25-26 November, 2010
Kathmandu, Nepal
Proceedings of the National Consultation with the UN Special
Rapporteur on the situa...
Identity, Recognition and Resilience of Human Rights Defenders:
Strengthening the Security and Protection Mechanisms
Ident...
Identity, Recognition and Resilience of Human Rights Defenders:
Strengthening the Security and Protection Mechanisms
Ident...
Identity, Recognition and Resilience of Human Rights Defenders:
Strengthening the Security and Protection Mechanisms
Ident...
Identity, Recognition and Resilience of Human Rights Defenders:
Strengthening the Security and Protection Mechanisms
Ident...
Identity, Recognition and Resilience of Human Rights Defenders:
Strengthening the Security and Protection Mechanisms
Ident...
Identity, Recognition and Resilience of Human Rights Defenders:
Strengthening the Security and Protection Mechanisms
Ident...
Identity, Recognition and Resilience of Human Rights Defenders:
Strengthening the Security and Protection Mechanisms
Ident...
Identity, Recognition and Resilience of Human Rights Defenders:
Strengthening the Security and Protection Mechanisms
Ident...
Identity, Recognition and Resilience of Human Rights Defenders:
Strengthening the Security and Protection Mechanisms
Ident...
Identity, Recognition and Resilience of Human Rights Defenders:
Strengthening the Security and Protection Mechanisms
Ident...
Identity, Recognition and Resilience of Human Rights Defenders:
Strengthening the Security and Protection Mechanisms
Ident...
Identity, Recognition and Resilience of Human Rights Defenders:
Strengthening the Security and Protection Mechanisms
Ident...
Identity, Recognition and Resilience of Human Rights Defenders:
Strengthening the Security and Protection Mechanisms
Ident...
Identity, Recognition and Resilience of Human Rights Defenders:
Strengthening the Security and Protection Mechanisms
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Identity, Recognition and Resilience of Human Rights Defenders:
Strengthening the Security and Protection Mechanisms
Ident...
Identity, Recognition and Resilience of Human Rights Defenders:
Strengthening the Security and Protection Mechanisms
Ident...
Identity, Recognition and Resilience of Human Rights Defenders:
Strengthening the Security and Protection Mechanisms
Ident...
Identity, Recognition and Resilience of Human Rights Defenders:
Strengthening the Security and Protection Mechanisms
Ident...
Identity, Recognition and Resilience of Human Rights Defenders:
Strengthening the Security and Protection Mechanisms
Ident...
Identity, Recognition and Resilience of Human Rights Defenders:
Strengthening the Security and Protection Mechanisms
Ident...
Identity, Recognition and Resilience of Human Rights Defenders:
Strengthening the Security and Protection Mechanisms
Ident...
Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms
Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms
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Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms

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Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms

  1. 1. 25-26 November, 2010 Kathmandu, Nepal Proceedings of the National Consultation with the UN Special Rapporteur on the situation of Human Rights Defenders Margaret Sekkagya on “Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms” Prepared by: Jyotsna Maskay, Giovanna Gioli Layout: Ramesh Bhandari Edited by: Dr. Binayak Rajbhandari Published Year: 2011
  2. 2. Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms 2 3 LIST OF THE ACRONYMS AND ABBREVIATIONS BDS: Blue Diamond Society CPA: Comprehensive Peace Accord ESCR: Economic Social and Cultural Rights EU: European Union GoN: Government of Nepal HRDs: Human Rights Defenders INSEC: Informal Sector Service Center IPs: Indigenous People LGBTI: Lesbian, Gay, Bisexual, Transgender and Intersex NAWHRDs: National Alliance of Women Human Rights Defenders NDC: National Dalit Commission NHRC: National Human Rights Commission NWC: National Women Commission OHCHR: Office of the High Commissioner for Human Rights UNSR: United Nations Special Rapporteur UPR: Universal Periodic Review VAW: Violence Against Women WHRDs: Women Human Rights Defenders WOREC: Women's Rehabilitation Center List of The Acronyms And Abbreviations 3 Acknowledgement 4 Introduction: Defenders on the Frontline 6 Proceedings: Day 1 11 Open Forum Discussion - Day 1 22 Proceedings: Day 2 28 Open Forum Discussion - Day 2 32 Conclusions 34 Annex 37 List of Participants 40 Songs by WHRD participants 41 Table of Contents
  3. 3. Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms 4 5 Thank to Sudha Uprety, Andrew Palmer, and Bikram Tuladhar from the Office of the High Commissioner for Human Rights for the efforts in putting this event together. I am highly indebted to Dr. Renu Rajbhandari, Program Advisor of WOREC Nepal, and Chairperson of the National Alliance of Women Human Rights Defenders, for her vision and her encouragement to organize this event. I praise her continuous struggles and efforts in highlighting the need to recognize women as Defenders and in interlinking their different movements are highly appreciated. Special thanks to all the WOREC Nepal team members for their relentless efforts, passion, translation support, and for pushing through late night working hours, showing commitment, patience, and cooperation. I owe my deepest gratitude to Shaun Kirven, Human Rights Defender and crucial member of the Defenders movement in Nepal. This consultation would not have been possible without their moral and technical support, and their belief in the Human Rights Defenders of Nepal Jyotsna Maskay Executive Director, WOREC Nepal Acknowledgement I would like to express my gratitude to all those who encouraged and supported WOREC Nepal in the organization of this National Consultation. We salute all the Human Rights Defenders, the Women Human Rights Defenders, LGBTI Defenders, Marginalized Defenders, and Journalists for their resilience and their daily struggle to defend Human Rights for us all. Without their persistent efforts and their strong voices, this event would have been unthinkable. This event would not have been successful without the moral and technical support from INSEC, the Blue Diamond Society, Advocacy Forum, and Protection Desk Nepal, who supported the designing of this consultation since the beginning. I would like to thank the EU Working Group on Human Rights Defenders for their support in the attempt of negotiating a formal visit of the United Nation Special Rapporteur on the situation of Human Rights Defenders; I would like to thank International Service for Human Rights (ISHR, Geneva) for their financial and technical cooperation. Special thanks to Clement Nyaletsossi Voule for his commitment in promoting the rights of Human Rights Defenders. Big thanks to all our resource persons and panelists for their time and cooperation; I am grateful to all the NGOs, INGOs, Networks, Alliances, and Associations, for active participation and support in this event. My sincere appreciation goes to the National Human Rights Commissions, first of all for recognizing themselves as Defenders, and for their support and commitment to protect and promote the rights of Defenders. Acknowledgement
  4. 4. Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms 6 7 Defenders on the Frontline INTRODUCTION On the 21st of November 2006, the Seven Party Alliance (SPA) and the CPN- Maoist signed the Comprehensive Peace Accord (CPA) and entered the Peace process, ending more than a decade long political conflict, and establishing the Federal Democratic Republic of Nepal. All the parties involved in the peace process have expressed their commitment to uphold human rights and to prioritise the rights of marginalized communities. However, change has been very slow and the situation has not improved substantially. Even after 4 years of peace process, the state of human rights in the country is very fragile. The unwillingness of the government to address impunity in the past has created a situation of lawlessness and chaos.
