a spiralling human rights crisis · glossary apf armed police force ascpa anti-state crimes and...

A spiralling human rights crisisNNeeppaall

AMNESTY INTERNATIONAL

COVER PHOTO: Police in Jajarkot, Mid-Western region, head down to the airstrip at Chaurjahari to secureit for the arrival of the daily flight, July 2001.© Dermot Tatlow/Panos Pictures

Glossary and chronology of governments 2

Summary 3

Map 4

Chapter 1: Introduction 5Amnesty International's work 8The way forward 9

Chapter 2: Background 10The "people's war" 12The government's response 13Attempts at dialogue 15

Chapter 3: Abuses by state agents 16Unlawful killings 17"Disappearances" and unacknowledged detention 21Torture and cruel, inhuman or degrading treatment 26Arbitrary detention and unfair trial 31

Chapter 4: Abuses by the Maoists 37Deliberate and unlawful killings 37Torture 39Hostage-taking 39"People's courts" 41Child soldiers 41

Chapter 5: Conclusions and recommendations 43

Endnotes 47

AMNESTY INTERNATIONALInternational SecretariatPeter Benenson House

1 Easton StreetLondon WC1X 0DW

United Kingdomwebsite: www.amnesty.orgAI Index: ASA 31/016/2002

Embargo: 4 April 2002

CONTENTS

Glossary

APF Armed Police ForceASCPA Anti-State Crimes and Penalties Act bandh strikebelana a torture method involving rolling a weighted bamboo stick or other round

object along the prisoner's thighs, resulting in muscle damageCDO Chief District OfficerCPN (Maoist) Communist Party of Nepal (Maoist)CPN (UML) Communist Party of Nepal (United Marxist Leninist)DDC District Development CommitteeDPO District Police OfficeDSC District Security CommitteeDSP Deputy Superintendent of Policefalanga a torture method involving beatings on the soles of the feetICCPR International Covenant on Civil and Political RightsICRC International Committee of the Red CrossIGP Inspector General of PoliceISDP Integrated Security and Development Plankhukuri a traditional Nepali curved knifeMRD Movement for the Restoration of Democracy (Jana Andolan) NC Nepali Congress partyNDC National Defence CouncilNGO non-governmental organizationNHRC National Human Rights CommissionNSP Nepal Sadbhavana PartyNTA Nepal Teachers AssociationPanchayat a political system of non-party rulePSA Public Security ActRPP Rastriya Prajatranta Party (National Democratic Party)Rs Rupees, Nepali currencySJM Samyukta Jana Morcha, United People's FrontTADO Terrorist and Disruptive Activities (Control and Punishment) OrdinanceTCA Torture Compensation ActUN United NationsVDC Village Development CommitteeWGEID UN Working Group on Enforced or Involuntary Disappearances

Governments from 1996 to 2001

Prime Minister Sher Bahadur Deuba (NC, RPP, NSP) September 1995 to March 1997Prime Minister Lokendra Bahadur Chand (RPP, UML) March 1997 to October 1997Prime Minister S.B. Thapa (RPP, NC, NSP) October 1997 to March 1998Prime Minister Girija Prasad Koirala (NC, RPP, NSP) March 1998 to August 1998Prime Minister Girija Prasad Koirala (NC, ML) August 1998 to December 1998Prime Minister Girija Prasad Koirala (NC, UML, NSP) December 1998 to May 1999Prime Minister Krishna Prasad Bhattarai (NC) May 1999 to March 2000Prime Minister Girija Prasad Koirala (NC) March 2000 to July 2001Prime Minister Sher Bahadur Deuba (NC) July 2001

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Nepal A spiralling human rights crisis

April 2002 SUMMARY AI INDEX: ASA 31/016/2002DISTR: SC/CO

This report summarizes a 48-page document (30,042 words), : NEPAL: A spiralling human rightscrisis (AI Index: ASA 31/016/2002) issued by Amnesty International in April 2002. Anyone wishingfurther details or to take action on this issue should consult the full document. An extensive rangeof our materials on this and other subjects is available at http://www.amnesty.org and AmnestyInternational news releases can be received by email:http://web.amnesty.org/web/news.nsf/thisweek?openview

INTERNATIONAL SECRETARIAT, 1 EASTON STREET, LONDON WC1X 0DW, UNITED KINGDOM

[EMBARGOED FOR: 4 April 2002] Public

amnesty international

KEYWORDS:

Amnesty International is concerned that the human rights situation in Nepal is spiralling outof control amid the escalating fighting between the security forces and the Communist Partyof Nepal (Maoist).

This document provides evidence of unlawful killings, “disappearances”, torture andarbitrary arrest and detention under various security laws by police and army personnelsince the CPN (Maoist) declared “people’s war” in February 1996. It also includes details ofthe deliberate and unlawful killing of civilians, the execution-style killings of police officerstaken captive, hostage-taking, torture and the imposition of cruel, inhuman and degradingpunishments, including “death sentences” by the Maoists. The Maoists have also beenresponsible for recruiting children as combatants.

Amnesty International appreciates the particular difficult law and order situation thisconflict has created in the country. It is urging the government to ensure its response isgrounded in the human rights provisions contained in Nepal’s Constitution, theinternational treaties to which it is a state party and other international human rightsstandards. At the end of this document, it has made 20 recommendations to the governmentaimed at establishing viable procedures for investigating human rights violations andpreventing further abuses from occurring.

The organization is also calling upon the CPN (Maoist) to at all times respectcivilians, prohibit murder, mutilation and torture, reprisals and summary executionsand the taking of hostages, and protect and care for the wounded, in line with applicableinternational humanitarian law standards such as those contained in Article 3 commonto the four Geneva Conventions of 1949.

Nepal: A spiralling human rights crisis4

AI Index: ASA 31/016/2002 Amnesty International April 2002

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Chapter 1: IntroductionNepal burst onto the international scene in earlyJune 2001. The killings of the King, Queen andeight other members of the royal family dramati-cally alerted the world to a complex and volatilepolitical situation in the country. It was also thefirst time many people had heard about the armedconflict that had been spreading across the countrysince the Communist Party of Nepal (Maoist) –hereafter CPN (Maoist) or the Maoists – declared a“people’s war” in February 1996.

Until the events of June 2001, Nepal had thereputation of being a land of peace and religioustolerance, the birthplace of Lord Buddha. Mostpeople knew it as a land of soaring mountains,raging rivers and pristine forests that drewtourists from around the world. Those morefamiliar with the country admired its people,whose struggle for democracy in 1990 inspiredactivists across the region. They knew Nepal hadenshrined human rights principles at the heart ofits new constitutional order, signed all of themajor international covenants, abolished thedeath penalty and, despite its poverty, hasgenerously hosted thousands of Tibetan andBhutanese refugees.1

However, despite the good intentions of 1990,the human rights of many Nepali peoplecontinued to be violated. Between February 1996and 26 July 2001, according to official figures,1,060 “Maoists” were killed by police. All of themwere said by the government to have beenmembers of the CPN (Maoist) who were killedduring “encounters” with the police. At least afurther 130 people “disappeared” in policecustody and numerous others were tortured.According to government statistics, the number ofcivilians killed by the Maoists stood at 388 as ofDecember 2001. By early February 2002, thenumber was said to have increased to 448.

The incidence of human rights violationsincreased alarmingly after police launched a

“security mobilization operation” in late May1998. According to Home Ministry statistics, thenumber of people killed by police between 26 May1998 and 7 November 1998 was 227, comparedwith 97 between 13 February 1996 and 25 May1998. The circumstances surrounding such killingsindicate that many may have been unlawful.

Peace talks, aimed at ending the “people's war”,and an accompanying cease-fire broke down on 23November 2001, after the Maoists withdrew fromthe talks and attacked police and army posts in 42districts, reportedly killing at least 30 army and 50police personnel. The authorities responded on 26November by declaring a nationwide state ofemergency and deploying the army. A Terroristand Disruptive Activities (Control andPunishment) Ordinance (TADO) was promulgated,granting wide powers to the security forces toarrest people involved in “terrorist” activities. TheCPN (Maoist) was declared a “terrorist organiza-tion” under the Ordinance.

Over recent months, the fighting has furtherescalated. In mid-February 2002, around the timeof the sixth anniversary of the “people’s war”particularly, there were heavy casualties reportedamong army and police personnel. For example, 81police and 55 army personnel were killed on 9February 2002 during an attack on the headquar-ters of Achham district.

The declaration of the state of emergency wasaccompanied by the suspension of sub-clauses (a),(b) and (d) of clause (2) of Article 12, clause (1) ofArticle 13 and Articles 15, 16, 17, 22 and 23 of theConstitution of Nepal. The rights contained inthese clauses – the rights to freedom of thought andexpression, assembly and movement, the right notto be held in preventive detention withoutsufficient ground, and the rights to information,property, privacy and constitutional remedy –were suspended throughout the whole country. On21 February 2002, amid escalting fighting,parliament extended the state of emergency bythree months.

NEPAL

A HUMAN RIGHTS CRISIS

The suspension of Article 23 of the Constitutiondenies people access to judicial remedy (apart fromhabeas corpus). It also prevents judicial scrutiny ofthe measures taken by the government, includingthe declaration of the state of emergency and thepromulgation of the TADO.

According to government sources, more than3,300 people were arrested in the first month afterthe state of emergency was declared. By earlyFebruary 2002, this number had risen to more than5,000. Among them were many lawyers, students,journalists and teachers suspected of beingmembers or sympathizers of the CPN (Maoist) anda doctor arrested on suspicion of providingmedical treatment to Maoist suspects. According tothe police, a total of 1,359 “Maoists” had beenkilled since the start of the “people’s war” untilearly February 2002, about 300 of whom werekilled after the declaration of the state ofemergency. It is feared that those killed includedscores of civilians. In addition, it is estimated thatseveral hundred people, who may have been armedMaoists, were deliberately killed in circumstanceswhere they could have been taken into custody,including when they had been wounded, or afterbeing taken into custody – in breach of standards ofinternational human rights and humanitarian law.The official version of such killings is that peoplewere “killed in crossfire”, “shot when trying toescape” or “shot when running away”.

There is a complete lack of accountability inrelation to alleged unlawful killings, includingextrajudicial executions and indeed in relation tomany other forms of human rights violation. Inmost cases, the bodies of those killed are disposedof on the spot by the police or army, by burial orburning. This is contrary to existing legalprovisions which say that the body of anyone whohas died in suspicious circumstances has to bebrought to the nearest hospital for post-mortem.This lack of accountability has contributed to aprevailing sense of impunity.

On 20 May 2001 The Katmandu Post reportedthat the Inspector General of Police (IGP) PradeepS.J.B. Rana had acknowledged that human rightsviolations by police had been a significant factor inthe escalation of human rights abuses generally.The IGP was reported to have stated: “The policekilled innocent people, discriminated againstordinary people based on their social status andmaltreated the locals during their patrols.”

More than six years into the “people’s war”,the insurgency has affected lives in almost all ofthe 75 districts of the country. In more than 60districts, people have died in the context of the“people’s war”. In addition to conducting armed

operations against the army, police and socio-economic targets such as factories ortelecommunication towers, the CPN (Maoist) hasbeen responsible for the deliberate and unlawfulkillings of more than 440 civilians it considered tobe “enemies of the revolution”, including allegedinformants. Many of the victims have beensupporters or members of the Nepali Congressparty (NC), although members of other politicalparties have been among those killed. TheMaoists have also been responsible for execution-style killings of police officers who werewounded or taken prisoner or who hadsurrendered. In addition, in the period betweenFebruary 1996 and late July 2001 they have takenapproximately 500 hostages, tortured scores ofpeople taken captive and imposed cruel, inhumanand degrading punishments, including anestimated 25 “death sentences”. They have alsorecruited children as combatants. These abusescontinued throughout the cease-fire period, albeiton a reduced scale, and after the resumption ofthe conflict.

By mid-2001, the Maoists had set up “people’sgovernment” in 22 districts, limiting thegovernment's role more or less to the district head-quarters. They had held elections, randevelopment work, established “people’s courts”and imposed strict control over anti-socialbehaviour, including alcohol consumption,violence against women and corruption. They hadalso imposed their own tax system. Five of the 22are contiguous districts in the mid-western part ofthe country. Access to these areas was strictlycontrolled and prior permission had to be obtainedfrom the Maoists to enter. On 23 November 2001,the day they launched coordinated attacks in 42districts around the country, the Maoists alsoannounced the creation of a 37-member UnitedRevolutionary People’s Council, led by the CPN(Maoist) and a Central People’s GovernmentOrganising Committee, representing its leadershipat the national level.

The growing ability of the CPN (Maoist) and itsfront organizations to affect the economy of thecountry – often by using threats or instilling fear –became clear when regular bandhs (general strikes)called across the country resulted in transport,education, industry and markets grinding to a halt.In December 2000 the Maoists' student wing calleda week-long closure of all schools to protest againstthe singing of the national anthem (on the groundsthat it glorifies the King) and the teaching ofSanskrit.2 They also campaigned for the closure ofall private schools and instructed children toattend government-run schools. Most of the



English-medium schools in Nepal were affected. InGorkha, Lamjung, Tanahun and several otherdistricts, all private boarding schools were closed.Maoists have robbed scores of banks and ruraldevelopment projects for a total of Rs237.4 million(more than $3 million) (figure as of July 2001according to the Nepali Times). They have alsoattacked land registration offices and confiscatedthe deeds of properties owned by majorlandowners with a view to re-distribute themamong villagers. Representatives of the Maoistshave collected “donations” from businesses andindividuals, the total amount of which is notknown. Many of those who have not paid havebeen personally attacked or have had theirproperty bombed or burned down.

In April 2001 the government launched an“Integrated Security and Development Plan”(ISDP). According to the Minister of Defence, itinvolved the deployment of the army to “help

create space for the development activity” set outin the ISDP. The ISDP was an ambitious Rs 400million (about $5.3 million) package that aimed tokick-start development works in 11 districts wherethe Maoists were most active. In the first phase thegovernment introduced the ISDP in Gorkha,Rolpa, Rukum, Jajarkot and Kalikot districts. Aplanned second phase was set to include thedistricts of Pyuthan, Dailekh, Dang, Surkhet andSindhuli. The proposed development included theconstruction of roads, bridges, provision ofdrinking water, medicine delivery and generaladministrative work.

Soon after the declaration of the state ofemergency and the deployment of the army to fightthe Maoists in November 2001, the governmentannounced the suspension of the ISDP in all butone (Gorkha) of the districts.

It is clear that the fragile and young democracyin Nepal is facing a major challenge in halting a

7Nepal: A spiralling human rights crisis

Amnesty International April 2002 AI Index: ASA 31/016/2002

Young women police officers during a police training session in international human rights law orga-nized by AI Nepal in Kathmandu, February 2001. © AI Nepal

worsening human rights situation. While much ofthe deterioration has taken place in the context ofthe “people’s war”, there are other factors that havecontributed to the sense of foreboding that thehuman rights of future generations may be at riskin Nepal. They include the royal massacre, whichheightened political tensions and instability, theclimate of impunity enjoyed by the police andarmy, and the impact that the turmoil in Nepal mayhave in a region already marked by high tension,particularly given the relations between Nepal'sthree neighbours with nuclear power capacity,China, India and Pakistan.

The way Nepal responds to these challengeswill be a crucial point in its nationaldevelopment. Nepal's response should be clearlygrounded in the human rights provisionscontained in its constitution, the internationaltreaties to which it is a state party and other inter-national human rights standards.

Amnesty International's work

Amnesty International has monitored the humanrights situation in Nepal with growing concern. Ithas always enjoyed free access to Nepal. Thegovernment has granted permission for its delegatesto visit the country, including visits to prisonersheld on suspicion of committing crimes in thecontext of the “people’s war”. In November 1996Amnesty International delegates visited Rukum andSindhuli district. In November 1998 the organiza-tion's delegates visited the country to investigatereports of an escalation in human rights violationsin the context of the “intensified security mobiliza-tion” operation launched by police in May 1998,and raised its findings and concerns withgovernment officials. The organization alsoexpressed concern to representatives of the CPN(Maoist) about human rights abuses by the group.During a visit in November 1999, AmnestyInternational delegates investigated reports ofhuman rights abuses in Sindhuli, Gorkha and Bankedistricts. During a visit by the Secretary General ofAmnesty International, Pierre Sané, in February2000 and a follow-up visit in November 2000,Amnesty International alerted the politicalleadership to the increasing concern in the interna-tional community about the human rights situationin Nepal.3 The government responded with anumber of measures, including the setting up of aNational Human Rights Commission (see Chapter 2).

Human rights defenders and victims of humanrights abuses met by the Amnesty Internationaldelegates cried out for help. They felt caughtbetween the security forces on the one hand and

the Maoists on the other and were fearful of all ofthem. They talked with cynicism about the failureof the authorities to bring alleged perpetrators ofhuman rights violations to justice.

The work of Amnesty International and otherorganizations over the past few years has broughtsome success. After the visit by the SecretaryGeneral in February 2000, two prisoners who had“disappeared” more than eight weeks earlier werereleased. The appointment in May 2000 of themembers of the National Human RightsCommission, nearly four years after the law waspassed in parliament, was seen as a result ofsustained pressure by Amnesty International andthe international community in conjunction withlocal non-governmental organizations (NGOs).

The national office of Amnesty International inNepal has also worked with the Nepal PoliceAcademy to provide basic human rights training toofficers and junior police personnel. Between 1998and mid-2001, Amnesty International Nepaltrained nearly 2,200 police officers of variousranks. An evaluation of the impact of the trainingfound that the participants' awareness of humanrights had increased, especially in relation to anti-torture provisions in international instruments andnational laws.

However, amid the deteriorating human rightssituation, the space for human rights work isnarrowing. Members of CPN (Maoist) havethreatened local human rights defenders, especiallyin remote areas of the country. Police and armyhave pressurized human rights organizations to



As an international human rights organization,Amnesty International's mission is to undertakeresearch and action focused on preventing andending grave abuses of the rights to physical andmental integrity, freedom of conscience andexpression, and freedom from discrimination,within the context of its work to promote allhuman rights enshrined in the UniversalDeclaration of Human Rights.

Amnesty International is independent of allgovernments and political ideologies and itsworking methods are designed to upholdinternational solidarity, impartiality andprotect the organization's independence.Through their work on other countries AmnestyInternational members uphold the principle ofinternational solidarity with victims of humanrights abuses throughout the world. Theorganization's international bodies produceresearch and campaigning materials on whichthis work is based.

refrain from investigating complaints of humanrights violations. A number of lawyers representingpeople charged in connection with Maoist activitiesor in torture compensation cases have reportedlyreceived threats. Journalists, especially those basedin more remote districts, have been put underpressure by police, army and Maoists not to reportabuses. There have also been reports that somejournalists were tortured by the security forces andMaoists.

Human rights groups have reported that theirability to operate freely was being undermined bythe government, especially after the declaration ofthe state of emergency. They are finding it increas-ingly difficult to verify on-the-spot reports ofalleged human rights abuses. At least 10 humanrights defenders have been arrested or harassed.

