The killing of journalist Dekendra Thapa and the alleged human rights violations by Colonel Kumar Lama, both of which took place during the conflict period, have been haunting Nepali politics for the past few weeks. In the backdrop of this is the delay in the formation of the Truth and Reconciliation Commission (TRC) and Commission on the Inquiry of Disappearances (CoID). While these have been in the process of making for several years, what has stopped the formation of the mechanisms is the unwillingness of political parties to abide by internationally accepted standards.
There are hundreds of cases of conflict-era human rights violations recorded by the UN Office of High Commissioner for Human Rights (OHCHR). The OHCHR report, reports of different civil society organizations (CSOs) and other agencies also list many cases related to sexual violence against women and girls by both the security forces and the then rebel group that have never come to public discussion for various reasons.
First, the patriarchal values in our society restrict female victims from sharing their cases in public. They fear that bringing the cases in public could close the doors of their homes and families for them. Second, a large majority of women still depend on male family members for their financial needs, and expulsion from the family could mean not having place to live. Third, the safety of the victims also becomes an issue once they make public the names of alleged perpetrators. These reasons have prevented many women and girls who were victims of sexual violence during the conflict period from seeking justice.
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In addition to the above reasons, there are legal technicalities, particularly in the case of rape, that make it difficult for women to get justice. The Nepali Country Code (Muluki Ain) imposes a 35-day statute of limitation, which means a victim has to file a complaint or First Information Report, (FIR) with the police within 35 days of the crime. According to human rights activists, police did not readily accept FIRs during the conflict—despite the rapes and other forms of sexual violence that are said to have occurred at the time. Therefore, it was hardly possible for the victims to get justice. Different CSOs have been demanding the amendment of the 35 days statute of limitations in order to ensure justice for rape victims, but the changes have yet to take place.
There are also gaps in documentation. Even though different CSOs and UN agencies have documented conflict period violations of human rights, there is still need for a strong database to record cases of sexual violence, mainly because many of the cases that were not registered may never come up for trial owing to the statute of limitations.
The Nepal Conflict Report of United Nations Office of the High Commissioner (OHCHR), 2012 describes that both International Human Rights Law (IHRL) and International Humanitarian Law (IHL) prohibit acts of sexual violence both during peacetime and during conflicts. IHL prohibits rape, sexual slavery, forced prostitution, forced pregnancy, enforced sterilization and other forms of sexual violence of similar gravity, which can include assault, trafficking, and strip searches. Under IHRL, gender-based violence including sexual violence is “discrimination within the meaning of article 1” of Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Sexual violence can constitute a war crime, a crime against humanity, a form of torture, or an element of genocide.
The OHCHR report adds that children, especially girls under 18 years old, were particularly vulnerable during the conflict. More than a third of the victims of sexual violence were children, many under 15 years of age. There are even cases where the victim was under 10 years of age. A number of cases affected multiple victims, often when Security Forces reportedly committed sexual violence in the course of search operations. There are also cases where the victims were allegedly sexually abused when pregnant, and even those with mental disabilities were not spared. Further, some victims lost their lives as a result of unwanted pregnancy caused by rape, or during the course of abortion following such pregnancies.
The OHCHR report highlights the importance and need of gathering data on conflict related sexual violence to understand the magnitude and extent of the problem, and has also called for an urgent investigation and prosecution of sexual crimes committed by both Maoist and Security Forces.
Nepal has made a number of efforts to ensure women’s human rights. The adoption of National Action Plan (NAP) under United Nations Security Council Resolutions (UNSCRs) 1325 and 1820, and the National Plan of Action against Gender-Based Violence are some steps taken by the government in that direction. Many of these are reflected in the national plan and procedures for the formation of Local Peace Committees, and some of these instruments seek to address conflict period crimes of sexual violence. The government has also adopted a National Strategy and Plan of Action to end gender-based violence and to ensure women’s empowerment.
The objectives of this Strategy and Action Plan are to complement and give continuity to the previous plans and to strengthen the government’s efforts in promoting gender equality and ending violence against women. This Action Plan commits to review, enact and amend legislations that are discriminatory against women, and also to strengthen the law and policies to provide effective legal assistance to victims.
Similarly, a Gender Unit has been established in the Ministry of Peace and Reconstruction (MoPR) for the implementation of the NAP on UNSCRs 1325 and 1820, and several District Coordination Committees have been formed and activated in various districts for its implementation. MoPR has also published its one-year monitoring report on the implementation status of NAP on UNSCRs 1325 and 1820. The report highlights the need of collection of data on women victimized during conflict with the support of NGOs, since accurate data is vital for launching comprehensive programs for supporting conflict victims. Besides, the government has also put in place a number of policies to provide interim relief to conflict victims but different CSOs have reported that this support has not reached the victims of sexual violence.
The cases of Dekendra Thapa and Colonel Lama are among the few that have received both national and international attention. But cases of sexual violence also require attention, because most of the cases remain either unreported or under-investigated. This needs to be a priority of the transitional justice mechanism. Until that is done, it is important to begin documenting cases that still remain unreported, as this can serve as the basis for the transitional justice mechanism to take further actions. Even before that is done, there is a need to amend the 35-days statute of limitation in the law to facilitate voluntary reporting of cases that went unreported because of this provision.
The author advocates for gender equality
rachana_bhattarai@hotmail.com
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