  5. 5. Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms 8 9 and conviction, being deprived of proper legal assistance and denied a fair trial. HRDs work on the frontline, and this exposure opens avenues of insecurity not only for them but also for their families and colleagues. In fact, family members are often used as a tool to pressurise the defenders to withdraw from their work. WHRDs in Nepal have aimed at breaking the well established culture of silence, responsible for perpetuating their lack of access to rights. The proactive stand of WHRDs defies the feudal and patriarchal structures, relying on unequal gender power relations and structural inequalities. WHRDs are discriminated against twice, for being women and for being defenders. Similarly, LGBTI defenders often face double discrimination: on the one hand for defying the predominant heteronormativity, and on the other hand for being defenders. According to the documentation provided by INSEC online, in 2009 the number of HRDs victims of violence ranged up to 145, (Table 1). According to the data provided by WOREC Nepal and BDS, the victims were respectively 69 and 106 (Table 2 and 3). Table 1: Incidence of Violation of the Rights of Human Rights Defenders (Jan 1- Dec 30, 2009) Victims(Professionals) No. Incidence No. Victims Male Female Teachers 49 71 66 5 Journalists 40 57 47 10 Health Workers 6 7 7 Human Rights Activists 6 8 6 2 Law Practitioners 2 2 2 Total 103 145 128 17 Source: Inseconline, 2009 There are evidences of police personnel collaborating with criminals in abductions, murders and other forms of crimes. Similarly, there are data of abductions, killings and extortions from members of different political groups and youth wings of political parties; however, these perpetrators are not/cannot be arrested and prosecuted, as they are being de facto granted amnesty by different political parties. Human Rights Defenders (HRDs) who dare to defy the status quo are exposed to various risks such as executions, torture, beatings, arbitrary arrest and detention, death threats, harassment and defamation. Besides, they suffer from major restrictions to their freedom of movement, expression, association and assembly. HRDs face discrimination on the basis of race, ethnicity, geography, economic status, class, caste, access to education, sexual orientation, ability and age. In particular, WHRDs and Lesbian, Gay, Bisexual, Transgender and Intersex defenders (LGBTI) are subjected to specific risks and vulnerabilities due to their gender and sexual orientation. Many evidences reveal that WHRDs and LGBTI Defenders have been constantly victim of false accusations The data revealed that there is an increasing number of abduction, killing and abuse on journalists and professionals who dare to raise issues related to the criminalization of politics and to political crimes. HRDs who are working on issues such as violence against women (VAW), Economic, Social and Cultural Rights (hereafter, ESCR), Sexual Rights, bonded labour and caste-based discrimination become the target for violence, WHRDs and LGBTI defenders being the most vulnerable ones. Due to the absence of rule of law, the security of Nepali citizens, and in particular of HRDs, WHRDs and LGBTI defenders, has been put at risk. Impunity for the crimes committed against HRDs, and in particular against WHRDs and LGBTI defenders, continues to present a major challenge for the peace process and for the security of marginalised groups. The data further show that WHRDs became victims of marginalization, face harassment from private actors, and from both state and non-state actors. WHRDs face specific threats to their work and capacity to contribute to the human rights movement in Nepal. Often, their own loved ones, male colleagues, community members and family members have been cited as the main source of discrimination and harassment. The lack of recognition of the legitimacy and credibility of women's work, even when they are operating in the most difficult and risky settings, adds to the risk faced by WHRDs. In the Nepali society, even temporarily claiming a space other than the domestic sphere may lead to physical violence, threats or even murder. The State's response to HRDs The state bears primary responsibility in respecting and protecting the rights of individuals within its jurisdiction, including, Table 2: Violation on WHRD from 2007 to 2009 – WOREC Nepal S.No. Typology of Violation, Risks and Constraints Type of Incident Number of case 1 Attacks on life, bodily and mental integrity Acid burn, Murder, Attempted murder, Mass rape, Beating 25 2 Physical and psychological deprivation Kidnap 2 3 Attacks against personhood and reputations Mental torture, Threaten, Verbal abuse 39 4 Violations of women's freedom of expression Social violence, Loot 3 Total 69 104 Source: WOREC Nepal, 2004-2009 Table 3: Violation on LGBTI defenders Types of incidents Number of Case N u m b e r of Victim Rape 2 3 Torture and illegal detention - 85 Killing 1 1 Restriction on movement 1 1 Threat ( Right to life) - 16 Total 106 Source: Blue Diamond Society, 2010
  6. 6. Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms 10 11 of course, those of HRDs. The state responsibilities and obligations towards HRDs have been rightly incorporated in the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, which was adopted in 1998. Every state has the responsibility to guarantee the implementation of the rights enshrined in the Declaration under the articles 2, 9, 12, 14 and 15. The Declaration emphasises the state's responsibility to ensure effective remedy for those who claim to have suffered from human rights violation. The Nepali Interim Constitution (2007) guarantees right to constitutional remedy (corresponding to the rights enshrined in the declaration), according to which a victim can pursue judicial remedy. However, the reality is that, in spite of the constitutional guarantee of the right to justice, most of the cases of HRDs are dismissed without proper investigation. Some of the cases have indeed been addressed by the judiciary, yet deficiencies in the implementation can be observed. During the people’s war, HRDs who were struggling for rights and democratisation of the state structures faced various forms of violence and attacks. However, no inquiry committee has been formed to investigate the past human rights violations, nor have the reported perpetrators been penalized. In this scenario, it can be concluded that the people’s right to remedy and reparations has been largely ignored or not yet prioritised. Despite the grim situation, some positive steps have been taken by the government with the adoption of the Domestic Violence Act, 2009 and the Declaration of the Prime Minister to end all forms of Gender Based Violence are two recent exemplary efforts to address VAW. Also the Supreme Court directives to the Government of Nepal (GoN) for developing security policies for HRDs have to be welcomed. The GoN receives large funding support from the European Union (EU) for sustainable peace and reconstruction. This support obliges the GoN to implement the EU Guidelines on HRDs and the EU guidelines on VAW; regrettably, this obligation has been de facto largely ignored. In the light of the present scenario, this consultation has been planned during the 'International 16 Days of Activism to end Gender Based Violence', in order to shed light on the situation of HRDs, in particular of WHRDs and LGBTIs defenders, as well as of defenders advocating for ESCRs. It aims at creating a platform to make the work of HRDs visible and to advocate, in collaboration with the United Nation Special Rapporteur on the situation of HRDs (UNSR), for a mechanism to develop strategies for integrating the security and protection of women and LGBTI defenders into the mainstream agendas. Furthermore, it intends to create and strengthen the national, sub-regional and regional coalitions and networks to enhance the protection of defenders and to develop proper policy suggestions and strategies in order to guarantee the rights of HRDs. T he 2-day National Consultation comprised of three separate thematic panels on the situation of HRDs, and on the emerging and existing security and protection mechanisms for HRDs. 1. Welcome remarks by Ms. Dev Kumari Mahara, Women Human Rights Defender, Terai, Nepal Ms. Dev Kumari Mahara in her opening remarks has outlined the main challenges faced by WHRDs in the Terai region, with a special focus on the situation of Dalit. The human rights situation in Terai is particularly difficult, as the region is infested by violent armed groups, affiliated to different ideological parties.Thesegroupshavelargelyaugmented the violence in the region, as small arms have been made readily available, thus increasing the rates of killings, and murders in the region. Many WHRDs have lost their lives in the past years and they are constantly subjected to various forms of assault, including rape and threats of abduction and/or murder. 2. Mr. Subodh Raj Pyakurel, Chair, INSEC Mr Subodh Raj Pyakurel stressed that the very presence of the UNSR who represents the HRDs worldwide, marks her interest in addressing the issues and concerns of HRDs in Nepal. Pyakurel informed that, despite his persistent request to the Ministry of Foreign Affairs, the Ministry of Law, and other relevant ministries to invite the UNSR on the situation Proceedings 25 November 2010DAY 1