On 28 November 2001, the Ministry ofInformation and Communication published a listof issues not to be published or broadcast. Theyincluded “anything that aims to create hatred anddisrespect against His Majesty the King and theRoyal Family”, “anything that is likely to createhatred against Royal Nepal Army, police and civilservants and lower their morale and dignity” and“news that supports Maoist terrorists includingindividuals or groups”. The Ministry encouragedthe media to publish official news and reports“regarding bravery and achievements of [the] RoyalNepal Army, police and civil servants”. Fifty-ninejournalists were arrested in the first few weeks afterthe declaration of the state of emergency, 29 ofwhom had not been released by mid-February2002. The media generally applied self-censorshipof news related to the “people’s war”. Severaljournalists who tried to visit areas where the armywas deployed were told to leave. Others werequestioned in relation to articles published; somewere reportedly tortured. All these developmentshave made the work of Amnesty International moredifficult.

The way forward

The Nepal authorities have shown willingness tocooperate with the international community. Nepalhas acceded to all major human rights treaties andhas, under the Nepal Treaty Act of 1993, stipulatedthat provisions in international treaties to whichNepal is a party will supercede Nepalese law wherethere is divergence. Representatives of two UNHuman Rights Commission mechanisms havevisited the country.4 The government also acceptedthe services of the International Committee of theRed Cross (ICRC). Since August 1998 ICRC delegateshave made several visits to prisons and police

stations. After the fighting flared up in November2001, the security forces denied the ICRC access toplaces of detention. However, on 24 January 2002,permission was granted to resume prison visits. Atthe time of writing, to Amnesty International'sknowledge, the ICRC had not been given access toarmy camps.

The UN Special Rapporteur on extrajudicial,summary or arbitrary executions, in her report tothe UN Commission on Human Rights in April2001 of her visit to Nepal in February 2000,recommended that “the international communityshould support and assist the Government with theresources required, including funding andexpertise” to “continue the process of democratiza-tion, and to renew its efforts to strengthendemocratic institutions and protect thefundamental principles this development dependsupon”.5 In her report, the Special Rapporteur alsostressed the “urgent need to put in place strong,independent and credible mechanisms toinvestigate and prosecute alleged human rightsabuses”.

At the time of writing, a process was underway for the government in cooperation withrepresentatives of civil society to draw up Nepal'sfirst National Human Rights Action Plan (HRAP).The first of its type in the South Asia region, theaction plan is intended to give equal attention tocivil, political, cultural, economic and socialrights.6 Although it was initially due to be put intooperation in 2002, there are fears this may nothappen.

The experience of the visit to Nepal in 1996 bythe Chairman of the UN Working Group onArbitrary Detention, however, warrants a note ofcaution. To Amnesty International's knowledge,few of the recommendations made after the visithave to date been fully implemented.7 There istherefore a strong need for the internationalcommunity to assist the government of Nepal in itsefforts to implement the recommendations madeby the experts after their visits.

At a national level, several NGOs havecooperated with the government to improve thehuman rights situation. The Centre for Victims ofTorture in Kathmandu has visited prisons regularlysince 1995. It has provided medical treatment toprisoners with the agreement of the Ministry ofHome Affairs. By request of the PrisonManagement Department, it has developed projectsfor women, children, juveniles and the mentally illamong the prison population.

The world has been slow to wake up to theimpending human rights crisis in Nepal. In mid-April 2001, after a sharp increase in the number of



attacks on police stations by the Maoists, theEuropean Union issued a declaration expressingprofound concern at the escalation of violence andloss of life in the context of the Maoist insurgency.This was the first such statement from theinternational community. After the Maoistswithdrew from talks with the government andattacked army camps and police stations on 23November 2001, there was strong condemnationfrom, among others, the UN Secretary General,India, the USA, China, Russia and the EU. AmnestyInternational is urging the internationalcommunity to monitor closely the situation inNepal with respect to the deteriorating humanrights situation and offer whatever help is needed.

The cooperation of the government, key insti-tutions such as parliament, the judiciary, themedia, the legal and medical professions andother sectors of civil society is essential if thedeterioration in the current human rightssituation is to be reversed. At stake is the welfareand human rights of the current and nextgenerations of Nepal's children.

Chapter 2: Background

Most of the recent grave human rights abuses ofconcern to Amnesty International in Nepal haveoccurred against a background of six years ofviolent political conflict between the Maoists andthe state. Very little analysis has been done aboutthe origins of this conflict. However, it is clearthat the Maoists have found considerable supportamong those dissatisfied with the pervasiveclimate of corruption and the lack of develop-ment under the parliamentary democracyestablished in 1990. Dissatisfaction is particu-larly strong among the unemployed, women,people belonging to traditional “lower” castes,marginalized ethnic groups and poor people inthe rural areas.

The country has a long history of politicalstruggle and many of today's politicians spentyears in prison. The country's first multi-partyelections held in 1959 were won by the NC, but inDecember 1960 the King revoked the Constitutionand dissolved parliament. The prime minister andother politicians were imprisoned and the nascentdemocracy was replaced by an absolutemonarchy. Political parties were banned and asystem of non-party rule (known as Panchayat)was established, centred on the King supportedby key figures in the army, the police and theadministration.

Between 1960 and 1989, political partymembers gradually reorganized themselves intounderground networks. Detention and torture ofgovernment opponents and a ban on politicalactivity contributed to growing opposition to thegovernment. Further repression againstdemonstrations in early 1990 precipitated thefall of the Panchayat regime and the advent ofmulti-party democracy under a constitutionalmonarch.

In February 1990 the NC and the communistUnited Left Front launched the Jana Andolan,also known as the Movement for the Restorationof Democracy (MRD), a largely peacefulcampaign of strikes and demonstrations. Theauthorities attempted unsuccessfully to suppressthe protests by force. In mid-April 1990, scores ofunarmed demonstrators were shot dead by thesecurity forces in Kathmandu. Under increasingpressure, King Birendra dismissed the govern-ment, lifted the ban on political parties andannounced the release of political detainees. Amulti-party interim government was appointed tooversee constitutional reform and preparationsfor multi-party elections.



However, the initial euphoria of having over-turned the Panchayat regime and the hopes thatthe new democracy would allow equal access topower were soon dashed. The political leadersof 1990, many of them from the urban elitebelonging to the “higher” castes, failed to tacklethe traditional hierarchies in political,economic and social organizations. Manypeople continued to feel excluded on the basisof caste or their regional origin. For instance,not a single member of the “lower” castes waselected to the House of Representatives in theparliamentary elections of 1994 and 1999.“Lower” castes as well as ethnic minoritiescontinued to be under represented in politicalparties, the judiciary, the legal profession andthe civil service.

Social and political tensions were exacerbatedby other factors, including the continuingimpunity enjoyed by police, the failure of succes-sive governments since 1990 to alleviate theentrenched poverty of Nepal's rural population orto introduce far-reaching land reform longdemanded by the poor. These factors are seen bymany as explaining the popular support won bythe Maoists.

Among increased political instability after fouryears of rule by a government led by the NCbetween 1990 and 1994, elections were calledearly. However, no political party secured anoverall working majority in the November 1994parliamentary elections and the instabilityincreased even further. Between November 1994and May 1999, there were one minority govern-



Army personnel on patrol in Kathmandu during a strike called by the Communist Party of Nepal(Maoist) in early December, following the declaration of the state of emergency and the deployment ofthe army on 26 November 2001. © Min Bajracharya

ment and five coalition ones. After the NC won amajority in parliamentary elections in May 1999,a power struggle within the leadership of the NC,particularly between Girija Prasad Koirala andKrishna Prasad Bhattarai, continued to destabilizethe country.

International politics have also contributed tothe instability. The December 1999 hijacking of anIndian Airlines aeroplane taking off fromKathmandu airport allegedly by members of theHarkat-ul-Mujahideen, the Movement of HolyWarriors, an armed political group active inKashmir, was seen as one of the first indicatorsthat Nepal had become a place where the rivalrybetween India and Pakistan was being played out.In April 2001 explosives were found at a house inKathmandu where the First Secretary of thePakistan embassy was staying. Between 16 Augustand 9 September 2000 at least 11 Kashmiris werearrested by Nepali police in Kathmandu, one ofwhom remained “disappeared” at the time ofwriting. He is thought to have been handed overto the Indian authorities.

The ‘people’s war’

The origins of the CPN (Maoist) lie in theSamyukta Jana Morcha (SJM), United People’sFront (Bhattarai), the political wing of the CPN(Unity Centre). In May 1991 the SJM gained nineseats in parliamentary elections, but performedpoorly in 1992 local government elections. In1994 the SJM split on the issue of participationin parliamentary elections. One of the leadersopting to remain outside mainstream politicswas Pushpa Kamal Dahal, alias Prachanda. He issaid to have founded the CPN (Maoist) in March1995. Ideologically, the CPN (Maoist) is close tothe Communist Party of Peru (Shining Path).8

Both are members of the RevolutionaryInternational Movement, an umbrella organiza-tion of Maoist movements around the world.

The “people’s war”, declared by the CPN(Maoist) on 13 February 1996,9 aims to establish a“New Democracy” and constitutes an “historicalrevolt against feudalism, imperialism and so-called reformists”.10 The immediate reason givenby the Maoists for declaring the “people’s war”was the failure of the government to respond to amemorandum presented by its representatives toPrime Minister Sher Bahadur Deuba on 4February 1996.

The memorandum listed 40 demands relatedto “nationalism, democracy and livelihood”.These included the abolition of royal privilegesand the promulgation of a new constitution, and

the abrogation of the Mahakali treaty with Indiaon the distribution of water and electricity andthe delineation of the border between the twocountries.

On 13 February 1996, the day the “people’swar” was declared, there were eight incidentsreported from five districts, including attacks onpolice posts and local administrative offices,such as offices of the Chief District Officers(CDOs) and District Development Committees(DDCs) constituting the government at districtlevel. In the following weeks, the violenceescalated, particularly in Rolpa and Rukumdistricts in the Mid-Western Region, one of themore deprived areas of Nepal and thestronghold of the Maoist movement. There werefurther attacks on police stations, banks, officesof Village Development Committees (VDCs),local landowners, and politicians of the NC andother mainstream parties. There were alsoattacks on a number of local offices of interna-tional NGOs.

The Maoists gradually spread their activities toother districts. As of mid-2001, they were presentand active in all but the most remote districts ofthe country. By February 2002, according togovernment statistics, they had killed 538policemen.

In areas where they were strongest, the Maoistsset up parallel political systems to the state's,including “people’s courts”. In Rolpa district, forinstance, it was reported that no new cases werefiled in the district court during 2000 as all caseswere being “adjudicated” by the Maoists.

After the killing of the King, Queen and eightother members of the royal family in June 2001,Prachanda – the leader of the CPN (Maoist) –claimed that the killings were a conspiracyagainst Nepal by “national and internationalforces, who also want to suppress the Maoistmovement”. The Maoists also rejected the reportof an official commission of inquiry appointed bythe new King into the massacre. According to thestatements from witnesses contained in thereport, Crown Prince Dipendra was responsiblefor the killings and subsequently killed himself.On 11 June Prachanda appealed for the establish-ment of an interim government which would “...play the historic role of institutionalizing therepublican system.” The Maoists also stepped uptheir activities in and around Kathmandu. In lateJune and early July 2001, a number of bombsexploded in the centre of Kathmandu, the firstsuch attacks since the declaration of the “people’swar”. Near the bombs, banners were put upcalling for the King and Prime Minister to be



brought down. Although no one was injured bythese bombs, they spread fear among thepopulation.

The government's response

It is generally accepted that the authorities wereslow to react to the declaration of the “people’swar”. When Amnesty International metgovernment officials in November 1996, ninemonths after the “people’s war” was declared,several ministers stated that the government hadnot yet devised a detailed strategy to seek apolitical solution or to address the human rightsviolations reported.

In March 1996 the Prime Minister had calledan all-party meeting in which eight politicalparties participated. Press reports stated that thegovernment had decided on a two-track approach:“re-asserting security measures, and concomi-tantly exploring possible political solutionswithout resorting to human rights violations.”11

However, the measures announced byconsecutive governments in the next five yearswere largely designed to address the law andorder situation rather than the wider causes andissues of the conflict. Several attempts at enteringa dialogue failed, often falling victim tomanoeuvring within or between political parties.

In early November 1995, prior to the formaldeclaration of “people’s war”, a police operationcode-named “Operation Romeo” was launched inRolpa district. According to the then AdditionalInspector General of Police, this involved policeattempting to “win the hearts and minds of thelocal people” thereby denying the CPN (Maoist)its support base. It also involved policeencouraging local officials to set up developmentprojects.

However, local human rights organizationsreported that many human rights violations werecommitted during “Operation Romeo”. Thearbitrary arrest and detention of more than 200members and supporters of the SJM, many ofwhom were ill-treated or tortured in custody, wasseen by observers as having increased support forthe “people’s war”. In addition, many of thedevelopment projects failed to materialize.

On 26 May 1998 a new government led byPrime Minister Girija Prasad Koirala of the NClaunched an “intensified security mobilization”operation, commonly referred to as operation“Kilo Sera II”.12 It involved the transfer of armedpolice units from Kathmandu to the districtsconsidered “most affected” by the “people’s war”,including Rolpa, Rukum, Jajarkot and Salyan in

the Mid-Western Region, Gorkha in the WesternRegion and Sindhuli in the Central Region. Therewas an alarming increase in reports of gravehuman rights violations, especially unlawfulkillings and “disappearances” during theoperation (see Chapter 3).

In July 1998 the government announced ageneral amnesty for members of the CPN(Maoist) who surrendered and agreed to “give uparms and participate within the democraticframework as laid out by the Constitution”. Ayear later the government announced that Rs 30million (about $391,600) had been madeavailable to finance the implementation of theGanesh Man Singh Peace Campaign packageaimed at rehabilitating Maoist activists whoagreed to surrender and paying relief to victimsof abuses by the Maoists.13 Under the schemesocial utilities destroyed by the Maoists wouldbe rebuilt. In November 1999 a task forceconvened by the Home Minister to implementthe package announced that relatives of victimswho had been killed by the Maoists wouldreceive an allowance and that scholarshipswould be provided to children in affectedfamilies up to secondary level. In each district, acommittee with the CDO as convenor wasformed to implement the package. WhenAmnesty International delegates asked CDOs inNovember 2000 about the implementation of theGanesh Man Singh Peace Campaign, they weretold that the fund had been used to providefinancial assistance to victims of Maoistviolence. Amnesty International did not find anyevidence that the money had been used tosupport “rehabilitation” projects for Maoistswho had surrendered to the police. It also foundthat there was no proper record keeping of howthe money was being spent.

Up until October 2000, according to officialfigures, 2,506 people had surrendered to thepolice. By early February 2002, more than 11,000were said to have done so. Among them weremany people who had given food or shelter to theMaoists, often under duress. Others had beenactive at the lower levels of the “people’sgovernment” set up by the Maoists.

As the violence spread across the country andthe number of police personnel being killed andinjured increased, senior police officers acknowl-edged demoralization and lack of relevanttraining among police to fight the Maoists.

Police complained that they did not have thenecessary powers to arrest and keep in custodythose suspected of being involved in violentactivities. Consecutive governments attempted to



introduce new legislation to widen the powers ofthe police, but no such legislation was passedthrough parliament mainly because of theprevailing political instability. However, inJanuary 2001 various changes in the legalframework were introduced via Ordinances.14

One of the Ordinances passed in January 2001established a paramilitary police force (the so-called Armed Police Force, APF). Anotheramended the Local Administration Act to giveadditional powers to the administrators of the fivedevelopmental regions, including powers to“maintain or arrange for maintaining peace,security and order within the region”. Thegovernment also formed a Special Court under theSpecial Court Act, 1974 to hear cases againstpeople charged under the Anti-State Crimes andPenalties Act (see Chapter 3). In August 2001 theOrdinances were approved by parliament andbecame law.

The government also set up securitycommittees at the village, district and regionallevel. The role of these committees was vaguelydefined as “to extend cooperation in the task ofmaintaining peace, security and order”. AmnestyInternational was informed by the authorities thatthe committees at village level were responsiblefor appointing guards, who, in the event ofactivity by members of the CPN (Maoist), wouldalert the nearest police station. The guards werenot to be provided with arms by the centralgovernment, but could obtain gun licences.Observers point out that similar committeesduring the Panchayat era were used to stoppolitical opposition. They also point out thatalthough the committees are said to report to theHome Ministry, there is no transparency abouttheir work and the Home Ministry has neverreported to parliament about them.

In April 2000 Prime Minister Girija PrasadKoirala activated the National Defence Council(NDC).15 In October 2000 it was decided to stationthe army in 16 district headquarters after theMaoists attacked Dunai, the headquarters ofDolpa district and killed 14 policemen, robbedover Rs 60 million (about $785,000) from the localbank and freed all prisoners from jail. Afterincreasing numbers of police personnel werekilled, abducted or taken hostage during attackson police posts in early 2001, on 13 July the armywas for the first time directly deployed against theMaoists. Soldiers were sent to Holeri andNuwagoan VDCs in Rolpa district with directionsto obtain the release of 69 police officers and twocivilians abducted by the Maoists the previousday during an attack on Holeri police post.

Reports of what happened in this remote areawere unclear. There apparently was noengagement in combat, and the army withdrewafter several days. Soon after, Prime MinisterGirija Prasad Koirala resigned. He was replacedby Sher Bahadur Deuba.

After the resumption of the conflict inNovember 2001, the army, the newly-formed APFand the police reportedly began joint operations,including “cordon and search” operations, duringwhich they carry out house to house searches.Neither the army nor police has experience ofcounter-insurgency operations. The hilly andthickly-forested terrain, much of which is inac-cessible by road, present a further challenge to thesecurity forces. The security forces also face diffi-culties in identifying those they want to detainamong the civilian population. Reports indicatethat during “cordon and search” operations, theyhave arrested people whose names featured onlists provided by the local administration. Thelists reportedly contain names of people whowere suspected of having provided food or shelterto the Maoists and of having attended Maoistmeetings during the cease-fire.

The heightened security risks have increasedthe expectations of the newly-formed NationalHuman Rights Commission (NHRC) to monitorthe human rights situation and remedy violations.NHRC members were appointed on 5 June 2000 –nearly four years after the legislation for theNHRC’s establishment was passed in parliament.16

At the time of writing the NHRC was still in itsformative stage and its first annual report had notbeen made public. The effective functioning ofthe NHRC was hampered by insufficient financingand staffing. The government allocated only Rs 5million (about $65,400) against the Rs 25 million(about $330,700) requested by the Commission forits first year. There was a lack of cooperation fromthe civil service, particularly the home ministryand police. In some cases of “disappearances”,the police apparently blatantly lied to the NHRC.For instance, Amnesty International learned thatpolice in writing denied the detention of a Maoistsuspect held at Hanuman Dhoka police station inFebruary 2002, while on the same day allowinghis relatives to see him.

