by Salina Kafle*
Nepal witnessed an internal armed conflict between the Government of Nepal and the Communist party of Nepal from 1996 to 2006. The conflict came to an end with the signing of the “Comprehensive Peace Accord” between the parties of the conflict in 2006. During the decade long conflict, several gross human rights violations, including sexual violence, were committed on a widespread and systematic scale by all parties involved. The security forces raped and sexually violated women and girls while they were held in custody and detention, during the course of interrogation and conduction of joint security force operations in the villages to locate the Maoists. In several cases, the girls who were identified as the Maoists were eventually killed after being raped. There are also reports of sexual violence committed by the Maoist cadres during the conflict. Most of the girls subjected to rape and other sexual forms of violence were minors. The sexual violence inflicted included rape, gang rape, attempted rape, and forced nudity, among others. There are no studies or reports on sexual violence committed against boys and/or men during the conflict of Nepal so far.
A legislation ‘Truth and Reconciliation Commission Act 2014’ (TRC Act) was introduced to address the human rights violations that occurred during the conflict. Two mechanisms under the Act, namely, “Truth and Reconciliation Commission” and “Commission of Investigation on Enforced Disappeared Persons” were formed under the Act. Although 14 years have passed since the end of the conflict, the situation of the victims of sexual violence remains the same. Some serious issues relating to such victims and survivors are discussed below:
A. Non recognition of the victims of conflict related sexual violence
The victims of Conflict Related Sexual Violence (CRSV) have not been recognized as victims of the conflict by the Government of Nepal. This has not only led to exclusion of the victims from the reparation programs of the government, but also provides an incomplete picture of the impacts of the conflict in Nepal.
In 2011, the Government adopted the first National Action Plan (NAP) on UN Security Council Resolutions 1325 and 1820, aiming to support women affected by the conflict. However, the NAP phased out in 2016 without any meaningful change in the lives of the victims of CRSV. The Government is set to launch a second NAP and consultations are ongoing. Nonetheless, the process has been slow and is less likely to address the needs of CRSV victims in a holistic manner and identify and prosecute the perpetrators.
B. Legal hurdles: a massive challenge
Between 2015 and 2017, both Commissions registered 63,000 complaints of violations from all over the country. Out of these complaints, only 300 victims registered complaints about sexual violence inflicted upon them. This number is outrageously less compared to numbers identified in several studies conducted by international organizations and Civil Society Organizations of Nepal. However, there is no central data on the number of the victims. A victim of sexual violence who registered the complaint as ‘wounded victim’, recalls her experience; “the officer present at the TRC office mentioned that the complaints of sexual violence cannot be registered unless there is an eye-witness on the case.” The victims of sexual violence who have registered complaints have never been contacted by the Commission so far. The Truth and Reconciliation Commission is a recommendatory body that has no mandate to prosecute the perpetrators of sexual violence .
Furthermore, there is an absence of laws and legal mechanisms to appropriately handle the cases of conflict-related sexual violence in Nepal. The general cases of rape and sexual violence is regulated by the National Penal Code, 2018, which replaced the “National Crime Code” that existed during the period of internal armed conflict. The Code has a statute of limitation to report crimes of rape and sexual violence. Until 2018, the time limitation to report the crimes of rape was 35 days, which was later increased to 6 months and currently to 1 year. The time limitation barred many victims of conflict to register their complaints during the conflict. The Special Rapporteur on Violence Against Women, in her 2019 report on Visit to Nepal and the Human Rights Committee after the decision on Fulmati Nyaya v Nepal, considered the one year limitation not commensurate to the gravity of the crime. She highlighted that the one year limitation does not reflect the difficulties faced by victims in reporting sexual violence. However, no amendment has been made so far. The legal barrier has majorly kept the CRSV survivors out of legal mechanisms. Furthermore, the Nepali legislations do not codify rape and other forms of sexual violence as war crimes and crimes against humanity, pursuant to the applicable international standards.
One of the achievements of women human rights defenders was challenging the ‘amnesty’ provision under the TRC Act, which later was repealed for the cases of rape. However, the Act still holds room for ‘reconciliation’ which must further be strongly voiced against by all the concerned stakeholders, including human rights defenders.
C. Lack of reparation programs
The victims of CRSV are still suffering from long-term physical and mental consequences. They still wait for medical assistance, legal aid, and livelihood support, among others. The government provided interim relief measures and monetary assistance to the relatives of individuals killed, forcibly disappeared, and those injured or disabled as a result of the armed conflict. However, the victims of sexual violence were not entitled to claim any compensation, reparation, or similar support services. In absence of such relief packages or any other medical help, most of the victims are bound to live with physical and psychological ailments. Whilst the victims are in dire need of medical support, neither any Commission nor government authority has showcased concern on the situation of the health of such victims, let alone reparation programs.
D. Limited channels of international mechanisms
There exist a few channels that can be triggered under international mechanisms to address the CRSV in Nepal. As the country is not a party to the Rome Statute, the cases cannot be referred to the International Criminal Court. Since Nepal is a party to several UN international treaties, the non-government organizations have strategically adopted the applicable mechanisms under the treaty bodies to represent the victims of CRSV and file individual communications/complaints against Nepal. In May 2019, the Human Rights Committee (HRC) adopted a landmark decision on the CRSV against Nepal. While this was the second decision by the HRC on CRSV of Nepal, the Nepali government has always been reluctant in implementing the decisions rendered by these international treaty bodies.
As human rights spaces shrink, only a few organizations are working against gross human rights violations, including CRSV in Nepal. Human Rights and Justice Centre, established by TRIAL International in Nepal and a few other organizations have been representing the victims before international avenues through individual complaints. A few other non-government organizations are also documenting the cases of CRSV and supporting survivors with medical, psycho-social, and livelihood support. However, the herculean task of making the government responsible for its State obligations remains challenging.
The CRSV victims still wait for redress and reparation, while they face immediate needs, including medical support in Nepal. The exclusion of the victims of CRSV from Interim Relief Programs, compensation, reparations and other support services has largely affected the victims of CRSV. Accordingly, victims were unable to report their cases and their stories have never been systematically recorded or investigated. Impunity remains rampant. Notably, many victims of CRSV were minors when they were subjected to the violations concerned and are still coping with significant health issues, both physical and psychological, without any adequate support. The violence exists along a continuum for these women as well as men. The non-attention of the government towards the sensitivity of CRSV in Nepal reflects the persistence of patriarchal attitudes and deep-rooted stereotypes against women. With the exclusion of a discussion on CRSV in Nepal, only a masculine narrative of the conflict exists.
A few victims of CRSV who have been vocal about the violence still have hopes of prosecution of the perpetrator(s) and receiving comprehensive and holistic reparation, among others. The civil society organizations (CSOs) working in the field of CRSV, together with victims’ groups, must adopt a collaborative approach to work on the issues related to CRSV. As reflected, the government’s reluctance must be challenged collectively from the Nepalese CSOs. Similarly, the issues of CRSV must be brought in the mainstream discussion through an increased engagement of journalists and human rights defenders through media sensitization of the issue.
*Human Rights Advocate, Nepal