US embassy cable - 04KATHMANDU500

C O N F I D E N T I A L SECTION 01 OF 05 KATHMANDU 000500 
 
SIPDIS 
 
STATE FOR SA/INS 
LONDON FOR POL - GURNEY 
NSC FOR MILLARD 
 
E.O. 12958: DECL: 03/15/2014 
TAGS: PHUM, MOPS, PGOV, NP, Human Rights 
SUBJECT: NEPAL:  HUMAN RIGHTS IN THE CONTEXT OF THE 
INSURGENCY 
 
REF: A. KATHMANDU 0463 
 
     B. KATHMANDU 0141 
     C. KATHMANDU 0432 
     D. KATHMANDU 0458 
 
Classified By: AMB. MICHAEL E. MALINOWSKI.  REASON:  1.5 (B,D). 
 
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SUMMARY 
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1.  (C) The Maoist insurgency poses special challenges for 
the Government of Nepal's (GON) efforts to improve its human 
rights performance.  At the same time, our ability to make 
objective, fact-based assessments of the GON's performance is 
hindered by a number of complicating factors, including the 
inaccessibility of many sites of purported violations, the 
absence of impartial observers in civil society or the media 
to document allegations, an institutional culture of 
non-transparency, the lack of GON capacity to conduct 
adequate investigations, and a weak judicial system.  The 
painful scrutiny donors and members of civil society have 
directed at the GON's performance may force improved 
implementation of long-standing--and long-ignored--human 
rights commitments.  While the end of the ceasefire has 
brought a number of troubling allegations against the 
security forces, it has also brought some encouraging 
indications of an evolving institutional responsiveness to 
the need for greater accountability.  Although there 
obviously is substantial room for improvement, we believe 
that as long as we continue to observe some signs of 
progress, we should remain engaged with the GON and the 
security forces as a way to ensure more sustained 
improvement.  Our human rights messages must be reinforced 
through continued U.S.-funded training in civil affairs and 
human rights for the military, as well as new U.S. support to 
strengthen Nepal's legal institutions and to build capacity 
within the NHRC.  There is no indication that the Maoists are 
doing anything to improve their own human rights record or to 
mitigate the debilitating effects that their operations and 
campaign of terror have on average Nepalis.  End summary. 
 
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GREATER SCRUTINY, MORE REPORTS OF VIOLATIONS 
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2.  (SBU)  Over the past few years of the Maoist insurgency, 
Nepali security forces in general and the Royal Nepal Army 
(RNA) in particular have faced growing international and 
domestic criticism for human rights violations.  The chorus 
of complaints has grown in volume since the Maoists 
unilaterally ended a seven-month ceasefire in August and 
resumed hostilities against the Government of Nepal (GON). 
For independent observers, it is often difficult to determine 
the validity of many of the allegations against the security 
forces for a number of reasons, including the inaccessibility 
of many sites of purported violations, the absence of 
impartial and competent institutions in civil society or the 
media to document allegations, and a widely accepted culture 
of non-transparency.  The current emotionally charged, 
politically polarized climate, which fosters a popular 
predisposition to believe the worst about the GON, further 
clouds the often incomplete picture we receive.  Nepal's 
free--and often irresponsible press--also complicates the 
problem.  For many of the same reasons, it is equally 
difficult to judge whether more violations actually are 
taking place, or whether civil society and the media (and 
possibly the Maoists themselves) simply have become more 
adept at publicizing such incidents. 
 
3.  (SBU)  These complications aside, it remains obvious that 
the number of casualties has escalated dramatically since the 
RNA entered the fight on November 26, 2001.  By the second 
week of November 2001, for example, fewer than two thousand 
people had been killed in more than five and a half years of 
the insurgency.  After just one year of RNA involvement, the 
toll had more than tripled.  Current statistics indicate that 
eighty percent of all people killed in all the eight years of 
conflict have died in just the last 28 months since the RNA's 
mobilization.  Of the 8800 Nepalis who have died since 
February 1996, more than 65 percent were identified as 
suspected Maoists.  The casualty tolls for civilians and 
police (including Armed Police Force) are at near parity 
(about 15 percent each).  The RNA accounts for less than 5 
percent of the casualties. 
 
4.  (C)  The RNA, which is leading the counterinsurgency 
effort as head of the newly established Unified Command, has 
found itself catching most of the criticism for violations. 
Some of the scrutiny may be politically motivated; the Army 
is closely associated with the King, whom party leaders have 
accused of overstepping his constitutional boundaries. 
Moreover, given the general absence of civilian GON 
initiatives to address the insurgency, e.g., restoring 
disrupted government services in Maoist-affected areas, RNA 
efforts to fill the gaps have earned it often unjustified 
criticism for trying to "militarize" the government or 
otherwise usurp civilian functions.  The RNA's historic 
association with the Palace has, moreover, helped foster a 
culture of non-transparency and aloofness within the 
institution.  Unused to criticism or public scrutiny, the RNA 
never before found it necessary to cultivate good relations 
with civil society, the media or with political parties.  Its 
officer corps, their loyalty to each other and the King 
reinforced by interlocking caste and family relationships, 
may lack a clear understanding of the harsh conditions and 
extreme poverty under which most Nepalis, including members 
of the Maoist movement, must live. 
 
