary to ensure that information
comes out. They know well that doing so would require
them to open the door to an examination of their own
conduct and their judgments throughout the war that
it was justified. Other parties have similarly preferred
to promote the interests of particular constituencies of
victims in line with their own narrative of the war. For
example, primarily pressing for compensation to those
displaced by Maoist threats reinforces the image of other
parties' supporters as the primary victims of a conflict
initiated by an illegitimate rebel group.
For all parties, the constitution-writing process should be
one focus for developing justice measures. Unfortunately,
discussion so far has generated relatively little consideration ofthe need to include measures that would prevent
repetition of conflict-era abuses. Even debate ofthe draft
fundamental rights section was sparsely attended, despite
its headline value and major disputes on which rights the
new constitution should embody.141 Ensuring justice in
the longer term requires serious attention to the constitutional basis for rule of law institutions and accountability.
F.  Civil Society
The discussion of justice questions has not been without
some benefits. Public debate has broadened the scope of
issues on the political agenda and has reduced the possibility for denial. Collective knowledge of the nature
of conflict-era abuses has been enhanced, even if much
of it is not purely evidence-based. However, this general awareness has not been sustained or translated into
focused public pressure or policy responses.
The mainstream media and other opinion-makers have
often been indifferent to justice and hesitant to push too
far in analysing the culture of impunity within the security
services. This has been particularly evident in the muted
response to OHCHR reports on Maharajgunj and Bardiya.142 As suspicions of Maoist intentions revived, few
Crisis Group interview, Dharke, Dhading district, May 2009.
141 Fewer than 40 CA members and five observers in the
press gallery turned up to the first day of the debate on 7 June
2009. Crisis Group interview, international legal observer,
December 2009.
142"Media blackout",, 28 December 2008.
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Page 19
journalists or activists wished to focus on past violations
by the army and police. In any case, atrocities carried
out against people from communities who remain at a
great distance - physically, politically and emotionally
- from Kathmandu find little traction in the capital.
While new movements have sprung up around particular forms of group- or interest-based justice rhetoric - for
example, the many organisations calling for ethnic or
regional rights as a form of redress for historical discrimination - the broader coalition around basic human
rights has weakened. As with national politics, the
search for peace and opposition to autocratic monarchy
had helped bring activists together on a common platform. Such shared interests have dissipated as the peace
process progressed. Many rights activists have reverted
to more partisan stances; the longstanding criticism that
human rights is an externally driven and funded discourse
risks gaining currency.
Ironically, the U.S. and UK governments, which rights
activists regularly criticised for their support to the army
during the conflict, have become - along with other internationals - more vocal in some oftheir calls for action on
justice than domestic organisations. For example, these
international actors led demands for Major-General Toran
lung Bahadur Singh, who was in overall command of
the troops allegedly responsible for the Maharajgunj
violations, to be denied promotion.143 Major national
activists only added their voices to this campaign after
some weeks.144 Domestic organisations reacted more
convincingly in the case of Niranjan Basnet, one ofthe
accused in the case of Maina Sunuwar, who was expelled
from a UN peacekeeping mission in September 2009
(see below).
Despite objections, the government decided to promote him
to lieutenant-general on 24 December 2009. The Supreme
Court stayed the promotion on 3 January 2010. "SC continues stay on Toran promotion", Republica, 10 January 2010.
144 The Accountability Watch Committee (AWC), an umbrella
body for individuals and organisations working on human rights
and justice issues, registered their protest only when Maj-Gen
Singh's promotion became imminent. "Government urged not
to promote Toran",, 26 November 2009.
That he was likely to be promoted had been known at least
since the end of September. "Toran to be promoted finally",, 23 September 2009.
The focus now should be on prosecuting the most serious crimes identified by NHRC and OHCHR for which
there is already substantial evidence. Selection is important: if prosecutions are to be successful, legally and
politically, the first cases pressed must be watertight in
terms of evidence and appear even-handed in terms of
the institutional affiliations ofthe accused. Casting too
wide a net could be unhelpfully perceived as a witchhunt, triggering greater resistance while not necessarily
resulting in viable cases. The judicial system has limited
capacity; it can cope with a handful of well-prepared
cases but would be unlikely to pursue too wide a range
of cases with sufficient vigour.
International solutions such as the International Criminal
Court (ICC) are hardly feasible. Nepal is not a party to
the Rome Statute ofthe ICC and thus crimes committed
in its territory or by its nationals do not automatically fall
within the court's jurisdiction. The UN Security Council
can refer situations to the ICC but such an unusual intervention is highly unlikely in Nepal's case.145
Strengthening national institutions to enable them to
handle serious crimes is a much more sustainable long-
term objective. The criminal justice system is far from
perfect.146 But many observers believe it could handle
In addition, ICC jurisdiction reaches back only to 1 July
2002. The prospects ofthe government signing up to the ICC
are slim. "Maoist, Nepal Army agree on Rome Statute: Not
in Nepal", Republica, 9 March 2009.
146 For instance, the official capacity for all prisons across the
country as of November 2008 was 5,000 while the total inmate population was 8,810. Of those, 59.4 per cent were pretrial or on remand. See "Inside Prisons and the Rights of Detainees: A Photo Exhibition on Prison Conditions in Nepal",
OHCHR-Nepal, 2008, p. 8. According to the International
Centre for Prison Studies at King's College London, Nepal
has the sixth-lowest prison population rate (number of prisoners per total population) in the world. Torture also continues to be a significant problem. From April to June 2009,
Advocacy Forum found 20.2 per cent of 1,047 detainees interviewed said they had been subjected to torture or other
cruel, inhuman or degrading treatment, although longer-term
trends have shown a gradual reduction. "Prevention of Torture in Nepal", quarterly briefing, Advocacy Forum, April-
June 2009. There are also significant deficiencies in the investigative capacity and techniques of police. As one criminal court judge said "It's all based on the culprit's statement
and credibility. All criminal cases depend on interviews.
They do not even take fingerprints". Crisis Group interview,
Nepalgunj, May 2009.
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the most serious crimes that have been identified with
support in three main areas:
□ Special investigation and prosecution units. Even
in the highest profile cases, political interference and
intimidation will remain a problem. The best way to
guard against it is to set up special units in the police and attorney general's offices to work together
and deal only with these cases. Staffing them with
senior and experienced officials, backed by sufficient
resources and insulated from politically motivated
transfers or conditions of service, would add to their
□ Witness protection. Perhaps the greatest risk in
pending cases is the safety of victims, witnesses and
advocates. A strong witness protection program is
critical to ensure individuals - including members of
the security forces or PLA - are able and willing to
□ Forensic expertise. Both the police and NHRC need
more training and capacity in exhumations, crime scene
investigations, DNA analysis and ballistics testing.
The government should assess resource needs in these
areas and develop plans to address them, requesting international assistance as appropriate.
