Nepal's government fails to protect women human rights activists, says Amnesty International
On April 10, Amnesty International (AI) launched an appeal and a short video calling upon the Nepalese government to protect women human rights activists. A year after a new Constituent Assembly in Nepal was elected, women human rights activists continue to be at high risk of attack and progress in establishing transitional justice mechanisms has been slow despite the Maoists’ campaign promises to end impunity and improve the human rights situation. "When the Maoist Government came to power, it made commitments to protect women's rights but these now seem like false promises," said Madhu Malhotra, Amnesty International's Asia-Pacific Deputy Director. "Now that they are in government, all the revolutionary rhetoric has not resulted in real improvements in women's lives.”
Greater Attention to Women in Transitional Justice: An ICTJ Report on Afghanistan
In Nepal and elsewhere, civil society groups have called for greater attention to women in transitional justice processes. In February 2009, the International Center for Transitional Justice (ICTJ) published a report on gender-specific violations in Afghanistan. The three authors – Fatima Ayub, Sari Kouvo and Yasmin Sooka – argue that the deprivations and violations suffered by women are rarely specific to outbreaks of war. Rather, the authors conclude that the conflict merely accentuates discrimination and violations that women suffered during peace.
In the past, the experiences and needs of women were not specifically addressed by most transitional justice approaches. Some progress has been made. The ICTJ authors mention for instance the use of thematic gender hearings in truth commissions, the fact that truth commissions and other investigative bodies today regularly collect data disaggregated on the basis of gender, or the fact that international tribunals today include rape and other forms of sexual violence in the list of crimes to be prosecuted. However, many challenges remain.
Women’s suffering = Direct Sexual Violence? It is more complicated
In a previous post in this Forum, I have criticized that the Liberian Truth and Reconciliation Commission (TRC) has narrowly conceived women’s suffering. By concentrating exclusively on direct sexual violence (gang rape, sexual slavery, etc.), the Liberian TRC has missed an opportunity to analyze the complexity of the gendered dimensions of the conflict as well as of discriminations and biases already existing prior to the outbreak of the civil war. It simply seems wrong to assume that if women’s human rights are violated, it must necessarily always be related to direct sexual violence. Moreover, it would also be wrong to assume that sexual violence only affects women.
Similar points are made by the three authors of the ICTJ. They write that “the reduction of gender to simply sexual violence against women is to ignore the gendered dimensions of conflict.” As a positive example, they mention the truth commission of Sierra Leone. Part of the mandate of Sierra Leone’s truth commission was to focus on the experiences of women and in particular, the sexual violence that occurred in the conflict period. However the commission went further and highlighted in its report the structural injustices that women had experienced as a result of gender inequalities in Sierra Leone in the period before, during and after the conflict. Ayub, Kouvo and Sooka point out that the extensive findings of the Sierra Leonean commission provided an account of how social, legal, political and cultural forces conspired to render women more vulnerable during the conflict.
Specific Incidences and Structural Problems
How can transitional justice processes be equipped to empower women and to reverse a discriminatory environment? How can transitional justice grapple with systemic and structural problems which go beyond the focus on specific moments in time? Transitional justice has traditionally focused on specific incidences of human rights violations. Especially in criminal prosecutions, the legal vocabulary which can be used to build a case against a perpetrator must necessarily concentrate on specific events. While it is a challenge to distinguish between those gender-based violations that stem directly from conflict and violations that occur during peacetime or as indirect products of conflict, this distinction may not matter so much for those women (and men) concerned. Even if the vocabulary of transitional justice mechanisms is limited by their respective mandates and powers (or the way these have been interpreted), the human rights law framework in general does not preclude the analysis of continuous, systemic or structural violations. For instance, the UN Committee on Economic, Social and Cultural Rights – the organ of the UN supervising the implementation of the Covenant on Economic, Social and Cultural Rights in 2005 issued a General Comment on how to interpret the “equal right of men and women to the enjoyment of all economic, social and cultural rights (art. 3 of the International Covenant on Economic, Social and Cultural Rights)”. The Committee clearly explains that “substantive equality for men and women will not be achieved simply through the enactment of laws or the adoption of policies that are, prima facie, gender-neutral. In implementing article 3, States parties should take into account that such laws, policies and practice can fail to address or even perpetuate inequality between men and women because they do not take account of existing economic, social and cultural inequalities, particularly those experienced by women.”
While not expecting any transitional justice mechanism to solve problems of inequality, income gaps and the distrust of state institutions at once, the Sierra Leonean example shows that it is possible that transitional justice strategies can be designed to at least create the opportunity to tackle these fundamental weaknesses. At the same time, if we agree that discriminations faced by women (or others) are deeply rooted and pre-existing to the outbreak of conflict, the “social engineering dimension” of transitional justice becomes all the more apparent and it seems all the more imperative that those concerned are given a voice in the decision-making at all stages. As far as Nepal is concerned, the government should be encouraged to take immediate steps to ensure that its promises can be realized.
Nepal: Extend the mandate of the OHCHR Field Mission and protect all human rights defenders
While Nepal has some plans for a truth commission and other transitional justice mechanisms, it is not clear whether they will take off anytime soon. In addition, the UN Office of the High Commissioner for Human Rights (OHCHR) has a field mission in Nepal, and its mandate expires in June 2009. The High Commissioner personally visited Katmandu to request a three-year extension to continue the work of capacity-building of national human rights institutions and individuals; promoting a culture of accountability and respect for rule of law; and promoting enjoyment of economic, social and cultural rights. So far, she is still waiting for an answer.
As Amnesty International writes on its website, the Nepalese state has a duty not only to ensure that its agents and officials do not commit violence against women, but also to protect women from violence committed by private individuals and bodies including members of their own families and communities.
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