  7. 7. Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms 12 13 of HRDs for an official visit, they declined on the ground that Nepal does not have the technical capacity and the resources to host her. Pyakurel also highlighted the immediate and pressing need for a separate and comprehensive law on HRDs in Nepal—a law focusing on the security and protection of the defenders. I. 3. Launch of Anbeshi An important milestone in addressing the issue of VAW has been the launch of WOREC Nepal's report "Anbeshi - Violence Against Women Year Book 2009-2010". The report was launched by UNSR Ms Margaret Sakkagya, and by the Hon. Kedar Nath Upadhaya (Chairperson, NHRC), in the presence of over hundred HRDs, WHRDs, LGBTI defenders, different organizations, and journalists. The major objectives of Anbeshi are as follows: • To map the scenario of VAW in Nepal and to exert pressure on the government for formulating relevant laws, policies and action plans for the elimination of VAW. • To identify key areas for ensuring access of VAW survivors to justice, and lobbying the government to effectively address these issues. • To identify the needs of VAW survivors, and advocate for the creation of relevant support mechanisms. 3. His Excellency Morten Jespersen, Embassy of Denmark in Nepal His Excellency Morten Jespersen thanked WOREC Nepal for making this event possible, despite the resistance from the Nepali government in issuing an official invitation to Ms. Margaret Segkkaya. He praised HRDs, and especially WHRDs, acknowledging their pivotal importance as agents of change. They put their lives at risk to defend fundamental rights; they are providing vital support to Nepal to ensure that the state fulfills its international obligations. Full support to HRDs is one of the major EU priorities, as stated in the EU Guidelines for HRDs, and on behalf of the international community, Mr. Jespersen expressed willingness and commitment to protect HRDs. He explained how the EU Guidelines have been implemented in close collaboration with the Nepali chapter of the EU Working Group on HRDs. It focuses on the support and protection for HRDs, and on the creation of networks for HRDs. Moreover, they are currently working at facilitating an official visit of the Rapporteur. Mr. Jespersen clarified how their work is focused on different issues, such as the protection and support to HRDs, and the follow up on cases of attack on HRDs. They also work for the support, strengthening and broadening of the human rights network. Field visit are also on the agenda, to encourage HRDs operating in rural areas. As Nepal will be shortly reviewed under UPR, on the 25th January 2011, Mr Jespersen had suggested to use the UPR to raise questions not only on the challenges faced by HRDs, but also to provide recommendations to the international community on how to ensure the protection and security of HRDs. 4. Mr. Roberto Ricci, Officer in charge, OHCHR, Nepal Mr. Ricci expressed his gratitude for being part of the Consultation. He said that whilst much progress has been achieved in the past few years, much still remains to be done to strengthen the security mechanism for HRDs. Mr. Ricci recalled the moment, in February 2005, when HRDs came under severe attack. In the wake of that difficult moment, a political space was created for OHCHR to open an office in Nepal, in May 2005. He further stressed on the importance of the initiatives of various UN agencies in providing protection to HRDs, such as David Johnson, his friend and colleague, senior human rights advisor to the UN Resident Coordinator. Since then, the OHCHR has been trying to work closely with the defenders for the improvement of the human rights situation in Nepal. In fact, it is fair to say that the OHCHR is in Nepal because of HRDs and for HRDs. The question is why a protection mechanism now, when the peace process is slowly taking place? Is the government failing to protect you? Is the situation worse than before? HRDs are, by definition, actors of change. HRDs are challenging justice to promote social transformation. They meet resistances, as change always meets resistance. Nepal's constitution is based on human rights, though it accepts certain forms of discrimination. Mr. Subodh Raj Pyakurel Launch of Anbeshi His Excellency Morten Jespersen Mr. Roberto Ricci
  8. 8. Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms 14 15 Resistance shall be overcome. Even national census, if participated, can become challenging, as minorities would be exposed. The NHRC, The National Dalit Commission and the National Women Commission are crucial for ensuring the protection of HRDs, likewise the international community can play a role (e.g. the EU Working Group on HRDs). Mr. Ricci reported the OHCHR plan to launch a tool kit for HRDs next year. The OHCHR will organize its work around two thematic priorities: impunity and discrimination. He further added that they will continue to work with the defenders on capacity-building, monitoring and protection. He showed concern, as in the current year high numbers of VAW and violence against HRDs have been recorded by OHCHR. The tool kit will also address issues related to WHRDs. For instance, it contains practical guidelines on the monitoring of sexual and gender -based violence. This kit should be ready early next year. Finally, OHCHR will take further its engagement and cooperation with all the National Human Rights Institutions, and in particular, with the NHRC. 5. Hon. Kedar Nath Upadhaya, Chairperson, National Human Rights Commission Raising the names of noted human rights defenders such as Prakash Shah, Uma Singh, Tika Bista, Laxmi Bohra, the Hon. Kedar Nath Upadhaya, shed light on the precarious situation in which HRDs and especially WHRDs are forced to work. Rapes, murders, threats, sexual harassment, are just some of the abuses suffered by WHRDs. He pointed out that WHRDs are subjected to ‘double discrimination’, as a consequence of their status as women, on the one hand, and as HRDs, on the other. Because of this situation, stringent laws should be formulated for punishing the perpetrators. Special laws are needed to defend HRDs, as they are doing a very special work. HRDs should have a sense of security, so that they can continue their work. However, Nepal is now in a transitional phase, and as a result of the delayed peace process, defenders are exposed to higher risks. Mr Upadhaya stressed the importance of learning how other countries have tackled similar problems, and he expressed its gratitude to Ms. Margaret Sekkgaya and to the organizers for making this event possible. However, he conveyed his disappointment in the GoN failure to formally invite Ms. Margaret Sekkagya to Nepal, despite its attempt to discuss this issue with the Prime Minister and with the Finance Minister. He finally added that HRDs are always on the frontline, operating at the local level. Because of this, the society recognizes and trusts them. It has to be always kept in mind that HRDs are citizens too. They need to be protected and in order to achieve this goal, politicians have to become accountable; they have to learn the philosophy that all the citizens of the state are equal. 5. Ms. Margaret Sekkagya, United Nations Special Rapporteur on the situation of Human Rights Defenders Ms. Sekkagya expressed her gratitude and empathy for the suffering of HRDs. She highlighted the similar situation faced by HRDs in different countries, such as Brazil, Fiji, Congo, Sudan, and Colombia where she recently was on an official visit. She further mentioned the specific context faced by HRDs in Nepal: discrimination, arrests, abductions, killings, rape, sexual abuse, bondage, politicization of the work of HRDs, poor protection mechanisms, HRDs being terrorized by groups and being accused of witchcraft. She added that HRDs still struggle despite 12 years have passed since the passing of the UN Declaration on Human Rights Defenders. However, this declaration must be promoted in Nepal. The state must investigate human rights violation, and impunity must be removed. She concluded with a pledge to act in her maximum possible capacity to end violations and crimes against HRDs in Nepal. She committed to raise the plights and concerns of HRDs at the United Nations Security Council and reiterated her pledge to the WHRDs hoping that they would advocate for making the government of Nepal extend an official invitation to the UNSR. 6. Dr. Renu Rajbhandari, Chairperson, NAWHRDs Dr.RenuRajbhandarifocusedherpresentation on two phenomena that are increasingly affecting today’s Nepal, the Politicization of Crime and the Criminalization of Politics. She shared her concerns on the limitation currently imposed on freedom of expression in the country, supporting her speech with Hon. Kedar Nath Upadhaya UN Special Rapportuer Ms. Margaret Sekkagya
  9. 9. Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms 16 17 recent figures showing increasing number of abductions, killing and abuse perpetrated on journalists and professionals who dared to raise crucial and hot issues related to the situation of human rights. The scenario is even darker for HRDs working in the Madesh region, due to the emergence of 109 armed groups. The presence of these groups has resulted in an escalation of violence against HRDs, which continue to receive threats and to suffer from violence. Dr. Rajbhandari further elaborated that unless the human rights movement proceeds in a cohesive and integrated manner, massive violence and human rights violations will continue on a daily basis. She identified the human rights movement as the major possible actor in contrasting the rising militarization of Nepal. Nevertheless, state commitment is pivotal, and a crucial step would be the development of a specific law to ensure the protection of HRDs. 7. Ms. Bindu P. Gautam, Researcher, WOREC Nepal Ms. Gautam presented the result of the joint research conducted by WOREC Nepal and Isis WICCE, "Redefining Justice: Research findings on Access to Justice for Rape Survivors". The purpose of the study was to inform policy makers, activists and organizations enabling them to access appropriate information in order to effectively address VAW. Ms. Gautam highlighted as major objective of the study, the identification of gaps and challenges in existing response, and the drafting of policy and action recommendation for establishing effective mechanisms and ensuring the survivors’ rights to justice. Ms. Gautam explained the method and the sources of the research, which included in- depth interviews with Survivors (55), and interview with key Informants (112). The surveyinvolvedalsoFocusGroupDiscussions (33), interaction with community women (14), WHRDs(10), Paralegal Committee (4), and Others (5). Secondary Source such as media Survey (201) and case collection and analyses from different organizations (723) were also used. The concerned areas are the Terai: Morang, Dhanusha, Kailali (Eastern, Central, Far-Western), the Hilly belt: Udayapur (inner- Terai), Dailekh, Baglung, Kathmandu, Kavre (Eastern, Western, Mid-Western,, Central), and the High Hills and Mountains belt: Dolakha, Darchula (Mid-Western and Far- Western). Ms. Gautam shared that women in the concerned areas are facing different forms of violence, such as verbal abuses against WHRDs, witchcraft accusations, polygamy, domestic violence, sexual violence, marital rape, rape and murder, vilification and slander. The victims of rape resulted to be prevalently women, disabled, sexual minorities, WHRDs, conflict affected people and boys. Women bodies are commonly used to seek revenge, to silence voices of protest, to show power, to humiliate/defame the family and community, to prove a male’s masculinity and to fulfill sexual hunger. Finally, Ms. Gautam explored the existing response mechanisms. Family proved to be disempowering in most cases. As for the community, organized groups/networks and (W)HRDs are the most effective in addressing rape and other violence, however they are facing major challenges (e.g. abuse, assault, humiliation, threat), and they are neglected both by the state and non-state actors. Paralegal Committees are resent but they need assessment. Responses from NGOs/civil society feature a limited coverage and scope for immediate support to victim. Some positive steps have been taken by the government, however their scope and effectiveness has to be questioned. No support mechanism is envisaged at the community level, and NHR Institutions have limited resources and limited access. Legally, the major gaps highlighted by Ms. Gautam are the absence of a clear definition of rape, and the narrowness of its, the discriminatory provisions pertaining punishment; the exclusive focus on the right of the Criminal, and the absence of legal provisions ensuring victim’s rights (protection, recovery/ rehabilitation, reintegration into society). 