US embassy cable - 02KATHMANDU616

C O N F I D E N T I A L SECTION 01 OF 04 KATHMANDU 000616 
 
SIPDIS 
 
STATE FOR SA/INS 
 
E.O. 12958: DECL: 03/27/2012 
TAGS: PHUM, PGOV, NP, Human Rights 
SUBJECT: HUMAN RIGHTS:  AN UPDATE ON DETENTIONS AFTER FOUR 
MONTHS OF THE EMERGENCY 
 
REF: A. (A) 01 KATHMANDU 2300 
 
     B. (B) KATHMANDU 0450 
     C. (C) KATHMANDU 0615 
 
Classified By: POL/ECON MAHONEY.  REASON:  1.5 (B,D). 
 
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SUMMARY 
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1.  (C)  SUMMARY:  Despite the Prime Minister's assurances to 
donors and the general public that the curtailment of human 
rights under the state of emergency is directed only against 
Maoists and their supporters (Ref A), the security forces 
appear to be casting their nets more broadly, detaining and 
holding incommunicado left-leaning journalists, lawyers, and 
human rights activists.  Although on March 26 the Royal Nepal 
Army (RNA) released four such individuals whose cases had 
gained international attention, the actual number of other, 
lesser-known detainees still being held under the emergency 
anti-terrorism ordinance is unknown.  On a more positive 
note, the RNA has agreed to allow the ICRC access to children 
conscripted by the Maoists who are now in Army detention (Ref 
B), although the ICRC has not had confidential access to 
other prisoners held by either the RNA or the police since 
March 7. The Ambassador stressed the need to maintain respect 
for basic human rights in a March 20 meeting with the King 
and in a March 27 meeting with the Foreign Secretary, while 
DATT and emboffs have made the same points with the RNA, Home 
Ministry and others in the Ministry of Foreign Affairs.  The 
Foreign Secretary told the Ambassador March 27 the ICRC 
headquarters agreement is in the final stages of approval 
(Ref C).  The Embassy will continue to put pressure on the 
Government of Nepal (GON) to stand by its previous statements 
that respect for the basic human rights of the general 
population will not be abridged despite the emergency.  End 
summary. 
 
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TERRORISM LAWS 
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2.  (U)  After the promulgation of the state of national 
emergency November 26, Prime Minister Sher Bahadur Deuba 
emphasized to the U.S. Embassy and to other donors that the 
curtailment of fundamental human rights under this 
extraordinary new circumstance and the special powers given 
to the security forces under the accompanying Terrorist and 
Destructive Acts Ordinance (TADO) were directed only at 
Maoists and their supporters, and not at the population at 
large (Ref A).  Since then, emboffs have repeatedly heard 
similar assurances from others in the Government of Nepal 
(GON), the police, and the Royal Nepalese Army (RNA). 
Although many civil rights have been suspended under the 
emergency, the right to file habeas corpus petitions and the 
right to counsel during detention--even under the TADO--have 
not.  In addition to acts that damage or destroy property, 
life, or limb, with the aim of undermining the "sovereignty 
or integrity of the Kingdom of Nepal, or security or peace 
and order of the Kingdom of Nepal," the TADO defines 
terrorism as "any other act committed in such a manner as to 
spread an atmosphere of fear or terror."  The TADO allows for 
the arrest without warrant by any member of the security 
forces (civilian police, paramilitary Armed Police Force, or 
RNA) of any individual suspected of terrorist activity, and 
for the subsequent detention of that individual for up to 90 
days without charge.  Detention may be extended for an 
additional 90 days with the permission of the Home Ministry. 
(Note:  According to both the Ministry of Law and Justice and 
a private lawyer, the RNA may pick up suspects but should 
then turn them over to the civil police as soon as possible. 
End note.) 
 
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TOWARDS A BROADER DEFINITION OF TERRORIST? 
------------------------------------------ 
 
3.  (SBU) On March 3 the RNA picked up Gopal Budhatoki, the 
long-time editor of the left-leaning vernacular publication 
"Sanghu," at about 10:30 p.m. as he was returning home from 
the office, without informing either his family or his place 
of work.  After several Opposition MPs raised his apparent 
disappearance, PM Deuba acknowledged in Parliament March 6 
that Budhatoki was being detained by the RNA.  Several press 
contacts speculated Budhatoki had incurred the wrath of RNA 
Chief of Army Staff Prajwalla Rana with a recent op-ed piece 
criticizing the Army Chief for not being on hand to receive 
the bodies of the soldiers killed in the bloody Feb. 17 
attack in Achham.  Many asserted that Budhatoki, while 
decidedly left-wing in outlook, was not known to have Maoist 
sympathies. 
 
