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II. Background

The Maoist Insurgency

Nepal’s civil war began on February 13, 1996, with a series of attacks by the Maoist  faction⁶ of the Communist Party of Nepal (CPN-Maoist, or “the Maoists”) on several police posts in three districts.⁷  The Maoists declared the beginning of a “people’s war” and the “rule of the proletariat.”⁸  While the Maoist attacks took much of Nepal by surprise, Nepal’s militant communist groups had discussed the possibility of armed rebellion for years.  The immediate predecessor party of the CPN-Maoists, the CPN Unity Centre, had declared as early as December 1991 that it would initiate a “people’s war” to bring about a new democratic revolution in Nepal.⁹  In 1994, the CPN Unity Centre split, apparently over disagreement about whether to initiate an armed rebellion.  One faction, led by Pushpa Kamal Dhakal, alias Prachanda, went on to become the CPN-Maoist and ultimately initiated the threatened conflagration.¹⁰  The CPN-Maoists went completely underground, decided not to participate in elected government any further, and began to prepare for an armed uprising.¹¹ 

In some of their public statements, the Maoists claim to be aiming for a democratic communist state.¹²  Their rhetoric is considerably more radical and rigidly dogmatic.  They believe that everything except state power is an illusion, and they advocate following the “lessons of Marxism-Leninism-Maoism regarding revolutionary violence.”¹³  The Maoists are quick to label those who disagree with them – including other communist parties -- as reactionaries, revisionists, fascists, imperialists and expansionists¹⁴ and, as this report documents, often kill activists of other political parties. 

Even before the Maoists launched their “people’s war” in February 1996, the government had begun efforts to rout out its most radical critics.  In November 1995, a police operation code-named Operation Romeo was launched in Rolpa district, the heart of the Maoist movement.  Officially, Operation Romeo was labeled as an operation to control a rise in criminal activities in Rolpa, but in reality the operation focused on trying to dislodge the militant Maoist presence in the area.  Operation Romeo resulted in gross violations of human rights, including the arbitrary arrest and detention of hundreds of members of left-of-center parties, rapes, executions and “disappearances.”¹⁵  The Home Minister justified the police actions in a television interview, claiming that the police had acted against persons indulging in anti-monarchical activities.  Instead of quelling anti-government activities in Rolpa district, the abusive Operation Romeo drove the already disaffected and impoverished rural population toward the Maoist fold, and spurred the kind of resentments the Maoists needed to convince the rural population that the government was indeed their enemy.¹⁶ 

The outbreak of full-fledged armed conflict was preceded by a series of increasingly difficult political demands from the Maoists that were rejected by the government.  On February 4, 1996, just days before the conflict began, Baburam Bhattarai, representing the United People’s Front Nepal (UPFN), the political wing of the Maoists, presented a forty-point list of demands to then Prime Minister Sher Bahadur Deuba.  The UPFN threatened that if their demands were not met in two weeks, they would “be forced to adopt the path of armed struggle against the existing state power.”¹⁷  The forty demands included relatively uncontroversial issues, such as respect for freedom of expression and an end to discrimination based on caste, gender and nationality, but also demands that would mean the end of Nepal’s 200-year-old monarchy.  As such, the demands were predictably unpalatable to the government.¹⁸ 

The demands which were more contentious and which continue to be at the heart of the Maoist agenda are the call for a secular republican state, and a constituent assembly to draw up a new constitution.¹⁹  When the Prime Minister left the country on a state visit on February 11, 1996, the Maoists read this as a sign that their forty-point demand had been ignored and initiated the armed conflict. 

At first, the government was ill-equipped to respond to the conflict.  Until the deployment of the Royal Nepali Army (RNA) in 2001, only the poorly equipped police force had been on the front lines against the Maoists.  The police were neither trained nor equipped for anti-insurgency campaign battles, and were unable to quell the uprising.²⁰  The Maoists launched massive raids on police posts and government headquarters in rural districts, overwhelming the remote outposts, slaughtering the captured police officers, and carrying off arms and ammunition.

The lack of an effective security response allowed the Maoists to quickly extend their grip on the countryside.  By mid-2001, the Maoists had established effective command in twenty-two of Nepal’s seventy-five districts; in these districts, the insurgents severely restricted the government’s access and administration.  In most of these districts, the Maoists controlled development projects, courts, schools and health facilities, imposed taxes, and generally assumed the functions of a state. 

