Humanitarian Crisis: Himalayan Peoples War and Indiscriminate Attacks on Civilians Introduction

Armed conflict is a universal and permanently recurring phenomenon within and between societies. Armed conflict creates enormous upheaval at the personal, family, societal, and country level. It has destroyed physical infrastructure and social harmony. It caused immense pain, both physically and mentally on people.1 In the period of decade long Himalayan peoples war violations of human rights and international humanitarian law (hereinafter simply IHL) remained the norms in Nepal. There was large numbers of extra-judicial killings, enforced disappearances, torture, and other abuses committed by both sides of the war. Many civilians were killed, caught in crossfire, and victimized due to the indiscriminate attacks on civilian areas. Civilian were trapped between the demands of the opposing sides, frequently forced to cooperate by one and then punished for collaboration by the other. Humanitarian crisis and serious violations oh IHL remained frequent and widespread during the conflict.2 This research paper aims to examine the humanitarian crisis, Himalayan peoples war and indiscriminate attacks on civilians during the decade long war of Nepal. Looking forward, the study reveals the few of the major incidents of the war which violated the norms and principle of IHL. The sources of this paper include published articles and reports by researchers and non-governmental organizations (NGOs), media reports and books related to IHL and decade long armed conflict of Nepal.

Mr. Gajendra Aryal is currently pursuing Ph.D. in International Humanitarian Law, Department of International Studies, Aristotle University of Thessaloniki, Greece. Costas Hadjiconstantinou is the Professor, Department of International Studies, Aristotle University of o Thessaloniki, Greece.

**

Anjana Shakya, Social Impact of Armed Conflict in Nepal-Cause and Impact, SIRF. 2006. p.40. See, ICRC, Annual Report 2005. Nepal, p.174.

Background of the Humanitarian Crisis and Himalayan Peoples War

The decade long war between Government of Nepal and Communist party of Nepal (Maoist) (hereinafter simply Maoist), who launched their armed insurgency in February 1996, was so violent which, had created deep humanitarian crisis in Nepal. The war aimed to establish a new people democracy in Nepal constitutes and historical revolt against government, had captured the rural areas and created deadly violence by the means of weapons, and killed large number of people. As a result of the war, more than 13,000 people were killed and tens of thousands people were internally displaced.3 The conflict traced its origins well back in time and to a complex mix of social, economic and political problems in the country.4 Due to an unstable government and an unsystematic development process, the nation has not been able to fulfill the needs of people for a long time. So many social evils like impunity, corruption, administrative carelessness and other criminal activities had existed with in the country as a consequence of bad governance, which had contributed to an environment to flourish the Peoples War in whole country. During the war parties to the conflict had carried out acts of extreme violence, and human rights abuses had been common across the country as increasingly civilians were the major victims of the conflict.5 In the early stages, the conflict was largely confined to the Mid-western regions, it steadily gained momentum, and the response of the security services further alienated substantial sanctions of the population. Both the warring parties committed serious violations of IHL. Many of the victims were civilians targeted by the armed actors or caught up in indiscriminate violence.6 According to the OHCHR investigation report of 2006, after two ceasefire periods, in 2001 and 2003, there were sharp increases in the number of human rights violations, including violations of IHL. On 26 November 2001, a nationwide state of emergency was declared. As part of the emergency measure, the Terrorist and Disruptive Activities (Control and Punishment) Ordinance (TADO) was
3

See, Report of Secretary- General on the Request of Nepal for United Nations Assistance in Support of its Peace Process, 9 January, 2007 4 International Crisis Group, Nepal: Dangerous Plans for Village Militias. ASIA Briefing, Kathmandu/Brussels, 17 February, 2004.p.1. 5 Ibid. 6 See, Report of Secretary- General on the Request of Nepal for United Nations Assistance in Support of its Peace Process, 9 January, 2007. p.2.

