Category: Politique


Sous-titre : L’APPEL DES IMAMS EN BELGIQUE

Rubrique : Politique.
Auteur : Pierre Fasseaux (1).

Auteur de « L’Opus in Septem- Complot en Egypte ». Ed. Thélès 2011. http://www.theles.fr/livre/pierre-fasseaux_l-opus-in-septem           Réf: ISBN : 978-2-303-00382-7

Texte actuellement sous révision ( 08-01-2015)

Résumé : Dans le cadre du plan du ministre belge de l’Intérieur contre la radicalisation, l’appel des oulémas et imams en Belgique met en exergue la frustration des jeunes musulmans qui partent se battre en Syrie, et la politique d’insertion en Belgique. Insuffisant, le problème fondamental n’est pas là.

Auteur : Pierre Fasseaux

Bibliographie : https://pierrefasseauxecrivain.wordpress.com/, http://www.theles.fr/livre/pierre-fasseaux_l-opus-in-septem

Mots clefs : otages au Mali, intervention militaire, charia.

Résumé :
Copy right : Le contenu de ces articles est protégé par le copy right. Toute représentation ou reproduction intégrale ou partielle faite par quelque procédé que ce soit, sans le consentement de l’auteur ou de ses ayants cause, est illicite et constitue une contrefaçon sanctionnée par les articles L.335-2 et suivants du Code de la propriété intellectuelle.

Contenu :
AQMI, Al-Qaïda au Maghreb Islamique, via une plateforme web Mauritanienne a annoncé avoir tué l’otage Philippe Verdon. Ce n’est pas la première fois qu’une telle menace est répandue sur les ondes. Quels espoirs pouvaient encore être nourris par les familles des otages, à la suite de l’intervention militaire française ? Déjà ténus dans la fragile situation prévalant auparavant au Mali, ils sont maintenant devenus presque illusoires. Voilà de nouveaux et malheureux martyrs, assassinés à cause de leur présence en Afrique et de leurs efforts de développement du pays. Car ne les oublions jamais, les otages sont devenus les premiers martyrs de cette guerre, à l’instar des premiers journalistes relayant l’information de première main dans les zones de conflits.

L’argument avancé par le porte-parole d’AQMI, M. Ghairawani, soit l’intervention militaire française au Mali pour justifier l’assassinat d’un otage est consternant. Témoigne-t-il d’un pitoyable manque de maturité et de discernement ou simplement d’affligeants trous de mémoire ?
Car depuis un bon moment, profitant de la faiblesse récurrente du contrôle gouvernemental dans la région, AQMI a envahi, d’abord insidieusement puis par la force les zones éloignées d’accès au Mali et de la Mauritanie pour y instaurer un régime islamiste de non-droit. Un non-droit ? Pas pour AQMI, pour qui seule la charia prévaut et est mise en application par ses tribunaux locaux. Voilà bien un magistral déni à l’autorité gouvernementale malienne par de sournois agissements qui auraient mené à un renversement du pouvoir démocratiquement élu dans la république. L’Union européenne a peu bougé et ne s’est pas sentie concernée alors qu’AQMI dissimulait mal une atteinte manifeste à la démocratie et aux droits de l’homme, et cela dans l’Afrique de l’Ouest voisine !

L’argument caché d’AQMI ne concerne donc pas l’intervention militaire française au Mali, venue au secours des populations locales et du gouvernement. AQMI, dans son combat contre la démocratie, fut clairement dérangé dans son propre plan d’invasion et d’occupation de la région.
Al-Qaïda s’installe en effet dans les zones de faiblesse, de manque d’autorité avec une application anémiée des droits humains, alors que d’autres islamistes avouent clairement leurs intentions d’envahir le monde avec l’instrument que constitue la charia. Ainsi s’exprime le leader de « sharia4belgium », Fouad Belkacem alias Abu Imran dans un entretien accordé à Dale Hurd de CBN News (Bruxelles- Anvers), en se référant à une vidéo du 15-03-2012 : « La charia sera mise en œuvre dans le monde entier. L’islam et la charia sont inséparables, et la démocratie est un mal… La démocratie est l’opposé de la charia car seul Allah dicte les lois ». Imran cherche en effet à remplacer la loi (belge en l’occurrence) par la charia, voir http://www.youtube.com/watch?v=8_aydtpXQig&sns=em)

L’argument officiel d’AQMI paraît donc enfantin. Derrière celui-ci se manifestent en effet la mise en œuvre de la charia, l’invasion des zones hors contrôle, le renversement des démocraties et l’enlèvement des otages sert à protéger et financer leur plan d’expansion. L’opinion française n’a pas lieu dans ce contexte de tiédir son appui à la politique de l’intervention militaire.
Malgré tout, malgré cette invasion d’AQMI et des islamistes, la vertueuse Union européenne parfois considérée comme un club chrétien, une version laïcisée de l’ancienne chrétienté (Khaled Diab, août 2009), installée dans sa débonnaire démocratie et son système capitaliste et libéral, ne cille pas. Est-elle paralysée ou aveugle ?

S’il fallait utiliser le principe de justice des islamistes intégristes et d’Al-Qaïda, la loi du talion imposerait, à l’enlèvement des otages par Al-Qaïda, de riposter et de procéder de même par exemple en enlevant en Europe des dignitaires musulmans, intégristes ou pas. Mais quelle société vivrait-on alors ? Un retour aux siècles du Moyen Age avec la violence pour entretenir et respecter les rapports humains. Ce n’est certainement pas une telle société que nous voulons.

Dans cette video, Sam van Rooy de CBN news qualifie l’islam de religion politique et d’un mélange d’idéologie fasciste et de religion. L’islam peut-il être déterminé de cette manière? Probablement pas. L’islam des soufis, certainement pas. L’islam des intégristes ? A eux de s’y reconnaître. Il est quand même surprenant que le discours d’Imran ne parle que d’expansion de l’Islam, de charia, de mains coupées. Pas un mot de compassion, de solidarité universelle, d’amour partagé comme on les retrouve dans l’ancien culte d’Isis, le Bouddhisme et le Nouveau Testament. Navrant de vide.

Subject:             HUMAN RIGHTS

Formation    Continue    en

International law for Human Rights

Law faculty, UNI-MAIL

Genève Suisse

Document written by:

Pierre Fasseaux, C. in Social Sciences, Human rights, community health

Former board director and founder of A.C.H.C. ( Swiss NGO working in Nepal)

Switzerland.

This document has been drawn up in Kathmandu in 2003 after meeting various Nepalese organisations, collecting and summarizing the documentation available at that time.

Date: 15-01-2004

Keywords : révolution, maoïsme, violations des droits de l’homme

Catégorie : Droits de l’homme

Bibliographie :

Pierre Fasseaux, L’Opus in Septem – Complot en Egypte, Editions Thélès, Paris, 2011

Copy Right : Le contenu de cette étude et citations sont protégés par le copy right. Toute représentation ou reproduction intégrale ou partielle faite par quelque procédé que ce soit, sans le consentement de l’auteur ou de ses ayants cause, est illicite et constitue une contrefaçon sanctionnée par les articles L.335-2 et suivants du Code de la propriété intellectuelle.

TABLE OF CONTENT

Map of Nepal

INTRODUCTION

1.         The issues

2.         The country

3.         The society

4.         A Human Rights overview in Nepal.

Section 1 –      THE INTERNATIONAL TREATIES

AND THE CONSTITUTION OF NEPAL

1.         The International Human Rights Treaties

2.         The Geneva Conventions

3.         The Constitution

4. Democracy – Interdependence  with Human Rights

Section 2  –     EMERGENCE OF A CONFLICT

1.         Origins of  the Maoists and influences

2.         The causes of the “People’s War” and conflict

3.         Constitution questioned

4.         The causes. Conclusions summary

Section 3 –      THE EFFECTS OF THE WAR

1.         State of Emergency

2.         The Maoist strategy

3.         Human development costs

4.         Human costs

5.         Acts and issues in opposition to Human Rights

6.         Effects on Human Rights: violations reported from both sides

– key data

7.         Effects of the war. Conclusions summary – key points

Section 4 –      H.R. PROTECTION INSTRUMENTS

1.         Human Rights Organisations network

2.Cease-fire with a Code of Conduct, Human Rights Agreement and political dialogue as corner stones for Peaceattempts

3.         The Maoist Justice and educational plans

4.         Reporting status and implementation of UN recommendations

5.         Human Rights Treaty Monitoring

6.         Judiciary and Human Rights

7.         Conclusions summary

Section 5 –    H.R. PROMOTION PROGRAMMES

1.         Project/Programme Monitoring – methodology

2.         A   proposed Pedagogy according to  the H.R.

programme content

Democracy and Human Rights

3.         The People’s Agenda

Section 6 – RECOMMENDATIONS & CONCLUSIONS

1.         Some definitions, “labels”, status

2.         Recommendations related with Human Rights

3          Dialogue perspectives and the Human Rights

as instruments in peace process.

4.         Human development issues

Abbreviations used

References

Acknowledgements:

To INSEC : Mr. Padma Prasad Khatiwada –Director, Ms. Ranjana Thapa HR Treaty Monitoring Centre for their support, time spent in meetings, and INSEC documentation.

To HRCHL: Mr. Gopal Siwakoti- Director, Lecturer Nepal Law Campus, Tribhuvan University, time spent in meetings and documentation.

To Mr.Madhu Sharma of the Swiss Agency for Development and Cooperation- SDC, Kathmandu for his support.

To the National Human Rights Commission Nepal, to Amnesty International Nepal section

INTRODUCTION

1. The issues

For about 100 years, the Nepalese society had to suffer under the autocratic regime of the Ranas, and from 1960 under the Panchayat system established by the King Mahendra. At that time, the King benefited from unlimited power. People were exploited, corruption was endemic and the press muzzled. Human and fundamental democratic rights were denied. Demonstrations started in 1990, with millions of people participating regardless of the measures taken by the government. A new Interim government was formed, with the task of forming a democratic constitution and of holding general elections. Based on the constitution, elections were held on May 12th. 1991.

But many people were still excluded on the basis of caste, regional origin, ethnic minorities. Security forces enjoyed impunity. The Maoists declared the “People’s War” in February 1996 in reaction to the failure of the government to respond to a memorandum on nationalism, democracy and livelihood, including a request for a new constitution and the abolition of royal privileges.

The Communist Party of Nepal (Maoist) aimed at establishing a New Democracy, considering their move as an “historical revolt against feudalism, imperialism and so-called reformists”.

In November 1995 and May 1998, the Operations “Romeo” and “Kilo Sierra Two” respectively decided by the government initiated a “search and kill” operation and suppressive operations to a degree of state terror. Around 500 people were killed during this operation.

From that date, incidents were reported such as attacks on police posts and local administrative offices and later on banks and politicians. Violence increased in the stronghold of the Maoist movement, mainly in the districts of Rukum and Rolpa ( Mid-Western Region). The Maoists introduced their “ People’s government” and “ People’s courts”.

The State of Emergency was proclaimed in 2002 during which time the violations significantly increased and reached the apex. In 2002 alone, 1’400 people were identified as killed by the Maoists, while 3’300 people were killed by the State. People on both sides were arrested, intimidated, abducted or disappeared, beaten and tortured.

There are structural similarities between Peru and Nepal, which also echo within the  historic neglect and discrimination of the mountain peoples. But violence is not new to Nepali society and neglect of the state towards its poor is also to be seen as a rampant state violence, a morally culpable act that does not figure in the orthodox balance of “brutality” or “bloodshed”. The additional disregard for “true democracy” and for adjustment of ethnic, linguistic and local interests, the power of the landed aristocracy supported by the armed forces, the highly traditional and Brahmin-dominated public administration, government repression with high level of impunity, the difficulty to implement some constitutional and human rights provisions, are the main problems which led to the emergence of the People’s War.

The purpose of this study is to present a general view pertaining to the Human Rights situation in the country, linked to the conflict. The study  portrays the status of the International Treaties and of related articles of the Constitution, the causes and adverse effects on the violations of the “People’s War” as existing in 2004 and of  the State of Emergency, and the Instruments protecting Human Rights in Nepal. A brief analysis  of the causes of the war, as well as of a Code of Conduct and a Human Rights draft Agreement between the parties in conflict, points up some interdependent links between Democracy and Human Rights.Those links suggest how much the failure of the implementation of democratic principles is part of the main root causes of the war which led to increased violations of Human Rights. The study also highlights the women’s plight, the women’s commitment and their crucial role in the Maoist insurgency which is having a boomerang effect on their  rights.

2. The country.

Nepal is a small mountainous country covering an area of 147.181 sq.km. at the foot of the Himalayas. Its population is composed of different ethnic groups with different languages and dialects, faiths and beliefs. It lies between  Tibet at the North and India at the South. On the basis of altitude, Nepal is divided into three natural regions: Himalayan, Mountain, and Terai. For  administrative management, the country is divided into 14 zones and 75 districts.

Nepal is mainly an agricultural country as more than 90% of the total population depends on agriculture.

3. The society

The Nepalese society was divided according to the activities performed: classes and castes. However, from 1951, when interest was taken in a democratic process, the caste system was officially abolished.

3.1. The society – ethnic features

Nepal is a country of minorities and has various ethnic groups originating from Mongoloid and Aryan stock who have different faiths, cultures and languages. In the Upper Himalayas we find the Bhotias and some Newars. In the Eastern part of the Lower Himalayas are the Rais, Newars, Tamangs, Sunwars, Limboos, Kirantis while in the Western part are the Newars, Magars, Gurungs, Ranas, Thakuris, Gorkhalis, etc… However, both due to the poor economic situation in the hilly areas and access, some have started to move to the Terai region. Some of them are still practicing the caste system.

3.2. The society – political features –1960

Although a Constituent Assembly was considered by the late King Tribhuvan, it never materialized. The succeeding King, Mahendra, was not prepared either to consider holding elections for a Constituent Assembly. But a United Front put pressure for the holding of general elections which took place on February 19th 1959. The Congress Party led by Bishehwar Koirala won the election. Koirala formed the cabinet and the ministers were sworn in on May 27th 1959. One and a half years later, pretexting the failure to maintain law and order, the King Mahendra with the support of the army arrested the new ministers who were put into jail. The parliament was dissolved, a council of ministers was formed  while the King himself became the chairman. The King Mahendra promulgated  a new constitution which gave the appearance of a parliamentary system. It did not last. In 1960, after a royal coup, he dissolved the parliament, arrested major political leaders and promulgated a new constitution under which all political parties were banned ( Panchayat regime).

3.3. The society – political features- Government parties – 1991-1996.

Democracy provided the Nepalese people with a constitution guaranteeing fundamental rights, and set a frame limiting the power of the king.

Sovereignty has been handed over from the king to the people in 1991 when the Panchayat regime was dismantled.

Based on the constitution, elections were held on May 12th 1991. Out of 205 seats, the Nepali Congress won 110 seats, while the United Marxist and Leninist Party (UML) won 69 seats, becoming the main opposition party. The United People’s Front- CPN Unity Centre won 9 seats . By 1994, it began to split and in 1995 Comrade Prachanda left the UPF-CPN to form the Communist Party of Nepal ( CPN-Maoist), which remained out of politics and began guerilla fighting.

Girija Prasad Koirala, general secretary of the Nepali Congress took the reins of the government as prime minister. But soon, dissension and factionalism in the party came out into the open. Koirala was in addition accused of favouring people from the Bahun community to which he belonged. Parliament was dissolved and mid-term elections held in November 1994. The CPN(UML) emerged as the party with the largest number of seats and formed the new government. After the new opposition called for voting on a non-confidence motion in 1995, the new Prime Minister Adhikari recommended dissolution of the parliament and the holding of fresh polls. But the Supreme Court ruled that this move was unconstitutional. In September 1995 the Nepali congress formed a new coalition with the Rastriya Prajatantra Party ( former panchas) and the Nepal Sadbhavana Party under Sher Bahadur Deuba as Prime Minister.

