You are on page 1of 4

MISSING PEOPLE DURING MAOIST’S CONFLICT IN NEPAL

Raj K. Pandey, MBS, MA/Rural Dev.


GPO BOX: 19862, Jawalakhel, Lalitpur, Kathmandu, Nepal

Background

The cases of disappearances were common during the armed conflict between the State and Maoists.
Incidents of disappearance of individuals started from 1998, when the State security forces arrested eight
men and they disappeared. The next year, 73 individuals including 9 women were arrested and
disappeared by the State and the Maoists abducted 6 men, where former was 10 times more. In 2000, it
grew by 31%, of which Maoists had abducted 11 women 1. The police do not register cases, the courts
hesitate to intervene, and authorities give a closed-door approach to the cases brought before them.
Supporters for the victims' families, including human rights activists, have reportedly been threatened and
intimidated by the Government authorities or the Maoists.

The data released by INSEC, a human rights organization in Nepal, quotes that 933 individuals are
missing from 1996 to 2006 of which 11% was by Maoists. The International Committee of the Red Cross
(ICRC) reports 356 individuals were missing in 2002, the highest-ever and from 1997 till mid-May 2007
still reported missing individuals stands at 872 whereas 937 with unknown fate. ICRC has published the
individual victim's names, date of birth, birthplace, parents, arrested/disappeared date and place. Till date
3,300 missing individuals have been actively traced since 1999 and over 100 representations were made
to the State authorities and Maoists, of which more than 200 were found alive and 270 were informed
killed extrajudicially from where 35 were reported to be killed by mistake. One hundred forty-four (144)
new families have visited ICRC for missing cases. The most missing place is Kathmandu (119) and
second is Bardiya (72), whereas the location of disappearance of 73 is still unknown. The following
charts are adapted from ICRC:

1
Sex-wise individuals among still missing

10%

90%

Men W omen

Persons still reported missing

400
300
Number

200
100
0
9

9
8

n
-2

-3

-4

-5
>1

ow
45
25

35

55

kn
un

Age

According to the report of National Human Rights Commission, Nepal (NHRC) the total number of
disappearance is 808 of which Stateholders is 662, 'Terrorist' is 144 and unknown is 32, of which 739 are
men and 69 women between the calendar May 2000 to mid-Dec 2003. Along with this, its recent data
shows a total missing of 2,105 of which 653 are still missing and can be traced from chart given below:

Bill for Legal Procedure to Disappearance

As the government received tremendous pressure from all corners for instances UN Mission in Nepal, UN
Office of the High Commissioner for Human Rights (OHCHR), National Human Rights Commission
(NHRC), Nepal Communist Party (Maoist) and civil society organizations, the government has formed a
committee under Ministry of Law to draft legal procedure to disappearance of individuals, highlights are:

• Crime: not letting to meet with family members after the lapse of the period to be produced
before the legal authority; hiding the information T otal Status of M issing Individuals
of the whereabouts of arrested person; and (2000- M ay 2007)

depriving legal protection to the detained. 1000 952

900
800 Eastern

• Liability: all are responsible if the 700 Central

disappearance is caused by a group; the major 600


Western
500
accountability lies on person who arrests, detains, 400 Mid-west
controls and disappears an individual; and office 300 222
282

in-charge shall be responsible if person is not 200 140 127


171 Far-west

74
identified. 100
62
31 44

0
Status Identified Still M issing
2
• Punishment: person accounted to disappearance of individuals shall be jailed for a maximum
of 5 years and fined the sum of 50,000 Nepali Rupees as per case; those instigating shall be met with
half the punishment; person ordering to disappearance gets similar to the executor; additional
punishment according to relevant laws shall be met if physical and mental torture along with
compensation to victim; if victims' whereabouts is unknown, the closest relative shall receive
compensation; case of murder shall be filed to persons conducting extrajudicial killing, etc.

Protecting Measures for Missing People

The practice of involuntary disappearances and abduction of persons infringes range of International
Humanitarian Law (IHL) and Human Rights treaties and human rights. On the course of respect, protect
and fulfill the right to life, liberty, security and dignity of individuals (missing persons), the Government
of Nepal has vowed not to violate the rights of people committing both national and international human
rights instruments. The brief of them are as follow:

• The Agreement of November 8, 2006, between the SPA and Maoists agreed to constitute a
High Level Committee to Probe the whereabouts of all citizens reported to disappear by conflicting
parties.

