Violations of the Laws of War by the Maoists and the RNA
Abuses by “Vigilante Groups” and the Maoist Response
The Maoists’ Use of Child Soldiers
Security Forces’ Continuing Abuses and Impunity
Since Maoist forces ended their four-month unilateral ceasefire on January 2, 2006, fighting in Nepal’s civil war has engulfed the entire country. Nearly every one of the country’s 75 districts has been affected by the fighting between the Royal Nepali Army (RNA) and the forces of the Communist Party of Nepal (Maoist) (the “Maoists”). Civilian casualties, which decreased significantly during the ceasefire, quickly returned to previous levels once fighting resumed. The ten-year-old civil war continues to place the civilian population at serious risk of war crimes and human rights abuses while hindering economic development of the impoverished countryside.
At the same time, the overall human rights situation in Nepal has generally deteriorated since King Gyanendra assumed absolute executive authority on February 1, 2005. The king has repeatedly subjected critical political activists, journalists, and human rights monitors to arbitrary arrest and censorship, only releasing detainees and relaxing restrictions under intense international pressure.
Although the king justified his coup d’etat by citing the inability of the political parties to end the armed conflict, there is now a widespread consensus inside and outside Nepal that the conflict has reached a grinding military stalemate. It is now clear that the king’s rule by fiat has failed to bring the conflict any closer to resolution and has not alleviated the conditions of Nepal’s beleaguered population. Moreover, while the RNA has made progress in reducing certain serious abuses, its continued abusive practices and failure to prosecute past military crimes have turned many Nepalis against the government and army, diminishing their ability to wage an effective counterinsurgency campaign. It appears that the net effect of the February 2005 coup has been a significant loss of public support for the monarchy. Calls for the establishment of a republic, once rare, are now commonplace.
In order to assess the situation after the ceasefire, Human Rights Watch conducted a three-week research trip in late February and early March, 2006. This was Human Rights Watch’s fifth research mission in Nepal over the last two years, and its third since the royal takeover. This latest trip found significant grounds for concern about the impact of the war on civilians, chief among them:
- violations of international humanitarian law (the laws of war) by both parties, including indiscriminate aerial bombardment by the RNA in civilian areas;
- the increased risk to civilians in areas contested by government-sponsored vigilante groups and Maoists;
- the Maoists’ recruitment of children for military purposes;
- the security forces’ continuing human rights abuses and impunity from prosecution.
Recent international pressure has made a difference in promoting greater respect for human rights by both government forces and the Maoists. We found that both the Maoists and the RNA had taken appropriate action during some of the clashes we investigated to minimize the harm to civilians. The RNA seems to have taken steps to reduce the practice of extrajudicial executions and “disappearances” of suspected Maoists and now turns many detainees over to police custody within a month. Security forces also allowed the Nepal Office of the United Nations High Commissioner for Human Rights, established in 2005, access to military barracks and other places of detention.
Another area where international action has clearly benefited Nepali civilians has been the restriction on lethal military assistance to Nepal. Our observations bore out the opinion of Western and Nepali experts that the arms embargo has been very effective in limiting the access of both parties, and particularly the RNA, to more lethal weapons and ammunition that could have resulted in far higher numbers of civilian deaths and injuries.
The RNA, which has frequently participated in United Nations peacekeeping operations abroad, also seems particularly sensitive to discussions within the U.N. Department of Peacekeeping Operations about setting human rights conditions for force contributing countries. The possibility of the RNA being barred from future operations because of abuses by its troops in the civil war seems to have had a salutary effect, as have the conditions imposed by the U.S. Congress on military assistance.
These improvements indicate that concerted and targeted international pressure, coupled with monitoring from the U.N. and Nepali human rights groups and journalists, are vital for getting the government and the Maoists to curb abuses by their forces. But as this report demonstrates, there are still several major areas of concern where the warring parties have failed to observe international standards or tried to circumvent them. Human Rights Watch urges the international community to continue to exert pressure on both sides of the conflict to limit the harm to Nepali civilians and preserve the space for Nepal’s small but vibrant community of civil society activists and journalists to monitor the parties’ respect for human rights.