9. Subodh Raj Pyakurel, Chair, INSEC Mr. Subodh Raj Pyakurel, highlighted that despite the amount of energy spent by NGOs for the upholding of human rights, the situation will not significantly improve, unless these activities are included within the National Action Plan of the government. Culture, property, dowry, in Nepal, this is all in the hands of males. In the villages, widespread practices need to be changed, and economic discrimination should be challenge. To succeed, a holistic solution is needed. He explained that the only institutions which have the ability to reach every household are the political parties. If they plan to impart the • PANEL 1: The contemporary issues and challenges faced by Human Rights Defenders • (Moderator: Mandira Sharma, Executive Director, Advocacy Forum). • Objective: The objective of this discussion was to identify the major risks and challenges faced by different groups of HRDs, such as WHRDs, LGBTI Defenders, marginalized defenders, and victims groups, active in the promotion and protection of human rights. The panel will also provide a preview of the specific risks and vulnerabilities faced by defenders. Dr. Renu Rajbhandari Ms. Bindu P. Gautam
  10. 10. Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms 18 19 message of human rights and HRDs during their election campaign, then they will be able to bring about pronounced changes in the country within a single campaign. Mr. Pyakurel also highlighted the fact that those defenders who litigate a case of violation are the most at risk; therefore, it is extremely important to raise the issue of their protection. However, Pyakurel pointed out that Nepal seriously lacks a meaningful decision-making process and effective decision-makers. He further stressed the importance of discussing with the stakeholders in order to develop law from the perspective of the victims. 10. Ms. Manisha, Blue Diamond Society, on the situation of LGBTI defenders Speaking on behalf of the LGBTI community, Manisha explored some of the key challenges faced by the group. She stressed the urgent need to make provisions for LGBTIs and defenders to fully entitle them to citizenship rights and to prevent sexuality-based discrimination. She explained that LGBTIs are often facing stigmatization, even from their own families. They are also severely discriminated against in the job market, as they encounter major difficulties in finding employment and are often forced to leave their jobs. Sometimes, as a consequence of this lack of opportunities in the job market, LGBTIs are left with the only option of entering the sex market. This situation is fuelled by the widespread prejudice according to which, all LGBTIs are sex workers and eunuchs. On the issue of citizenships, Manisha highlighted the challenges faced by transgender people, whose gender identity is not recognized on the passport. She shared her recent experience on this issue. While travelling to Geneva to attend a meeting at the Human Rights Council, she was treated with respect by the Nepali officers, but she encountered problems while transiting in Doha. As the gender declared on her passport did not match her physical appearances, she was stopped and her passport was checked all over again. After a long time she was released but the officials kept a photocopy of her passport. Manisha further stressed that, despite their huge contribution to the human rights movement, LGBTI defenders are often discriminated against by other activists. Besides, the NHRC has failed into seriously dealing with the LGBTI community, especially in the protection of LGBTIs defenders. She further added that there should be a specific campaign on sexual health rights. Finally she added that issues related to LGBTIs remain unaddressed also in the interim constitution. Currently, there is no mention of LGBTIs in any of the committee reports submitted by the CA. 11. Mr Chandra Singh Kulung, Founder of the Durban Review Committee (DRC) Mr. Singh Kulung, pointed out the most important challenges faced by marginalized defenders. He first focused on the situation of indigenous people. They are marginalized, and their right to preserve their distinct identity and representation (e.g. respect to their dress, ornaments, appearance) must be protected. Indigenous women are even more discriminated against, and they are more subjected to trafficking and to HIV/AIDS. In ordertochangethestatusquo,thegovernment should implement the ILO 169, UNDRIP, and other international human rights instruments. Moreover, the state should recognize all the indigenous ethnic communities meeting the characteristics of indigenous nationalities. It is also necessary to develop a common understanding about the rights of Indigenous Peoples (IPs) between/among IPs, non-IPs and the government. He added that in the Terai/Madesh region, the situation of IPs is even more difficult, as they are facing political pressure form identitarian movements, such as "One Madhesh One Pradesh". Mr. Singh Kulung had then addressed the situation of Dalit in Nepal. The challenge here would be obtaining a change in the mind of the feudalists, making room for the implementation of pro-Dalit law. Moreover, the government must implement the Convention on Elimination of All kinds of Racial Discrimination (CERD), as well as other relevant human rights treaties. Common Challenges of HRDs (by State and Non-State actors) Personal Insecurity (During Profession) Personal Insecurity (In Custody) Killing Harassment: Ill-treatment Abduction • Arrests and Fines Incommunicado Disappearance • Restriction on Movement Intimidation (frightening sb) Attacks/Physical Destruction • Raids Repression Threatening • Eviction (being evicted) Confiscation (loosing ownership) • In person • Refraining (stop doing the work) Retaliation • Family/Beloved ones • Family/Beloved Ones • Arbitrary Detention Mental Torture Physical Torture Ms. Manisha Mr Chandra Singh Kulung
  11. 11. Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms 20 21 Mr. Singh finally touched on the measures to be taken for integrating differently able people, and LGBTIs. As for the first group, it is central to ensure friendly means of transportation, housing, apartment and office, as well as the proper equipment for education (such as brail script, sign language etc). Means for livelihoods - employment, entrepreneurship and economic activities - have to be provided too. As for the LGBTI community, a deep change in the prevailing mindset of society is required. LGBTIs’ rights must be ensured through the proper implementation of the concerned laws. 12. Ms. Rita Thapa on the situation of Women Human Rights Defenders Ms. Rita Thapa presented the case study of Nirmala Thapa, a WHRD who disappeared in April 2009. After 4 days, her body was found in the Dhading River. All her jewellery had been removed, and her underpants had been stripped off. Her 12 years old son said that she had been victim of domestic violence for the past 2 years. WOREC Nepal stepped in to bring the case to justice, providing documentation and legal assistance. As a result of this, Nirmala’s husband was jailed. After an appeal to the Supreme Court, the case is currently waiting for the final hearing. Ms.Thapathensummarisedthecurrentissues of WHRDs. First of all, there is a dramatic ineffectiveness of state’s structures, which need to be reorganized and empowered. Besides, a heightened state of impunity is present in the country, facilitating other two dangerous processes which are currently increasing: the criminalization of politics, and the political protection of criminals. This state of affair has led to increasing rates of violence (both in the domestic and public sphere), often resulting in attempts to silence WHRDs (e.g. Uma Singh, Suntali Dhami, Tika Bista and many others). Ms. Thapa shared that due to the patriarchal values and norms embedded in the Nepali society, women defenders are relegated to inferior and subservient positions and roles. Because of the political instability, rampant impunity is widespread in the country. As a consequence, there is no conducive environment for defenders to exert their right to defend. Women’s defenders are defying this situation putting their life at serious risk. Nevertheless, their action is not at all recognized as work by both the society and the state. Ms Thapa has then provided some recommendationstoendVAW.Shehighlighted the pivotal role of the government in ensuring WHRDs’ protection. Structures, networks and mechanisms should be developed and all perpetrators shall be held accountable (including those under state protection). Nepal is in a post-conflict, “transitional phase”, and the government should seriously take into account the implementation of UN Security Council Resolution 1325 and 1820. The other preventive measures should be the establishment of an Early Warning System, and the systematic documentation of cases. Mr. Shaun Kirven (Researcher and consultant) Mr. Kirven wanted to ask some questions about why we are here and what we are trying to accomplish. He said that despite the morning being spent speaking about violence, the core issues concerning what constitutes violence against women have not been touched yet. In Nepal, women cannot inherit property, they have no access to economic market, and they are traded between families, just to mention some of the major issues. These things need to be tackled. If perhaps they had economic status, violence would not happen. It seems as if we are treating the symptoms and not the cause. Discrimination, however, does not stop there. There is sexuality-based violence, ethnic-based violence and many other forms of discrimination, all leading to violence. Ms. Rita Thapa Mr. Shaun Kirven How to tackle these discriminations? First of all, a question should be asked: How do we deal with our own prejudices? We all have them, but most of the times we do not deal with them. Maybe even in this consultation. The state has to protect us, it is its obligation, but when violence is coming from families and from the community, the state is not likely to intervene. Therefore, we have to find ways to convince the public that our work as HRDs is a proper job, which benefits everyone. We can do that only by being inclusive, which means, in the first place, working on our prejudices.
