Another Commission is not enough:
Ram Hari Shrestha and the Corrosive Impact of Impunity on Nepal’s Unsteady Peace

‘Im`pu´ni`ty: Exemption or freedom from punishment, harm, or loss [1]’

 

‘Nepal’s Maoists initiated the process of crippling the institutions of parliamentary democracy by giving primacy to military means over the political. Mainstream parties, unable to resist petty politicking, allowed themselves first to be bludgeoned into submission by Maoist violence and then reduced to irrelevance by autocratic strategems. If civil politics has to triumph, it is up to the political parties to marshal their energies and undertake a non-violent political movement against the current and evolving tendencies in the polity.’- Hari Roka, Political Analyst and current Member of Parliament, November 2003 [2]

 

 

On 27 April 2008, members of the Peoples’ Liberation Army (PLA) kidnapped Ram Hari Shrestha. He was apparently taken to the PLA Shaktikhor Cantonment in Chitwan district under UNMIN supervision. There Shrestha was tortured. He later died in a Chitwan hospital as a result of his ill treatment. His death is apparently related to a theft of money from ‘Bibidh’, a PLA Commander. Following public protest, on 18 May 2008, the Communist Party of Nepal (Maoist) [CPN(M)] leader Prachanda denied PLA involvement but announced an internal investigation.  On 21 May Prachanda agreed to set up a ‘High Level Commission’ to investigate the killing. [3]

 

Whether investigating the violations by the security forces or the Maoist, without exception, numerous investigations have failed to deliver justice in the past. As OHCHR states: ‘Not one member of the security forces or of the CPN-M has been held criminally accountable and convicted for killings, disappearances, torture or other abuses by civilian courts’. [4]

 

Shrestha’s death is one crime amongst many perpetrated by the Maoists. But most crimes, including deaths similar to Shrestha’s, are not investigated let alone prosecuted. Only because the Shrestha case has attained a political profile have the CPN(M)  announced an investigation.

 

The Nepali Congress (NC) and the UML (United Marxist Leninist) have made repeated calls for action on other attacks against their cadres by the Young Communist League (YCL), a Maoist affiliated group [5]. The NC and UML have shown less enthusiasm for tackling the structural causes: impunity and a failed rule of law. Where there is neither punishment nor cost attached to negative behaviour, it follows that there is no incentive to desist. Nor are there any costs for others to employ the same methodology. Both Nepal ’s Army and the PLA and the Maoist leadership have obvious reasons to block change. But equally the other political parties, and an important section of the international community have repeatedly placed short term imperative before tackling impunity.

 

Nepal ’s peace is not a given. The new Constituent Assembly will take place in the shadow of a politicised Army, the PLA, the YCL and a host of other armed criminal gangs. None are accountable.   In this ACHR review we examine the impact of impunity in the context of Nepal ’s shaky peace.    

 

i. Post-electoral violence by the CPN(M) and its affiliated groups

 

Media reporting suggests that CPN(M) violence is on the rise. The reports include allegations of collective punishment. According to one report, CPN(M) cadres cut off  water to the   village of Angna-5 village in Panchthar because of the residents support for the NC. The CPN(M) also apparently denied water to NC supporters in Dhikure village, Tehrathum district. [6] While condemnable, it is worth noting that this CPN(M) violence is not original. It was a familiar part of post election violence during the 1990s most notably perpetrated by the Nepali Congress (NC).

 

Reports of violence and intimidation against political opponents of the CPN(M) are also increasing. For example, according to media reports, on 6 May 2008, CPN(M) cadres beat up two UML supporters  in Siddhakali-6 village in Sankhuwasabha district. [7] According to a UML report, cadres of the Young Communist League(YCL) abducted and beat Dipak Tamang and Anil Biswokarma, both UML activists on 10 April 2008. The police apparently failed to intervene. The UML also condemned attacks by YCL on another three UML supporters in Kulung VDC of Bhojpur district on 28 April 2008. [8]

 

ii. Maoist impunity

 

During the conflict the Maoists committed systematic violations of International Humanitarian Law. The emblem of failure to address Maoist abuse is underlined by the failure to prosecute those responsible for the bus bombing in Madi, Chitwan District, in June 2005 in which the CPN-M acknowledged responsibility for killing 36 persons and wounding 72 others [9].

 

In the period of transition the CPN(M) leader Prachanda has repeatedly claimed that YCL violence as well as other affiliates is not  policy. The Party has repeatedly committed to addressing the issue. The positive election result for the Maoists gives the party greater influence to resist attempts to tackle the impunity of its affiliated groups. The Maoists have no desire to see criminal proceedings applied to CPN(M) leadership.

iii. A history of political collusion with impunity  

Both the NC and the UML have demanded that the YCL be dissolved and the abuses cease. Neither party has laid sufficient emphasis on the fact that the YCL is breaking the law nor have they stressed the failure of the police and state to respond.

 

Both the UML and the NC must accept a large measure of responsibility for the failure to tackle impunity.  Impunity did not start during the Royal takeover. For example in 1992 GP Koirala was Prime Minister. And it was Koirala who buried the government inquiry into the human rights violations committed during the first (1990) People’s Movement – the Mallik Commission. The report was never published and nor was any action ever taken.