The government has also initiated variousreforms in the police and judiciary with theassistance of the international community. Forinstance, 26 community centres were set up in2001 under a community policing program. InAugust 2000 a Criminal Justice Task Force wasformed under the Attorney General to makerecommendations for the reform of the criminal



justice system. The task force reported to thegovernment in August 2001. It reportedlyrecommended that a new Penal and CriminalProcedure Code would be drawn up to replace theMuluki Ain (Civil Code) of 1962.

Attempts at dialogue

In light of the radical nature of the main demandsof the Maoists, in particular the de facto abolitionof the constitutional monarchy and the establish-ment of a people’s republic, it has been difficultfor successive governments to enter into ameaningful dialogue with the Maoists.Nevertheless, attempts have been made.

An eight-member “High Level ConsensusSeeking Committee” chaired by Sher BahadurDeuba was appointed in November 1999 byPrime Minister Krishna Prasad Bhattarai. Theleader of the CPN (Maoist) in a letter to theCommittee in June 2000 indicated hiswillingness to sit down to talks on conditionthat a number of demands were met, including aceasefire from the date the talks begin, aninquiry into the whereabouts of Maoistsupporters who were detained and subsequently“disappeared”, and a judicial investigation intoa number of incidents, including the killing ofcivilians and burning of villages in Khara VDC,Rukum district in February 2000. On 7 August2000 the Maoists’ leader ruled out immediatetalks. He accused the Prime Minister ofattempting to enlist India's support in jointoperations against armed opposition groups,including the CPN (Maoist), operating along theIndia-Nepal border, and reiterated that the partywould only engage in talks once theirconditions were met. The mandate of theConsensus Seeking Committee was not extendedwhen it ended in October 2000. TheCommittee's final report described the “people’swar” as a political problem arising from thecountry's socio-economic structure, and urgedthe government to hold talks with the CPN(Maoist) about their demands, apart from thosecalling for constitutional changes. It alsosuggested that the security apparatus bestrengthened.

Throughout the latter part of 2000, furtherattempts were made to initiate a dialogue.However, this process was hampered by disagree-ment and political manoeuvring, especiallywithin the NC. After the resignation of PrimeMinister Girija Prasad Koirala, the newly-appointed Prime Minister Sher Bahadur Deubaand the Maoists swiftly agreed a cease-fire on 23

July 2001. Three rounds of talks were heldbetween both sides. However, negotiations brokedown in late November 2001 over the politicaldemands of the Maoists, in particular the demandfor the setting up of a constitutional assembly.



Chapter 3: Abuses by stateagents

When human rights principles were put at theheart of the new constitutional order in 1990,there was enormous hope that the patterns ofabuses by state agents would end. Those hopeshave not been realised. Since 1990, and particu-larly since intense security operations werelaunched in May 1998, a wide range of humanrights violations have been regularly reported.They include extrajudicial executions, “disap-pearances”, torture, arbitrary arrests anddetention, and unfair trials.

One of the main reasons for the continuation ofhuman rights violations has been the impunityenjoyed by police and other state agents.Successive governments have consistently failedto ensure that proper investigations – a prerequi-site for achieving justice – are held in cases ofhuman rights violations. Indeed, the few investi-gations that have been carried out were done bythe police or army themselves or by officials ofthe Ministry of Home Affairs or Ministry ofDefence, under whose authority the police andarmy respectively function. Such investigationshave been acknowledged by various officials to beintended as a response to public pressure ratherthan as a systematic means of addressing andpreventing human rights violations.17 The result isthat very few alleged perpetrators of human rightsviolations have been brought to justice.

Apart from the NHRC, there is no permanentmechanism to investigate independentlyallegations of human rights violations by thepolice or army. Under the Commission of InquiryAct, 1969 an independent commission can beappointed by the King on the advice of thegovernment. However, this power has rarely beenused. In 1990, two commissions were appointedto investigate respectively “loss of life andproperty” during the MRD in 1990 and “disap-pearances” during the Panchayat era. The firstcommission, known as the Mallik Commission(after its chairman, judge Janardhan Lal Mallik),in its report submitted to the government in late1990 recommended, among other things, theprosecution of several alleged perpetrators ofhuman rights violations, including severalministers and senior police officers. However,despite widespread campaigning, no action wastaken on these recommendations.

The last time a commission of inquiry wasappointed under the above Act was in 1993 after

nationwide strikes were called by the CPN (UnitedMarxist Leninist – UML) against the findings of anad hoc commission that had investigated the deathof the party’s General Secretary, Madan Bhandari,and another party member when the jeep in whichthey were travelling careered off the road in May1993. The commission was reported to haveconcluded that there was no conspiracy to murderMadan Bhandari but recommended that furtherissues be examined. To Amnesty International’sknowledge, no further investigations into the deathof Madan Bhandari were initiated.

In late 1993 Authority Abuse Cells were set upin all regional police headquarters to investigatereports of human rights violations by the police.The exact working methods of these cells areunclear, nor is information publicly availableabout the number or kinds of cases investigated bythem. During a visit to Nepal in February 2000,Amnesty International delegates were told by thethen Inspector General of Police that “in caseswhere there is controversy”, the Home Ministerwill appoint a special team to investigate theincident; this team will include at least one repre-sentative of the police department. He providedAmnesty International with a list of 23 policeofficers against whom action had been taken for“abuse of authority and human rights violations”.On examination, Amnesty International found that14 of the 23 officers were facing criminal charges ina court of law relating to three cases of humanrights violations, including charges of rape andmurder. The other nine officers were facing onlydisciplinary action in relation to offences such asvandalism, non-payment of a hotel bill and bribery.

Like the police, the army has an internalprocess of investigating allegations of mis-conduct. However, very little is known about theexact nature of the investigations or about anytrial procedures used.

Amid increasing pressure to tackle the climateof impunity, the government in 1996 passed theTorture Compensation Act (TCA). This providesthat victims of torture or relatives of people whodied in custody as a result of torture can apply forcompensation to the local district courts. Thepassing of this law has to a large extent fulfilled thecountry's obligation under the UN Conventionagainst Torture and other Cruel, Inhuman orDegarding Treatment or Punishment (Conventionagainst Torture), which it ratified in 1990, toprovide victims of torture with “an enforceableright to fair and adequate compensation”.However, in many respects it remains a remedywithout teeth, not least because torture is notdefined as a crime in the Act.18



Unlawful killings

The Constitution of Nepal does not explicitlyguarantee the right to life.19 Since the start of the“people’s war”, there has been increasing concernthat the authorities have failed to impose strictlimitations on the use of force and firearms by thesecurity forces or to take appropriate actionsagainst abuses. After the declaration of the state ofemergency, this concern was heightened. It wasfeared that the army and police would interpret thesuspension of fundamental rights as set out aboveto include a suspension of the right to life. UnderArticle 4 (2) of the ICCPR there can be noderogations from the duty to uphold the right to lifeeven “in time of public emergency which threatensthe life of the nation”.

Unlawful killings, including extrajudicialexecutions by police, started about one year afterthe start of the “people’s war” and many werereported after the launch of the “intensifiedsecurity mobilization” operation in May 1998.After February 2000 there was a marked declinein the number of killings, attributed to increasinginternational pressure on the government, achanging ground situation with a weakened anddemoralized police force largely confined to mainpolice stations, and the ongoing attempts toinitiate a dialogue between both sides. However,after the army was called out and the state ofemergency imposed in late November 2001, thenumber of alleged unlawful killings increaseddramatically. The reported incidents includedkillings of civilians in reprisal for the killing ofpolice personnel by members of the CPN (Maoist);killings of armed members of the CPN (Maoist) incircumstances where they could have been takeninto custody or where they already had beentaken prisoner, and the avoidable use of lethalforce.20

The authorities’ failure to condemn the policeand army for extrajudicial executions has been adisturbing and contributing factor in thecontinuing cycle of such killings. To date, none ofthe alleged unlawful killings reported duringpolice and army operations in the context of the“people’s war” has been independently investi-gated, and no member of the police or army hasbeen charged with murder or related offences.

On 22 February 2000, 15 civilians were killedby police apparently in reprisal for the killing of 15policemen during an attack by members of the CPN(Maoist) on a police station at Ghartigaun, Rolpadistrict three days before. Thirty police officersfrom Simrutu police station were sent to Kumcheri,in Khara VDC, Rukum district to search for Maoists

believed to have participated in the attack on thepolice station. At around 5am police spotted sevenor eight Maoists hiding in the jungle. A group ofpolice chased them and one policeman died in anexchange of fire. Reinforcements reportedlyarrived by helicopter from Musikot police station(Rukum), Salyan, Nepalgunj and Jajarkot. Policestarted to burn houses in Khumcheri, Haiwang,Kural and Pokhari. In Pokhari, seven civilians werekilled. A further seven were killed in Kural andone more in Daya. According to survivors, policedragged people out of their houses and shot them.All those killed were supporters of the NC. Theyincluded a Ward Chairman, Trivan Wali, and a 16-year-old boy, Tikaram Khatri.

The then Minister of Home Affairs reportedlydenied in a newspaper interview that there hadbeen any extrajudicial executions in Nepal whenasked about the killings in Khara VDC.21 He statedthat the report of an inquiry headed by a Joint



The surviving members of the family of GovindaKhadka who was killed by police in KharaVillage Development Committee, Rukum district,in February 2000. © unknown

Secretary in the Ministry into this and otherincidents reported in the context of the Maoist“people’s war” would be published “in duecourse”. Amnesty International urged theauthorities in March 2000 to immediately makepublic the report of the inquiry so that the relativesand others could assess the basis on which theinquiry came to the apparent conclusion that thesewere not extrajudicial executions. The report wasnever made public.

Harikala Poudel, a 21-year-old member of theCPN (Maoist), was killed by police at Nalma VDC,Lamjung district on 6 September 2000. She hadreportedly gone to Nalma with other Maoiststudents and women activists to warn theteachers in the village not to teach Sanskrit.According to witnesses, police from Borletarpolice station grabbed Harikala Poudel while shewas collecting water from a tap. They dragged heraway and shot her within a few minutes. Her bodyreportedly had a bullet wound in the chest. Thepolice reportedly took her body to the nearbyjungle and threw it in a small ravine. The DSP inLamjung district, when asked by AmnestyInternational about the incident, said thatHarikala Poudel had been killed when policereturned fire from a group of Maoists. He said thattwo police officers had been injured in theshooting, but this was not confirmed byindependent sources.

On 28 November 2001 at Tribhuvannagar, Dangdistrict, 11 farmers (Asharam, Krishna, Jogi, Ripu,Ramu, Parashu, Situ, Jagaman, Khushilal, Rup Laland Sangra Chaudhari) were reportedly lined up bythe army after they had admitted to being sympa-thizers of the Maoists and deliberately killed.These people, although politically sympathetic tothe Maoists, were not armed.

Chandradip Yadav, Uttimlal Yadav andDevkumar Yadav, relatives of a known Maoistleader, were reportedly killed by police atJanakpur town, Dhanusha district on 6 December2001. According to the Superintendent of Police,they were killed while trying to escape from apolice van on their way to the district policeoffice, after arrest. However, other sources allegethey were forced to get out of the van and told torun, and then deliberately killed by police.

There have been many such reports of thepolice and army summarily executing members oralleged members of the CPN (Maoist) already takeninto custody in blatant violation of internationalhumanitarian law as well as international humanrights standards. In late January 2002, AmnestyInternational wrote to Prime Minister SherBahadur Deuba urging him to order independent

investigations into 20 reports of killings where theMinistry of Defence claimed that the person killedwas a Maoist who was shot dead while trying toescape custody or running away during a “cordonand search” operation. It put before the PrimeMinister evidence of two incidents where eye-witnesses have stated that civilians weredeliberately killed by the security forces. Theofficial version of these incidents put out by theMinistry of Defence still stated that those killedwere Maoists shot dead while trying to escapecustody or while running away during a “cordonand search” operation.

One of these incidents, reported on 6 January2002, involved a 14-year-old mentally disabledboy, Dalle Nepali, from Ward No. 6, Pipaltari,Myagdi district, who was killed by the securityforces at Sankhoriya Das area, Katuwachauwari, innearby Parbat district. The security forces claimedthat the boy was a member of the CPN (Maoist)who had been killed while trying to escape from a“cordon and search” operation. They also claimedhe was among a group of Maoists who hadambushed the security forces. However, hisrelatives say that he had gone to Beni Bazaar toattend a health clinic to get treatment for a cleft lip.According to witnesses, the boy had indeed runaway when he saw the army, and soldiers had shotat him without making an attempt to arrest him.

There have also been regular reports that thepolice and army have forced villagers to assistthem when confronted by armed Maoists, puttingcivilians at grave risk. Such actions violate inter-national humanitarian standards.

In an incident reported from Sindhuli districton 3 November 1998, a villager forced by police toassist them witnessed the killing of five Maoistswith no apparent attempt to detain them. Hereported how police forced him to enter a housewhere they suspected armed Maoists were hiding.One of the alleged Maoists threw a home-madeexplosive at him. While police were taking shelterto escape the explosion, the villager ran outside.The police officers shouted at him not to run or hewould be killed. He subsequently heard shotscoming from the house. When he re-entered thehouse later, he saw the bodies of five allegedMaoists. There were no wounded among the policeofficers. He saw explosives, but no guns belongingto the Maoists.

The next day, when police returned, one of thebodies was missing. Police demanded that thevillagers explain what had happened to the body“or become the fifth body yourselves”. The policeburned the four bodies near the river. A villagerwho had been told by police to guard the house



was arrested on suspicion of helping the Maoist toescape. He was tortured for three days in policecustody. The torture stopped only after the fifthbody was found by villagers in the forest: itappears that the fifth wounded Maoist hadregained consciousness and tried to flee, but haddied soon after.

Many killings have occurred during attacks ongatherings and meetings of unarmed sympathizersof the CPN (Maoist). The police and army haveused lethal force indiscriminately or without firstassessing whether lives would be put at risk orwhether there was a possibility of detaining allegedMaoists without putting lives at risk.

Harischandra Shrestha and Bipana Nakarmi,two unarmed sympathizers of the CPN (Maoist),were killed by police on 21 April 1999 when theywent to Bakrang village in Gorkha district toannounce a forthcoming strike called by theMaoists. A villager, Ram Bahadur Aryal, who hadcome out of his home when he heard the shooting,was also shot dead. His brother, Sanjeev Aryal, wasshot and injured in his left arm and left leg. Whena delegation of local human rights activists raisedits concerns with the then DSP of Gorkha districtthe next day, he reportedly confirmed thatHarischandra Shrestha and Bipana Nakarmi hadnot been armed. He reportedly added, “They areMaoists, so we shot them.”

On 14 January 2000, seven villagers and twomembers of the CPN (Maoist) were killed bypolice in the village of Dhungal in Dhanku VDC,Achham district. According to survivorsinterviewed by Amnesty International, threearmed Maoists entered the village and orderedpeople to provide food and shelter to 50 to 60members of their group, who were to perform acultural program as part of their politicalcampaign. The following day the villagers wereordered to attend the program, which was set upin the local school. The police were reportedlyalerted at around 5pm. A patrol of 14 policeofficers was on its way to the school when aMaoist keeping watch fired a warning shot in theair. All but two of the Maoists managed to flee. Asthe first police shots rang out, the villagers ran outof the school and took cover. Reports indicate thatthe police fired indiscriminately and withoutwarning. Four villagers were reportedly shot deadwhile sheltering in a tea shop when police officersfired indiscriminately through the shop window.Three others were shot dead while running away.Eleven other villagers were wounded. Witnessessaid that the two Maoists who had not escapedwere summarily executed at least eight hours laterafter they had been captured unarmed by the

police. According to testimonies, the bodies of allthose killed were burned without being formallyidentified. Two 16-year-old youths werereportedly among those killed: Madan KumarChalaune and Padam Dholi.

The UN Special Rapporteur on extrajudicial,summary or arbitrary executions during her visitto Nepal in February 2000 investigated thekillings in Dhungal. According to governmentrepresentatives she met, a police patrol went tothe village to apprehend an armed CPN (Maoist)group. While the police were surrounding thevillage the armed Maoists retreated whileexchanging fire with the police. Nine people –seven villagers and two members of the CPN(Maoist) – were killed. According to governmentofficials, all seven villagers were killed when theretreating Maoists detonated bombs and handgrenades in the village.

The UN Special Rapporteur reported that thetestimonies she took “indicate that the policewhen launching their assault fired their riflesindiscriminately at the houses and shops wherecivilians were taking shelter”. She also noted thatthe then Home Minister visited Dhungal shortlyafter the incident and that compensation was paidto the families of the villagers killed. Sheexpressed her deep concern, “that despite strongindications of indiscriminate use of firearms andpossible extrajudicial executions by the police, noindependent investigation has been initiated”. Inmeetings with the Special Rapporteur both theHome Minister and the Inspector General of thePolice maintained that all the victims in theincident were killed by the retreating Maoists.The findings of a Home Ministry inquiry werenever made public.

In the period immediately following thedeclaration of the state of emergency, there wereseveral reports that civilians had been shot deadby the army from helicopters. In one suchincident reported on 30 November 2001, fivecivilians, Bali Ram Thapa, Man Bahadur Gurung,Dil Bahadur Gharti, Gayatri Gurung and PhursiRoka, were reportedly killed by shooting from anarmy helicopter while they were observing areligious festival (Baraha pooja) at Meldhara,Rolpa district. After widespread protests againstshootings from helicopters, such incidentsstopped being reported.

Amnesty International recognizes that policeand army officers often have to make split-seconddecisions in difficult circumstances, and that itdoes not have access to the full facts in all thecases of alleged unlawful killings that have beenreported. Nevertheless, there are serious doubts in



many cases whether those killed were armedMaoists and whether, if they were, they offered animmediate threat to life when they were shot.Several of the victims, who include juveniles,were not armed with guns. Others were onlycarrying khukuris.22 Others were killed whilefleeing. Some were shot allegedly after they hadbeen disabled. In several cases, witnesses inde-pendently disputed police accounts of theshootings.

In addition to the numerous killings by thepolice and army reported in the context of the“people’s war”, there have also been regularreports of killings when the police or army havefired on demonstrators or strikers in such a way asto contravene international standards concerningthe use of force and firearms.23 For instance, on 3and 4 June 2001, police reportedly shot dead threepeople and wounded scores of demonstrators whohad taken to the streets of Kathmandu after thekillings of the royal family.

Legal framework

The inadequacies of the current legal frameworkapplicable to human rights violations havecontributed to the prevailing climate of impunityin relation to unlawful killings. So far, none of thealleged unlawful killings reported in the context ofpolice and army operations against armedmembers of the CPN (Maoist) have been indepen-dently investigated. In relation to so-called“encounters”, there is a complete lack of account-ability. Compensation for unlawful killings hasonly been paid by the government in very fewcases.

