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This is the second in an ongoing series of articles on transitional justice. The first article, on how the Maoists have grappled with demands to hold them accountable for wartime violence, is available here.

I once met a man who was arrested by Royal Nepal Army (RNA) soldiers and taken to the Chisapani barracks in Bardiya when the civil conflict was at its peak. He was blindfolded and his arms were kept tied behind his back for almost all of the hundred days he was in detention. A soldier pissed on his face, and another made him lap up water from the floor like an animal. “There were people who were fundamentally decent among both the army and the Maoists,” he told me. “But there were also vile rapists and murderers. The Truth and Reconciliation Commission has to find the latter and strip them bare.”

The man believed that violence committed as part of a war objective was justified, even if it sometimes harmed the innocent. He only wanted punishment for those who took advantage of wartime chaos to satisfy their greed, lust and sadistic impulses. In his mind, it was possible to draw a clear line between these two kinds of violence.

It is true that in many parts of the country afflicted by violence, specific individuals gained notoriety for arbitrary brutality. In the western Tarai, for example, people still talk about Ramesh Swar. Between 2001 and 2003 he was the captain of the Bhimkali Company at the Chisapani barracks. Everyone in Banke and Bardiya districts has heard of him. Many have experienced his cruelty firsthand.

I may recount just one case that was uncovered by Advocacy Forum and subsequently reported by Amnesty International in their 2002 report ‘Nepal: A Deepening Human Rights Crisis’ as well as by the writer Manjushree Thapa in an essay collected in her book The Lives We Have Lost. The incident took place in Nepalgunj. At midnight on 27 February 2002, a group of around 30 RNA soldiers came into the house of Masgit Maniyar, who ran a small business. The army told him he was accused of smuggling drugs and took him to the Chisapani barracks. He was tortured severely over the following month. Ramesh Swar then offered to release him in exchange for Rs. 1.8 million. Maniyar’s wife raised 70 thousand rupees by selling her jewelry and borrowing money from her relatives. After he promised to raise additional funds from his business contacts and pay the remaining 1.1 million rupees within a week, the captain of the Bhimkali Company allowed him to return home.

But Maniyar could not find the money, and he fled to India to escape the army. On 3 April, Captain Ramesh Swar came to his house with around 15 soldiers. Not finding Maniyar there, he asked for his daughter and niece, aged 18 and 16 respectively. The two were taken to Chisapani barracks and over the next few days Ramesh Swar raped the younger cousin repeatedly, telling her that this was payback for her uncle’s escape. Another officer at Chisapani, meanwhile, raped the older girl.

By the third day of their detention, one of the cousins was bleeding profusely. Captain Swar said he would release them, but warned that they would be rearrested, raped and shot dead if they told anyone what had happened at the barracks. Swar then drove them to Nepalgunj, where they received medical attention.

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“Thapa was the chief architect of the atrocities in this region,” the Nepalgunj lawyer Shaligram Sapkota told me. “Ramesh Swar was simply his attack dog.”

Ramesh Swar was not acting in isolation. At the time he was captain at the Chisapani barracks, Major Ajit Thapa was his commanding officer. Swar came from a land-owning family in the Rajapur delta, an area of Bardiya where upper-caste landowners had feudal and exploitative relations with tenant families of the Tharu ethnic group. As Thapa was an outsider, he relied heavily on Swar’s local contacts and knowledge of terrain to plan and implement the operations. “Thapa was the chief architect of the atrocities in this region,” the Nepalgunj lawyer Shaligram Sapkota told me. “Ramesh Swar was simply his attack dog.”

Under Thapa’s command, the Bhimkali Company was responsible for arbitrary detention, torture and extrajudicial killing on a wide scale. OHCHR’s 2006 report ‘Conflict Related Disappearances in Bardiya District’ speaks of a “systematic practice by the security forces of arbitrarily arresting anyone suspected of links with the CPN-M, keeping them in secret, unacknowledged detention outside the protection of the law, and torturing them. The apparent aim was to extract information about the CPN-M, including through ill-treatment and torture, and to eliminate the CPN-M presence from the area.”

The content of the OHCHR report is widely known, but it might still be worth summarizing its key points here. RNA patrols and undercover teams collected information on Maoist presence and activity across Banke and Bardiya. Large numbers of soldiers scoured market areas during the day, and surrounded settlements and barged into homes in the dead of night. They arrested anyone thought to have ties with the Maoists. They beat up family members who protested. Some suspects were apprehended based on rumors and shot dead on the spot. No distinction was made between a Maoist combatant and an unarmed party worker, a sympathizer, or an ordinary citizen who had provided rebels food or shelter.