To the parties to the conflict:
1. Violations of international humanitarian law:
- Maoist forces must to the extent feasible avoid placing civilians at risk by launching attacks from and seeking shelter in populated areas.
- The RNA must cease methods of attack that do not discriminate between military targets and civilian objects, including the practice of using helicopters to drop mortar shells in populated areas.
- The government of Nepal must immediately disband and disarm any vigilante group implicated in human rights abuses and prosecute those responsible. All civilian defense groups must be properly trained and disciplined as auxiliary law-enforcement forces and subjected to international standards regarding proper law enforcement and the use of force. The government must assume responsibility for the activity of civilian defense groups and ensure accountability for any abusive behavior.
- The Maoists must treat humanely, in accordance with the laws of war, any vigilante group member they take into custody.
- The Maoists must immediately end all recruitment of persons under the age of eighteen, demobilize combatants under age eighteen from all forces under their control, and deliver child combatants to the appropriate national agency or international humanitarian organization. All adults recruited by the Maoists before age eighteen must be given the option to leave.
- The government of Nepal should ratify and implement the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts, which establishes 18 as the minimum age for participation in hostilities, for forced or compulsory recruitment into governmental armed forces, and for any recruitment into non-state armed groups. The Nepali government should cease the practice of detaining children under TADO and cooperate with the appropriate humanitarian agencies to create rehabilitation and reintegration programs for former child soldiers, and ensure that any such programs are tailored to meet the special requirements of girl soldiers.
- The government must fully and fairly prosecute perpetrators of war crimes and human rights abuses and enforce penalties commensurate with the gravity of the offenses; civilian courts should have jurisdiction to prosecute military personnel for human rights abuses;
- The government should immediately provide all information about “disappeared” persons to the families and the public;
- The government should repeal or revise, in line with international standards, laws that undermine constitutionally guaranteed protections against human rights violations, such as the Public Security Act, the Public Offense and Punishment Act, the Anti-State Crimes and Penalties Act, and TADO.
To the international community:
- Nepal’s largest arms suppliers, India, the U.S., and the U.K., should continue to suspend lethal military assistance to Nepal until the government complies with international human rights and humanitarian law. Countries reportedly engaged in or contemplating lethal military assistance to Nepal, such as China, Pakistan, and Israel must also refrain from transferring any arms to Nepal.
- Those countries who do supply arms or non-lethal items to either party should actively monitor their use to ensure they are not being utilized to commit abuses and should exclude all assistance to military units implicated in human rights violations.
- India and China should improve their efforts to interdict the flow of arms to Maoist forces.
- The European Union should appoint a Special Representative to ensure a coherent European approach to promoting human rights in Nepal.
- Interested states should provide all necessary financial and political support to the Office of the United Nations High Commissioner for Human Rights in Nepal.
- The United Nations should exclude Nepali military units and individual military personnel implicated in violations of human rights or humanitarian law from participation in peacekeeping missions.
Two Human Rights Crises: Civil War and Attacks on Civil Liberties
The conflict in Nepal started in 1996 when Maoists announced their “people’s war” against the monarchy and launched an armed insurgency. Five years later, the Royal Nepali Army (RNA) took over from the police direct control of the war effort. The RNA’s involvement did not quell the insurgency, but it did markedly increase the war’s lethality, particularly for civilians. All together some thirteen thousand Nepalis have been killed in the conflict; the respected Nepali human rights group INSEC recorded over eight thousand mostly civilian deaths since November 2001. It was also during this period that Nepal took on the ignominious distinction of having the highest number of new cases of “disappearances” reported to the United Nations in the world, some 1,700, of which the vast majority (1,300) was blamed on government security forces. The Maoist forces meanwhile were implicated in numerous cases of killings, abductions, torture, extortion, and use of children for military purposes.
