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<<previous | index | next>> III. BACKGROUNDCrackdown on Ethnic Nepalese in BhutanIn the 1970s and 1980s, the Bhutanese government introduced a series of repressive citizenship laws and “Bhutanization” policies that focused on the political, economic, and cultural exclusion of ethnic Nepalese living in southern Bhutan (“Lhotshampas”).1 The Bhutanese government, a hereditary monarchy dominated by the Ngalongs, perceived the growing ethnic Nepalese population and their formation of a political party as a threat to Bhutan’s cultural and political order.2 The Citizenship Acts of 1977 and 1985 included several provisions permitting the revocation of citizenship. The government began enforcing the 1985 Act in a discriminatory manner through a 1988 census, resulting in the mass denationalization of thousands of Lhotshampas in violation of international human rights law.3 The census was implemented only in southern Bhutan, and reports suggest that local government officials made arbitrary census classifications designed to push the Nepali-speaking community out of Bhutan. The government of Bhutan also introduced a “one nation, one people” policy in 1989 that forced the practice of Drukpa culture nation-wide through a compulsory dress code and the termination of Nepali language instruction in schools.4 In the early 1990s, the Bhutanese government crushed resistance by ethnic Nepalese and others who protested the policies through large public demonstrations and the formation of a political party calling for a multi-party democracy. Some ethnic Nepalese were involved in violent activities, such as the burning of schools and attacks on government officials. The government closed schools and suspended health services in southern Bhutan. Members of the Bhutanese police and army imprisoned, raped, and tortured many of those who were directly, indirectly, or incorrectly presumed to be associated with the demonstrations. Government forces also destroyed houses and forced many ethnic Nepalese off of their lands.5 State Persecution of Ethnic Nepalese Women and Girls in BhutanHuman Rights Watch interviewed refugee women who suffered sexual violence, arbitrary arrest and detention, and other serious rights violations during the forced deportations in the early 1990s. Responsibility for these abuses lay with the Bhutanese police and army, who were often acting to enforce the policies of government officials, including village heads, block-level administrators, and district officers. In some cases, men, women, and children had to perform forced labor. When their husbands or other relatives fled the country, women were often punished or threatened, including with arrest, because the whole family was labeled “anti-national.” Female heads of household, disabled women, and girls, often more vulnerable because of their status in society, were among those abused. As will be discussed later, this widespread persecution contradicts the Bhutanese government’s claim that the majority of the refugees were not fleeing human rights abuses but voluntarily migrated to Nepal. A woman in her late thirties who lived in Samdrup Jongkhar district recounted her experiences in 1992:
A young woman told Human Rights Watch she was raped by Bhutanese police in the early 1990s in the course of the campaign against ethnic Nepalese. She said, “The police took my family and accused us of having connections with Indians. I said ‘yes, we have connections with them because we live close to the border.’ And then the officer raped me. I was thirteen years old at the time. They raped me three or four times a day for seven days. They had taken me from my house along with two other girls, my aunt’s daughter, and daughter-in-law. After that, we didn’t feel like staying there. I felt my life was at risk.”7 Many other women fled Bhutan because of the physical threat or fear of sexual violence. Saraswati D., a widow, recalled why she left Bhutan:
One woman, whose case is typical of many other refugees, was compelled to sign a “voluntary migration certificate” in the early 1990s after being abused and threatened. Pratima M. said:
