The Last Briefing by Ian Martin

Ian Martin, the Special Representative of the UN Secretary-General in Nepal speaks at the Meeting of the Security Council on 16 January 2009

The request of Nepal for United Nations assistance in support of its peace process

Mr President,

This is the tenth and last time I am briefing the Council on the assistance of the United Nations in support of Nepal’s peace process, and in particular the work of UNMIN. Although neither the peace process nor the Government’s desire for the support of UNMIN has come to a conclusion, it is an appropriate moment not only to consider developments since the last briefing in November, but also to reflect on the achievements and remaining challenges in sustaining peace in Nepal.

First, let me report on developments, positive and negative, since the report of the Secretary-General was written. Most importantly for the mandate of UNMIN, political agreement has finally been reached regarding the composition and terms of reference of the special committee to supervise, integrate and rehabilitate Maoist army personnel, and its first meeting was held today. Each of four major parties, including the Nepali Congress which remains outside the Government coalition, has two representatives, and the Prime Minister is presiding personally. This will be especially welcome to the Council, as the effective functioning of the special committee is of critical importance not only to the completion of UNMIN’s mandate, but to the overall success of the peace process.

There has been progress, too, regarding the work of the Constituent Assembly and cooperation among the political parties towards the drafting of a new constitution. Chairpersons of the committees of the Assembly have been chosen, on the basis of agreement among the larger political parties, although not to the satisfaction of all smaller parties. The former General Secretary of the Communist Party of Nepal (Unified Marxist-Leninist), the UML, Mr Madhav Kumar Nepal, agreed to the proposal of the Maoist leadership that he should accept nomination to the Assembly and chair its Constitutional Committee, which has the central responsibility for reaching agreement on the overall draft constitution, and the challenge of enabling its completion by May 2010.

There have been discussions among the major parties, including between the Communist Party of Nepal (Maoist) – now renamed the Unified Communist Party of Nepal (Maoist) following its merger with a smaller communist party – and the Nepali Congress, about establishing a greater degree of cooperation in completing the peace process and drafting the constitution. The Nepali Congress ended its boycott of the Legislature-Parliament after the Prime Minister reported to Parliament that fresh instructions had been given to implement his undertakings in response to its demands, including the return of property and ending the paramilitary activities of the Young Communist League, which will be monitored by a parliamentary committee.

The Government’s efforts to bring an end to the violence by armed groups operating in the Tarai through negotiations have now resulted in initial agreements, setting forth conditions for talks, being signed with four such groups, while other informal contacts have taken place and continue.

However, there have been fresh clashes between the Maoist Young Communist League and the UML’s Youth Force, in one case leading to the amputation of the leg of a Youth Force member. Maoist trade unionists have used violence or threats of violence against media critical of Maoist conduct. The horrific murder last Sunday of a woman journalist in the Tarai, by a gang of perpetrators so far unidentified, has further exemplified the weak rule of law and the threats faced by journalists, especially outside Kathmandu, from various sources. Public discontent is mounting with the inability to maintain electricity supply, now reduced to eight hours a day for many consumers, although the major responsibility rests with previous governments throughout decades of under-investment and neglect. This power shortage is now combining with trade union action to seriously threaten the operation of factories, and thus employment opportunities.

A recent controversy of particular concern to UNMIN and the peace process relates to recruitment by the Nepal Army and its recognition of the authority of the elected government, and has a potential seriousness which requires me to explain its background. The code of conduct agreed at the outset of the ceasefire in 2006 committed both parties “not to recruit new people.” When the Agreement on Monitoring the Management of Arms and Armies was being negotiated in November 2006, with the United Nations acting as secretariat to the negotiation, the Nepal Army argued that it should nonetheless be permitted to continue to fill vacancies. This was initially supported by the Government side, but it was resisted by the Maoist side and was not agreed. The stipulation of the Agreement that “recruiting additional armed forces” is prohibited unless mutually agreed by the parties should thus be understood to apply to any recruitment, including the filling of vacancies. The Maoist army was the first to breach the Agreement by bringing thousands of new recruits, many of them minors, into their cantonments: they eventually either left the cantonments or were disqualified by UNMIN’s verification, although as the report of the Secretary-General emphasizes yet again, the discharge of those disqualified who remain in the cantonments is long overdue.

Meanwhile, in mid-2007 the Maoist side complained to the Joint Monitoring Coordination Committee (JMCC) that the Nepal Army was undertaking recruitment. The Nepal Army then confirmed that they were recruiting to fill vacancies; regrettably, they had not informed the JMCC of this at the outset. The JMCC, which operates by consensus, could not resolve the issue, and referred it to me. I wrote to the then Prime Minister, who was also Minister of Defence, setting out UNMIN’s view that this recruitment was a breach of the Agreement, and met with the Chief of Army Staff to communicate this to him. Eventually the Secretary of Defence responded, maintaining that recruitment to fill vacancies, up to the standing strength of 95,753 when the Comprehensive Peace Agreement was signed, was not a breach of any agreement.