In November 1995, the Operation Romeo decided by the government coincides with the political campaign launched in September by the UPFN/CPN (Maoist) in Rolpa and Rukum districts: around 1500 policemen including a specially trained commando force were deployed in western Nepal. The Human Rights Yearbook 1995 reported: ” The government initiated… suppressive operations to a degree of state terror. Especially, the workers of United People’s Front were brutally suppressed “. This Operation is characterised by random arrests, torture, rape and extra-judicial killings.

This Operation provided a perfect setting to initiate the people’s war which started on 13th. February 1996, after a memorandum was presented by UPFN to the Prime Minister Deuba and failed to be considered seriously by the government.

4. A Human Rights overview in Nepal.

According to the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, elements within the police force appear to still operate using methods which belong to the political culture of the past.

According to the Human Rights Year Book 2003, the violations identified are reported using the following classification: killing, injured, bomb blast, death in detention, arrest and torture, disappearance, beating, threat, right to Assembly, racial discrimination, right to prompt and fair trial, landless and squatter, women’s rights, child rights, economic-social and cultural rights, inhuman behaviour, abduction, destruction, displacement.

Incidents have been reported from 1992 in the Human Rights Yearbook in relation with a suspected aversion of government members to communists:

As stated in  the Human Rights Yearbook 1992 – Rolpa district: “…political workers, employees and workers have been the victims of arrest and torture because of political revenge…” – ”…Local elections were held in a one-sided manner in this district… and candidates of other political parties (non-Nepali Congress) were not allowed to file their nominations…”

Human Rights Yearbook 1993 – Rolpa district: “ … There have been a number of incidents of human rights violations by the state machinery using force…” – “… citizens were widely charged with false allegations”.

The Human Rights yearbooks for this period are full of incidents for which both the government or the UPFN were identified as being responsible, but the state’s responses against UPFN were always out of proportion to their so-called crimes such as the indiscriminate manner in which it arrested people, tortured them, and executed some of them.

The epicentres of the Maoist insurgency are the remote “developing” mid-western hill districts of Rolpa, Rukum and Jajarkot, and the “developed” Gorkha district.

Section 1 – THE INTERNATIONAL TREATIES AND THE CONSTITUTION OF NEPAL

1. The International Human Rights Treaties

The Government of Nepal has become a state party of the following International Human Rights Treaties:

International Convention on the Elimination of

All Forms of Racial Discrimination   (CERD)                                  1965

International Covenant on Civil and Political Rights

(ICCPR)                                                                                           1966

(First) Optional Protocol to the ICCPR

Second Optional Protocol to the ICCPR, aiming at

the abolition of death penalty

International Covenant on Economic, Social and

Cultural Rights (ICESCR)                                                               1966

Convention on the Elimination of All Forms of

Discrimination against Women (CEDAW)                                      1979

Optional Protocol to CEDAW

( signed but not yet ratified)                                                             –

Convention against Torture and Other Cruel, (CAT)

Inhuman or degrading Treatment or Punishment                             1984

Convention on the Rights of the Child  (CRC)                               1989

Optional Protocol to the CRC on the involvement

of children in armed conflict

(signed but not yet ratified)                                                              –

2. The Geneva Conventions

The Government of Nepal has become party to the Geneva Conventions on February 2nd 1964 through the “Accession” process, but not to the Additional Protocols of 1977.

As indicated by CHRHL, “the compliance with the 1949 Geneva Conventions related to armed conflicts, particularly Article 3 common to the Conventions – to be applicable in a situation of internal armed conflict – has become a sensitive political issue in Nepal.”

Common Article 3 requires all armed groups, whether in rebellion or not, to respect individuals who have laid down their arms and those, such as civilians, who do not take part in the hostilities.

According to ICRC, the humanitarian rules are harder to apply in these types of conflict. The lack of discipline among belligerents, the arming of the civilian population as weapons flood the territory and the increasingly blurred distinction between fighters and civilians often cause confrontations to take an extremely brutal turn, in which there is little place for the rules of law. As a result, this is the type of situation in which particular efforts are needed to make people aware of humanitarian law. Better knowledge of the rules of law will not solve the underlying problem which led to the conflict, but it is likely to attenuate its deadlier consequences.

3. The Constitution 1

The legal base of Nepal’s current political system is the constitution of 1990 and was promulgated on November 9th 1990. It’s predecessor was the one which was enforced by King Mahendra on December 16th, 1962.  The constitution of 1962 was enacted and ended after 30 years when the popular movement turned crucial. The Party-less Panchayati system was abrogated with the King Birendra’s historic declaration to remove the word “Partly-less” from the constitution. The main thrust of the members of constitution draft commission was to lay down the foundations of a democratic system. They avoided radical changes which resulted in a number of compromises with the conservative forces. While the constitution of 1962 was designed to crush democratic activities, the constitution of 1990 emphasizes  a multiparty parliamentary system. It includes the setting of a constitutional monarchy and a new multiethnic and multilingual concept.

3.1. Specific link with human rights

In its Preamble, the Constitution indicates:

…” And Whereas, it is expedient to promulgate and enforce this Constitution,…, to guarantee basic human rights to every citizen of Nepal;… “ and also to establish an independent and competent system of justice …”

3.2.  The  Constitution and the Fundamental Rights

The Constitution in  Part  3, has listed 13 Fundamental Rights

from Art.11 to Art. 23: right to equality, freedom, press and publication right, right regarding criminal justice, right against preventive detention, right to information, property, cultural and educational right, right to religion, right against exploitation, exile, right to Constitutional Remedy.

 Comments

–          Art 6.1 of the ICCPR promulgates the “inherent right to life”. Although the ICCPR Treaty was signed in 1966 and the new constitution enforced in 1990, the right to life is not indicated as such as a fundamental right. However, while the same Art.6.1 specifies “no one shall be arbitrarily deprived of his life”, the Art.12 of the Constitution specifies regarding the “right to freedom”: …” no law shall be made which provides for capital punishment.”

– It is however interesting to note that in the Art.115 of the Constitution   (Emergency power) Clause 8 indicates …” His Majesty may … suspend sub-clauses (a), (b), (d) and (e) of clause (2) of Art. 12, clause (1) of Art.13 and Art. 15,16,17,22, 23. Those articles refer to: right to freedom, press and publication, preventive detention, information, property, privacy, Constitutional Remedy.

1: The constitution 1990 is regarded as one of the most modern constitution in the whole South Asian region.

3.3. Constitution and Judiciary 

3.3.1. Some key articles

– The Courts in the Kingdom of Nepal consist of the Supreme Court, Appellate Court and District Court. The Supreme Court is designed as the highest court in the judicial hierarchy (Art.85, 86).

– However, the Supreme Court does not have the power to interfere with the proceedings and decision of the Military Court. (Art.88-2a).

– His Majesty shall appoint the Chief Justice of Nepal on the recommendation of the Constitutional Council ( Art. 87-1)

– The Supreme Court shall, for the enforcement of the fundamental rights conferred by this Constitution, for the enforcement of any other legal right,…or for the settlement of any constitutional or legal question… have the extraordinary power to issue necessary and appropriate orders to enforce such rights or to settle the dispute.”

– “His Majesty is the  Supreme Commander of the Royal Nepal Army” (Art. 119-1.)

3.3.2. Comments

-“However, neither any supervision and criticism could be made on the process of development plan in accordance with the Preamble, fundamental rights and Directive Principles of the Constitution, nor the Executive Legislative and Judiciary could play the expected role for this” 2.

4. Democracy – Interdependence 3 with Human Rights

The failure of “true democracy” is often pointed out as a crucial problem which initiated the people’s revolution in Nepal. There are however concomitant important human rights violations reported during the past decade. Unquestionably, the inter relations are evident and this has been subject to expert seminars, conferences and resolutions passed by the Commission on Human Rights since 1999. Some of the resolutions are entitled as follows: “Promoting and consolidating democracy”, “Promotion of the right to democracy”. The Second Ministerial Conference of the Community of Democracies held in Seoul in November 2002, studied the theme “Democracy: Investing for Peace and Prosperity” and provided guidelines for the promotion, consolidation and protection of democracy worldwide. The last resolution 2003/36 reaffirms the commitments undertaken by Member States for the promotion of human rights, democracy and the rule of law.

Democracy is indeed a word rich of various essential values, but also differently interpreted and understood.

As  indicated under Art. 1 and 2 – Commission on Human Rights resolution 2003/36,  “Democracy includes the respect for human rights and fundamental freedoms… Democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation  in all aspects of their lives;

2:  Human Rights Yearbook 2003 Insec 193: The main references mentioned used for studying this interdepence are the Universal Declaration of Human Rights, which states universal values, and the International Covenant on Civil and Political Rights.

“…The implementation and realisation of all human rights is the true expectation, and so it is too for the democratic system which  characteristics and parametres ( Multiparty Parliamentary democracy) have been agreed on and even  specified in the Constitution.

“Democracy, development and respect for human rights… are interdependent and mutually reinforcing”…

And under Art.4: …” the comprehensive nature of democracy as a sytem of governance that encompasses procedures and substance, formal institutions…, majorities and minorities,…government and civil society; ”

Art. 13 (c): …” or where lack of democracy … triggered violations of human rights; “

———————————–

Section 2  – EMERGENCE OF A CONFLICT

1. Origins of  the Maoists and influences

1.1.Peru– In the Peruvian history, the Sendero Luminoso known as the Shining Path (PCP-SL) was the extreme political communist party Partido Comunista Peruano (PCP). The PCP-SL emerged in 1978 with slogans denouncing the US imperialism, Soviet social-imperialism and Chinese revisionism.

1.2. Nepal– Concerning Nepal, we have to come back to the birth of the Communist Party of Nepal (CPN) in 1949. It followed the independence movement in India, as most of the Nepali communists at that time played a role in the anti-British struggle in India. A royal coup  led however to the first split within the CPN. Hereafter, there was influence from the sino-soviet split, influences by the Cultural Revolution in China, and of the Naxalite movement in West Bengal. A group known as the CPN (Fourth Convention) split into several groups. One of them, the Communist Party of Nepal ( Mashal) denounced the Chinese revisionism (considered as counter-revolutionary) under the leadership of Deng Hsia Ping. The Communist Party of Nepal ( Mashal) created in 1985 then declared its allegiance to orthodox Maoism . The CPN – Maoist emerged in 1995 from the CPN United People’s Front, the latter being a breakaway faction ( from CPN – Masal) led by Baburam Bhattarai.

Surprisingly, slogans used in October 1990 were the same as those used by the PCP-SL.

The troubling fact, identified in Peru and Nepal,  is that the PCP in Peru emerged while there was a real hope for the return to democracy after the new elections in 1980.  In Nepal, there has been some evidence that the CPN – Masal decided to launch its armed struggle to coincide with the establishment of parliamentary democracy.

1.3. Nation-building historical objectives have crushed human rights

Peru and Nepal showed a lot of similarities in the human geography and countryside. While often the mountainous zones of both countries were often self-sufficient, the process of nation-building1 led the rural societies to the subordination of a centralised state system. It prompted class exploitation and ethnic discrimination2 ( among the Indians in Peru, or tribes in Nepal). A national language was imposed ( Spanish in Peru and Nepali in Nepal), the use of local languages banned in the educational system3. There was, with the centralised state system a deep neglect of the poor remote areas. The improvement of educational and social indicators has been minimal for the two countries. Access to social activities as well as to education was subject to discrimination.

2. The causes of the “People’s War” and conflict

2.1. Economic factors

There has been an important rise in inflation between 1980 and 1987 with  an average annual increase of  over 10 per cent in consumer prices, despite an increase in GDP growth after the introduction of the IMF and World Bank-sponsored structural adjustment programmes.

1: Origins of the Maoists, Nation-building: “Democratisation and the growth of communism in Nepal” R. Andrew Nickson. Understanding the Maoist Movement of Nepal. Edited by Deepak Thapa.Chautari Books Series- 2003.2: ethnic discrimination : in violation of Art.3 CERD,3: educational system: in violation of Art.26-27 of ICCPR, Art. 5 d, vii, CERD- right to freedom of opinion and expression

The World Development Report ranked Nepal as one of the world’s poorest countries in 1989 (115th out of 120)

2.2. Poverty

According to official statistics, 42 ½ per cent of Nepal’s population still live below the poverty line.

The overall growth rate of 5 per cent over the last 15 years has been largely due to the growth of the non-agricultural sector. However about 80 per cent of Nepal’s people still work in agriculture, an area where growth has been erratic and fallen below expectations.

2.3. Disparity between capital-central region and remote districts

The decision-making and all forms of economic and political powers are concentrated in the capital city, and thus impede and impair representation of aspirations and needs expressed by remote districts if there are not simply  ignored. Decision-makers are often unaware of the needs of the rural regions.

2.4. Development programmes and land reform

Not one of the 14 governments that have held power (from 1990- June 2003) has done anything to liberate the rural peasantry from the exploitative land relationship. Regarding budgetary allocations in 2000, 82 per cent of the budget was for central level programmes. The 2000 HDI confirms indicators’ disparity as following: urban areas ( 0.616), rural areas (0.446), while for the central region (0.493) and for mid-western regions ( 0.402), far-western regions (0.385).

The poor peasants make up 65 per cent of the population but own only 10 per cent of the land. For the Maoists, the land reform is thus at the epicentre of the restoring of the economical balance.

2.5. Political factors

A survey found that around 40 per cent of the Nepali Congress leaders at village and town levels had switched their allegiance from the Panchayat system to the Congress party after 1990. However, the Nepali Congress did not have much of an organisational base in many districts, contrarily to the CPN (Maoist). In addition, in areas where communist organisers had been active, people who had lived through the Panchayat-era rule by their local leaders automatically began supporting the left parties. In the meantime, the royal palace sought to encourage the development of some sections of the communists during the Panchayat years, to serve as a counterweight to the popularity of the Nepali Congress.

Other factors cited are: the failure of the State to recognize the political formation led by Bhattarai after the split of the United Front, the failure of the government to consider a roster of 40 demands submitted by the CPN-Maoist

2.6. Social factors

While Nepal is essentially a country of minorities comprising more than sixty ethnic and caste groups, three of them – Bahun, Chhetri, Newar (Bahun and Chhetris represent 29 per cent of the population) – are economically and politically dominant. Power remains in the hands of a few upper-caste Bahun, Chhetri families with the co-optation of some Buddhist Newar merchants and Sanskritised ethnic Magars. In 1980, the share of Bahuns and Chhetris in  parliament was 50 per cent, and became 63 per cent in 1991. The ruling class, most of which belonged to the three above-mentioned groups always adopted a mode of government which permitted them to remain in Kathmandu. Many of the socio-cultural groups have never had access to the state apparatus. The Hindu religion was clearly identified with the ruling group.

From 1990, ethnic groups together with other disadvantaged groups such as Dalits, non-Hindus, Madhesis and women, saw in the re-establishment of democracy an opportunity to set right inequities that had characterised two centuries of domination in all spheres of the state by “upper-caste” Hindus. There were demands asking for constitutional recognition of all languages and for all religions of Nepal, and ensure representation of all population groups. The 1990 constitution thus provided the formal trappings of parliamentary democracy, but true representation besides the quite perfunctory recognition of the country’s multiethnic, multilingual character was lacking.