promulgated.7 The TADO granted the state party wide power and also suspended the fundamental rights of people provided by the constitution of Nepal.8 The rate of violations of human rights and IHL was increased particularly so after November 2001 when the Royal Nepalese Army (RNA, now the Nepalese Army NA)9 was deployed. From 2002, the Nepal Police (NP) and the Armed Police Force (APF) were placed under the Unified Command of the RNA for counter insurgency operations.10 Civilian had been exposed to a catalogue of abuses at the hands of warring parties. The Maoists had killed, intimidated or coerced local government officials, such as local village leaders, teachers, journalists, human rights defenders and political parties workers. They had harassed civilians suspected of having government or military sympathies.11 The Maoists had frequently pressed the local youth in rural areas to join their Peoples War, and the security forces too had on occasions detained young men and women on suspicion for either being Maoists or their informants. As consequences, many of them had run away to safer regions. Generally, those who had remained in the villages were the disabled, widows, elderly people, persons with no support from any where, and the children.12 Some human rights organizations13 claimed that, security forces had reported to large number of detentions, disappearances, arbitrary arrests, torture including rape and extra-judicial execution.

During the war, disappearances were facilitated by the Terrorist and Disruptive Activities (Control and Punishment) Act (TADA) 2002 which allowed the security forces to arrest suspects without warrant and detain them without charge. The Terrorist and Activities (Control and Punishment) Ordinance 2004 (TADO) replaced the TADA, increased the provision, for detention without charge or trial from 90 days to one year and established special powers to check terrorist and disruptive acts. 8 See, P.J.C. Schimmelpenninck van der oije, International Humanitarian Law from a Field Perspective Case Study: Nepal. Vol. 9 (2006): p. 396. 9 Historically, the army in Nepal was under the command and control of the King. No substantial changes were made in this respect in the 1990 constitution. In September 2006, the Interim Legislature Parliament approval a new Army Act changing the armys name from Royal Nepal Army to Nepal Army and making the army accountable to the government. For easy reading, the army is referred to as the NA throughout this paper. 10 See, United Nations, Office of the High Commissioner for Human Rights in Nepal, Investigation into Violation of International Humanitarian Law in the Context of Attacks and Clashes between the Communist Party of Nepal (Maoist) and Government Security Forces. March 2006. p.5. 11 International Crisis Group, Nepal: Peace and Justice, Asia Report No. 184 of 14, January 2010, p. 8 12 See,Paper by, Sushil Pyakurel and Bipin Adhikari, Nepal: Strategies to Implement the Rights to Food in the Situation of Conflict. Presented at the National Seminar on Implementation of the Rights to Adequate Food in Uganda. January 22-24, 2003. 13 Human Rights Organizations, included (local and International) that were working in Nepal during the conflict like INSEC, NHRC, Amnesty International, ICRC, OHCHR etc.

On February 1, 2005, King Gyanendra declared a state of emergency and with the armys backing assumed all executive authority, citing the inability of the civilian government to resolve the conflict. After the declaration of state of emergency, King Gyanendra ordered the detention of thousands of political activists, journalists, lawyers, and human rights defenders, and imposed sever restrictions on civil liberties. The king action against democracy provoked strong and widespread international condemnation. Countries like India, United States, and United Kingdom had called on the king return political authority to a representative government. Nepals main military suppliers cut off the sale of lethal weapons, and the United States conditioned any future sales upon specified improvements in the governments human rights record, such as ending the NAs practice of disappearances and illegal detentions.14 In November 2005, the mainstream Seven-party alliance and Maoists signed a 12 points understanding vowing to establish absolute democracy by ending autocratic monarchy Maoists expressed its commitment to democratic norms and values including competitive multiparty politics, civil liberties, human rights, the rule of law and fundamental rights.15 In April 2006, the parties gathered strength and demonstrated against Kings direct rule. The Kings government again imposed undue restrictions on freedoms of assembly and expression and the security forces used excessive force in efforts to suppress the protest. The security forces used batons, live and rubber bullets and tear gas canisters, fired at close range, to control the crowds, resulting in the deaths of at least 18 people and injuries to more than 4,000. Hundreds of peaceful political and civil society activists were among those arrested.16 Nationwide demonstration, organized by the major mainstream political parties and Maoists compelled King Gyanendra to capitulate. A few months later 21 November, a peace accord was signed, by the seven parties alliance and the Maoists and declared an end of the decade long Peoples war formally.17

14 15

Nepals Civil War: The conflict Resume. A Human Rights Watch Briefing Paper. March 2006. See, Report of Secretary- General on the Request of Nepal for United Nations Assistance in Support of its Peace Process, 9 January, 2007. 16 Amnesty International Report 2007, Nepal 17 See, Report of Secretary- General on the Request of Nepal for United Nations Assistance in Support of its Peace Process, 9 January, 2007.

