US embassy cable - 04KATHMANDU97

UNCLAS SECTION 01 OF 04 KATHMANDU 000097 
 
SIPDIS 
 
SENSITIVE 
 
STATE FOR SA/INS 
LONDON FOR POL - GURNEY 
NSC FOR MILLARD 
 
E.O. 12958: N/A 
TAGS: PHUM, MOPS, NP, Maoist Insurgency 
SUBJECT: NEPAL:  DETENTIONS AND "DISAPPEARANCES" SINCE THE 
END OF THE CEASEFIRE 
 
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SUMMARY 
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1.  (SBU)  Summary:  Since the end of the ceasefire between 
the Government of Nepal (GON) and Maoist insurgents on August 
27, it has grown increasingly difficult to obtain information 
on detainees held as suspected Maoists under special 
anti-terrorism legislation.  Many of these suspects are held 
incommunicado, unable to contact family members, legal 
counsel, or human rights organizations.  A local human rights 
NGO estimates that at least 165 individuals have 
"disappeared" into GON custody in the four months since the 
end of the ceasefire.  Part of the information black-out may 
be attributed to bureaucratic ineptitude; there appears to be 
no central registry of detainees held by either the Royal 
Nepal Army or the police.  At the same time, part of the 
obfuscation appears to be deliberate by members of the 
security forces fearful of being ordered to release prisoners 
whose possible links with the insurgents have not been fully 
investigated.  Growing pressure by the international 
community and domestic human rights organizations may help 
force greater transparency on the security forces.  End 
summary. 
 
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CONSENSUS: WORSE THAN THE EMERGENCY 
------------------------------------ 
 
2.  (SBU)  Since the end of the ceasefire between the 
Government of Nepal (GON) and Maoist insurgents on August 27, 
GON security forces have detained an unknown number of 
individuals as suspected Maoists.  Many of these suspects are 
arrested by plain-clothes members of the security forces 
(under special anti-terrorist legislation passed in 2002, any 
member of the three branches of security forces--the Royal 
Nepal Army (RNA), the Armed Police Force, and the Nepal 
National Police--may arrest a suspect without a warrant) and 
are held incommunicado at undisclosed locations.  In December 
Amnesty International put the figure of detainees believed to 
have thus "disappeared" into GON custody at 110.  As of 
January 12, INSEC, Nepal's largest human rights NGO, 
estimated the number at 165. 
 
3.  (SBU)  While human rights organizations received some 
similar complaints during the eight-month state of emergency 
(November 26, 2001- August 28, 2002), when members of the 
security forces were given even greater latitude to arrest 
and detain suspected Maoists, the consensus among most human 
rights activists is that the situation has worsened 
significantly in several respects.  First, although no 
statistics are available, anecdotal evidence suggests that 
the number of house-to-house searches, reportedly often 
conducted at night by men in plain clothes, has increased 
dramatically.  (Note:  Some expatriates in Kathmandu have 
reported having their homes subjected to such searches.  End 
note.)  Individuals who contact human rights organizations to 
complain that family members are taken away in the course of 
such searches are often unable to identify the plain-clothes 
arresting authorities--and thus have no idea where to begin 
their search. 
 
4. (SBU)  Second, in a departure from past practice, the 
Ministries of Defense and Home now regularly withhold 
information on both the number of detainees held in GON 
custody and their identities.  In contrast, during the state 
of emergency, despite the restrictions on press and other 
civil liberties, the GON periodically provided statistics on 
the total number of detainees held in police custody. 
Moreover, before the break in the ceasefire, the arresting 
authorities would usually file a letter seeking the right to 
hold someone in preventive detention with the Chief District 
Officer (CDO). Although information on the whereabouts of 
individual detainees often could be difficult to obtain, 
lawyers and family members reported some sporadic success in 
locating and sometimes even visiting prisoners.  Since the 
end of the ceasefire, however, there has been a virtual 
information blackout on the numbers of detainees held. 
Lawyers and human rights activists report increased--almost 
uniform--difficulty in acquiring information on a detainee's 
whereabouts or even confirmation that he or she is in GON 
custody.  The security forces' secretiveness helps fuel 
speculation that the number of detentions has skyrocketed and 
that the treatment of detainees has deteriorated. 
 
