Justiceformaina blog

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7th anniversary of Maina’s killing

National and international human rights organizations came together to mark the 7th anniversary of the torture, disappearance and killing of Maina Sunuwar. Among the statements and activities were:

1. A joint statement by Advocacy Forum (AF), Amnesty International (AI), Human Rights Watch (HRW) and the International Commission of Jurists (ICJ) calling on the Nepal government to make sure the criminal proceedings in the case move forward, with the full cooperation of the Nepal Army. For the full text of the statement, see:

http://www.hrw.org/en/news/2011/02/16/nepal-seventh-anniversary-killing-maina-sunuwar

2. Devi Sunuwar, Maina’s mother, wrote a passionate appeal to the Commander of the Armed Services, General Chhatraman Gurung. To write the letter in full, see:

http://www.advocacyforum.org/news/2011/02/maina-mother-urges-army-chief.php

3. Tej Thapa, the Nepal researcher at Human Rights Watch wrote an opinion piece in the Kathmandu Post exposing the hypocrisy of the Nepal government  at the recent Universal Periodic Review at the Human Rights Council in Geneva where it expressed commitment to ending impunity and asserted that the Nepal Army has a “zero-tolerance policy against all kinds of human rights abuses” and is a “disciplined” institution.

As Thapa stated: “But when will the government end its excuses and actually take action against abusers? Perhaps it can start with Maina Sunuwar. This week marks the seventh anniversary of Maina’s brutal killing in Army custody. Maina’s case has long been held out to the government as an emblematic case over which it could, should it wished, take action to show that it is serious about justice for victims.” To read the full opinion piece, see:

http://www.ekantipur.com/the-kathmandu-post/2011/02/16/oped/human-rights-fantasy-in-geneva/218520.html

If you want to take action, you can find suggestions on this blog on how you can do that.

4. For one month, two billboards have been erected in Kathmandu (at Maitighar and along New Baneshwor Road) by Advocacy Forum, Amnesty International, COCAP, HRW, FOHRID, ICJ and INSEC calling for the prosecution of perpetrators in conflict-related human rights abuses. One of them features Devi Sunuwar  and the other Purnimaya Lama (wife of Arjun Lama – allegedly killed by the CPN-Maoist).  The text in Nepali reads:

The armed conflict is over But her fight continues

Peace through Justice. Prosecutions Now.

The fight for justice for Maina continues!

Latest news….

H.E. Mr. Andrew Hall the Ambassador of the UK to Nepal has broken new ground in a speech which criticised the culture of impunity in Nepal. In the speech, which specifically mentioned Maina Sunuwar, he said:

While this obstruction [preventing those charged with human rights abuses from standing trial] continues, it will inevitably have an impact on our ability to conduct the normal relationship which we would like to enjoy.

Reports of the speech can be found at Myrepublica.com and the Kathmandu Post online

New report

Advocacy Forum have just released a major new report into the killing of Maina Sunuwar (click the picture to go straight to the AF site- the report is available in both Nepali and English):

6th Anniversary Events

The 6th anniversary of the torture and murder of Maina has received widespread coverage.

Here is the UK Embassy in Nepal’s response: http://ukinnepal.fco.gov.uk/en/news/?view=PressR&id=21763282

The UN-OHCHR have also issued press releases in English and Nepali.

Amnesty International have also published information on this case: http://www.amnesty.org/en/news-and-updates/nepal-authorities-must-provide-justice-over-torture-and-murder-15-year-old-girl-

Meenakshi Ganguly of Human Rights Watch has also published this op-ed on the Maina Sunuwar case: http://www.opendemocracy.net/meenakshi-ganguly/nepal-torture-vs-democracy

6 years of impunity

Today marks the 6th anniversary of the torture and murder of Maina Sunuwar.

This site is being launched today in the hope that the information which we have published will help to bring her killers to justice. Today of all days the message should repeated: those who murder, torture and imprison should not be allowed to escape justice.

Spread that message: tell everyone you know about this case and take action.

This press release has just been issued by the Nepali human rights organisation Advocacy Forum it sets out all the latest developments in the case.

Maina Sunuwar 1989 – February 17th 2004

The ongoing battle

A few months ago it was reported in the Kathmandu Post that:

KATHMANDU, DEC 21 – Defence Minister Bidhya Bhandari has come out strongly in defence of Maj. Niranjan Basnet, the Nepal Army official accused of murdering Kavre-based teenager Maina Sunuwar in 2004. The United Nations Peace Keeping Mission in Chad deported Maj. Basnet two weeks ago after it discovered the serious nature of the allegation.