B. Building Better Commissions
Nepal's history of inadequate commissions of inquiry
does not offer an encouraging precedent. There is a high
risk that commissioners will be politicised, inquiries
will be half-hearted and violators will refuse to cooperate. The human rights community and donors have had
some impact on the process so far, but, as already mentioned, there are still deficiencies in the draft laws for
both the TRC and the disappearances commission.147
Potential pitfalls for the commissions should be emphasised. The appointment of politically affiliated commissioners has compromised past inquiries in Nepal. The
selection process must be completely transparent and
should include representatives of victims and civil society,
with care taken that marginalised groups and women
are included. Commissioners also need broad autonomy
and personal security provisions to avoid interference
and intimidation as proceedings are conducted. Without
publicising findings and making recommendations that
See "Disappearances in Nepal: Addressing the Past, Securing the Future", ICJ, op. cit; "ICJ calls for amendments
to Bill on Disappearances", press release, op. cit; and "International Center for Transitional Justice (ICTJ) Comments on
Nepal's Disappearances Ordinance", ICTJ, 12 February 2009.
will actually be implemented, commissions will do little
to address the abuses during the conflict.
The gain from a TRC is unclear from the perspective of
non-repetition. The idea of a TRC emerged as the result of
international suggestion with little domestic debate, and
the well-known South African model quickly became
the primary point of reference.148 The establishment of
the TRC itself is part ofthe CPA. But its mandate and
scope are still open to discussion. Nepal needs to develop
a commission that is responsive to the victims of the
conflict and its own culture, history and society. Nepal
certainly has deep divisions, many of which have fed
into violence before and may do so again. But they are
entrenched in longstanding socioeconomic institutions
rather than solely the legacy of the conflict. It is difficult to see how they would be amenable to a reconciliation process based on public accounts of victims and
A TRC could contribute to generating information and
establishing a historical record of what happened during
the conflict, which could possibly feed into prosecutions
at a later point. However, any truth commission that
aims to include the accounts of perpetrators will need
carrots and sticks to encourage perpetrators to appear.
In South Africa, perpetrators were granted immunity
from criminal or civil suit in exchange for full public
disclosure.149 But as long as there is no credible threat
of prosecution - which will be the case until the army
and Maoists turn at least some alleged perpetrators over
to the civilian courts - any form of immunity is unlikely
to be a sufficient incentive. Blanket amnesties, which
appeal to both sides, are widely deemed to be ruled out
by international standards. However, should prosecutions
become a reality, various types of conditional immunity
could be explored to entice individuals to testify. Pardons
of perpetrators after full trial and conviction could also
An ICTJ paper argues that the ready availability of a South
African expert's expertise as well as the focus of the South
African TRC on amnesties were driving factors behind this.
"Negotiating Peace in Nepal: Implications for Justice", op. cit.
149 The South African TRC was established in December 1995
by the national unity government under the leadership of
Nelson Mandela. It was empowered to grant amnesty to perpetrators in exchange for a full public accounting of their
crimes. Although still the best known example of a truth
commission, it was not the first and is certainly not the only
model. Other prominent examples include Argentina, Chile,
East Timor, El Salvador, Guatemala, Liberia, Peru and Sierra
Leone. For an overview through 2001, see Priscilla Hayner,
Unspeakable Truths: Facing the Challenge of Truth Commissions (New York, 2002). The only other experience to receive
any significant attention by the parties to Nepal's peace
process was Peru.
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Page 21
be considered in a limited number of cases, but only in
the interest of national reconciliation.
The proposed disappearances commission has both a more
clearly defined purpose and a more urgent relevance to
families of victims. Again, both sides are concerned at
the prospect of revealing investigations and possible
criminal liability. Nevertheless, a well constructed body
would support the peace process. It would constitute an
important confidence-building step for the Maoists,
who need to deliver something to the large constituency
of alleged victims and their families who are affiliated
with the party. At the same time, serious exploration of
state violations would put significant pressure on them
to reciprocate. A disappearances commission would not
necessarily lead to prosecutions but would address
families' demands for truth and make an important contribution to the historical record, guarding against denial
and contributing to substantive measures to prevent a
repetition of such crimes.
If capable and suitably empowered bodies are established, they would deserve substantial international
support and technical assistance. But the signs are far
from promising. In their absence, efforts should remain
focused on obtaining some measure of accountability
through criminal prosecutions.
C. Linking International Military
Assistance to Justice
Among the important providers of military assistance to
Nepal, there has been silence from India and China on
NA accountability for past abuses. The U.S. and UK have
not spared the army public criticism and frequently employed tough language.150 But, with a few exceptions,
they have taken little action. The overall message to the
army is clear. Open political involvement will not be tolerated, and known human rights abusers may lose access
to training opportunities in the U.S. and UK, but there
is little pressure on the institution as such to reform.
The U.S. maintains a policy of excluding from training
any members ofthe security forces implicated in human
rights abuses but has not applied it rigorously.151 After a
150 For a powerful coordinated example, see the 29 August 2009
joint statement of ten donors - Australia, Denmark, Finland,
France, Germany, Japan, Norway, Switzerland, the UK and
U.S. - calling for the government to meet its commitment to
establish a disappearances commission, for the army and
Maoists to cooperate fully on disappearances cases and for
the army to cooperate in the Maina Sunuwar case. "Embassies
urge action on disappearances", press release, 29 August 2009.
151 Under the "Leahy Amendment", U.S. military assistance,
including military training, is barred to units or individuals
short period of tougher measures from the end of 2004
and after the 2005 royal coup, it re-engaged significantly
with the army after the peace deal in 2006. Driven by
fear of Maoist domination, this policy sought to rehabilitate the army and shore up the legitimacy of the
mainstream parties for the peace talks. Different legislative restrictions imposed since have had little tangible
effect,152 as overall training expenditures rose sharply153
and prestigious training opportunities were granted to
senior officers.154
Concerned not to risk their access and potential influence,
the UK has so far avoided any systematic sanctions against
the army as an institution or its top brass. The UK has a
long history of engagement with the NA and its training
opportunities are particularly important to senior officers.
Since the mid 1950s a limited number of NA officers
where credible evidence of human rights abuse exists. Senator Leahy expressed concerns about whether the law was being implemented in the case of Nepal in September 2008.
"Statement of Senator Patrick Leahy on Nepal", Congressional Record, 24 September 2008, S9391.
152The U.S. Foreign Appropriations Bills imposed restrictions
on assistance to Nepal under the "Foreign Military Financing" (FMF) program from fiscal year 2005. Appropriations
for fiscal year 2008 restricted "International Military Education and Training" (IMET) to Expanded IMET, which focuses
on auditing, military justice and civilian oversight. Fiscal
year 2009 subjected any training expenditures to "regular notification procedures", requiring the relevant executive agency
to advise the Senate Foreign Relations Committee, House
Foreign Affairs Committee and appropriation committees of
specific plans for expenditures before signing any obligation.
For fiscal year 2010 see fn. 157 below.
153U.S. military training assistance to Nepal decreased from
$856,301 in 2004 to $577,640 in 2005, but rose again from
2006 ($1,174,977) to a high $1,293,778 in 2007. The 2007
expenditures are the latest available. All but a small share of
it ($142,611) was spent on training the NA. More than half
of the 2007 funds were disbursed under the Department of
State IMET program ($718,383), $352,197 under Department
of Defense (DoD) Regional Centers training and $177,387
under the DoD Combating Terrorism Fellowship Program.