On February 1, 2005, King Gyanendra declared a state of emergency and with the army’s backing assumed all executive authority, citing the inability of the civilian government to resolve the conflict. He ordered the detention of thousands of political activists, journalists, and human rights monitors, and imposed severe restrictions on civil liberties. Under intense local and international criticism many of the detainees have been released and the curbs on the media have not been strictly implemented. But the royal government continues to operate outside the rule of law, detaining political activists and silencing critical voices at will. Municipal elections held on February 8, 2006 were boycotted by most of the country’s political parties and were severely criticized by the United States, European Union, and Japan as flawed and unrepresentative.
The king’s coup provoked strong and widespread international condemnation. Allies such as India, the United States, and Britain have called on the king to return political authority to a representative government. Nepal’s main military suppliers cut off the sale of lethal weapons, and the United States conditioned any future sales upon specified improvements in the government’s human rights record, such as ending the RNA’s practice of “disappearances” and illegal detention. Even China, typically silent about the human rights record of its neighbors, has criticized the king’s actions.
The RNA’s abusive record also led the United Nations to threaten to restrict the participation of Nepali troops in peacekeeping operations (in 2006, Nepal’s troops comprised the fifth largest contingent of UN “blue helmets”), a significant source of prestige, training, and, not least, income for the RNA.
The armed conflict between the Nepali government and the Maoists has reached a military stalemate. Human Rights Watch traveled through dozens of villages in the Western and Midwestern regions (from Kaski, through Palpa, to Kapilbastu, Nawalparasi, and Rupandehi, to Dang, Banke, and Bardiya) and found that government security forces appear to have retreated to large barracks and district headquarters or to fixed positions astride the country’s main roads. Government forces only control the Kathmandu valley, larger urban areas, and district centers. Even the main highways are dotted with Maoist flags and are patrolled by government forces only during the day.
Nepali civilians, particularly the vast majority living in rural areas, are now closer to the conflict than ever before, being caught between two forces with histories of gross and systematic human rights abuses.
Hope and Disappointment
In 2005, two major developments viewed as hopeful by many Nepali and international observers were the Maoists’ unilateral declaration of a four-month ceasefire on September 3, 2005, and the establishment of a large human rights monitoring mission by the U.N.’s Office of the High Commissioner for Human Rights.
The ceasefire brought real relief to the civilian population as deaths and injuries dropped significantly. According to INSEC, during the first three months of the ceasefire (September-December 2005) the number of conflict-related deaths dropped nearly 85 percent as compared to the three pre-ceasefire months (June-August). Data collected by UNICEF indicates that the number of casualties due to mines, improvised explosive devices, and unexploded ordnance also declined substantially during the ceasefire.
Nepal’s main political parties, as well as much of Nepali civil society, have urged the government to participate in a mutual ceasefire in order to decrease the conflict’s toll on civilians and foster possible peace talks. The royal government rejected the Maoist’s ceasefire, saying the Maoists were using it to prepare for intensified combat. On January 2, 2006, the Maoists ended the ceasefire, citing the government’s failure to reciprocate. In the ten weeks since, the number of attacks and clashes has quickly returned to pre-ceasefire levels. Maoists launch daily attacks on security forces and government buildings, and have initiated a number of major assaults on urban areas that have led to heavy casualties on both sides.
The Maoists took advantage of the king’s refusal to join the ceasefire and his increasing political isolation and entered into direct dialogue with the seven main parties opposing the king’s direct rule. On November 22, 2005, the seven party alliance and the Maoists adopted a 12-point “Letter of Understanding,” which included a call for the election of the constituent assembly and committed the Maoists to multi-party democracy, respect for human rights, and the rule of law. The agreement, strongly criticized by the royal government, was welcomed by the U.N. Secretary-General.
The agreement appears to have led to some improvements in the behavior of the Maoist forces with respect to their treatment of civilians, while the presence of the U.N. human rights office seems to have had a positive effect on both sides.
The OHCHR mission to Nepal—the biggest in the world—has been very effective in monitoring and reporting on human rights situation in Nepal and raising its concerns with both the government and the Maoists. OHCHR-Nepal monitors gained unrestricted access to government detention centers and regularly sought assurances from the security forces not to mistreat or “disappear” detainees. The Maoist leadership allowed OHCHR to travel freely and investigate alleged abuses, and at least in some cases took action in response to concerns raised by the monitors.