  12. 12. Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms 22 23 The floor was open to the participants to raise their questions, concerns and to share their experience. a. Manica Jha, Journalist & WHRD, Dhanusha. district Manica Jha, a journalist and WHRD from Dhanusha district, had expressed serious concerns over her safety as a WHRD working in the Terai region. She shared her fear of being murdered in the same way as her friend and colleague, Uma Singh (a noted WHRD journalist). b. Sanjay Sharma, Eastern Region Coordinator, Blue Diamond Society (BDS) Sanjay shared that recently a lesbian was raped by the cadres of a political group. The case was filed at the local police station. The police tried to silence the victim by offering NRs. 60,000 as compensation. When the local BDS group went there to investigate OPEN FORUM DISCUSSION on the incident, Sanjay Sharma was beaten up by a group of people in front of the Senior Superintendent Police office, in Biratnagar. ThelackofrecognitionLGBTIdefenders’work, along with the absence of support systems for marginalized defenders, greatly enhances the chance of secondary victimization by the local or state authorities. c. Narayan Subedi, INSEC, Nepalgunj Mr. Subedi shared that HRDs cannot exert their right to freedom of mobility while exercising their right to defend human rights in the mid western region. They face risks and vulnerabilities such as fear of being attacked while trying to travel from one part of the region to another during monitoring of human rights violation, implementation of activities. d. Ms. Lata joshi, WHRD network, Doti Ms. Joshi shared that on the past 8th of March, one girl was taken to Silguri, in the attending this Consultation. f. Mandira Sharma, Executive Director of Advocacy Forum Ms. Sharma highlighted how HRDs have been reacting to the challenges they face in their work on a daily basis, by organizing themselves through the creation of networks at both the central and the district level. However, no protection mechanism for ensuring the security of HRDS has been established yet. There is no national law addressing the issue. At the international level there is the UN Declaration, however, in order to ensure its efficacy, this fundamental instrument has to become legally binding. The legal context is very important, but our strategies as HRDs are equally important. Ms. Sharma said that HRDs are aware of many cases, and there is a very active participation aimed at helping the victim to get justice. Thanks to their work, HRDs understand the gravity of the culture of impunity in Nepal, which has to be addressed and analyzed. When an incident occurs, HRDs are there, documenting and supporting, however, over the time, it evaporates. We shall address the root causes of such ineffectiveness, by fighting for justice till the end. We might have different hats, but as defenders we shall all follow the principles of HRDs. Doti Districts by the staff working in a health post, to work as a domestic helper. Until April 10th, the girl was sexually abused by the man. The police then alerted the WHRDs network. She shares her story with us and subsequently some members of the WHRDs network, Mahila Adhikar Manche and a couple of other organizations brought the case forward. They went to the police and submitted a First Information Report, demanding for the perpetrator to be arrested. However, due to political protection granted to the perpetrator by the local political parties, he was granted amnesty. Ms. Joshi said that this is very sad, as the very parties which are supposed to help the movement of HRDs are actually working against them. Also many HRDs changed their mind on the cases, as a result of the pressure exerted by the political parties they were attached to. The same thing happened to some of the perpetrators' colleagues, working at the health post, who protested blocking the streets when the Court issued the order to arrest the perpetrator. On top of this, a case was filed against us for defamation against the perpetrators. e. Woman from the WHRDs network A WHRD has raised the issue of disability: disabled women encounter an unfriendly environment in aircrafts, buses and public transportation and services. We, as women and as disabled women, feel discriminated against. Although the government has ratified the UN Convention on the Rights of the People with Disabilities, its implementation is still rather weak or nonexistent, as it is illustrated by our experiences. The last recent examples of this are the difficulties we had to face in order to reach Kathmandu for DAY 1
  13. 13. Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms 24 25 1. Ganga Thapa, Protection Desk-Nepal Protection Desk-Nepal (PD-N) has been conducting capacity building and security training for HRDs across the country since 2006, and has specific programs for WHRDs, victim groups, and LGBTI defenders and organizations PD-N also aims at supporting local defenders, victims and other vulnerable groups to integrate their protection into the agendas of state authorities. National and international organizations have encouraged an active role of all stakeholders in the protection of defenders. As a result, the EU working group on HRDs was established as a part of the EU local implementation strategy for the EU Guidelines on HRDs, of which PD-N is also a member. Within this working group, a sub-group has been formed to monitor and document human rights violation, compile and analyze information from reliable sources, generate recommendations, and work on selected emblematic cases. As a part of the local implementation strategy, the EU Working Group organized a trip to Eastern and Far western Region for assessing the situation of HRDs. PD-N organized a regional consultation (supported by the German Embassy) on protection mechanism for HRDs in all the five development regions of Nepal. These consultations brought together, 1000 people including WHRDs, LGBTI defenders, trade unions, religious groups, journalists and political parties to discuss the diverse needs of the defenders, who made specific recommendations for their protection. These recommendations were directed to the state, the EU embassies and the national human rights institutions, as well as to the civil society. PANEL 2: Coping mechanisms and strategies developed by Human Rights Defenders in the context of impunity, political impasse and non-recognition of their work—linking the movement. Moderator: Mr. Ganesh BK, Human Rights Alliance Objective: The objective of this discussion was to understand and analyze the different mechanisms and strategies developed by diverse defenders to enforce and protect human rights. This panel also showed how defenders have developed collective strategies to guarantee their security and protection. PD-N continuously meets with human rights organizations and HRDs in the region to monitor their situation and provide counselling on security measures. PD-N has been working closely with WOREC, INSEC and BDS to implementing the recommendations of the regional consultation. 2. Mr. Kosh Raj Neupane, Deputy Director, National Human Rights Commission Mr. Neupane shared that there is lack of state policy on the protection and security of HRDs. Due to geographical disparities, defenders operating outside the Kathmandu valley can access limited information and resources. Likewise, the lack of cohesion and coordination amongst the defenders prevents them from accessing effective protection. He further stressed the need to establish an Early Warning and Rapid Response Mechanism for defenders at risks, and the responsibility of the government to develop specific laws on HRDs, along with the upholding of the UN Declaration on HRDs. Open discussion a. Mr. Manoj Bachhan, Lawyer and Secretary, Madeshi HRDS Network, Jagrit Mr. Bachhan highlighted the situation in the Madhesh area, where his organization operates. He said that they have been experiencing many problems; in particular, the most worrying are the rampant impunity and the proliferation of armed groups, together with the rising of criminal groups. Given the situation, HRDs are often forced to work with criminal groups and with corrupted police personnel. He explained the nature of the work performed by its organization, stressing their collaboration with women’s organizations and CBOs. He stressed that CBOs (whose working area is confined) work closely with WHRDs at the local level. He further identifies some of the core issues they are addressing: the issue of ‘untouchability’, domestic violence, witchcraft accusations, and incestuous rape. Another major problem in the Terai region is extra judicial killings: as Nepal shares a border with India, both border forces are often involved in cases of VAW. b. Sunil Kumar Sah, Samagra Jana Uthan Kedra, Chairperson, Siraha District Mr. Sah explained that his organization works in close collaboration with the WHRDs network in the Siraha district. They provide support for cases of violence against WHRDs, or for the relocation of WHRDs from the Siraha and
  14. 14. Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms 26 27 Saptarai districts. These WHRDs still fight, irrespective of the attacks and the torture they have been inflicted. Mr. Sah and its association recognize the huge contribution to peace and democracy given by WHRDs and stresses that they are trying their best to ensure justice for the victims. HRDs work in close collaboration with WHRDs, and regular meetings are held. Mr. Sah shared that recently a 7-year-old girl was raped by a 35-year-old man. The girl was saved by his organization. The parents of the girl did not own enough money to have her treated adequately at the hospital, so they prioritized the necessity of protecting the honour of the family, neglecting the importance of her treatment. The parents were stopped in Lahan, by the HRDS network, which fundraised for the treatment of the girl. Mr. Sah further elaborated that the network received support also from the police. The girl was taken to Rajbiraj for receiving treatment, and she had to undergo two major operations. Luckily she was able to return home. This is just an example of how the HRDs networks work collaboratively together. c. Shivamaya Thumbahamphey, member of the NAWHRDs Ms. Thumbahamphey shared that WHRDs do not get any form of support from the police. Therefore, they mainly work in coordination with government agencies, and with NGOs, as they are interested in upholding and protecting women’s rights. She said that WHRDs face major challenges, and they try to cope by sitting together with government agencies and NGO to discuss possible remedies. She further added that, when discussing about the rights of WHRDs, they should not be the only part concerned. It is in everyone’s best interest to raise the issue of human rights. d. Kasala, WHRDs network, Bardiya district Ms. Kasala responded to the presentation of Mr. Manoj Bachhan, who said that often, HRDs have to work in close relation with criminal groups and with the police. She shared that recently, in the Bardiya district, two children were killed. They witnessed that government bodies, such as the security forces and the investigation section, as well as some HRDs, were supporting the criminal groups. As a result of this, the whole definition of HRDs comes under question. During the conflict, irrespective of where we work, we worked as defenders. However, the situation has changed, and today many HRDs are close to either criminal groups or political parties. How do we define a HRD? The universality of human rights has to be ensured by HRDs, throughaneutralaction,freefrompartypolitics and hidden agendas. However, especially in the Terai region, criminal activities are often done in the name of human rights. In such situation it is very difficult to work. e. WHRD, WHRDs network, Solukhumbu district Women across Nepal have become aware of the budget allocated by the government for the advancement of women and of gender equality. Subsequently, they have come to realise the importance of discussing about women's issues in order to be able to submit a consistent proposals to the government. However, the political parties tend to interfere in matters of gender budget, not respecting the fact that the budget is meant to be allocated for the empowerment of women. f. Sarita KC, WHRD, Chitwan District Ms. KC shed lights on the situation of WHRDs, sharing a case she has been recently involved in. A woman was raped in her district. After 3 days the perpetrators' families came to her. The perpetrators had fled away and they were willing to pay compensation (200.000 rupees) to the victim. She refused the deal and the 4 perpetrators were imprisoned by the police. The big political parties exerted pressure on her, asking why she was getting their cadre imprisoned. Even members of the CA were pressuring the police, saying that the perpetrators should have been released. HRDs were present too, lobbying the CDO and the police in order to get justice and avoid the release of the perpetrators. In the evening, they received a phone call saying: "Get out of your house, we are going to vandalise your property". She replied that she was not a coward, and she did not run away. After 2-3 days she was stopped by two boys but when they saw her face, they let her go. This is due to the fact that she is a recognized HRD and political leader, so that she could stand for her own rights, without being violated. However, had it been another woman, she would have been raped. Those are the kind of risks faced by defenders. WHRD, WHRDs Network, Baglung District She stated that the situation of women in Nepal is not homogenous, as, even within women, Dalit women and women from marginalised community are disproportionately suffering from human rights violation. Mr. Ganesk BK, Human Rights Alliance Mr. Ganesh BK said that there have not been significant political changes in the country, in spite Nepal being declared as a Democratic FederalRepublicin2007.Hesharedhisrecent experience in the Dailekh and Baitadi districts, where he managed to meet with some Haliya women. They expressed their understanding of Nepal through a song. The song mentioned the fact that their landlords are still referred to as masters, as they were called before the people's movement. This might be seen as an irrelevant issue of terminology, but these women wanted to explain how the feudal attitude of their master has not changed yet, and major discriminations are still taking place. Mr. BK further added that HRDs face a lot of challenges, which need to be prioritized in the government agenda.
