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VII. The Role of the International Community

The importance of sustained international attention to Nepal’s deepening human rights crisis can hardly be overestimated. Given the country’s dependence on foreign aid, the Nepali government is quite sensitive to outside pressure. Last year was especially indicative of Nepal’s susceptibility to international opinion, since increased pressure by key international players led to renewed attention to human rights by government and army officials and potentially important concessions from the government.

The European Union’s criticism of Nepal’s “seriously deteriorating” human rights situation in February 2004 and the threat of adopting a strongly worded resolution at the April session of the United Nations Commission on Human Rights (UNCHR) prompted the government’s public pledge to uphold human rights and abide by international humanitarian law, discussed above.²⁵⁷ In addition, consistent pressure from the E.U. has finally compelled the RNA to admit its responsibility for the Doramba killings and bring at least some of the perpetrators to justice.

Nepal managed to avoid UNCHR condemnation in 2004 largely due to United States opposition to the proposed resolution. Nonetheless, the much softer “Chairman’s statement” on human rights assistance to Nepal adopted by the commission on April 21, 2004, expressed concern over Nepal’s deteriorating human rights situation and the growing number of civilian victims.²⁵⁸ The statement appealed to the government to strengthen its efforts to ensure the enjoyment of fundamental rights and condemned the indiscriminate violence by the Maoists.

The statement also encouraged the government to cooperate with the Office of the United Nations High Commissioner for Human Rights (OHCHR), especially on the issue of external assistance to the National Human Rights Commission. Subsequently, the OHCHR and the Nepali government signed a Memorandum of Understanding concerning technical assistance to the NHRC, which could potentially strengthen the capacity of the commission to address human rights abuses, including enforced disappearances.²⁵⁹

In January 2005, United Nations High Commissioner for Human Rights Louise Arbour said in a speech in Kathmandu that the U.N. believed the human rights situation is so problematic that it is necessary for the NHRC to have unimpeded access to all places of detention without prior notification, and that this was of central importance to resolving the “disappearance” crisis.

On December 23, 2004, concern over Nepal’s human rights crisis was voiced by the United Nations Secretary General Kofi Annan, who stated that he was “deeply troubled by reports of an escalation of fighting in Nepal and of continued grave human rights violations.” He urged the government and the CPN-M to initiate a dialogue, and further called on the government, among other things, to guarantee “the safety and ability of the National Human Rights Commission” to carry out its “essential work.”²⁶⁰

The work of the United Nations Working Group on Enforced and Involuntary Disappearances (WGEID) has been particularly important in addressing the “disappearances” crisis in Nepal. It is doubtful that the Nepali government would have implemented even the meager measures discussed above to address the problem of “disappearances” if it had not been for the increased attention on the part of the WGEID. Alarmed by the soaring number of new cases reported from Nepal, the WGEID made the country one of its top priorities. It has transmitted dozens of cases as urgent appeals to the government, calling on the authorities to investigate the reported “disappearances” and bring the perpetrators to justice.

In December 2004, a WGEID delegation conducted a nine-day visit to Nepal in order “to discuss the cases of enforced or involuntary disappearance received and transmitted by the Working Group to the Government of Nepal and to examine the situation of disappearances in Nepal in the light of international human rights standards.”²⁶¹ The delegation met with the highest Nepali authorities, including the king, the prime minister, the chief justice of the Supreme Court and the RNA chief, as well as with human rights groups and relatives of the “disappeared.”

At the conclusion of its visit, the WGEID reiterated its concerns over the continued practice of “disappearances” and the impunity of the security forces. The delegates urged the authorities to introduce concrete measures to end the practice, including a complete prohibition of incommunicado detention in army barracks, protection of human rights defenders from persecution, and unhindered access for the National Human Rights Commission to all places of detention without being obligated to give prior notification.²⁶² Continued pressure from the United Nations and donor governments will, however, be necessary to ensure the implementation of the WGEID recommendations.