Violations of the Laws of War by the Maoists and the RNA
The helicopter was far away, but suddenly it turned and reached the village very quickly. This is the last thing I remember clearly. As someone was carrying me away, I saw a schoolboy, Pawan—he was bleeding on his right side….Then I only regained consciousness at home.Human Rights Watch investigations into several recent armed clashes between the Maoists and the security forces in the western region of Nepal revealed that both parties have a mixed record in complying with their obligations under the laws of war to minimize harm to the civilian population. In some cases both sides upheld their obligations to distinguish between combatants and civilians when carrying out attacks and to take all feasible precautions to protect civilians under their control from the effects of attacks. In other cases they failed to respect these fundamental principles of international humanitarian law.
—“Rama R.,” injured by a mortar shell dropped from an RNA helicopter on February 28, 2006.
The Maoists routinely used populated areas to launch attacks or to seek shelter while fleeing a counterattack by security forces without taking measures to remove the civilian population to safety. For example, on February 28, 2006, the Maoists launched an attack on RNA forces from houses in the village of Padena, Palpa district, which resulted in a heavy crossfire in the village. Terrified villagers fled from one house to another, hiding beneath their beds. They showed Human Rights Watch bullet marks on the walls of the houses; had ammunition capable of piercing the walls been used, the civilians hiding inside would have been inevitably injured or killed. Recent international restrictions on lethal military assistance to Nepal may in part explain why such ammunition has not been used.
The Maoists’ practice of using houses, schools, and public spaces without removing the population to safety endangers civilians who become subject to RNA fire. On a number of occasions, unnecessary civilian casualties occurred when the RNA deploys helicopters using indiscriminate methods of aerial bombardment while pursuing retreating Maoists. The RNA drops mortar shells by hand from the side of helicopters, which does not allow proper targeting in populated areas. This method also yields a high rate of unexploded ordnance, which effectively become indiscriminate anti-personnel mines, subject to explosion at a future date.
The RNA’s method of aerial bombardment by helicopters has caused unnecessary civilian casualties. In an illustrative case, on February 28, 2006, several army helicopters were pursuing a group of Maoists in Khiddim VDC, a remote, hilly area in western Palpa district. As the Maoists approached the village of Khattiya, soldiers in a helicopter dropped a mortar shell and started shooting while a crowd of about twenty-five civilians gathered in the village square. A fourteen-year-old boy was shot and killed and eight other civilians, including a nine-month-old baby and a three-year-old boy, sustained injuries from the mortar round. Another civilian died the next day in the field near the village when an unexploded mortar shell dropped from the helicopter detonated. Life in the village was paralyzed by the attack, as the villagers became aware of a number of other unexploded shells left in the fields after the RNA attack.
Human Rights Watch’s investigation into clashes in Eastern Nepal in the summer of 2005 found a similar pattern of abuses by both parties, including the Maoists practice of endangering civilians by seeking shelter in populated areas and the RNA’s indiscriminate methods of aerial bombardment.
Abuses by “Vigilante Groups” and the Maoist Response
The Maoists shot at my house two nights ago. My family and I ran away into the fields, and we now spend the nights there. It was because I am a member of the vigilante group. There are forty to fifty vigilantes in this village. But we have to be part of the group. If we didn’t join, we’d be in trouble with [the leader of the local vigilante group]. If we do join, we face trouble from the Maoists. We are caught in the middle.The Maoists have established their presence in many rural areas by engaging in routine murder, torture, extortion, and abduction. Government security forces, unable to counter the Maoists’ intrusion into villages, have turned to creating and arming citizen defense units, commonly referred to as vigilante groups, to serve as their proxies, drawing on local villagers fearful of or seeking revenge against the Maoists, as well as local thugs eager to acquire weapons and power. The introduction of barely trained armed vigilantes further blurs the distinction between civilians and combatants, placing civilians at greater risk. The cycle of attacks and reprisals by Maoists and vigilantes risks spiraling out of control and adding to the war’s many atrocities.