2.7. Government repression and the Maoists’ growth

One could first refer to November 1995’s Operation “Romeo” which can be considered as having initiated the People’s War.

During May 98, the Operation “Kilo Sierra Two” was a “search and kill” operation that was meant to prevent the Maoist movement from gaining strength. As stated by the Deputy General of Police: “ If they ( the Maoists) don’t respect the Constitution, we don’t have to stick to the Constitution and take them to court “.

From mid-1998, the killing of Maoists, their supporters, as well as civilians caught in the middle, escalated to unprecedent heights. “Kilo Sierra Two” was spread out across all the Maoist-affected regions of the country. Around 500 people were killed during this operation.

Police brutality clearly provided the long-lasting motive energy for the Maoist insurgency throughout the country.

2.8. Regional and international influence

2.8.1. Regional

As Nepal is cornered between India and China, it was essential since 1750 for the Nepalese authorities to keep good relations with their neighbours.

China– One would obviously question the role of China in the emergence of the “People’s War” according to Mao Zedong principles but up till now there is no evidence of any links between China and the Maoists in Nepal. Both Nepal and China want to moderate the natural influence of India on Nepal and the recognition by the Nepalese authorities of the Chinese sovereignty on Tibet translates a good harmony between the two countries.

India– There is a strong influence from India on the culture, religion and the caste system.

India was also keen to supervise the Nepalese affairs, starting with commercial and transit treaties. A majority of the academic Nepalese people  graduate from Indian universities and the Indian political models have influenced the ideology and even the names of the political parties in Nepal. While on one side there are anti-Indian feelings strongly expressed by the nationalists in Nepal, there seem to be an undeniable tolerance of India towards the Nepalese Maoists.

There are strong links between the Nepalese Maoists and the Indian Naxalites. The CPN-Maoist is a member of a regional coordination committee together with their Indian  counterparts, the People’s War Group ( Andhra Pradesh) and the Maoist Communist Centre ( Bihar). The Nepalese Maoists also have active support from some Indian cities and it is evident that the “Maoist Dang corridor” at the South of Rukum and Rolpa districts ( Mid-Western Nepal) allows the travelling of people, traffic of goods, ideas and influences, but also military equipment from India to Nepal.

2.8.2. International influence

According to awtw. Press services, the government of Nepal has received support from different foreign countries: including the United States, India and Belgium, Great Britain. The first three countries have provided military support and arms. US Military advisers are also providing training support to the Royal Nepal Army. The US also seem to be playing a role in unifying political parties and the King against the Maoist insurgency.

The European Commission as well as representatives of Norway, Great Britain, Germany, Switzerland and Japan are mainly involved in peace talks and conflict transformation/ resolution programmes.

2.9. Geo-political features

The Mid-Western districts of Nepal  are considered as the heart of the insurgency against the State repressive system. This area, located in the mountains ( 2000-3000m alt.) is quite close to the valley and the Indian border via the “Dang corridor” for the replenishment of goods and contacts with the command. As a lot of other districts in remote areas, Rolpa and Rukum districts are not autosufficient. However they have an easy access by road to the South which puts them in a better position compared with the Far-Western remote districts. The Left Party was well established in that area and politically very active against the Nepali Congress leaders. In these areas CPN-Maoist was also benefiting from dynamic local networks. But fearing this increased influence of the CPN-Maoist, repeated abuses by the local authorities succeeded to extortions by the police.

2.10. Democracy, and Human Rights

In a pluriethnic country like Nepal with more than sixty minorities and  without formal dominance of any ethny, based on the number, social and political democracy is certainly a challenge when one adds the questions of disparity between the capital-cities and the remote areas, the geographical distances, and the true representation with a background scene of old Panchayat souvenirs.

A reason mentioned by the Maoists for starting the “People’s War” in 1996 was the profound dissatisfaction with corruption and lack of development under parliamentary democracy. The CPN – Maoist wanted to overthrow the existing political system and government structure for establishing a “people’s democratic republic”.

 

“The Maoist party took the opportunity to be the spokesman for the suppressed people of Rolpa and submitted a 40-point demand to Prime Minister Sher Bahadur Deuba and gave a 30-day ultimatum. The government interpreted the whole movement as a problem of ‘law and order’ and hence ignored the Maoist demands and decided to continue police operations” 4.

The Forty Demands Charter presented on the 4th February 1996 to the government by Dr. Baburam Bhattarai includes three main sectors; nationality, people’s democracy and livelihood. The demand concerning the establishment of a people’s democracy expresses the need to draft a new Constitution for setting a people’s democratic system. No specific mention about political issues has been added, apart from the last point which asks for empowering the local bodies ( VDC ?).

But under the same section (people’s democracy), the Forty Demands Charter also questions the violence used by the state. In fact the articles mentioned (points12-25) mainly concern an appeal for protecting human rights (repressive acts, extra-judicial arrests, disappearances, compensation to victims, patriarchal exploitation and women’s discrimination, racial exploitation, untouchability, right to expression and freedom, right to education and local languages, regional discrimination ).

4: police operations.: from Dr. Chitra K. Tiwari who is a Washington D.C. based free lance analyst and commentator of international affairs. He was formerly a lecturer of political science at Nepal’s Tribhuvan University. From the article writen by Dr. Chitra K. Tiwari’s talk on“Maoism, Democracy and Monarchy in Nepal” At Williams College, MA on March 1, 2002

This might suggest to what extent Human Rights are here considered by the Maoists as democratic rights, not the rights as enunciated in the Constitution and International Covenants as an international gesture, but the rights guaranteed and implemented in the day-to-day life in the remote mountain areas.

As written by a local author Bihari Krishna Shrestha5: “Despite our apparently democratic structure and forms, the compulsions for the politicians to be transparent in their dealings and accountable in their behaviour are largely absent. The aspirations of the people continue to be disregarded with impunity…”

The respect of values and principles such as “Human rights” and even “Democracy” does perhaps not have the same significance and perception, on one hand for the well educated governing leader in an urban area and on the other hand for the illiterate peasant in a remote rural area. Fundamental traditional local  ( but also universal) values like, freedom, dignity, expression, association, problem sharing are certainly values that the people from remote areas are living through daily. In particular  those people have experienced social and political exclusion based on caste, regional origin, language and religion, true representation, and more recently the unilateral King’s decision to even dissolve the Village Development Committees.

About the “Universality of the human rights”, an author like Frederic Sudre mentions similar values:“ the international law of human rights pretends to express values such as dignity, egality, which are a common basis to all civilisations and religions. 6 ”…

3. Constitution questioned

 

3.1. At the time of drafting the 1990 constitution

The constitution is known as being a product of negotiation between three opposing powers: the Palace, Nepali Congress and the United Left Front. Disputes had taken place in course of the draft preparation and the United Left Front rendered a critical support and promised to amend  the wrong tendencies should they get a two-third majority in the general elections.

Some comments with suggestions on proposed draft of the Constitution submitted by the CPN (Marxist-Leninist):

1-      The word “Hindu” in Art. 4 (1) to qualify the Kingdom needs to be removed.

2-      Under Part 3 ( Fundamental Rights) Art.12; the words like “sedition” and “incitement to an offence” are equivocally letting room open for the ruler to frame arbitrary laws to suppress his oponents.

3-      Under Part 3 ( Fundamental Rights) Art.17; the Right to Property should encompass the character of a welfare State. Constitutional provisions for progressive land reform,…, economic reforms and full control of labourers over labour and the production of labour are desired.

4-      “His Majesty is the symbol of Nepalese nationality and the unity of the Nepalese people”… should be deleted… Multiparty democracy and the democratic Constitution are the symbols of nationality and popular unity.

5: Bihari Krishna Shrestha – conflict resolution through Governance effectiveness in Nepal- Nepal Foundation for Advanced Studies.August 20036: Frederic Sudre: Droit International et européen des droits de l’homme – puf edition – Universalité des Droits de l’Homme.

5-       “His Majesty is to preserve and protect this Constitution” is undesirable as only the sovereign people… are the protectors of the Constitution.

6-      The provision of “His Majesty” as described in Art. 35 as a component of Executive power should be deleted. …. The King shall act only with the recommendation and consent of the Council of Ministers.

7-      A provision should be added that His Majesty the King can form an executive Council of Ministers as recommended by the National Assembly if the PM of an electoral government formed after the dissolution of the House of Representatives demises before the polls take place.

8-      The Constitution should incorporate a provision that allows to impeach the King if he acts in opposition to the Constitution…

3.2. After promulgation of the constitution

Although not too happy, the moderate left kept quiet. But the radical communists UNPM – United National People’s Movement condemned the constitution since their demands for a constituent assembly went unfulfilled.

3.3. Constituent assembly or Constitution amendment

A Constituent Assembly is a sovereign representative assembly formed to draft the Constitution. The issue of a constituent assembly was raised in Nepal in 1950. It was  then in 1960  that Mohan Bikram, extremist left in Nepal CPN , had advocated the constituent assembly option and opposed support for constitutional monarchy.

The UPFN was formed in 1991, but the party split into two CPN branches in May 1994, one led by Prachanda and the other one by Lama. While the latter was recognised by the Election Commission in 1994, the one led by Baburam Bhattarai allied to Prachanda, was not recognised.

This refusal of recognition paved the way for Bhattarai (CPN-Maoist) in 1995 to give up electoral politics in favour of armed revolt ( the Supreme Court invalidated the Election Commission’s decision later on, but it was too late).

The Nepali Congress and CPN-UML raised the issue of Constitution amendment but despite occasional voices given for the constituent assembly, both of them stood against it.

In the beginning of 2000, the main opposition party CPN-UML again raised the issue of Constitution amendment. In November 2000, the Central Committee meeting of CPN-UML took a decision in favour of the amendment of the Constitution.

After the October 4th. 2002 royal declaration, the CPN-UML stated that the party was ready to undergo a referendum on either constituent assembly or a Constitution amendment. Even the Nepali Congress started undertaking discussions for the formation of a new Constitution through constituent assembly 7.

3.4. Offence to the Constitution, offence to democracy.

On May 22nd. 2002, the King Gyanendra assumed the Executive authority himself and dissolved the House of Representatives at the recommendation of the Prime Minister . Then he removed the PM from his office, and also dissolved the Council of Ministers.

7: Constituent Assembly : Frederic Sudre (Droit International et européen des droits de l’homme),mentions while making reference to the fundamental principles of democracy close to Marxist concepts, “ The people’s will is the groundwork of the authority of the public (State ) power”

– According to the Constitution Art.35-2:…” the powers of His Majesty …shall be exercised upon recommendation and advice and with the consent of the Council of Ministers…”

But the King formed a new Cabinet on October 11th. 2002,  selecting the people of autocratic nature. As per the October 4 public royal declaration: “… we will exercise the Executive powers… and we ourselves undertake the responsibility of governance in the country…”

– According to the Constitution Art.53.4:… “ His Majesty may dissolve the House of Representatives on the recommendation of the Prime Minister…and “…when so dissolving (the House of Representatives), he should specify a date to be within 6 months for new elections…”.

Up till now, one year later, the situation remains the same, and no government has come up with any issue regarding the holding of general elections.

In this respect, INSEC cleary states: “ The State without peoples’s representatives from national to local levels and legislation by the people’s  deputies ( as it is from 22 May 2002) is equal to denial of rights of the people.8 ” Political human rights are openly violated due to the King’s decisions which are not only against the democratic system in place, but are also unconstitutional.

4. The causes: conclusions summary

“Ethnic activists in Nepal increasingly point out that a minority is running a multiethnic nation. Nepal lacks a clear majority in its population that would render the political dominance of one particular group more self-evident.9

The levels of poverty, economical factors, social factors and disparities provide a starting point to understand why the CPN(Maoist) could count on popular support for the people’s war and found fertile grounds for their ideas to grow, in particular in the remote Rolpa and Rukum far-western districts, the epicentre of the Maoist movement.

The people’s war is a logical outcome of many years of suffering under an autocratic regime with violation of fundamental and intangible rights, regime of castes and exploitation, neglect and discrimination of the poor and ethnies, and the will to build a nation above all the ethnical characteristics and rights of the ethnies.

The emergence of a multiparty parliamentary system, the emergence of the CPN and later on of the CPN-Maoist, has greatly frightened the aristocracy and the political alliances. Heavy violent repressions began, initiated by the government. The government refused to recognise the political formation led by Bhattarai after the split of the United Front. It ignored appeals for a real implementation of  human rights, ignored the establishment of democratic standards and political standards with true representation. It also ignored the revision of the Constitution through a people’s democratic system. The Monarchy has in addition played a shady game in dividing political strenghts for governing.

Public perception, as shown in the result of a nation-wide opinion poll conducted in early 2001 brings to light an interesting indicator: 30 per cent of respondents believed police violence was to blame for the increase in Maoist activity. This factor identified on the national level as being number one for the growth of the Maoists, while poverty/unemployment/ corruption came second at 28 per cent.

8: Offence to the Constitution and democracy: INSEC- Human Rights Yearbook 2002, pg 649: Summary: the causes: Ethnic activists: according to Pfaff-Czarnecka, Joanna “Debating the state of the nation: ethnicisation of politics in Nepal- A position paper

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Section 3 – THE EFFECTS OF THE WAR

1. State of Emergency

The State of Emergency was declared on  November 26th. 2001 when the government denounced the CPN-Maoists  as a “terrorist organisation”, and labelled the insurgents as “terrorists”. It lasted until August 27th. 2002. The House of Representatives approved the proclamation. Links seem evident with the international plan for fighting against terrorism after the  September 11th. 2001 US events.

As mentioned above ( Constitution and Emergency power), the majority of the Fundamental Rights could be suspended at the decision of the King. The “Terrorist and Disruptive Activities Ordinance” (TADO) was promulgated granting the state wide powers and suspending the key articles and clauses mentioned.

One of the first actions on behalf of the government was to take into custody journalists from newspapers considered as Maoist supporters or mouthpieces.

Discussions about amendment of the constitution were again initiated by the CPN-UML and the Nepali Congress, but instead of reflecting a reformist agenda, it mainly showed the party’s hurry to get into power.

There were political dissensions within the Nepali Congress party, between the Prime Minister and the party president about extending the state of emergency. At that time, there were widespread reports of surrenders by Maoists and their sympathisers. India handed over some Maoist militants to ensure that its territory could not be used as a safe haven .This was seen as positive indications suggesting that Maoists were on the run. The state of emergency was not re-imposed at the end of August. But a few events threw the political scene into confusion: two major attacks from the Maoists, and most importantly the recommendation for defering the polls called for in November which resulted in the removing of the PM by the King.

2. The Maoist strategy

The Maoists borrowed their battle strategy1 from Mao Tse-Tung.

2.1. The three stages:

–          replenishing their “strenght with all the arms… captured from the enemy”,

–          “encircling the cities from the countryside,

–          “ enemy’s strategic offensive..,. consolidation,…, counter-offensive, …, enemy’s retreat.

2.2. The six plans ( six phases):

–          inciting the masses to rebel against the oppressive system and the state, selecting targets and forms of actions, (1996)

–           preparing grounds to convert specific areas into guerilla zones, including annihilating local tyrants, police informers and policemen, (1997)

–          launching strikes against government forces, forming local people’s committees to take over the functions of the VDC which have been terminated ( following the dissolution of the House of Representatives), formation of a Central Military Commission (1998)

–          forming three fighting military force units, (1998)

–          Alok tendency: “meanest form of right opportunism in a left cloak…” (1999)

1: Maoist Military Strategy: one could however wonder if the Maoist strategy aiming to support the people’s war, is running mechanically no matter if there are dialogue openings or not. Such a “by all costs strategy” would then mean that there are only sham dialogue and  political openings.

