Gang rape of indigenous woman by members of armed forces is a war crime

Facts

The author of the communication is Devi Maya Nepal (pseudonym), a national of Nepal. The author, a laborer and housewife, is a member of an indigenous community of Tharu. She is married, has a three year old daughter and lives in extreme poverty. She claims that the State party through the acts of:(a) being subjected to rape (a grave form of internference in her private and family life in front of her daughter, resulting in pregnancy) and other sexual violence, (b) failure of the State party to adopt legislations giving effect to the author’s right under the Covenant with regards to rape and other forms of sexual violence (c) failure to investigate her allegations of torture, sexual violence and ill-treatment, (d) failure to  register her complaint, (e) failure to provide special measures that she was entitled to as a member of the indigenous community, has violated her rights under article 7, read alone and in conjunction with articles 2 (1-3), 3 and 26 of the Covenant. Additionally, she also claims violations of her rights under articles 17 and 23, each read alone and in conjunction with articles 2 (1), 2(2), 3 and 26 of the Covenant.

Armed conflict:The author urges readers to read the communication in the context of the decade- long armed conflict (1996-2006) between the Government and the Communist Party of Nepal during which systematic gross human rights violations took place.

Findings of the Office of the United Nations High Commissioner for Human Right: On page 158 the report states findings of systematic torture, including rape and other forms of sexual violence during this conflict; security forces appeared to have perpetrated the majority of sexual violence cases during their search for Maoists, women suspected of supporting Maoists faced particularly severe violence, action rarely taken in response to sexual violence allegations against security forces members; victims of sexual violence feared further victimization and stigma.

Attack on the author (warning-explicit mention of certain words might trigger the reader): On August 20, 2002, a group of six uniformed soldiers entered the author’s house and repeatedly asked her if she was hiding Maoist insurgents. They began touching her genitals and hit her with boots and butts of their guns after which they dragged her to the bed. The soldiers squeezed her breasts and subjected her to vaginal rape. After threatening to kill her if she reported the incident, she was beaten until she fell unconscious. Her clothes were torn and she bled profusely from her vagina. After the attack, she was in a state of shock and was physically very weak.  The next day she was taken to a “medical centre,” which was not a proper hospital as there was no thorough examination, nor provision of  any written certificate attesting to the harm she endured. Eventually, in June 2003, Devi Maya gave birth to a girl and she and her husband were convinced that the pregnancy was the outcome of the rape. 

Author’s inability to file a complaint: her reasons were (a) the very nature of rape made it impossible since doing so meant potential defamation against her, (b) the patraichal structure of the community she lived in, (C) stigma from indigenous community members, (d) filing would result in reprisals and(e) lack of awareness on the procedure, owing to illiteracy. 

When she did want to file a complaint in 2014, the District police Office and the District  Officer refused to register her complaint on the ground that it did not comply with the 35 day statutory period for reporting rape under the domestic law. Similarly, her claim for compensation was also refused.  On  January 29, 2002, her writ of mandamus was registered at the Supreme Court, where the Court issued a “show cause” notice, requesting the District Administration Office and police to reply within 15 days. However, no reply was received.

 

Admissibility

the Committee notes the State party’s claim that the author has not exhausted domestic remedies, as required by articles 5 (2) (b) of the Optional Protocol, because her writ of mandamus is still pending her writ of mandamus is still pending before the Supreme Court of Nepal and she has not filed a complaint before the Truth and Reconciliation Commision. 

However, referring to its prior jurisprudence in Nyaya v. Nepal, para 6.4, in view of the legal and practical limitations on filing a complaint for rape in the State party, and the unduly prolonged proceedings before the Supreme Court and the unlikelihood of a successful outcome, the Committee considers that the remedies in the criminal justice system were both ineffective and unavilable to the author.

Regarding inability to file a complaint before the Truth and Reconciliation Commission, the Committee recalled its jurisprudence in Katwal v. Nepal, para 6.3 and stated that it is not necessary to exhaust avenues before non- judicial bodies to fulfill the requirements of article 5 (2) (b) of the Optional Protocol and that transitional mechanisms are ineffective in prosecuting perpetrators of serious human rights violations.