—Vigilante group member in Nawalparaisi district.
The danger of vigilante forces committing uncontrolled brutality was gruesomely demonstrated in February 2005 when the Village Defense Force in the central Terai district of Kapilvastu retaliated against a Maoist attack on two village officials by attacking suspected Maoist sympathizers. Vigilante-backed mob violence escalated and soon entire villages were being attacked. The violence lasted three days, during which at least forty-six people were killed, most of them unarmed civilians, and a fourteen-year-old girl was raped. Six hundred houses were burned.
Human Rights Watch’s recent research found compelling evidence that in the last year the government has created and sponsored vigilante groups throughout the southern Terai region, from Bardiya in the west to Ilam in the far east. Senior leaders of vigilante groups in Rupandehi and Nawalparaisi admitted that they received official government support, including rifles and shotguns, a one-month-long training program at RNA barracks and government licenses identifying them as members of “Village Peace and Development Volunteer Mobilization Groups.” Vigilantes in Rupandehi brandished rifles they had received from the RNA, but complained that they did not receive automatic weapons, and that they had to collect donations from local residents to pay for ammunition.
Human Rights Watch does not contest the right of Nepali civilians to protect themselves from the Maoists. But our research showed that these poorly trained and ill-disciplined vigilante groups frequently act abusively toward the local population they are ostensibly protecting, beating and at times killing those suspected—however flimsily —of Maoist sympathies, extorting “donations,” and violently intimidating villagers. They are often accompanied by members of the security forces who do not intercede to stop the vigilantes’ abuses.
In several instances, including in Bardiya, Kapilvastu, and Nawalparasi, we found that vigilante groups bolstered their ranks by forcing local residents to join them or by offering them money. Our investigations into the activities of these groups found that they operate outside the law and with near total impunity.
The Maoists have sought to counter the introduction of vigilante groups by aggressively attacking them.. In early March, Maoists abducted eight members of a newly formed vigilante group in Bardiya district. At the time of publication, their fate was unknown.
On March 9, Maoist forces brazenly murdered two unarmed members of a vigilante group while they were selling buffalos at the weekly market in Raupaliya bazaar, in Nawalparaisi district. When Human Rights Watch met some of the leaders of the vigilante group, they were discussing how to avenge the attack.
The Maoists’ Use of Child Soldiers
I was fourteen. The Maoists came to my village saying one person from each family must join them. I don’t have any brothers, and my sister is just nine years old—it was either me or my mother.… When the two-month program was over, I wanted to leave, but they said they would shoot me if I tried. I was carrying bags and was given a grenade—the Maoists taught me how to use it and how to throw stones.One of the most troubling aspects of Nepal’s civil war is the Maoists’ ongoing recruitment, often forcible, of children for military purposes. While there are no specific figures on the number of children within the Maoist forces, the Asian Human Rights Commission (in its 2003 report “Children and the People’s War in Nepal”) estimated that children may comprise up to 30 percent of Maoist forces.
—fifteen-year old “Parvati P."
Data collected by Nepali human rights organizations INSEC and Advocacy Forum shows that during the ceasefire the Maoists abducted thousands of children. In its December 2005 report “Three Months of Ceasefire” INSEC suggested that from September to December 2005 the Maoists abducted 8777 persons, most of them students and teachers. Although most of the children were released after participating in political indoctrination programs, it is clear that a significant number joined the Maoist forces.
During its mission, Human Rights Watch interviewed fifteen young people—eleven girls and four boys—all of whom had been recruited by the Maoists while they were under eighteen. The majority of them had been recruited against their will–abducted from schools for an indoctrination program and then forced to stay, taken from homes under the Maoists’ “one family, one member” recruitment campaign, or simply kidnapped. Their subsequent requests to be released or efforts to flee proved futile and in some cases resulted in beatings and other punishments. The children—recruited mostly in the far western region of Nepal—were captured by the RNA in late February 2006 after their participation in the clashes between the Maoists and security forces in Palpa district.