In November 2008 the Nepal Army again placed advertisements for further recruitment. The Army states that they had written to the Ministry of Defence to notify that they intended to recruit to fill vacancies, and went ahead after having received no reply. Again, UNMIN and the Maoist army were not informed through the JMCC, or otherwise. At a time when no progress was being made regarding the future of Maoist army personnel, this was the subject of strong exception within the cantonments. The Deputy Commander of the Maoist army stated publicly that the Maoist army would itself recruit to fill vacancies. I stated UNMIN’s consistent position that any new recruitment by either army is a breach of the Agreement. Following a Cabinet discussion, the Ministry of Defence wrote to instruct the Nepal Army to suspend its recruitment; the Nepal Army is reported to have replied that the process was almost complete and suspension would be inappropriate. The Minister of Defence, one of the CPN (M) members of the Government, criticized a public statement by the Chief of Army Staff and threatened action against him. Other political actors publicly supported recruitment by the Nepal Army to fill vacancies. The Minister of Defence and the Chief of Army Staff have since met to discuss the issue, but it is not clear that it is resolved. I have expressed concern to the Chief of Army Staff that the Nepal Army has not acted in this matter with good faith towards the United Nations, as the mandated monitor of the Agreement.

Mr President,

This controversy, at a time when what is needed is cooperation among the political actors and between the armies to resolve issues through the special committee, is symptomatic, and I fear may be indicative of difficulties ahead. Before I address further those difficulties, I want to reiterate recognition of the great achievements of Nepal’s peace process to which the Secretary-General and I have paid tribute on numerous occasions, as indeed has the Council. When I went to Nepal more than three and a half years ago, in May 2005, to open the Office of the High Commissioner for Human Rights, the armed conflict was heading into its tenth year, with grave violations of international humanitarian law being committed by the Maoists and by the security forces, and the Government headed by the then king was curtailing democratic rights. It is the Nepalese political and civil society leaders who brought the armed conflict to an end, negotiated the holding of an election which has produced an inclusive Constituent Assembly, and peacefully introduced a republic.

Nepal’s peace process was founded on mutual commitments by the Maoist and non-Maoist political parties, enshrined first in the 12-Point Understanding of November 2005 and eventually in the Comprehensive Peace Agreement of November 2006 and the Interim Constitution. The CPN(M) committed itself to democratic norms and values, including the competitive multi-party system of government, fundamental human rights, civil liberties, press freedom and rule of law. The parties elected to the 1999 Parliament committed themselves to the election of a constituent assembly, the restructuring of the state and progressive socio-economic change. Regarding the armies which had fought the ten-year armed conflict, without either being defeated, Maoist combatants were to be “integrated and rehabilitated”, while the Nepal Army was to be “democratized”, through an action plan which would determine its appropriate size, develop its national and inclusive character, and impart training in accordance with the norms and values of democracy and human rights. All parties agreed to act on the basis of political consensus until a new constitution had been framed by the Constituent Assembly.

Mr. President,
For all the important achievements of the peace process, I fear that there is now a danger that these fundamentals are being challenged and eroded. Actions of Maoist cadres which involve violence or threats of violence and do not respect pluralism or the rule of law, the failure of the party leadership to take firm action against those who commit such acts, and internal ideological debates which do not convey a clear long-term adherence to multi-party democracy – all these lead some to question the sincerity of the strategic choice the CPN(M) committed itself to in the 12-Point Understanding, or the ability of its leadership to ensure that the party as a whole respects it. It is crucial, now that the CPN(M) leads the Government, that it acts consistently in a manner which allays these doubts. And the party which leads the Government has a particular responsibility to strive for the political consensus required for completion of the peace process and the drafting of the new constitution.

But this responsibility rests too on other parties, which fought the election on a promise of continuing cooperation in government, within the framework of an Interim Constitution which promised socio-economic change and inclusion. The distribution of votes in the Constituent Assembly election, of approximately 30 per cent to the CPN(M), and a little over 20 per cent each to the Nepali Congress and the UML, can best be interpreted as a mandate for change, but with an expectation that parties would cooperate, as promised, on the basis of their respective support. The emergence of Madhesi parties in the Tarai was a strong reminder that the commitment to inclusion of all groups in all aspects of the state must be carried out if continuing disaffection is not to lead to further violence and ethnic division – perhaps the greatest threat that could lie ahead for Nepal.

Most immediately, however, I believe that the spirit of the original agreements regarding the armies must also be maintained if a critical post-conflict challenge is to be successfully overcome and a stable peace is to be achieved and sustained. As the Secretary-General says in his report, the peace agreements did not fully negotiate the future of the armies, but confined itself to defining processes – the special committee to supervise, integrate and rehabilitate Maoist army personnel, and the action plan for democratization of the Nepal Army. But there was an informal understanding among the negotiators that “integration” meant the incorporation of a significant number, but by no means all, of the Maoist combatants into the Nepal Army. And the action plan for democratization of the Nepal Army was a significant parallel aspect of the agreements, including a commitment to inclusion, the importance of which has been reinforced by later undertakings in agreements with Madhesi parties. Only if both armies are respected by negotiators on all sides, and if both armies recognize their need for change and their subordination to democratic multi-party governance, is the special committee likely to reach an outcome which will stabilize the peace.

