CLEAR CULPABILITY “Disappearances” by Security Forces in Nepal I. Summary ..................................................................................................................................... 1 II. Background............................................................................................................................... 9 III. Nepal’s Obligations under International Law..................................................................16 Prohibition of enforced disappearances..............................................................................17 Duty to investigate..................................................................................................................19 Redress for victims .................................................................................................................21 IV. “Disappearances”.................................................................................................................24 Perpetrators..............................................................................................................................25 Victims......................................................................................................................................28 Modus operandi ......................................................................................................................29 Evidence of killings in custody .............................................................................................43 Evidence of torture in custody .............................................................................................48 V. Factors contributing to the crisis of “disappearances” ....................................................51 The government’s failure to acknowledge and end “disappearances.” ..........................51 Inadequate legal framework ..................................................................................................53 Impunity of the security forces.............................................................................................57 Impotence of the courts ........................................................................................................62 Obstruction of the work of the National Human Rights Commission .........................65 VI. Nepals’ Record in Addressing Human Rights Abuses and “Disappearances”...........69 The government’s pledge to uphold human rights............................................................69 Government investigations into “disappearances”............................................................71 Legalizing illegal detention: The Sundarijal Investigation Center....................................73 VII. The Role of the International Community.....................................................................75 VIII. Recommendations.............................................................................................................81 To the government of Nepal ................................................................................................81 To the international community...........................................................................................83 I. Summary Policeman: “We kill them.” RNA Soldier: “No, we take them to jail.” Policeman: “Yes, we take them to jail and then we kill their asses.” Conversation between Human Rights Watch researchers, a Royal Nepalese Army soldier, and a police officer about the treatment of detained Maoists, September 2004. In the Nepali government’s war with Maoist insurgents, the number of enforced disappearances—cases in which people are taken into custody and authorities then deny all responsibility or knowledge of their fate or whereabouts—has reached crisis proportions. Over the last two years, the Nepali security forces have made Nepal one of the world’s prime locations for enforced disappearances. According to the United Nations Working Group on Enforced and Involuntary Disappearances (WGEID), in 2003 and 2004 Nepal recorded the highest number of new cases of disappearances in the world.1 Nepal’s National Human Rights Commission (NHRC) has received reports of 1,234 cases of “disappearance” perpetrated by security forces since May 2000. Government security forces commit the overwhelming majority of the “disappearances,” and instead of taking action to prevent such severe abuses, civilian authorities have focused on issuing denials and covering up the abuses. No senior officer has ever been held accountable for “disappearances” in Nepal. Even if the government has not directly asked its security forces to commit “disappearances” as part of its campaign against the Maoists, its failure to take reasonable steps to end the practice or to hold perpetrators accountable makes civilian authorities deeply complicit. In the face of such government inaction, “disappearances” can fairly be characterized as government policy. This report, based on Human Rights Watch research in Nepal in September and October 2004, documents the pattern of “disappearances” by Nepali security forces and analyzes the factors responsible for the crisis. The Appendix to the report contains summaries of 203 cases of “disappearance” documented by Human Rights Watch. 1 This figure is based on the number of cases the Working Group receives information about, and is not based on statistically valid surveying methods. 1 SUMMARY Human Rights Watch’s research indicates that the actual number of “disappearances” in Nepal may be significantly underreported, since a number of persons we spoke with had not reported the “disappearances” of their relatives to any governmental institution or non-governmental group. In a number of cases, Human Rights Watch was the first organization the witnesses had talked to about the “disappearances.” In particular, “disappearances” that occurred during the earliest stages of the conflict and during the state of emergency (November 2001- August 2002) appear to be underreported, because the human rights community had limited capacity and experience in dealing with such cases, and because many families were unable to report cases due to security concerns and logistical hurdles, including those posed by Nepal’s challenging terrain. While the cases documented by Human Rights Watch represent only a fraction of the total number of “disappearances” occurring in Nepal, they clearly demonstrate the responsibility of the security forces for a geographically broad pattern of “disappearances.” The prevalence of the problem makes it clear that this is not just the result of the actions of some “bad apples” or rogue elements in the security forces. The use of army camps and barracks and police stations as places to hold “disappeared” persons demonstrates that these crimes cannot be happening without the knowledge of at least some senior officers in the security forces and likely some members of Nepal’s civilian leadership as well. “Disappearances” are systemic and an integral part of Nepal’s counterinsurgency campaign, not the aberrant actions of rogue elements. The failure of the Nepali authorities to prevent “disappearances,” to bring perpetrators to justice, and to provide victims with proper redress violates the country’s obligations under international law, including the International Covenant on Civil and Political Rights, the Convention against Torture, and the Geneva Conventions, to all of which Nepal is a party. Human Rights Watch does not challenge the right of Nepali security forces to search for, arrest, or interrogate individuals, including Maoist insurgents, suspected of involvement in illegal activities. However, any such operations must conform to Nepali and international law. Specifically, neither suspected nor proved involvement with the Maoists can justify an enforced disappearance or the summary execution of a detainee. International law unequivocally grants captured combatants the right not to be “disappeared” or summarily executed. * * * * * The armed conflict in Nepal dates back to 1996, when the Communist Party of Nepal (Maoist) (CPN-M) launched an armed insurgency after announcing its “people’s war” CLEAR CULPABILITY 2 against the monarchy and the existing system of governance. The regular police forces, initially charged with suppressing the insurgency, proved unable to control the situation, and in 2001 the government declared a nationwide state of emergency and deployed the Royal Nepalese Army (RNA) to combat the Maoists. The state of emergency was repealed in August 2002, but the army remains at the center of the counterinsurgency operation. Even with the RNA deployed, however, government forces have not managed to end the insurgency. Current estimates suggest that the Maoists control over 40 percent of Nepal’s countryside. Several attempts at peace talks have failed. Since the collapse of the most recent ceasefire in August 2003, the fighting has resumed with increased intensity. With both sides blatantly violating humanitarian law and committing massive abuses, previously documented by Human Rights Watch and others, the conflict has caused a major human rights crisis in Nepal, which is exacerbated by the country’s political instability and dire economic circumstances. The Maoists have a dismal human rights record. Maoist forces have abducted, tortured, and killed civilians suspected of being “informers” or “enemies of the revolution.” They have extorted “donations” from villagers, recruited children as soldiers and in