NEPAL: Recipe for impunity at work in Bardiya National Park 

The failure to prosecute the army personnel who shot dead two women and a child in Bardiya National Park in March 2010 proves once again that impunity is more the rule than an exception concerning human rights violations in Nepal.

In a previous urgent appeal, the Asian Human Rights Commission (AHRC) had called for a thorough investigation into the incident and demanded the prosecution of the officers suspected for murder. Since then, despite mounting internal indignation against the incident no substantial progress could be observed in the case.

The three victims, Amrita Sunar, Devisara Sunar, and her 12-year-old daughter Chandrakala Sunar, belonged to a group of eight manual labourers who had come to Bardiya National Park in order to collect Kaulo, the bark of a tree used for medicinal purposes. On the night of March 10, 2010, the victims were woken up from sleep by seventeen army personnel from the Jwala Battalion and four forest guards who opened fire at the victims without any reason. But for the three victims who were taken into custody, the others managed to flee from the scene. Krishna Bahadur Sunar, father and husband of two of the victims, who came back to the scene after hearing his daughter screaming in distress, was also arrested and taken away from the site so that he could not see what happened to the three victims.

On March 11, the Nepal Army issued a press release which stated that the women and the girl belonged to a group of poachers and were killed during an encounter. They further claimed that arms and ammunitions were recovered from the bodies. Since then, several NGOs and public bodies have conducted investigations and fact-finding missions that have revealed evidences contradicting this version. In response, the Nepal Army pressured the police and the witnesses to prevent any challenge to their version of the incident and to protect their officers from prosecution.

Three ‘tools’ were extensively used by the army to prevent the truth from being uncovered: immediate tampering of evidences and modification of material evidence at the scene; collusion and attempts to influence the police investigation; and threats and intimidation of the victims’ families and the witnesses. The National Human Rights Commission has published a report denouncing these methods, in particular tampering with material evidence.

The army went beyond mere lack of cooperation with the police officers in charge of investigating the case and directly interfered in the investigation. The First Information Report (FIR) the police prepared immediately after the incident merely narrates the army’s version. Krishna Bahadur Sunar was forced to sign it while he was in detention, without the police informing him what is stated in the report. A report from the Parliamentary Sub-Committee for Women and Children details how the army officials have manipulated the police so that the outcome of the investigation would help the army. It is reported that high ranking army officers are involved in trying to cover-up the case.

In spite of repeated demands from the Bardiya District Police Office, the army officers only agreed to give information about the number of officers deployed on that day. The army refused to provide any further details about the officers, including their name or ranks.

More worryingly, the army has reportedly attempted to directly influence the victims’ family and the witnesses into not pursuing the case and ordered them not to contradict the army’s version about the incident. According to a report released by the Advocacy Forum, the army gave Rs. 20,000 (270 USD) to Krishna Bahadur Sunar when he was released from jail. The army promised another Rs 55,000 (770 USD) under the condition that Sunar agrees to speak only the army’s version of the events.

On March 28, dissatisfied with the first FIR prepared by the police, the victim’s families have filed a complementary FIR on the grounds of murder and possible rape against the 17 army officers and four forest guards suspected in the case. According to a report prepared by the Advocacy Forum who have assisted the families in filing this case, the army and the forest department have exerted enormous pressure upon the families ‘including threats of detention and refusal to pay promised monetary compensation’. The report also mentions that the army has accused Sunar for giving too much information to human rights groups.

The victims were all Dalit manual workers and as such belonged to one of the most isolated communities in Nepal. Given their vulnerable position due to caste based discrimination and poor financial status, their families are extremely vulnerable to pressures by powerful and organised groups such as the army. In cases where the power relationship is so unbalanced against which there is no institutional protection no fair prosecution can take place and the victims’ access to justice becomes very difficult in Nepal.

In this case, an agreement was eventually made on April 7, at the initiative of the perpetrators. The families promised that they will withdraw the FIR. In exchange, the army and the Forest Ward Administration offered monetary compensation, a job for the eldest son of Devisara Sunar and the withdrawal of the charges filed against Krishna Bahadur and the other four labourers who escaped the night of the killings.

By getting this agreement, the army and the forest department have clearly made use of the unbalanced bargaining power they have through the filing of charges against those who survived the night of the killings and from the dire need of the victims’ families for monetary support. Even if withdrawing an FIR is not allowed by the Nepalese law, the army has been successful in discouraging the witnesses to testify and the families from fighting their case.

The report by the Advocacy Forum further states that the money has still not been paid to the survivor and that the case filed against them under the National Parks and Wildlife Conservation Act, 1973 has been maintained. The army is therefore still able to use those incentives as a lever against the families.

The Nepal Army has a long tradition of resorting to such practices to cover up cases of human rights violation and protect its personnel. It is unfortunate to see that the Comprehensive Peace Agreement 2006 in which both the Maoists and the Government of Nepal have committed not to protect the impunity of any individual involved in violating human rights did not put an end to impunity.