One need for change to which no political party and neither army is yet truly committed is the need for an end to impunity. I say this with particular regret, as I went to Nepal as Representative of the High Commissioner for Human Rights, yet in more than three and a half years since then, not a single perpetrator of a major human rights violation, whether committed during the armed conflict or since its end, has been properly brought to justice. In May 2006, I was responsible for the publication by the Office of the High Commissioner for Human Rights in Nepal of a report of investigation into arbitrary detention, torture and disappearances at the Maharajgunj barracks in Kathmandu of the then Royal Nepalese Army in 2003-2004. No action has resulted. Paragraph 39 of the Secretary-General’s report refers to the recent release by OHCHR of its investigations into disappearances in Bardiya district in 2001-2003, citing 156 cases of disappearances linked to State authorities, mostly after detention by the then Royal Nepalese Army, and 14 similar cases attributed to the CPN(M). The report documents the systematic use of torture in the Royal Nepalese Army’s Chisapani barracks, and I urge members of the Council to read its chilling details.

The promise to investigate disappearances was first made by the parties in May 2006; it has been reiterated time and time again in later agreements, but only now is legislation to establish a commission to investigate disappearances about to be considered by the Legislature-Parliament. It remains to be seen whether appointments made to this commission will indicate a serious intent to uncover the truth and bring those responsible to justice, in the face of the denial and obstruction which has so far characterized the response of the Nepal Army, in particular. Efforts are being made to provide compensation to victims of the conflict, but victims who suffered at the hands of the Maoists, as well as victims of the security forces, are still in distress. The wounds of Nepal’s conflict will not be healed by denial or by compensation alone, and require the effective implementation of the promises made to pursue truth and justice.

Meanwhile impunity continues to prevail for violations committed since the end of the conflict. The CPN(M) and other political parties are quick to protect their supporters from justice, rather than to support the impartial application of the rule of law. Even in cases where the perpetrators are known, such as the killings of members of the YCL in Dang district two days before the Constituent Assembly election and the killing of a businessman in a Maoist cantonment site, highlighted in paragraph 44 of the report of the Secretary-General, they are not brought to justice.
Mr President,

The great strength of Nepal’s peace process has been the capacity of the Nepalese actors to pursue dialogue to bridge their differences. Such dialogue brought about the 12-Point Understanding which led to the People’s Movement and the end of the armed conflict; it produced the peace agreements and the Interim Constitution, and paved the way for the Constituent Assembly election; it maintained the framework of the Seven-Party Alliance and eventually overcame substantial disagreements and delays. Very recently, Prime Minister Pushpa Kamal Dahal “Prachanda” has spoken publicly of the need for a new 12-Point Understanding. That is a matter for the political parties to consider, but in my own view there is indeed a need to re-establish the basis for cooperation among political parties, some of which have emerged since the original Seven-Party Alliance was formed, towards successful completion of the peace process and drafting of the constitution. Competitive politics must not be allowed to derail these over-riding national priorities.

The weakness of the peace process, however, has been the failure to implement commitments made. In my opinion, the need now is therefore not only for a renewed basis of understanding and cooperation, but also for a continuous mechanism for ensuring such implementation. Past agreements have provided for a High-Level Joint Monitoring Committee to monitor whether all understandings and agreements are being implemented, a High-Level Peace Commission, and a High-Level Monitoring Committee to monitor implementation of the agreement between the then Interim Government and the United Democratic Madhesi Front. None of these have ever been formed: the JMCC convened by UNMIN remains the only implementation mechanism which has met regularly, to fulfill its limited mandate relating to the management of arms and armed personnel. My strong parting advice to the parties, whether they enter into a new understanding or recommit themselves to those they are already bound by, is that they now establish such a comprehensive implementation mechanism.

If I have one particular regret, it is that the parties did not take up our offer in late 2007 that the United Nations could assist by supporting the implementation of peace process commitments more generally than in the case of arms monitoring alone. It could, for example, have assisted the impartial monitoring and implementation of the return of property, which has been a constant impediment to political cooperation. This would in no way have detracted from the fact that the peace process has always been a Nepalese process or infringed upon national sovereignty. The parties have not made full use of what the United Nations has to offer, notwithstanding their recognition that UNMIN’s presence has had a value well beyond its specific electoral and arms monitoring functions.
Mr President,

I shall leave Nepal with some anxieties, but few regrets. It has been a privilege to be responsible for the role of the United Nations in supporting two of the basic demands of the people of Nepal: respect for human rights, and lasting peace. The two most remarkable moments have been those when the people of Nepal took their future in their own hands: in the nineteen days of the People’s Movement of April 2006, and in the Constituent Assembly election of April 2008. Their demand for peace, for change, for inclusion, was and is unmistakable. I hope that their political leaders will not let them down. I hope too that the international community understands that long-term stability is far from having been achieved in Nepal, and despite the many demands upon it, will remain concerned for 27 million of the poorest people in Asia, who deserve a better future.

Thank you.