The UN and human rights groups want Maj. Basnet  prosecuted in a civilian court. The Army insists he has received clean chit from a Military Court of Inquiry and he can’t be tried again for the same case.

Bhandari told Maj. Basnet’s relatives on Monday “there would be no injustice” to him from the government. Basnet’s kin asked Bhandari “to defend him as he had already been acquitted” by a Military Court of Inquiry in September 2005.

Maj. Basnet has an arrest warrant in his name from Kavre District Court for his alleged involvement in Sunuwar’s murder and suspension from service. He is currently in the custody of the military police at the Army Headquarters in Kathmandu.

“The government is aware that Major Basnet has received a clean chit in the case. He followed orders of the government and his institution according to the exis-ting Terrorist and Disruptive Activities (Control and Punishment) Act,” the defence minister’s Press Adviser Subash Devokta quoted Bhandari as telling Basnet’s relatives. “You need not worry about his future.”

Following repatriation, Prime Minister Madhav Kumar Nepal had directed the Army to immediately produce Basnet before a civilian court.

The Police Headquarters on Dec. 13 sent a letter to the Army demanding that he be handed over. The Army said it would decide only after it looked into reasons behind his repatriation.

On Monday, the Army constituted a three-member Military Court of Inquiry under the chairmanship of Brig. Gen. Pradeep Bahadur Singh to look into the repatriation.

“The inquiry body was formed to investigate causes behind Basnet ‘s repatriation while he was in the middle of a mission despite his acquittal by the military court in Nepal,” said Army Spokesman Brig. Ramindra Chhetri. He said “further action” on Basnet would be based on the findings of the Court of Inquiry, which

will start its work from Tuesday.

The Army says the Court of Inquiry found Army personnel Boby Khatri, Amrit Pun and Sunil Adhikari guilty in the murder of Sunuwar. Basnet, however, was found to be innocent as he had only, according

to the Court of Inquiry, arrested and handed over Sunuwar to Panchkhal barracks. “He, the enquiry concluded, was only following the commanding officer’s order,” said Spokesman Chhetri.

A few observations:

1) The military court of inquiry referred to is the same one which eventually commenced charges against three of the perpetrators of the attack. Their eventual sentence was six months imprisonment for negligence in the carrying out of orders. In other words it didn’t even recognise that an unlawful killing had taken place- it merely felt that Maina’s death was a result of negligent behaviour. On any reading of the facts Maina Sunuwar was tortured- to relegate torture to negligence is a grotesque parody of law.

2)I note that the Defence Minister points to the fact that he was only following orders. This line of defence is one which first advance at Nuremburg and has never suceeded in terms of crimes against humanity. For the Minister to be using this excuse is deeply disappointing.

3) The minister should take note- the Kavre District Court have issued a warrant against Major Basnet. In those circumstances proceedings are continuing against him. I do not comment (or presume to bore you)  on Nepali sub-judice rules or any of the legalities of the Minister’s decision. I do state that the Minister is quite wrong to interfere with the courts. This is a blatant attempt to invade the jurisdiction of the District Court by a member of the executive. It is profoundly unhealthy and unhelpful.

4) It is disappointing that this shows fault lines in the government on this most important issue. Such fault lines must be avoided- as soon as they provide a hiding place for those who torture they are a source of impunity. Such impunity will damage Nepal.

The civil court proceedings and the repatriation of Maj. Basnet

In November 2005, the family of Maina Sunuwar filed an FIR (a report of the crime) naming four NA personnel as responsible for her death: Colonel Babi Katri, Major Niranjan Basnet, Captain Sunil Prasad Adhikari and Captain Amit Pun. Although initially reluctant to register the FIR , the Nepal Police finally did so on 13 November 2005.

In due course this investigation led to the District Prosecutor of Kavre District requesting the Nepal Army to grant access to the accused. The Army has consistently refused to co-operate with the police.

As the OHCHR Report found:

The Nepal Army appears to partly blame Maina Sunuwar for her own death, stating that she did not die as a result of torture but “due to the wrong process and techniques adopted out of carelessness, whims and senselessness and her own mental weakness.” The NA reiterated [this position] in a 19 June 2006 letter sent in response to an 11 June 2006 letter from the DPO Kavre requesting access to the four officers.

These complaints have given rise to a number of court orders. The Courts have repeatedly attempted to arrest and detain a number of the officers involved particularly  Major Niranjan Basnet who has never been charged in any criminal proceedings including the Court Martial.