Violations of International Humanitarian Law by Maoists and Security Forces

Protection of the civilians population is a basis element of Humanitarian law. Civilians and all those not taking part in the fighting must on no account be attacked and must be spared and protected. The 1949 Geneva Conventions and their 1977 Additional protocols contain specific rules to protect civilians.18 But the case in Nepal was different during the war. Nepal had experienced gross violations of IHL committed by Maoists in the course of its insurgency and by Security Forces in the states response.19 The violent conflict was main reason for the widespread violation of human rights and the disregard for humanitarian laws. The decade long armed conflict was marked by bloody murders, disregard of humanitarian values and impunity for those responsible for the violations and indiscriminate killings.20 In the period of war, the Maoists and Security Forces committed serious violations of IHL, principally endangering the lives of the civilian population including through attacks in civilian areas, using civilian houses and school as a shields, indiscriminate shooting and bombing, mass abduction, forced recruitment, rape, extortion, unlawful killings, and forced displacement.21 In 7 February 1964, Nepal ratified the four Geneva Conventions of 1949.22 Article 3 common to the four Geneva Conventions applies to armed conflicts not of an international character. It contains provisions governing the minimum protection of all persons not taking an active part in hostilities, including civilian population and

18

Enhancing Protection for Civilians in Armed Conflict and other situation of Violence. ICRC, September 2008. p.7. 19 See, Report of the United Nations Commissioner for Human Rights on the Situation of Human Rights and the Activities of Her Office, including Technical Cooperation, in Nepal. 16 February 2006. p. 9. 20 Informal Sector Service Center. Human Right Year Book, Kathmandu, Nepal: INSEC: 2005. P. v. 21 See, United Nations, Office of the High Commissioner for Human Rights in Nepal, Investigation into Violation of International Humanitarian Law in the Context of Attacks and Clashes between the Communist Party of Nepal (Maoist) and Government Security Forces. March 2006. p. 7-8. 22 Human Right Treaty Monitoring Coordination Committee (HRTMCC), Nepal Status of Ratification of Key International Instruments, Kathmandu Nepal . Available in www.inseconline.org.

members of the armed forces in non-international situations.23 To date, Nepal has not signed the Two Additional Protocols of 1977.24 The Additional Protocols II regulates the application of IHL in non-international armed conflict. Although Nepal is not a signatory to Additional Protocol II, many of the Protocols provisions are accepted as part of Customary International Law.25 It can be argued that the decade long conflict of Nepal was a classical example of a non-international armed conflict; a political party decided to take up arms to fight the established authorities. In such cases Article 3, common to all four Geneva Conventions applies.26 There were dozens of reports of alleged violations of IHL by Maoists and Security Forces during the war. These allegations of IHL have been received in the context of indiscriminate attacks by the Maoists and the Security Forces in urban, highly populated areas and on government buildings with civilian status, as well as clashes between the two sides. The Maoists frequently 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 NA forces from civilians 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. The walls of their houses were marked by bullet.27 During the war, the Maoists routinely used civilians houses, school and public spaces without removing the population to safety endangers civilians who become subject to Security Forces fire. On many of the cases, civilian casualties were unnecessary occurred when Security Forces deploy helicopters using indiscriminate methods of aerial bombardment while pursuing retreating Maoists. The Security Forces dropped mortar shells by hand from the side of helicopters, which did not allow proper
23