• The Interim Constitution of Nepal, Part IV and Article 33 have provision on International
Treaties states "to implement the international treaties and agreements to which State is a party".
Under Section 9.1 of the Nepal Treaty Act 1990 – the Treaty law shall directly be applicable at
national level when Nepal becomes a party to the Treaty/Convention.

• The prominent legal instruments of IHL are: Geneva Convention 1864, St. Petersburg
Declaration 1868, Hague Convention 1899 and 1907, Geneva GAS Protocol 1925, Geneva
Convention (GC) 1929 and 1949 (I to IV) 2, Additional Protocols to the GC 1977 along with Optional
Protocol (OP) 1 - International Armed Conflict and OP 2 Non-International Armed Conflict.

However, Nepal has not given emphasis to ratify the Convention on Enforced Disappearances in spite of
such a worst form of human rights violations particularly to involuntary disappearances and abductions;
both are grave concerns, moreover crime, which is more than extrajudicial killing, as the family members
of the mission individual always look to the road upon return one day.

Conclusion

Most situations require the existence of multiple mechanisms (humanitarian, political, judicial and non-
judicial), with bridges between families and communities to cover range of needs experienced by them.
Disappearances infringe the right to family life as well as economic, social and cultural rights. When men
are the victims of disappearances, children, women and senior citizens of their families are deprived from
having basic needs, the right to education, etc. and all socio-economic hardships are borne by women
alone. Similarly, when women are the victims of disappearances, they become particularly vulnerable to
sexual assault and other forms of violence, because they are women. Moreover, dalit women had to face
three pronged discriminations because, they sere women, they were dalits and they were dalit women 3.

2
Convention (I) for the amelioration of the condition of the wounded and sick in armed forces in the field, Convention (II) for the
amelioration of the condition of wounded, sick and shipwrecked members of armed forces at SEA; Convention (III) related to the treatment of
prisoners of war; and Convention (IV) protection of civilian persons in times of war; Geneva Aug 12, 1949.
3

3
In the present context, where the State has not been sensitive in regards to the missing people, the bench
of the Judges Khilraj Regmi and Kalyan Shrestha of the Supreme Court on June 1, 2007 issued an order
of direction on Death and Disappearance of Detainees that it was under the State's accountability to the
citizens. Its recent directive orders to initiate action against the involved security personnel on charges of
murder. The Commission formed by the Government of Nepal (GoN) and headed by Baman Prasad
Neupane has published a list of 602 missing persons. Authoritative Bodies like OHCHR, ICRC and so on
were allowed with difficulty to investigate cases relating to the persons known to be arrested and held in
custody by Nepal Army, including Bhairavnath Battalion. When they entered the barracks, they found the
cells empty. The reason for creating difficulties and delaying their entry was obviously to transfer the
detainees to other sites. There is still no provision for family members and relatives to the detainees.

The condition of the detainees, the physical facilities, food, and treatment meted to them has exceeded the
limit of humane behavior to the human beings. There is no provision of detention by army, which is
against the constitution and legal instruments and symptom of militarization. Giving excessive power to
use excessive force to army by the government is against democratic norms, values and principles. The
culmination of such a situation is due to lack of legal measures against disappearances. The Peace Pact
between Seven Party Alliance and Maoists (SPAM) has mentioned to respect Human Rights Treaties but
it has not been put into practice. The culture of impunity is the base on which the different habeas corpus
issued by Supreme Court has not been executed. The Supreme Court has again issued notice to the
government to conduct judicial investigations on the cases of the disappearances by the state, and initiate
court cases against the concerned actors and ensure compensation to the families of the victims.

The notice issued by the Supreme Court against government security forces is not completely compliance.
The Nepal's State Structure provides that the security forces are bound to take orders from the concerned
ministries: defense and home. But, the habeas corpus is silent on the order issuing authorities in the PM,
ministers and secretaries. The traditional culture of making the lower ranks as scapegoats and saving the
skins of the elites is still continuing in Nepal. Because the makers of such decisions and verdicts are also
from the elites. One of the factors behind such practices is that the Judiciary is not free from the fetters of
the authorities. The same old people involved in disappearances in this or that way still wield the reign