A Protracted Refugee SituationTens of thousands of people had fled human rights abuses in Bhutan or were forcibly deported by 1992. Before they crossed the border into India, the Bhutanese government forced many to sign “voluntary migration certificates,” thus surrendering their rights to Bhutanese citizenship under the nationality laws. Initially, refugees fled overland to West Bengal and Assam in India. However, harassment from the Indian police forced them to move on to Nepal.10 The refugees settled on the banks of the Mai River in southeastern Nepal, where they endured unsanitary living conditions, disease, and inadequate supplies. International NGOs began operations to aid the Bhutanese refugees, and in 1991, the government of Nepal and UNHCR established refugee camps. By mid-1994, approximately eighty-six thousand refugees resided in the camps.11 Currently, more than one hundred thousand Bhutanese are registered in seven refugee camps in Nepal, including a significant number of children born in the camps.12 Some ten thousand non-registered refugees live outside of the camps in Nepal and another fifteen thousand live in India.13 Nepal and UNHCR jointly administer the refugee camps with the World Food Program (WFP) providing basic food assistance. Several NGOs operate as implementing partners in the delivery of aid, including The Lutheran World Federation (LWF), Caritas, the Nepal Red Cross Society, the Asian Medical Doctors Association (AMDA), and the Nepal Bar Association, Jhapa Unit. The crisis of the early 1990s has evolved into a protracted dispute with most refugees in Nepal wanting to invoke their right to return to Bhutan while the government of Bhutan refuses them entry on the grounds that they are illegal migrants or “anti-nationals.”14 Like the majority of the world’s refugees, the Bhutanese refugees are trapped in a “protracted refugee situation,” meaning they have been living in exile for more than five years and do not have the immediate prospect of a durable solution by voluntary repatriation, local integration, or resettlement in a third country.15 Refugees in these situations often suffer from lack of funding because high-profile crises involving large-scale refugee movements capture the bulk of international attention and resources. They must not only struggle to meet basic survival needs, but must also face the social and economic problems that arise after years of refugee life. The Bhutanese refugee camps in Nepal have been cited as a model because of the quality of basic services and the school system, and the involvement and leadership of refugees in daily administration. Human Rights Watch observed many positive features of the camps, including well-designed water and sanitation systems, free education until tenth grade, and the provision of a full food basket by WFP and UNHCR.16 In addition to the refugee-led camp administration, other refugee organizations operate in the camps, providing skills training, workshops on health issues, and activities for children.17 Success in some aspects of service-provision may obscure the fact that the Bhutanese refugees nevertheless suffer from hardships typical of protracted refugee situations. Refugees are frustrated by their inability to seek employment and to pursue higher education. UNHCR and health care workers have identified an increasing incidence of mental health problems like depression and anxiety, particularly among women. Twenty-four refugees have committed suicide since June 2001, and another six have attempted suicide.18 Based on comparisons with reported suicides in surrounding areas, the incidence of suicide in the refugee camps is approximately four times that of the incidence in the local Nepalese population.19 Though they receive basic food rations and huts, the type of assistance that is sufficient for short-term emergencies is inadequate for long-term living. Refugees live in overcrowded conditions where up to eight people share one hut. They also receive clothes only once a year, and have to seek low-paying informal work so that they can supplement their diet, buy extra clothes, or pursue higher education. Two common problems associated with protracted refugee situations are dwindling resources and tense relationships between refugees and local communities. As will be discussed below in more detail, the programmatic choice to minimize UNHCR staffing in the camps contributed to grave problems in the administration of justice, especially in cases of gender-based violence. Furthermore, refugees cited local threats and attacks by Nepalese as their most critical security issue. Especially in the camps located on main roads or near the town of Damak, local Nepalese men come into the camps, often drunk, and either taunt the refugees or pick fights. Some local Nepalese men have also been implicated in sexual harassment and violence against refugee women and girls. A Flawed Categorization ProcessNegotiations between Bhutan and Nepal over the refugee situation have stretched over a decade. A breakthrough in the tenth round of ministerial talks in December 2000 led to the creation of a Joint Verification Team (JVT) comprised of representatives from the governments of Bhutan and Nepal to verify and categorize the refugees. A May 2003 Human Rights Watch briefing paper, “We Don’t Want to be Refugees Again,” discusses serious shortcomings of the verification and categorization process including the lack of transparency, a highly flawed four-tier categorization system, and the failure to include UNHCR as an international monitor.20 The verifications have proceeded slowly—the categorization