By Dr Thomas Marks

Through the legend of the Gurkhas, Nepal has long been associated vicariously in the popular mind with martial values.  Yet the greatest tales of courage and honor have nearly all come with foreign service.  Now, through an ironic twist, the Nepal Army (NA) finds itself involved in a domestic battle which thrusts it onto the front lines of the “new war” that is the global norm.

For a serving NA officer, Major Niranjan Basnet, deployed to Chad as the operations officer of the reaction contingent for UN forces, has found himself unceremoniously repatriated for alleged involvement in the alleged torture and killing of an alleged Maoist, Ms. Maina Sunwar, during Nepal’s recent civil war.  The sheer tenuousness of Major Basnet’s links to the circumstances just listed has set up an important battle.  At issue is nothing less than the rule of law and the ability of activist forces to use “human rights” as the weapon of choice against the state.

The Case

Basnet was the patrol commander in Kavre in February 2004, when Ms. Sunwar was apprehended and brought to the barracks based on the information given by a Maoist prisoner.  Detention had been ordered by the unit commander, Colonel Babi Khatri, in accordance with the operative law at the time, the Terrorist and Disruptive Activities (Control and Punishment) Ordinance, 2002 (TADA).

Subsequent to turning her over to battalion personnel, as Major Basnet testified and was determined to be the case in a Court of Inquiry, Basnet had no involvement of any kind with her.  It was for this reason that he was acquitted.  A General Court Martial found in September 2005 that three other officers (his Commanding Officer and two Captains) were guilty of various offenses.  Though their sentences differed in particulars, the terms included being forced to leave the army.

Acquitted as not involved, Basnet continued with his career.  He served with the UN Mission in Sierra Leone (UNAMSIL) in 2006, before returning to an assignment in Nepal.  Eventually, human rights advocates “located” him serving in the UN mission for Chad and the Central African Republic (MINURCAT). Apparently, they played an important role in the filing of a case in district court by Ms. Sunwar’s mother. What followed was apparently planned and orchestrated in such manner as to climax on International Human Rights Day, 10 December 2009.

Notified by human rights advocates of the “charges,” the UN, as it has done with other NA officers so-accused – failing to give the accused an opportunity to respond – went to default position and requested his immediate repatriation.  With clarification requested on 4 December, Nepal’s Permanent Mission at the UN was still in the process of gaining clarifications from NA through the Defense Ministry in Kathmandu when a UN decision was rendered, apparently on 9 December, with the next date set for implementation.  It is unlikely that 10 December was chosen serendipitously, as it was International Human Rights Day.

According to sources, repatriation  was high farce. The mission arranged for a UN legal advisor (a civilian) to escort the officer to Kathmandu, claiming he might abscond. In fact, UN intent appears to have been to “shape” perceptions in anticipation of handing the Major over to Nepali police dramatically on the 10th.  No agreement was gained with Nepal, as the Troops Contributing Country (TCC), which would have been the normal procedure.

NA acted sharply against this scheme, Nepali diplomatic authorities at the UN became involved, and Major Basnet was instructed not to board the aircraft with the escort. His departure was thus postponed.  When Major Basnet eventually took a flight out, on 11 December, he was escorted by an NA officer from the contingent in Chad.  In contrast, Nepali media appear to have bought the story that he returned under international supervision to be handed over to the police.

Though UN military personnel have privately voiced their opinion that one should not be judged guilty on the basis of allegations, there was nothing they can do.  At home, the Prime Minister apparently instructed the Defense Minister and the Home Minister to take the Major to civil court.

“New War” Battlefield

In reality, circumstances concerning possible “charges” make such a course of action problematic.  The claim was that Major Basnet was a “fugitive” who had been sent out of the country to avoid prosecution.  This is incorrect, as he was openly involved for nearly a year in the preparations for the unit to deploy to Chad and had then deployed with it as its operations officer).  The district court case was filed after human rights groups learned of his presence in Chad.

Media reports, to include that in the BBC, claimed Basnet had been arrested at the airport upon his return, but this, too, was inaccurate.  What is occurring is that the military is investigating the case – and undoubtedly in intense dialogue with its civilian masters.

A sticking point is that Basnet’s case has already been heard by a military court (and he was found not guilty).  Hence the law does not allow him to be tried by a civil court for the same offense. The Interim Constitution of 2006 has a provision to suspend army personnel accused of human rights violations, but Basnet had already been acquitted in 2005.

It is not difficult to see the angles of attack that will be used by human rights advocates, but in reality these are not particularly important.  What is crucial is the ongoing effort by activists to push forward with their attack upon the state.  They did not display anything like the same vigor when the Maoists led the government, and the current effort is entirely predictable in its focus upon NA.

It is this larger context which must be identified if the Basnet case is to be understood at all.  Throughout the civil war, activists, often aided by INGOs and certain EU Embassies, lined up in opposition to the old-order and the military.  As the conflict dragged on, a central weapon was to tar the security forces as those who were systematically engaged in war crimes, while the Maoists were simply given a pass.   With a peace agreement reached, though violated wholesale by the Maoists and their allies, the charge has shifted to “impunity,” the ability of the powerful, especially representatives of the security forces, to escape “accountability” for their actions. As an integral component of this campaign, the demand for “accountability,” though making perfect sense on the surface, has been directed nearly solely at the state and its representatives.

What we have, then, is a textbook case of “new war,” the manner in which globalization has created para-states, such as human rights groups, which claim unto themselves the rights and privileges of states, even while claiming sovereign immunity in their effort to attack actual states.  In such a larger war effort, the rights of an individual are deemed quite irrelevant by the powerful forces determined to get at NA in any way possible.  “Human rights” simply provides the avenue for attack.

In this new war, “framing” and “narrative” are weapons more potent than mere bullets.   How a struggle is pictured – framing – drives the interpretation of events therein.  A struggle framed as a “people’s movement” against the dictatorship of the flawed old-order, for instance (i.e., Nepal as a constitutional monarchy), necessarily results in those waging the struggle being touted as “freedom fighters” as opposed to “rebels” or “insurgents.”

Mistakes they make in their fight are understandable if regrettable.  The violence of the Maoists is simply overlooked, despite the copious evidence which would allow prosecution of numerous Maoists at far loss effort than that involved in endeavoring to ferret out supposed NA perpetrators.

In this, though, narrative also plays a powerful role in ensuring that the state is the target.

The narrative is the “story line” of the conflict.  Freedom fighters, to continue with the illustration, are engaged in a just struggle, so certain liberties are allowed.  Collateral damage becomes regrettable but understandable, because the tale is one of resistance against serious odds, of commitment to a noble end (liberation) , and of selfless sacrifice that others may breath free.

It scarce needs mention that the side which controls the high ground of framing and narrative monopolizes unto itself the ability to dispense “justice.”  To date, those with advantage have been those with the linkages that allow the mobilization of neo-colonial assistance, both moral and tangible.

Even in the efforts to fashion a Truth and Reconciliation Commission (TRC), the neo-colonialists have objected to all that has been advanced by Nepalis.  Yet ultimately, if cases such as that of Major Basnet – and Ms. Sunwar, whose family has been used – are to be more than tactical episodes in a larger struggle, there must be agreement amongst Nepalis upon the terms of reintegration and forgiveness.  This will never be achieved by claiming the halo of human rights as just grounds for using lies and deception to attack an innocent man.

THOMAS A. MARKS is Professor of Insurgency, Terrorism, and Counterterrorism at the School for National Security Executive Education (SNSEE) of National Defense University (NDU) in Washington, DC and the author of Maoist Insurgency Since Vietnam (London, 1996), considered the current standard on the subject of “people’s war.”