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Master report-sections sent for translation

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Master report-sections sent for translation

    United Nations

    Office of the High Commissioner for Human Rights

    Conflict-related Disappearances

    in Bardiya District

    December 2008

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    CONFLICT-RELATED DISAPPEARANCES IN BARDIYA DISTRICT

    TABLE OF CONTENTS

     CHAPTER I: INTRODUCTION .......................................................................................... 4

    CHAPTER II: METHODOLOGY ....................................................................................... 14 CHAPTER III: BACKGROUND ........................................................................................ 17 CHAPTER IV: PROFILE OF THE DISAPPEARED ......................................................... 21 IV.i: Persons disappeared after arrest by the State ............................................................ 21 IV.ii: Persons disappeared after abduction by the Communist Party of Nepal-Maoist (CPN-

    M) ................................................................................................................................... 23 CHAPTER V: THE INTERNATIONAL AND NATIONAL LEGAL FRAMEWORK ........ 23 V.i: International legal framework on enforced disappearances and related violations ..... 23 V.ii: National Legal Framework ..................................................................................... 27 CHAPTER VI: ENFORCED DISAPPEARANCES AFTER ARREST BY SECURITY

    FORCES ............................................................................................................................. 29 VI.i: Security force presence and operations in Bardiya District ....................................... 29 VI.i.i: Royal Nepalese Army (RNA) ............................................................................ 29 VI.i.ii: Nepal Police (NP)............................................................................................. 33 VI.i.iii: Security force operations in the Rajapur Delta ................................................ 33 VI.ii: Arbitrary arrests in the course of security operations ............................................... 34 VI.ii.i: Targeted arrests during search operations .......................................................... 35 VI.ii.ii: Non-targeted arrests ........................................................................................ 38 VI.ii.iii: Illegal use of force during arrest .................................................................... 39 VI.iii: Detention, torture and ill-treatment in Chisapani RNA Barracks .......................... 39 VI.iii.i: Places of detention .......................................................................................... 41

     VI.iii.i.a: The National Park warden‟s office ............................................................. 41

    VI.iii.i.b: Service staff building facing soldiers‟ mess .............................................. 42

    VI.iii.i.c: Quarter guard in the military store ............................................................ 43

    VI.iii.i.d: The trench and bunker ............................................................................. 43

    VI.iii.i.e: Other places of detention........................................................................... 43 VI.iii.ii: Cruel, inhuman and degrading treatment in detention ..................................... 44 VI.iii.iii: Torture .......................................................................................................... 46 VI.iii.iv: Mock executions and the fear of death .......................................................... 49 VI.iii.v: Rape and other forms of sexual violence ........................................................ 49 VI.iii.vi: Coercion to identify suspected Maoists, including relatives ............................ 50 VI.iii.vii: Extortion ...................................................................................................... 51 VI.iv: Failure to acknowledge arrests and detention ........................................................ 51 VI.v: Right to challenge the legality of detention ........................................................... 55 VI.vi: The fate of the disappeared ................................................................................... 56 VI.vi.i: Extrajudicial executions in detention ............................................................... 56 VI.vi.ii: Pattern of removal of persons subsequently disappeared from detention .......... 57 VI.vi.iii: Possible death from injury during arrest ......................................................... 57 VI.vi.iv: Possible death due to torture .......................................................................... 58 VI.vii: Attempts by the NA to cover up disappearances in Bardiya District ..................... 59 VI.vii.i: Killing of persons whom the NA stated were released .................................... 61 VI.vii.ii: Persons who the NA stated were “killed in an encounter” or “while trying to escape ........................................................................................................................ 62 VI.vii.iii: Ministry of Defence press releases that victims were "killed in an encounter”63 CHAPTER VII: ACTIONS TANTAMOUNT TO ENFORCED DISAPPEARANCE BY THE

    CPN-M ............................................................................................................................... 65 VII.i: CPN-M presence and operations in Bardiya District ............................................... 65 VII.ii: Unresolved abductions and enforced disappearances ............................................. 67