At a district level, police act under the directcontrol of CDOs. Under Article 6(1)(b) of the LocalAdministration Act, 1971, the CDO must issue awritten, signed order authorizing the police to uselethal force. The law provides that if there is notime to issue a written order, a verbal order can beissued, which must be confirmed in writing assoon as possible, and in any case within 24 hours.If this is not possible, the police have to report inwriting to the CDO clarifying why it was notpossible and setting out the circumstances inwhich officers were required to use force. Aninternal inquiry will then be carried out toascertain whether the officers acted within the law.

It is therefore clear that in legal terms the use oflethal force is considered to be an extrememeasure, to which police can only resort whenstrictly unavoidable to protect life and that adecision to use lethal force has to be taken on acase by case basis by the CDO, unless in

exceptional circumstances. However, whenAmnesty International delegates in late 1996 askedthe CDO in Rukum about several incidents ofdisputed shootings, the CDO admitted that he haddelegated the authority to decide on the use oflethal force for an unlimited period to the DSP andother senior police officers. He had done this on 21February 1996, shortly after three bombs had beenfound in Musikot, including at his office. In thefollowing months, there had been frequentincidents of disputed shootings in Rukum district,in which scores of people were killed. AmnestyInternational was told by the CDO that internalinquiries into the killings found the officers'actions to have been justified in all cases given the



A Nepalese riot policeman holds his colleague ashe shoots rubber bullets at demonstrators nearthe royal palace in Kathmandu on 4 June 2001.The demonstrations followed the killing of 10members of the royal family, including the Kingand Queen. © Reuters

threat encountered or perceived at the time. Thereports of the inquiries, however, are not availableto the public.

In some of the cases the various authorities,including the police and CDO, gave AmnestyInternational conflicting accounts, casting doubton the thoroughness of the internal inquiries orwhether they were carried out at all. In addition,people have independently given AmnestyInternational similar accounts of how theauthorities sanction extrajudicial executions. Inlate 1996, for example, a prisoner and a formerprisoner independently told Amnesty Internationalthat a DSP had scolded a junior police officer forbringing prisoners to the police station. He isalleged to have said: “Why did you not kill themalong the way?”

In November 1999 the then CDO in Gorkhadistrict told an Amnesty International delegationthat 21 “Maoists” had been killed in the districtduring that year. He said it was not necessary toinvoke the provisions of Article 6(1)(b) of the LocalAdministration Act in such cases. He said he gaveapproval for the use of lethal force after the policeinformed him of killings. If the names of thosekilled feature on a list of suspected Maoists whichpolice had provided earlier, he was satisfied.

Under the newly-promulgated TADO, orderscan be issued by CDOs or senior officers of thearmy or police granting powers to the securityforces to “use necessary force or weapons” invarious specified circumstances, including “if itappears that a person who is carrying out or whohas carried out terrorist and disruptive act can runaway or cannot be arrested”; or “if any resistance isput up when someone is being arrested ... or whena search is carried out ... or while taking any otheraction”. The widely formulated provision appearsto be the legal framework within which the army,APF and police were operating and regularizingthe use of force.

According to information provided by theInspector General of Police in February 2000, allreports of “encounter” killings are investigatedunder provisions of the Police Act, 1955 and ifpolice officers are found to have breached discipli-nary rules, they are punished under the Act. Article22(a) of the Police Act contains provisions for thedisposal of unclaimed dead bodies of people whodied of natural causes and for the bodies of peoplewho are found to have died as a result of anaccident, by committing suicide or “in any othersuspicious circumstances”. The Act does notcontain any provisions specifically dealing withcases of suspicious deaths at the hands of the police,but it can be assumed that these cases would fall in

the category of killings “in any other suspiciouscircumstances”. In that case, the requirement is forthe bodies to be cremated only after investigations,including autopsy, have been concluded.

Principle 12 of the UN Principles on theEffective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions requiresthat in all suspected cases of extra-legal, arbitraryand summary executions, “(t)he body of thedeceased person shall not be disposed of until anadequate autopsy is conducted by a physician...”.

As stated above, very few autopsies have beencarried out in cases of alleged “encounter” killings.In most cases, the bodies of those killed arereportedly disposed of on the spot, by burial orburning. Police also allow insufficient time forproper identification before bodies are cremated orburied, making allegations of extrajudicialexecutions by the police extremely hard toinvestigate and verify.

The authorities have argued that bodies aredisposed of without post-mortem because it isimpossible to transport them from the remote areaswhere “encounters” often occur to the districtheadquarters where facilities for the performanceof autopsies are normally available. They claimthat the police are mostly travelling on foot andthat often the nearest hospital is several days’ walkaway from the scene of the incident. However, toAmnesty International’s knowledge, most if not allbodies of police officers killed during “encounters”have been recovered (often by helicopter) andreturned to their families. The validity of theauthorities’ arguments thus has to be questioned.

‘Disappearances’ andunacknowledged detention

On 21 May 1999 Milan Nepali, a journalist, wasseen being put into a police van by eightpolicemen, four in police uniform and four incivilian clothes. The day after his arrest, relativeswent to the nearby police station where aninspector told them that there was no record of hisdetention there. They also inquired at police head-quarters but were given no information. The nextday the relatives returned to police headquarterswith a change of clothes and some medicine. ADSP accepted the clothes and later returned to thefamily the clothes the journalist had been wearingon the day of his arrest in the same bag as the cleanclothes had been brought in. Despite this, policecontinued to deny he was in their custody.

Lawyers filed a habeas corpus writ on his behalfin the Supreme Court at which the witnesses to his



arrest gave evidence. The authorities still deniedhis arrest. The court dismissed the petition on thebasis that not enough evidence had been presented.Two months later, two newspapers reported thatthe journalist and four others who had“disappeared” had been seen in the custody of aspecial police unit at a certain police barracks. Anew habeas corpus petition was filed. A letter sentby the court addressed to the location of thebarracks was reportedly returned stating there wasno such police present at the address. Nearly threeyears later, the journalist and the four othersremain “disappeared”.

Rajendra Dhakal, a lawyer and human rightsdefender, has not been seen since his arrest bypolice on 8 January 1999 from Jamdi, Khairenitar inTanahun district. Also arrested with him were twoteachers from the village, Prem Bahadur Thapa andNaya Datta Adhikari. All three were taken to the BelChautara area police office, about 10 kilometresaway. On arrival at the area police office the twoteachers were separated from Rajendra Dhakal whowas put into a cell on his own. Prem BahadurThapa and Naya Datta Adhikari were released twodays later. The whereabouts of Rajendra Dhakal,last seen by the two teachers at the Bel Chautaraarea police office, remain unknown.

At 5am on 14 January 2002 three army personnelin uniform came to Surya Prasad Sharma's house atSrinagar Tole, Kalika, Baglung district. Surya PrasadSharma had been a member of the CPN (Maoist) buthad returned home to surrender himself to thepolice. The army personnel searched his home forammunition, but did not find anything. They thenarrested him and took him to the Kalidal Gulmaarmy barracks for questioning. His wife tried to visithim on several occasions but was not allowed to seehim. She was also not allowed to give him anyclothing or food. On 22 January, a private sourceinformed the family that Surya Prasad Sharma hadunsuccessfully tried to escape from custody earlierthat day and was therefore being severely beaten.This information was corroborated by anotherprivate source.

However, when relatives visited the army campon 23 January 2002, a soldier at the gate told themthat Surya Prasad Sharma had escaped on 21January while being taken to Amalachour village topoint out a Maoist hide-out. The soldier said thatSurya Prasad Sharma had jumped in theKaligandaki river on the way back to the armybarracks. Since then, Surya Prasad Sharma’s fate orwhereabouts remain unknown.

A disturbing pattern of “disappearances” andlong-term unacknowledged detention emergedafter May 1998 when the police launched the



Lawyer Rajendra Dhakal standing outside theoffices of the Gorkha District Bar Association in1994. He was arrested by police in Tanahundistrict in January 1999 and his whereaboutsremain unknown. © Private

“intensified security mobilization” operation.Between 1998 and mid-2001 AmnestyInternational recorded more than 130 “disappear-ances”. Among the victims were more than 70farmers, 13 women, 13 students, four teachers,three journalists and a lawyer. After the breakdownin the talks between the government and theMaoists and the deployment of the army in lateNovember 2001, there were alarming reports thatmore than 2,500 people arrested on suspicion ofbeing members or supporters of the CPN (Maoist)were being held in unacknowledged detention bythe army and police. Relatives were unable toobtain information regarding their whereabouts forseveral days, sometimes weeks. It is suspected thatmany of them were being held in army campswithout access to their relatives, lawyers ordoctors. This is in violation of the Constitution ofNepal which requires anyone arrested to beproduced before a judicial authority within 24hours.

Among those who have “disappeared” areTanka Prasad Devkota and Badri Bahadur Pandey,teachers at the Jeevan Jyoti Secondary School inGorkha district. They were arrested on 26December 2001 by a group of army and policepersonnel. As of mid-February 2002, theirwhereabouts remained unknown.

Some of the “disappeared” were seen beingarrested by police officers in plain clothes and thentaken away in unmarked vehicles with coverednumber plates. There is strong evidence that thosearrested in Kathmandu and other urban centresand suspected by police to be connected to theCPN (Maoist) have been held incommunicado inunofficial places of detention. Such places includethe Kathmandu DSP's office in the HanumanDhoka police station; the “Anti-Terrorist Unit” inthe premises of the National Police Academy inMaharajgunj, Kathmandu; and the Regional PoliceTraining Centres in Kakani near Kathmandu, inPokhara, Kaski district, in Nepalgunj, Mid-WesternRegion and in Biratnagar, Eastern Region. AmnestyInternational has testimony from several peoplewho have been held at these centres but have sincebeen released describing how they were torturedand forced to sign a statement “surrendering”themselves to the police.

The police unit allegedly responsible for thesecovert operations in urban areas is the “anti-terroristunit”, also referred to as “striking force”, a unitfunctioning under the directorate of operations.

Three men originally from Kashmir, India, whohad been living in the Nepalese capital for severalyears, were reportedly arrested in Kathmandu in2000 and subsequently “disappeared”. They were

among at least 11 Kashmiris arrested inKathmandu at that time, eight of whom were laterreleased. All were arrested by Nepali police inplain clothes. Some sources suspect that Indianpolice or intelligence agencies were involved intheir “disappearance”.

One of the “disappeared” Kashmiris, GulamMohammed Safi, had run a shop in centralKathmandu for approximately 20 years. He wasreportedly arrested on 16 August 2000 by fivearmed police officers in plain clothes, two of whosenames are known to Amnesty International. Thearrest took place at a house in Bhaktapur whereGulam Mohammed Safi had gone to attend afestival. The police also took into custody theNepali couple hosting the festival. Earlier that daypolice had arrested Wazir Ahmed Safi, the nephewof Gulam Mohammed Safi, and asked him to directthem to the house in Bhaktapur. All weretransported in the same police van. The nephewwas taken to the Singha Durbar Ward police post;the Nepali couple to New Road police post. Whenthe police took the Nepali couple out of the van,Gulam Mohammed Safi was still inside. That wasthe last time he was seen. The nephew was releasedafter 10 days' detention; the friend after one day andhis wife after seven days. Family members madenumerous inquiries to the police, governmentauthorities and Indian embassy officials, but thewhereabouts of Gulam Mohammed Safi remainunknown.

Other Kashmiris who were arrested around thesame time and have been released say that they sawGulam Mohammed Safi while they were held at asecret place of detention. One of them reportedlyclaimed that Gulam Mohammed Safi showed signsof having been severely beaten.

Some observers suspect that Gulam MohammedSafi may have been handed over to the Indianauthorities for questioning in connection withactivities of Kashmiri militants. When Kantipurnewspaper reported on these “disappearances” on10 September 2000, the editor reportedly receivedan unsigned letter from police headquarters stating



Gulam MohammedSafi, one of threeKashmiris who werearrested in Kathmanduin 2000 and subse-quently “disappeared”.© Private

that “no Kashmiris had ‘disappeared’”. In a similarletter to the Press Council, it was reportedly statedthat no officials from the Indian police had beencalled to undertake interrogation.

The two other “disappeared” Kashmiris,Mohammad Shafi Rah, aged 32, and his brother,Mushtaq Ahmed Rah, aged 26, who were bothreportedly arrested on 27 August 2000, were finallytraced at Jodhpur jail, India in mid-February 2002.

Many of the people reported “disappeared”from rural areas in the context of the “people’swar” are suspected by relatives to have been killedwhile being taken by foot from their place of arrestto the police station, and their bodies disposed ofin a ravine or river. When relatives have madeinquiries, police have denied that the people inquestion were ever arrested, despite evidence bywitnesses to the contrary.

Government officials have repeatedly deniedthat police have been responsible for “disappear-ances”. They maintain that those said to have beenarrested were Maoists who had gone undergroundor left the country or had been killed by the Maoistsfor indiscipline. However, when representatives ofhuman rights organizations met the then PrimeMinister in early 2000 to inquire about sevenpeople who “disappeared” after they were arrestedin Kathmandu in May 1999, he told them that “theyare already dead”. In March 2001 the Deputy PrimeMinister and Minister of Home Affairs published alist of 282 people in custody for their involvementin “terrorist activities” and 12 others said to havebeen held in “solitary confinement”.24 Among the12 were suspected Maoists, three of whom had beenreported “disappeared” for several months. Theofficial acknowledgement that people were held insolitary confinement, clearly in violation of theConstitution of Nepal, was in itself remarkable.25

Two cases of people who “disappeared” butwere later released demonstrate the possible fate ofmany others who have been reported as“disappeared”. Suresh Ale Magar, a lecturer atKathmandu University and leader of the All NepalIntellectuals' Association (Revolutionary), andPawan Shrestha, an engineer, who were both activein demanding rights for ethnic minorities, wererearrested on 23 December 1999 soon after theSupreme Court had ordered their release.Witnesses saw them being put into a police vanoutside Central Jail, Kathmandu and for the nexttwo months their whereabouts remained unknown.In fact, they were held in unacknowledgeddetention until 26 February 2000, when they werereleased.

One of them told Amnesty International thatthey had initially been taken to the Hanuman

Dhoka police station in central Kathmandu. Theyhad not, however, been taken to the room wherethose arrested normally have their detailsrecorded. Instead, they were taken into anotherroom and their details were taken down in aseparate register. The next morning, they weretaken to Police Headquarters in Naxal, Kathmandu,and held in a “quarterguard's room” containingguns and ammunition. They remained there untilaround 6pm. Then they were taken in a police vanaccompanied by 10 policemen. At around 10.30pmthe van stopped in what appeared to be a policebarracks. Again, they were put in a “quarterguard'sroom”, where they remained confined for 65 daysapart from toilet visits. They were not interrogatedand were never told of any charges or shown anycourt document or charge sheet. At no stage werethey permitted any kind of contact with theirfamily, lawyer or a doctor.

After 25 days in the room, the commandingofficer of the police battalion asked Suresh AleMagar and Pawan Shrestha to write a statementabout their activities on behalf of ethnic minoritiesand about their relationship with the CPN (Maoist).They did so. They stated that they were notassociated with the CPN (Maoist) and that theycondemned the “people’s war” and were preparedto resign from the organizations campaigning forethnic minorities. Another senior police officerasked them to make statements. On one occasion, asenior police officer who had come to inspect the"quarterguard's room" seemed surprised to findthem there and promised to look into the case.

On 25 February 2000 a DSP came to the roomwith papers – one blank, the other printed. The twomen were asked whether they agreed with thecontent of the printed paper. The content wassimilar to their earlier statement, although some ofthe language had been changed. When they agreedto sign the statement, they were asked to rewrite itin their own handwriting.

That same evening, an inspector came andasked them to write another statement, the contentto be the same as the previous one but with the datecoinciding with the time they had been held inKathmandu Central Jail prior to their “disappear-ance”. They agreed.

The next day, they were taken to the localairport and put on an aeroplane to Kathmanduwithout police escort. They were warned not toreveal any information about where they had beenheld during the 65 days; they were told to say thatthey “had been somewhere on their own”. It laterbecame clear that they had been held at theWestern Region Police Training Centre in Pokhara,Kaski district.



Bishnu Pukar Shrestha, a secondary schoolteacher, “disappeared” after his arrest by police on2 September 1999 in Kathmandu. He was 42 at thetime and married with three children. Originallyfrom Dhading district, he moved to Kathmandu in1997 to teach at Mangal Secondary School. From1992 to 1996 he was General Secretary of the NepalNational Teachers' Association. He is also aqualified lawyer and a member of the Nepal BarAssociation. A central committee member of thePeople’s Rights Concern Movement, a nationalhuman rights organization, he has taken part infact-finding missions to investigate reports ofhuman rights violations in the context of the“people’s war” in Mid-Western Region. He hadspoken out against the increasing number of“disappearances” in Kathmandu and otherdistricts.

On the day of his arrest, he was forced into aMaruti Gypsy jeep with black tinted windows.Those who abducted him were suspected of beingpolice officers in plain clothes. One of thewitnesses tried to follow the jeep on his motorbikebut lost contact near the Balambur police post. Thejeep at that time was heading towards the centre ofKathmandu.

Local people heard him shout “my name isBishnu Pukar Shrestha, please inform the policepost”. They contacted the local police atSatumangal but police officers there took no action.When relatives made inquiries at other police postsin the area and at police headquarters, the policedenied that he had been taken into custody.

His whereabouts remained unknown for 10months. He was finally released on 6 or 7 July 2000after sustained pressure was put on the authorities,including from members of parliament, thediplomatic community and local and internationalhuman rights organizations.

The police deny that he had been in theircustody, but reliable reports indicate that for mostof the 10 months he was held incommunicado bythe “Anti-Terrorist Unit” within the premises ofthe National Police Academy at Maharajgunj,Kathmandu – a secret place of detention. For aperiod he was able to pass information secretly tohis relatives, apparently via a sympathetic policeofficer, but this communication subsequentlystopped. His relatives suspected that he had beentransferred elsewhere or killed.

Bishnu Pukar Shrestha was tortured duringinterrogation, including by being tied to a chair,laid on the ground and subjected to falanga(beatings on the soles of the feet). According to areport in Kantipur newspaper, he was released inthe presence of a member of parliament.

Bishnu Pukar Shrestha never appeared before acourt despite constitutional provisions that detaineesmust appear before a judicial authority within 24hours of their arrest. One reason he was held for solong appears to be that he refused to sign a statementadmitting that he was a member of the CPN (Maoist)and promising to “surrender” to the police.

“Disappearances” are not a new phenomenon inNepal. Several “disappearances” were reported inmid-1985 in the context of a civil disobediencecampaign against the government and a series ofbomb explosions in the capital. The UN WorkingGroup on Enforced or Involuntary Disappearances(WGEID) retains four unclarified cases from thatperiod.26 In at least two of these cases, there werecredible reports that detainees had been heldwithin the premises of the Maharajgunj PoliceTraining Centre (now the National PoliceAcademy) in Kathmandu, the same place whereBishnu Pukar Shrestha was held.