While the Maoist leadership has repeatedly denied training and using children for military activities, the young people interviewed by Human Rights Watch said that as children they had served in the Maoist forces as porters of ammunition, cooks, stretcher-carriers, and sentry guards; some received more substantial military training. Almost all said they were given hand grenades or socket bombs and taught how to use them.
The Nepali government’s response to the problem of child soldiers has been seriously inadequate. The government has no comprehensive policy for rehabilitating child soldiers from the Maoist forces. Children who surrender or are arrested by the security forces often face long-term detention under the Terrorist and Disruptive Acts (Prevention and Punishment) Ordinance (TADO), which has no specific provisions for the treatment of juvenile suspects. A few government-run rehabilitation centers and shelters currently host just a handful of children, and no reintegration process is in place to ensure their safe return to their home areas.
Security Forces’ Continuing Abuses and Impunity
Over the last year and a half I have not heard anything about my husband’s fate. I went to Bhairabnath Battalion barracks three or four times but the army denied having him. I begged the army to give me at least some information but they refused.… Now we are united with other families of the disappeared but of the 150 members no one has found their relatives. We wrote to the Home Ministry but received no response.Human Rights Watch’s recent investigation found evidence that under sustained international pressure, government security forces have decreased some of their most egregious practices, such as carrying out extrajudicial killings, “disappearances,” and long-term arbitrary detentions. However, torture and other forms of mistreatment of detainees remain widespread.
—wife of Rajendra Thapa, “disappeared” by the RNA on December 18, 2003.
Nepali security forces continue to enjoy near total impunity from prosecution for human rights abuses. Despite international pressure, the military have not instituted any credible system of accountability for hundreds of outstanding cases of abuses. The security forces have also tried to circumvent conditions imposed on their conduct by the U.S. Leahy Amendment, which prohibits U.S. military assistance to foreign armed forces that violate human rights, and have not fully cooperated with OHCHR, sometimes refusing to provide detailed information on investigations and prosecutions of security personnel for human rights violations.
According to the National Human Rights Commission (NHRC), there are still more than 750 outstanding cases of “disappearances” by government security forces. Efforts by the families of the “disappeared,” the OHCHR, and the NHRC to get information from the government about the fate of the “disappeared” have been largely futile. For example, Human Rights Watch spoke with three families whose cases were detailed in our March 2005 report “Clear Culpability: ’Disappearances’ by Security Forces in Nepal.” These families said that despite numerous and persistent attempts to gather information regarding their missing loved ones, they had received no response from the government since they had last spoken with Human Rights Watch in September 2004.
While “disappearances” by the army seem to have decreased significantly over the last six months, the RNA continues to detain suspects illegally in army barracks (under TADO or the Public Security Act). Although the RNA has recently begun handing detainees over to police custody much more quickly than before, the few days or weeks detainees spend in army custody appear to invariably involve torture. Human Rights Watch interviewed a dozen people detained by the RNA over the last year. Each reported being severely beaten while he or she was in army custody. Representatives of the human rights organization Advocacy Forum told Human Rights Watch the practice of torture in army detention is reported in almost every single case they have documented.
Despite the prevalence of torture, it is nearly impossible for victims to seek justice against security personnel. Civilian courts have no jurisdiction to prosecute RNA personnel for acts committed in the course of military operations, while police officers escape accountability for torture through extremely high evidentiary and procedural burdens on plaintiffs. According to the Nepali Bar Association, even in the few cases where courts have awarded compensation to victims of police torture, the judgments do not include criminal liability for the perpetrators, and can rarely, if ever, be enforced.
The RNA’s own records show that very few cases of extrajudicial executions, torture, or other serious abuses have been prosecuted by the military. In the few cases in which soldiers have been found guilty, the punishments have been inappropriately light. For instance, in the case of the death of Rama Adhikari on July 3, 2005, the court martial found that she had died due to “excessive use of force” by the RNA during a “cordon and search operation” in Taganduba, Jhapa district. The lieutenant found responsible for the killing was sentenced to three months of imprisonment, forfeiture of promotion for one year, and payment of 25,000 rupees (U.S.$350) compensation to Rama’s family.