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     VII.iii: Detention ............................................................................................................ 68VII.iv: Fate of those abducted and disappeared ................................................................ 69 VII.v: Failure to disclose the location of the bodies ......................................................... 70 VII.vi: Cases where the bodies of the abducted individuals were located ......................... 71 VII.vii: CPN-M denial of involvement in abduction and disappearance ........................... 72 CHAPTER VIII: SOCIO-ECONOMIC IMPACT OF DISAPPEARANCES ON THE

    FAMILIES OF THE DISAPPEARED ................................................................................. 73 VIII.i: Diminished food security ...................................................................................... 74 VIII.ii: Lack of access to health and education, and child labour ...................................... 74 VIII.iii: Social discrimination against wives of the disappeared ........................................ 75 VIII.iv: Case studies ........................................................................................................ 75 CHAPTER IX: TRUTH, JUSTICE AND REPARATIONS ................................................. 77 IX.i: Efforts of the victims‟ relatives, Nepalese and international organisations ............... 78 IX.ii: Decision of the Supreme Court of Nepal ................................................................ 79 IX.iii: State obligations and responses regarding truth, justice and reparations................. 80

    IX.iii.i:Truth ................................................................................................................ 80

    IX.iii.ii: Accountability and Justice .............................................................................. 83

    IX.iii.iii: Remedies, including reparations .................................................................... 87 CHAPTER X: CONCLUSIONS......................................................................................... 89 CHAPTER XI: RECOMMENDATIONS ............................................................................ 92

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    CONFLICT-RELATED DISAPPEARANCES IN BARDIYA DISTRICT

“I will take with me the lasting memory of the accounts given by the Tharu and other families

    whose relatives disappeared in Bardiya District during the conflict. I believe their stories. The suffering they expressed is testament to the fact that disappearances are on-going human rights violations. The parties to the peace accord must act without delay to clarify the whereabouts or fate of all those who disappeared, and to provide justice and redress for their

    1 families.”

    Executive Summary

This report sets out the findings of OHCHR‟s investigations into enforced disappearances and

    related serious human rights and international humanitarian law (IHL) violations in Bardiya District in the context of the conflict between the State and the Communist Party of Nepal-Maoist (CPN-M). OHCHR has received information on over 200 cases of enforced disappearance after arrest by the security forces in the district, the highest number of reported conflict-related cases in one district in the country. Of these, OHCHR has investigated 156 cases so far, most of which took place following arrests between December 2001 (following the declaration of the first State of Emergency on 26 November 2001 and the deployment for the first time of the then Royal Nepalese Army (RNA)) and the subsequent ceasefire in January 2003. OHCHR‟s investigations into enforced disappearances by the State authorities focus on this period, which was one of the most intense of the conflict in the district. Fourteen cases of actions tantamount to enforced disappearance after abduction by the CPN-M between November 2002 and October 2004 were also documented in Bardiya District, 12 of which have been acknowledged by the CPN-M.

    The disappearances by both parties were part of a broader pattern of widespread human rights and IHL violations which occurred during the conflict nationwide. Many of the victims were civilians not taking part in hostilities. Although many other serious violations of human rights and IHL were committed during the conflict - including extrajudicial executions and other unlawful killings, abductions, torture, assaults and extortion - this report focuses on disappearances because of the urgency of establishing the whereabouts of the disappeared.

    The question of resolving conflict-related disappearances has remained one of the pending issues of the peace process. There have been very significant developments in Nepal since the 2006 ceasefires, including an end to hostilities, the signing of the Comprehensive Peace

     1 Extract from a statement made by Louise Arbour, the then UN High Commissioner for Human Rights, during her visit to Nepal in January 2007.

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    Agreement (CPA), the formation of a newly-elected and for the first time broadly representative Constituent Assembly, the abolition of the monarchy and declaration of a republic, as well as the formation of a new government. These developments mark a historic new phase in Nepal‟s peace process. The Supreme Court of Nepal, in a landmark judgment on

    enforced disappearances in June 2007, directed the Government of Nepal to ensure justice and redress to the victims, and the CPN-M and other political parties involved in the peace process have made repeated political commitments to take action on this critical issue.