154 Brigadier General Victor Rana, who was Chief of Operations in the Directorate of Military Operations at the time and
had control over the battalions active in the Maharajgunj barracks during the alleged torture and disappearances there,
was an international fellow at the U.S. National Defense
University in 2009.
%20of%202009.pdf. The international program trains "select
members of the International Defense Community" to "prepare future leaders of the Armed Forces and civilian leaders
for high-level policy, command and staff responsibilities".
Subsequently, OHCHR expressed concern to acting Chief of
Army Staff Chhatra Man Singh Gurung that Rana had been
recommended for promotion or extension despite the allegations. "OHCHR calls for comprehensive human rights vetting as part of peace process", press release, 28 August 2009.
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Page 22
receive training at Sandhurst every year, and many top
officers have attended the academy.155 Training opportunities are also provided through academic scholarship
programs such as the Chevening scholarships. One of
the most noteworthy beneficiaries was Ajit Thapa, the
primary alleged perpetrator named in the OHCHR investigation ofthe Bardiya abuses. Promoted to lieutenant-
colonel, he studied security sector reform at the University of Bradford in January-March 2007, before the
British embassy had a vetting system in place. The embassy subsequently introduced vetting, and in 2010 rejected two NA nominees for the 2010 course because
of human rights concerns.156 However, the UK has
maintained its overall level of engagement, continuing
to host visits by army chiefs even long after it was clear
that the NA had committed serious human rights abuses.157
For donors who provide military assistance and training
it is time to move from rhetoric to action. Vetting is an
important component, but measures must go further to
put pressure on the army as an institution, even if India
and China are unlikely to follow suit.158 Legislative re
strictions on some U.S. military assistance for fiscal year
2010, which require cooperation with investigations and
prosecutions of human rights violations, are a good starting point.159 Other donors, especially the UK, should
follow suit. Given the prestige of overseas training institutions, the effects could be considerable even without India and China. But for real impact, conditionality
must apply across all categories of military assistance and
in particular target opportunities for senior personnel.160
Important benchmarks will be a significant reduction in
the number of trainings and spending on military assistance. Progress on integration, accountability for abuses
and democratic control, on the other hand, should prompt
enhanced support, including trainings for newly formed
or re-structured units.
Targeted visa bans for individuals facing credible allegations of war crimes are likely to be effective. Innocent
individuals would have an incentive to undergo trial and
have their names cleared, which would in turn raise overall pressure to follow through with prosecutions. A blanket visa ban for Maoist leaders is already in place in the
U.S., until the UCPN(M) is removed from the terrorist
155 Former Chief of Army Staff Pyar Jung Thapa was trained
in Sandhurst in 1966, then at the UK School of Infantry in
1967. He later participated in a Ranger course in the U.S. In
1977 he returned to the UK to attend the army staff training
in Camberley. "Profile of Chief of Army Staff Thapa",, 10 September 2002. Places available to the
NA in Sandhurst have varied over the years. Three places
were offered in 2006, two each in 2007, 2008 and 2009 and
one in 2010, which was, however, declined by the NA. Since
1993, the UK also offers one place every three years to the
NA at the Royal College of Defence Studies.
156 Lt-Col Thapa's Chevening Fellowship application did not
mention his Bardiya posting. Although the embassy works
closely with OHCHR and other embassies on processes to
promote human rights and has a policy of not knowingly
sending people accused of serious human rights abuses for
study in the UK, officials say that they would not have had
information linking Lt-Col Thapa to the Bardiya abuses at
the time he applied. Email communication, British embassy,
Kathmandu, January 2010.
157 Retired General and COAS during the Maoist uprising
Pyar Jung Thapa was invited to a ceremony at Sandhurst.
"Nepal's ex-army chief barred from leaving country", Indian, 14 May 2007. On his July 2007 visit to the UK,
COAS Rookmangud Katawal also promised British Foreign
Office Minister of State Lord Malloch-Brown to hand over
all documentation relevant to alledged rights violations by
the army, in particular on the Maina Sunuwar case. However,
he did not.
158 India suspended its military assistance to Nepal after the
2005 royal takeover, but resumed non-lethal assistance in May
2005. "Nepal: military assistance contributing to grave human
rights violations", Amnesty International, June 2005. In December 2009 there were reports that it might restart supplies
of lethal military equipment. See, for example, "India likely
to supply 50 phased out tanks to Nepal", Republica, 16 De
cember 2009. These were denied by the Indian foreign ministry but India offered increased non-lethal assistance, such as
support to construct a military airport in Surkhet district. "CoAS
Gurung takes part in Indian Army's ceremony", ekantipur.
com, 12 December 2009. China, which had at no time during
the civil war restricted military aid to Nepal, also promised
increased military assistance in December, offering CNY
20.8 million (approx. $3 million) in non-lethal military
hardware and training. "China offers Rs 220m military aid to
Nepal",, 16 December 2009.
159 For FMF the appropriations bill provides that funds "may
be made available for assistance for Nepal if the Secretary of
State certifies to the Committees on Appropriations that the
Nepal Army is - (A) cooperating fully with investigations
and prosecutions by civilian judicial authorities of violations
of internationally recognized human rights; and (B) working
constructively to redefine the Nepal Army's mission and adjust its size accordingly, implement reforms including strengthening the capacity of the civilian ministry of defense to improve budget transparency and accountability, and facilitate
the integration of former rebel combatants into the security
forces including the Nepal Army, consistent with the goals of
reconciliation, peace and stability. (2) The conditions in paragraph (1) shall not apply to assistance to support the deployment of members of the Nepal Army in humanitarian relief
and reconstruction operations in Nepal". Fiscal Year 2010
Consolidated Appropriations Act, H.R.3288, U.S. Congress,
16 December 2009.
160The U.S. foreign operations appropriations for fiscal year
2010, for example, impose tougher conditions on the FMF
program than on IMET. Fiscal Year 2010 Consolidated Appropriations Act, H.R.3288, U.S. Congress, 16 December
2009. Funds disbursed under IMET made up significant proportions of overall military training for Nepal in past years.
See footnotes 151 and 152.
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list. This list could be used for more leverage on the
Maoists if they want to get off it, and the State Department has already set out conditions to be met for this to
Donors have also made significant financial contributions
to peace process-related projects. In particular a World
Bank grant and the multi-donor Nepal Peace Trust Fund
(NPTF) contribute to financing the cantonments and the
interim relief payments to conflict victims. This assistance was explicitly linked to both sides' recognition of
human rights principles. The agreement on the NPTF
states: "Whereas respect for human rights, democratic
principles, the rule of law and good governance, which
governs the domestic and international policies of the
Signatories, are the fundamental principles on which the
cooperation among the Signatories rests and which constitute essential elements of this JFA".161 If these provisions are to constitute more than lip service, then they
should be used to set clear benchmarks for progress on
justice issues for continuing assistance.