Even the deployment of the RNA in 2001 did not reverse the control that the Maoists had established over much of the countryside:  By early 2004, the Nepali security forces had effectively retreated to heavily fortified bases in the district headquarters of various provinces, ceding control of much of the countryside to the Maoists.

There have been several attempts at peace talks between the government and the Maoists, none of them successful.  The first round of peace talks, which began on August 30, 2001, broke down on November 23, 2001, after the Maoists unilaterally withdrew from the talks and attacked police and army posts in forty-two districts, killing as many as eighty members of the security forces.²¹  The government responded by declaring a nationwide state of emergency and deploying the army for the first time in the conflict.²²  The government also brought the police and the Armed Police Force under the operational command of the army under a policy known as the “Unified Command.”

On January 29, 2003, the government and the Maoists announced a second ceasefire.  Much of the Maoist leadership came out of hiding to participate in the peace process, but the talks soon reached an impasse over the Maoist demand for a constituent assembly, and achieved little progress. The Maoists unilaterally withdrew from the peace talks on August 27, 2003, shortly after the massacre in Doramba, described below.²³

The Doramba massacre remains one of the most notorious examples of brutality in a civil war marked by grave acts of violence.  To this day “Doramba” stands as a symbol of the government’s violations of human rights and of the impunity enjoyed by perpetrators of such abuses.  Nepal’s human rights community has been especially disturbed by the military’s delays in investigating and prosecuting a case so well-known to the public.  To this day the military has refused to name publicly those indicted and it has kept the trials closed to the public. 

One day after withdrawing from the ceasefire, the Maoists signaled a return to armed conflict by shooting two RNA colonels, one fatally, in Kathmandu.²⁴ 

At the same time, the Terrorist and Disruptive Activities (Control and Punishment) Act (TADA) was enacted into law in April 2002, for a two-year period.²⁵  Though it has been renewed only by royal proclamation and not by parliament, apparently because parliament has been suspended and cannot act, law enforcement officials continue to use it and many others wield its possible use as a threat.  The CPN-Maoist was declared a “terrorist organization” under the law.²⁶  TADA grants sweeping discretionary powers to the security forces in dealing with anyone deemed to be a terrorist, and provides immunity from prosecution for “any act or work performed or attempted to be performed in good faith while undertaking their duties.”²⁷  Such a broad grant of immunity has fostered a climate of impunity among the Nepali security forces, in clear violation of Nepal’s international obligation to investigate and punish human rights violations.²⁸

The Maoists’ resumption of hostilities in 2001, and the government’s response to it, set Nepal on a downward cycle of human rights abuses and impunity.  On November 26, 2001, citing Article 115 of the Nepali Constitution, the government declared a state of emergency throughout the country. ²⁹  Article 115(8) of the Constitution permits the government to suspend certain rights, such as the rights to freedom of thought, expression, assembly, and movement, the right not to be held in preventive detention without sufficient ground and the right to judicial remedies (apart from habeas corpus) during a state of emergency.³⁰  The government announced that these rights would be suspended during the emergency.³¹  International law permits the suspension of certain rights during a state of emergency, but only to the extent strictly required by the exigencies of the situation.

The authority of the Chief District Officers (CDOs)³² was enhanced.  The CDOs already had the authority to order trials and sentence the accused to prison terms of up to seven years.  They were additionally given the power to issue preventive detention orders under the Public Security Act³³ and the TADA.³⁴  This increased power of the CDOs has been controversial, especially since the dismissal of the local elected bodies by then Prime Minister Sher Bahadur Deuba in 2002.

Since the deployment of the RNA in 2002 there has been a dramatic escalation of the fighting and an increase in rights violations by both sides.  Not surprisingly, the increase in authority given to security forces and government authorities under TADA and the suspension of some fundamental rights appears to have contributed to an escalation of human rights abuses by state security forces.  Some six thousand of the ten thousand conflict-related deaths that have been reported by human rights organizations since 1996 have occurred since this time.³⁵  While it is unknown how many of these deaths have been in violation of international humanitarian law, Human Rights Watch has documented direct attacks on civilians, and the execution and torture of civilians and captured combatants by both sides in violation of the Geneva Conventions.