See, United Nations, Office of the High Commissioner for Human Rights in Nepal, Investigation into Violation of International Humanitarian Law in the Context of Attacks and Clashes between the Communist Party of Nepal (Maoist) and Government Security Forces. March 2006. p. 7. 24 Human Right Treaty Monitoring Coordination Committee (HRTMCC), Nepal Status of Ratification of Key International Instruments, Kathmandu Nepal . Available in www.inseconline.org 25 See, United Nations, Office of the High Commissioner for Human Rights in Nepal, Killing of civilian in Benbehda. Investigation Report of 18 August, 2005. p. 10. 26 See, P.J.C. Schimmelpenninck van der oije, International Humanitarian Law from a Field Perspective Case Study: Nepal. Vol. 9 (2006): p. 396. 27 Nepals Civil War: The Conflict Resumes. A Human Rights watch Briefing Paper. March 2006.

targeting in populated areas. According to the investigation report of OHCHR, on February 26 and 28, 2006, NA helicopters had indiscriminately bombed and had fired shots from helicopters in civilians. As a result, in Khidim VDC, a remote hilly area in Palpa district, a 14 years old child Pawan gautam was killed and six civilians including four children were injured.28Life in the remote areas was paralyzed by the types of attack. Both the warring parties had violated IHL norms and principles during the clash. It was found that Maoists had taken shelter at civilians houses while escaping away from the Security Forces where as Security Forces attacked indiscriminately in the civilian areas. Security Forces, sometimes in large numbers, in both uniform and civilian clothes and with weapons, had often used public buses as a means of transportation and Maoists targeting the civilian buses as a counter insurgency and ambushed the civilian buses in many places of a country. Attacks against civilian transportation in Chitwan District was so heartbreaking and the example of grave violation of IHL. According to the report of Human Rights Treaty Monitoring Coordination Committee (HRTMCC), a total of 38 persons including 35 civilians and 3 security persons died in the incident where Maoists trapped bus in landmine at Bandarmudhe stream of Kalyanpur VDC, which lies at Madi area of Chitwan District in Mid-region of Nepal. 16 women, 15 men and 7 children were among those killed.29 Maoists were responsible for the killing of civilians and in the breached of its international humanitarian law obligations. It was the obligations for the Maoists to make a distinction between civilian objects and military objectives and to respect the fundamental guarantees of persons who do not take a direct part in hostilities, including obligations related to the protection of civilians. Similarly, Security Forces were equally responsible to breach the IHL. They violated their IHL responsibilities through their failure to take precautions to protect the civilian population and civilian objects under their control against the effects of attacks, in the context of the Security Forces repeated and regular used of public transport facilities.30

28

See, United Nations, Office of the High Commissioner for Human Rights in Nepal, Investigation into Violation of International Humanitarian Law in the Context of Attacks and Clashes between the Communist Party of Nepal (Maoist) and Government Security Forces. March 2006. p.15. 29 See, Human Rights Treaty Monitoring Coordination Committee (HRTMCC) Nepal. Field Report on Maoists Trapped a Civilian Bus in Landmine at Bandarmudhe Stream in Madi of Chitwan District. 14 June, 2005.2.

Amnesty International claimed that during 2003 and 2004, Nepal had had the highest rate of reported disappearances in the world.31 Arrest and torture of hundreds and at least 45 disappearances in Kathmandu from late 2003 into 2004 attributed primarily to the Bhairabnath battalion of the NAs 10th Brigade. Those selected for detention and torture were largely but not all active Maoists, many of them from partys student wing and civilians.32 People who were arrested and detained for varying periods in Maharajgunj barracks were subjected to severe and prolonged ill-treatment and torture, with a principal role played by the Bhairabnath battalion. Torture and illtreatment of detainees during interrogation at maharajgunj barracks was routine and systematic, with a special team carrying out the tasks of torture and interrogation. Report documented by OHCHR claimed that numbers of detainees were subjected to conclude that a significant number of detainees were subjected to various methods of torture, including beating with plastic pipes on the lower back, legs, and soles of the feet, submersion in water, and electric shocks. In almost all cases, victims of this torture, including women, were made first to remove their clothing, and were subjected to continuous abusive and degrading language. In addition, there were acts of torture involving sexual humiliation of both male and female detainees. Detainees were subjected to torture and other cruel, inhuman or degrading treatment while permanently blindfolded and handcuffed for up to eighteen months. At least 49 of those detainees were known to have been held by the battalion and to have disappeared on 20 December 2003 or shortly thereafter, never to be seen again since.33 In spite of national and international norms governing detentions of suspected insurgents, including in times of internal armed conflict, these hundreds of detentions were consistently denied by the NA. National and International appeals for information and classification were ignored. Detainees were hidden from inspection. The fundamental guarantee of judicial control over detentions was denied.34