The use of unofficial places of detention wasconfirmed in some of the cases of “disappear-ances” of the mid-1980s described in the report ofan official commission of inquiry set up in July1990. The modus operandi currently used by thepolice as described above (the use of unmarkedvehicles with covered number plates, by policeofficers in plain clothes, the use of unofficialplaces of detention and the practice of incommu-nicado detention) is similar to that used in themid-1980s. No action was ever taken on thecommission's findings.

Clarifying the fate or whereabouts of the“disappeared” gained political significance inOctober 2000 when the Maoist leadership put thisforward as a condition for entering into dialoguewith the government. A list of 73 people who had



Bishnu Pukar Shrestha, a secondary schoolteacher, whose whereabouts remained unknownfor 10 months following his arrest by police on 2September 1999.© AI

“disappeared” was submitted by the Maoists to thegovernment at the time.

One of the people listed was Dinesh Sharma, aMaoist leader who had “disappeared” after he wasarrested on 4 December 1999 and whose detentionthe authorities had denied. In October 2000 heand another member of the CPN (Maoist),Dinanath Gautam, were released by thegovernment, apparently to create an atmospherefor talks with the CPN (Maoist). However, DineshSharma was later taken to a press conference bypolice and allegedly forced to denounce the CPN(Maoist). As a result, the prospects for talksworsened.

On 6 March 2001 the government published alist of 294 names of detainees being held oncharges associated with their activities as membersor sympathizers of the CPN (Maoist). Thepublication of the list was said by the governmentto be a response to the demand of the Maoistleadership for clarification of the fate of the 73named “disappeared”. However, the leadership ofthe CPN (Maoist) said that the government was notsincere as the list of 294 contained only three of the73 people they had listed and that the whereaboutsof the other 291 prisoners had been known to theirrelatives anyway.

At the time of writing “disappearances” werestill being reported. For example, Janak PrasadAdhikari, an accountant originally from Nuwakotdistrict, Central Region, who worked at theIrrigation Department, in Lalitpur, Kathmandu,telephoned his family from his office at 1.30pm on1 January 2002, but failed to return home after theoffice closed. On 2 January police officersreportedly searched his home and took awaycitizenship cards, books and other documentsbelonging to the family.

The NHRC and the ICRC were approached bythe family about the alleged arrest of Janak PrasadAdhikari. According to reports, when representa-tives of the NHRC asked the authorities about hiscase, they were told that he had not been arrestedand that security forces personnel were “looking forhim”. His whereabouts were unknown as of mid-February 2002, but unofficial sources claimed hewas held by the army at an undisclosed location.

Legal framework

Habeas corpus petitions have been filed in theSupreme Court by many of the relatives of peoplewho “disappeared” after arrest by the police, butthey have been ineffective in establishing thewhereabouts of those missing. Since the declarationof the state of emergency, despite the large number

of people arrested, to Amnesty International'sknowledge only very few habeas corpus petitionshave been filed. Lawyers are apparently afraid ofbeing arrested under the TADO for “supportingterrorism” if they appear on behalf of peoplearrested under the Ordinance.

In response to writs of habeas corpus filedbefore the declaration of the state of emergency, theauthorities at various levels repeatedly denied thearrest. The Supreme Court allows the relatives ofthe “disappeared” to produce evidence that theywere in custody. For instance, in Bishnu PukarShrestha's case (see above), at Supreme Courthearings nine witnesses gave testimony about hisarrest. The court also ordered the TransportDepartment to reveal the details of the registeredowner of the jeep in which Bishnu Pukar Shresthahad been abducted. At another hearing, the courtordered the jeep's registered owner to attend thenext court hearing. Despite this, 10 months afterBishnu Pukar Shrestha's arrest, the habeas corpuspetition had not succeeded in establishing hiswhereabouts. To Amnesty International's know-ledge, no action was taken against the officersallegedly responsible for illegally arresting anddetaining Bishnu Pukar Shrestha; torturing himand making him “disappear”.

In relation to “disappearances” the SupremeCourt has the power to order an inquiry by anofficer of the court. To Amnesty International'sknowledge, it has done so only once – in the caseof Rajendra Dhakal, a lawyer from Gorkha who“disappeared” in January 1999 (see above). Thecase was pending at the time of writing.

There is no legal basis in Nepali law for compen-sation to be granted in relation to “disappearances”.Amnesty International has called upon theSupreme Court of Nepal to follow the practiceelsewhere in South Asia where the courts haveordered damages to be paid to a petitioner as a formof redress by a specified date in cases where it hasbeen proved that someone who has “disappeared”was last seen in the custody of the state. It has alsourged the court to forward copies of procedures tothe Attorney General for further investigation witha view to prosecute those responsible for the“disappearance”.

Torture and cruel, inhuman ordegrading treatment

Bidur Khadka was arrested by police in Kavredistrict on 30 December 2001, and was reportedlyseverely tortured at Banepa area police station. His13-year-old nephew Santosh Karki was arrested on



19 January 2002 and police reportedly threatenedhim to make him implicate his uncle in a bombingallegedly carried out by members of the CPN(Maoist). Bidur Khadka was reportedly so severelytortured during interrogation that he was unable towalk. Some of the bones in his hands werereportedly broken. Police took him to the SheerMemorial Hospital in Kavre district for medicaltreatment five days after his arrest. The hospitalasked the police to bring him back for follow-uptreatment after seven days, but reportedly policedid not do so. A relative of Bidur Khadka's waspermitted to see him on around 14 January, butwas not allowed to speak to him. The policereportedly gave him some of Bidur Khadka’sclothes, which were covered in blood and pus. On11 February 2002 Bidhur Khadka and SantoshKarki were produced in the Special Court in

Kathmandu and remanded into custody for 10days. Santosh Karki was reported to have aswollen face suspected to be a result of torture. Atthe time of writing, they had not received anyfurther medical attention.

Indra Lal Gautam, a 53-year-old shopkeeperfrom Khalanga VDC, Rukum district, wasreportedly tortured by police at Rukum DistrictPolice Office (DPO) in January 2000 after he wasarrested on suspicion of possession of arms. He wastaken to the inspector's office, where his clotheswere removed. He was beaten with nettles andpunched in the face, causing a nosebleed andbreaking a tooth. He was also beaten on the soles ofhis feet and all over his body. The torture continuedfrom 6am to about 8pm, and carried on the nextday. At around 3pm on the second day, the DSPreportedly ordered the torture to stop.



An Inspector of Police at Attaria police station, Kailali district, putting up "torture free" tape abovethe custody room, during Amnesty International’s Campaign Against Torture in 2000.© AI Nepal

Krishna Serala, a 25-year-old student fromMandu VDC, Bajura district, was reportedlyarrested at his lodgings in Kailali district inFebruary 2000 and taken to Kailali DPO onsuspicion of being a member or sympathizer of theMaoists. The head constable reportedly slappedhim, beat him, then made him lie on the groundand jumped on his thighs. On the fifth day of hisdetention, three police constables hung himupside-down from a pole with a rope around hisankles and subjected him to falanga for about onehour. He was also threatened by having a gunpointed at his chest. After seven days, he wasreleased after local politicians and student leaderswent to plead on his behalf. As a result of thetorture, he reportedly could not walk properly orbend his legs for several days.

Lal Bahadur Tamang, President of the AllNepal Landless People’s Union, Kaski district,was reportedly arrested at around 7pm on 4 April2000 from his home at Ward No. 9, Pokhara city,reportedly on suspicion of being a member orsympathizer of the CPN (Maoist). On the way tothe police station in a jeep, he was allegedlybeaten and then taken to a stretch of jungle nearthe road to Syangja. There, he was reportedlyforced to put on clothes normally worn by CPN(Maoist) combatants and made to hold a gun. Hewas then photographed. He was subsequentlytaken to the City Ward Police Post at Bagar, WardNo. 1, Pokhara, where he was reportedly verballyabused and beaten on his hands, back andbuttocks with sticks and a gun butt by policemenwho had their faces half-covered. He was alsoallegedly given electric shocks to his fingers,forced to urinate on a live electric heater,suspended by his hair and subjected to belana(rolling a weighted bamboo stick or other roundobject along the prisoner's thighs, resulting inmuscle damage) and “wet submarino” (beingsubmerged in water). He lost consciousness.

After members of the All Nepal LandlessPeople’s Union protested against his arrest, hewas released on 7 April 2000. He was admitted tohospital in Pokhara and taken from there to theBir Hospital in Kathmandu. When he wasreturned to Pokhara on 10 April 2000, he wasreported to be still unconscious. He continues tosuffer dizziness, nausea and headaches.

A 40-year-old businessman from western Nepalwas reportedly arrested from his shop in December2001 by three policemen who took him to the localpolice station to see the Sub-Inspector. He wasquestioned regarding the whereabouts of someMaoists whom they said he had been helping. Fiveother policemen were in the room and started

beating him, alleging that he knew everything aboutthe Maoists' movements and that he should tellthem everything. According to the victim, he wassubjected to torture for about three hours on twoconsecutive days. He was beaten on the soles of hisfeet with a rod, after which he was made to jump upand down. He was stripped naked and subjected tobelana. He was boxed on his ears and beaten on hisback with a flat wooden stick. He was punched andkicked in his head. During his two days in custodyhe was deprived of food and water for two days andnot permitted to see any visitors. He was thenreleased, after being told by the police that they hadmade a mistake and had confused him with anothersuspect of the same name.

Bijay Raj Acharya, the owner of a publishinghouse specializing in children's literature andpolitical works, was arrested from his home inKathmandu on 9 January 2002, apparently by ateam of army and police officers. According towitnesses, a team of army personnel searched hishouse following his arrest and took away all hisbooks. He was reportedly first taken to SinghaDurbar police station in Kathmandu and on thesecond day transferred to the Balaju army barracks.At the army barracks, Bijay Raj Acharya wasreportedly blindfolded and had his hands and legstied. He was also allegedly subjected to electricshocks.

Chhabilal Adhikari, a teacher at a local primaryschool in Hansapur VDC, Gorkha district wasreportedly tortured by police who arrested him on20 December 2001. Police reportedly blindfoldedhim and put him in a trench for a whole night. Thenext day, during interrogation about the activitiesof the Maoists in his village, he was whipped onhis head and feet, as a result of which he lostconsciousness. He was released on bail after 21days, allegedly while still unconscious. The policereportedly ordered his relatives to sign a documentstating he was in good health. Chhabilal Adhikariwas admitted to hospital. He was reportedly unableto move his hands and had wounds all over hisbody, including on his nose and head.

These are only a few examples of numerouscases of torture in the context of the Maoist“people’s war” reported to Amnesty Internationalrecently. Torture of ordinary criminal suspectsheld in police custody is also regularly reported.

Sometimes particularly gruesome forms oftorture are reported. They include falanga withbamboo sticks, iron or PVC pipes; belana;telephono (simultaneous boxing on the ears); rape;electric shocks; and beatings with nettles. Therehave also been reports of mock executions andpeople being buried alive up to their necks in a pit



they were forced to dig themselves. Beatings withnettles is often inflicted on women, particularly ontheir breasts and genitals.

The victims have included children. Forexample, 13-year-old Deepak Raut was arrested on30 January 2000 by police in Saptari district withfour other children in connection with a theft.They were held for 18 days. All of them were ill-treated or tortured, but Deepak Raut was treatedespecially badly. Signs of beatings were visible onhis body and were confirmed by a doctor.

Hopes for an end to torture were high whendemocracy was restored in Nepal in 1990. Severalleading members of the political parties had beenvictims of torture under the Panchayat system andhad pledged their commitment to uphold humanrights when they came to power in 1990.

There are many factors that have contributed tothe continuation of torture. One is that Nepal has atradition of torture and humiliation of criminals bypolice and local authorities.27 Despite the politicalchanges over the past 12 years and the generalprohibition of torture in the 1990 Constitution,torture has so far not been defined as a crime andis still widely perceived as acceptable.

Other factors include a lack of training amongpolice personnel, a lack of effective investigativemechanisms and the general climate of impunity inrelation to human rights violations. In relation topolitical detainees, a key factor is the wide powersgiven to the police to detain suspects under thePublic Security Act (PSA – see below, Arbitrarydetention and unfair trial). In relation to commoncriminal suspects and people taken into custody ina non-political context, the main contributingfactor to the persistence of torture is the police'slack of investigative skills. Police take the “easy”option of beating a confession out of a suspect (notnecessarily the culprit), rather than findingevidence that will stand up in court and ultimatelyresult in the conviction of the culprit.

According to Article 9 of the Evidence Act,1974, confessions made through the use of tortureare inadmissible as evidence in court.28 However,the district courts usually accept a confession asprima facie evidence on the basis of which aperson is detained. The courts assume allstatements or confessions taken by the police arenot extracted by the use of torture unless provenotherwise. In other words, the onus of proof is onthe accused who alleges that he or she has beentortured. Such people have to seek to get theconfession declared inadmissible as evidence in anadministrative ruling by the court during thecriminal case proceeding against them. So far, theSupreme Court has not taken a clear stand on

whether the burden of proof should be reversed. Infact, in several judgments, the Supreme Court hasupheld that the person who alleges torture shouldproduce evidence of torture and prove theconfession was extracted by torture.

A practice that contributes to the impunityenjoyed by torturers is that police frequently refuseto allow injured detainees to see a doctor or delaydoing so. A senior doctor told AmnestyInternational that in his experience the averagedelay for victims of torture to be brought tohospital was seven or eight days, by which timesigns of torture are more difficult to ascertain,particularly bruising. The doctor also describedseveral cases where victims had been threatened bypolice not to complain to the doctor about ill-treatment or torture. In addition, he reported thatpolice often remain present during the prisoner'sexamination. Some doctors send them away butothers are reluctant to do so.29

Such practices violate Nepal's obligationsunder the International Covenant on Civil andPolitical Rights (ICCPR), to which the country is aparty. The Human Rights Committee in itsGeneral Comment 20 on Article 7 of the ICCPRhas stated that the protection of detainees requiresthat each person detained be afforded prompt andregular access to doctors. The practices alsocontravene Nepali law: the Torture CompensationAct (TCA – see above) requires that prisoners be“checked up on his physical condition by a doctorin government service, if possible”.

Rape

In June 2001 a 14-year-old girl from Sarlahidistrict was reportedly raped at Ward No. 3,Pattharkot VDC. The police officer allegedlyresponsible was transferred from the area, but noother action was taken against him.

Rape and attempted rape by police has beenregularly reported. Given the cultural andreligious context in which rape victims can facesocial ostracism and shame, it is likely that manycases of rape are not reported. Moreover, theclimate of impunity means victims may believethat little or no action will be taken against theperpetrators if they report the crime. To AmnestyInternational's knowledge, to date only one policeofficer has been found guilty of rape: an assistantsub-inspector attached to the District PoliceOffice in Sindhuli district was sentenced inFebruary 2001 to four years’ imprisonment forraping an 18-year-old woman. The court alsoordered that half his property be transferred to thevictim.



Rape, unlike torture, is defined as a crime inNepali law. Under Section 3 of the Muluki Ain(National Legal Code), rape of a girl of 14 or below ispunishable by between six and 10 years' imprison-ment. Rape of a woman above 14 years old ispunishable by between three and five years’ impris-onment. Under Section 5 (Miscellaneous), rape incustody by a government servant, including police,is punishable by an additional year’s imprisonmentover and above the maximum punishmentsspecified in Section 3.

During the “security mobilization operation”that began in May 1998, there were many reports ofrape in custody by police, particularly in Rolpa andRukum districts. The Human Rights Yearbook2001 of Informal Sector Service Centre, an NGO,reported that there had been three reports of rapeand eight reports of attempted rape in 2000.

Deaths in custody

Some victims of torture in police custody havedied apparently as a result of their treatment.

Others have been shot dead at police posts orstations. For example, Satya Dev Devkota, a 26-year-old man from Ward No. 1, Darmakot, Salyandistrict, who was arrested on 23 February 2000,was reportedly shot dead by police inside thePharula police post and his body buried in thetoilet. However, most people who have died inpolice custody have been killed on the way to thepolice station or at smaller police posts, rather thanat the larger district police offices (see above,Unlawful killings). To Amnesty International'sknowledge, not a single police officer suspected ofbeing responsible for a death in custody in thecontext of the “people’s war” has been brought tojustice.

In most cases no action is taken against policeor army personnel suspected of involvement inthe torture or killing of prisoners. One exceptioninvolved the case of eight police officers whowere arrested and charged with the murder of SukBahadur Lama, a 21-year-old man from Dolakhadistrict. He had been arrested on a criminal chargeand died as a result of injuries inflicted by torture



Body of Suk Bahadur Lama, a 21-year-old man from Dolakha district, who died as a result of torturein police custody in Nawalparasi district in August 1999.© With permission from human rights activists in Nepal

for six successive days at Kawasoti Ilaka policepost, Nawalparasi district in August 1999. A post-mortem found he had multiple burn injuries onboth feet, cauterized abrasions on the upper back,and contusions on the body, legs and soles of thefeet. The eight police officers were released oncondition of appearing in court when required,pending the commencement of their trial.According to a letter from the government toAmnesty International, a three-member commit-tee coordinated by the Joint Secretary of theMinistry of Home Affairs investigated his deathand recommended departmental action againstthe police personnel involved in the “heavy hand-ed treatment” [sic] of Suk Bahadur Lama. Thefamily was given Rs50,000 (about $654) financialassistance by the government – the first time everthat the government has provided such assistance.On 6 November 2001 all police officers chargedwith his murder were acquitted by theNawalparasi court.

Legal background

In 1990 Nepal ratified the UN Convention againstTorture. However, many provisions of theConvention have not been implemented. Mostnotably, there are no legal provisions in thecountry's laws which make torture a crime.Amnesty International believes that introducingsuch penal provision would be an important steptowards ending the current impunity fortorturers.

In a response of 21 March 2001 to an AmnestyInternational appeal to make torture a crime inNepal, the office of the Inspector General of Policeresponded as follows:

“[The] present leadership of [the] NepalPolice is very concerned with issues ofprotecting and respecting human rights andthe rights of the victim. [The] Nepal Police iscommitted to prevent... torture and wouldappreciate any recommendations made indiscouraging such practice.

“We believe that making people aware of itand educating and training the policeofficers in that line is more important inaddressing this problem than introducingstern punitive measures. Thank you verymuch for your communication.”

The implementation of the TCA, the lawpassed in 1996 which provides that victims oftorture or relatives of people who died in custody

as a result of torture can apply for compensationto the local district courts, has not been withoutproblems. For example, a complaint was filedunder the TCA on behalf of 13-year-old torturevictim Deepak Raut (see above). Soon after, on 26May 2000, he was arrested in an apparent attemptto intimidate him into withdrawing the case. Alawyer intervened and Deepak Raut was released.The case under the TCA is pending.