TADA has allowed the security forces of Nepal to literally get away with murder.  The security forces have used their sweeping powers to broadly target anyone suspected of having Maoist sympathies—including lawyers who defend Maoists, members of left-of-center political parties, human rights workers, and civilians who are forced to give shelter to the Maoists.  In addition to the killings, the security forces have committed thousands of “disappearances” and arbitrary arrests.  These abuses, as well as the equally serious abuses committed by the Maoists, are the focus of this report.

Nepal is no longer under a state of emergency, but the climate of impunity continues unabated.  The security forces of Nepal continue to commit unlawful killings and summary executions, forced disappearances, and arbitrary arrests without any fear of investigation or discipline.  It is only in exceptional cases after intense international pressure and for reasons of political expediency, such as the Doramba killings, that the government bows to pressure and decides to investigate abuses.  Even in Doramba, the government first conducted several sham investigations that were rejected by Nepali NGOs and the international community.  The final Doramba report does hold the army responsible for some illegal killings, but still is more of a government concession made under international pressure than a transparent and coherent attempt to provide accountability for the killings at Doramba.

The Maoists also flout their obligations under international law.  As part of their “people’s war,” they have deliberately targeted and killed civilians suspected as informers.  Most of the victims are members of opposition political parties, persons suspected of having informed against them, and persons who oppose them in any other way.  The Maoists often torture and execute their victims in public, to show civilians what can happen to those who dare stand against the Maoists.  The government has little or no presence in areas outside the administrative district capitals, and can offer citizens no real protection.  Villagers, desperate not to attract the suspicion of the Maoists, are often afraid to report Maoist abuses.  Human Rights Watch has documented summary executions, torture and disappearances by the Maoists (see section below). There has been no accountability for any of these abuses.

The CPN-Maoist also faces credible allegations that it has recruited and used children as combatants and in other prohibited roles during hostilities.  Under the Optional Protocol to the Child Rights Convention on children in armed conflict, to which Nepal is a signatory, armed groups “should not, under any circumstances, recruit or use in hostilities persons under the age of eighteen years.”³⁶International humanitarian law applicable to civil wars prohibits combatants from recruiting children under the age of fifteen or allowing them to take part in hostilities. ³⁷  Human Rights Watch did not specifically investigate this issue. However, as set out more fully below, testimony gathered by Human Rights Watch strongly indicates that the Maoists have recruited children and used them for logistical support in front line combat, for carrying ammunition and supplies, and as cooks and porters. 

Political Paralysis in Nepal

A major armed rebellion poses a serious challenge for any country, especially an impoverished country like Nepal.  But the hardships of armed conflict have been aggravated in Nepal by a complete paralysis of the political process.  Political parties, which had only gained a voice following the limited democratic reforms of 1990, were suspended by King Gyanendra in 2002.  Until June 2004, Nepal was run by a clique of Royalist officials directly appointed by the King, in an arrangement that failed to garner public support.  Massive protests rallies in Kathmandu in April 2004, forced the resignation of the pro-Royalist administration, adding to the political uncertainty facing Nepal.

Nepal’s struggling democracy has had a tumultuous beginning.  Until 1990, all political parties except the Royalist Rastriya Panchayat Party³⁸ were banned, and the country was run by the King, under a system of governance known as the Panchayat.  The Panchayat system, devised by King Mahendra in 1961, was based on four tiers of government at the village, district, zonal and national levels.  The village panchayat would send representatives to the district panchayat, the district to the zonal and the zonal to the national.  Only the village representatives, all of whom were members of the Rastriya Panchayat Party, were elected by the people.  In addition, there were class organizations at the village, district, and zonal levels for peasants, youth, women, elders, laborers, and ex-soldiers, who elected their own representatives to assemblies.  The class organizations were intended as a substitute for political expression.  The ninety members of the Rastriya Panchayat, or National Assembly, were not allowed to criticize the government or to engage in democratic debate about alternative systems of governance.  The King appointed his own cabinet.³⁹  Some of the banned political parties functioned underground and faced repression, but the royal government failed to wipe out the movement for democracy. 

In February 1990, the main underground parties announced the launch of Jana Andolan, or Movement for the Restoration of Democracy (MRD), which consisted of nationwide strikes and protests.  The government initially resisted the pressure but in mid-April 1990, after scores of demonstrators were killed by the security forces in Kathmandu,⁴⁰ King Birendra gave in to the demand to lift the ban on political parties and create a democratic state.  The King appointed an interim government, which oversaw the drafting of a new constitution.  The nation entered a new political phase. 