5.  (C)  The RNA faces indisputable challenges in attempting 
to address the insurgency.  RNA advocates note that the Army 
was thrust unprepared overnight into the middle of a violent 
insurgency when the Maoists attacked soldiers in their 
barracks after breaking the first ceasefire in 2001.  (Other 
observers contend that, after five and a half years of 
steadily worsening violence, the RNA should have anticipated 
being deployed.  It was successive democratically elected 
governments, however, that steadfastly refused to deploy the 
RNA in a counter-insurgency role for fear of somehow 
strengthening the Army and the Palace.)  Before late 2001, 
the RNA was a small, parade-ground military with some 
experience in international peacekeeping, untrained, 
unstaffed, and unequipped to mount a full-scale 
counterinsurgency effort.  It now must face a foe who employs 
savage, take-no-prisoner tactics and who is virtually 
indistinguishable from the rest of the population.  The 
battle takes place across some of the most rugged, 
uncompromising terrain in the world, posing special 
difficulties for the RNA, with its minimal air assets, in 
providing adequate security.   Finally, the RNA has 
experienced unprecedented growth over a short period of time, 
swelling its enlisted ranks by more than 40 percent over the 
past 28 months since its deployment.  Many of the new 
recruits have had inadequate training in a whole array of 
military skills and lore, including the Law of Armed Conflict 
and human rights.  Officers and non-commissioned officers, 
moreover, are not being trained fast enough to provide 
necessary command and control. 
 
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A WEAK INSTITUTIONAL ENVIRONMENT 
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6.  (C)  While many critics accuse the security forces of 
deficiencies in applying human rights standards, the same 
charges may be leveled against the GON, the National Human 
Rights Commission (NHRC), the judiciary, and some elements of 
civil society.  Many of these problems reflect long-standing 
institutional weaknesses unrelated to (but certainly 
exacerbated by) the insurgency.  For example, while the GON 
has signed a number of international human rights agreements, 
such as the International Covenant on Civil and Political 
Rights and the Convention on the Elimination of All Forms of 
Discrimination Against Women (CEDAW), efforts to implement 
those agreements remain inconsistent and incomplete. 
Although the GON signed CEDAW 13 years ago, a local NGO has 
identified more than 100 different pieces of existing 
legislation that discriminate against women.  When the NHRC 
was formed in 2000, party leaders saw it as a vehicle to 
dispense political patronage, rather than to monitor human 
rights, and duly appointed a quota of members on the basis of 
partisan loyalty, rather than professional competence.  The 
result, while predictable, has been especially damaging to 
the development of national capacity in this important field. 
 Commission members' personal and partisan enmities routinely 
subverted constructive cooperation and inappropriately 
politicized investigations into cases.  Unfortunately, the 
bitter partisanship that tainted NHRC operations was 
replicated in a plethora of human rights NGOs aligned with 
particular parties, further politicizing monitoring and 
reporting.  Inaccurate and irresponsible journalism, in which 
rumor is often misrepresented as fact, compounds the problem. 
 
7.  (C)  The right to a fair trial is undermined by an 
inefficient judicial system.  In 2003 district courts in 
Nepal reported a combined backlog of more than 32,000 cases, 
while the Supreme Court's backlog totaled more than 16,000. 
Of the hundreds of individuals detained as suspected Maoists 
under special anti-terror legislation, only 24 have been 
brought to trial. Emboffs' queries to three different GON 
agencies (the Attorney General's Office, the Supreme Court, 
and the Ministry of Law and Justice) about the specific 
rights afforded to detainees under Nepali law elicited three 
separate and conflicting responses, highlighting the lack of 
clear guidelines and enforcement mechanisms in the domestic 
legal framework. 
 