  15. 15. Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms 29 DAY 2 1. Mr. Shiva Bhandari, Contact person for the European Working Group on Human Rights Defenders Mr. Bhandari introduced himself as the contact person for the EU Working Group on HRDs, shedding light on the existing security and protection mechanisms for HRDs as foreseen by the EU Guidelines on HRDs. He further elaborated on the scope and nature of the activities of the EU Working Group, focusing on Gender Specific provisions for WHRDs. PANEL 3: Emerging and existing mechanisms for the protection and security of human rights defenders. Objective: The objective of this discussion is to reflect on the emerging and existing mechanisms that has been developed and designed for the protection of Human Rights Defenders by different agencies. This will also discuss how those mechanisms have been implemented. He said that issues related to WHRDs shall be taken into serious consideration, and that the concerns raised during the first day of the present National Consultation with the UNSR must be given the highest attention and priority. Economical and technical support shall be provided. Mr. Bhandari also informed the audience of the EU Action Plan 2010-2015 on HRDs, which contains a set of instructions for EU member states to work on this issue. Finally, he invited the crowd to directly contact the EU for further information, e.g. by contacting the forum of the EU 2. Mr. Kosh Raj Neupane, Deputy Director, NHRC Speaking on behalf of the NHRC, Mr. Neupane said that the mandate of the NHRC is to promote and protect human rights, to investigate and monitor human rights violations, and to provide recommendations to the government for the improvement of the human rights situation in the coutry. To a certain extent, he said, the NHRC mandate can be assimilated to that of a court. MrNeupanefurtherelaboratedthattheNHRC, in case of a violation being committed, follows a two-step process: 1. Make the perpetrators accountable; 2. Ensure compensation and reparation to the survivors and/or their dependents. As a preventive measure, the NHRC has established a Rapid Response Mechanism (RRM), to deal with human rights violation more effectively. The NHRC is also responsible for developing guidelines for HRDs. In addition, the NHRC also builds the capacity of HRDs through Mr. Hari Phuyal Mr. Kosh Raj Neupane Mr. Shiva Bhandari training programmes, working in close collaboration with the civil society. 3. Mr. Hari Phuyal, Human Rights Lawyer Mr. Phuyal highlighted the legal procedures 28
  16. 16. Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms 30 31 that can be followed in case of human rights violation. In the case of criminal offences, the following actions are envisaged: File the First Information Reports (FIRs) at the Police after any occurrence of violence; if the Police refuse to file the case, the victim can then approach the Chief District Officer (CDO); once the case has been endorsed by the CDO, it can be taken to the Appellate Court. Mr. Phuyal explained that in incidence of domestic violence, the victim can approach the District Court for demanding justice. He further added that the victims can also lodge complaints to the National Human Rights Institutions, such as the NHRC, the NWC and the NDC, in case of specific types of violation. He then added that different human rights organizations can also play a pivotal role in addressing the redress demand of the victims. Besides, they are central for raising the victim’s voice and disseminating it through the media. Mr. Phuyal further explained that international mechanisms are also available, in conjunction with the national ones. When national mechanisms fail to provide justice, international instruments, such as diplomatic missions and the International Criminal Court can be approached. 4. Kamal Pathak, Advocacy Forum, on international and regional mechanisms Highlighting the fact that there are no regional security mechanisms in South Asia for Human Rights Defenders, Mr. Pathak briefed on the existing regional and international mechanisms for the protection of (W)HRDs. He stressed that the South Asian Association of Regional Coorpearation (SAARC), as a regional body, lacks separate strategies or protection mechanisms on human rights. He explained that there are 5 international mechanisms and 1 regional mechanism for South East Asia. The international regional mechanisms comprises of a) The African Commission on Human and Peoples’ Rights, b) The Inter-American Commission for Human Rights, c) The Council of Europe and its Commission for Human Rights, d) The Office for Democratic Institutions and Human Rights for the Organization for Security and Co-operation in Europe and e) The 2004 EU Guidelines on HRDs. Mr. Pathak, stressed the fact that South Asia is lacking a regional instrument on HRDs, despite such a possibility has been explored during the regional consultation, held in Kathmandu in 2009. During this event HRDs from all over South Asia met and discuss various options to establish such a mechanism. Mr. Pathak elaborated on the necessity of a regional instrument. He said that HRDs are always on the frontline in the promotion and protection of human rights. However, despite their efforts to uphold human rights, governments, national laws, police forces, etc., fails to provide adequate protection, thus reducing the scope of HRDs’ action. 5. Ms. Sudha Uprety, OHCHR Ms. Uprety shared on the implementation of the UN Declaration on HRDs linking it with treaty bodies. She explained that the international human rights mechanisms can be divided into two, Treaty-based mechanism (CEDAW; CESCR; HRC; CERD; CAT; CRC; CMW; CRPD) and Charter-based mechanism (UPR; human rights council and Special Procedures). She further elaborated that national, regional and international mechanisms are available for the protection and security of HRDs. Amongst the international mechanism, the UN Declaration of HRDs is a legally binding instrument, and its adoption by the state would strengthen its potential as a support tool for human rights and human rights defenders. Its inclusion within a State’s domestic legislation would facilitate its application by the judiciary and respect for it by State authorities. Ms. Uprety highlighted the importance of a correct implementation of the Declaration by the state. This process involve implementing the Declaration’s provisions, monitoring the progress made, and publishing a report indicating what steps have been taken and those articles in relation to which concerns remain. Further developing, in consultation with civil society, shall be considered, and a plan of action for the implementation of the Declaration must be published. The state must also disseminate the Declaration through information and training programmes targeting, for example, HRDs themselves, state officials, intergovernmental organizations and the media. Ms. Uprety concluded by stressing on the importance of linking the three level of mechanism (national, regional and international) together. She added that the international and regional norms require national implementation to be effective, and national norms should be consistent with international and regional standards. Finally, international and regional judicial protection shall be used only when national remedies have been exhausted internationally. 6. Ms. Iona Liddell, Communication Officer, Peace Brigades International Ms Liddell explained how the main goal of PBI is to ‘make space for peace’. Such a goal is pursued by protecting HRDs and the space in which they can work. PBI aims at increasing both the recognition and the protection of HRDs. In the first place, this is possible by physically accompanying HRDs on the field. This has a deterrence effect against potential perpetrators. Moreover, PBI builds connections and networks with otherMs. Sudha UpretyMr. Kamal Pathak Ms. Iona Liddell
  17. 17. Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms 33 organizations (e.g. WHRDs Network, WOREC etc.). PBI supports HRDs on the ground with an established protection mechanism, and gets their message across and outside Nepal. PBI also runs a pilot project in Dhanusa, and community projects in Bardyia and Dafuo. a. Member of INSEC A question has been addressed to the NHRC representative from an INSEC member. Impunity and other weak legal implementation have put HRDs at risk. Despite the harsh situation, there is a remarkable lack of unity amongst organizations in the districts. The NHRC could play a catalyst role and bring together various organizations. So far, which steps in this direction have been taken? Recently, there has been an attempt to disintegrate the human rights movement in the name of caste, religion, gender and specific rights. Defenders face additional risks, due to the geographical disparities too. Another problem that should be addressed by the NHRC is the presence of a widespread culture of self-censorship. b. Mr. P.B Gautam, INSEC, Rautahat district Mr. Gautam raised the problem of the lack of coordination between human rights organizations. It is not clear who should intervene and when. If the OHCHR is asked to intervene in the Terai, they say that they don’t have the mandate, but when INSEC is reporting cases of rape and extra judicial killings in the Terai, it often does not have the OPEN FORUM DISCUSSION DAY 2 mandate too. Moreover, as the OHCHR talks to armed groups directly, armed groups look at INSEC and other