In April 1994 Nepal appeared for the first timebefore the Committee against Torture, the interna-tional body of experts monitoring theimplementation of the Convention againstTorture. The government's initial (two-page)report of September 1993 on the implementationof the provisions of the Convention againstTorture was described by the Committee as “inmany respects incomplete”.30 It was supple-mented at the time of the meeting by a six-pagestatement and a 10-page background note. TheCommittee recommended that a supplementaryreport be submitted within 12 months. ToAmnesty International’s knowledge, no suchreport has been submitted in the nearly eightyears since the Committee asked for it. Nepal'ssecond report, which had been due to besubmitted by June 1996, has to date not beensubmitted to the Committee either.31

The Committee had recommended that Nepalenact legislation incorporating the definition oftorture as contained in the Convention againstTorture as soon as possible. It is regrettable that todate this recommendation has not beenimplemented.

Arbitrary detention and unfair trial

As of February 2002, a total of more than 11,000people were estimated to have been arrested foralleged involvement with the “people’s war”. Thetotal number of political prisoners in custody as ofmid-February 2002 was estimated to be around2,500.

Nepal's Constitution of 1990 contains a numberof welcome safeguards against arbitrary arrest anddetention. However, arrests have continued to becarried out under laws which are largely remnantsfrom the Panchayat era, such as the SarvajanikSuraksha Ain, Public Security Act (PSA) and theRajya Biruddha Apradh Ra Sayaja Ain, Anti-StateCrimes and Penalties Act (ASCPA). Severalprovisions in these laws are in clear breach of theConstitution as well as international treaties, suchas the ICCPR, to which Nepal is a party. SinceNovember 2001, most arrests have been carried out



under the newly-promulgated TADO, severalprovisions of which also are in breach ofinternational standards.

Before the promulgation of the TADO,successive governments had repeatedly attemptedto widen the powers of the police and CDOs toarrest and detain, rather than amend the PSA andASCPA to bring them in line with Nepal's treatyobligations. One of the apparent main aims of theseinitiatives had been to increase the maximumpenalties for certain offences and thus prevent therelease of suspects on bail pending trial. Nepal'scurrent legislation provides that suspects can bereleased on bail if they have been arrested inrelation to offences that carry a maximum penaltyof three years' imprisonment or less.

CDOs have the power to sentence people toprison terms under laws such as the LocalAdministration Act, 1971 (maximum penalty ofthree months) and the Arms and Ammunition Act,1963 (maximum penalty of seven years). They alsohave been given powers to issue preventivedetention orders under the PSA and the TADO andto detain people for up to 25 days pending trialunder the Some Public Offences and Penalties Act,

1970. Charges under the Arms and AmmunitionAct, 1963 in particular have been very commonand CDOs have regularly sentenced suspectedmembers of the CPN (Maoist) to up to two years'imprisonment for the manufacture, repair,possession, sale or supply of arms.

The authority given to CDOs to sentence peopleis a violation of the right to fair trial as guaranteedunder Article 14 of the ICCPR, particularly theright to trial by a competent, independent andimpartial tribunal. CDOs are appointed civilservants and do not have security of tenure. Theirindependence is therefore highly questionable. Inaddition, those tried before CDOs generally do nothave the assistance of a lawyer nor are theproceedings conducted in public. Furthermore,they are given little time to prepare their defence.They have a right to appeal to the Appelate Court,but this can take several months, pending whichthey usually remain in prison.

The Human Rights Committee, at the time itexamined Nepal's initial report under the ICCPRin 1994, recommended that “necessary measuresbe taken... to give effect to the separation ofexecutive and judicial functions”.32 To date, this



Chief District Officer, Prakash Man Pokhrel, talking to detainees suspected of Maoist activities, inRolpa district jail, on 24 February 2001.© Shova Gautam

recommendation has not been implemented. Onthe contrary, there have been many attempts toextend the judicial powers of CDOs, includingtwo in 1997 (by Prime Minister Sher BahadurDeuba and then by Prime Minister LokendraBahadur Chand) and one in 1998 (by PrimeMinister Girija Prasad Koirala). In September1999 the government of Prime Minister KrishnaPrasad Bhattarai introduced a bill, theAmendment of Some Nepali Laws relating to theInternal Administration, which proposed toextend the powers of CDOs to sentence peoplearrested under the Local Administration Act withup to six years' imprisonment for non-violentoffences such as writing or affixing posters orleaflets or participating in a meeting of five ormore people. Amid vociferous opposition fromhuman rights groups, none of these bills waspassed in parliament.

The Constitution

Article 14 (5) of the 1990 Constitution providesthat, “No person shall be detained in custodywithout being informed at the earliest of thegrounds for arrest, nor shall he be denied the rightto consult or be defended by a legal practitioner ofhis choice”. Article 14.6 further stipulates thatdetainees shall be produced before a judicialauthority within 24 hours of arrest. However,these provisions are often ignored. Particularly,the fact that CDOs can in the first instance issuedetention orders under the PSA and TADO andthen act as the judicial authority before whomthat same person is produced is a clear breach ofthe separation of executive and judicial functions.

Moreover, the provision under Article 15 that“no person shall be kept under preventivedetention without sufficient ground of existenceof threat to the sovereignty, tranquility, indivisi-bility or public peace and order of the Kingdom ofNepal” is broadly worded and has failed toprevent arbitrary arrest and detention.

The wording of Article 14 (5) makes thepresence of a lawyer during police custody legallypossible but not compulsory. In practice, lawyersmay intervene only after the case has beenregistered at the court office, and this excludesthem de facto for the first 24 hours of custody.Moreover, the assistance of a lawyer is notcompulsory at any stage of trial proceedings.

The UN Working Group on ArbitraryDetention, in a report of its visit to Nepal in April1996, recommended that the government takemeasures to ensure effective provision for counselto be present from the very first hours of custody.

State of emergency

When the state of emergency was declared on 26November 2001, the government also announcedthe suspension throughout the country of sub-clauses (a), (b) and (d) of clause (2) of Article 12,clause (1) of Article 13 and Articles 15, 16, 17, 22and 23 of the Constitution of Nepal. AmnestyInternational is concerned that the suspension ofthese rights – the rights to freedom of thought andexpression, assembly and movement, the right notto be held in preventive detention withoutsufficient ground, the rights to information,property, privacy and constitutional remedy –throughout the whole country goes well beyondwhat may be considered to be “strictly required bythe exigencies of the situation” as required inArticle 4 of the ICCPR and therefore might beregarded by the Human Rights Committee to be inviolation of Nepal's obligations under this treaty.

The suspension of Article 23 of theConstitution, which denies people access tojudicial remedy (apart from habeas corpus), is ofparticularly grave concern. It prevents, forinstance, any judicial scrutiny of the declaration ofthe state of emergency and the promulgation of theTADO. In Amnesty International's view, this iscontrary to the provisions of Article 2 (3) of theICCPR.33 In its General Comment on Article 4issued on 24 July 2001, the Human RightsCommittee specified that Article 2(3) requires astate party to the Covenant to provide remedies forany violation of the provisions of the Covenant. Italso confirmed that, even under a state ofemergency, the obligation to provide an effectiveremedy remains.

At the time of writing, the government had notissued any specific orders to regulate theimposition of the state of emergency as providedfor in Article 115(7) of the Constitution. Suchorders are applicable in law as long as the state ofemergency is in force.34

The Public Security Act

The PSA, which has been widely used to detainpeople suspected by the government of involve-ment with or membership of the CPN (Maoist)prior to the promulgation of the TADO, isproblematic both in law and practice. The PSA andits rules allow for people to be held in preventivedetention for up to 90 days on the orders of a localauthority, which is normally a CDO, to “maintainthe sovereignty, integrity or public tranquility andorder” of the country. This period can be extendedto six months with the endorsement of the Home



Ministry. A further extension of up to 12 monthsfrom the original date of issue can be obtainedsubject to the approval of an Advisory Boardestablished under the Act.

In addition to these wide powers given to policeand CDOs to arrest and detain, the Ministry ofHome Affairs is designated in the Act as theauthority to which detainees can appeal in the firstinstance. Few detainees use this procedure.Instead, they file habeas corpus petitions in theAppelate Courts or the Supreme Court. However,owing to lack of access to legal counsel in the earlystages of their detention, detainees find it difficultto file such petitions. In addition, police repeatedlydisregard court orders for the release of detaineesand rearrest them immediately upon their releaseby the court. The police's blatant disregard for theauthority and independence of the judiciary is aparticularly disturbing aspect of the current humanrights situation in Nepal.

Article 11 of the PSA stipulates that no orderissued under the Act can be questioned in any courtof law. Amnesty International understands that

judges have generally interpreted this to mean thattheir jurisdiction extends only to determiningwhether the application of the detention order wasprocedurally correct, such as whether written notifi-cation was served on the detainee. The courts do notappear to examine whether a detention is strictlynecessary under the provisions of the law invoked.35

Scores of political activists suspected of beingmembers or sympathizers of the CPN (Maoist) or itsfront organizations have been repeatedly arrestedand detained under the PSA despite court orders fortheir release. For example, Suresh Ale Magar, auniversity lecturer (see above, “Disappearances”),whose lawyers had filed habeas corpus petitions onhis behalf with the Supreme Court, was rearrestedon no less than four occasions between 31 March1999 and 23 December 1999 after the SupremeCourt had ordered his release. Each time, thedetention order was signed by a CDO from adifferent district. The authorities were clearly usinga loophole in the law to keep him in preventivedetention despite court orders for his release. Theloophole allows different CDOs to issue newdetention orders on a person without taking intoaccount that previous detention orders have beenissued or indeed that the Supreme Court or othercourts have ruled that they were unfounded.

Among those detained for long periods underthe PSA have been journalists suspected of beingsympathetic to the Maoists. Krishna Sen, editor ofJanadesh Weekly, spent nearly two years in prison.He was first arrested in April 1999 after thenewspaper published an interview with one of theleaders of the Maoist movement, Dr BaburamBhattarai. Krishna Sen was initially held inBhadragol jail, Kathmandu. After the SupremeCourt ordered his release in August 1999, policerearrested him and took him to Siraha district jail.He was later transferred to Rajbiraj jail in the neigh-bouring Saptari district. On 8 March 2001 a fullbench of the Supreme Court, including the ChiefJustice, again ordered the release of Krishna Sen.The jail authorities released him on 10 March 2001after they received notice of the Supreme Courtorder. However, he was rearrested under the PSAsoon after and “disappeared” for several days.Finally, on 15 March 2001 he was released fromJaleshwor jail, Mahottari district.

The experiences of Kalpana Subedi, a 40-year-old woman from Sindhuli district, show how theauthorities circumvent the provisions in the PSA todetain people beyond the maximum possible lengthof 12 months as set out in the law. She was servedwith five detention orders under the PSA betweenSeptember 1998 and March 2001, each of which wasextended for 90 days with the endorsement of the



“Administrative” or “preventive” detentionrefers to measures under which people suspect-ed of posing a threat to public order or statesecurity are detained by order of state authori-ties which do not intend to prosecute thedetainees with criminal offences.

Amnesty International believes that statesshould not detain anyone unless they are to becharged with recognizably criminal offencespromptly and tried within a reasonable period inproceedings that meet international standardsfor fair trial. The rules of evidence and standardsof proof in the criminal justice system have beenprescribed in order to minimize the risk of inno-cent individuals being convicted and punished.It is unacceptable for governments to circumventthese safeguards and Amnesty Internationalbelieves that it is a violation of fundamentalhuman rights for states to detain people whomthey do not intend to prosecute.

“Administrative” or “preventive detention” isnot explicitly prohibited by international humanrights standards when strictly required duringtimes of national emergency, but even at suchtimes human rights standards applicable to peo-ple in detention apply. For instance, the obliga-tion not to detain arbitrarily and to allow effec-tive judicial supervision have explicitly beenruled to apply to “preventive detention” by theHuman Rights Committee in its GeneralComment 8, 30 July 1992.

Home Ministry. As a result, she spent more than twoand a half years almost continuously in preventivedetention. The detention orders were issued by theCDOs of Sindhuli, Parsa, Rautahat, Makwanpur andKaski districts respectively. On three occasions, herrearrest took place at the gate of the district court,immediately after the court had ordered her release.Her whereabouts were also unknown for longstretches of time.

On each occasion the authorities presented thenew detention order as unrelated to the previousone. This way, they also prevented the furtherextension of detention orders (beyond six months)having to be considered by the Advisory Boardestablished under the PSA. The Advisory Board,according to Section 7 of the PSA, should consistof an incumbent and two other incumbent orretired judges of the Supreme Court. AmnestyInternational has not been able to ascertainwhether such an Advisory Board has been set upand, if so, whether the Ministry of Home Affairshas sought its recommendations in relation toextensions of detention orders beyond six months.

The introduction of the Public Security Rules,2001 in June 2001 presented a further threat to therights of people detained under the PSA, specifyingthe grounds on which detention orders under thePSA can be issued. The new grounds increased therisk of arbitrary arrest and detention. The previousrules, which dated back to 1963, contained anumber of procedural safeguards, several of whichwere removed in June 2001. For instance, the oldrules specified that a copy of a detention order hadto be handed to the detainee within 24 hours of itbeing issued. The new rules did not contain a timelimit. The old rules specified that the Ministry ofHome Affairs had to be informed within 48 hours ifa detention order had been issued. The new rulesdid not specify a time limit. In addition, the 2001Rules contained widely and vaguely formulatedreasons for preventive detention under the PSA,such as “the interest of the common people”, andappeared to further facilitate abuse of the PSA. The2001 Rules were rescinded as a goodwill mesureduring the talks of late 2001.

The Anti-State Crimes and Penalties Act

The ASCPA was passed in 1989. It replaced theTreason (Crimes and Punishment) Act of 1963. In2000 and early 2001, it was frequently usedapparently in an attempt by police to preventsuspects’ release on bail pending trial. As statedabove, people arrested in connection with a crimefor which the maximum penalty is less than threeyears can be released on bail. Under the ASCPA,

people can be sentenced to long prison terms forcrimes such as insurrection and treason, whichcarry punishments of up to life imprisonment.After the promulgation of the Special CourtOrdinance in December 2000, cases filed underthe ASCPA started to be tried under the SpecialCourt Act, 1974. Under the Special Court Act,police cannot take statements from suspectswithout a special representative of the SpecialCourt being present.

The ASCPA has regularly been used by policeto arrest and charge members of Maoist front orga-nizations, including many women. For example,Geeta Shahi, the 23-year-old chairwoman of theAll Nepal Women's Organization (Revolutionary)in Tanahun district, was arrested on 31 October2000 by plainclothes police. The police deniedshe was in their custody for nearly two weeks.When an Amnesty International delegationvisited her after she was traced at Damauli policestation, she said that she had been held inhandcuffs in the DSP's private quarters in thecompound of the police station until 11



Kalpana Subedi, a 40-year-old woman fromSindhuli district, was served with five detentionorders under the Public Security Act betweenSeptember 1998 and March 2001.© Private

November 2000. The custody records showed thatGeeta Shahi's date of arrest was recorded as 10November 2000 – the day after AmnestyInternational's Secretary General had raisedconcern about her safety. At the time the delegatesmet her, on 21 November 2000, she had still notbeen able to consult a lawyer.

Sixteen-year-old Shova Thapa from Lamjungdistrict was held in secret detention for five days inNovember 2000 before being given access to hermother and a lawyer. The DSP admitted to anAmnesty International delegation that he haddeliberately denied that she was in custody “toteach the lawyers and people a lesson”. Thelawyer, although subsequently allowed to seeShova Thapa, was not allowed to consult her.

Both Geeta Shahi and Shova Thapa weresubsequently charged under the ASCPA. Bothwere among those prisoners released by thegovernment in late 2001 as a goodwill measure inthe context of the talks. Amnesty Internationalwas not able to establish whether they wererearrested after the conflict resumed in November2001.

The arrest under the ASCPA on 6 June 2001 ofYubaraj Ghimirey, editor-in-chief of Kantipur, themain Nepali daily newspaper, and Binod RajGyawali and Kailash Sirohiya, the newspaper’sdirector and managing director respectively, wasseen as a warning to the media to refrain fromcommenting adversely in the aftermath of theroyal massacre. Their arrests were connected tothe publication in Kantipur of an opinion piece byDr Baburam Bhattarai, a Maoist leader, in whichhe accused India and the USA of being behind theroyal massacre and urged army personnel not tosupport the new King. Amid widespread protests,they were released on bail on 15 June. The caseagainst them was subsequently withdrawn.

The Terrorism and Disruptive Activities (Controland Punishment) Ordinance

Most of the people arrested in connection with theconflict after its resumption in November 2001have been arrested under the TADO promulgatedat the time. The Ordinance uses vague definitionsof “terrorist” and “accomplice” which includes“any individual who is in contact with or involvedwith the person involved in terrorist anddisruptive activities” and “any person who directlyor indirectly supports financially and by any othermeans a person or group involved in terrorist anddisruptive activities”. Several of these terms mayindicate activities which do not involve anyencouragement to commit violent or criminal acts.

On the contrary, it might include the peaceful,private discussion of political ideas. This wordingcould thus apparently lead to violations of the rightto freedom of expression established in Article 19of the ICCPR.

Section 9 of the TADO permits CDOs andgazetted officers to issue an order “to keep a personin preventive detention at a particular place if thereis reasonable ground to believe that somebodyshould be stopped from committing such acts thatcould amount to terrorist or disruptive acts”.Under such detention orders these people can beheld in detention for up to 90 days. This period canbe extended to 180 days with the endorsement ofthe Home Ministry. It is unclear which proceduralsafeguards, if any, apply to this process to preventsuch detention from becoming arbitrary, or facili-tating ill-treatment.

In the two months after the promulgation of theTADO, according to government figures, more than5,000 people were arrested under it; 2,800 of themwere released after several days or weeks incustody. Approximately 1,200 people werereportedly held in preventive detention underSection 9 and about 1,000 were being held onsuspicion of involvement in “terrorist anddisruptive crimes”.

People arrested under the TADO, like thosearrested under the ASCPA, are to be tried under theSpecial Court Act, 1974. As of late January 2002,only one Special Court had been constituted inKathmandu. There were major concerns about thedelay in bringing people to trial.



Chapter 4: Abuses by theMaoists Bishnu Prasad Jamar Kattel, treasurer of the NC inTanahun district, worked on a government-sponsored program aimed at eradicating poverty.He was travelling on a bus on 10 April 2001 whena group of about seven Maoists boarded anddragged him off. They beat him severely and thenshot him in the chest, arms and thighs. He died inhospital.

Such targeted and deliberate killings ofcivilians considered to be “enemies of therevolution”, including suspected informants,have been among a wide range of human rightsabuses carried out by the CPN (Maoist) alongsidetheir armed operations against the police, armyand socio-economic targets in the context of the“people’s war”. Many of those killed have beensupporters or members of the NC, althoughvictims have also included members of the CPN(UML) and the Rastriya Prajatranta Party (RPP),National Democratic Party.

Other human rights abuses by the Maoists haveincluded execution-style killings of police officerswho were wounded or taken prisoner or who hadsurrendered; torture; the imposition of cruel,inhuman and degrading punishments, including“death sentences”; hostage-taking; and therecruitment of children as combatants.