D. United Nations: Principles
and Peacekeeping
The UN would help both Nepal's peace process and itself by consistently applying a principled approach both
across and within agencies. The United Nations Mission
in Nepal (UNMIN) is not a peacekeeping operation but
a special political mission (led by the UN's Department
of Political Affairs). However, DPKO is involved through
the provision and support of arms monitors, even if they
are unarmed and not in uniform. While UNMIN is mandated to support a peace process which rests on commitments to rights, accountability and security sector
reform, DPKO does not believe it is its role to press the
NA on addressing past human rights violations or establishing democratic control of the military. Its unwillingness to take account of these issues counteracts the efforts
of UNMIN and OHCHR and does nothing to help the
aims of the Security Council in its broader support to
the process.
DPKO has consistently received credible reports about
specific NA war crimes through OHCHR. While it has
expelled individual human rights violators from its missions on occasion, it has taken less action than even its
careful approach permits. It has refused to bar entire units
alleged to have been involved in violations or to take a
Joint Financing Arrangement on the Nepal Peace Trust
Fund between The Government of Nepal and The Donor
Group, February 2007, at:
stance on the army's suitability as a whole. The fact
that it continued to increase NA troop contributions and
award plum positions to high-ranking officers, even
after reports of abuse started to increase, certainly assured
the generals that domestic misconduct would not seriously jeopardise access to the lucrative missions.162
DPKO has always accepted that individuals facing credible allegations of serious human rights violations should
be screened out and barred from missions. But it places
the entire responsibility with the NA and government to
send clean troops and has not developed any comprehensive vetting policy of its own.163 It has reacted to some
OHCHR interventions, which has resonated up and down
the ranks,164 but the effectiveness of these efforts has been
limited thus far by DPKO's disinterest in taking responsibility for a more systematic approach.165
The most shocking failure to have occurred as a result
was the September 2009 deployment of Major Niranjan
Basnet in the UN peacekeeping mission in Chad. Basnet
is one of four accused in the Maina Sunuwar case and
faces a suspension order and arrest warrant by the Kabhre
District Court.166 DPKO has reacted promptly to receiving information about his deployment by repatriating
him to Nepal.167 But subsequent reactions by the NA have
On the overall increase of troop contributions see footnote
82 above. In late 2003, DPKO appointed Maj-Gen Balan-
anda Sharma as third Nepalese force commander for the
United Nations Disengagement Observer Force (UNDOF) on
the Golan Heights. "Maj Gen Sharma in UN Forces", The
Kathmandu Post, 29 December 2003.
163 The NA is not even required to provide DPKO with a list
with the names of those selected for a particular mission before deployment.
164 Crisis Group interview, human rights lawyer, 15 May 2009.
DPKO receives input on alleged perpetrators from OHCHR,
individual diplomatic missions and NGOs such as Advocacy
Forum. The army reportedly has developed its own list and
vetting policy but has not shared it.
165 After extensive discussions between OHCHR and DPKO,
the latter commissioned a confidential study on human rights
vetting. Its recommendations include requiring member states
and individual peacekeepers to certify that they meet certain
integrity standards, developing a more proactive vetting system specifically for candidates for senior peacekeeping positions, and designing a process for addressing credible allegations that arise after deployment. However system-wide discussions on any policy are not expected to start until sometime in the first trimester of 2010. Crisis Group interviews,
New York, December 2009.
166"Court orders suspension of Major Basnet", Republica, 17
September 2009.
167 On 4 December the UN made the following statement:
"DPKO vets all senior appointments to its missions. However, with more than 115,000 personnel currently in the field,
it is impossible to vet each and every peacekeeper deployed.
 Nepal: Peace and Justice
Crisis Group Asia Report N°184, 14 January 2010
Page 24
amply demonstrated that its internal vetting can not be
The concerted calls for Basnet's arrest upon arrival168
only prompted his being taken into detention by military police - despite the civilian arrest warrant.169 The
NA also has sought to justify Basnet's deployment,
claiming he was "cleared by an independent military
board of enquiry".170 Far from admitting to having made
a mistake, the army has lobbied for a letter of complaint
to be sent to DPKO.171
DPKO's reluctance to adopt pre-deployment measures
is partly understandable - many of the troop contributing armed forces the UN has to rely on face human rights
abuse allegations in their home countries. But not all of
them have been accused of systematic crimes and lied
and dissembled to cover them up.172 At the bare mini-
Therefore, the United Nations relies on its troop- and police-
contributing countries - which ultimately have the mandated
responsibility for the good conduct, order and discipline of
their forces - to screen all contingent members nominated to
take part in peacekeeping operations in accordance with international norms and standards. With regard to this specific
case, due to the serious nature of the allegations against Major Niranjan Basnet, who was deployed as a member of the
Nepalese contingent, a decision has been made to repatriate
him immediately". "Daily Press Briefing by the Office ofthe
Spokesperson for the Secretary-General", 4 December 2009.
168 These included the pleas of Maina Sunuwar's mother, international and later also national human rights organisations.
"Maina's mom asks PM to arrest Maj. Basnet", ekantipur.
com, 8 December 2009; "Amnesty urges to arrest Basnet",
The Himalayan Times, 9 December 2009; "Human rights defenders: hand Basnet over to civilian court", Republica, 17
December 2009.
169 The police made no effort of its own to arrest Basnet, citing
a lack of specific orders and the army's supremacy in dealing
with its own personnel. The Kathmandu Post cites police
spokesman and Deputy Inspector General Bigyan Raj Sharma:
"Even if there is an arrest warrant on any Army personnel,
it's under Nepal Army's authority". "Expelled Army Major
returning", The Kathmandu Post, 10 December 2009.
170 "Amnesty urges to arrest Basnet", The Himalayan Times,
9 December 2009. Basnet was not among the three eventually court-martialled for the crime.
171 "Govt to lodge written complaint with UN", Republica, 16
December 2009.
172 OHCHR charged the NA with providing "incomplete and
misleading information" on detainees in the Maharajgunj barracks, for example noting that the detainee list provided to
OHCHR by the NA was at variance with the NA's own task
force report on the Maharajgunj detentions. OHCHR-Nepal,
letter to Prime Minister Nepal, 26 July 2009, fn. 7. In the
case of one alleged Maharajgunj detainee, it "found evidence
contradicting the Nepalese Army's claims that the victim had
died in a bomb explosion". Report ofthe United Nations High
Commissioner for Human Rights to the UN General Assem-
mum, DPKO must therefore introduce rigorous screening,
if only to maintain the credibility of its own commitment to basic human rights principles. Short of barring
the entire NA or even individual units, it would be possible to make additional contributions conditional on concrete steps to address impunity, including cooperating
with civilian authorities. The argument of a scarcity of
peacekeepers only carries so far. DPKO did cope for decades with far lower contributions from Nepal.173 And while
the scarcity argument in general applies to the rank and
file, senior appointments are well sought after. Condition-
ality here would hardly interfere with DPKO's operational
needs, but apply pressure to the NA where it hurts most.