The most infamous of all the cases involving army personnel relates to the illegal arrest, rape and torture to death of 15-year-old Maina Sunuwar on 17 February 2004. In a pattern similar to what can be observed in the Bardiya killings, the army first denied having taken the girl into custody then claimed that she had been killed in an encounter and resorted to all the tools in its possession to protect the perpetrators against civilian prosecutions, including shooting the victim’s dead body to make it look as if she had been killed while trying to escape; threatening the witnesses and her family members; and hiding behind an opaque Court Martial verdict.

By the time family was eventually able to obtain arrest warrants against the army officers involved in the killing of the young girl, they had all been promoted and one of them, Major Basnet, was posted in an UN Peacekeeping Mission. Following intense lobbying, Basnet was repatriated to Nepal in December 2009, in what was interpreted as an enormous step toward the accountability of conflict-related human rights violations. Nevertheless, since Basnet’s repatriation he has been kept in army custody and despite injunctions from the Prime Minister, the Nepal Army has continuously refused to present him before a civilian court for prosecution.

Of course, the Nepal Army is not the only security body in Nepal which benefits from the general climate of impunity which reigns in the country. The same mechanisms are acting in favour of other actors possessing enough power or resources to escape criminal prosecution such as police officers involved in cases of torture or security forces involved in extrajudicial executions.

The Bardiya National Park killings have received enormous attention in Nepal, not only from civil society actors but also from government officials. Even the Defence Minister, whose loyalty to the Nepal Army has often led to protect human rights violators such as Major Basnet, was reported to have made commitment to take action against the soldiers found guilty in this case. Still, this has not been enough to hold the Nepal Army accountable for the crime.

According to the Nepalese law, cases of murder of civilians by military personnel fall under the jurisdiction of civilian courts. As a State party to the International Covenant on Civil and
Political Rights (ICCPR) Nepal has a responsibility to protect the right to life of all its nationals which imply an obligation to fully investigate and bring to justice the perpetrators of arbitrary executions.

It is therefore both an internal and international obligation to see that the perpetrators of these killings are prosecuted by a civilian court and be granted a punishment proportionate to the gravity of the crime they have committed. The state authorities must provide the families with protection and compensation. Nevertheless, they have failed to do so. A governmental committee set up to probe into the killings has handed over a report to the government but the contents of the report is yet to be made public and the government has failed to take any concrete actions to implement the recommendations it may contain.

This pattern is worryingly revealing the incapacity of the civilian institutions to exert control over the army and to provide justice to all the citizens equally. The army refusing to provide the CDO with the requested information shows that they consider not having to respond to civilian requests and reveals confidence in the total lack of resources of the police to pressure them into cooperating.

In Maina Sunuwar’s case, the army even defied a Supreme Court order to hand over Major Basnet to the civilian court. These two cases, among many others, not only reveal the failure of the civilian supremacy over the military in Nepal but also the weaknesses of the state institutions as a whole.
Properly functioning institutions are expected to provide protection and support to the weakest party in a dispute and to bridge the gap between resources and leverages of both disputants so that no party can impose a settlement to the other.

The degrading security climate in Nepal undermines the will of the authorities to fight impunity. In the troubled Terai region in which human rights violations by state security forces are common, the Advocacy Forum has documented 12 cases of extrajudicial killings presented as ‘encounters’. In none of them did the police accept to file an FIR, despite repeated demands of the families.

Because of the tense political situation in the country, denouncing human rights violations committed by soldiers is interpreted as a challenge to the army as a whole and as a support to the Maoist and the other armed groups. The ‘esprit de corps‘ of the army which has repeatedly led the highest ranking officers to protect their personnel also finds itself reinforced by this situation.

The Nepal Army is currently struggling with a process of deep transformation induced by the incorporation of Maoist soldiers and by the necessary adaptation to the changing situation in the country. It is true that in this process, stability and support are necessary for a smooth transition in its duties, from an army operating in a country with internal armed conflict, to an army contributing to the establishment of a long-lasting peace. Nevertheless, considering that denouncing human rights violations committed by the army would weaken it and hamper the stability of the country is a wrong way to look at it.

It is a well-established fact that impunity of armed forces only results in triggering violence and contributes to further violations. As a matter of fact, perception of unwillingness of state actors to tackle cases of human rights violations triggers resentments against the army and the state institutions in general and fuel tensions. Moreover, the situation also reveals the inability of the state institutions to exert authority over its security bodies and will be another factor undermining the citizens’ trust in their institutions and in the capacity of their government to protect their rights. Those outcomes would undoubtedly further harm the peace and stability Nepal is currently struggling to establish.

Document Type : Statement
Document ID : AHRC-STM-081-2010
Countries : Nepal,
Issues : Impunity,