Deliberate and unlawful killings

Since declaring the “people’s war”, members ofthe CPN (Maoist) have killed scores of members ofother political parties, particularly the NC. TheMaoists have stated that these civilians have beenkilled because of their involvement in specificacts such as corruption or collaborating with thepolice, rather than on the basis of theirmembership of any political party. Some victimshave been killed after they were warned to refrainfrom certain activities; others have been killedwithout apparent reason. In many cases, theMaoists have explained killings in statementspublished in local newspapers or distributed viapamphlets. According to government statistics, asof February 2002, 448 civilians were reported tohave been killed by the Maoists.

Teachers and politicians have been amongthose most frequently targeted. MuktinathAdhikari was reportedly abducted by Maoists on16 January 2002 while teaching at the PandiniSanskrit Secondary school at Duradanda,Lamjung district. A group of four Maoists tied hishands behind his back, and took him about 200metres from the school. There he was tied to a treeand shot in the head. He died on the spot.Muktinath Adhikari was convenor of AmnestyInternational’s local group in Lamjung districtand was acting headmaster of the school. It issuspected that the reason for the killing wasMuktinath Adhikari’s membership of the NepalTeachers' Association (NTA) considered close tothe NC. According to a communicationpurportedly from the Maoists to AmnestyInternational, Muktinath Adhikari was killedbecause he was “a person with long record of anti-people activities and had proven charges againsthim of being an informer leading to the killing ofa number of innocent people by the royal army inLamjung”. According to other sources, however,he was killed because he had earlier refused togive “donations” demanded by the Maoists andhad received several threats as a result.

Twenty-eight teachers belonging to the NTA havebeen killed by the Maoists, nine of them after thestate of emergency was declared in late November2001; dozens of others have been maimed.

Shyam Sundar Shrestha, a member of theCentral Committee of the Nepal Students Union,affiliated to the NC, was killed on 1 December 1998on his way to the university campus in Gorkhadistrict. He was first attacked with a khukuri, thenshot in the head, throat and stomach. He had notreceived any threats. After his killing, a newspaper



Some parties in Nepal have argued that the“people's war” should be formally declared bythe government as an “internal armed conflict”.Amnesty International does not take a positionon whether or not the situation in Nepal shouldbe declared an “internal armed conflict”. It callsupon armed political groups to observe theminimum humane standards in all situationswhere law enforcement personnel and an entityopposing them undertake military-style activitieson a regular and consistent basis. Theseprinciples are contained primarily in Article 3,common to the four Geneva Conventions of 1949,and should be upheld by the police, army andmembers of the CPN (Maoist).

Amnesty International calls upon the CPN(Maoist) to at all times:• respect civilians• prohibit murder, mutilation and torture• prohibit reprisals and summary executions• prohibit the taking of hostages• protect and care for the wounded.

known to be sympathetic to the Maoistscommented that Shyam Sundar Shrestha had beenkilled “because he was against the Maoists”.

Krishna Prasad Aryal was one of many peoplesaid to have been killed for informing the policeabout Maoist activities. He was killed on 1 October1999 while addressing a meeting organized by theNepal Red Cross at Bakrang, Gorkha district. FourMaoists reportedly came from the back of thecrowd, confirmed his identity and then tied up hishands and legs. He was dragged along for sometime, then his throat was cut with a khukuri. Hedied on the spot. Maoists reportedly later claimedthat Krishna Prasad Aryal had been killed becausehe had informed the police about the presence ofHarischandra Shrestha and Bipana Nakarmi inBakrang, where they were killed by police (seeChapter 3). Others said that his killing may alsohave been related to his social activities as a Red

Cross worker or because he had left the Maoistsand joined the NC in 1994.

Yadu Gautam, a candidate for the CPN (UML),was killed while canvassing in Garaiela VDC,Rukum district on 5 March 1999 during theparliamentary election campaign. He had beentaken captive by the Maoists three times prior tohis killing and had reportedly been warned not to“get involved in politics”.

On 22 February 2002, five civilians, includingan eight-year-old girl, were burned to death whenMaoists stopped a night bus in Chitwan districtand set it on fire with the passengers inside,apparently because the bus driver was notadhering to the Maoist bandh declared that day.

There is also clear evidence that police officerswho have been wounded or taken prisoner havebeen deliberately killed by the Maoists. Suchkillings are in clear violation of minimumhumane standards applicable in the “people’swar” in Nepal. There have, however, also beenseveral reports that police personnel who have“surrendered” to the Maoists during an attack ontheir police post have not been harmed.

Eight police officers among 28 who hadsurrendered to members of the CPN (Maoist) atToli, Dailekh district, were summarily executedin the early morning of 7 April 2001. Anotherpolice officer, Mahesh Dhakal, was killed that dayafter he had run to his home after being wounded.He was reportedly shot dead while lyingwounded in his mother's arms.

Several police officers were killed during anattack on Bhorletar police post, Lamjung district on27 September 2000. According to eye-witnessaccounts from villagers and police officers, 12police surrendered after they ran out ofammunition. Seven of them who were woundedwere shot in the chest at close range while lying onthe ground and died. Those who were notwounded were tied up and made to lie on theground. They were questioned, beaten and forcedto promise to resign from the police force.

As of February 2002, nearly 1,000 civilians havebeen injured in attacks by the Maoists, according togovernment sources. Among them was GopalSharma, deputy chairman of Khola VDC, Rukumdistrict. Maoists in July 1998 reportedly threw acidinto both of his eyes, blinding him. Many morepeople have been maimed by the Maoists since theresumption of the conflict in November 2001.Others have been subjected to degrading treatment.Among them was Sobita Neupane, a head teacherfrom Barbhangjyang, Tanahu district. On 18January 2002 a group of Maoists reportedly tookher out of her classroom and cut her hair.



Muktinath Adhikari, who was abducted andkilled by the Maoists on 16 January 2002. He wasa teacher at the Pandini Sanskrit SecondarySchool at Duradanda, Lamjung district.© AI Nepal

Torture

Many people taken captive by the Maoists havebeen tortured. Torture methods reported includesevere beatings, kicking, falanga, belana and cutswith knives.

A teacher from Kalikot district, a supporter ofthe CPN (UML), was abducted three times byMaoists. On one occasion, in September 2000, hewas beaten with sticks on his back, legs, thighs andchest and hit in the face. The beatings lasted formore than an hour until he fainted. He was undermedical treatment for more than two monthssuffering from pain in his chest, back and thighs.He subsequently reportedly sold his land and“donated” money to the Maoists.

A young man from Salyan district who hadapplied for a job in the police force was tortured by15 members of the CPN (Maoist) in November2000. They repeatedly asked him why he wanted tojoin the police instead of their party. They beat andkicked him in a cowshed near his home for abouttwo hours. He was also subjected to falanga andwas cut with a khukuri on his hand and arm. Hiselbow was pierced with the point of the khukuriblade. He fled his village and sought medicaltreatment in a nearby town. When interviewed byAmnesty International delegates approximatelythree weeks later, he had no sensation ormovement in his fingers and right arm, andremained in fear for his life.

Elected members of local bodies such as theVDCs find themselves caught between the policeand the Maoists and are therefore particularlyvulnerable to torture. A VDC chairman of Rukumdistrict told Amnesty International how, after theVDC office was looted, police questioned him forfive hours and accused him of collaborating withthe Maoists. In the past, he had spoken at ameeting organized by the CPN (Maoist) after hewas put under pressure to do so, but he hadrefused to join the movement. On 21 August 2000he was abducted by Maoists because theysuspected him of being a member of the DistrictSecurity Committee (DSC). Each day he wasquestioned. When he continued to denyinvolvement with the DSC, he was hit in the faceand threatened with death. On the 12th day hewas taken to a river, made to lie on stones and hiton his neck with the blunt side of a khukuri. Hewas again asked about his involvement with theDSC. Later he was taken to another river where hewas given the same treatment. He fainted. In theend, he confessed to his interrogators' accus-ations, including that he was planning to rapesome girls and kill five Maoists. On 13 September

2000 he was told to confess at a public meetingattended by about 600 people. Two days later, hewas forced to do the same at his home village. Hewas then released on condition that he wouldstop acting as VDC chairman. He has since left thedistrict.

Another member of the CPN (UML), a farmerfrom Rukum district, was taken captive on 22August 2000 after injury prevented him assistingwith construction work being carried out by theMaoists in his village. He was kicked in themouth, which chipped one of his teeth, andbeaten. He said that the Maoists broke sevensticks while beating him. He was also subjected tobelana twice and fainted. He was questionedabout “anti-Maoist” activities. The next day, hewas again tortured to the extent that he fainted.He heard the Maoists threatening with death twoof his friends who had also been abducted andwere being questioned on the upper floor of thesame house. Out of fear, he confessed toeverything. He was allowed to return home after23 days and forced to state in public that he hadnot been tortured and had been treated well. Hetoo has since reportedly left his district.

Hostage-taking

Mukti Prasad Sharma, President of the PyuthanDistrict Committee of the NC and former memberof parliament, was abducted on 22 May 2001 ataround 9pm from his home at Tikuri, BijuwarVDC, Pyuthan district. The next day, Jana Ahwan,a weekly magazine known to be close to theMaoists, reported that the leadership of the CPN(Maoist) had demanded the release of five of itsmembers in prison or reported as “disappeared”in return for the release of Mukti Prasad Sharma.Mukti Prasad Sharma was allowed to return homeon 12 July. The next day, Lokendra Bista, a Maoistwho had been imprisoned since 1996, wasreleased. His name had been among the fiveMaoist prisoners whose release had beendemanded.

The abduction of civilians and a large numberof police personnel and the linking of their releaseto certain conditions became common practice inmid-2001.36 Around half of the abducted civilians,the majority of them politicians, have been allowedto return to their families after all or some of thedemands have been met. According to agovernment statement issued in March 2001, theMaoists abducted 412 people, of whom 255 werereleased. As of September 2001, 117 civilians and71 police personnel were reportedly held ashostages by the Maoists.



Often, the conditions imposed have related tothe release of Maoist prisoners and have beenconveyed to the authorities via the family of theabducted person, the media or local human rightsactivists. For example, Shyam Nath KashyapGhimire, NC District Secretary and DistrictPresident of the Landless People ProblemsResolution Committee, was abducted on 13November 2000 in Arghakhanchi district. ArmedMaoists told his family that they wanted the release

of Thakur Nepal and another Maoist prisoner inreturn for Shyam Nath Kashyap Ghimire's returnhome. From captivity Shyam Nath KashyapGhimire sent letters to the district administration,police and NC party officials repeating thisdemand and stressing that “his life would be atrisk” if the Maoist prisoners were not released.Shyam Nath Kashyap Ghimire was released on 24December 2000 after the authorities had releasedThakur Nepal, who had been held in neighbouring



Rana Bahadur Singh of Panchakatiya village, Jajarkot district, sitting in front of the remains of hishouse which was destroyed by the Maoists during an attack on the local police station in May 2000.His wife and two children were killed. © Sudheer Sharma

Gulmi district on charges under the Arms andAmmunition Act. Amnesty Internationalunderstands that the NC district committee haddeposited money as surety for the release on bail ofThakur Nepal.

Other demands made by the Maoists includethe payment of ransom, the performing of certaintasks such as repairing guns, and publiclyaccounting for public money.

Hostage-taking of police became a prominentfeature of the “people’s war” in 2001. Some policewere allowed to return home after they undertookto resign from the police force. Others were helduntil the Maoists’ demand for the release of Maoistprisoners was met. Others were put under pressureto join the Maoists.

One of the first reported hostage-takings of apolice officer concerned DSP Thule Rai, who wastaken captive on 23 September 1999 during anattack on a police checkpoint in Rukum district. Inexchange for his return home, the Maoistsdemanded the release of a number of Maoistprisoners. He was allowed to return home in mid-December 1999. Soon after, Dev Gurung, a seniorMaoist leader, was released.

The hostage-taking of at least 69 policepersonnel from Holeri police post, Rolpa districton 12 July 2001 and the demand for the release ofhalf of all Maoist prisoners held in custody at thetime is the most prominent example of hostage-taking. As of late September 2001, 22 of the officershad been allowed to return home. The others wereallowed to do likewise in the following months.

‘People’s courts’

In areas under control of the CPN (Maoist),“people’s courts” have been set up to “adjudicate”on local disputes. These courts have also presidedover “trials” and pronounced punishments,including “death sentences”.37 For instance, on 27August 2000 the Rolpa district unit of the CPN(Maoist) announced that “death sentences” hadbeen imposed by “people’s courts” on sevenpeople. It was not clear whether they were killed.

Among those known to have been “sentenced todeath” and “executed” was Bhadra Sanjyal, awoman from Ward No. 2, Siuna VDC, Kalikotdistrict. She was killed in mid-July 2001 after shewas found “guilty” by the “people's court” ofpassing information to the police. A notice waspasted in the village announcing the decision.

Some people have been sentenced in absentia.Amar Budha was reportedly found guilty by a“people’s court” for activities (spying) that led to

the killings of 11 Maoists by police. He was subse-quently shot dead by a group of students in Libang,Rolpa district on 21 April 2001.

Other punishments frequently imposed by the“people’s courts” include the shaving of people’sheads and garlanding them with shoes, atraditional way of showing disrespect. Peoplehave also been punished with “labour custody”.Among those treated this way were former deputyminister Reg Bahadur Subedi and his 24-year-oldson, Suresh Subedi. They were taken on 14 April2000 from their home at Gajul VDC, Rolpadistrict. Amnesty International received reportsthat they were seen engaged in construction workat Khara VDC in Rukum district in early June2000. They returned home on 27 June and 24 July2000 respectively. Amnesty International hasappealed to the Maoist leadership to ensure thatthe conditions in which people are held do notamount to cruel, inhuman or degrading treatmentor punishment. It has also conveyed itsopposition to the imposition of "death sentences"by the CPN (Maoist) founded on AmnestyInternational’s total and unequivocal oppositionto the death penalty as the ultimate cruel,inhuman or degrading form of punishment.

Child soldiers

Many children are involved in the Maoistmovement with grave consequences for their safetyand well-being. Although the exact numberinvolved is not known, press reports suggest itcould be several hundred. For instance, accordingto an article in The Kathmandu Post of 8 June 2000,of the 91 people known to have joined the Maoistsand taken up arms in Lahan VDC in Jajarkotdistrict, 13 were under 15 years old. An articleposted on 1 May 1998 on a website sympathetic tothe Maoists acknowledged the scale of recruitmentof children, especially girls:

“A large number of children in the rural areasare now contributing substantially in theguerilla war by way of collection andexchange of information, etc. Indeed, theselittle ‘red devils’ hold immense potential forthe future of the revolutionary people’s war.”

The killing of Tulsi Kumari Budha, a 16-year-old member of the All Nepal NationalIndependent Students’ Union (Revolutionary), inRamaroshan VDC in Achham district highlightedthe dangers of children's involvement in arenas ofconflict, even in supporting roles. On 9 December



2000 police encircled a house in which TulsiKumari Budha was meeting known Maoists.Others present fled and Tulsi Kumari Budha hidin the maize fields nearby. Police surrounded thefield. Tulsi Kumari Budha was killed in whatpolice later said was an “encounter”. However,there was no evidence that she had been armed,nor that any police officers were injured or killedin the alleged "encounter", suggesting that theincident involved excessive use of force inviolation of international human rights standardsin circumstances where Tulsi Kumari Budhacould have been taken into custody.

Some children have been abducted by theMaoists against their will. For example, fourstudents from Janapriya Secondary School wereabducted from a hostel in Dasara, Jajarkot districton 8 June 2000. Three of them, Dhurba RajNeupana, Lokendra Prasad Sharma and BasanthaKumar Kharka, all of whom were 15 at the time,had not returned to their families by mid-2001. Afourth boy, 14-year-old Man Bahadur Thapa,returned home after nine days.

In many cases, the children involved were notforced to join the Maoists, although they wereenticed by others or joined under the influenceof propaganda. For example, a 15-year-old girlbelonging to a caste whose traditional occupationis dancing, attended a “cultural program”organized by the Maoists in Jajarkot district in earlyJuly 2000. She told Amnesty International that atthe end of the program she joined up because “sheliked to dance”, but after about two months she ranaway as she was homesick. However, she wascaught by Maoists and beaten with a stick. She saidthat when she asked to be allowed to leave, she wastold she would “have to go nude and your headwould have to be shaven”. A few days later, whenthe group was visiting a village where she hadrelatives, her uncle asked that she be allowed toreturn to her family. Both he and she werethreatened with beheading. That night, she stayedwith her relatives. The next day she was taken byeight armed Maoists to talk to the leader of the area.They walked for two days. When she told theleader that she wanted to leave, he refused. Whenshe insisted, he beat her. She was kicked on herchin and again threatened that she would be killed.In the end, she was allowed to return home. WhenAmnesty International interviewed her fourmonths later she was not living in her home villageas she was afraid of both the Maoists and thepolice, and she was still suffering the after-effectsof the beatings.

In a public statement of 23 August 2000, theChairperson of the CPN (Maoist) denied thatchildren had been recruited into the “people’sarmy”. However, the statement did not respond indetail to Amnesty International's concerns thatchildren had been abducted, nor to its appeal thatthey be immediately returned to their families andcommunities.

Some local commanders have maintained thatchildren are not deployed as combatants, but haveacknowledged that they are given tasks such ascarrying guns. Others have stated that it is Maoistpolicy to discourage children from joining, but thatsome do under compelling circumstances such aswhen their parents have joined. It is not clearwhether there is a uniform Maoist policy inrelation to the recruitment of children.



In mid-2000 Amnesty International raisedconcern with the Maoist leadership about reportsthat children, including girls, were beingrecruited as combatants. Amnesty Internationalopposes the voluntary or compulsoryrecruitment – in addition to the participation inhostilities – of children by armed political groupsand by governments. Amnesty Internationalbelieves that recruitment – including incapacities such as couriers, messengers, porters,sentries or other support roles – and participa-tion in hostilities are activities that ultimatelyjeopardize the mental and physical integrity ofanyone below the age of 18. Additionally, suchactivities violate children's rights as enshrinedin the UN Convention on the Rights of the Child,including their rights not to be separated fromtheir parents, to protection from physical ormental harm, to education, to rest and leisureand to protection from economic exploitationand hazardous work.

Amnesty International has urged that anyoneunder 18 who has joined the CPN (Maoist),whether voluntarily or not, be told to return totheir family or community. The raising of theminimum age for recruitment (whethervoluntary or compulsory) to 18 is an importantmeans for preventing these abuses fromrecurring. Amnesty International has urged theleadership of the CPN (Maoist) to make a publicdeclaration of its policy in this area.

Chapter 5: Conclusionsand recommendationsThe major challenge facing the government ofNepal is to provide increased human rightsprotection and create a law enforcement systemcapable of addressing reports of human rightsviolations with greater transparency and account-ability.

Amnesty International recognizes the gravesecurity threat posed by the “people’s war”, buturges the government to adopt a holistic strategy toensure the protection of the full range of humanrights, including access to education, services andeconomic development as well as the protection ofthe rights to life, physical integrity and fair legalprocess.