results for Khudanabari camp, the first and only camp to be categorized (approximately 10 percent of the refugees) were released in 2003, more than two years after the process first began. The two governments have still not initiated a categorization process in the remaining six camps nor set a timeline for doing so. In June 2003, Bhutan and Nepal announced the categorization results for Khudanabari camp, stating that only 2.5 percent of the refugees were forcibly evicted Bhutanese who could return to their lands and property in Bhutan with full citizenship. Seventy percent were deemed “Bhutanese who voluntarily migrated,” which means they will have the option of returning to Bhutan, but they will not be able to reclaim their original land and property, and they will have to fulfill burdensome requirements to regain Bhutanese citizenship. 21 Without citizenship and a UNHCR presence to monitor their repatriation, returning refugees may not have full access to education, employment, and freedom of movement within the country.22 The JVT classified 24.5 percent of the refugees from Khudanabari camp as non-Bhutanese, leaving them at high risk of statelessness.23 The JVT designated the remaining 3 percent as having committed crimes. These refugees may include individuals whose only “crime” was the peaceful expression of political views.24 The lack of an independent and fair appeal process compounds the injustice of the categorization results. The JVT gave refugees merely fifteen days to appeal and only if the refugees could provide new evidence. Well over 90 percent of the refugees submitted appeals.25 Refugee children who were placed in categories two (“voluntary migrants”) and four (“those who committed crimes”), and who must therefore reapply for Bhutanese citizenship if their families choose to return to Bhutan, will be at particular risk for statelessness. Under the 1985 Bhutan Citizenship Act, applicants for citizenship must be twenty-one if neither parent is a Bhutanese citizen and fifteen if one parent is a citizen. These age limits will affect the vast majority of refugee children. Since the Bhutanese government plans to reinstate citizenship for only 2.5 percent of categorized refugees, most children will have at least one parent who is not a citizen. Returning refugee children and young adults will not be able to apply for citizenship and will be stateless inside of Bhutan; consequently, they may not be able to access public education nor move freely around the country.26 Women’s Limited Participation in the Verification and Categorization ProcessIn the refugee verification and categorization process carried out in Khudanabari camp, the JVT excluded women from meaningful participation in the verification interviews. Women did not have the same opportunity to answer interview questions as men, they had no access to female interviewers, and they were unable to have independent interviews even if they were separated from their husbands. By failing to make the verification and categorization process gender-sensitive, the JVT has denied women the opportunity to have their claims fairly considered, with detrimental consequences for their resulting categorization and terms of repatriation. Furthermore, women and children who had found safety by living separately from abusive heads of household remain linked and dependent on them for purposes of verification and repatriation. Interviewees told Human Rights Watch that although the format of the interviews was supposed to include individual interviews with each adult member of the household, the JVT directed most questions to the male head of household, and asked just one or two questions, if at all, of other members. As Kala G., a forty-seven-year-old woman from Khudanabari camp stated, “They asked my husband about why he left Bhutan. But I was not given a chance to tell my story, and I was tortured [in Bhutan] more than he was.”27 The group format of the interviews as well as the absence of women on the JVT made it difficult for rape, domestic violence, and sexual assault survivors to discuss either their reasons for flight or their hesitations to return. Except for one woman on the Nepal team who was later replaced, the JVT was comprised entirely of men. Furthermore, most rape victims told Human Rights Watch that they were assaulted by army and police personnel with the full complicity of local Bhutanese government officials, rendering interviews with Bhutanese government officials intimidating. The failure to promote women’s full participation in the verification and categorization process contravened international standards for refugee screening procedures and contributed to the controversial categorization results the JVT announced for Khudanabari camp in June 2003.28 Only 2.5 percent of the refugees were deemed bona fide Bhutanese who had been forcibly evicted, and are therefore now eligible