Those arrested were taken to the Chisapani barracks. They were not told why they were being detained and were denied access to legal counsel. Soldiers kicked and stamped on them, beat the soles of their feet with bamboo sticks, rolled heavy wooden poles on their thighs and ankles, drowned their heads and torsos in barrels of fetid water, inserted needles under their fingernails and demanded the whereabouts of their superiors. Afterwards, hoods made of black cloth and plastic were placed over their heads, their hands were tied behind their backs, and they were shoved into rooms so crowded that they had to sleep sitting up. Some detainees were made to sleep in trenches on the perimeter of the barracks, which filled up with mud when it rained.

Once in a while army personnel would come to the detention rooms at night, call out the names of some prisoners and drive them to the nearby forest of the Bardiya National Park. Soon afterwards, gunshots would ring out in Chisapani. The soldiers would return to the barracks, but without the detainees. A few days later, lower-ranking soldiers would collect and destroy the shoes and other personal belongings of those taken away to the forest.

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The fact that the state security forces were responsible for around two-thirds of wartime casualties often fails to make any impression

The army’s actions in Bardiya might have been particularly brutal, but it followed a similar mode of operation everywhere it was deployed against the Maoists. When human rights workers or journalists raised evidence of war crimes during the conflict, senior army officers either denied them or blamed errant and poorly educated soldiers who lacked knowledge of human rights norms. Even after the conflict came to an end, the army did not make any real effort to analyse their conflict-era behavior. Two former army chiefs, Rookmangud Katawal and Chhatraman Singh Gurung, have published memoirs after their retirement, but neither of these books includes even a perfunctory examination of the army’s wartime conduct. This is a rather glaring omission. Fighting the Maoists was probably the greatest challenge the army has ever faced. Surely the conflict deserved serious inquiry and reflection, if only to improve military strategy in case of future internal threats?

Nonetheless, army spokespersons did on occasion issue statements on their wartime actions. Senior army officers and political leaders continue to defend the security forces in informal conversations. From such sources, one can imagine what a Nepal Army officer might say in defense of the army’s conduct during the war.

“The Maoists,” says our imaginary officer, “were guilty of waging an unprovoked and treasonous rebellion against the legitimate government and people of this country. They were cowards and attacked the softest of targets, raiding poorly equipped police stations, pillaging homes and hacking to death anyone they saw as obstacles to their ‘revolution’. They committed the original crime, not us.

“We should have stepped in to bring them under control as early as February 1996, when they attacked police stations at Holeri, Athbiskot-Rari and Sindhuligadhi. But our late King Birendra was kind and didn’t want to kill his own people, even those who had taken up arms against his authority. He held us back. For the first five years of the rebellion, we waited in our barracks hoping that the elected government and the police would put out the fire in the countryside. But to our dismay, they were incompetent and the conflagration spread. Then the insurgents attacked our barracks in Ghorahi and stole our guns. The situation became intolerable. We could no longer remain mute spectators.

“We entered the fray in 2001. By then the Maoists were on a rampage, killing and spreading mayhem. They had sent the police force over the edge. The only choice before us was to use all the might at our disposal and quickly bring the rebels to heel. We would have lost the momentum had we taken a cautious approach. True, use of overwhelming force would cause more collateral deaths, at least in the short term. But if we didn’t press our advantage, it would prolong the conflict and allow the Maoists greater latitude to kill, loot and extort. The people would have suffered far more had we hesitated to use force. As far as decisions of war go, we made the humanitarian choice.

“You scoff? You say that the army was defeated? That we couldn’t even save our dear king when he was evicted from his palace? Think again. Would the Maoists have agreed to renounce their totalitarian ideology, lay down their arms, and meekly compete in elections had it not been for us? Think of what happened in 2005. The top Maoists were cowering in the backwaters of Rolpa. We were bombing their houses from the sky. We almost killed Prachanda once. They were terrified and desperate. And then Prachanda made the fatal mistake of attacking Khara. We killed so many of their combatants they finally realized that all their military avenues were closed and their only option was to sign a deal with the parliamentary parties.

