Tactics and tools for the protection
of Human Rights Defenders

Maina Sunuwar: Separating Fact from Fiction

Victim leaders Janak Raut, Chairman of CVSJ-Nepal, and Ram Kumar Bhandari released a comprehensive report on some overarching facts and legal questions related to the case 15-year old Maina Sunuwar, who was tortured to death by the then Royal Nepal Army officials back in 2004. 

The book "Maina Sunuwar: Separating Fact From Fiction" , published by Advocacy Forum, was released amidst a program organized by a group of national and international human rights organizations to mark the sixth anniversary of the arrest and death of Maina Sunuwar.

Why Maina Sunuwar? Why does this murder occupy the foreground of human rights debate in Nepal? What about other incidents of human rights violations that occurred during the decade-long conflict?

These are just some of the questions regarding the case of 15-year-old Maina Sunuwar, who was tortured and killed by members of the army on February 17, 2004. These questions took center stage in Nepal in late 2009, when Major Niranjan Basnet, one of the alleged perpetrators, was repatriated from the United Nations (UN) Peacekeeping Mission in Chad.

Maina Sunuwar’s name has indeed become well-known, but sadly, it has also become synonymous with impunity. The fight for justice in Maina’s case began on the day that she ‘disappeared’ in 2004, and justice has been thwarted at each step since then. Following the April 2006 end of the 10-year-long armed conflict that killed more than 16,000 people, injured and displaced tens of thousands; after the Comprehensive Peace Accord of November, the same year; then again with the end of monarchy and the successful election of a Constituent Assembly in April 2008; at each of these historic moments there was hope that there would be a new beginning which would embody all the principles of liberty and justice long denied to the Nepali people. Yet, what has happened is a conspiracy of silence, ensuring that those who committed crimes in the name of national security or revolutionary change remain protected and beyond the reach of the law.

Maina’s case is ‘emblematic’ of this failed promise. First, the army tried to cover up that they had disappeared, illegally detained, tortured and killed a young girl. They then falsely claimed that she was shot whilst trying to escape from the control of the army custody. It was only following intense national and international pressure that they initiated an internal inquiry in March 2005 and eventually recommended that three soldiers — Colonel Bobby Khatri, Captain Sunil Prasad Adhikari and Captain Amit Pun — be brought before a Court Martial. The court gave its decision on September 8, 2005, finding the three military officers guilty only of using wrong interrogation techniques and of not following proper proceedings in the disposal of the dead body. The Court of Inquiry Board report implicated then Captain Niranjan Basnet but did not recommend that he be brought before a Court Martial. It is unclear from an unofficial (and possibly partial) copy of the report obtained by Advocacy Forum on what basis the Court of Inquiry Board decided not to recommend him for prosecution.

Shockingly, no one was convicted by the Court Martial for the disappearance, torture and killing of Maina Sunuwar. The death by prolonged torture was described as ‘accidental,’ and put down to ‘carelessness,’ and a failure to follow procedures. Maina was blamed for her “physical weakness” in not being able to withstand the simulated drowning and electrocution acknowledged by the Court Martial. Based on this legal representation of the facts, the three accused were convicted of procedural offences and sentenced to six months’ imprisonment, temporary suspensions of promotions and a paltry monetary fine as compensation to Maina’s family. The guilty officers did not actually have to serve the prison term because the court held that they had spent their time in confinement during the proceedings of the Court Martial.

The Nepal Army (NA) has repeatedly claimed that its own internal military proceedings ensure the protection of human rights. Since military court proceedings are not open to the public, it was always in doubt whether they were in line with international standards. In spite of the lack of transparency regarding the proceedings, the Maina Sunuwar case has served to expose the failures of the military court.

The civilian justice system too, has been slow to deliver justice. Outraged by the military court’s findings, in November 2005 Devi Sunuwar lodged a complaint with the DPO, Kavre against four alleged perpetrators. In addition to the three soldiers sentenced by the military court, she also named Captain Niranjan Basnet. Under pressure from the Office of the High Commissioner for Human Rights in Nepal (OHCHR-Nepal), and after Devi, with legal support from Advocacy Forum, had lodged a writ at the Supreme Court in January 2007, the DPO, Kavre proceeded with sending dozens of letters to senior police authorities, public prosecutors’ offices at regional and national level and to the NA. However, feeling intimidated by the NA and unsupported by the political leadership of the country, the police did not exercise its powers to question, arrest, detain and/or charge the suspects.

In March 2007, Maina’s body, which had been illegally buried at the Panchkhal army camp, was exhumed. On May 8, 2007, the Supreme Court ordered that the NA Headquarters produce the original file concerning the Court Martial within a week. On June 11, 2007, the army headquarters merely presented a copy of the Court Martial judgment marking it as “strictly confidential”. The Court of Inquiry Board report nor any of the other 33 documents considered by the Court Martial were provided.

