NEW YORK-On the eve of King Gyanendra's departure for the annual meeting of the UN General Assembly in New York, Washington is deliberating whether or not Secretary of State Condoleezza Rice should apply an exceptional waiver to allow lethal military assistance to the Royal Nepali Army to continue.

In October 2004 the US Congress passed legislation, spearheaded by Senator Patrick Leahy and later signed by President Bush, which required improvements in the RNA's behaviour on some fundamental human rights issues. This legislation included conditions that the army obey orders laid down by the Supreme Court, that it cooperate with the NHRC and that it investigate allegations of abuses by forces under its control.

Washington had found the RNA's actions in combat such a liability that it could no longer provide military aid unless these conditions were met. Only the Secretary of State, citing 'national security' concerns, could waive the conditions. This came as a blow to the RNA and the government generally. Initially, the RNA did not take the 'Leahy amendment' seriously. Arbitrary arrests, disappearances and torture at RNA hands continued unabated.

In the aftermath of February First, India and the UK suspended lethal military assistance to Nepal although both have since resumed provision of non-lethal military assistance. The US did not announce a suspension but no lethal military aid went in. In the face of such strong international condemnation, the RNA adopted some cosmetic measures, which it hoped would be read as real reform. Instead of refusing to produce a detainee before the courts, the security forces have adopted the cynical practice of immediately re-arresting the same detainee after a court ordered release, often from the very steps of the courthouse.

The NHRC has been occasionally allowed to visit military detention centres but has often been denied access to all prisoners-conditions under which the ICRC has refused to operate. The RNA sometimes now announces prosecutions of soldiers but as no details of alleged offences are offered, whether these are for war crimes or for drunken or disorderly conduct is anyone's guess. And even in the handful of cases where soldiers have been tried for serious crimes, the court martial results-when available-are shocking: for homicide a two-year sentence, for sexual assault and rape a transfer to another barracks.

The US believes firmly that the Maoists are a real threat to Nepal and to the region. Given ongoing US military operations in Afghanistan and Iraq and its long-standing anti-communist policy, there is strong sympathy in Washington for governments like Nepal fighting a brutal insurgency campaign-and even more sympathy given that those insurgents are self-declared Maoists.

Even if there is a special waiver, it is very likely the US will follow the lead of India and the UK and send only non-lethal assistance. If the US chooses this route, the RNA should not interpret it as a signal of support. It is not a step towards future lethal military assistance, for which the RNA has been clamouring but a rebuke. It will be a way of maintaining leverage over the RNA without providing it the weapons to commit further abuses.

The Maoists regularly and systematically violate human rights and the laws of war but that does not justify the RNA engaging in similarly brutal tactics. For two years in a row now, Nepal has the sad distinction of having the largest number of reported 'disappearances' worldwide. This little known fact says a lot about how the war is being fought by the RNA.

If the RNA does not care about the rights of Nepali citizens, then the US will have great difficulty accepting it as a legitimate partner.

Tejshree Thapa is a researcher in the Asia Desk of New York-based Human Rights Watch.