organizations negatively. He further shared his experiences about the mandate of the NHRC on the investigation of human rights violations. The NHRC claims that they need approval from their office to conduct investigation, but the challenge here is that , by the time that the NHRC gets the consent to act, the victim can either be disappeared, or in detention, or even dead. So what can the NHRC do about it? c. Member of the WHRD Network The NHRC is an authoritative body, similar to the judiciary system. So, how many cases have been recommended to you and how many cases have you solved? Can you please clarify your mandate? What work has the NHRC done for the capacity building of WHRDs? d. WHRD, Kapilvastu district The NHRC forms task forces to conduct investigation on human rights violation. Are these reports public? If not, can the NHRC lobby to ensure that these reports are made public? e. WHRD, Solukhumbu How can WHRDs get in contact with the European Union? f. Mr. Shiva Bhandari shared that the EU has its partner organizations in various parts of the country, so that immediate demands can be met. Protection International is one of such organization,whichcanbedirectlycontactedin case of emergencies. In addition, emblematic cases can be immediately forwarded to EU focal person. He further added that the EU delegation is committed to implement the Action Plan 2010-2015 at the regional level, in coordination with the NHRC, the OHCHR and other like-minded organizations and institutions, to address the current status quo. Although the EU does not have a direct implementation mechanism, ambassadors of the various EU states visit districts as a gesture for pressurizing the government to assess, monitor and implement its laws and policies. Ms. Margaret Sekkagya, United Nations Special Rapporteur on the situation of Human Rights Defenders Responding to the presentations, queries and questions presented during the Consultation, Ms. Margaret Sekkagya highlighted the following important points on the mandate of the Special Rapporteur. She shared that it is not necessary for the national mechanisms to be exhausted, in order to send the cases to the UN Special Rapporteur. The cases can be directly sent to the Special Rapporteur. The mandate of the UNSR is limited in its scope, covering only cases of violations against HRDs. She added that Special Rapporteurs are independent actors, and they have the power to recommend governments to address HRDs’ cases. The UNSR on the situation of HRDs has the responsibility to promote the UN Declaration on HRDs Ms.Sekkagyaavowedandpledgedtoaddress the issues presented during the consultation in her report to the UN Human Rights Council and requested the audience to advocate for an official invitation from the government of Nepal to the UNSR. 32
  18. 18. Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms 34 35I n the context of Nepal, HRDs have played a recognizable role for the political transformation of the country from an autocratic to a federal, democratic state. Their efforts in denouncing the human rights violation during the time of the people’s war have cost immense sacrifices and, often, their own lives. In the current political instability, which has catalyzed the institutionalization of impunity in the country, HRDs and especially WHRDs and LGBTI defenders face severe discrimination and are vulnerable to multiple violations. There are no security mechanisms for HRDs, and existing provisions are often ineffective. There is an urgent need for the state agencies to develop such mechanisms. A conducive environment for the protection of human rights must be created in order to allow HRDs to do their work. Existing laws have to be reviewed in the wake of newer and more unconventional challenges being faced by WHRDs on a daily basis. WHRDs have to undergo dual risk: they are vulnerable as women and as defenders. Stigmatization has crippled the identity of (W) HRDs, and consequently enhanced the non- recognition of their invaluable contribution. Defending the rights of the LGBTIs, indigenous minorities, differently able individuals, Dalits and of other discriminated minorities, WHRDs are working to the best of their abilities and capacities so that others can live a just and meaningful life, free from threats and violence. Because of the fact that they challenge the orthodoxy of the society, WHRDs bear the major brunt— facing murder, domestic violence, kidnapping, and threats. Let’s remember that cases such as that of Laxmi Bohra are still languishing in the court. This National Consultation provided a CONCLUSIONS platform for over 200 (W)HRDs from all the five development regions of Nepal to come under one roof and express their concerns to the UNSR. Ms. Sekkagya, upon hearing the poignant accounts of the (W)HRDs, avowed to include the cases presented in the consultation in her report to the UN Security Council. This, we sincerely believe, will definitely help in making the international community aware of the professional hazards of the (W)HRDs, and their impact on their personal lives; Moreover, it will pressurize the GON to develop an effective security and protection mechanisms for the defenders as well as for the survivors and witnesses. This National Consultation is also a gesture of thankfulness towards these heroes who are putting their lives at stake to promote and protect the rights of others. We salute the sense of duty and responsibility of these magnificent and distinguished individuals, who are braving all odds to make lasting changes in the society. Overall Challenges Lack of regional security and protection mechanisms for HRDs in Asia Many of the speakers reiterated that the existing political instability in Nepal has lead to a culture of rampant impunity, still not addressed by the state. There is lack of state’s accountability in enforcing justice to the victims, so that the current justice system can be defined as highly dysfunctional. Moreover, this unreliability has discouraged citizens, who have lost faith in the judicial system, and make often use of informal justice mechanisms (e.g. women’s court). The political parties have infringed the Comprehensive Peace Agreement (Art. 7), by providing amnesty for the perpetrators of violence against HRDs. In fact, the politicisation of the cases occurs on a daily basis. Despite the strength of the human rights movement, many speakers have highlighted that identity politics based on gender, ethnicity, religion and political affiliation are fragmentising the human rights movement, thus reducing its power. The participants reiterated the need of decentralising information from the central region to the districts. Given the topography of Nepal, information and resources tend to be concentrated in the central region, so that HRDs operating in the districts have scant access to them. There is impellent need to create a mechanism so that information and resources can flow to the districts, strengthening the capacity of the local HRDs. As for the root cause of the challenges faced by HRDs in Nepal, most of the participants have pointed out that the existing feudal and patriarchal social structure play a central role in fostering discrimination in all its forms. Therefore, discrimination has to be considered. Overall Recommendations  Advocate to develop a separate protection strategy and mechanisms for HRDs in Asia;  Strengthen local networks with special focus ion those working in the districts;  Strengthen cooperation between all organizations working together in a coordinated manner;
  19. 19. Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms 36 37  Conceptual clarity on the universality and indivisible nature of human rights and the role and responsibilities of the defenders;  Enhance the access to information of community-based defenders  NGOs and the civil society should campaign on the issue of pressurizing the government to extend a formal invitation to the UNSR;  There should be systemic and systematic documentation of the cases of rights violations of HRDs. Recommendations to the State  Implement the EU guidelines on Violence Against Women in all the government programs;  Develop protection mechanisms for HRDs, along with a Rapid Response and Early Warning Mechanism;  Enact laws for the protection of the HRDs, survivors and witnesses (witness protection);  Build the UN Declaration on HRDs into a binding instrument;  Adopt laws reflecting the GON’s responsibility to protect defenders. Recommendations to the UNSR on HRDs  Take up the issues highlighted in the Consultation during her meeting with the GON;  To address the issues raised in her Report to the UN Security Council. Declaration of the National Consultation of Women Human Rights Defenders with the United Nations Special Rapporteur on the situation of Human Rights Defenders On November 25-26, 2010, over 200 Human Rights Defenders, including the activists working for women’s rights, LGBTI rights, and marginalized communities gathered in Kathmandu to discuss issues related to the security and the protection of defenders while celebrating the International Day for the Elimination of all Forms of Violence Against Women (November 25th). Given that the commitments to human rights and to ending impunity for past and present violations still remains rampant and largely ignored. Was the ongoing instability in the country, lead to increased violence against women, food insecurity, lack of access to health care, to justice and support in