–          focusing on armed guerilla raids and ambushes, sabotage, annihilation, propaganda (2000)

Six phases ending with the CPN –Maoist’s Second National Conference ( Feb 2001)

2.3. The Three-in-One magic instruments (of the New Democratic Revolution):

–          The party: a standing committee ( 7 members), politbureau (15 members), central committee ( 40-50 members), five regional bureau of operations under the command of a politbureau, three sub-regional bureau (under each regional bureau), district committees, area committees, cell committees at grassroot level.

–          The army: the forming of the “people’s army” started during the third phase, from platoons to company, to battalion,  and brigade. The army was called the “People’s Liberation Army”-PLA and the supreme command placed in Prachanda’s hands.

–          The United Front: it is an instrument of struggle for the People’s War and of  the state power. Its objective is to propagate this instrument amongst the workers, peasants, nationalities, oppressed people and castes. Ethnic based organisations as well as different organisations were set up.

2.4. The People’s Government

The withdrawal of the Nepali Police forces in some areas, as well as the dissolution of the local political bodies (VDC) resulted in a power vacuum in the countryside. The Maoists began holding massive rallies, marches and meetings. As a step towards “New Democratic Governments”, the Maoists established “People’s Governments” and “village united people’s committees”. Its representation was set according to the “Three-in-One” ( Party 40% of the seats, Army 20 %, Organisations 20 %) and efforts were made to include all sections of the society including Nepali Congress,  CPN-UML and other party workers. However people identified as “feudalists” and “comprador and bureaucratic capitalists” were not allowed to elect or be elected.

The committees took up most of the functions covering administrative, economic, social and cultural matters, banking services. The Maoists destroyed legal and illegal loan documents and freed local people from debts where loans appeared to be excessive and exploitative. Development projects, relief programmes including food distribution were designed and implemented. Some NGOs and INGOs had to stop their activities while a few of them were allowed to continue in terms of the value of their work, but under close monitoring.

Small-scale industrial enterprises were established.

In the social sphere, the marriage of widows and inter-caste marriages were encouraged, some taboos and superstitious religious festivals not allowed, alcohol and gambling prohibited, Sanskrit banned in schools.

By November 2001, there were more than 20 “district united people’s committees” set. However, they have now spread their presence to all 75 districts of the country.

 

2.5. People’s courts

In the areas under control of the CPN-Maoist “people’s courts” have been set up to settle local disputes. These courts have also presided over “trials” and pronounced punishments, including “death sentences”. For exemple, passing information to the police is subject to a death sentence and a notice is stuck up in the village. There are punishments imposed which are clearly inhuman or degrading treatments. Some people are forced to be enrolled in construction work.

 

2.6. The Maoist rationale

Originally, at the time of the independent tribal states, the issue of the “oppressed” people and regions was related to a regional domination ( Mongol, Austro-Dravid). Now Nepal faces a centralised state and external semi-colonial oppression. Thus, according to B. Bhattarai, it is necessary “ to solve the problem of oppressed regions and nationalities by granting regional and national autonomy”. Moreover, “where ethnic communities are in the majority, they should be allowed to form their own autonomous governments”2.

As for the Shining Path, the rationale was:

–          to cut the cities off from the countryside, provoking a reduction of the economy and forcing the withdrawal of the authorities.

–          to establish a system of popular justice.

–          to gradually create a climate of disquiet and chaos.

–          to target the social classes considered as people’s enemies such as the agents of the state, informers, exploitative political parties.

–          to indoctrinate and lead to a progressive deligitimisation of the state in the minds of the populace.

The Maoist ideology concentrated on students and teachers. The ideology has seeped into the schools, adult literacy classes, women’s groups for income generation and forestry management. It even seeped  into the prisons.

3. Human development costs

3.1. Geographical dimension: the insurgency that began from five districts (mid-western:Rolpa, Rukum, Jajarkot- western: Gorkha – eastern: Sindhuli) had spread by January 2003 to 68 districts out of  Nepal’s 75 districts. It has been estimated that the insurgency has touched the lives of about two-thirds of the Nepalis.

3.2. Economical costs: the Maoists targeted industries, mainly foreign investments and joint-venture companies: tourism was affected, as well as business, transport, insurance companies.

Infrastructural projects were delayed or stopped, as well as development programmes, drinking water and sewerage facilities’ projects.

Offices of the VDC and other government buildings, communication centres and radio towers were destroyed.

3.3. Financial cost:  Nepal’s GDP dropped severely between 1999-2000 and 2001-2002.

The Development budget was cut off up to 25 per cent and thus about 165 development projects were closed.

The Defence expenses and investments in security dramatically increased. Resources meant for economic growth and poverty reduction were redirected towards security.

The Army purchased guns from the US and a Belgian manufacturer, and the US ( granting a 12 million $ support), with the British and Indian governments provided military assistance in terms of equipment and training. It is estimated that the opportunity costs of these military expenditures over the next five years is equal to the construction cost of thousands of primary schools, 50 new district hospitals and 5000 bridges. Consequently, in a country where illiteracy and poverty are rampant, the growing military costs and fall in revenue has driven the budget deficit up to 6 per cent of GDP in the fiscal year 2002/2003, already up to 4.2 per cent the year before.

2: Granting regional and national autonomy: Baburam Bhattarai (1998) Politico-Economic Rationale of People’s war in Nepal, Utprerak Publications.

4. Human costs

The delivery of social services in remote areas was disrupted.

Health care centres, schools, community centres  have been burnt in more than 300 communities.

Several urban centres experienced a significant increase in internally displaced persons as families, orphaned or abandoned children left their villages.

There has been a dramatic increase of the rate of migration, declining per capita agricultural output with food shortages.

In the districts where the majority of the people were already dependant on imported rice and flour, and areas where the villagers were suspected or forced to provide food to the Maoists, new restrictions from the security forces in food supplies added a burden.

There are transport limitations: the destruction of bridges by the Maoists have increased walking distances and the collection  of forest produce by the villagers became a risk as those found in such places were liable to be treated as Maoists.

4.1. Women’s involvement in the war and women’s plight

It is believed that women make up almost a third of the Maoist fighting forces in Nepal, while in Peru, women constituted fifty percent of the Shining Path forces. The Maoist insurgency which brought in a “ new order” then had direct effects on some gender related issues.

The typical background for the Nepali woman is as follows:  heavy workload, high level of vulnerability, high rate of mortality, a very low  political participation,  a low index of literacy (less than half of the men’s index), a low country’s and regional’s Gender-related development (GRD) Index. The mid- and far-western regions have a significantly low GRD Index compared with the rest of the country. To this sorry woman’s plight one should add the continuing violence against women and girls in trafficking, the side-effects of polygamy and alcoholism. Gender discrimination remains unchecked despite Nepal’s accession to the CEDAW . Ancient Hindu codes have sanctified the exclusion of women at all levels and  reinforced the oppressive patriarchal structures.

Violence is structural and everywhere: domestic violence, social, police, state. The maternal death rate is the highest in Southern Asia.

In Peru, the Shining Path women’s movement became significant in the strongly male-dominated Peruvian society. While in Nepal, the Maoist and people’s war ideology has emerged as an opportunity for the women to fight against their heavy legacy.

Indeed, the Maoists are fighting against “social evils” such as alcoholism and polygamy. The Maoist-affiliated “All Nepal Women’s Association (Revolutionary)” took radical action in 2001 in an attempt to close all Nepal’s breweries and distilleries.

Joining the Maoist movement has also been seen as an answer for many women who have been abandoned by their husbands who fled to India or into the jungles. But as a result, they had to endure atrocities and suffering at the hands of the police. Many victims of police violence seem to live in terror of the police.

For upper-caste women in particular, it was an opportunity to escape a life of deprivation with nothing more than marriage and devotion to the family and the Hindu codes. An expected boomerang effect of the war on the GRD Index was that because of the absence of the husbands ( killed, run-away or imprisoned, seasonal migration), women had to take on responsibility of running the households, to take on the male job of ploughing the land, to be engaged in public life and become more vocal in community activities. The women thus form the majority of the rural community and run the subsistence economy. This situation suggests that there will be no agrarian revolution without mobilising women.

But the negative vicious counter effect was that the Maoists turned up at these new women-headed households and asked for free meals and forced donations. The other counter effect is that once the decision is taken to join the guerilla, it becomes difficult for the women to go back into their family under its patriarchal bonds. That’s also why they are more committed.

The high rate of women’s involvement in the Maoist forces also implied that there has been a high rate of women killed by state agents ( the highest rate was about one third for women in the age group of 15-19 years old, and one quarter for the age group of 25-29 years old).

 

4.2. Women’s involvement in the war 3: a women’s open challenge to claim rights

Another view of the problem: the women’s challenge

There is a tradition in Nepal of armed political activism and struggle by women of ethnic and indigenous groups.

The people’s war ideology has given room for women to claim rights, but it has also been an opportunity for the women to help shaping the ideology.

Is the woman’s plight  enshrined in caste, ethnicity or religion ?

The majority of the women involved in the war come from Nepal’s disadvantaged Tibeto-Burman groups ( Magars, Gurungs, Rais), less oppressed than Hindu upper-caste Aryan women. Although the women are denied legal right to land and family property, they have less religio-cultural restrictions, and have a socio-economic independence in which they are entitled to a complementary authority . Magar women compete with males for posts as village officials. However, the majority of the women who join the armed guerilla are poor peasants suffering from the existing discriminations and marginalisation. There is little or no solidarity between women’s groups at the national level and with groups at the local level, or with the All Nepal Women’s Association politically affiliated to the Maoist movement. Women’s groups in Nepal have been indifferent to the violation of women’s rights by the security forces in Maoist controlled areas. In fact, the Maoist struggle against class oppression has eclipsed their fight against gender oppression.

But this might also suggest deadlocks in gender issues between caste, ethnicity, religion and class.

A place is given in the Maoist movement to the women for participation and recognition, as well as the incorporation of their gender interests and programmatic contents. Comrade Prachanda and Dr. B.Bhattarai say that the women’s  question at the ideology level will be solved at the same time as feudal exploitation and class oppression disappear, together with the removal of feudal Brahmanical Hindu rules concerning gender relations.

The programmatic content incorporates the defense of many women’s rights: protection against sexual violence and patriarchal exploitation, anti-alcohol campaigns ( alcohol drinks being seen as instigating domestic violence), maternal and child health care ( including the care of the women “guerilleros” and their children), access to property leading to women’s right to land ( which is the New Democratic Revolution’s core). Women’s  rights are also protected by getting justice through the people’s courts. Rapists and polygams are punished, usurped land of single women rendered .

3: Women’s involvement in the war, a women’s open challenge to claim rights: by Shobha Gautam, Amrita Banskota, Rita Manchanda (Women in the Maoist insurgency in Nepal – Understanding the Maoist Movementof Nepal- Martin Chautari 2003). The findings are the conclusions of field interviews with peasants and rural women ( Rolpa and Gorkha districts), “guerilleros” in prison and top-ranking woman leader Hisila Yami ( she is married to B. Bhattarai)

Due to their experience of communal sharing in groups, women are present at all levels in the Maoist movement as combatants, political activists or social workers; in mass action, cultural and propaganda organisations and guerilla units, couriers, guides, nurses, visitors to jail, members of village defender groups. Women have become area commanders. However there are no women in the central committee… They are not involved or participative in the programmatic agenda at the policy level. Even so, the majority of the women in the movement are illiterate or neo-literate. However  women have high party posts in the Shining Path and in armed struggles like the Zapatista movement in Mexico.

Women’s empowerment is however linked with literacy which has been much developed in the prosperous Gorkha district of the central hills. Thanks to literacy campaigns promoted by INGOs in Gorkha, a significant number of girls and women go to school, women lead and participate to women’s groups, attend community meetings and work as community health workers.

In the Gorkha district, it is thus literate women, girls and men who join the struggle. However this significant increase of girls attending school programmes needs to be put in perspective, as it also suggests another kind of “forced” discrimination. Parents who fear that  their sons will be enrolled or politicised or “picked up” by the Maoists ( as all students are suspect), send them to Kathmandu to study. The girls remain in the village schools, but with classrooms which lead to the guerilla.

4.3. Victimisation of children

According to “Child Workers in Nepal Concerned Centre- CWIN”, the conflict has made victims of at least 322 children, cost the lives of at least 186, while 4000 children have been displaced. Hundreds of children have been kidnapped by the Maoists. Young children have been left abandoned or orphaned by killings. As they have often witnessed  relatives or other people shot dead, children have started showing increasingly violent behaviour, while others remain traumatised and locked up in fear and depression.

On a social perspective, the children often found themselves totally isolated, as community protection systems both formal and informal, have been broken.

An estimated 3000 teachers have left or had to leave for other areas thus affecting about 100’000 children. It has been estimated that the insurgency has led to the closure of more than 700 private schools across the country. There have also been other disruptions such as closure of schools. There is no doubt that children are part of the war effort, to do the dirty jobs or being used as human shields. Talking to journalists, some children who were found among the guerillas asserted that they were aware of their rights to get education, food, clothes and healthcare, but because of the corruption in the state, they had been deprived of such opportunities; hence their decision to join the Maoists.

5. Acts and issues in opposition to Human Rights

Since the beginning of the conflict, 2002 has been the darkest year from a human rights perspective, despite the fact that the country was governed under the state of emergency. The death toll in the 14 months of emergency was nearly three times the total in the preceding six years of the people’s war.

Due to the conflict, forced migration of people has taken place on a large scale. Around 14’000 people displaced to mid-west Nepal and 40’000 crossed to India from western Nepal. An estimated 120’000 displaced people have been recorded crossing the border into India, during January 2003 alone. Kathmandu has also witnessed an influx of people but reliable data is not available. The poor have been seeking work in other rural areas as agricultural workers or casual wage labourers in the cities.

5.1. Violations by the governmental security forces- Killings

In November 1995, the Operation Romeo decided by the government involved a special trained commando force which initiated suppressive operations to a degree of state terror. This Operation was characterised by random arrests, torture, rape and extra-judicial killings. In particular, the workers of United People’s Front were brutally suppressed.

During May 98, the Operation “Kilo Sierra Two” was a “search and kill” operation. Around 500 people were killed during this operation.

From mid-1998, the killing of Maoists, their supporters as well as civilians caught in the middle, escalated to unprecedent heights.

Since the army was called out, in some respects, the army’s compliance to humanitarian principles has been lower than that of the police, as the police generally cohabit with the people in the areas they patrol. The Defence Ministry news bulletins referred to “dead insurgents”, and rarely to “captured wounded”.

Compared with the first 7 years of the conflict where the majority of those killed were either members of the security forces or of the Maoist movement, there has been in 2002 a substantial number of civilians killed from poor rural households. The number of innocent human lives sacrified in the pursuit of the Maoists has been unacceptably high.  Many villagers killed for being Maoists were peasants with no ideological grounding. Some were Maoist supporters, of their own free will or through coercion.

It has been mentioned that a “critical” problem is the difficulty of distinguishing between a “ Maoist enemy” and an ordinary villager. This argument is not acceptable as it rather indicates in the first instance a propensity to kill, and without any discrimination.

Particularly when it is known that, according to information delivered by the army, the Maoists have used peasants from nearby villages as human shields during their assaults.

In addition, the government has shown an obvious carelessness of the inherent right to life when placing a bounty on the heads of the Maoist leaders “ dead or alive”.