Considering that an examination of whether the State party violated its obligations under article 2 (2) read with article 7 of the Covenant would not be distinct from its obligations under article 7, the Committee pronounces the claim under article 7, in conjunction with article 2 (2) of the Covenant as inadmissible ratione materiae under article 3 of the Optional Protocol.

Owing to sufficiently substantiated claims, the Committee declares communication under article 7, read alone and in conjunction with articles 2 (1), 2 (3), 3 and 26; and under articles 17 and 23, read alone and in conjunction with articles 2 (1), 2 (3), 3 and 26 of the Covenant admissible.

 

Merits

In the light of the detailed and consistent description of rape by the victim, the Committee sees a stark similarity with the facts of a complainant found a victim of rape as a war crime against civilain population during the internal armed conflict in the Committee on Torture’s decsion in  A. Bosnia and Herzegovina (para 7.2-7.4). Recalling the jurisprudence in this decision, it is evident to the Committee in the present case that rape and other violent acts inflicted by the Royal Nepalese Army and the Armed Police Force upon the author, a member of the indigenous community duplicate the horror incited by the Vojska Republike Srpske during the civil war against ethnic minorities. Owing to the factual nexus, the Committee is of the view that the author’s right under article 7 of the Covenant is violated. 

Further, owing to the fact that women, especially ones belonging to indigenous communities are more vulnerable in times of internal armed conflict, as enshrined under General Comment 28, means that the State party must take all measures possible for their protection. In light of the context surrounding rape and other forms of sexual violence the author, as a woman, was subjected to, the Committee declares that the author’s right not to be subjected to torture under article 7, read in conjunction with articles 2 (1), 3 and 26 of the Covenant is violated. 

Recalling its jurisprudence in X v. Sri Lanka, the Committee stressed the relevance of expeditious and effective adjudication in claims of such gravity. In light of this, the Committee declares the State party’s failure to investigate promptly and effectively is  a violation of her rights under article 7 read with article 2 (3) of the Covenant. 

The Committee considers that not only was  (a)the author raped, constituting an arbitrary interference with her sexual autonomy but also (b) stigmatised and marganilised by her spouse and community members and (c) not provided any remedies by the State party after the rape. Hence, there is a clear violation of article 17 of the Covenant.

Lastly, the Committee considers the circumstances that include rape in front of her daughter, forcible impregnation, being bedridden and shamed on account of her victimization and states that these amount to a serious violation of the author’s family life and and marriage. Hence, by enduring this violence at the hands of State agents violates her right under article 23 (1) of the Covenant. 

 

Recommendations

The State party is obligated to, inter alia  (a)conduct a thorough and effective investigation into the facts surrounding the rape of the author and other forms of sexual violence and ill-treatment to which she was subjected, (b)prosecute, try and punish those responsible for the violations committed, (c) provide the author with detailed information about the results of the investigation, (d) ensure that any necessary and adequate psychological rehabilitation and medical treatment is provided to the author free of cost, (e) provide adequate compensation and appropriate measures of satisfaction, including an official apology.

The State party is also under an obligation to take steps to prevent the occurrence of similar violations in the future. In particular, the State party should ensure that its legislation: 

•  criminalizes torture and provides for appropriate sanctions and remedies commensurate with the gravity of the crime; 

• adapts the definition of rape and other forms of sexual violence in accordance with international standards; 

•  guarantees that cases of rape, other forms of sexual violence and torture give rise to a prompt, impartial and effective investigation; 

•  allows for criminal prosecution of those responsible for such crimes; and

• removes obstacles that hinder the filing of complaints and effective access to justice and compensation for victims of rape and other forms of sexual violence against women and girls, namely in the context of the armed conflict in Nepal, as forms of torture, including by significantly increasing the statute of limitations commensurate with the gravity of such crimes.

 

Implementation

Deadline is 11th January 2021.

By Aakrishti Kumar