Democracy, however, did not bring stability.  Thirteen governments have formed and been disbanded since the first general elections in 1991.  Most of the governments have relied on unstable coalitions to obtain the majority of votes needed to form a government.  The Nepali Congress Party won a majority of seats in the 1999 elections, but a power struggle within its leadership ranks made for a government without credibility.  The incapacity of political leaders to deliver promised changes, charges of corruption and incompetence, and constant in-fighting among political leaders have caused voters to lose faith in the established political leaders. 

The shocking massacre of almost the entire royal family by Crown Prince Dipendra on June 1, 2001 plunged Nepal into an unprecedented state of crisis.  The news that Crown Prince Dipendra had opened fire on and killed his father, mother, sister, brother and other immediate family members before shooting himself shocked the nation.  Thousands of people took to the streets, openly displaying signs of mourning for King Birendra.  Gyanendra, the brother of the murdered King Birendra and the nearest surviving male kin, was ushered in as the next monarch (after a one-day period during which Prince Dipendra, comatose at the time, was declared king).  The fact that Gyanendra alone among Birendra’s siblings survived created an aura of suspicion and rumor-mongering that continues to affect the credibility of the monarch to this day.⁴¹

The political instability that followed the royal massacre and the ongoing conflict quickly ended Nepal’s brief experiment with democracy.  In August 2002, Prime Minister Deuba dissolved all local elected bodies, and shortly thereafter he dissolved the national parliament, fearing a vote of no confidence against him.  Then on October 4, 2002, King Gyanendra suspended the democratic phase that had begun in 1990.  He sacked the prime minister, postponed elections indefinitely, assumed executive authority himself, and appointed his own prime minister and cabinet. 

King Gyanendra cited Article 127 of the Constitution to justify his act: “If any difficulty arises in connection with the implementation of this Constitution, His Majesty may issue necessary orders to remove such difficulty, and such orders shall be laid before Parliament.”⁴²  Other sections of the Constitution, however, unambiguously deny the King the authority to appoint his own prime minister and cabinet.  Article 36(1) of the Constitution directs the King to appoint the leader of the majority party in parliament as prime minister.⁴³  If this is impossible––for example, if there is a successful vote of no-confidence against the prime minister or if there is no clear majority in parliament and no agreement on a coalition––then the King may dissolve parliament but elections must be held within six months of such dissolution.⁴⁴  As constitutional scholars, human rights activists and members of political parties have noted, Article 127 cannot in any way be used to suspend democratic governance and the Constitution.⁴⁵  The King himself is granted immunity for any of his actions through Article 31 of the very Constitution he has undermined.⁴⁶

There is a growing consensus within Nepal on the need for significant constitutional reform, although there is disagreement about the procedure for reform.  Some argue that reforms to the constitution should be made by using the amendment procedure in Article 116 of the Constitution,⁴⁷ while others favor of getting rid of the existing political structure and convening a constituent assembly.  The idea of a constituent assembly was originally advanced by the Maoists and remains one of their central demands, so the government has resisted proposals for a constituent assembly, even when advanced by non-Maoist organizations.  Reform through constitutional amendment is also problematic, as the government and the King have undermined the credibility of the present constitution through their actions. 

While Nepal’s main political parties have protested the King’s suspension of constitutional rule, and governments appointed by the King subsequent to the dissolution of Parliament have made statements about working toward elections, there is little evidence that the government intends to hold elections anytime soon.  The constitutional right to vote for local and national representatives has been suspended indefinitely.⁴⁸

At the beginning of April 2004, there were “anti-regression” demonstrations in Kathmandu organized by five political parties.⁴⁹  In response to these demonstrations, the government enacted a ban on assembly which far exceeded what is permissible under international law.  The government further granted sweeping powers to the security forces to arrest anyone engaging in “suspicious behaviour.”  Thousands of protestors were arrested and detained.  Among those arrested were journalists, lawyers, human rights monitors, students, teachers, medical workers, and members of political parties.  Prominent figures, such as former Prime Minister Girija Prasad Koirala, were arrested, as were simple bystanders including small children.  Entrances to Bir Hospital and the Kathmandu Hospital were tear-gassed as injured people tried to gain entrance for treatment.⁵⁰ 