4.  (C) In a March 14 meeting with Chief of General Staff 
Gen. Pyar Jung Bahadur Thapa and Director of Military 
Operations Brig. Gen. Pradip Malla, A/DCM, DATT, and poloff 
raised the detention of Budhatoki.  Poloff acknowledged that 
during the state of emergency certain restrictions on the 
press must be maintained in order to safeguard information 
vital to national security.  It is important to maintain a 
distinction between threats to national security and other 
situations, however.  Recalling the PM's previous statements 
that emergency curtailments of human rights are directed only 
at terrorists, she said that respect for basic human rights 
should, as far as possible, be upheld despite the emergency. 
The case had attracted significant attention, including from 
the U.S., and the Embassy is  concerned at his continued 
detention incommunicado and his family's lack of access to 
him. 
 
5.  (C)  Malla responded that Budhatoki posed a security 
threat because he had published a "seditious" article 
intended to incite "mutiny" among RNA ranks.  Thapa added 
that the RNA planned to hold Budhatoki for just "a few days 
to scare him" and would then release him.  If the RNA 
released him too soon, Thapa predicted, Budhatoki would not 
be sufficiently chastened and it would appear the release had 
come "under pressure."  Both men asserted that Budhatoki was 
being well treated.  (Note:  According to a local human 
rights group, about 30 journalists, including some clearly 
affiliated with Maoist publications, are currently in 
detention in different parts of Nepal.  End note.) 
 
 
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AND MORE ARRESTS 
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6.  (SBU)  According to the local human rights group Center 
for Victims of Torture (CVICT), on March 12 Saligram Sapkota, 
President of the Banke District Appellate Court Nepal Bar 
Association, was arrested from his home at 4:00 a.m. by 
plainclothes RNA.  Sapkota is a member of the little-known, 
leftist Janabadi Morcha (Democratic Front) and had just 
recently, according to the British Embassy, filed a habeas 
corpus petition for another individual detained by security 
forces.  After his wife and other relatives visited him the 
following day at the Chisapani Army Barracks in Nepalgunj, 
Banke, his wife asserted he had bruises on his face and body 
and claimed he appeared to have been mistreated.  (Note:  The 
Embassy has not independently confirmed any evidence of 
mistreatment.  End note.)  Sapkota reportedly told his wife 
his RNA captors had accused him of "indirectly" supporting 
the Maoists. 
 
7.  (SBU)  On March 16 GON security forces, believed to be 
RNA plainclothesmen, picked up Shyam Shrestha, a journalist; 
Pramod Kafle, a human rights activist involved in Bhutanese 
refugee affairs; and Mahesh Maskey, a medical doctor active 
in human rights, at Tribhuvan International Airport as they 
were preparing to board a flight to New Delhi.  The three 
were planning to attend a seminar, convened by organizers 
believed to have links to Maoist groups, with the purported 
aim of finding ways to re-start dialogue between the GON and 
the insurgents.  Kanak Dixit, a well-respected journalist and 
long-time Embassy contact who was traveling to New Delhi on 
other business, observed the arrests.  The GON subsequently 
acknowledged the detentions a few days later but declined to 
reveal the detainees' whereabouts or allow them access to 
their families or lawyers.  Only Opposition Leader Madhav 
Kumar Nepal was permitted to see the men, a visit he declined 
(in not very characteristic fashion) to discuss publicly. 
Many journalists and human rights activists contacted 
speculated the trio might be released after the March 25 
return of Prime Minister Deuba from an official visit to 
India.  Upon receiving an Embassy inquiry, a Home Ministry 
official said he was unaware of the detentions and speculated 
the three were in RNA custody. 
 
8.  (C)  In a March 20 call on King Gyanendra, the Ambassador 
stressed the need for the security forces to maintain respect 
for human rights despite the emergency.  The King said he 
fully understood the need and would ensure that the basic 
human rights of the general population are not infringed upon 
during the emergency.  (Note:  The Ambassador made similar 
points in his March 27 call on Foreign Secretary Madhu Raman 
Acharya--Ref C.  End note.) 
 