to return with full citizenship. The JVT divided the rest of the refugees into voluntary migrants, non-nationals, and criminals. Human Rights Watch obtained the categorization results of refugees we had interviewed in March and April 2003. The JVT placed all of the women we interviewed who had been raped, imprisoned, or who had been assigned forced labor prior to their flight from Bhutan in categories two (“voluntary migrants”) and three (“non-Bhutanese”). The JVT’s categorization of women who fled from persecution as “voluntary migrants” raises serious doubts about the legitimacy of the verification and categorization process, as these women qualify as refugees under international law.29 The JVT has not shared the criteria it used to categorize refugees as “non-Bhutanese.” Many of those categorized as “non-Bhutanese” reported to Human Rights Watch that they had Bhutanese citizenship and fled the country or had been forced to sign voluntary migration forms. Examples of faulty and unclear categorizations include:
The results from Khudanabari camp have also raised serious concerns about the splitting apart of households because many families that were interviewed together had their members placed in different categories, with some being allowed to return to Bhutan and others not.33 These split categorizations violate Bhutan and Nepal’s international human rights obligations to address family reunification positively and in a humane manner, and to act with the best interests of the child as a primary consideration.34 AHURA-Bhutan, a local human rights group, documented that 192 families were split between categories, with most family members categorized as “voluntary migrants” and “non-Bhutanese.” The governments of Bhutan and Nepal have violated the rights of refugees by carrying out a verification and categorization process lacking transparency and fairness, thus affecting refugees’ ability to exercise their right to return home. This process has failed to ensure that past abuses against women in Bhutan were taken into account during the interviews and that women could participate on an equal basis with men. Ethnic Nepalese Women’s Status in BhutanThe problems women and girls face in the refugee camps reflect the discrimination and abuse they experienced in Bhutan. Nepali-speaking Bhutanese women and girls confronted harmful cultural practices within their Nepalese community and violations of their human rights by the Bhutanese state. Many women in the camp reported enduring domestic violence, child marriage, abandonment, bigamy, and legal discrimination in the marriage and citizenship laws when living in Bhutan. Although many women were farmers, men were considered the household heads and wielded primary economic power as land and property were registered under their names. Saraswati D. recounted the hardships that cultural norms posed to her as a widow, “I was age five when I got married. I first moved to my husband’s house at age fifteen. After my husband died, when other men worked in my fields I would be accused of having special relations with them. Fields have to be ploughed with oxen by men. But because I was afraid of rumors, I ploughed the fields by myself at night with a spade. I did all the work that men did and I couldn’t ask for help.”35 Several women also talked about their experiences with domestic violence, which often ended with their husband abandoning them and taking a second wife. Abandoned women are still considered married to the first husband except in cases of jari, in which a woman’s second husband must pay the equivalent of a dowry to the first husband. Polygamy is legal in Bhutan.36 Women whose husbands took second wives were usually not consulted, and suffered economic abandonment and loss of status in the household. Many people in Bhutan are poor and live in isolated, mountainous areas. Especially in impoverished communities, many women have little or no education. Women do not have equal representation in political affairs. There are no women’s organizations operating independently of the Bhutanese government, and there is still little awareness about women’s rights and the need for gender-specific services. Although Bhutan ratified CEDAW in 1981, it has yet to submit an initial country report. Nepali-speaking Bhutanese women also faced restrictions under the Bhutanese “one people, one culture” policy, which mandated a national dress. This prevented them from wearing their traditional sari, even, according to some refugees, on their wedding day. Other women reported having their hair forcibly cut, as long hair is a valued trait in Nepalese culture. By enforcing the uniform dress code today, the Bhutanese government infringes upon the rights of the ethnic Nepalese community still living in Bhutan to practice their own culture.37 Women’s Status in NepalOver the past twelve years, Bhutanese refugee women have been