Nepal: Gender and Transitional Justice in Nepal

July 9, 2008 - (Telegraph Nepal) The world has seen many forms of conflict, from rifts between tribes of one community, to large scale atrocities to arbitrary war. Whatever be the case, destructive and violent conflict leaves deeper wounds than just those visible from the surface. The Nepalese internal conflict between the Maoist and state forces which lasted 13 years left approximately 13,000 dead and between 100,000 to 200,000 displaced. The “Peoples war” is internationally known for the overwhelming number of disappearances especially between 2002-2003 as reported by United Nations Working Group on Enforced and Voluntary Disappearances.

International experiences of countries emerging out of conflict or decades of human rights violations often espouse a process of transitional justice. Transitional justice is a set of approaches that societies and countries adopt, during a period of transition to more progressive and nonviolent setting, in order to deal with the atrocities of the past and create conducive atmosphere for peace in the future. These could include a combination of approaches such as truth telling, reparations, prosecution of perpetrators, reconciliation and institutional reform among others.

The Government of Nepal and the Communist Party of Nepal (Maoist) signed a Comprehensive Peace Accord (CPA) on November 21, 2006 officially ending the Peoples War. Along with other post-conflict provisions, it entailed the setting up of a “High-level truth and reconciliation commission” specified under “Measures for Normalization of Methods” and thus indicated certain provision towards transitional justice. However, the follow-up of a draft bill on Truth and Reconciliation Commission (TRC) has no indication on prosecutions and almost provides blanket amnesty for the perpetrators of human rights violations. This therefore is a clear indication of the level of impunity that exists in Nepal’s transitional setting. On top of this, there almost no provision for inclusion of women’s experiences during conflict and thus of gender-sensitive approaches in any transitional justice process in the future. Amidst much of the political events it is easy to push women issues to the back and leave it there. Thus an important fact has ignored that although from first glance conflict looks have mostly affected men, it is in fact gendered.

For instance, the conflict in Nepal left behind thousands of single women (widows) who have had to take all family responsibility on their shoulders regardless of whether they were educated or had a source of income. Many women are still searching for missing husbands and children, years since their relatives disappeared, harboring hope that some truth will emerge from their years of anxiety and worry. According to Lily Thapa, Chairperson of Women for Human Rights, Single Women Group, the way in which women are treated in society as subordinates and dependant on male family members, meant that during conflict many women who lost husbands found themselves in worse positions of poverty and vulnerabilities of psychological, physical and sexual nature. Women have also been involved as combatants and supporters of family members involved in conflict and have suffered harassment and violence as a result of this.

The clause for establishment of a TRC in the CPA is a step in the right direction by the leaders of Nepal; however there are many opportunities and challenges. One can learn from past experiences of transitional justice processes from other nations who have faced legacies of human rights violations in the past.

South Africa is a nation known for its successful TRC and reparations process as being a swift and committed approach by the new government with active involvement of the civil society and victims groups. What one may not know is that in terms of gender-sensitive approaches, there are more lessons we can learn from what South Africa did not do. After South Africa emerged from the apartheid in the early 1990’s the new government established a TRC which operated between 1995 and 1998. It had an ‘Amnesty clause’ which allowed perpetrators of human rights violations full amnesty if they disclosed their involvement in minor crimes. Victims of conflict were eligible for reparations benefits only if they gave testimonies/statements of the crimes that happened to them or their families.

The South African government however failed to include in its TRC mandate the need for gender-sensitive approaches, which took into account women’s experiences of conflict and their needs and as a result conflict-affected women especially in rural areas were left out of process. Special targeted provisions for women, like special courts for giving statements were carried out in few places in a short space of time; this meant that women victims of sexual violence who were not ready to speak at the time or could not access the courts were left out. In another example, although gender-based violations were included under definitions of victims of torture, and severe ill-treatment depending on the degree of the crime, dependant women of those killed or missing were treated as indirect or secondary victims. There was also very little provision of recognition for the roles women played during and after the South African conflict.

The transitional phase in South Africa was an opportunity to address the years of patriarchal suppression and unjust apartheid practices against women, but it in fact might have deepened those wounds. One can argue that as a result women in South Africa continue to face human rights violations such as sexual and domestic violence at an increasingly alarming rate as it is reported that one in every three South African woman will face sexual violence in her lifetime.

East Timor experience is slightly less popular than the South African one and although the Timorese government has not yet prosecuted perpetrators nor implemented recommendation which the TRC report of the country presented at a satisfactory level, it is an exemplary example of the significance of a little innovation and creativity. After East Timor gained independence from Indonesia in May 2002 it established a Commission for Reception, Truth and Reconciliation (CAVR). It was mandated by a UN Regulation 2001/10 that gender perspective be integrated into all the work of the CAVR. As a result, all the staff of the Commission at district, regional and national level was gender balanced. Statement taking teams had 50% women. A training unit that conducted training for staff members included in its package gender- sensitivity issues. Galuh Wandita, who worked with the CAVR, said in a recent workshop on "Gender and Transitional Justice” that TRC is “no magic pill”, it is a vehicle that will help a society emerging from conflict to find justice provided the entire process is participatory and reaches out to people. In East Timor women groups and organizations were actively involved from the onset and partnered with the commission in many ways. The Timorese experience is known for its innovative ‘healing workshops’ through its Victims Support unit and collective reparations community project with NGO’s. Violations that women suffered such as rape, torture, imprisonment or as family members of those disappeared or murdered and single mothers were treated under ‘urgent reparations schemes’ as well as subsequent schemes. The experience showed that including gender issues into the mandate from the beginning is key.

Nepal’s Ministry of Peace and Reconciliation in its new definition of ‘victims of conflict’ for state benefits includes single women (widows) and orphans, those killed and disappeared, those who faced loss or damage of property, those who faced disability or injury and internally displaced persons. While women who faced abduction, illegal detention, gender and sexual violence like rape or torture have been completely excluded. The government is choosing to ignore reports by non-governmental and international organizations of the occurrence of rape and sexual violence during conflict.

Impunity, or the absence of punishment, is the second wave of violations and the amnesty provision in Nepal’s TRC bill could cause more harm. For women, impunity means lost hope and the demotivation to seek justice. According to Mandira Sharma, Executive Director of Advocacy Forum, at this time there is need for pro-active involvement of civil society, victims groups and the international community in actively advocating for a comprehensive and inclusive transitional justice process from the onset. She stressed that broad based consultations with these groups is urgent and imperative and women organizations need work for the inclusion of gender in any transitional justice process for the future.

So, while the transitional phase for Nepal holds plentiful hope for a better nation and society, allowing the victims of conflict regardless if it was a woman who faced some form of sexual violence or a mother of a missing person, will be allowing many open wounds to be passed down generations. There is no guarantee that these wounds will not awaken anger and foster new conflicts in the next generation. Therefore, it is of utmost necessity that through commitment or creativity every mother, wife, sister and daughter who faced trauma and harm from conflict be taken into account in any future process for Nepal. If every person is born from a woman then justice and peace too has to begin there.

(The author is a Sri Lankan student, who was granted a research fellowship by Advocacy Forum Nepal, for research on Transitional justice)

From:http://www.telegraphnepal.com/news_det.php?news_id=3700