Another significant development was recent legislation in the United States placing human rights conditions on future military assistance to Nepal.²⁶³ President Bush signed the bill into law in December 2004. The law requires the Nepali government, as a condition of assistance, to:

• take effective steps to end torture by security forces and to prosecute members of such forces who are responsible for gross violations of human rights; 

• determine the number of and make substantial progress in complying with habeas corpus orders issued by the Supreme Court of Nepal, including all outstanding orders; 

• cooperate with the National Human Rights Commission of Nepal to identify and resolve all security related cases involving individuals in government custody; and 

• grant the National Human Rights Commission of Nepal unimpeded access to all places of detention. 

The immediate reaction of the Nepali authorities to the new legislation has yet again demonstrated their responsiveness to international pressure. The day after the U.S. Congress passed the act, the RNA chief of staff Pyar Jung Thapa paid an unprecedented visit to the head of the Nepal’s Supreme Court and, according to a Supreme Court source, “assured the Chief Justice that the Royal Nepalese Army (RNA) would cooperate with the Supreme Court and abide by human rights law and court orders.”²⁶⁴ The army chief of staff also visited for the first time the chairman of the National Human Rights Commission and expressed the RNA’s willingness to cooperate with the Commission.²⁶⁵ 

The new U.S. legislation could have a significant effect, promoting the accountability of the security forces and preventing enforced disappearances, torture, arbitrary detention, and other abuses. However, since the Nepali government obviously has a vested interest in feigning compliance with the new law, careful monitoring by the U.S. government is crucial for ensuring that security forces actually fulfill the conditions.

In addition, a number of recent statements by U.S. officials also indicate that they might reconsider their unreserved indulgence of the Nepali security forces’ conduct. For example, during his October 2004 visit to Kathmandu, Deputy Assistant Secretary of State Donald Camp reportedly stated that it would be difficult to convince Congress “to continue the flow of funding if Nepal’s government forces do not improve their human rights record.”²⁶⁶

Other states providing military assistance to Nepal, primarily India, the United Kingdom, and Belgium, also should ensure that basic human rights standards are met as a condition of providing aid. They should also monitor the use of arms provided to Nepal. European assistance has been largely conditioned by the criteria set out in the 1998 European Code of Conduct on Arms Exports and corresponding national legislation.²⁶⁷ However, some national legislation, such as a law passed by Belgium in 2003, incorporates exceptions regarding assistance to “democratic regimes whose existence is under threat.” Such laws might be used to justify further support of Nepali security forces without proper oversight.²⁶⁸ The ability and willingness of European suppliers to devote adequate resources to monitoring the use of military assistance also remains a matter of concern.

At the same time, India, which is believed to be the largest supplier of arms, training and other military assistance to Nepal, has never predicated its support on the security forces’ adherence to human rights.²⁶⁹ Moreover, it has consistently opposed broader international monitoring of the conflict, thus tacitly helping to shield the Nepali authorities from accountability.²⁷⁰

International actors have justified their support for the Nepali government by citing fears that the coming to power of the Maoists would have calamitous consequences, given their horrendous record of intolerance and human right abuses. While these concerns are fully justified and criticism of Maoist abuses is certainly appropriate, the behavior of the Maoists provides no excuse for government abuses. In addition, the government’s sorry and well-known record of abuses only undermines public confidence in the government and may drive Nepalis to support the Maoists or lead to indifference about who governs the country.

A recent statement by a high-level E.U. delegation during its December visit to Nepal exemplifies the international community’s often inappropriate response to Nepal’s crisis. The delegation properly criticized the Maoists for systematic and gross human rights abuses, but completely failed to acknowledge the pattern of egregious human rights violations by government forces, including the appalling number of enforced disappearances.²⁷¹ 

Such one-sided statements fuel the rebel forces’ indignation²⁷² and send the wrong message to the government, indulging its disregard for human rights and bolstering its sense of impunity. International actors must undertake to avoid this tendentious approach if they hope to play a positive role in bringing the conflict to an end and alleviate the suffering of Nepali people.