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GROUND REALITIES HARD TO UNEARTH 
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8.  (C) In many of the areas where violations are alleged to 
have taken place, there are no independent sources, whether 
from the press, civil society, or even civilian government, 
to substantiate reports. In this environment, separating fact 
from rumor, speculation, and politically motivated 
misrepresentations often can be nearly impossible. 
Nonetheless, the Ministry of Defense's own press releases, 
which convey the daily "killed in action" statistics, raise 
some questions.  On a typical day, the list reports a number 
of incidents nationwide, the majority of which entail one or 
two "Maoists" being killed in disparate regions across the 
country, often with no accompanying report of an engagement, 
of security forces killed or wounded, or of other Maoists 
surrendering, being taken prisoner, or being wounded in the 
same place.  For example, MOD information from February 6 
reports 1 Maoist killed in Panchthar District in the 
northeast of the country; 1 Maoist killed in Banke District 
in the far southwest of the country; 1 Maoist killed in 
Dhading District (near Kathmandu); 1 Maoist killed in Kaski 
District in the northern-central part of the country; 1 
Maoist killed in Udaypur District in the southeast; 2 Maoists 
killed in Bardiya District in the southwest; and 7 Maoists 
killed in Jumla District in the northwest. Information 
regarding the circumstances under which these people were 
apprehended and killed and/or how it was determined they were 
Maoists is generally not forthcoming. In this situation, we 
are unlikely ever to know what percentage of the 5,862 
"Maoists" reported killed in the conflict were actual 
hard-core members of the movement. 
 
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SOME CASES UNDER INVESTIGATION 
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9.  (C)  Some recent allegations from credible sources 
suggest that the deaths of at least some of the "Maoists" 
reported killed in MOD dispatches can be attributed to a lack 
of adequate discipline and training among new recruits, 
flimsy intelligence, or more rarely, personal vendettas. 
Poor training certainly contributed to the December 12 death 
of 20-year-old Suresh Baral in Pokhara, who was killed when 
civilian police manning checkpoints at opposite ends of a 
street mistook one another for Maoists and began shooting at 
each other.  The GON has promised compensation to the Baral 
family.  Similarly, on February 17 RNA soldiers shot and 
killed Biraj Gurung, Sunil Gurung, and Tirki Praja as they 
were collecting funds to support a local temple in Kabilash, 
Chitwan.  (Note:  This practice is common around the time of 
the Shivaratri Festival, which was being celebrated at the 
time.  End note.)  The RNA later acknowledged the three were 
mistaken for Maoist extortionists and has promised 
compensation to the victims' families. 
 
10.  (C)  Hamfisted "intelligence" gathering techniques may 
account for other cases of mistaken identity.  Captured 
Maoists are sometimes taken to checkpoints and village 
bazaars to point out their colleagues to the security forces; 
fear of retaliation creates an obvious incentive for these 
"informants" to tag innocent villagers as Maoists.  Other 
methods reportedly used by the security forces to identify 
Maoists likely also contributes to the death toll.  A Nepali 
citizen who works for a UN agency told us that during a 
recent visit to his village in Gulmi District relatives told 
him that members of the security forces disguised as Maoists 
come into villages and strike up conversations with local 
residents in an effort to identify Maoist sympathizers.  The 
hapless villagers, according to this source, seeing an armed 
stranger in Maoist garb, will generally feign Maoist 
sympathy, whereupon they are apprehended.  Some of these 
"Maoists" are subsequently "shot while trying to escape," the 
source suggested.  Poloff has heard other such allegations 
from local NGO and media sources.  The NHRC currently is 
investigating reports of a similar incident in Bara District 
where Kishori Patel Kurmi and Suresh Raut Patel were shot and 
killed by the RNA as suspected Maoists on February 12. 
According to one of the NHRC field investigators, villagers 
claim that armed RNA soldiers in plainclothes approached the 
two men, who had no known Maoist affiliation.  The two men, 
alarmed at the sight of unfamiliar plainclothes men with 
guns, ran away, whereupon the soldiers shot and killed them. 
 
11.  (SBU)  A few allegations, if true, can be attributed 
neither to poor training or bad intelligence.  Instead, the 
lack of institutional response to earlier reports of 
violations may contribute to a perception of impunity that 
encourages criminal behavior in some quarters.  A local NGO 
claimed that RNA soldiers summarily executed 17-year-old 
Subhadra Chaulagain and 18-year-old Reena Rasaili after 
dragging them out of their homes in Pokhari Chauri, Kavre 
District, about midnight on February 13.  According to the 
NGO's report, Chaulagain offered to surrender before she was 
taken outside and shot several times, while Rasaili was kept 
in a cowshed with about five or six soldiers for five hours. 
Her naked body, with three gunshot wounds, was found by her 
family a short distance from the cowshed early the following 
morning.  On February 17 members of the security forces went 
to the home of Rasaili's aunt, who had been visiting the 
night Reena was killed and witnessed her being taken away by 
the soldiers, looking for her.  Finding the aunt away from 
home, the soldiers reportedly took her 14-year-old daughter, 
Maina Sunwar, into custody, telling her father the girl would 
be released when her mother turned herself in to "Lamidanda 
Army Camp."  (Note: Lamidanda is near the Panchkhal 
Peacekeeping Training Center in Kavre District.  End note.) 
The mother subsequently reported to Panchkhal only to be told 
that her daughter was not there.  Local residents reportedly 
told the mother, however, that they saw two girls being taken 
in a truck to the base.  RNA Spokesman Colonel Dipak Gurung 
acknowledged the RNA killed the two girls, whom he described 
as Maoists, but said it was investigating the allegations of 
rape and abduction.  (Note:  The Ambassador hand delivered a 
letter to Chief of Army Staff General Pyar Jung Thapa on 
March 3 asking for more information on the cases. To date, no 
reply has been received.  End note.) 
 