OHCHR still plays a critical if limited role, but struggles
with diminishing legitimacy. After its establishment in
May 2005 the monitoring mission produced solid reports
on violations, won further commitments by both sides to
abide by international standards and perhaps contributed
to a drop in the number of reported disappearances.174
But once the military ceasefire opened up the space for
political negotiations it was increasingly unable to build
political pressure for domestic action on human rights
While it has continued to produce some important documentation of abuses, OHCHR has struggled to build good
working relationships with national bodies and generated
frustration in the domestic human rights community.
This is most evident publicly in the barrage of criticism
from NHRC commissioners that OHCHR is competing
with it.175 NHRC suffers from its own serious problems,
bly, A/61/374, 22 September 2006. OHCHR's investigations
of disappearances in Bardiya also showed that the NA attempted to cover up killings. "Conflict-Related Disappearances in Bardiya District", OHCHR-Nepal, op. cit, pp. 46-50.
173 Nepal rose from its position as eleventh-largest troop contributing country in September 2003 to being the fourth- and
fifth-largest from February 2004 until today. For the rise of
the absolute numbers from 2001 onwards see footnote 82.
174 The mandate of OHCHR-Nepal, set forth in the April 2005
agreement with the royal government, includes to "monitor
the observance of human rights and international humanitarian law, bearing in mind the climate of violence and the internal armed conflict in the country ... [and] "advise and assist the National Human Rights Commission". Agreement
Between the United Nations High Commissioner for Human
Rights and the Government of the Kingdom of Nepal Concerning the Establishment of an Office in Nepal, April 2005.
It has been extended four times, most recently in June 2009
when it was extended for one year.
175 For example, Commissioner Gauri Pradhan complained in
July 2009: "We have said that the mandate provided to
NHRC by the Interim Constitution of 2007 cannot be transferred to any other national or international organization. And
that the government should consult with NHRC before deciding on what role OHCHR will have in Nepal in the future.
 Nepal: Peace and Justice
Crisis Group Asia Report N°184, 14 January 2010
Page 25
not least the continued appointment of politically affiliated commissioners.176 While it is difficult to say who is
to blame, especially as OHCHR has made well-intentioned
if ultimately ineffective efforts to improve NHRC's capacity, the tensions have undermined the human rights
community in general.177
OHCHR's limited impact is also illustrated by the fact
that the government replied to only one of its reports
and the minimal media coverage of the most serious
findings. Part ofthe blame lies with OHCHR itself. It is
broadly perceived to have pulled its punches since 2006,
often unwilling to be forceful when it could. The delay
in publishing its December 2008 report on the Bardiya
disappearances due to government concerns earned it
substantial criticism.178 But the un-receptiveness ofthe
government is also encouraged by OHCHR's mandate,
which provides great access but does not oblige the
government to respond to reports.
The effort to establish the office and fund its work will
be wasted if there is not sufficient will to demand action
on its most serious findings. OHCHR's next report to
the Human Rights Council presents an opportunity to
call for government responses to its recommendations.
A consolidated appeal by OHCHR-Nepal's donors could
add weight to this request.
... Primarily, OHCHR should have access to areas where
there have been human rights violations, have the right to
investigate cases only in coordination with NHRC. That is
the right of the national institution; OHCHR shouldn't have
the mandate to override the mandate of NHRC. There is the
impression, and we feel this also, that OHCHR is competing
with NHRC. This shouldn't happen". "OHCHR shouldn't
compete with us", interview, The Kathmandu Post, 13 July
2009. NHRC was established in 2000 under the Human Rights
Commission Act of 1997. It was made a constitutional body
with the 2007 Interim Constitution. Its primary duty is "to
ensure the respect, protection and promotion of human rights
and their effective implementation". It is empowered to conduct inquiries and investigations into violations, make recommendations to relevant authorities, and publicise the names
of any person not following their recommendations. Interim
Constitution, Article 132.
176"NHRC: Send OHCHR packing",, 26 June
177 These tensions have been played upon by others eager to
undercut OHCHR's efforts to pressure the army and government to address abuses during the war, such as its July 2009
objection to the proposed promotion of one the commanders
who had been in charge of the Maharajgunj barracks. OHCHR-
Nepal press release, 6 July 2009. In response, OHCHR was
cast as "interventionist" ("Benetlai jarnelko chinta!", Ghatana
ra Bichar, 8 July 2009), and criticised as having "no authority to accuse someone of the stature of Maj-Gen Toran Jung
Bahadur Singh of illegalities without any proof. Letter from
Robin Paudyal, The Kathmandu Post, 10 July 2009. On
"Robin Paudyal", apparently a pseudonym used for pro-NA
propagandising, see Crisis Group Report, Nepal's Future: In
Whose Hands?, op. cit, p. 15. For a more balanced presentation of OHCHR's efforts, see "Past rights violations come to
haunt Maj Gen Toran Jung Bahadur Singh", The Himalayan
Times, 9 July 2009.
178"Strengthening human rights",, 12 November 2008.
 Nepal: Peace and Justice
Crisis Group Asia Report N°184, 14 January 2010
Page 26
Progress on justice in Nepal is intimately linked to the
aims of the peace process and the public mobilisation
that initially enabled it. Tackling justice is not only feasible but would also improve the chances of re-establishing
productive political negotiations and salvaging the credibility ofthe parties and the state. For those directly affected by the conflict, in particular victims and their
families, the pursuit of justice and reparation, as well as
the truth about the abuses suffered, is not an abstract
However, the conditions for action are poor. International
actors can do more to target their support, especially if
the UN can take a lead by making its engagement with
Nepal on the peace process and peacekeeping operations
more consistent. But there is already too acute a sense
that outsiders are pushing an agenda which lacks broad-
based national ownership and drive.
The reluctance of political leaders to take strong steps
on justice is natural, and is intimately tied to the politics
of patronage and power-broking. But influential sections
of society, such as opinion-formers, decision-makers and
the urban middle classes, show little enthusiasm to
tackle political apathy. Justice simply is not a major issue
around which powerful constituencies and organisations
rally. The lack of civil society unity and energy reflects
the dissipation of the motivation that initially underpinned the peace process as a whole. The gulf between
influential urban constituencies and those who suffered
most and want action is symptomatic ofthe biases built
into the political system and the difficulty of forging
common agendas in a polarised atmosphere.
For all the lip service, demands for justice lack teeth. The
language of rights, redress and reparation is well honed
but ritualistic. As long as it is not linked to social structures, institutions and sanctions, promises risk remaining hollow. The larger questions must be asked and answered by Nepalese society as a whole: Is it possible
and indeed preferable to forget? Is the priority to pursue
peace at any cost? Is peace without justice worth it and
is it likely to last? Such questions relate to the future as
much as the past. Simply saying "never again" will not
ensure that abuses are not repeated.
Kathmandu/Brussels, 14 January 2010
 Nepal: Peace and Justice
Crisis Group Asia Report N°184, 14 January 2010
Page 27
The boundaries and names shown and the designations
used on this map do not imply official endorsement or
acceptance by the United Nations.