9.  (C) In a March 22 meeting with CGS Thapa and DMO Malla, 
poloff and DATT again raised human rights issues.  Malla and 
Thapa both deflected questions about reports that the RNA 
holds prisoners incommunicado, asserting that many of the 
suspects in question are in fact Maoists.  If, after 
questioning, an individual is determined not to be a Maoist, 
he is set free.  Malla said that Budhatoki's wife had been 
permitted to visit him and that he would be released "within 
one week."  (Note:  Budhatoki's wife later told Embassy she 
had not/not met him, an assertion subsequently repeated by 
Budhatoki himself.  End note.)  He went on to say that during 
the emergency any statement denigrating the RNA is illegal. 
Asked if Nepali law requires detainees be permitted to meet 
with counsel and family members, Malla replied, "That's an 
American law."  When challenged, he corrected himself, but 
said the visits need not take place within twenty-four hours 
of detention under the emergency. He confirmed that the right 
to habeas corpus had not been suspended.  Asked if RNA 
personnel were conducting operations in plain clothes, Thapa 
replied ambiguously that Special Forces from the 10th Brigade 
might be conducting such operations.  Stating there is 
"nothing wrong with operating in civilian clothes," he added 
doing so was necessary in some cases in order to get near the 
Maoists without alerting them.  (Note: We agree.)  He 
concluded the RNA may or may not be using such practices--he 
could not say for certain. 
 
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FOUR DETAINEES RELEASED 
------------------------- 
 
10.  (SBU) In a March 26 meeting at the Ministry of Foreign 
Affairs, poloff raised the detentions, questioning the 
legality--even under the emergency--of holding people 
incommunicado, and noting the increasing inquiries the 
Embassy was receiving.  She added that Foreign Secretary 
Acharya might likely encounter similar inquiries during his 
April 2-6 visit to Washington (Ref C). MFA Undersecretary 
Prahlad Prasai agreed, adding he would ask the Foreign 
Secretary and Minister of State for Foreign Affairs to raise 
 
SIPDIS 
the matter with the PM during their meeting with him later 
that afternoon. 
 
11.  (SBU)  At about 6:30 p.m. March 26--one day after PM 
Deuba's return from India--Budhatoki, Shrestha, Kafle, and 
Maskey were released from RNA custody.  Budhatoki told 
Embassy he never knew where he was being held, and had been 
kept blindfolded except during meals and in solitary 
confinement throughout the 23 days of his detention.  He said 
he received no visitors and was never questioned, accused of 
any crime, or informed of the reason for his detention. 
 
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CHILD MAOISTS AND ICRC ACCESS 
------------------------------ 
 
12.  (C)  In a March 14 meeting with CGS Thapa and DMO Malla, 
DATT raised the children conscripted--and in many cases 
abused--by Maoists who now being held in detention at the RNA 
barracks in Nepalgunj (Ref B).  She recommended the RNA 
arrange for the ICRC (which has not to date visited detainees 
in RNA custody) to gain access to these children and assess 
their needs.  Following the visits, other arrangements for 
the children--such as relocation to NGO-sponsored shelters 
for victims of sexual abuse or other facilities for 
juveniles--could be worked out.  Publicizing the plight of 
these children--and the fact that the Maoists are 
conscripting and abusing children--in international fora 
would help highlight the atrocities committed by the 
insurgents.  Thapa and Malla readily agreed to the idea, with 
Thapa suggesting the names of NGOs on his own.  On March 19 
Malla sent letters to the ICRC and two NGOs advising them of 
the use of children by the Maoists and asking for the 
organizations' assistance.  The Acting ICRC Head of 
Delegation told poloff March 25 she had already had an 
encouraging meeting with the RNA and looked forward to 
gaining access to the child detainees soon.  On a less 
positive note, however, she added that on March 7 the GON 
suspended the organization's confidential access to prisoners 
held by police.  On March 27, however, Foreign Secretary 
Acharya told the Ambassador that ICRC's headquarters 
agreement is in the final stages of approval (Ref C). 
 
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COMMENT 
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13.  (C)  The RNA reaction to the suggestion that child 
detainees be transferred is welcome.  Embassy will continue 
to follow developments in this initiative.  We also welcome 
the release of the four detainees; the actual number of 
others still being held under the anti-terrorism ordinance is 
unknown.  Less welcome is the RNA's increasingly expansive 
interpretation of just who constitutes a "terrorist" and 
under what conditions they can be held.  We believe Deuba 
himself, a victim of human rights abuses under the Panchayat 
regime, is sincere in his pledge to uphold human rights, and 
we note the RNA has been deployed for just four months under 
new and admittedly very trying and hazardous circumstances. 
Nonetheless, the RNA, other security forces, and the GON in 
general must uphold the rule of law--including those few 
rights not suspended under the emergency, such as the right 
to counsel and habeas corpus.  The Embassy will continue to 
press this point with both the civilian leadership and the 
military.  End comment. 
MALINOWSKI