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EVOLVING ATTITUDE 
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12.  (C)  In our continued dialogue with RNA officers, the 
Embassy regularly raises the importance of inculcating 
respect for human rights, and is just as regularly assured 
that all efforts are being undertaken to do so.  Since the 
establishment of the RNA's human rights cell in July 2002, we 
can identify a slowly evolving awareness of the need to 
investigate, prosecute and even convict abusers.  For 
example, the first case the Embassy raised with the human 
rights cell--the March 15, 2001 killing of Kancha Dangol in 
Kathmandu--resulted in no more than a three-month sentence 
for two low-ranking enlisted personnel for dereliction of 
duty.  (This despite photographic evidence showing the corpse 
of Dangol, whom the RNA maintained was "shot while trying to 
escape," with a gun shot wound in his temple.)  A captain 
accused of rape in a controversial April 2001 incident was 
held back from promotion for a year after the victims, 
probably under pressure from the captain, who remained at his 
post (near the girls' home) during the course of the 
investigation, withdrew charges.  Eventually, however, the 
RNA's human rights cell won a few convictions, such as the 
seven-year sentence for a soldier convicted of an 
extra-judicial killing in January 2003 (Ref B).  More 
recently, two cases the Embassy has brought before the 
cell--the December 6 killings of three civilians in Khotang 
District and the December 15 killing of a 15-year-old girl in 
Kavre District (Ref B) have resulted in courts-martial.  In a 
landmark decision, on March 11 the RNA announced it would 
court-martial a major--the highest-ranking RNA officer yet to 
face charges for gross violations of human rights--implicated 
in the alleged extra-judicial killings of 19 suspected 
Maoists in Doramba, Ramechhap District (Ref A). 
 
13.  (C)  Greater scrutiny of Nepal's human rights 
performance by both the international community and domestic 
audiences is making the GON realize it must improve its ad 
hoc implementation of human rights standards and agreements. 
Faced with a possible UN resolution on its human rights 
record, the GON plans soon to announce a detailed commitment 
to fulfil its human rights obligations--including 
instructions to the security forces to respect the right to 
habeas corpus (Ref C).  (Note:  Human rights groups and legal 
authorities assert that the security forces routinely ignore 
writs of habeas corpus.  Amnesty International lists 173 
individuals as having "disappeared" in GON custody since the 
end of the ceasefire in August.  End note.)  Some European 
diplomats here have suggested that fears among the military 
leadership that reports of RNA violations might damage the 
Army's competitiveness for future UN Peacekeeping missions 
may also be a factor in the RNA's evolving attitude toward 
human rights. 
 
14.  (C)  While pressure and scrutiny from the international 
community and Nepali civil society may be helping change GON 
attitudes and practices toward human rights, the Maoists, 
regrettably, have demonstrated no such improvement.  Instead, 
they continue to murder, torture, rob and intimidate, and 
have apparently adopted a fresh outrage--the abduction and 
conscription of children--as a new policy (Ref D).  Our GON 
interlocutors complain that their critics in the media, civil 
society, INGOs and certain European donors focus on 
allegations of GON abuses while barely commenting on the 
Maoists' well-documented depredations. 
 
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COMMENT 
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15.  (C)  That the security forces face formidable challenges 
in trying to quell the insurgency is undeniable.  That the 
Maoists are ruthless and vicious foes is undeniable. That 
Nepal lacks the legal and institutional framework to ensure 
more systematic implementation of human rights standards is 
undeniable.  But that the security forces can and must do 
better to inculcate respect for human rights throughout their 
ranks is also undeniable.  While we believe that U.S. 
engagement with the military has helped increase this 
awareness, more must be done.  While we believe abuses are 
the exception, rather than the rule, heavy-handed tactics 
obviously alienate and intimidate the general public, rather 
than win their hearts and minds.  We are encouraged that the 
GON and the security forces are beginning to demonstrate 
accountability at higher levels, as in the Ramechhap 
incident.  We will continue to emphasize the importance of 
human rights in our engagement with the civilian GON, the 
Palace, and the security forces.  At the same time, these 
messages must be reinforced through continued U.S.-funded 
training in civil affairs and human rights for the military, 
as well as new U.S. support to strengthen Nepal's legal 
institutions and to build capacity within the NHRC.  We also 
need to focus more international attention on the terrorist 
tactics and their widespread policy of human rights abuse. 
MALINOWSKI