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Map No. 4304    UNITED NATIONS
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Department ol Peacekeeping Operations
Cartographic Section
 Nepal: Peace and Justice
Crisis Group Asia Report N°184, 14 January 2010
Page 28
AISC Army Integration Special Committee
APF Armed Police Force
CA Constituent Assembly
COAS Chief of Army Staff
CPA Comprehensive Peace Agreement, November 2006
CPN(M) Communist Party of Nepal (Maoist), now UCPN(M)
DoD U.S. Department of Defense
DPKO UN Department of Peacekeeping Operations
EU European Union
EPSP Emergency Peace Support Project
FIR First Information Report
FMF Foreign Military Financing
ICC International Criminal Court
ICRC International Committee ofthe Red Cross
IDP Internally Displaced Person
IHL International Humanitarian Law
IMET International Military Education and Training
INSEC Informal Sector Service Centre
LPC Local Peace Committee
MJF Madhesi Janadhikar Forum (sometimes referred to in other sources as the Madhesi People's Rights
Forum, MPRF)
NA Nepalese Army
NC Nepali Congress
NHRC National Human Rights Commission
NP Nepal Police
NPTF Nepal Peace Trust Fund
OHCHR Office of the United Nations High Commissioner for Human Rights
PLA People's Liberation Army (referred to in UN documents and agreements such as the AMMAA and
December 2007 23-point agreement as "Maoist army")
RNA Royal Nepalese Army
SSR Security Sector Reform
TADO Terrorist and Disruptive Activities (Control and Punishment) Ordinance
TRC Truth and Reconciliation Commission
UCPN(M) Unified Communist Party of Nepal (Maoist)
UML Communist Party of Nepal (Unified Marxist-Leninist)
UNDP UN Development Programme
UNMIN United Nations Mission in Nepal
WGEID UN Working Group on Enforced and Involuntary Disappearances
YCL Young Communist League
 Nepal: Peace and Justice
Crisis Group Asia Report N°184, 14 January 2010
Page 29
The International Crisis Group (Crisis Group) is an independent, non-profit, non-governmental organisation, with
some 130 staff members on five continents, working
through field-based analysis and high-level advocacy to
prevent and resolve deadly conflict.
Crisis Group's approach is grounded in field research.
Teams of political analysts are located within or close by
countries at risk of outbreak, escalation or recurrence of
violent conflict. Based on information and assessments
from the field, it produces analytical reports containing
practical recommendations targeted at key international
decision-takers. Crisis Group also publishes CrisisWatch,
a twelve-page monthly bulletin, providing a succinct regular update on the state of play in all the most significant
situations of conflict or potential conflict around the world.
Crisis Group's reports and briefing papers are distributed
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the media, to highlight its crisis analyses and to generate
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The Crisis Group Board - which includes prominent figures
from the fields of politics, diplomacy, business and the
media - is directly involved in helping to bring the reports
and recommendations to the attention of senior policymakers around the world. Crisis Group is co-chaired by
the former European Commissioner for External Relations
Christopher Patten and former U.S. Ambassador Thomas
Pickering. Its President and Chief Executive since July
2009 has been Louise Arbour, former UN High Commissioner for Human Rights and Chief Prosecutor for the
International Criminal Tribunals for the former Yugoslavia
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Crisis Group's international headquarters are in Brussels,
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Crisis Group currently covers some 60 areas of actual or
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Crisis Group raises funds from governments, charitable
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Zealand Agency for International Development, Royal
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Foundation and private sector donors, providing annual
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January 2010
 Nepal: Peace and Justice
Crisis Group Asia Report N°184, 14 January 2010
Page 30
Turkmenistan after Niyazov, Asia Briefing N°60, 12 February
Central Asia's Energy Risks, Asia Report N°133, 24 May 2007
(also available in Russian)
Uzbekistan: Stagnation and Uncertainty, Asia Briefing N°67,
22 August 2007
Political Murder in Central Asia: No Time to End Uzbekistan's Isolation, Asia Briefing N°76, 13 February 2008
Kyrgyzstan: The Challenge of Judicial Reform, Asia Report
N°150, 10 April 2008 (also available in Russian)
Kyrgyzstan: A Deceptive Calm, Asia Briefing N°79, 14 August
2008 (also available in Russian)
Tajikistan: On the Road to Failure, Asia Report N°162, 12
February 2009
Women and Radicalisation in Kyrgyzstan, Asia Report N°176,
3 September 2009
CentralAsia: Islamists in Prison, Asia Briefing N°97, 15 December 2009
Central Asia: Migrants and the Economic Crisis, Asia Report
N°183, 5 January 2010
After the North Korean Nuclear Breakthrough: Compliance
or Confrontation?, Asia Briefing N°62, 30 April 2007 (also
available in Korean and Russian)
North Korea-Russia Relations: A Strained Friendship, Asia
Briefing N°71, 4 December 2007 (also available in Russian)
South Korea's Election: What to Expect from President Lee,
Asia Briefing N°73, 21 December 2007
China's Thirst for Oil, Asia Report N°153, 9 June 2008 (also
available in Chinese)
South Korea's Elections: A Shift to the Right, Asia Briefing
N°77, 30 June 2008
North Korea's Missile Launch: The Risks of Overreaction,
Asia Briefing N°91, 31 March 2009
China's Growing Role in UN Peacekeeping, Asia Report
N°166, 17 April 2009 (also available in Chinese)
North Korea's Chemical and Biological Weapons Programs,
Asia Report N° 167, 18 June 2009
North Korea's Nuclear and Missile Programs, Asia Report
N°168, 18 June 2009
North Korea: Getting Back to Talks, Asia Report N°169, 18
June 2009
China's Myanmar Dilemma, Asia Report N° 177, 14 September
Shades of Red: China's Debate over North Korea, Asia Report
N°179, 2 November 2009 (also available in Chinese)
Afghanistan's Endangered Compact, Asia Briefing N°59, 29
January 2007
Nepal's Constitutional Process, Asia Report N°128, 26 February 2007 (also available in Nepali)
Pakistan: Karachi's Madrasas and Violent Extremism, Asia