“Human rights activists always go on and on about how we killed and tortured innocent civilians. But they have no skin in the game and no knowledge of war. Remember what that Chinese butcher Mao said? Revolution isn’t like writing an essay or painting a picture; it has no room for temperance or kindness. His Nepali disciples took his advice to heart and decided that no tactic, no matter how deceitful or depraved, was beneath them. They hid in jungles and among the people, refusing to engage us directly but ever ready to stage the dirty, surprise ambush. They extorted from local populations with impunity, and had no compunction about killing anyone who was wealthy or belonged to a rival political party.

“We would have been naïve to fight them as we would a professional army. As there are no frontlines in guerilla warfare, the traditional rules of war do not apply. If revolution isn’t a tea party, neither is counter-insurgency. We had no choice but to comb villages to flush out rebels. It wasn’t easy to distinguish between civilians and combatants. Yes, we regret that we hurt people who had no connection with the Maoists. But such instances of death and injury were accidents that couldn’t be avoided in the heat and stress of war. Even international law accepts that the killing of civilians that occur in the pursuit of a legitimate military target is not unlawful. Collateral damage is inevitable in any war.

“Besides, most of the so-called civilians we punished or eliminated were hardly innocent. The vast majority were Maoist party members or at least supporters. I know that the Geneva conventions only permit actions against participants in combat operations, whether as fighters or providers of material support. Others in the enemy camp who spread propaganda, raise funds or feed combatants cannot legally be assaulted. But this is a nonsensical distinction. A Maoist activist might only have been involved in so-called ‘political work’, but this too was a direct contribution to their war effort. They spread propaganda to recruit people to fight against us. They raised money to buy weapons to strike us. Whatever international law might say, it was necessary to arrest them and extract information by all means possible, and if necessary, eliminate them before they could harm us.”

Such might be the argument of the army officer. A defense of this sort would not stand in international tribunals, which judge specific acts rather than broad conduct, and are usually unsympathetic to appeals to military necessity. But plenty of people in Nepal would find our officer’s justifications perfectly convincing. Many people in Kathmandu unhesitatingly blame the Maoists for all the violence of the conflict. It isn’t uncommon to hear statements such as, “Prachanda killed 17,000 people just because he wanted to come to power.” The fact that the state security forces were responsible for around two-thirds of wartime casualties often fails to make any impression. For, according to common belief, the party that started the conflict is to blame for all the violence. All bets are off once the fighting begins. As the saying goes, “All’s fair in love and war.” Or the old adage, “In times of war, the law falls silent.”

Moreover, the Kathmandu classes are grateful towards the army. They feel that it protected their lives, livelihood and property from barbarous Maoists who were rampaging across the countryside and would have stormed the capital had the army not secured the valley’s perimeter. As for the ‘crimes’ committed by the security forces, well, there was a war going on and they did what they had to do. Best to look away from the horrors. It’s not healthy to probe too deep into darkness.

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“It wasn’t us,” the DSP said, “it was the army.”

Let us set aside questions on the morality or legality of the army’s actions for the time being. Instead I want to ask here: Were the army’s methods actually effective in the fight against the Maoists? But before I try to answer that question, I want to recount a single incident from the war, as told to me by the father of a victim.

On the night of 21 July 2002, Ram Kishan Tharu, his wife Laxmi and their four children were asleep in the central room of their bamboo-and-mud house in Sorahawa VDC in Bardiya. It was planting season. They had spent the entire day in the fields, were exhausted and had gone to bed early. At around 10 pm, they were awoken by loud banging on the door. Before anyone could get up, a group of soldiers from the Chisapani barracks and policemen from the Mainapokhar police office broke into the room. Ram Kishan jumped out of bed. A soldier shoved a rifle butt into his chest. A policeman struck him on the head with a lathi. Once he fell to the floor, they stamped on his back with their boots.

Ram Kishan’s 11-year-old daughter was still lying in bed terrified. A soldier shone a torch onto her face and asked her name. “Rupa Chaudhari,” she said, and the soldier struck her on the face. As her father pleaded them to let his daughter go, the soldiers blindfolded her, dragged her out of the house to the village well around 50 meters away and shot her dead.

The soldiers then rounded up four boys from neighboring houses and made them carry Rupa’s body to the Mainapokhar police station. They sent three of the boys back home, but took one of them to the Chisapani barracks, along with the corpse. This boy was named Dinesh Chaudhari and related to Rupa. At Chisapani, he was asked to identify her body. “This is my aunt,” he said. “Her name is Rupa Chaudhari.” The body was photographed together with some guns and bombs. A few days later the Defense Ministry released the image to the press, along with a statement claiming that the Maoist commander Rupa Chaudhari had been shot dead as she tried to flee from an army patrol. Dinesh was kept at the barracks for two weeks, where he was beaten regularly, before being allowed to go home.