Despite these thousands of arrests, the protests continued.  Finally, on May 7, 2004, Prime Minister Surya Bahadur Thapa resigned.⁵¹  The King invited representatives of all the political parties, including the five agitating parties, for consultations.  The five party coalition, which had been so successful in organizing the “anti-regression” movement, could not generate a consensus candidate for the next Prime Minister.  Nearly four weeks later, on June 2, in the absence of a consensus nomination by the political parties, the King appointed Sher Bahadur Deuba as Prime Minister.  Deuba, the leader of the Nepali Congress Party (Democratic), a break-away faction of the Nepali Congress Party, is the Prime Minister who in 2002 had suspended local assemblies.  After weeks of intense negotiations, most of the political parties agreed to give up their protests and join Deuba’s cabinet to form a multi-party government.  The fragile coalition cabinet is under intense pressure to lead the country into peace talks and elections. 

The International Community

The government of Nepal has so far refused to accept any international or foreign mediation of the conflict, and has resisted strong pressure to allow a joint national and international commission to monitor the human rights situation on the ground.  Furthermore, the government has actively sought to undermine the legitimacy of the National Human Rights Commission in Nepal, and in general the legitimacy of human rights groups.⁵²  The Royal Nepal Army spokesperson told Human Rights Watch that all “human rights organizations are leftists, anti-government, and they make allegations without evidence.”⁵³  This dangerous conflation of human rights workers as leftists and therefore anti-government was a theme repeated by senior members of the government.  Senior commissioners at the NHRC reported receiving threats to their lives, and receive little or no cooperation from the government. 

Since February 2003, the international community has increased its pressure on the government to respect the human rights of its citizens.  The most significant international actors in Nepal are India, the United States, the United Kingdom and the European Union.  India is battling its own Maoist groups.  New Delhi has also opposed a larger international monitoring or mediation role in Nepal because it is seeking to avoid a similar international role in Kashmir. The United States’ Cold War policy of combating Maoist organizations has been bolstered by casting Nepal’s Maoists as enemies in the “war on terror.”  The U.K. has continued its long tradition of military co-operation with Nepal, a relationship strengthened by the recruitment of Nepali “Gurkha” soldiers into the U.K. military.  The World Bank and the IMF also play a prominent role in donor-dependent Nepal. 

The international community has supported the NHRC in its appeal to both the government and Maoists to agree to independent human rights monitoring in the field.  The two sides have agreed to neutral monitoring as a matter of principle, but neither side has signed a human rights accord allowing for such monitoring.  On February 2, the EU issued a demarche to the Nepali government urging it to take the deteriorating human rights situation seriously.  Under this pressure, and in lieu of a human rights accord, the government issued a public pledge in March 2004, announcing its commitment to abide by its obligations under human rights and humanitarian law.⁵⁴  The pledge came days before an anticipated condemnation of Nepal at the sixtieth session of the United Nations High Commission for Human Rights hearings in Geneva.  Although welcome, the timing of the pledge aroused serious suspicion, as it appeared to be a ploy to ward off a critical Item 9 resolution at the CHR hearings.⁵⁵  The international community must now carefully scrutinize the actions of the Nepali government over the next year to assess whether the pledge was issued with good intent or was simply a means of avoiding international condemnation.  The government of Nepal should not be judged by words on papers, but by its actions on the ground.

The Human Rights Accord, agreed to in principle by both sides but never signed, would be an important development, as it would highlight existing legal obligations of the government and the Maoists.  However, the international community should support a Human Rights Accord only if it provides for a nationwide monitoring structure to monitor compliance.  In that case, they should support such an arrangement financially and with international experts. 

In Nepal, both the government and the Maoists use the lack of an adequate nationwide human rights monitoring network to discredit accounts of the abuses they commit, and engage in mutual recriminations and accusations.  In order to overcome the current lack of human rights monitoring capacity in Nepal, and to build a nationwide monitoring capacity in the face of dire logistical, communication, and transport challenges, the international community must drastically step up its support for human rights monitoring in Nepal.  In addition, protection of the human rights monitors themselves must be strengthened, given the hostility and abuses that existing monitors have experienced at the hands of Nepali authorities and the Maoists.  In the absence of a drastic increase for human rights monitoring activities in Nepal, the Human Rights Accord would be a convenient fig leaf for both parties, as it would remain relatively difficult to monitor actual implementation of its commitments.