    The formation of a new government and the Constituent Assembly offer a unique opportunity for the authorities to demonstrate a real commitment to human rights and ending impunity by taking concrete and effective steps to resolve conflict-related violations of the past, including the disappearances documented in this report. During the high-level debate of the UN General Assembly in September 2008, Prime Minister Pushpa Kamal Dahal affirmed the commitment of the Government of Nepal to protect and promote the human rights of its people and to end the culture of impunity.

     As this report was being finalised in November 2008, welcome steps were taken by the Government to establish the Commission on Disappearances, including the sharing of draft legislation on disappearances and its approval by the Council of Ministers pending referral to the Legislature, as well as a Council of Ministers decision to provide interim relief to families of the disappeared.

    Following the end of hostilities in May 2006, the climate of fear which had prevailed during the conflict diminished, and information started to emerge about the scale of the disappearances in Bardiya District, especially by security forces. Three units of the RNA were based in Bardiya District between December 2001 and January 2003 and were primarily responsible for arbitrary arrests, unacknowledged detention and enforced disappearances in the district: Bhimkali Company, Barakh Company (which was upgraded to a battalion during

    th Brigade the period) and Ranasur Company all of which fell under the command of the 4

    and the Western Division of the RNA. The Nepal Police (NP) and Armed Police Force (APF), sometimes working with the RNA, were responsible for arrests in a smaller number of cases. OHCHR documented the consistent refusal by the RNA to acknowledge arrests, the systematic use of torture in at least one place of detention and secret killings in custody, suggesting that the RNA deliberately arrested and removed detainees from the protection of the law to coerce them into providing information on the CPN-M and to eliminate CPN-M presence from the area. Given the scale of these violations and the failure to take necessary action to prevent or restrain them, the leadership of the Western Division of the RNA at that

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    time must bear considerable responsibility, as must individual company commanders. There is also a need for investigations to establish broader chain of command responsibilities within the hierarchy of the security forces and the Government of the time.

    Members of the Tharu indigenous group, who make up 52% of the population in Bardiya District, account for over 85% (135) of the persons disappeared by State authorities in cases documented by OHCHR. Among the victims were 123 men (including 102 Tharus), 12 women and 21 children. All the women and children were of all of Tharu origin. Information provided to OHCHR leads to the conclusion the majority of the disappeared were civilian villagers who were not CPN-M members at the time of arrest. Most of the victims were farmers and others were labourers, students, teachers and carpenters. In addition to their occupations, several were prominent Tharu activists. The Tharus constitute one of the several indigenous groups that are historically marginalised and discriminated in Nepal. Many of the disappeared who were not Tharu were also from economically disadvantaged sectors of the population. This report highlights that the issues of land distribution and lack of access to economic resources for marginalised groups, as well as discrimination, lack of political representation and lack of access to state services and protection are at the root of the conflict in Bardiya District and therefore underlie the disappearances documented.

    Following their deployment in the conflict, RNA units based in Bardiya District gathered information on alleged CPN-M members and supporters, and conducted search operations near their barracks, arresting anyone suspected of links with the CPN-M. Most of the disappeared were specifically targeted and arbitrarily arrested during search operations, mainly from their homes during the night, by armed and uniformed RNA teams, sometimes together with police. The security forces also conducted one large scale operation from temporary camps constructed in the Rajapur Delta area of Bardiya District, during which at least 15 persons were disappeared. In violation of national and international law, arrests were often violent; those arrested were not informed of the reason for arrest and were taken away with little or no explanation. Security force teams often did not identify themselves during arrests. According to local sources, persons from marginalised rural communities, including Tharu civilians, were particularly harassed and humiliated by security force teams during operations, at check posts and when they approached army barracks.

