Nepal: experts affirm the need for reform of Transitional Justice legislation to ensure the right to an effective remedy to all victims and survivors, particularly women

Nepal: experts affirm the need for reform of Transitional Justice legislation to ensure the right to an effective remedy to all victims and survivors, particularly women

The ICJ launched a new briefing paper Nepal: Transitional Justice Mechanisms with Gender Perspective in a webinar held on 12 May 2021.

The discussion included the need to give practical effect to Nepal’s obligation under international law to ensure the right to an effective remedy to the victims, including women victims of sexual and gender-based violence during the country’s internal armed conflict (1996 – 2006). Participants focused in particular on the need to ensure that gender issues are incorporated in the transitional justice mechanism.

The Honourable Kalyan Shrestha, former Chief Justice of the Supreme Court of Nepal and ICJ Commissioner, stressed the importance of the role of the Supreme Court of Nepal in establishing landmark jurisprudence on transitional justice.

Justice Shrestha explained how despite the fact that the country had established a progressive Constitution and amended legislation to provide for equality, non-discrimination and access to justice, women victims and survivors of a decade long armed conflict continued to face real barriers to justice. These including short periods of statute of limitations preventing the filing rape and sexual violations cases and lack of support mechanisms for women, which compounded existing economic pressure and social obstacles.

Bandana Rana, Member of the UN Committee on the Elimination of Discrimination against Women (CEDAW), addressed the situation of sexual and gender – based violence against women in Nepal during the armed conflict. She said that Nepal was bound by clear international legal obligations, including under the CEDAW and other treaties. Yet the Nepali government has not taken effective measures to ensure access to justice and the right to an effective remedy to the victims of SGBV during the conflict.

Laxmi Pokharel, ICJ Legal Adviser, summarized the ICJ’s briefing paper on “Nepal: Transitional Justice Mechanisms with Gender Perspective”. The Paper’s major recommendations, to the Government of Nepal, are:

  • Amend the Truth and Reconciliation Act (TRC) in line with the Supreme Court’s order and Nepal’s international obligations;
  • Ensure participatory, consultative processes while amending the TRC Act;
  • Ensure the participation of women at all levels of recruitment, including in the formation of the recommendation committee, in the appointment of Commissioners of both the TRC and the Commission on Investigation of Disappeared Persons (COID) and at all levels of staffing with a view to ultimately achieving gender parity;
  • Provide gender-sensitive trainings to the Commissioners and staff of the Commissions in order to enhance their capacity to address gender issues in their operation;
  • Take all necessary steps to amend the Criminal Code to remove the statutory limitation for filing incidents of rape and other sexual violence, including in relation to acts committed during the armed conflict, in order to ensure justice for all victims;
  • Ensure that amnesties and mediation are not used to replace criminal responsibility for gross violations of human rights, including rape and other sexual violence.
  • Incorporate a gender-responsive approach in all aspects of the Commissions’ work, including in the interpretation and application of the mandate of the Commissions, prosecution of perpetrators and reparation to the victims and survivors;
  • Incorporate an approach in the Commissions’ work that does not restrict women’s experiences during the armed conflict only to bodily harm suffered, but also takes account of structural gender biases and its consequences during the period of a conflict;
  • Design and implement gender-friendly procedures for investigation, including statement taking, victim and witness protection and other activities of the Commissions;
  • Design and implement specific reparation policies to address the unique needs of women victims;
  • Ensure that the gendered aspects of the armed conflict, including its causes and consequences are incorporated in the final report of the Commissions;
  • Take effective measures to ensure the widest possible dissemination of the final report of the Commissions in order to ensure that the wider population is made aware of the truth, most especially in relation to women.

The webinar was jointly organized by ICJ in collaboration with the United Nation’s Office of the High Commissioner for Human Rights (OHCHR) and UN Women. This event was organized under the ‘Enhancing Access to Justice for Women in Asia and the Pacific’ project funded by the Swedish International Development Cooperation Agency (SIDA). Due to the COVID – 19 pandemic the webinar was conducted virtually and live broadcasted on Facebook. It was conducted in English language and simultaneous translation in Nepali language was also available.