 

Similarly the majority of the Army’s violations were committed under the nominally democratic Premiership of Nepali Congress leader Sher Bahadur Deuba [10].  Many of Nepal ’s nominally ‘democratic’ politicians have themselves overseen large scale violations of human rights.  

After the People’s Movement in April 2006, power was restored to the democratic parties. But again they squandered another opportunity to tackle impunity. The Government quickly demonstrated its intent. Prime Minister Koirala limited the terms of the investigation into the Royal takeover (the Rayamahji Commission). The report was not made public and Koirala’s Cabinet found no-one responsible. The CPN(M) participation in government can have only increased the momentum against tackling of impunity.  

Koirala appointed himself Defence Minister. He retained General Kutuwal as Chief of the Army Staff (COAS) despite Kutawal’s direct and leading role in the Royal takeover.  

iv. Nepal Army impunity for systematic violations of human rights   

The Army should not be conceptualised as an orthodox organ of a democratic state. As CK Lal, political analyst notes: ‘Despite its aggressive denials, the army is composed of even more politically indoctrinated members than the Maoists. (…)Loyalists to the crown continue to dominate the army brass. The force is still largely feudal and considers itself the custodian of religious rites that used to give our monarchy the divine right to rule.’ [11]  

The Army and particularly the COAS has made repeated [12] public statements committing the Army to democracy, human rights and rule of law. The Royal takeover raises difficult questions about this assertion. And the appalling record of Nepal’s Army is well established. During its deployment the Army established a well documented pattern of widespread and systematic violations of human rights that OHCHR believes amount to war crimes [13]committed with complete impunity.  

The emblem of Army impunity is the torture, disappearance and apparent execution of a 15-year-old girl, Maina Sunawar, while in RNA custody in February 2004. A military tribunal found that the responsible officers were guilty merely of negligence in the way Maina Sunawar’s death was reported and failed to assign responsibility for the torture that is thought to have led to her death. The internal Army investigation was later leaked. It confirmed the allegations and revealed a deliberate cover up by the concerned officers. The Court Martial was revealed to be a deliberate cover up. The case was raised with the Army by the High Commissioner for Human Rights and various Ministers from European Countries. The COAS has made repeated commitments to act but the lack of progress is increasingly suggestive of complicity.  

v. Lack of civilian control of the Army  

The COAS and others repeatedly insist that the Army is now under civilian control. On paper the 2006 Army Act does indeed place the Army under civilian control, but the lack of any meaningful structure, institution, process or functionality suggests otherwise.  The NA continues to run itself and is answerable only to itself.  The only civil- military relations are infrequent meetings between the COAS and Koirala.  And after the Maoist success in the elections, these two now need each other more than ever. 

 

vi. Police violation and the failure of public security

 

The CPN(M) often cite the absence of police as a justification for their ‘law enforcement’. Law enforcement cannot be cited as a justification for human rights abuses under any circumstances. There is no doubt police are weak. Morale is very low. The police operate under extreme conditions and lack basic training and resources. However this analysis masks the deeper institutional culture of human rights violation. 

 

In Nepal, confession forms the basis of criminal investigation and a common method of extracting confession - torture - remains an institutional practice. Advocacy Forum, a prominent advocacy NGO visits large numbers of detention centres. Their detailed records are alarming. They found that 30% of children detained by the police were subjected to torture. Between May 2006 and April 2007 out of 3,908 detainees interviewed 1,595 (55.1%) were detained illegally. Given these detention practices it is perhaps unsurprising that the OHCHR has found that policing of protest has resulted in human rights violation particularly relating to excessive use of force. The police are in desperate need of reform and resources. Their practices have discredited the institution and made the task of public security increasingly untenable.

 

Despite the obvious security risks there has been a notable lack of political or indeed civil society support for reform/strengthening of the police, much less a push to make it more inclusive and therefore representative of the population it is supposed to serve.

 

vii. A conducive environment for the Constituent Assembly and sustainable peace?

 

The one issue that binds all the major political groupings in Nepal is a refusal to address the structural issues created by impunity. Impunity has hampered integration.

 

 ‘Lack of progress on integrating PLA fighters, while seen by c onservative opponents of the Maoists as a vi c tory, is pre c isely what more militant Maoist c ommanders sought. Pra c handa’s shift from De c ember 2007 (when he was c alling for integration before the ele c tions) to January 2008 (when he announ c ed it c ould be deferred until after them) may look like a triumph for moderation but is in fa c t a c on c ession to those who want the PLA to be intact (...).’ [14]  

Impunity is one symptom of the Nepal Army and PLA being outside civilian control.  

The consequence of no civilian control is that the debate over integration/demobilisation is restricted to belligerent parties. Given the dynamics discussed in this review it is unclear how the Constituent Assembly or the next government will be able to wrest control into the civilian domain.  

One obvious casualty of the failure ‘integration’ of the PLA and the Nepal Army is that it blocks debate or action on wider security sector reform: delaying police reform will widen the security vacuum still further. Ever more armed political groups and armed criminal gangs are likely to emerge adding ever greater destabilizing factors to an already troubled environment.

The inability of an unreformed police to curb the crimes of YCL, combined with the continued existence of the PLA mean that the CPM(M) and its affiliates will continue to abuse political opponents without fear of any meaningful constraint. The Army for its part, needs only to bide its time and continue to push its political agenda, as it always has. Both stand combat ready.