    OHCHR‟s investigations into the conditions and treatment of the disappeared in detention focused on Chisapani Barracks, which it found operated as a centre for intelligence collection, where detainees were systematically held in unacknowledged detention and subjected to torture and cruel, inhuman and degrading treatment in violation of international law, with the

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    involvement, knowledge and/or acquiescence of commanding officers. Most detainees were held handcuffed and blindfolded almost continuously for the duration of their detention. Methods of torture to which detainees were subjected included severe beatings, including on the soles of the feet; rolling a heavy wooden pole with pressure applied on limbs causing muscular damage; being made to lie in the sun and stare at it; having pins inserted beneath the fingernails or having fingernails pulled out; being submerged in water to produce a feeling of drowning; rape and mock executions. OHCHR has thus far gathered witness testimony which indicates that at least 21 of the disappeared were held in Chisapani barracks. Among them were men, women and children, including a 14-year-old boy who was last seen in detention in a trench.

    The RNA repeatedly denied the detention of many of those it arrested, placing them outside the protection of the law. In spite of a general climate of fear and insecurity, many relatives approached army barracks and temporary military camps only to be turned away sometimes with threats or violence. In the small number of cases where the police or army initially acknowledged detention, families were not able to meet or receive information about detainees after a certain point. The fact that arrests were denied, detainees were not given access to a lawyer and detention was not reviewed by a judicial authority severely limited the ability of families to challenge the legality of detention. In particular, the courts normally dismissed habeas corpus writ petitions where detention was denied by the authorities and the

    petitions proved ineffective. Families were thus left searching in vain for any news of their disappeared relatives. Human rights defenders who intervened in such cases at the time did so at considerable risk.

    The fate of most of the disappeared by the State authorities in Bardiya District remains officially unknown, despite the fact that their names have been submitted to the authorities with repeated requests for clarification, by families of the disappeared and human rights organisations, including OHCHR. However, OHCHR obtained credible witness testimonies on a significant number of cases indicating that detainees were killed in custody. OHCHR gathered independent testimonies regarding extra-judicial executions in detention. It also documented a pattern of removal of detainees from custody in Chisapani Barracks in vehicles sometimes equipped with digging equipment. On occasions, these were followed by the sound of gunshots after which vehicles returned empty. A number of the disappeared were last seen being removed from detention in this way. Information gathered indicates that others received injuries during arrest and through torture which may have led to their death.

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    2In cases where the Nepalese Army (NA) has since provided information to government

    commissions and OHCHR, OHCHR believes it has attempted to cover up the fate of some of the disappeared. OHCHR received two communications from the NA, in September 2006 and February 2008 respectively, providing information on 55 persons documented by OHCHR as disappeared after arrest by the security forces. According to the NA, most victims were killed either in an encounter, in security force operations or while trying to escape. Ministry of Defence press releases issued at the time of arrest also claimed that those named were “killed in an encounter”. In other cases, the NA said the persons in question were released or living at

    home, handed over to the police, or that there was no record of their detention or death. However, in the cases where OHCHR was able to carry out further investigation, it received witness testimony which contradicts these claims and as such OHCHR continues to consider the persons as disappeared. By way of illustration, OHCHR‟s investigations found that four young people aged 15 and 16, whom the NA claims were killed in an encounter, were among eight persons arrested from home in front of multiple witnesses in Manau VDC in April 2002. The fact that the NA has acknowledged the death of these individuals, albeit under different circumstances, may be taken as confirmation of their deaths. Given that all were seen in security force custody, OHCHR believes that they were in fact killed in custody and their bodies disposed of in secret.

    The actions tantamount to enforced disappearances by the CPN-M documented by OHCHR took place within a pattern of what the CPN-M termed “party action” against persons

    considered to be exploiters or informants and included public executions, abductions, torture and assaults. According to the CPN-M, all decisions on this “action” during the period in

    question were taken by the district committee and were normally carried out by small groups of People‟s Liberation Army (PLA) cadres known as “squad teams”. OHCHR found that most of the victims were abducted from their home or the street near their home village in the day or the night by small groups of persons in civilian clothes, sometimes with known Maoist cadres among them. The victims included 13 men and one woman, aged between 20 and around 65. Among them were three Maoist-affiliated persons and three members of the security forces (one APF and two RNA personnel) who were taken while they were on leave or off duty. None of the families of those abducted were able to meet them in CPN-M captivity. However, relatives of at least four of those abducted heard from local people and also witnesses who had been held with them that they were beaten severely by the CPN-M, and had visible signs of wounds on their faces and bodies.