This is the Court order of September 2007. It says:

The issue of crime committed by responsible officers of [the then Royal] Nepal Army is itself a sensitive issue, thereby requiring prompt investigation in a responsible and effective way. The 9th page of 2062.5.23 (September 8, 2005) verdict by Court Martial, as received from Nepal Army, clearly stated that Maina Sunuwar died due to the application of wrong method and technology derived out of negligence, whim, and irrationality during investigation, and also killing is a crime which requires an effective investigation, regardless of which officials committed the crime, so as to decide whether the death occurred as a result of criminal activities and to decide whether it demands filing case or not. So, case must have been field as per State Cases Act, 2049

These proceedings were never adequately answered by the Army. That resulted in the issue of this sub-poena.

Finally the Court recently issue the following suspension order. Requiring the suspension of Major Niranjan Basnet.

The court also issued an arrest warrant against Major Basnet available here: original warrants in Nepali

These order contributed to the re-repatriation of Major Basnet in December of last year. By a cruel twist of irony he had been appointed as a UN peacekeeper in Chad and the International and National Campaign focused on repatriating him to Nepal.

The UN eventually complied with that request but the Army swiftly took him into custody and have refused to release him into the jurisdiction of the courts.

As of today the Army are still refusing to surrender Major Basnet.

A report by the UN OHCHR

In response to these events the United Nations Office of the High Commissioner for Human Rights (‘OHCHR’) issued this report.

The report pointedly conludes:

OHCHR maintains that justice has not been done in this case. It believes that police should carry out a full investigation into the alleged torture and death of Maina Sunuwar, with collaboration from the NA, and that the officers and soldiers alleged to be responsible should be brought before an independent civilian court.

They also highlighted the ‘lack of political will’ to investigate the circumstances of Maina’s death, and the ‘obstruction’ which the UN had encountered from the Nepal Army when trying to investigate the true facts.

The original documents

The Army has attempted to suppress the  Court of Inquiry report. This is an English version, the original Nepali is available here.

It was this report which contained the first official acknowledgment of the torture which Maina suffered. To quote:

11. It is found that soldiers Dil Bahadur and Shrikrishna Thapa brought cold water in a large pot that had been hanging on a nail after, according to the order of Colonel Babi Khatri, it was said that there should be submersion in water, and after it had been ordered by Captain Sunil and Captain Amit for the soldiers who were there to bring water in a large pot. It is found that, after that, Captain Sunil and Captain Amit gave the order saying that she won’t be convinced just like that, make her convinced by soaking her in water; soldier Shrikrishna Thapa, in grabbing Maina Sunar by the neck, started submerging her in the water that was in the pot. It is found that after getting the order that submersion should be for about 1 minute before removal; Shrikrishna did submersion and removal 6 or 7 times. It came to be understood that in doing this, all of the clothes that the girl was wearing became soaked and she coughed and sneezed with the water in her nose.
12. It has become clear the fact that Major Niranjan Basnet who had gone and returned with the covert team was there only during the beginning of the questioning and, in the time after the girl had been submerged in water once, after telling Colonel Babi Khatri, he went to sleep.
13. It is found that after not being able to force a confession about anything despite submerging and removing Maina Sunar in the water, and Colonel Babi Khatri having given the order that now she will be convinced by being administered electrical current; according to the orders given by Captain Sunil and Captain Amit, soldier Shrikrishna Thapa, taking and fixing the line from the hot water heater, said “On what part of her body shall I administer?;” having gotten the order that it should be administered on the soles of the feet and on the hands, on Maina Sunar’s wet feet and wrists, an electrical current was administered. It is found that after the captains having said, even now she isn’t convinced, convince by administering more, soldier Shrikrishna administered the electrical current up to 4 or 5 times to Maina Sunar.

The report concluded, in surprisingly low-key terms:

It doesn’t appear necessary to doubt that Maina Sunar’s death had indeed come from torture given in the process of questioning. It has been revealed from the testimony that her death came to be destined, in an unfortunate way, while giving severe torture in the act of making the arrested girl confess the truth. It does not
appear that the situation is such that the torture given to one unarmed, defenseless girl is appropriate.

Similarly this is  the original court martial judgment in Nepali.

This is the English version of that judgment.

Against the background of the Court of Inquiry report the conclusion of the Court Martial was extraordinary: rather than convicting the soldiers concerned as torturers they concluded that the soliders:

Did not use wisdom and conscience during interrogation while there were other alternatives.

Finally, this is the Army Act 2006 in English (which the soldiers were held to have broken), and this the Nepali version of that Act