The soldiers at Chisapani handed over Rupa’s corpse to the police. Ram Kishan and the secretary of Sorahawa VDC went to collect it at the Gulariya district police office. Like most villagers, Ram Kishan found the police less intimidating than the army, and felt emboldened enough to berate the policemen on duty for murdering his daughter. “It wasn’t us,” the DSP said, “it was the army.” The DSP asked whether he should arrange to dispose of Rupa’s body right there in Gulariya. But Ram Kishan said he wanted to take it home for a proper burial. A vehicle was arranged. Ram Kishan and the VDC secretary got into it, along with a policeman who had been instructed to accompany them and the decomposing corpse.

The driver and accompanying policeman had been instructed not to take Ram Kishan to his village. Instead of going to Sorahawa, the vehicle drove straight south towards the Indian border. The DSP at Gulariya must have reasoned that if Ram Kishan took his daughter’s body home, the entire village would come together in collective mourning and participate in final rites. They would remember the senseless murder of the young girl and feel not just grief, but also rage and indignation. The anger could boil over and spread to surrounding villages. As the guardian of public order in the district, the DSP simply could not allow such chaos. Ram Kishan panicked as the car drove straight past the road that led to his village. Afraid they were going to dump his daughter’s body across the border in India, he started yelling and shouting. But there wasn’t much he could do. Eventually, Ram Kishan, the Sorahawa VDC secretary and the policeman buried Rupa Chaudhari’s body on the banks of a river on Nepali territory, far from human habitation.

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Why was Rupa Chaudhari murdered?

Why was Rupa Chaudhari murdered? Her father believed there was a Maoist combatant with the same name who was on the army’s list of wanted rebels. Judging by the actions of soldiers in the district between 2001 and 2003, it is clear that their superiors had given them ample latitude, if not direct orders, to shoot suspected Maoists on sight. But shouldn’t it have been evident that an eleven-year-old child sleeping in her parents’ home at night could hardly have been a dreaded rebel combatant? The name Rupa is quite common and the surname Chaudhari is virtually synonymous with the Tharu ethnic group. Even if the soldiers had reason to believe that a Maoist was hiding in Ram Kishan’s house, shouldn’t they have at least tried to confirm the suspect’s identity?

The trigger-happy soldiers of the Bhimkali Company knew their superiors would not punish them for killing civilians. Moreover, killing the namesake of a known combatant would allow them to strike off another name on their kill list and earn brownie points. They had an incentive to shoot the suspect dead before inquiring about her identity.

What about the complicity of their superiors? Rupa’s body wouldn’t have been photographed together with guns and bombs without the consent of the major at the Chisapani barracks. The false claim about her identity couldn’t have been disseminated to the media without the collusion of some of the highest-ranking officers in Kathmandu. Surely, they weren’t duped into believing that their soldiers had killed a genuine combatant. The girl’s age, if nothing else, should have alerted them that something was amiss. Had they conducted even the most cursory investigation, they would have found that their soldiers had killed an innocent child.

Out of 156 disappearances in Bardiya by state security forces that OHCHR investigated, only 23 involved members of the Maoist party.

The murder of a civilian like Rupa Chaudhari wasn’t an aberration. Out of 156 disappearances in Bardiya by state security forces that OHCHR investigated, only 23 involved members of the Maoist party. The staggering proportion of civilian disappearances indicates utter recklessness on the part of the army. Our imaginary officer’s argument about the extreme difficulty of distinguishing combatants from civilians does not hold up. As the case of Rupa Chaudhari demonstrates, state security personnel were rarely at immediate risk during cordon and search operations, and could easily have taken greater care to determine the identities of those they apprehended.

Why was RNA in such a hurry to release a statement announcing that Rupa Chaudhari was a rebel combatant? Clearly they wanted to preempt any accusation that their soldiers had killed a civilian, as well as demonstrate how they were advancing in the fight against the “terrorists.” In addition, they likely thought that news of yet another Maoist killed in an encounter would dissuade people from joining or supporting the rebels. Many armies after all have cited deterrence as justification for the use of excessive force.