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HABEAS CORPUS ONLY RECOURSE 
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5.  (U)  Maoist suspects are usually held under the Terrorism 
and Anti-Destructive Activities Act (TADA), which was passed 
by Parliament in April 2002.  Under TADA, suspects may be 
held in preventive detention for up to 90 days without 
charge.  The arresting authorities, whether Army, Armed 
police, or civil police, are required by law to notify the 
the Chief District Officer (CDO), the top-ranking civil 
servant in a particular district, of the detention.  In 
reality, however, according to officials at the Ministry of 
Law and Justice and the Attorney General's Office, this 
requirement is rarely observed.  Neither the CDO or the 
detaining authorities are required by law to inform the 
family of the detainee's whereabouts or to allow visits by 
the family or counsel.  At the end of 90 days, the arresting 
authorities are supposed either to file a case against the 
suspect or release him.  In reality, however, according to 
human rights sources and GON contacts, suspects are often 
held without charge well past the 90-day limit.  Moreover, 
while TADA permits the RNA to arrest suspects, it does not 
explicitly authorize the Army to hold them in detention for 
extended periods.  After the stipulated 24 hours, the RNA is 
supposed to turn over suspects to the civilian authorities. 
Again, this restriction is rarely observed. 
 
6.  (SBU)  The only legal recourse available to family 
members or friends who suspect someone is being detained 
under TADA is to file a writ of habeas corpus with the 
Supreme Court.  According to the Registrar at the Supreme 
Court, 200 habeas corpus cases were filed in 2002.  In 2003, 
552 habeas corpus cases were filed--a jump all the more 
noteworthy because it coincided in part with the eight-month 
ceasefire when, presumably, fewer people were being arrested. 
 In almost all cases, according to Supreme Court Spokesman 
and Registrar Ram Krishna Timilsena, the Court issues a "show 
cause" notice to relevant authorities, such as the Home 
Ministry, Defense Ministry, Police Headquarters, Armed Police 
Headquarters, and Army Headquarters, asking them to confirm 
or deny the detention of the subject of the habeas corpus 
petition.  The agencies are required to respond within 15 
days.  According to Mandira Sharma, Executive Director of the 
Advocacy Forum, an NGO that provides legal assistance to 
detainees, in only "two or three cases" over the past year 
have arresting authorities responded positively to a show 
cause order, an estimate confirmed by Kedar Prasad Poudel, 
Secretary of the National Human Rights Commission (NHRC), and 
 
SIPDIS 
the Supreme Court Registrar.  In most cases, agencies of the 
security forces either reply in the negative or do not reply 
at all. "The RNA especially usually keeps quiet," Poudel 
said, since technically the Army is supposed to turn over 
detainees to civilian authorities within 24 hours of their 
arrest.  "It is difficult to deal with the military," 
Timilsena commented, because of its reluctance to acknowledge 
holding prisoners in detention. 
 
7.  (SBU)  Arresting authorities will sometimes deny that an 
individual is in custody even after being presented with 
evidence of the detention.  Sharma of the Advocacy Forum 
recounted a case in which members of her NGO had encountered 
a juvenile being held at the Hanuman Dhoka police station in 
Kathmandu while visiting another detainee.  The juvenile told 
the NGO representatives that he had been in detention for 
about three months.  The NGO informed the juvenile's father 
and assisted him in filing a writ of habeas corpus.  The 
police responded to the show cause order by denying having 
the youth in custody.  On a subsequent visit to detainees at 
the Bouddha police station, Advocacy Forum representatives 
encountered the juvenile again, this time taking pictures of 
him to prove his presence in police custody.  Although the 
Supreme Court ordered the boy's release on January 2, 
authorities at Bouddha claimed that he was not in detention 
at the facility.  Sharma said she has since learned the youth 
has been transferred yet again to a third police station. 
 