30

See, United Nations Office of the High Commissioner for Human Rights in Nepal. Investigation Report on Attacks against Public Transportation in Chitwan and Kabhrepalanchok Districts. 18 August, 2005. 31 Amnesty International, Nepal: A decade of suffering and abuse, press Release of 10 February, 2006. 32 International Crisis Group, Nepal: Peace and Justice, Asia Report No. 184 of 14, January 2010, p. 8 33 See, United Nations, Office of the High Commissioner for Human Rights in Nepal, Report of Investigation into arbitrary detention, torture and disappearances at Maharajgunj RNA barracks, Kathmandu in 2003-2004, May 2006. p.54, 55 and 66. 34 Ibid,.p.47.

Civilians routinely endured the atrocities from the Maoists and Security Forces in course of conflict. Innocent civilians got victimized in one or another way. The story of Benbehda, kailali District is so heartbreaking. Six civilians, including, three women, two men and one year old child were abducted, abused and brutally murdered by unidentified perpetrators on 14 June, 2005. All but one of the victims was related to Armed Police Force (APF) personnel. The sixth, along with one of the other victims, had recently arrived in the area in order to be recruited by APF. The essential facts, as established by OHCHR, are that during the hours of darkness, a group of assailants entered a cluster of houses 150 meters from the APF Badamalika base and abducted the six civilians. They were marched to a nearby forested area, abused and murdered.35 Apart from the baby, all others killed were handcuffed and their throats slit. Their bodies were pierced on various parts with sharp weapons. Intestine of one year old child was badly spread.36 In committing these acts, the perpetrators showed a complete lack of respect for life and human dignity. The human rights of the victims were violated in multiple ways and, if party to the armed conflict, involved violations of their rights to security of person and to liberty and the killing of each victim was an arbitrary deprivation of life in violation of the right to life.37 These are only the representative stories of the indiscriminate attack on civilians during the conflict in Nepal. The warring parties committed many atrocities with complete disregard of the common article 3 of Geneva Conventions. Security Forces arrested many civilians and had been shot dead while being brought to the custody, or had died after brutal beatings while in custody. Although the state had claimed that many of those deaths occurred in clashes between Security Forces and Maoists. In reality, People sleeping inside their houses or merely walking on the road had been shot dead from the both parties.

Conclusion
35

See, United Nations, Office of the High Commissioner for Human Rights in Nepal, Killing of civilian in Benbehda. Investigation Report of 18 August, 2005. p.3. 36 See, Human Rights treaty Monitoring Coordination Committee (HRTMCC) Secretariat: INSEC, 21 june,2005 p.2. 37 See, United Nations, Office of the High Commissioner for Human Rights in Nepal, Killing of civilian in Benbehda. Investigation Report of 18 August, 2005. p.9.

The decade long conflict produced a tumultuous humanitarian crisis in Nepal. The parties to the conflict committed serious violations of IHL, principally endangering the lives of the civilian population. Civilians were abducted, murdered, detained, tortured, and displaced in large number during the conflict. This paper has outlined the humanitarian crisis, Peoples War of Nepal and the indiscriminate attack on civilians in very brief. This research paper explores few of the major incidents of indiscriminate attack of the armed actors over civilians during the war. The research findings indicate that civilians were the major brunt of the decade long conflict. The situation of civilians was very poor in the period of conflict. They were suffered, tortured, abducted, displaced and even killed on indiscriminate attack by the parties to the war. IHL governs the conduct of parties involved in armed conflicts. The distinction between civilians and combatants is a key principle of IHL. During military operations, the parties to the conflict must ensure that care is taken to spare the civilian population and individual civilians. In the case of Nepal the warring parties are bound by IHL. Both parties require training on the IHL on the rights and the protection of the civil population. They need to respect the basic principle of IHL. Warring parties policy and operational guidelines should be reviewed and brought fully in line with IHL provisions.

10