But attacks on civilians didn’t work as a deterrent. Perhaps the people of Bardiya would have stayed away from the Maoists if they were convinced that the army would only kill or torture actual rebels. But anyone was potentially subject to violence, especially those who belonged to the Tharu ethnic group or otherwise lacked resources and political access. Soldiers entering a village in daytime would shoot wildly at anyone who tried to hide or run away, often leaving several people dead by the time they left the area. Young people who were found far afield from their village were immediate suspects and liable to be shot on the spot. If murder and disappearance were common, lesser forms of violence were endemic. Security personnel tore down the mud-and-bamboo walls of houses simply to “teach villagers a lesson.” Almost every Tharu man in Bardiya who was a teenager or a young adult during the conflict years remembers being beaten or harassed by soldiers he randomly encountered.

The RNA had almost 100,000 personnel by the time the war ended, and it was backed to the hilt by India, the US and the UK.

The experience of Bardiya’s population belies our officer’s argument that the army helped shorten the conflict and reduced overall suffering by its no-holds-barred assault against suspected rebels. True, the Maoists did eventually realize they could not match the RNA’s military might and had no conceivable way of taking the cities. This was a crucial factor in their decision to reach a negotiated settlement. But such aggressive efforts to weed out rebels were hardly necessary to force the Maoists to the negotiation table. The RNA had almost 100,000 personnel by the time the war ended, and it was backed to the hilt by India, the US and the UK. It was able to protect urban areas and key installations with relative ease. This alone would have sooner or later pushed the Maoists towards a peace agreement.

Human rights activists argue that torture isn’t a particularly effective method of extracting information, since the tortured often accuse anyone they can think of or confess to anything in the hope that their torment might end. Nonetheless, a few Maoist activists in Bardiya told me that the army had succeeded in using information gathered from captured rebels to find rebel hideouts and kill senior commanders. But even if this was the case, numerous people who were caught in the army’s net knew nothing. Torture instilled hatred towards the state authorities in their hearts and made them more amenable to joining the Maoists.

“We thought it was better to go and join the revolutionaries than remain at home cowering in fear,” a man who went to fight for the Maoists for a few years told me. “So many people flocked to join us after the army entered the conflict,” said Rajesh Chaudhari from Rajapur, who was a Maoist company commander in the early 2000s. “We were over-burdened with fresh recruits and had to send many of them back.” Rather than helping weaken the Maoists, arbitrary detention and torture increased rebel strength. A gentler attitude towards the population would have been not just more humane but also tactically more effective.

Perhaps the army leadership turned a blind eye to their soldiers’ conduct in the belief that stringent application of the laws and customs of war would demoralize the rank-and-file. The ultimate result was to encourage recklessness and the perversion of norms. Rupa Chaudhari’s killers knew they wouldn’t be asked to account for whom they killed, so they were more interested in gaining credit for a fresh dead body than in any real military success.

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Swar was able to rape, torture and extort because he was aided and abetted by the RNA’s institutional ethos and its leadership’s callous disregard for the population’s well being

This brings me back to Captain Ramesh Swar of the Bhimkali Company. There is no question that someone like him would be an ideal candidate for prosecution. His outrageous personal conduct in numerous cases, only one of which was mentioned above, stands out among the entire grim catalogue of human rights violations committed during the conflict.

But Swar was able to rape, torture and extort because he was aided and abetted by the RNA’s institutional ethos and its leadership’s callous disregard for the population’s well being. He would not have been able to extort money from Masgid Maniyar without orders from his superiors, or at least their consent. After Maniyar’s daughter and niece were sent home after their detention at the Chisapani barracks, they told human rights activists from Advocacy Forum about their detention and rape. Swar then visited their home and coerced them into retracting their statement on videotape. The army broadcast the video on Nepal TV, which indicates that officers at the highest levels were complicit in trying to cover up the incident.

Nepal’s politicians have long argued that not all war crimes from the Maoist conflict can be a matter for the courts. Prosecuting the vast number of human rights violations would require colossal amounts of time and money. Besides, widespread trials would implicate far too many people and, it is claimed, disrupt the hard-won peace. Most political leaders would prefer not to have trials at all. But activists and the international community have pressured them, and at least some politicians now say that they would be open to prosecuting a small number of “emblematic cases.”

Limiting prosecutions to egregious human rights violators like Swar could suit politicians and the leadership of the security forces. It wouldn’t be difficult to depict such individuals as deviants who blatantly flouted basic norms. Making them bear the burden of guilt could help absolve the security forces of more comprehensive responsibility. If the country is to undertake a thorough accounting of the conflict, the courts will have to seek out officers much higher up than Swar in the chain of command.