under the protection and jurisdiction of the government of Nepal. Despite progress made by the Nepalese women’s movement in recent decades, women and girls still suffer inferior social, economic, legal, and political status compared to men. Girls experience discriminatory treatment from birth, and strict gender roles prevent women from cultivating economic independence and social autonomy. Girls are considered burdens to the family and less valuable than sons, who are expected to care for parents in their old age. Low education levels among girls and women, paternalistic laws, and pervasive gender-based violence prevent women from enjoying their human rights. Rampant poverty, lack of awareness about deceptive and coercive methods employed by human traffickers, and an open border between Nepal and India contribute to thousands of Nepalese women and girls being trafficked for sex work and forced labor in India each year.38 Discrimination against women includes legalized polygyny and a law that prevents women from retaining custody of their children if they remarry.39 Shortcomings in the law that inhibit successful prosecutions for gender-based violence cases are discussed in later sections. While there is a growing women’s movement in Nepal and increasing government cooperation, discrimination against women remains pervasive. There have been some recent victories for the women’s movement, for example the passage of progressive legislation improving women’s property rights, increasing punishments for rape, and legalizing abortion.40 However, women previously convicted of having an abortion or committing infanticide under former anti-abortion laws remain incarcerated.41 1 Mathew Joseph C., Ethnic Conflict in Bhutan (New Delhi: Nirala Publications, 1999), pp. 129-164. “Lhotshampas” refers literally to “people living in the south.” Ethnic Nepalese began migrating to southern Bhutan in the nineteenth century and many were granted Bhutanese citizenship by the 1958 Nationality Law. Under this law, an adult may obtain Bhutanese citizenship by owning land, residing in Bhutan for ten years, and taking an oath of loyalty to the King. 2 Ben Saul, “Cultural Nationalism, Self-Determination, and Human Rights in Bhutan,” International Journal of Refugee Law, vol. 12 (2000). Bhutan is home to three major ethnic groups: the ruling Ngalongs live in the west, speak Dzongkha, and belong to the Drukpa Kagyugpa sect of Buddhism; the eastern Sarchops speak Tsangla and belong to the Nyingmapa sect of Buddhism; and the southern Lhotshampas speak Nepali and are primarily Hindu. The government of Bhutan feared a repetition of the events in neighboring Sikkim, where a growing Nepalese population had supported a 1975 merger with India, and in North Bengal, India, where the militant Nepalese Gorkha National Liberation Front (GNLF) led an unsuccessful but bloody uprising seeking a separate Nepali state. Yeshey Dorji, the deputy permanent representative of Bhutan to the United Nations, explained Bhutanese fears as follows: “What has happened in the neighborhood is very disturbing. Look at Sikkim, Darjeeling, Ladakh. In Sikkim, the original inhabitants are now only 17 percent of the population.” Human Rights Watch interview, New York City, May 6, 2003. 3 Article 15(2) of the Universal Declaration of Human Rights (UDHR) states, “No one shall be arbitrarily deprived of his nationality.” Universal Declaration of Human Rights G.A. Res. 217A (III), U.N. GAOR, 3d. Sess., pt. 1 at 71, U.N. Doc. A/810 (1948). Section 3 of the 1985 Bhutan Citizenship Act retroactively made 1958 the cut-off date for citizenship by registration. In these cases, a person had to provide land tax receipts or other proof of residency from on or before December 31, 1958. Vague provisions in the 1985 Act permitted government officials to strip individuals of their citizenship arbitrarily; for example, section 6(c) permitted the denationalization of any naturalized citizen who “has shown by act or speech to be disloyal in any manner whatsoever to the King, Country and People of Bhutan.” For a more detailed analysis of the 1985 Bhutan Citizenship Act and international human rights law, see Amnesty International, “Nationality, expulsion, statelessness and the right to return,” September 2000 and Tang Lay Lee, “Refugees from Bhutan: Nationality, Statelessness, and the Right to Return,” International Journal of Refugee Law, vol. 10, no. 1-2 (1998). 4 AHURA Bhutan, “Bhutan: A Shangri-La without Human Rights,” March 2000; Amnesty International, “Bhutan: Human Rights Violations against the Nepali-Speaking Population in the South,” December 1992; Amnesty International, “Bhutan: Forcible Exile,” August 1994; and Tessa Piper, “The Exodus of Ethnic Nepalis from Southern Bhutan,” April 1995 [online], http://www.unhcr.ch/refworld/country/writenet/wribtn.htm (retrieved March 1, 2003). 