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INSTITUTIONAL PROBLEMS 
----------------------- 
 
8.  (SBU) In the absence of confirmation by any GON authority 
that an individual is being held in detention, virtually all 
of the nearly 200 Nepalis who have been arrested since the 
end of the ceasefire could be classified as "disappeared." 
Part of the problem in verifying the whereabouts of detainees 
may be attributed to bureaucratic ineptitude.  The GON 
appears to maintain no central registry of detainees against 
which a habeas corpus petition may be cross-referenced. 
Instead, according to RNA and police authorities, the request 
for information must be sent out to the various brigades, 
battalions, police headquarters and CDO offices across the 
country.  At the same time, the NHRC, which maintains a list 
of all "disappearances" reported to it since 2000, has no way 
of winnowing out from its database people who subsequently 
resurface.  (Note:  The GON released an estimated 1200 Maoist 
suspects during the 2003 ceasefire.  The NHRC and other human 
rights NGOs readily admit that they have not checked the 
names of those released against the list of "disappeared." 
End note.)  In an effort to weed out from its database those 
who have since turned up, in December the NHRC published a 
list of 808 individuals--663 believed to be held in GON 
custody and the remaining 145 taken by the Maoists--reported 
missing since 2000, and appealed to the public to share any 
updates.  (In a cursory overview, PolOff noted the names of 
five individuals who have since been released.)  When asked 
if the effort has proven fruitful thus far, Poudel said that 
a few people had come forward to verify their releases, but 
that many more had complained that their relatives' 
disappearance had not been noted in the original list. 
 
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INSTITUTIONAL RESISTANCE 
------------------------- 
 
9.  (SBU) While bureaucratic unwieldiness may account for 
part of the problem, institutional resistance to transparency 
surely accounts for a large share as well.  The security 
forces justify the need for holding large numbers of 
detainees incommunicado on the potential importance of the 
information detainees might yield.  A mere 24 hours is not 
sufficient time in which to gain the intelligence needed from 
detainees, the RNA argues, while the police maintain that 90 
days does not allow adequate time to prepare a solid court 
case against a suspect.  According to this logic, the 
preventive-detention clock does not start ticking until the 
arresting authority acknowledges the detention.  One human 
rights activist, who successfully pursued a habeas corpus 
case of a couple who had been in detention for more than 
three months, reported that police, in responding to the 
show-cause order, claimed that the couple had been in 
detention for only one day.  Senior military officers with 
whom we have discussed this problem argue that if the names 
of those detained are publicized, the Maoist leaders about 
whom the detainees may have information will be alerted and 
move successfully to evade capture.  For some in the security 
forces, acknowledging the presence of a detainee is the first 
step in the detainee's eventual release.  The GON's 
liberality in releasing Maoist suspects--including five 
Central Committee members--during the last ceasefire 
reportedly dismayed and demoralized the security forces, 
especially after a Maoist hit squad assassinated an RNA 
officer who had been involved in questioning many of those 
released after the ceasefire broke.  Finally, the RNA's lack 
of legal authority to hold suspects for extended periods 
presents special problems for the Army in acknowledging the 
presence of detainees or allowing access to detainees.  The 
ICRC, for example, which enjoys good access to detainees in 
police custody or in prison, has only limited access to 
detainees in RNA custody. 
 
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INCREASING PRESSURE 
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10.  (SBU)  We do not doubt that the GON's improved 
effectiveness in using intelligence gained from detained 
Maoists has been at least partly responsible for the security 
forces' progress in thwarting attacks and capturing Maoist 
leaders and supporters.  It strains credulity, however, to 
assert that the several hundred suspects now being held 
incommunicado in various facilities across Nepal are of such 
key importance to the Maoist movement that acknowledging 
their detention would jeopardize the GON's counterinsurgency 
effort.  The apparent absence of oversight of such arrests by 
any civilian authority makes the phenomenon even more 
worrisome.  While it is unclear whether the security forces 
are actually arresting more people now than during the state 
of emergency, their secretiveness and general 
unresponsiveness to inquiries have helped focus international 
and domestic attention on the issue.  The National Human 
Rights Commission, along with a number of domestic NGOs, has 
become more active in publicizing the situation and in 
attempting to find redress.  As pressure from the 
international community mounts, the GON may find it 
increasingly difficult to rebuff the steady stream of 
inquiries.  We will continue to press the GON to develop a 
more reliable, more credible institutional mechanism with 
which to respond to the growing number of queries. 
BOGGS