Contact

Laxmi Pokharel, ICJ Legal Adviser – Nepal, email: laxmi.pokharel(a)icj.org

Download

Briefing paper on “Nepal: Transitional Justice Mechanisms with Gender Perspective” (full report in PDF)

Nepal : On the International Day of the Disappeared, organizations call for an end to continuing delays in justice for the country’s many victims

Nepal : On the International Day of the Disappeared, organizations call for an end to continuing delays in justice for the country’s many victims

While commemorating the International Day of the Disappeared 2020, the ICJ and 47 other national and international organizations and groups of victims, in Nepal, call on the responsible authorities to undertake immediate steps towards reinvigoration of the transitional justice (TJ) process, adopting a transparent and consultative process.

On this occasion, the victims’ groups and human rights organizations in Nepal commend the patience and resilience shown by the family members of those subjected to enforced disappearance during the 10-year-long internal armed conflict from 1996-2006. They have worked tirelessly advanced the TJ process (Truth, Justice, Reparation and Institutional Reform) in Nepal for more than a decade through their peaceful struggle, despite many difficult hurdles.

In 2015 the Supreme Court found several sections of the Truth and Reconciliation Commission (TRC) Act, including the one empowering the commissions to offer amnesty and facilitate mediation/reconciliation between victims and perpetrators, including those involved in gross human rights violations, to be unconstitutional and non compliant with Nepal’s international obligations. More recently, on 26 April 2020 the Court rejected the petitions of the Government to review and revise the 2015 decision.

To date, the Government has not initiated any effort to amend the law as per these decisions. Rather, it has been misusing these Commissions in a manner that has prevented victims from accessing remedies through the regular criminal justice system and has made no efforts to strengthen these Commissions to delivery their mandates effectively. Two years back, Nepal recognized enforced disappearance as a distinct crime for the first time when enacting a new Penal Code. While this step is commendable, these legal provisions have not ensured justice for victims, the police typically refuse to investigate cases from the conflict period,arguing that they come under the jurisdiction of the TJ mechanisms.

Despite civil society’s repeated calls to appoint the Commissioners after amending the TRC Act following wider consultations with victims and civil society, the Government recently appointed Commissioners under the same Act that the SC had deemed flawed five years ago. Moreover, the Government has not addressed the repeated calls and concerns regarding the political interference and lack of transparency in the appointment of the Commissioners and the overall TJ process.

Human rights organizations and many victims groups have lost confidence in and stopped supporting to these Commissions.

The undersigned organizations call upon the Government of Nepal:

  • To ensure the Commissions provide for, rather than delay and deny, truth and justice to
    victims;
  • Start fresh consultations to amend its law in compliance international human rights law
    and Supreme Court directives, including by removing of amnesty for the perpetrators
    provisions;
  • Appoint a new set of commissioners under the revised Act that respects victims basic right
    to truth and justice;
  • Immediately ensure the social, cultural, economic, psychological and legal support
    suffered by the victims and families of enforced disappearance as part of victims’ rights
    to reparation;
  • Revise the Penal Code to bring it in line with international standards. As a minimum, this
    should include:

    • amending the definition of enforced disappearances to bring it in line with Nepal’s international obligations and the Convention on the Protection of All Persons from Enforced Disappearance
    • revising the penalty for enforced disappearance in the Penal Code to make it proportionate to the gravity of the crime
    • removal of the statute of limitations for enforced disappearance cases
  • Ratify International Convention for the Protection of All Persons from Enforced Disappearances Punishment.

Download

Full joint-statement with detailed information in English and Nepali. (PDF)

Contact

Ian Seiderman: ICJ Legal and Policy Director, e: ian.seiderman(a)icj.org

Mandira Sharma: ICJ Senior Legal Adviser, e: mandira.sharma(a)icj.org

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