Amnesty International calls on the governmentof Nepal to implement the specific recommenda-tions outlined below. It also calls on the leadershipof the CPN (Maoist) to uphold minimum humanestandards applicable to the situation in Nepal,including those contained in Article 3 common tothe four Geneva Conventions of 1949 which shouldbe upheld by both police and members of the CPN(Maoist).38

To create a climate in whichhuman rights violations are lesslikely to occur:

1. Official condemnationThe government should publicly declare itsopposition to human rights violations such asunlawful killings, including extrajudicialexecutions, “disappearances” and torture. A clearmessage should be given to members of thesecurity forces that such violations will not betolerated under any circumstances and that thosefound to be responsible for such violations willinvariably be brought to justice.

2. Chain-of-command control The government should regularly issue clear andstrongly worded directives to its security forces toadhere to the basic principles of internationalhuman rights and humanitarian law under allcircumstances and to put into place mechanisms tomonitor their adherence. Chief District Officers(CDOs) and senior army and police officers shouldmaintain strict control to ensure that officers undertheir command do not commit human rightsviolations.



Comrade Ravi, aged 16, a member of the"People's Army" of the Communist Party ofNepal (Maoist), in Kureli village, Rolpa district,September 2001.© Sudheer Sharma

Officials who are found to have ordered ortolerated human rights violations by those undertheir command should be held criminallyresponsible for such acts.

3. Individual responsibility The prohibition of unlawful killings, includingextrajudicial executions, “disappearances” andtorture should be reflected in the training and allorders given to officials involved in the arrestand custody of prisoners and all officialsauthorized to use lethal force, and in the instruc-tions issued to them. These officials should beinstructed that they have the right and duty torefuse to obey any order to participate in humanrights violations. An order from a superior officeror a public authority must never be invoked as ajustification for a human rights violation. Allofficials must be made aware that they will facecriminal prosecution for such acts.

4. Effective investigation and prosecution ofalleged perpetrators of human rights violationsThe government should remove all legal obstaclesand create effective systems to ensure securitypersonnel are held criminally accountable forhuman rights violations committed by them. Thedefinition of those responsible should includethose who may have given orders as well as thosewho carried out the actions.

The government should ensure theindependent and impartial investigation by theNational Human Rights Commission (NHRC) or asimilar independent body of all allegations ofserious human rights violations. The investigatorsshould have necessary resources and powers tocarry out their work effectively, including powersto compel witnesses to attend and to obtaindocumentary evidence. The methods and findingsof all such investigations should be made publicin full.

Officials suspected of responsibility forunlawful killings, including extrajudicialexecutions, “disappearances” or torture should besuspended from active duty during theinvestigation. Complainants, witnesses, lawyersand others involved in the investigations shouldbe protected from intimidation and reprisals.Special care should be taken to protect poor andilliterate victims who lack access to existingredress mechanisms such as the TortureCompensation Act (TCA).

The government should consider appointingspecial prosecutors charged with ensuring effectiveinvestigations and the supervision and, if necessary,initiation of prosecutions of security personnel.

5. Reparation, including compensation The government should provide all victims ofhuman rights violations or their relatives withreparations, including fair and adequate compen-sation. Victims of unlawful killings, includingextrajudicial executions, “disappearances” andtorture or their relatives who seek compensationshould be free from threats or intimidation.Victims should be provided with appropriatemedical care and rehabilitation.

6. Use of emergency powersThe government should ensure that thosefundamental human rights which are deemed non-derogable in international law are fully protectedin Nepali law. To this end, the government shouldconsider introducing a constitutional amendmentto remove Article 23 of the list of constitutionalclauses which may be suspended during a state ofemergency.

7. Reform of the policeThe government should consider the establishmentof a permanent, independent complaints authorityas a measure to ensure the public accountability ofthe police. Such a body should be able to functionat the local level and be given the powers to carryout continuous assessments of the police’s ownmeasures to ensure compliance with national andinternational regulations on the use of force; toprevent torture and corruption; to record theincidence of complaints of excessive force; andwhere necessary to conduct its own investigations.This would promote greater transparency andaccountability among the police and contribute tothe fulfilment of its function as a communityservice.

The government should review and improve theconditions of service of the police as well as theirright to organize and express themselves, enablingthem to enhance standards of professional practiceand resist improper interference by political andother local forces.

Police at all levels should be given extensivetraining in international human rights standards,the investigation of crime without resorting totorture or cruel, inhuman or degrading treatmentand regarding the police's proper role vis-a-vis thejudiciary and generally in implementing the rule oflaw.

8. Strengthen the National Human RightsCommissionThe government should give the NHRC allnecessary assistance to ensure its independent andeffective functioning.



Offices of the NHRC should be established at thedistrict or at least at the regional level, with priorityfor those areas where most human rights abuses arereported.

The law should be amended to ensure the NHRChas effective powers to investigate all human rightsviolations.

9. Strengthen Nepal's international human rightscommitmentThe government should fully implement the recom-mendations made by the UN Working Group onArbitrary Detention and the Special rapporteur onextrajudicial, summary or arbitrary executions aftertheir visits to Nepal in 1996 and 2000 respectively.

The government should consider inviting thesetwo bodies to visit the country again to discussimplementation of their recommendations.

The government should consider inviting the UNWorking Group on Enforced or InvoluntaryDisappearances and the Special Rapporteur ontorture and other cruel, inhuman or degradingtreatment or punishment to visit the country.

The government should prepare its outstandingreports to the treaty bodies, to obtain assistance andguidance in implementing the country's existinghuman rights obligations.

The government should give all necessaryassistance to the International Committee of the RedCross to monitor adherence to internationalhumanitarian law.

10. Safeguard children's rightsNepal should ensure that its obligations under theConvention on the Rights of the Child are fulfilledin law and in practice.

The Convention on the Rights of the Childplaces the best interests of the child at its guidingprinciple (Article 3). It obliges states to “recognizethat every child has the inherent right to life” andto “ensure to the maximum extent possible thesurvival and development of the child” (Article 6).It requires that children should not be subjected totorture or other cruel, inhuman or degradingtreatment or punishment or deprived of libertyunlawfully or arbitrarily (Article 37). It alsorequires states to respect and ensure respect for therules of international humanitarian law which arerelevant to children (Article 38).

To bring a halt to unlawful killings,including extrajudicial executions:

11. Legal measures The government should consider introducing a

constitutional amendment guaranteeing the non-derogable right to life.

The government should review and amendexisting legislation, particularly the LocalAdministration Act, the Police Act and theTerrorist and Disruptive Activities (Control andPunishment) Ordinance (TADO), to ensure thatthere are strict legal limitations on the use of forceand firearms by the police, in accordance withinternational standards.

12. Restraints on use of force The government should ensure that the securityforces only use force when strictly necessary andonly to the minimum extent required under thecircumstances. Lethal force should not be usedexcept when strictly unavoidable and only in orderto protect life.

13. Ensure proper investigations into allegedextrajudicial executionsThe government should order a review of post-mortem procedures in cases of suspicious death. Itshould bring an immediate halt to the practice ofdisposal of bodies without post-mortem and ensurethat post-mortem examinations are carried out intoall cases of suspicious death and independently ofanyone implicated in the death. A medical or otherrepresentative of the family of the deceased shouldbe allowed to be present during the examination.Relatives of the victims should be given access toall information relevant to the investigation.

To put a halt to ‘disappearances’:

14. End incommunicado detentionThe government should end the practice of incom-municado detention and draw up regulations tosafeguard the rights of detainees, including theirconstitutional right to be produced before a judicialauthority within 24 hours of arrest. All detaineesshould be held in publicly recognized places. Theyshould be brought before a judge promptly afterarrest and they should have prompt and regularaccess to relatives, lawyers and doctors.

In order to facilitate the search for missingpersons, all authorities in charge of places wheredetainees are held (such as army camps, policestations, police posts, prisons) should be requiredto provide to a competent civilian authorityperiodically updated lists of detainees in theircustody. Registers of detainees should be kept,including a central register of detention. Adequateprovision should be made for registration oftransfers of detainees from one place of detention



to another. Detention registers should be accessibleto interested parties.

15. Legal measuresThe government should consider making “disap-pearance” a criminal offence under Nepali law.

The government should ensure that the relativesof someone who, after proper investigation, isproven to have last been seen in the custody of thestate, are granted adequate compensation.

To put a halt to torture:

16. Legal measuresThe government should ensure that the act oftorture is a punishable offence under criminal law.

The government should amend the TCA tomake the investigation and prosecution of allegedperpetrators of human rights violations andreparation for victims more effective.

17. Strengthen safeguards against torture The government should review procedures fordetention and interrogation. An important safeguardagainst torture would be the separation of authoritiesresponsible for detention from those in charge ofinterrogation. All prisoners should be promptly toldof their rights, including the right to complain abouttheir treatment to a judge. There should be regularindependent visits of inspection to places ofdetention, including unannounced visits by localjudges or respected members of the community. Thegovernment should ensure that all detainees are heldin publicly recognized places, and that accurateinformation about their whereabouts is madeavailable to relatives and lawyers.

There should be a review of procedurescurrently used when taking detainees for medicalexamination. Procedures should be amended toensure they are in line with international standardsand incorporate safeguards already contained innational legislation, including the TCA.

The government should introduce effectivemeasures to prevent rape and make them legallyenforceable, with adequate punishment for non-adherence. It should ensure that the arrest of awoman is carried out by a female officer (wheneverpracticable), that women detainees are kept in thecustody of female officers, that female guards arepresent during the interrogation of femaledetainees and are made solely responsible forcarrying out body searches.

18. Effective investigation and prosecution ofalleged perpetratorsThe government should ensure that failure toinvestigate suspicious deaths and allegations oftorture is made punishable.

To promote respect for the rightsof detainees and their families:

19. Legal measuresThe government should amend the Public SecurityAct (PSA), the Anti-State Crimes and Penalty Actand TADO to ensure their compliance with inter-national standards regarding safeguards againstarbitrary detention, torture and cruel, inhuman ordegrading treatment.

The government should remove all judicialpowers granted to Chief District Officers in thePSA, Arms and Ammunition Act, LocalAdministration Act and the Some Public Offencesand Penalties Act.

20. Limits to preventive detentionThe government should not detain anyonearbitrarily and should ensure effective judicialsupervision of anyone held in preventivedetention.



ENDNOTES

Chapter 1: Introduction 1 At the time of writing, Nepal was a party to 16 human rightstreaties, including the International Covenant on Civil andPolitical Rights and its first and second optional protocols; theInternational Covenant on Social, Economic and CulturalRights; the Convention against Torture and Other Cruel,Inhuman or Degrading Treatment or Punishment; theConvention on the Rights of the Child and the Convention onthe Elimination of All Forms of Discrimination against Women.In addition, Nepal has signed, but not yet ratified the OptionalProtocol to the Convention on the Rights of the Child on theinvolvement of children in armed conflict and the OptionalProtocol to the Convention on the Elimination of All Forms ofDiscrimination against Women.

2 The Maoists' opposition to the teaching of Sanskrit, anancient South Asian language, is based on the grounds that itassists in perpetuating the predominance of the Brahmin com-munity and disadvantages children from ethnic minorities.

3 For more information on the findings of these visits, see AIdocuments, Nepal: Human rights violations in the context of aMaoist "people’s war" (AI Index: ASA 31/01/97) of March 1997,Nepal: Human rights at a turning point? (AI Index: ASA31/01/99) of March 1999, Nepal: Human rights and security (AIIndex: ASA 31/01/2000) of February 2000, and Nepal: Make tor-ture a crime (AI Index: ASA 31/002/2001) of March 2001.

4 The Chairman of the UN Working Group on ArbitraryDetention visited in 1996; the UN Special Rapporteur on extra-judicial, summary or arbitrary executions visited in 2000.

5 See UN document, E/CN.4/2001/9/Add.2, para. 58.

6 The action plan is being prepared as per the recommenda-tions made by the 1993 Vienna World Conference on HumanRights, which required each of the member states to draw up anational action plan and identified steps to improve and protecthuman rights.

7 For the full report, see UN document,E/CN.4/1997/4/Add.2. (For more details on the recommenda-tions, see Chapter 8.)

Chapter 2: Background8 The Partido Communista del Peru (Sendero Luminoso) wasresponsible for extensive human rights abuses after it declared"people’s war" in Peru in 1980. They gained control over largeparts of Peru's countryside. After major counter-insurgencyoperations, they were defeated by the Peruvian army in theearly 1990s. They continue to be active in the remote depart-ments of Ayacucho, Junin, Huanuco and San Martin.

9 This date in the Gregorian calendar coincides with 1 Falgun2052 in Nepal. Falgun is the 10th month in the Bikram Sambat,the standard Hindu calendar used in Nepal.

10 Bulletin No. 1, May 1996, published by the Central PublicityDivision of the CPN (Maoist).

11 The Independent, Kathmandu, 6-12 March 1996

12 Some observers claim this is a coded message for "Search toKill".

13 Ganesh Man Singh was a popular leader of the NC who led

the opposition against the Rana regime in the 1950s and theMRD in 1990. He died in 1997.

14 Under Article 72 of the Constitution, Ordinances may bepromulgated by the King at the time both Houses of Parliamentare not in session if he is satisfied that the "existing circum-stances demand an immediate action". They have to beapproved by Parliament within 60 days of the commencementof the next session of both Houses or will, ipso facto, cease tohave effect after six months of their promulgation.

15 This constitutional body comprises the Prime Minister,Defence Minister and Commander-in-Chief of the army. TheKing of Nepal, who is the Supreme Commander of the army, isresponsible for the operation and deployment of the army onthe recommendation of the National Defence Council.

16 The NHRC consists of five members. Its chair is a retiredChief Justice. Other members are a social worker/medicaldoctor, a retired senior civil servant and two human rightsactivists. According to the Act, the NHRC has the power toinvestigate any "violation of human rights and abetment thereof"and "review the existing human rights situation". It is, however,explicitly excluded in the Act from investigating any "matterunder the jurisdiction of the Army Act" and any matters"certified by the Attorney General that it may have adverseeffect on an inquiry and investigation of any crime pursuant tothe law."

Chapter 3: Abuses by state agents17 For instance, during a meeting with an AmnestyInternational delegation in November 1999, the Secretary,Ministry of Home Affairs stated that unlawful killings wereinvestigated by his department "when there was public outcry".

18 For more details on the TCA and Amnesty International'srecommendations for amendments and changes to the way inwhich the law is currently being put into practice, see AmnestyInternational’s report, Nepal: Make Torture a Crime (AI Index:ASA 31/002/2001) of March 2001

19 Article 12(1) merely states that "no law shall be made whichprovides for capital punishment" but does not positivelyinclude the right to life.

20 The UN Basic Principles on the Use of Force and Firearmsby Law Enforcement Officials (Basic Principles) state that forceand firearms should only be used "if other means remain inef-fective" (Principle 4); that officials should "exercise restraint ...and action in proportion" and should "minimize damage andinjury, and respect and preserve human life" (Principle 5); andthat "intentional lethal use of firearms may only be made whenstrictly unavoidable in order to protect life" (Principle 9).Further, Principle 8 states, "Exceptional circumstances such asinternal political instability or any other public emergency maynot be invoked to justify any departure from these basic princi-ples". Investigations into these killings should include an exam-ination of steps taken to ensure that such international stan-dards were adhered to. Amnesty International urges the govern-ment to take measures to ensure such adherence in the futureand would welcome any information about such measures.

21 The Observer, London, 9 April 2000.

22 Traditional Nepali curved knife.

23 See footnote 20.

24 Kathmandu Post, 8 March 2001

25 According to Article 14(6) of the Constitution, a person who



is arrested and detained has to be produced before a judicialauthority within 24 hours of the arrest, excluding the period ofthe journey to the authority. This right cannot be suspendedduring a state of emergency.

26 According to the report of the WGEID of 18 December 2000(UN Ref: E/CN.4/2001.68), it submitted 51 cases of "disappear-ances" said to have occurred between 1998 and 2000 to the gov-ernment, only five of which had been clarified by the end of2000. Amnesty International understands that at least 40 morecases were submitted during 2001.

27 For more details, see Indelible Scars: A study of torture inNepal, published by the Centre for Victims of Torture,Kathmandu, 1994.

28 Article 15 of the Convention against Torture requires statesparties to "ensure that any statement which is established tohave been made as a result of torture shall not be invoked as evi-dence in any proceedings, except against a person accused oftorture as evidence that the statement was made".

29 These are only a few examples of the obstacles put in theway of a doctor by police. For more details, see Nepal: MakeTorture a Crime, pages 12-14.

30 See UN document M/CCPR/52/C/CMT/NEPAL/3, para. 2.

31 Apart from being late with the submission of two reports tothe Committee against Torture, Nepal is also overdue with sub-mitting reports to the Human Rights Committee, the Committeeon the Rights of the Child, the Committee for the Elimination ofDiscrimination against Women and the Committee for theElimination of Racial Discrimination.

32 See UN document: M/CCPR/52/C/CMT/NEPAL/3, para. 18.

33 Article 2(3) guarantees the right to an effective remedy, tohave that right determined by a competent judicial, administra-tive or legislative authority and to ensure that the competentauthorities shall enforce such remedies when granted.

34 According to Article 115(2) to 115(5) of the Constitution, astate of emergency has to be approved by a two-thirds majorityof the House of Representatives within three months of itsinitial proclamation. One further extension of six months ispossible within six months of the original decision; but the totalperiod a state of emergency remains in force cannot exceed 12months.

35 The Human Rights Committee and the European Court havemade clear that the body reviewing the lawfulness of detentionmust be a court, in order to ensure a high degree of objectivityand independence. The European Court has also ruled that thedetention must comply with both the substantive and the pro-cedural rules of national legislation. Courts must also ensurethat the detention is not arbitrary according to internationalstandards.

Chapter 4: Abuses by the Maoists36 According to international humanitarian law, civilians andothers not taking an active part in hostilities should be protectedat all times. Hostage-taking is specifically prohibited underArticle 3 common to the four Geneva Conventions. CommonArticle 3 affords protection to "Persons taking no active part inhostilities, including members of armed forces who have laiddown their arms and those placed hors de combat by sickness,wounds, detention, or any other cause". Abductions of civilianssuch as Mukti Prasad Sharma and Shyam Nath KashyapGhimire and the conditions reportedly set for their release makethem a hostage within the meaning of the Geneva Conventions.Amnesty International would consider as hostages police who

are held solely for the purpose of compelling a third party, byconditioning the life, security or liberty of the individual on theactions or inaction of that party, or solely for the purpose ofcompelling the hostage to a particular action or inaction.Amnesty International urges the Maoist leadership to release allcivilians and police held under such conditions.

37 According to Article 4[D], Sub-Article [A] in PrachandaPath, the party doctrine adopted at the second national conven-tion in February 2001, there is provision of death penalty forseveral crimes, including crime against the Maoist "people’sstate".

Chapter 5: Conclusions andrecommendations38 For more details on Amnesty International's recommenda-tions to the CPN (Maoist), see Chapter 4.



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