In its December 2002 report, Amnesty International mentioned a statement of the Commander of the Armed Services: “ It is the army’s mission to disarm and defeat the Maoists”.  “The definition of what constitutes a “Maoist”, according to army commanders interviewed by Amnesty International, includes civilians who give shelter, food or money to the armed Maoists.” But the fact that much of this assistance might be given under threat from the Maoists was not considered.

It was again confirmed by a senior superintendent of the police that the security forces deliberately kill the Maoists.

5.1.1. Disappearances, Torture and Arbitrary arrests

Since the emergence of the Peoples’ War, cases of disappearances, torture by the army and police and arbitrary arrests have been reported regularly to the concerned human rights organisations and the UN Working Groups. Prolonged detentions without trial is also common. Hundreds of suspected Maoists have spent more than one year in detention without being taken to court.

According to lawyers, many Chief District Officers ( the highest government servant at the district level) have issued the police with blank detention orders signed in advance, giving them full power to decide who has to be detained.

The lack of appropriate investigations about the cases, including torture and death in custody have increased the climate of insecurity and of impunity of the governmental security forces.

5.1.2. Lack of governmental detention facilities

In addition of the fact that there is no discrimination between armed Maoists and civilian supporters, the lack of detention facilities make it difficult to take wounded Maoists to hospitals or captured Maoists to prison.

5.1.3. Impunity of the govermental security forces

According to Amnesty International, impunity is the single most destructive factor affecting the human rights situation. The heaviest sanction the security forces will face will be an internal inquiry. According to the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, “ the criminal legal system extends impunity for serious human rights violations, including extrajudicial, summary or arbitrary executions”…

5.1.4. Increased weaknesses of the judicial system

According to Amnesty International, since November 2001, the courts have failed to take up the challenge to uphold human rights protection enshrined in the Constitution and the highest court in the country has shown indecisiveness. It is illustrated by the way in which the remedy of habeas corpus remains largely ineffective, not only in relation to disappearances but for those detained under the TADA. 4

There has also been a tendency for the security forces to ignore court orders. One of the factors  influencing this situation is the fact that there is no crime of perjury in Nepali law. The courts cannot impose any sanctions on members of the security forces who lie to the courts during habeas corpus hearings. After the passing of the TADA, the security forces have repeatedly ignored district court orders to take prisoners for medical examination.

Two Special Courts have been constituted under the TADA, but  very few cases had been brought before them by the authorities. This has also resulted in the justice system itself being cause for violation of the right to be tried within a reasonable time. According to Clause 13 (1) of the TADA, a monitoring committee  with advisory powers under the chairmanship of a retired Supreme Court judge had to be set up, but at the end of the year, no such committee was in place.

5.2. Violations by  the Maoists

In areas where government control has been weak, the Maoists are believed to have ordered some individuals and their families to leave. They were mainly Nepali Congress supporters.

The Maoists also continued to live off food collected from locals and looted from trucks or from food-for-work programme’s storage.

At the same time the Maoists started new interventions designed to improve the social conditions, they also claimed taxes from local inhabitants  leading to unreasonable levels of extortion.The vacuum of the government and the setting of a regime of intimidation left  the place open for criminals who pretended to be operating on behalf of the movement.

4: TADA: The Terrorist and Disruptive Activities Act  ( Control and Punishment) was passed by Parliament for two years in April 2002. It replaced an Ordinance by the same name (TADO) promulgated on 26 November 2001.Principle 32(2) of the Body of principles for the Protection of All Persons under Any Form of Detention or Imprisonment requires that “the proceedings to challenge the lawfulness of detention, which includes the writ of habeas corpus shall be simple and expeditious…The detaining authority shall produce without unreasonable delay the detained person before the reviewing authority”

In order to spread fear and intimidation, the Maoists have frequently used high-profile demonstration killings.

The “enemies of the revolution” as well as teachers and politicians have most frequently been targeted.

Data available does not show the figures regarding torture, but it seems the Maoists torture captives. However, there is a great number of persons abducted and beaten. Recruitment of children by the Maoists has been reported on a regular basis. While some children were enrolled, others could stay at school but had training sessions on arms. Sometimes, groups of children were taken by force for  educational training on the Maoist principles. Amnesty International was informed that in areas under its control, the CPN-Maoist exercise a recruitment policy and arms training, on a basis of  “ one family, one member “

6. Effects on Human Rights: violations reported from both sides –

 Some key data

6.1. General data

Violations  in 2002 CAT CEDAW CERD CRC ICCPR ICESCR
< 1000 < 1000 < 500  1000 >12000 > 4000

6.2. Main violations in 2002

Killed in firing Male Female Unidentified Total
By Maoists 763 10 104 877
By State 1799 223 1178 3200
Killed unexposed Male Female Unidentified Total
By Maoists 103 5 16 124
By State 63 13 6 82
Arrest and torture Male Female Unidentified Total
By Maoists
By State 2893 252 285 3430
Beating Male Female Unidentified Total
By Maoists 402 29 57 488
By State 346 23 188 557
Disappearance Male Female Unidentified Total
By Maoists
By State 205 19 9 233
Abduction Male Female Unidentified Total
By Maoists 754 33 320 1107
By State
Displacement Male Female Unidentified Total
By Maoists 11080
By State 3625

6.3. Distribution by Age group and Gender ( main age groups concerned with killings)

Killings by State agents in 2002

Age group 15-19 20-24 25-29 30-34 35-39 40-44
Female 60 56 80 18 8 5
Male 166 324 310 720 148 100
Total 226 380 390 738 156 105
Ratio in %F/M 26 15 20 2.5 5 5

6.4. Who are the main victims ?

Activities

Agricultural workers 4124
Political activists 3896
Students 1537
Civil servants 819
Business persons 793
Teachers 614
Civilian 588
Labourer 502
Police 485
Military 187

6.5. Effect of the State of Emergency ( 26/11/2001- 27/08/2002)

G

Year 1997 1998 1999 2000 2001 2002
Killings by State 16 334 328 179 244 3297
Killings by Maoists 32 75 141 219 390 1359
Total 48 409 469 398 634 4656
Ratio in  % Maoist/State 66 18 43 55 61 29

6.6. Post-emergency effects ( 29/08/2002- 12/02/2003)

Year 6 months period only
Killings by State 1070
Killings by Maoists 448
Total 1518
Ratio in  % Maoist/State 29

6.7. Main violations in 2003 (April-June) during ceasefire

During 3 months only Male Female Unidentified Total
AbductionBy Maoists 93 3 96
Arrest and torture –By State 387 22 93 502
Beating – during 3 months only Male Female Unidentified Total
By Maoists 72 7 3 82
By State 84 4 88
Killing – during 3 months only Male Female Unidentified Total
By Maoists 5 2 3 7
By State 14 2 2 18

7. Effects of the war. Conclusions summary – key points

-The Maoists have implemented their military strategy since 1996 and by the year 2001 were clearly achieving the majority of their objectives, according to their “Maoist-(Shining Path) rationale” .

Maoists have set their “instruments”: Party, Army and United Front, and have formed their “People’s Government”.

-The State of Emergency which lasted nine months created an additional turmoil and dramatically increased the human rights violations, mainly those related to the inherent right to life. Playing a label’s game, the State then called the Maoists “terrorists”.

What could our expectations then be in terms of respect of human rights when a superpower foreign state 5 gives full support to the government to fight against the popular war and thus its expression of a democratic will, pretending that they fight against “terrorism” and fight for initiating peace  ? Deaf dialogue on February 21st. 2002; the American Embassy 6 condemned  an attack by the Maoists ( in Achham) urging them to fulfil their aims in a peaceful and democratic way as stipulated in the Constitution.

5: “superpower foreign state: the US Embassy statement on February 25 2002.6: according to the Nepal Samachar Patra Daily, February 21, 2002

The Royal Army was deployed. The number of killings for which the State was responsible has been multiplied by 13, while for the Maoists it was multiplied by 4. The number of violations regarding arrest and torture by the State agents was also very high. A lot of civilians were caught and killed  during the assaults. The  perverse effects of the emergency, according to data available, lasted for at least six months after it ended in late August 2002.

Fortunately, during the ceasefire the number of killings was reduced significantly, but the number of people arrested, tortured or kidnapped remained high.

-Human costs in terms of innocent human lives was very high during the emergency, it mainly concerned  agricultural workers and students. However, this conflict is highlighting a new dramatic effect on women: their vulnerability in the male-dominant society has been increased. Women had to endure atrocities in the hands of the police. A large group of women  embraced the Maoist ideology and of their own free will were engaged in the Maoist forces. The most unfortunate direct consequence was  that a lot of  young female Maoist fighters were killed in 2002, nearly thirty per cent of them in the age group of 15-19 years.

This perverse legacy cannot be considered differently than an unnatural human dislocation and social disruption due to woman’s discrimination.

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Section 4 – HR PROTECTION INSTRUMENTS

1. Human Rights Organisations’ network

Appointed by the King ( and government representatives):

NHRC: National Human Rights Commission- the NHRC, established under the Human Rights Commission Act 1997, was set in June 2000 and has the power to investigate any violation of human rights, to send fact finding teams, evaluate, monitor and  review the existing human rights situation. NHRC undertakes activities on both promotion and protection of human rights. It provides consultancy on legal matters as well as preparing draft reports for the compliance of human rights provisions with the existing laws in Nepal. NHRC also interacts with the Royal Nepal Army. However, investigations of matters under the jurisdiction of the Army Act are excluded. Any matters certified by the Attorney General that may have adverse effect on an inquiry and investigation of any crime pursuant to the law are also excluded.

The Army Human Rights Cell: it was set up in July 2002 under pressure of the international community

NHRC: “No clear-cut Governmental Concept on Commission”

“The Commission is considered as a governmental commission by some people while as non-governmental organisation by others*. Owing to such misunderstanding, questions are being raised even on the justification of the Commission. These misunderstandings are found to grip the minds of higher authorities of His Majesty’s Government too when they express: the Commission raises question on the violation of human rights perpetrated from the governmental side only but does not raise question when they are found to be violated by the Maoists’ side. The Commission has been constituted with a view to guarantee the human rights at the time of human rights violation. That is why, its responsibility lies in recommending action to the Government if the human rights are violated from the governmental side. If the human rights are found to be violated by other parties, it is the responsibility of the government that it initiates proper action against such violation. Hence, the Commission does not look into the conflict that has arisen between individuals. Complaints have been received on human rights violation like assassination, rape and abduction from non-state force, but the Commission is not in a position to recommend or order to such forces. However, the Commission has undertaken efforts even to make the non-state forces responsible on such violation. The misunderstanding among the responsible agencies on the limitation, jurisdiction and access has remained as an extra challenge to the Commission.” 1

*Comment: The fact that the King accepted  the resignation of the Secretary of NHRC on July 30th.2002 might suggest a dependance of the Commission on the King and government representatives. Indeed, the commissioners are appointed by the King according to recommendations from a recommendatory committee formed by the Prime Minister, the Chief Justice of Supreme Court and the opposition party leader.

The main local NGO network and INSEC: it comprises the National Coalition which supervises the Coordination Committee ( INSEC) – Coordinator (INSEC) – Secretariat of 7 members which focuses their activities on the 6 Sub-Committees as followed: CEDAW, ICCPR, ICESCR, CRC, CERD, CAT. Each Sub-Committee is formed of a group of about ten NGOs working in the related field, and one NGO assures its management.

1: From NHRC Annual report ( July 2002-July 2003)

“Founded in 1988 as an independent, non-profit and non-partisan human rights organisation, INSEC aims to cater human rights education and awareness to the grassroots people. INSEC monitors HR Treaties, and  runs its programmes through 5 regional offices, 50 local networks and has 1 representative deployed in all 75 districts to monitor the human rights situation”

Some other local NGOs:

Tribhuvan University Centre for Human Rights (TUCHR)

Campaign for Human Rights and Humanitarian Law (CHRHL)

Some International NGOs ( with specific mandate on Human Rights):

Amnesty International

ICRC

The Maoists programmes

The advocacy of minority rights has been a constant feature in the Left’s stated programmes. It finds explicit mention in the founding document of the Fourth Congress, which emphasised the need for “effective action” to “develop the language, culture and society of oppressed and backward groups” 2

2. Cease-fire with a Code of Conduct, Human Rights Agreement and political dialogue as corner stones for Peace attempts

2.1. Ceasefire

The CPN- Maoist and the Government, based on the existing area control of both parties, the People’s Liberation Army on rural areas, and the Royal Nepal Army on the big cities and district headquarters, agreed on a ceasefire on  January 29th.2003 and on a Code of Conduct.

It was agreed to recognize this ground reality, and on a mutual understanding that this satus quo would be maintained.

2.2. Gist of the CPN Maoist proposal (April 2003) – key issues

This proposal has been presented by the official dialogue team of the CPN-Maoist with the following key issues:

Objectives: to end the conflict through a progressive political solution, elimination of all discrimination, creation of a democracy, establishing a people-oriented unity with inter-related elements of democracy, ensure human and civic rights.

Create a conducive and credible environment for dialogue: this should be done through repealing black laws against humanity ( TADA), to make the status of all prisoners of war public, the release of prisoners, a committee to investigate the status of the disappeared and prisoners and to monitor the implementation of the code of conduct, and the royal army sent back to barracks.

Dialogue and  talks at a political agenda: “since the major issue of the present conflict is the question of the state, the political agenda has to be given priority in the talks”. The political agenda thus included the process for formulation of a new constitution ( constituent assembly). “The State Power has to be solely in the hands of the people” . The CPN-Maoist already mentioned the following basic rights to be included in a new constitution: universally accepted democratic and civic rights 3, the right of self-determination and regional autonomy of ethnic groups. The people’s fundamental rights had to include education, health and employment.

2: The Maoists programmes : CPN(Masal) 2059 BS, p.603: On the issue of civil rights, Frederic Sudre writes “the pre-eminence of the civil and political rights, as a weapon against the (State) power,… (is undisputable in the first solemn proclamations of human rights)” – Droit international et européen des droits de l’homme- Presses Universitaires de France.

Dialogue and talks at a social and human rights agenda: the CPN-Maoist Gist also mentions the following rights; rights of the blind, disabled, elderly, helpless and children, and equal rights in all areas to be given to women. It condemns all kinds of exploitation of women including trafficking.

2.3. Code of Conduct- key issues

The Code of Conduct was proposed by the Human Rights Community, agreed  and signed by both parties, the Government and the Rebels  ( CPN-Maoist ) on  March 13th. 2003. It followed three rounds of dialogue for peace attempts in 2001 with unsuccessful results. The main reason was, as declared by the Chairman of CPN-Maoist at that time, the fact that the government locked the possibility of reaching a solution of the present political situation.

The Code of Conduct was implemented during the ceasefire with the aim to be committed to find a peaceful solution through dialogue. The main issues refer to protecting some human rights and were: to stop violent activities* , to gradually release prisoners, to get fair and impartial treatment in the state media * , to refrain from searches, arrests and kidnappings *, to refrain from forcibly taking money or goods as donations, not to obstruct the free movement of the people and not to obstruct the transportation of essential goods.

2.4. Draft of Human Rights Agreement 4 – key issues

This Agreement could be considered as the master document for the protection of the human rights between the parties in conflict. It contains the main issues: the full observance, respect, protection and guarantee of the intangible rights and of the Geneva Conventions. It includes other individual rights such as the right to freedom of movement, right to fair trial and criminal justice, expression, and principles on internally displaced people. It aims to strenghten the organs of the State independent judiciary, executive and legislative. A very strong commitment is required against Impunity.