     2 The title of the Royal Nepalese Army (RNA) was changed to Nepalese Army (NA) by the House of Representatives proclamation of 18 May 2006. In the report, RNA is used when referring to the army‟s operations

    at the time of the conflict. NA is used when referring to post-May 2006 actions.

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    In July 2008, the CPN-M acknowledged to OHCHR that it had killed 12 of the 14 persons OHCHR had documented as victims of actions tantamount to enforced disappearance by the CPN-M. While the families of some of these individuals had previously learnt through press releases issued by the CPN-M or verbally from Maoist cadres between a few days and a few weeks following the abduction that they were killed, others had not received any information from the CPN-M regarding their fate. The acknowledgement of their death by the CPN-M is a positive step towards determining the fate of the disappeared. However, the full circumstances of the abductions and killings, as well as the whereabouts of the remains must be disclosed. In August 2008, the national-level CPN-M representative for human rights undertook to discuss with CPN-M leaders the issue of informing families in writing that their relatives were killed, in cases where the CPN-M acknowledged killings. He also committed that efforts would be made to identify those responsible in order to locate the victims‟ remains and

    OHCHR understands that instructions to do so have been given to district-level CPN-M leaders.

    The central demands of the families of the disappeared are truth, justice and reparations, which find support in international standards and the above-mentioned decision of the Supreme Court of Nepal in June 2007. Despite repeated commitments by all parties to the peace process, deadlines set to make the fate of the disappeared public have long expired and the establishment of a commission of inquiry on enforced disappearances has been pending for two years in spite of it being one of the measures, along with criminalisation of such practices, ordered by the Supreme Court of Nepal in its June 2007 ruling. The NP has repeatedly obstructed the registration of First Information Reports for conflict-related crimes, including those related to disappearances, and failed to investigate such cases. No-one has been prosecuted and perpetrators continue to enjoy complete impunity.

    The failure of the Government to clarify the fate and whereabouts of the disappeared constitutes a continuing violation of the human rights of their families which must be addressed urgently. It is therefore welcome that in mid-November 2008, draft legislation on disappearances, including the criminalization of disappearances and the establishment of a Commission of Inquiry to investigate them, was released by the Government and approved by the Council of Ministers. The establishment of the Commission has the potential to be an important step towards clarifying the fate of the disappeared, including the persons whose cases are documented in this report. However, OHCHR suggests that the responsible agencies should not wait for the outcome of this inquiry before taking action on cases of disappearance that have been brought to their attention. This report is intended to assist both

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    the Commission and the responsible authorities to meet their obligations under international law.

    Disappearances have had a deeply adverse socio-economic effect on families of the disappeared, many of whom were living at subsistence level before the disappearance. They have been left with diminished food security and lack of access to healthcare and education and vulnerable to child labour and social discrimination. Relatives of four of the disappeared from Bardiya were among those provided with interim relief in line with the Supreme Court decision. This interim relief must be provided to all families of the disappeared as a priority, in accordance with the Council of Ministers decision of November 2008. In addition, there remains an urgent need for a comprehensive programme ensuring a full-range of appropriate reparations, including restitution, rehabilitation and satisfaction, in consultation with families of the disappeared.

    Disappearances and abuses linked to them such as extrajudicial executions, torture and arbitrary detention are among the most serious violations of Nepal‟s international human rights and humanitarian law obligations, especially the International Covenant on Civil and Political Rights. Lack of information about the fate of the victims prolongs the agony of their relatives over many years as they search for information. Repeated promises of action by the parties have led to hope and then despair as these promises are not fulfilled. As the newly-elected Government of Nepal begins the process of transforming Nepal after years of conflict, dealing with past violations of the kind documented in this report will be a critical challenge. This is not only important in terms of ensuring the rights to truth, justice and redress for the victims of disappearance and their families, but for laying a stronger foundation for the rule of law in Nepal and therefore for the long term success of the peace process.. As indicated above, in his address to the UN General Assembly in September 2008, the Prime Minister assured that his Government would end the environment of impunity in Nepal. In accordance with its mandate, OHCHR stands ready to assist the Government in this important undertaking.

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