Report N°130, 29 March 2007
Discord in Pakistan's Northern Areas, Asia Report N°131, 2
April 2007
Nepal's Maoists: Purists or Pragmatists?, Asia Report N°132,
18 May 2007 (also available in Nepali)
Sri Lanka's Muslims: Caught in the Crossfire, Asia Report
N°134, 29 May 2007
Sri Lanka's Human Rights Crisis, Asia Report N°135, 14 June
Nepal's Troubled Tarai Region, Asia Report N°136, 9 July
2007 (also available in Nepali)
Elections, Democracy and Stability in Pakistan, Asia Report
N°137, 31 July 2007
Reforming Afghanistan's Police, Asia Report N°138, 30 August 2007
Nepal's Fragile Peace Process, Asia Briefing N°68, 28 September 2007 (also available in Nepali)
Pakistan: The Forgotten Conflict in Balochistan, Asia Briefing
N°69, 22 October 2007
Sri Lanka: Sinhala Nationalism and the Elusive Southern
Consensus, Asia Report N°141, 7 November 2007
Winding Back Martial Law in Pakistan, Asia Briefing N°70,
12 November 2007
Nepal: Peace Postponed, Asia Briefing N°72,  18 December
2007 (also available in Nepali)
After Bhutto's Murder: A Way Forward for Pakistan, Asia
Briefing N°74, 2 January 2008
Afghanistan: The Need for International Resolve, Asia Report
N°145, 6 February 2008
Sri Lanka's Return to War: Limiting the Damage, Asia Report
N°146, 20 February 2008
Nepal's Election and Beyond, Asia Report N°149, 2 April 2008
(also available in Nepali)
Restoring Democracy in Bangladesh, Asia Report N°151, 28
April 2008
Nepal's Election: A Peaceful Revolution?, Asia Report N°155,
3 July 2008 (also available in Nepali)
Nepal's New Political Landscape, Asia Report N°156, 3 July
2008 (also available in Nepali)
Reforming Pakistan's Police, Asia Report N° 157, 14 July 2008
Taliban Propaganda: Winning the War of Words?, Asia Report N° 158, 24 July 2008
Sri Lanka's Eastern Province: Land, Development, Conflict,
Asia Report N° 159, 15 October 2008
 Nepal: Peace and Justice
Crisis Group Asia Report N°184, 14 January 2010
Page 31
Reforming the Judiciary in Pakistan, Asia Report N°160, 16
October 2008
Bangladesh: Elections and Beyond, Asia Briefing N°84, 11
December 2008
Policing in Afghanistan: Still Searching for a Strategy, Asia
Briefing N°85, 18 December 2008
Nepal's Faltering Peace Process, Asia Report N°163, 19 February 2009 (also available in Nepali)
Afghanistan: New U.S. Administration, New Directions, Asia
Briefing N°89, 13 March 2009
Pakistan: The Militant Jihadi Challenge, Asia Report N°164,
13 March 2009
Development Assistance and Conflict in Sri Lanka: Lessons
from the Eastern Province, Asia Report N° 165, 16 April 2009
Pakistan's LDP Crisis: Challenges and Opportunities, Asia
Briefing N°93, 3 June 2009
Afghanistan's Election Challenges, Asia Report N°171, 24
June 2009
Sri   Lanka's   Judiciary:   Politicised   Courts,   Compromised
Rights, Asia Report N°172, 30 June 2009
Nepal's Future: In Whose Hands?, Asia Report N°173,  13
August 2009 (also available in Nepali)
Afghanistan: What Now for Refugees?, Asia Report N°175, 31
August 2009
Pakistan: Countering Militancy in FATA, Asia Report N°178,
21 October 2009
Afghanistan: Elections and the Crisis of Governance, Asia
Briefing N°96, 25 November 2009
Bangladesh: Getting Police Reform on Track, Asia Report N° 182,
11 December 2009
Sri Lanka: A Bitter Peace, Crisis Group Asia Briefing N°99, 11
January 2010
Jihadism in Indonesia: Poso on the Edge, Asia Report N°127,
24 January 2007 (also available in Indonesian)
Southern Thailand:  The Impact of the Coup, Asia Report
N°129, 15 March 2007 (also available in Thai)
Indonesia: How GAM Won in Aceh , Asia Briefing N°61, 22
March 2007
Indonesia: Jemaah Islamiyah's Current Status, Asia Briefing
N°63, 3 May 2007
Indonesia: Decentralisation and Local Power Struggles in
Maluku, Asia Briefing N°64, 22 May 2007
Timor-Leste's Parliamentary Elections, Asia Briefing N°65, 12
June 2007
Indonesian Papua: A Local Perspective on the Conflict, Asia
Briefing N°66, 19 July 2007 (also available in Indonesian)
Aceh: Post-Conflict Complications, Asia Report N°139, 4 October 2007 (also available in Indonesian)
Southern Thailand: The Problem with Paramilitaries, Asia
Report N° 140, 23 October 2007 (also available in Thai)
"Deradicalisation"   and  Indonesian   Prisons,   Asia   Report
N°142, 19 November 2007 (also available in Indonesian)
Timor-Leste: Security Sector Reform, Asia Report N°143, 17
January 2008 (also available in Tetum)
Indonesia: Tackling Radicalism in Poso, Asia Briefing N°75,
22 January 2008
Burma/Myanmar: After the Crackdown, Asia Report N°144,
31 January 2008
Indonesia: Jemaah Islamiyah's Publishing Industry, Asia Report N° 147, 28 February 2008 (also available in Indonesian)
Timor-Leste's Displacement Crisis, Asia Report N°148, 31
March 2008
The Philippines: Counter-insurgency vs. Counter-terrorism in
Mindanao, Asia Report N°152, 14 May 2008
Indonesia: Communal Tensions in Papua, Asia Report N°154,
16 June 2008 (also available in Indonesian)
Indonesia: Implications ofthe Ahmadiyah Decree, Asia Briefing N°78, 7 July 2008 (also available in Indonesian)
Thailand: Political Turmoil and the Southern Insurgency,
Asia Briefing N°80, 28 August 2008 (also available in Thai)
Indonesia: Pre-election Anxieties in Aceh, Asia Briefing
N°81, 9 September 2008 (also available in Indonesian)
Thailand: Calming the Political Turmoil, Asia Briefing
N°82, 22 September 2008 (also available in Thai)
Burma/Myanmar After Nargis: Time to Normalise Aid Relations, Asia Report N°161, 20 October 2008 (also available
in Chinese)
The Philippines: The Collapse of Peace in Mindanao, Asia
Briefing N°83, 23 October 2008
Local Election Disputes in Indonesia: The Case of North
Maluku, Asia Briefing N°86, 22 January 2009
Timor-Leste: No Time for Complacency, Asia Briefing
N°87, 09 February 2009
The Philippines: Running in Place in Mindanao, Asia
Briefing N°88, 16 February 2009
Indonesia: Deep Distrust in Aceh as Elections Approach,
Asia Briefing N°90, 23 March 2009
Indonesia: Radicalisation ofthe "Palembang Group", Asia
Briefing N°92, 20 May 2009
Recruiting Militants in Southern  Thailand, Asia Report
N°170, 22 June 2009 (also available in Thai)
Indonesia: The Hotel Bombings, Asia Briefing N°94, 24
July 2009 (also available in Indonesian)
Myanmar: Towards the Elections, Asia Report N°174, 20
August 2009
Indonesia: Noordin   Top's Support Base,  Asia Briefing
N°95, 27 August 2009
Handing Back Responsibility to Timor-Leste's Police, Asia
Report N°180, 3 December 2009.