It demands the Government to consider “forceful disappearance, arbitrary arrest, extra-judicial executions as crimes against humanity”. The document makes a provision regarding the constitution of a mechanism for the compensation and/or assistance for the Victims.

Last but not least, it includes the protection of the fundamental rights of the civilian population, and asks the parties to consent that the freedom of association and revolt are internationally recognised as human rights. The National Human Rights Commission is empowered for the purpose of monitoring the Agreement.

3. The Maoist justice and educational plans

In their stronghold areas, the Maoists have been dispensing pro-people justice through people’s courts. The Maoists have gained much support, in particular among the women for the punishment of rapists and wife beaters. They have provided community support activities, redistributed grain looted by the local petty feudals. They promoted home adult literacy as well as classes about ill effects of alcohol and links with domestic violence and illiteracy.

In the social sphere, the marriage of widows and inter-caste marriages were encouraged, some taboos and superstitious religious festivals not allowed, alcohol and gambling prohibited.

4. Reporting status and implementation of UN recommendations

Being a State party to the six major conventions, Nepal is bound to implement proper monitoring for effective implementation and enjoyment of the human rights. But Nepal has escaped scrutiny by the UN.

4:Note: Agreement between His Majesty’s Government and Communist Party of Nepal (Maoist) – (proposed by INSEC)

Apart from the CERD of which fourteen reports have been submitted, only one report of each of the other conventions has been submitted. Regarding the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, Nepal appeared in April 1994 for the first time, before the Committee against Torture with an incomplete report. A supplementary report was recommended at that time and expected by the Committee but to the knowledge of the Human Rights organisations, no such report and/or other reports have been submitted.

The UN Special Rapporteur on extrajudicial, summary or arbitrary executions visited Nepal in February 2000. Recommendations included ways to address the problem of impunity, to investigate reports of human rights violations and prosecute those alleged to be responsible, compensations to victims. But again to the knowledge of the Human Rights organisations, no action has been implemented by the government against the problems identified.

The Civil Society organisations have also prepared some alternative reports, but as they are sector-focused, all the rights enshrined in the covenants have not been monitored and reported.

5. Human Rights Treaty Monitoring

On 25th. October 2002 the Informal Sector Service Centre (INSEC) organised an interaction programme on Human Rights Treaty Monitoring (HRTM) aiming at forming a Treaty Monitoring Coordination Committee (HRTMCC). It was formed with the consent of the representatives from 17 organisations working on the human rights sector. The organisation chart is similar to the one specified under Section 4- Human Rights Organisations’ network – The main  local NGO network, which includes the formation of six sub-committees under the six core Treaties. The Human Rights Treaty Monitoring Project paper (INSEC) includes a logical framework with clear objectives, strategy, out puts, indicators and inputs.

HRTMCC aims to emphasize the preparation of alternative reports on CRC, CEDAW and CERD by 2004, while it plans to put pressure on the government to prepare reports on ICCPR, ICESCR and CAT, as well as to draft laws on ICCPR, ICESCR and CERD. The government is indeed bound to implement all the provisions by way of enactment or amendment of legislation, creation of mechanisms, administrative arrangements, proper budget allocations and monitoring. The Monitoring will be done through the cooperation with NGOs and linkage building with the govenment. National Institutions, the Courts and different Academic Institutions and Associations are expected to participate in the Treaty Monitoring. NHRC is expected to play a role, completing the gap between the government and NGOs.

The main expected outcomes are:

– to set up a human rights cell under the Prime Minister’s Secretariat for effective implementation,  monitoring and coordination with the national and international human rights organisations.

– that the government prepares proper action plans for effective implementation of the UN recommendations

–  to submit the reports to the UN relevant Committees after sufficient consultation with the civil society and public hearing.

HRTMCC will adopt a strategy to be applied during peacetime and during unrest or renewed fighting. In the latter situation, the Committee will issue urgent statements raising attention and informing the public of human rights abuses, the need of investigation and redressement by the relevant authorities.

HR Treaty Monitoring Centre ( HRTMC) and International Criminal Court

According to an October 2003 statement, HRTMC is also designated to handle the issues on International Criminal Court while it is already a coordinator of the National Coalition of International Criminal Court.

HR Treaty Monitoring Centre ( HRTMC) and Media Monitoring

Moreover, HRTMC monitors the media focusing on the major issues of HR violations as reported in the media and those reported by INSEC district reporters.

6. Judiciary and Human Rights

With evidence, there are matters of priority regarding the intangible rights such as the inherent right to life, interdiction of torture and degrading treatment, including people’s disappearances. It concerns the compliance to the Art.3 common to the Geneva Conventions which is applicable in a situation of internal armed conflict.

Under Section 1-Constitution and Judiciary, it has been mentioned how is organised the Nepalese Judiciary system with the three Ordinary Courts. Under Section 3 – Increased weaknesses of the judicial system, Amnesty International mentioned that the courts since November 2001, have failed to take up the challenge to uphold human rights protection enshrined in the Constitution .  However, the Human Rights Year Book 2003 mentions that “improvement in court efficiency to administer justice can be taken as a strong point offered in favour of human rights”. Apart from the three Ordinary Courts, there are the other Courts and Tribunals such as followed: The Administrative Court to deal with civil servants, The two Special Courts constituted under the TADA ( the Court received eighty-four cases in 2002, there is however no mention about what the issues have been), the Police Special Court, Juvenile Court, Military Court, Appellate Committees, Court under Special Service Act, 1985. Regarding the Special Courts under the TADA, and following the registration of petitions seeking treatment of habeas corpus after the abuse of authority, a Supreme Court Division has transferred the cases to decide whether the State or the citizen’s rights are primary during the State of Emergency.

6.1. Reforming and improving the legal and judicial sectors

UNDP  the United Nations Development Programme is implementing a three years period programme aiming at making justice prompt, accessible and develop its efficiency, mainly through symposiums and training. This programme also aims at strengthening the Rule of Law. There are also recommendations to develop district Courts as “justice centres” for improving the judicial proceedings.

Considered as a good initiative to defend human rights, the Supreme Court is analysing and comparing international documents in addition to domestic law.

6.2. Negative issues

There has been delays in rendering justice as seven posts remained vacant for a long time.

The Constitutional Council has also maintained that the right to habeas corpus can be suspended if the State of Emergency  was proclaimed. The Supreme Court has shown indifference towards the rights of the indigenous people when the Court upheld decisions of permitting to operate a resort by demolishing the holy place of the Tamangs: this was seen as ignorance.

7.  Conclusions summary and comments

7.1. The Code of Conduct

The positive result of the implementation of the Code of Conduct was to show direct effects regarding the protection of rights to life ( my means of  a ceasefire) as the number of people killed significantly dropped on both sides. It is however unfortunate that the signing parties of the Code of Conduct did not take the opportunity to specify clearly the main of the content of  Art. 6- 7 of the ICCPR about the intangible rights, and about the protection of civilians and prisoners of war  according to the Geneva Conventions. About the sentence “ to stop violent activities”: the protection of the right to life, and violent activities such as torture or other degrading treatments are not specified as such.

At least, the Gist of the CPN-Maoist proposal had the merit to specify the repealing of the TADA, as well as making public the status of the prisoners, and the latter seems to be a fundament as the right of the prisoners to communicate with their relatives was violated.

It is known that the government-sponsored press in 1998 played up reports of a lengthening list of Maoists, who were surrendering. Much publicity was given to reports of surrender by women combatants 5.

The Gist of the CPN-Maoist also indicated the formation of a monitoring committee comprising of representatives from national and international human rights organisations, while the Code of Conduct does not specify this. At least it could have been mentioned ; an “independent monitoring committee”.

About the sentence “to get fair and impartial treatment in the state media”: no mention at all was made about a fair treatment in custody, camps, or even about making public the status of the prisoners.

About the sentence “ to refrain from searches, arrests and kidnappings”: it is only indicated “to refrain”, but not “to stop”. Indeed, as said under the conclusions under section 3, the number of people arrested and tortured by the State stayed quite high during the ceasefire, as well as the people abducted by the Maoists.

The strict minimum is indicated regarding the conduct of State security forces and also the Maoists towards the civilians ( with sentences such as “ not to ignite fear amongst general public”, to refrain from forcibly taking money or goods as donations, not to obstruct the free movement of the people and not to obstruct the transportation of essential goods” ). Indeed  it is known that the civilians were the main innocent group concerned with the killings, arrests and torture in 2002, according to data available. Regarding the practice of torture, the act of torture is not a punishable offence under criminal law in Nepal.

The absence of provisions regarding the fair treatment of detained civilians, Maoist fighters, soldiers, policemen, and the wording used such as “to refrain from arrests or kidnappings…” suggest an obvious lack of determination and commitment on behalf of the government. The gradual release of the prisoners is however indicated. On the contrary,  a mention such as  “urging the government to refrain from using indiscriminate military force in countering armed opposition from the CPN-Maoist.” would be appropriate in the Code of Conduct.

7.2. The Draft of the Human Rights Agreement

Evidently, the Draft of the Human Rights Agreement takes a step forward while “ realising that prioritisation of human rights issues leads the nation to sustainable peace in the land.”

5:Lists of surrender combatants: Shobha Gautam, Amrita Banskota, Rita Manchanda (Women in the Maoist insurgency in Nepal – Understanding the Maoist Movement of Nepal- Martin Chautari 2003)

Compared with the Code of Conduct, it is no longer an escape agreement, but a demanding and compelling document which commits the two parties involved in the conflict.

A real step forward, but the Agreement was not signed. The surprising element was that only the NHRC was empowered. While the CPN-Maoist according to their Gist requires a more independent monitoring committee.

7.3. The Gist of the CPN-Maoist proposal

This document could be considered as a comprehensive proposal presented for consideration during the  peace talks. It mentions the implementation of the Code of Conduct, which is as mentioned earlier, the demonstration of a vague intention of conduct between the parties. It includes and emphasizes on a progressive political agenda leading to the formulation of a new constitution with “true democracy”, national economic/social questions and matters related to human rights.

Section 5HR PROMOTION PROGRAMMES

It might be interesting to propose in this section a comprehensive view of all the systems pertaining to the non-judicial protection of  Human Rights in Nepal. For differentiating its aim ( drawed up as “core activities” Vol.15 No2 April 2003), the NGO “ INSEC” identifies four objectives : protection, promotion, solidarity/campaign, treaty monitoring.

But we could consider “Treaty monitoring”  as a part of a protection mechanism . There are also different activities listed under “solidarity/campaign” which are either part of protection or promotion of human rights. Other local organisations consider focusing on human rights protection through activities such as: dissemination of handbooks, dissemination through radio talk programmes,public debate through media, campaign. But those activities are more ” promotion oriented “ . Organisations like Amnesty International focus on investigating reports of violations, visiting prisoners, alerting political leadership, providing basic human rights training of State agents. The first three activities mentioned could be considered as “ protection” of human rights, while the latter considered as “ promotion”.

1. Project/Programme Monitoring – methodology

A logical framework designed on a systematic process, clearly identifying the goal, objectives (outcomes), expected results (outputs), all related (human rights’) planned activities and planned means ( inputs) has not been made available during my stay in Nepal. However, the INSEC Human Rights Treaty monitoring project paper included the objectives, strategy, outputs, inputs and some indicators.

It would be an advantage for all organisations committed in projects dealing with human rights to produce such frameworks for the purpose of  close planning, steering and monitoring of strategic and operation plans. Moreover the project logical framework should include selected indicators, indicate the sources and the related assumptions.

The monitoring system could be divided into three phases: monitoring, reporting, planning and decision-making. The monitoring is needed for observation purposes ( systematic observation and collection of relevant data), but is a key issue for the interpretation and evaluation . Data should be processed for selection, analysis, interpretation and evaluation purposes.

The analysis and interpretation of the data in relation with some key issues should provide support for selecting appropriated objectives in the field of protection and promotion of rights. Proper data should be selected in order to identify the proper beneficiary target groups (Perpetrators and Victims) to whom either HR promotion or protection should be addressed.

One could raise key questions:

e.g. why, despite of all the programmes launched for protecting human rights, has the year 2002 been the darkest year from a human rights perspective ?

Who is/ are the main group(s) of the so-called “State agents”, and of the Maoists responsible for the main violations (killings) during that period ? Indeed, out of the main data from the Human Rights Yearbook 2003, this information is not made available.

What steps could be considered in order to stem the heavy violence toll among the women in the villages, either for the women left alone and beaten by the security forces, those killed while fighting in Maoist ranks, or those raped by security forces while detained ?

Is there an early warning system and early warning indicators allowing to foresee the dramatic situation which prevailed during the state of emergency ?

At which levels ( community-village, district, national) should the national and international community defending human rights focus in priority regarding the promotion or the protection of the rights ?

It is obvious that the first planning phase which should set the project goal and objectives comes after identifying the numerous causes of the problems and human rights violations.

2. A  proposed Pedagogy according to  the HR programme content

Democracy and Human Rights

Regarding the essential elements of democracy , it could be said that there is the same divergence between the declaration of the elements of democracy ( Art.1 – Commission on Human Rights resolution 2003/36) and the realisation of those elements, as the divergence between the Declaration of Rights and its realisation: the declaration enunciates elements which need to be guaranteed, but does not carry out this guarantee of rights. The recognition of the democratic elements precedes their implementation . It is this ideological aspect which prevails.

The understanding of such general and universal principles as “human rights” or “democracy” presumes for the village people a conscientisation 6 process, at the individual and village group level through intimate and deep-rooted positive values of the day-to-day life like religion or spirituality, dignity, freedom, trust, communication, solidarity, cooperation, association, expression of the will of the people, its recognition and representation,…

( The Chart of the Fundamental Rights of the European Union identifies six fundamental values: dignity, freedom, egality, solidarity, citizenship, justice)

Values perceived as being opposite ( “antidialogics”, according to Paulo Freire ) such as domination, oppression, conquest, divide and rule, manipulation should also be part of the process in order to awaken the critical consciousness.

6: Conscientisation: according to Paulo Freire, the term conscientisation refers to learning to perceive social, political and economic contradictions, and to take action against the oppressive elements of reality. (Pedagogyof the Oppressed – Paulo Freire)

It is through those “intimate fundamental” values, in fact through the ideology expressed by the universality of the human rights, that the expression of  human rights and democracy principles should become explicit, and thus awaken the consciousness of the people. This shows the need to design the programme content based on an appropriate pedagogy using those “intimate fundamental” values and ideology which should create awareness among the groups of people (beneficiary target groups) violating either human rights or democratic standards.

3. The People’s Agenda

In view to identify the causes of the conflict and its impact, INSEC launched a 4-month long programme in 187 VDCs of 47 districts, from the grassroots to the national levels, with the participation of the people directly affected by the conflict.

The main document of the “People’s Agenda for Sustainable Peace” 7 contains 4 elements: the causes, the effects ( positive and negative), the recommended remedies and key issues to be addressed for each of the civil, political, economic, social and cultural rights. The problems identified for each of the elements during this participatory approach are close to those experienced and expected, but unfortunately the methods used for this participatory consultation of the people is not at my disposal. The following is  not a comprehensive summary of all the People’s Agenda issues:

3.1. Some of the  key issues

Civil rights

The guarantee of the right to life comes first, the rule of law, the effectiveness of the judicial system, the basic rights of the people to be the prior agenda in the peace talks, to make the poeple free from fear, the status and whereabouts of the disappeared and abducted persons to be made public.

Political rights

The military force should be under the parliament. It is also indicated that in order to address the people’s fundamental and basic needs, a new constitutions should be enacted.