After much pressure and a ruling by the Supreme Court in September 2007 clearly stating that the case should be dealt with in a civilian court, on January 31, 2008, the Kavre Public Prosecutor finally filed murder charges in the Kavre District Court against the four army officers. The court also issued summons for the arrest of the four accused. However, none of them were arrested. Instead, Niranjan Basnet (the only one of the four accused still serving, who had since been promoted from Captain to Major), was deployed by the NA with the United Nations (UN) Peacekeeping Mission in Chad. On September 13, 2009, the District Court ordered NA Headquarters to immediately proceed with the automatic suspension of Major Basnet and for Army Headquarters to submit all the files containing the statements of the people interviewed by the Court of Inquiry.

In December 2009 it became publically known that Major Basnet had been deployed within the UN Peace Keeping Mission in Chad, leading to his repatriation to Nepal by the UN on December 12, 2009. He was immediately taken under control of the NA upon arrival in the country and as of February 12, 2010, has yet to be handed over to police, despite orders from the Prime Minister to do so. On January 13, 2010, the Secretary General of the United Nations, Ban Ki-moon urged the NA to comply urgently with the September 2009 court order and suspend Major Basnet. The National Human Rights Commission of Nepal also urged the NA to hand over Major Basnet.

These are the reasons why Maina Sunuwar’s case is “emblematic”. She is no longer just a girl tortured to death by army personnel. In the past six years, she has come to represent the widespread injustice and failure of accountability in Nepal, and her case has exposed a deeply-entrenched impunity providing compelling evidence of the political impotence which has thus far failed to address injustice in Nepal.

Her case exposes the blatant extent of impunity, of defiance and sheer audacity to protect perpetrators of violence: the court issues arrest warrants and a suspension order after years of legal battle, but the NA and the Ministry of Defence instead, choose to send the accused on UN peacekeeping mission after laurelling him with a promotion! The human rights community lobbies for his repatriation and the UN duly screens him out and sends him back to Nepal; the military police takes the accused from the airport, holds him in its custody and desists from submitting him to civilian authorities! The national and international human rights community demands accountability and the Prime Minister apparently directs the Defense Minister to hand the accused over to police, but the Defense Ministry ignores the order! An army that sends thousands of troops on lucrative peacekeeping missions even ignores the recommendations of the UN Secretary General to comply with court orders in this case.

These are all the signs of the daunting struggle that still awaits not just Maina Sunuwar’s family and supporters, but all victims of human rights violations during the 10-year armed conflict. In the reports “Waiting for Justice” (2008) and “Still Waiting for Justice” (2009), Advocacy Forum and Human Rights Watch exposed the pervasive culture of impunity in Nepal with none of the perpetrators arrested in 62 selected cases of human rights violations ranging from extrajudicial executions, torture, rape to disappearances during the conflict.3 This, despite years of intensive litigation and campaigning by the victims and their families.

Out of those 62 cases only in Maina’s case has there been substantial progress. The remaining cases are gathering dust in police stations’ desks and cupboards. There are some cases where the police and the authorities have flatly refused to even register First Information Reports (FIRs, formal complaints). Others linger in police investigation or in lengthy court proceedings. Thousands more have simply been dumped into the databases of human rights organizations, because the government is simply unable or unwilling to handle them. Despite persistent efforts nationally and internationally to press for accountability, the state has not brought even a single perpetrator of human rights violations to book. Even initiatives to establish transitional justice mechanisms are not progressing despite repeated promises.

That is why we never tire of speaking about Maina Sunuwar. The logic is simple: we want this case to be the beginning of the end of impunity in Nepal – a beginning of the end which starts with a trial not a speech. Maina’s case is important enough in and of itself, but her name is now synonymous with the impunity that weighs down on the victims of all human rights violations, regardless of the identity of the perpetrator. We hope that prosecutions in this case will set a precedent to deliver justice to the victims of all the other abuses that occurred during the conflict.

We focused initially on Maina’s case because even in 2004, the fact that the army had lied about their role in her “disappearance” was quite apparent. We believed that Maina had been taken, and perhaps killed, only to punish her mother, Devi Sunuwar, who had publicly blamed government forces for the alleged rape and murder of her cousin, Rina, just four days earlier.

Since then, the facts of the case, the injustice and blatant attempt to cover up the incident, outraged all those that respect fundamental principles of human rights. However, the case did not gain such popular appeal overnight. It is to the credit of her parents that the case remained in the spotlight. Year after year, repeatedly turned away and ignored by the NA and the Government, they displayed resilience and unflinching courage to demand justice. It is also to the credit of human rights groups and the media, which embarked upon a systematic pooling of time and resources to organise a coordinated effort.

Advocacy Forum has been representing the case since 2004. In this report, we highlight some important facts and milestones, and try to set straight the false arguments put forward by those in power with an interest to continue to undermine the criminal justice system in Nepal.

The book can be accessed via the link :
http://www.advocacyforum.org/Maina_... (English)
http://www.advocacyforum.org/Maina_... (Nepali)