case of natural disaster, and to other difficult situations, creating additional risks for human rights defenders (HRDs). Given that HRDs are the targets of physical assaults, torture, beatings, arbitrary arrest and detention, death threats, harassment, and restrictions on their freedom of movement, expression and opinion, association and assembly. Given that Women Human Rights Defenders (WHRDs) and lesbian, gay, bisexual and transgender and intersex (LGBTI) defenders, face specific risks and threats because of the gender, gender identity and sexual orientation, and the issues that they work on. Whereas the absence of the rule of law has aggravated the security situation of all Nepali people, and especially that of HRDs (in particular WHRDs and LGBTI defenders), no legal and formal support mechanism has been designed for HRDs which remain vulnerable to the threats they face. Given that there is a Supreme Court Directive to the Government of Nepal aimed at developing policy to protect HRDs working in situation of great risk, and specially WHRDs. Given that the adoption of the Domestic Violence Act (2009), and the Declaration of the Prime Minister to end all forms of Gender Based Violence are two recent progressive efforts that contribute to ending violence against women. Given that the NON RECOGNITION of the work of WHRDs leads to further marginalisation and increase the insecurity faced by women defenders. Given the imminent need for the creation of specific mechanisms for the protection of HRDs. We, the Human Rights Defenders of Nepal, call for the following actions to different agencies to bring an end to impunity and to promote and protect the rights of Human Rights Defenders: ANNEX
  20. 20. Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms 38 39 To the State 1. Focus efforts on the full realization of the principle that women’s rights are human rights as expressed in the Universal Declaration on Human Rights, Vienna Declaration and Programme of Action and the Beijing Platform for Action (BPFA) and other international human rights instruments. All State action must work on a policy that the human rights of women are inalienable, integral and indivisible part of universal human rights. The full and equal enjoyment of all human rights and fundamental freedoms by women must be a priority for States; 2. Ensure constitutional recognition of the rights to defend human rights. Immediately develop national protection mechanisms for HRDs in line with the decision of the Supreme Court on HRDs, with special consideration of gender issues; 3. Recognize that women are defenders and are entitled to the full exercise of the right to defend; 4. Address impunity by ensuring accountability for past and present human rights violations through establishing gender sensitive transitional justice mechanisms; 5. Ensure and strengthen the capacity and independency of the National Human Rights Commission; 6. Sensitize and raise the awareness of the community and of public opinion on the right to defend and the value of the work of HRDs, and, in particular, acknowledge the legitimacy and credibility of WHRDs; 7. Enact, and train security agencies on the implementation of laws for the protection of victims and survivors and witness protection; 8. Actively lobby for transforming the UN Declaration on HRDs into a binding instrument; 9. Advocate to develop a separate protection strategy and mechanism for HRDs in Asia; 10. Ensure special protection measures for protecting the rights of HRDs, especially WHRDs, LGBTIs, indigenous minorities, differently able individuals, Dalits, and marginalized defenders.; 11. Extend an official invitation to the UNSR on HRDs, in order to advice the government on how to best implement the previous recommendations; 12. Ensure proper implementation of the EU Guidelines on Human Rights Defenders and the EU Guidelines on Violence Against Women; 13. Provide education on women’s rights at all levels, in order to counter patriarchal norms that impede gender equality and women’s full enjoyment of their rights; 14. Extend the term of the Office of the High Commissioner for Human Right (OHCHR) s to stay in Nepal until the political impasse comes to an end; To the Human Rights Defenders: 1. Develop conceptual clarity on the universalityandindivisiblenatureofhuman rights and the role and responsibility of human rights defenders; 2. Creation and strengthening of the national, sub regional and regional coalitions and networks to enhance the protection of HRDs and development of proper policies and strategies in order to ensure the respect of HRDs; 3. Be accountable to provide information and access to information for community level defenders; 4. Campaign to lobby the government to send an Official invitation to the SR HRD 5. Develop Systematic documentation of the cases and develop capacity of community defenders to document violations of human rights; To the International Community 1. Lobby for the official visit of UNSR HRD; 2. Support the establishment of protection mechanisms for HRDs that includes the strengthening of contacts and networks between defenders; 3. Follow-up on diplomatic missions to other parts of Nepal with the Government highlighting the situation of local human rights defenders; 4. Advocate for developing constitutional provisions and subsequent legislation protecting the rights to defend human rights; 5. In line with continued international support for the protection of defenders and promotion of human rights actively engaged South Asian governments on the creation of a regional human rights body with an individual complaints procedure; 6. Ensure that the European Guidelines on Violence Against Women becomes an integral part of any European Union Funding provided for the government of Nepal; 7. Ensure translation and implementation of the European Guidelines on Human Rights Defenders , European Guidelines on Violence Against Women and European EU toolkit on the rights of LGBT persons To the United Nations Special Rapporteur on the situation of Human Rights Defenders; 1. To lobby with the Nepal Government and other Missions to extend an invitation for an official visit to Nepal; 2. To lobby with the different agencies to formulate specific recommendations on recognition and security of Human Rights Defenders for Nepal during the UPR review in January 2011
  21. 21. Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms Identity, Recognition and Resilience of Human Rights Defenders: Strengthening the Security and Protection Mechanisms 40 41 Dev Kumari Mahara, WHRD, siraha.worec@gmail.com Mr. Subodh Raj Pyakurel, Chairperson, INSEC, subodh@insec.org.np Ms. Margaret Sekkagya, UNSR, urgent-action@ohchr.org Dr. Renu Rajbhandari, NAWHRDs, suchana.renu@gmail.com His Excellency Morten Jespersen, Embassy of Denmark in Nepal, ditbje@um.dk Roberto Ricci, Officer in charge, OHCHR Nepal, rbennett@ohchr.org Hon. Kedar Nath Upadhaya Chairperson, NHRC nhrc@nhrcnepal.org Mandira Sharma, Executive Director Advocacy Forum, msharma@advocacyforum.org.np Ganesh BK, President, Human Rights Alliance, alliance.humanrights@gmail.com Manisha, Blue Diamond Society, bluediamondsociety@yahoo.com Mr. Chandra Singh Kulung Ms. Rita Thapa, Founder TEWA, Naagarik Awaaz, WAPPDCA, ritathapa.patan@gmail.com Monika Jha, Journalist & WHRD, Dhanusha district Sanjay Sharma, Blue Diamond Society, bluediamondsociety@yahoo.com Narayan Subedi, INSEC insec@insec.org.np Shiva Maya Thumbahamphey, Member, NAWHRDs; shiva_tumba@yahoo.com Sunil Sah, HRDs Network, District, sunil.rights@gmail.com Suraj Bhattarai, Federation of Journalists, suraj.bhattarai@live.com Manoj Bachan, Manoj Bachan, Madheshi HRDs Network, mk.bachchan@gmail.com Ganga Thapa, Protection Officer, Protection Desk Nepal, pdnepal@protectiondesk-nepal.org Shaun Kirven, Consultant and Researcher, shaun.kirven@gmail.com Dr. Netra Prasad Timsina, President, NGO Federation, nptimsina@gmail.com Shiva Bhandari, Contact person for European Working Group on HRDs, Shiv.bhandari@ec.europa.eu Kamal Pathak, Advocacy Forum, Programme Coordinator, kpathak@advocacyforum.org.np Advocate Hari Phuyal, Human Rights lawyer, hariphuyal@yahoo.com Sudha Uprety, OHCHR, suprety@ohchr.org Ms. Iona Liddell, Peace Brigades International, communication officer, communications@pbi-nepal.org Kosh Raj Neupane, Deputy Director, NHRC, kosh.neupane@nhrcnepal.org List of Participants Songs by WHRD participants ! hGdgf ;fy x]nf ef] 5f]/L k9g klg kfOPg a/Ln} syf ;'gfpF5' lhGbuL e/Lsf] Joyf ;'gfpF5' @ hGdgf ;fy cfdfsf] d/g cfdf 6f]s'O eg]/ Gjf/g bf]lif ePF d of] s'/f ;'g]/ w]/} /f]PF d # afpn] NofP ;f}t]gL cfdf dfof d}n] kfOg hLjgdf cfF;' aufpFb} sfd dfq} nufOof] arg nufpFb} $ 3fF; bfp/f u/]/ a;]y]+ vfnL k]6 k6'sL s;]y]+ gfËf] v'§fn] vfnL e"OFdf ;'ltof] vfgf dfUgfn] % cfP dfdf kmsfpg dnfO{ zx/df hfuL/ efGhLnfO{ ;'v kfOG5 df;' eft gL vfOG5 uf8L r9LG5 ^ 3/df dfof gkfsf] eP/ ;Dem] d}n] d]/f] kf] s] 5 / cfzf af]s]/ zx/sf] /dfOnf] x]5'{ eg]/ & dfdf eP ;f¥x} g} hfnL bof dfof /x]g5 cn]nL s]6f] b]vfpFb} olx;Fu hf eg] cfFvf nufpFb} * 3fF; bfp/f u/]sL 5f]/LnfO{ s:tf] lk/ ef] xf]nf a/Ln} s]6f] b]vfpFbf ;f¥x} g} /f]P y] a]Rof yf kfpFbf ( nfpnL vfpnL ;'vn] a;f}nL d;Fu a] klg u/f}nL egL kmsfof] aDaOdf nu]/ dnfO{ a]lrlbof] !) 3/sf] ofbn] /fte/L ;'tLg 5f]/f eP of] lbg cfpFy]g ;Dem]/ /f]P of}g wGbf ug{nfO{ afWo d ePF !! d h:tf w]/} 5g km;]sf /f]O /f]O g/sdf a;]sf hLjg lwSsf/ h'Ëf d'7] /fIf;sf] eO{ l;sf/ dlxnf dfgj clwsf/ /Ifs ;~hfn sfe|] ;lrj–lgd{nf sfˆn]
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