Southern Thailand: Moving towards Political Solutions?,
Asia Report N°181, 8 December 2009
The Philippines: After the Maguindanao Massacre, Asia
Briefing N°98, 21 December 2009
 Nepal: Peace and Justice
Crisis Group Asia Report N°184, 14 January 2010
Page 32
Lord (Christopher) Patten
Former European Commissioner for External Relations, Governor of Hong Kong and
UK Cabinet Minister: Chancellor of Oxford
Thomas R Pickering
Former U.S. Ambassador to the UN, Russia,
India, Israel, Jordan, El Salvador and Nigeria; Vice Chairman of Hills & Company
President & CEO
Louise Arbour
Former UN High Commissioner for Human
Rights and Chief Prosecutor for the International Criminal Tribunals for the former
Yugoslavia and for Rwanda
Executive Committee
Morton Abramowitz
Former U.S. Assistant Secretary of State and
Ambassador to Turkey
Emma Bonino*
Former Italian Minister of International
Trade and European Affairs and European
Commissioner for Humanitarian Aid
Cheryl Carolus
Former South African High Commissioner
to the UK and Secretary General ofthe ANC
Maria Livanos Cattaui
Member ofthe Board, Petroplus,
Yoichi Funabashi
Editor-in-Chief & Columnist, The Asahi
Shimbun, Japan
Frank Giustra
Chairman, Endeavour Financial, Canada
Stephen Solarz
Former U.S. Congressman
George Soros
Chairman, Open Society Institute
Par Stenback
Former Foreign Minister of Finland
*Vice Chair
Other Board Members
Adnan Abu-Odeh
Former Political Adviser to King Abdullah
II and to King Hussein, and Jordan Permanent Representative to the UN
Kenneth Adelman
Former U.S. Ambassador and Director of
the Arms Control and Disarmament Agency
HRH Prince Turki al-Faisal
Former Ambassador ofthe Kingdom of
Saudi Arabia to the U.S.
Kofi Annan
Former Secretary-General ofthe United
Nations: Nobel Peace Prize (2001)
Richard Armitage
Former U.S. Deputy Secretary of State
Shlomo Ben-Ami
Former Foreign Minister of Israel
Lakhdar Brahimi
Former Special Adviser to the UN Secretary-
General and Foreign Minister of Algeria
Zbigniew Brzezinski
Former U.S. National Security Advisor to
the President
Kim Campbell
Former Prime Minister of Canada
Naresh Chandra
Former Indian Cabinet Secretary and
Ambassador to the U.S.
Joaquim Alberto Chissano
Former President of Mozambique
Wesley Clark
Former NATO Supreme Allied Commander,
Pat Cox
Former President ofthe European Parliament
Uffe Ellemann-Jensen
Former Foreign Minister of Denmark
Gareth Evans
President Emeritus of Crisis Group: Former
Foreign Affairs Minister of Australia
Mark Eyskens
Former Prime Minister of Belgium
Joschka Fischer
Former Foreign Minister of Germany
Carla Hills
Former U.S. Secretary of Housing and U.S.
Trade Representative
Lena Hjelm-Walien
Former Deputy Prime Minister and Foreign
Affairs Minister of Sweden
Swanee Hunt
Former U.S. Ambassador to Austria; Chair,
The Initiative for Inclusive Security and
President, Hunt Alternatives Fund
Anwar Ibrahim
Former Deputy Prime Minister of Malaysia
Mo Ibrahim
Founder and Chair, Mo Ibrahim
Foundation; Founder, Celtel International
Asma Jahangir
UN Special Rapporteur on the Freedom of
Religion or Belief; Chairperson, Human
Rights Commission of Pakistan
James V. Kimsey
Founder and Chairman Emeritus of
America Online, Inc. (AOL)
Wim Kok
Former Prime Minister ofthe Netherlands
Aleksander Kwasniewski
Former President of Poland
Ricardo Lagos
Former President of Chile
Joanne Leedom-Ackerman
Former International Secretary of International
PEN; Novelist and journalist, U.S.
Jessica Tuchman Mathews
President, Carnegie Endowment for
International Peace, U.S.
Moises Nairn
Former Venezuelan Minister of Trade and
Industry; Editor in Chief, Foreign Policy
Ayo Obe
Chair, Board of Trustees, Goree Institute,
Christine Ockrent
CEO, French TV and Radio World Services
Victor Pinchuk
Founder ofEastOne and Victor Pinchuk
Fidel V. Ramos
Former President of Philippines
Guler Sabanci
Chairperson, Sabanci Holding, Turkey
Ghassan Salame
Former Lebanese Minister of Culture;
Professor, Sciences Po, Paris
Thorvald Stoltenberg
Former Foreign Minister of Norway
Ernesto Zedillo
Former President of Mexico; Director, Yale
Center for the Study of Globalization
 Nepal: Peace and Justice
Crisis Group Asia Report N°184, 14 January 2010
Page 33
Crisis Group's President's Council is a distinguished group of major individual and corporate donors providing
essential support, time and expertise to Crisis Group in delivering its core mission.
BHP Billiton
Canaccord Adams Limited
Fares I. Fares
Mala Gaonkar
Alan Griffiths
Iara Lee & George Gund III
Frank Holmes
Frederick Iseman
George Landegger
Ford Nicholson
StatoilHydro ASA
Ian Telfer
Guy Ullens de Schooten
Neil Woodyer
Crisis Group's International Advisory Council comprises significant individual and corporate donors who contribute
their advice and experience to Crisis Group on a regular basis.
Rita E. Hauser
Elliott Kulick
Hamza al Kholi
Anglo American PLC
APCO Worldwide Inc.
Ed Bachrach
Stanley Bergman & Edward
Harry Bookey & Pamela
David Brown
John Chapman Chester
Neil & Sandy DeFeo
John Ehara
Equinox Partners
Seth Ginns
Joseph Hotung
H.J. Keilman
George Kellner
Amed Khan
Zelmira Koch
Jean Manas
Marco Marazzi
McKinsey & Company
Najib Mikati
Harriet Mouchly-Weiss
Yves Oltramare
Donald Pels and Wendy
Anna Luisa Ponti & Geoffrey Hoguet
Michael Riordan
Kevin Torudag
Tilleke & Gibbins
Yapi Merkezi Construction
and Industry Inc.
Crisis Group's Senior Advisers are former Board Members who maintain an association with Crisis Group, and whose advice
and support are called on from time to time (to the extent consistent with any other office they may be holding at the time).
Martti Ahtisaari
(Chairman Emeritus)
George Mitchell
(Chairman Emeritus)
Hushang Ansary
Ersin Arioglu
Oscar Arias
Diego Arria
Zainab Bangura
Christoph Bertram
Alan Blinken
Jorge Castaneda
Eugene Chien
Victor Chu
Mong Joon Chung
Gianfranco Dell'Alba
Jacques Delors
Alain Destexhe
Mou-Shih Ding
Gemot Erler
Marika Fahlen
Stanley Fischer
Malcolm Fraser
I.K Gujral
Max Jakobson
Todung Mulya Lubis
Allan J. MacEachen
Graca Machel
Barbara McDougall
Matthew McHugh
Nobuo Matsunaga
Miklos Nemeth
Timothy Ong
Olara Otunnu
Shimon Peres
Surin Pitsuwan
Cyril Ramaphosa
George Robertson
Michel Rocard
Volker Riihe
Mohamed Sahnoun
Salim A. Salim
Douglas Schoen
Christian Schwarz-
Michael Sohlman
William O. Taylor
Leo Tindemans
Ed van Thijn
Simone Veil
Shirley Williams
Grigory Yavlinski
Uta Zapf


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