3.2. Some of the recommended remedies for sustainable peace

The “People’s Agenda” should be prioritized as the main agenda of the peace talks, a decision should be made in order to hold local and general elections, the role of the civil society, women and the pro-parliamentary parties should be guaranteed at the negotiating table, a fair …legal commission should be set up in order to investigate and monitor the human rights violations…, make the report public and bring the perpetrators to justice, the human rights agreement should be signed…, the code of conduct…followed

3.3. Some issues regarding the women

Women issues have been identified in the people’s agenda.

Concerning the violations of the political rights, the cause identified is the under representation of women and ethnic minorities in decision-making.

Concerning the violations of the economic rights, the cause identified is the perpetuation of unequal wage system between men and women, while for the social rights it is racial inequality, untouchability, sexual discrimination, exploitation against women and domestic violence.

7:“People’s Agenda for Sustainable Peace”*: Human rights journal Vol.16 N03, July 2003, Insec publications

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Section 6 – RECOMMENDATIONS  &  CONCLUSIONS

The people’s war is a logical outcome of many years of suffering under an autocratic regime with violation of fundamental and intangible rights, regime of castes and exploitation, neglect and discrimination of the poor and some ethnies, and the will to build a nation abolishing the ethnical characteristics and rights of the ethnies. True democracy and true political representation of the people are the main claims of the Maoists.

Violence of the security forces has influenced as a catalyser the growth of the Maoist movement. The State of Emergency has dramatically increased the human rights violations, mainly those related with the inherent right to life, torture and disappearances. Human costs in terms of innocent civilian lives was very high during the emergency and still is.

The conflict is highlighting counter-effects on women: increased vulnerability in the male-dominant society, increased responsibilities for some groups of women, greater consideration for the Maoist guerillas women’s rights, increased empowerment and  challenge of the Maoist women, but vulnerability again while becoming targets of the security force violence.

Evidently, the causes of the people’s war are numerous and find their roots in social, political and economical discriminations. To try solving those human developmental issues is a long-term programme while the perverse effects of the human rights violations  have to be dealt with urgently. After proposing some definitions (point 1), hereunder a  selected recommendation’s summary is presented (point 2) according to the UN Special Rapporteur and Amnesty International. These recommendations echo to the main human rights violations reported by the HR organisations and the victims, as well as the violations resumed in this study under Section 3. Under point 3 a core of solutions leading to peace dialogue is briefly presented, while point 4 refers to long-term issues.

1. Some definitions, “labels”, status

The wording “Maoist” is related to an ideology. In Nepal it also indicates a political dimension and affiliation to the CPN, a dissident branch which started guerilla fighting.

The status/definition of “fighter”( from the Army, militia or resistants), “belligerent”, “rebel”, “prisoner” should be detailed and approved by the parties in conflict; to ensure their identification, thus their protection and indirectly the protection of the civilians.

In order to avoid confusion, a proposition is, to distinguish between the term “Maoist” to be related with an ideology and politics, and “Maoist fighter”, a term which could be related to a member of the “People’s army”.

The wording “Maoist fighter” should thus by no means be used for designating unarmed civilians, Maoist activists, any civilians suspected to support ( or forced to support) the guerilla.

The indiscriminate wording “terrorist” should not be applied to the Maoists, rebel or popular resistance movements. It suggests no distinction between a terrorist, an armed “guerillas” or supporters activists.

Such wording used by the State, political factions, and even representatives of foreign countries should be considered, by the confusion it creates, as an incitement impairing the status of the civilian, the status of democratic reactionary movements, impairing the principle of fundamental freedom and self-determination, and thus also impairing and endangering the protection of the civilian population ( Art. 13 Geneva convention, Protocole II ).

Such incitements are similar to those used inciting racial aversion, and as such should be considered as a punishable offence under criminal law.

2. Recommendations related with Human Rights

2.1.According to the UN Special Rapporteur on extrajudicial, summary or arbitrary executions 1:

2.1.1.      Inherent Right to life

The Government must investigate every single incident of children 2 being killed and ensure that those found responsible are brought to justice. At the same time, it is asked to the CPN-Maoist leadership to immediately put to an end the practice of using children in its armed activities.

The UN Special Rapporteur also urges the government to refrain from using military force in countering armed opposition from the CPN-Maoist.

2.1.2. Extrajudicial executions and disappearances, impunity.

There is an urgent need to put in place strong, independent and credible mechanisms to investigate and prosecute alleged human rights abuses, including extrajudicial executions and disappearances, attributed to the police and other State agents.

Every alleged killing by the police must be promptly investigated by an independent body.

An independent commission or procedure should investigate past and present extrajudicial executions.

It should be put in place legal safeguards and mechanisms to prevent abuse of force and monitor the work of the police, including human rights training and training in the field of criminal investigation.

2.1.3. Judiciary

Aiming at strengthening the criminal justice system in Nepal, facilities to carry out post

mortems should be upgraded as a matter of urgency.

Members of the judiciary at all levels should receive support and training in order to raise their awareness of domestic and international human rights standards and to strengthen their integrity and independence as judges.

A judicial inquiry at the level of the Supreme Court should be set up to investigate current and past cases of disappearances.

Comment

There is no crime of perjury in Nepali law. This means that the courts cannot impose any sanctions on members of the security forces who lie to the courts during habeas corpus hearings. As legal measures, the government should then consider making “perjury” a criminal offence under Nepali law.

2.1.4. Death threats and other acts of violence

The UN Rapporteur urges the government to take urgent steps to ensure the security of the NGO members , lawyers, human rights workers, journalists who are becoming the targets of death threats.

1:UN Special Rapporteur on extrajudicial, summary or arbitrary executions: (E/CN.4/2001/9/Add.2, conclusions and recommendations, points 57-77)2: the protection of the inherent right to life (for all) is  not mentioned as such in the report, but might proceed from the general content of the recommendations preventing extrajudicial, summary or arbitrary  executions

2.2. According to Amnesty International 3

2.2.1. Official condemnation

The Government should publicly declare its opposition to human rights violations such as unlawful killings, including extrajudicial executions and disappearances and torture. Those found responsible will be brought to justice.

2.2.2.Effective investigation and independency

The government should ensure the independent and impartial investigation 4 by the  NHRC or a similar independent body of all allegations of serious human rights violations. Within the aim of strengthening the NHRC, it is also proposed to establish NHRC offices at the district or regional levels. It should also be established in Nepal an Office of the High Commissioner for Human Rights (OHCHR), and UNCHR should consider appointing a Special Rapporteur .

2.2.3.      Use of emergency powers

The government should consider introducing a constitutional amendment to remove the Article 23 of the list of constitutional clauses which may be suspended during a state of emergency.

2.2.4.      Legal measures and the Right to life

It concerns the introduction of a constitutional amendment guaranteeing the non-derogable right to life (it should then come as a top priority). Legal measures also concern the legal limitations on the use of force and firearms by the police and the post mortem procedures.

2.2.5.      Legal measures, Disappearances and Rights of the detainees

The government should draw up regulations to safeguard the rights of the detainees. This should include: to make public the places where the detainees are held and provide updated lists of the detainees, bring the detainees promptly before a judge. As legal measures, the government should then consider making “disappearance” a criminal offence under Nepali law.

2.2.6.   Legal Measures and Torture

The important safeguard  against torture would be the separation of authorities responsible for detention from those in charge of interrogation. As legal measures, the government should ensure the act of torture is a punishable offence under criminal law.

2.2.7.      Violence against women

This issue is not mentioned as such in the Amnesty International report. It concerns the (crime of) rape which has been  introduced in the report under “act of torture”. Only preventive measures against rape have been mentioned. An adequate punishment for non-adherence is also required. The preventive measures mentioned include: the arrest of women  is to be carried out by a female officer, they should be detained in the custody of female officers, female guards are to be present during interrogatory. It is not indicated if rape is a punishable offence under criminal law in Nepal. However some sources have mentioned that Maoist women have been raped while being detained (the crime of rape is punishable under Maoist regulations and protected by means of getting women justice through the people’s courts).

3:Amnesty International: April 2002 report, conclusions and recommendations.4-About the “independent and impartial investigation”, it is surprising that it is only mentioned the reference of NHRC, while NHRC has dependence links with the King and government representatives.
  1. 3.            Dialogue perspectives and the human rights as instruments in peace process.

The parties in conflict have shown various dialogue opportunities through rounds of discussion, as well as wishes to put an end to the conflict, or at least to agree on a cease-fire 5. The Gist of the CPN-Maoist proposal of April 2003 presented for consideration during talks is a good example.

The government and the Maoist representatives now have the possibility of reaching a solution to the present situation through the negotiation of human rights agreements.

Political and social tension and disagreements have divided the Government and the Maoists to such an extent, leading to a breakdown of their relations and a major armed conflict, that rampant violence and human rights violations have emerged in view of the national and international scene. Up to date, human rights seem thus to be the corner stone leading to dialogue perspectives and to become instrumental in a peace process. Hopefully it will lead to a political compromise. It is however evident that making propositions and designing strategies for a political compromise are professionnal tasks which should be carried out by groups of experts.

The UN Rapporteur also believes that despite current tensions and the occurrence of human rights violations, there is still room for people to pursue their interests or demands while continuing their struggle against injustice and abuse by non-violent means.

Clearly, the principle of a Code of Conduct, such as the one ratified by the parties in conflict, was indeed the first milestone.

3.1.  The Code of Conduct

A Code of Conduct should not only include general provisions as the present one but also much more compelling articles, the monitoring by an independent committee, and resorts to appropriate Courts. The respect of the intangible rights and provisions of Art.3 common to the Geneva conventions should be guaranteed. A total intransigence should be observed for the violations of  these articles ( Art. 13 Geneva convention, Protocole II ).

The parties will be committed to forbid practices such as torture, violence against women including rape, disappearance, extra-judicial executions and committed against impunity.

The status of the disappeared, people abducted, prisoners should be made public.

The practice of other cruel or human degrading treatments clearly forbidden.

A provision should indicate the treatment reserved for the prisoners and those wounded, and specify a minimum standard for detainment areas.

The protection of civilians should be a key issue to be dealt with. The spread of violent activities and fear among the rural or urban areas, attacks with no discrimination or making reprisals  in particular, should be forbidden:

Both parties should also agree to put an end to all terrorist acts which take civilian lives.

3.2.   Legal measures

At the same time as guaranteeing the provisions of the Code of Conduct, the government should consider studying, introducing and implementing new legal measures under criminal law. The government should consider making “torture”, “violence against women including rape”, “disappearance”,  “extra-judicial executions”, “perjury”, criminal offences under Nepali law.

5: cease-fire: the Maoist have however put an end to the cease-fire on 27 August 2003.

3.3.   The Human Rights Agreement

The Human Rights Agreement, such as the one presented by INSEC but not yet signed, should be the second milestone in the agenda. It should strengthen the provisions of the Code of Conduct. However, some social rights and political rights should be included and guaranteed in order to set a platform for political compromises. The existing Human Rights Agreement includes the right to liberty and security (Art. 9 ICCPR), right to fair trial and criminal justice (Art. 14 ICCPR). Are also included, the right of freedom of expression (Art. 19 ICCPR), freedom of movement and of organisations, freedom of association (Art.22 ICCPR). Should be added, the protection against discrimination on any ground.(Art. 26-27 ICCPR).

The Art. 25 of the ICCPR “ taking part in the conduct of the public affairs, to vote and to be elected  “, could be a platform for political compromises and  could then be considered as a key issue.

4. Human development issues

4.1.      Root problems and political solutions

According to INSEC 6, the essence of the Maoist conflict is a political one.

The long-term target of the Maoists is to establish a republical socialist political system, which means shifting the present multi-party capitalist democratic system into a communist political system. However, the Gist of the CPN-Maoist suggests some elements to be enshrined in a new constitution : “ State power has to be solely in the hands of people”, “ A broad participatory people’s parliament will be formed with representation from all classes, caste/ethnic groups,….”, “ The government will have proper representation of all groups”, “ Universally accepted democratic and civil rights such as multiparty competition, periodic elections,… have to be guaranteed”. There is no clear mention of a proposal for a multiparty parliamentary democracy. According to the Gist, the political agenda is summarized within the procedure of drawing up a new constitution and thus represents the expression of the people. The CPN-Maoist should then clearly be asked to state their commitment to a pluralistic system of political parties and organisations according to the UN democracy standards (resolution 2003/36, Interdependence between democracy and human rights).

The UN Special Rapporteur encourages the government to seek a political settlement of the situation and to pursue the path of dialogue with the CPN-Maoist.

In the field of technical cooperation, The UN Special Rapporteur encourages the government to continue setting up development programmes to address the specific political and socio-economic needs, in engaging and empowering ordinary people,… encouraging them to be more participative…

Development projects should focus on forming a network of women’s groups and bringing them into the mainstream of political activity at all levels, from grass-roots level to decision-making posts.

Up till now the western international cooperation  and donor community has mainly supported Nepal’s economic policies towards the right wing. Now western analysts call for support to left wing and it is also hoped that the political forces will adopt a leftward orientation.

4.2.      Root problems and social solutions

According to Hogger’s statement 7, “ The real problems are not the Maoists; the real problem is the disparity between the rich and the poor, linked with widespread corruption”.

6: INSEC Human rights journal Vol. 16 July 2003, conclusions (from Bishnu Raj Upreti, PhD in conflict management)7: Hogger’s statement ( Human rights journal Vol. 16 July 2003) Insec Publications

Once again the Gist of the CPN-Maoist suggests a social solution in setting a parliament formed with the representation of all classes, caste and ethnic groups, dalits, women, language and religion.

The UN Special Rapporteur hopes that the development of projects be geared towards addressing the violations of human rights aspects of development: the continuing use of bonded labour, the caste system and the marginalized position of women ruled by traditional values and customs.

4.3.      Democracy

Links between human rights and democracy are very close, but only human rights have to comply with compelling international agreements ( and fundamental rights to the Constitution of Nepal), no matter if the political system enshrines true democratic principles and true representation, or not. On principle, human rights are guaranteed and protected by international agreements, monitoring, reporting and judiciary systems. Democratic principles are protected by the Constitution’s provisions ( when so stipulated), but provisions ensuring a true democratic representation should be clearly indicated. The implementation of democratic principles and related issues should be monitored and reported yearly e.g. by Self-Governance departments at the regional and national levels. A close cooperation with a human rights committee in charge of monitoring the ICCPR would be useful. Operational plans for such implementation should be designed through a logical framework with clear aims, objectives and indicators. Such Democracy Governance indicators could then be a key for evaluating the risks, assumptions or opportunities which might undermine or facilitate the implementation of human rights.

The issues related to self-determination and autonomy as claimed by the Maoists are relevant, be it at the regional or local ethnic level, but are far beyond the scope of this study. As long as the minorities and ethnies are not recognised, not participative in the process of democracy, and their rights unprotected and not realised, there is no democracy.

“No solution is feasible or sustainable if it undermines the democratic system along with institutions of democratic governance”. “ The following should be consolidated: transparency and accountability of governance institutions, supremacy of law, multi-party system, constitutional monarchy, wider representation in the electoral process, devolution of power to grassroots, independence of the judiciary and anti-corruption mechanisms” “ No compromise should be allowed to prevail against these fundamental elements of democratic governance” 8

As long as the caste system, autocratic regime, land aristocracy and eccentric monarchy privileges prevail, there is no democracy.

Paving the way for a true democracy enshrining the claims of the people, would mean acceptance of the formulation of a new constitution or of a constituent assembly, if voted by a majority 9. But as a first step, the King should review his decision to suspend elections and thus a democratisation process. Secondly, the foreign powers like the United States should not interfere and provide military support to governments to fight against popular movements expressing their democratic, social and political claims.

8: Dynamics of continuing conflict in Nepal: A Geo-Political perspective – Yubaraj Sangroula – Conflict resolution and Governance in Nepal. Nepal Foundation for Advanced Studies (NEFAS) in Cooperation with Friedrich-Ebert-Stiftung (FES), Nepal- August 2003.9: According to the Gist of the CPN- Maoist proposal, the minimum substance of the new constitution  should stipulate: “all provisions of the constitution will be amendable thorugh either a two-third majority of parliament or a referendum”

4.4.      Democracy and Gender discrimination

Political representation of women and access to positions of power is quite low while the women form 50% of the total population. It is surprising that specific provisions have been made in the constitution for only a 5 percent representation of women in the elections to the House of Representatives and the Upper House. Women’s representation at high levels of decision-making in the government bureaucracy is not more than 4 percent. Women’s representation at the VDC’s level, as  chairpersons or vice chairpersons is less than 0.5 percent. Women clearly need supportive measures and affirmative action in all sectors: legal, social, political, economic and constitutional.

The conflict has highlighted the women’s vulnerability in the male-dominant society. The government and the civic society should steadily draw the inferences as to why the women embrace the Maoist ideology: already discriminated by the society, women now try to escape from a family dislocation due to abandon, and violence from the security forces. More than affirmative action, a positive democratic discrimination should be considered in order to counterbalance the presence of women in all sectors according to the levels and needs expressed by them.

4.5.      Conflict settlement- human rights approach, and conflict resolution

Its worth mentioning some issues for conflict settlement/resolution in this study, thirteen years after the signing of a new constitution (1991), after the end of the last cease-fire  ( August 27th.  2003), implementation difficulties of the Code of Conduct and failure of negotiating the Human Rights Agreement.

According to Reimann Cordula 10 , conflict settlement refers to all outcome-oriented strategies for putting an end to “direct violence”. Thus conflict settlement  also has an “intangible human rights approach” as long as it aims to significantly reduce the destructive violent effects on the people’s life and protect violations of the right to life. But “conflict settlement” does not necessarily address the underlying conflict causes, while “conflict resolution”refers to all process-oriented activities that aim to address the underlying causes of the violence.

The involvement of a Third Party in conflict settlement and conflict resolution requires a careful approach but should be considered while rounds of dialogue between the two parties in conflict are abandonned and no solution identified to put an end to the conflict. A Third Party should not have interests or influence in Nepal ( e.g. India, China, USA). It is known that the Maoist rebels might even reject the involvement of the UN due to a possible interference from the USA and capitalist-colonialist influences. The dimensions to be considered for conflict resolution are numerous. As above mentioned, political and social tension have divided the Government and the Maoists and led to a breakdown of their relations and a major armed conflict. Social and political systems as well as cultural, ethnic and religious values are interconnected. Thus the sustainability of any solution for conflict resolution has to be deeply rooted in the causes of the conflict. The “carrot and stick” approach used by some third parties will only postpone the resolution of problems. However, during times of severe crisis such as during the State of Emergency distinguished by a significant increase of violations against the right to life, such a temporary approach for conflict settlement might be appropriate.

The need to call in the humanitarian right to ingerence might also facilitate conflict management and thus the violence settlement: right to provide a humanitarian aid to the victims of conflict with the consent of the State, as well as the creation of humanitarian corridors.

10: Reimann Cordula, Towards conflict transformation. Assessing the State-of-the-Art in Conflict Management-Reflections from a Theoritical Perspective, Berghof Handbook for Conflict Transformation, 2001, Berlin

Some approaches for conflict resolution are proposed  :

–          Johan Galtung 11 : removing structural injustices and cultural violence will promote the change of conflict behaviours with a peaceful approach . Human empathy, solidarity and community should be developed in order to transform the oppression and exploitation. There is  here a Buddhist and Gandhian philosophy. However we find here similar principles as those presented by Paulo Freire ( conscientisation with dialogics and anti-dialogics).

–          Clements 12 and the UN: a three steps approach pertaining to some organs of the UN; an interest-based approach related with the good offices of the Secretary General, a rights-based approach related with the judicial functions of the International Court of Justice, and a power-based approach related with the Security Council.

–          Herbert C.Kelman 13:  developed the problem-solving approach which needs the mutual involvement of the two parties, and the key solution implies “the need to penetrate each other’s perspective and to engage in joint problem-solving to produce ideas…”

–          Adam Curle’s approach 14: is based on human development as he concludes that conflicts are the processes of social change. There are four assumptions; building, maintaining and improving communication between the parties – providing information to them – befriending the conflicting parties – encouraging active mediation

–          “Right to Peace” Approach: In the UN Declaration on the Right of Peoples to Peace 15, the General Assembly, “recognizes that the maintenance of a peaceful life for peoples is the sacred duty of each State”. The same General Assembly “appeals to all States and international organizations to do their utmost to assist in implementing the right of peoples to peace through the adoption of appropriate measures at both the national and international level”.

However, the General Assembly also “emphasizes…the exercise of the rights of peoples to peace demands… the renunciation of the use of force in international relations 16,… and the settlement of international 17disputes by peaceful means on the basis of the Charter of the United Nations;”.

Such Declarations on the Right of Peoples to Peace are however considered as incantatory claims and wishes 18 – which seem legitimate – and belong to the rights of the “third generation”. As a matter of fact, Right to Peace, as a (Pseudo-)Solidarity Right disrupts the concept of “positive rights” and individual rights.

11:  Galtung Johan, Peace by Peaceful Means, 1996, Oslo, Prio12:  Clements Kevin, Peace Building and Conflict Transformation, Peace and Conflcit Studies, 1997, Vol.4 No1 July.13: Kelman Herbert C., Mediation in International relations, Encyclopedia of Violence, Jacob and Jeffery Rubin, New York, 1992, St. Martin Press14: Curle Adam, Another way: Positive Response to Contemporary Violence, 1995, Oxford: Stanford University Press.

15: Approved by the General Assembly resolution 39/11 of 12 November 1984

16: international relations… and national (?) conflicts

17: international … and national (?) disputes

18: Rights to Peace, as “ pseudo-rights of solidarity have no subject, no object, no  debtor.” Solidarity Rights, Sudre Frederic – Droit international et européen des droits de l’homme- Presses Universitaires de France, 5ème.édition.- 2001

Main abbreviations used: Introduction and Section 1

CAT                       Convention against Torture

CEDAW                Convention on Elimination of All Forms of   Discrimination against Women

CERD                    Convention on Elimination of All Forms of Racial  Discrimination

CHRHL                                Centre for Human Rights and Humanitarian Law

CPN                       Communist Party of Nepal

CRC                      Convention on the Rights of the Child

HR                         Human Rights

ICCPR                  International Covenant on Civil and Political Rights

ICESCR                               International Covenant on Economic, Social and Cultural Rights

ICRC                     International Committee of the Red Cross

INSEC                   Informal Sector Service Centre

PM                         Prime Minister

UML                      United Marxist and Leninist

UPFN                     United People’s Front Nepal

Main abbreviations: Section 2

GDP                       Gross Domestic Product

HDI                       Human Development Index

IMF                       International Monetory Fund

PCP                        Partido Comunista Peruano

UNPM                   United National People’s Movement

UPFN                     United Peoples’ Front Nepal

Main abbreviations: Section 3

CWIN                    Child Workers in Nepal Concerned Centre

GRD                      Gender-related development (Index)

INGO                     International Non Governmental Organisation

TADA                    The Terrorist and Disruptive Activities Act  ( Control and Punishment)

TADO                    The Terrorist and Disruptive Activities Ordinance

VDC                      Village Development Committee

Main abbreviations: Section 4 & 5

HRTMC               Human Rights Treaty Monitoring Centre

HRTMCC            Human Rights Treaty Monitoring Coordination Committee

NHRC                   National Human Rights Commission

OHCHR                               High Commissioner for Human Rights

TUCHR                Tribhuvan University Centre for Human Rights

UNCHR                                United Nations Commitee for Human Rights

UNDP                    United Nations Development Programme

REFERENCES

Amnesty International-  Nepal – A deepening human rights crisis – December 2002.

Bhandar Santoshi Pustak -The Constitution of the Kingdom of Nepal 2047 (1990) With Review – English version.

Bhattacham B. Krishna- Sociological Perspectives on Internal Conflict Resolution/Management in Nepal – Conflict Resolution & Governance in Nepal – Ed.Ananda P. Srestha, Hari Uprety – Nepal Foundation for Advanced Studies (NEFAS) in Cooperation with Friedrich-Ebert-Stiftung (FES), Nepal- August 2003.

Dahal Dev Raj- Conflict Resolution- A note on some contending approaches- Conflict Resolution & Governance in Nepal – Ed.Ananda P. Srestha, Hari Uprety – Nepal Foundation for Advanced Studies (NEFAS) in Cooperation with Friedrich-Ebert-Stiftung (FES), Nepal- August 2003.

Freire Paulo -Pegagogy of the Oppressed –Penguin Books – 1972

Gautam Shobha, Banskota Amrita, Manchanda Rita – Women in the Maoist Insurgency in Nepal – Understanding the Maoist Movement of Nepal – Deepak Thapa Editor – Chautari Books Series 2003.

INSEC – Informal Sector Service Centre  -Human Rights Yearbook 2003- Nepal- Kathmandu

INSEC -Compilation of UN Conventions, Resolutions and Declarations –  Kathmandu – 2003.

INSEC- Informal, Human rights journal, Code of Conduct -Vol.15 No2, Insec Publications, April 2003

INSEC- Informal, Human rights journal, Vol.16 No3, Insec Publications, July 2003

Nickson R. Andrew – Democratisation and the Growth of Communism in Nepal: A Peruvian Scenario in the Making ? – Understanding the Maoist Movement of Nepal – Deepak Thapa Editor – Chautari Books Series 2003.

Ramirez Philippe -La guerre populaire au Népal: d’où viennent les Maoistes ? – Hérodote – Géopolitique en montagnes, No 107 – Octobre 2002.

Sangroula Yubaraj – Dynamics of Continuing Conflict in Nepal: A Geo-political Perspective- Conflict Resolution & Governance in Nepal – Ed.Ananda P. Srestha, Hari Uprety – Nepal Foundation for Advanced Studies (NEFAS) in Cooperation with Friedrich-Ebert-Stiftung (FES), Nepal- August 2003.

Shrestha D.B., Singh C.B.-Ethnic groups of Nepal and their ways of living –Mandala Book Point – 1992

Sudre Frederic – Droit international et européen des droits de l’homme- Presses Universitaires de France, 5ème.édition.- 2001

Thapa Deepak, with Bandita Sijapati – A Kingdom under Siege – Nepal’s Maoist Insurgency, 1996 to 2003 – The Printhouse 2 003

Après le terrorisme de la « Fazione »,  celui  du Jihad Islamique.  A quand les incursions de Tsahal ?

Résumé : L’Opus in Septem au Sinaï fait face à une nouvelle réalité, celle de l’insécurité, des sabotages, d’actes terroristes dans le Sinaï et de nouvelles tensions entre l’Egypte et Israël.

 Mots clefs : Sinaï, guerre du gaz (et de l’eau), terrorisme, Egypte, pierrefasseaux

 

LA SITUATION A CE JOUR DANS LA REGION du SINAÏ

Vers un risque de confrontation avec Tsahal ? Faux, vrais terroristes ou  vrais révolutionnaires ?

Dans cette zone éloignée et montagneuse du nord-est, y compris de la péninsule, existe un trafic d’armes et des attentats ont été perpétrés. Depuis début 2012, des enlèvements de touristes par des Bédouins ont été signalés, mais ils ont été libérés peu après. Il semblerait que les Bédouins de la région subissaient des contraintes de la part de l’ex-gouvernement. Les stations touristiques balnéaires côtières seraient épargnées de même que certains sites touristiques et cultuels dans la péninsule. En principe, la sécurité est moins garantie dans les régions éloignées et moins denses, de même que celles en bordure des frontières, en particulier celle de Gaza et d’Israël

Dans le cadre de l’enquête qui a suivi les attaques terroristes près de d’Eilat en août 2011, Tsahal a mené des interrogatoires. Ils auraient révélé que la branche palestinienne de l’organisation du Jihad islamique a établi une branche d’Al-Qaida dans le Sinaï. Une base d’entraînement aurait été récemment mise en place en début d’année par des terroristes dans la région d’El-Arish, dernier bastion égyptien au nord-est avant la frontière de Gaza. Depuis l’été dernier, une formation « militaire » y serait dispensée sur  place. Tsahal mentionnerait le chiffre de 2000 volontaires qui s’y seraient rendus pour y être formés. Pour faire face à ces menaces, de nouvelles mesures ont été prises par Israël et Tsahal afin de continuer à garantir la sécurité des habitants de la région.

Egypte-Israël, de l’eau dans le gaz[1] ou du gaz contre de l’eau ?

Après les sabotages réguliers du gazoduc entre l’Egypte et Israël, le gouvernement égyptien a annulé le contrat d’approvisionnement en gaz. Il envisage pour le moins une surenchère, et pour le plus, l’avenir le dira… Ce contrat aurait été convenu dans le cadre de l’accord de paix conclu entre les deux pays en 1979 à Camp David. Ce contrat fut naturellement dénoncé par l’opposition islamiste, mais le départ de Moubarak, la mise en place d’un nouveau gouvernement non sujet aux puissances capitalistes et amies d’Israël,  l’arrivée inéluctable des formations islamistes en tête dans les récentes législatives ont modifié le paysage commercial. Mais surtout, surtout, il y a une nouvelle expression démocratique qui leur permet enfin de s’exprimer librement et de clamer leur vision de la justice.  Ceci alors que le voisin pauvre, les Territoires Palestiniens ne bénéficient pas de cet apport d’énergie mais subissent de plus des détournements des apports d’eau par les Israéliens, expulsions de leurs propres terres, etc. A défaut d’un apport direct de gaz aux Territoires Palestiniens, faire pression sur Israël pour restituer  l’eau détournée aux Palestiniens serait un pas dans la bonne direction.

À Jérusalem, le ministre israélien des Affaires étrangères, Avigdor Lieberman, aurait minimisé les effets de l’annulation du contrat, prétextant qu’il s’agissait d’un simple « différend commercial » sans conséquence sur les relations bilatérales. Mais en même temps, le JSS News[2] du 25 avril rapporte que le quotidien israélien « Ma’ariv » rapporte dans son édition du 22 avril que le Ministre des Affaires Etrangères, Avigdor Lieberman, aurait envoyé un message urgent au Premier Ministre Benjamin Netanyahu. Il y fait part de ses vives préoccupations au sujet des récents développements à la frontière égyptienne et indique une priorité par rapport à la menace iranienne. Lieberman aurait ainsi demandé au Premier Ministre un renfort militaire pour « se préparer aux changements politiques en Egypte », alors que l’Egypte a elle-même augmenté sa présence armée pour améliorer la sécurité et combattre les groupes de terroristes, dit-on… Vrai prétexte pour de futures incursions en territoire Egyptien pour combattre de faux, vrais terroristes ou  de vrais révolutionnaires ? Espérons quand même que le Sinaï et le nord-est de l’Egypte ne devienne pas un no man’s land contrôlé par de nouvelles milices terroristes et Al-Qaida.

 

Auteur : Pierre Fasseaux

Références : toutes réf. sur Google: pierrefasseaux, LOpus in Septem, www.communique-web.info/4421/la-paix-et-puis-la-guerre-au-sinai/

Bibliographie : Le point.fr/ DFAE/JSS/Contient des références par des notes de bas de page.