5 Amnesty International, “Bhutan: Human Rights Violations;” Amnesty International, “Bhutan: Forcible Exile;” andPiper, “The Exodus of Ethnic Nepalis from Southern Bhutan.” 6 Human Rights Watch interview with Kira Maya R., Bhutanese refugee camps, Nepal, March 24, 2003. All names of refugees we interviewed have been changed to protect their identity. Other identifying information, including the name of the refugee camp where the interview took place, has been omitted for the same reason. 7 Human Rights Watch interview with Phul Maya L., Bhutanese refugee camps, Nepal, March 28, 2003. 8 Human Rights Watch interview with Saraswati D., Bhutanese refugee camps, Nepal, March 26, 2003. 9 Human Rights Watch interview with Pratima M., Bhutanese refugee camps, Nepal, March 23, 2003. 10 D.N.S. Dhakal and Christopher Strawn, Bhutan: A Movement in Exile (New Delhi: 1994), quoted in Lee, “Refugees from Bhutan.” 11 Amnesty International, “Forcible Exile,” p. 3. By mid-1992, refugees’ reports of arbitrary arrests, torture, and rape in Bhutan had diminished, but they continued to face threats of large fines and imprisonment if they did not sign “voluntary migration certificates” and leave the country. Small numbers of Bhutanese seeking refuge continued to arrive in the camps through the 1990s. 12 According to the government of Nepal, 102,140 refugees live in the camps jointly administered by Nepal and UNHCR. Refugee Coordination Unit, Ministry of Home Affairs, Nepal, November 30, 2002. There are also a small number of Sarchops refugees and asylum-seekers in eastern Nepal. This group of Bhutanese refugees and asylum-seekers primarily fled Bhutan in 1996 and 1997. E-mail message from UNHCR Sub-Office, Damak, Nepal to Human Rights Watch, September 1, 2003. The Sarchop refugees fled persecution in Bhutan, including arbitrary arrest and prolonged detention without charge or trial, for their political views. Amnesty International, “Bhutan: Crack-down on ‘anti-nationals’ in the east,” January 1998. 13 U.S. Committee for Refugees, World Refugee Survey 2002 (Washington, D.C.: 2002), pp. 149-152 (citing Nepalese authorities). 14 See footnote 217 for a discussion of the right to return. Representatives of the government of Bhutan have argued that the refugees are voluntary migrants who followed their political leaders out of Bhutan in the early 1990s. “The people were misled by their leaders, they were told they should go stay in the refugee camps for a few months where they would get huts and food, and that a few months later they would return in triumph—. They told people living in India and Nepal to come live in the camps, and they would be rewarded with land in Bhutan.” Human Rights Watch interview with Yeshey Dorji, the deputy permanent representative of Bhutan to the United Nations, New York City, May 6, 2003. Bhutanese law defines “anti-nationals” as “those aversed [sic] to the development of the Kingdom of Bhutan and those who assist the enemies.” Thrimshung Chhenpo Tsa Wa Sum (Law on Treason and Anti-Nationals), 1957, art. 1. Bhutanese law criminalizes “anti-national” activities such as treason, undermining the security and sovereignty of Bhutan by creating or attempting to create disaffection among the people, creating hostility or misunderstanding between the government and the people of Bhutan, and promoting or attempting to promote feelings of hatred between different religious, racial, or language groups. The law provides that such acts can be punished by imprisonment or death. The National Security Act, 1992, clause 4. 15 Jeff Crisp, “No Solutions in Sight: The Problem of Protracted Refugee Situations in Africa,” UNHCR Evaluation and Policy Analysis Unit: Working Paper no. 75, 2003, p. 1. Over 60 percent of the ten million refugees cared for by UNHCR at the end of 2002 were caught in protracted refugee situations. Jeff Crisp and Ray Wilkinson, “Crises Without End or Solution,” Refugees, vol. 4, no. 129 (2002), p. 23 16 Many people observed that the quality of education offered in the refugee camps was superior to the education found in an average public school in Nepal. Refugees receive a ration of 2,100 kilocalories per person per day, a number that meets standards set by the World Health Organization. 17 The refugee organizations include the Bhutanese Refugee Women’s Forum (BRWF), the Children’s Forum, and Bhutanese Refugees Aiding Victims of Violence (BRAVVE). 18 E-mail message from Douglass Cubie, United Nations Volunteers (UNV) associate protection officer, UNHCR Sub-Office, Damak, Nepal, to Human Rights Watch, September 1, 2003. 19 E-mail message from Giulia Ricciarelli-Ranawat, protection officer, UNHCR Branch Office, Kathmandu, Nepal, to Human Rights Watch, August 15, 2003. UNHCR records and follows up on all known reported suicide and attempted suicide cases. E-mail message from Douglass Cubie, UNV associate protection officer, UNHCR Sub-Office, Damak, Nepal, to Human Rights Watch, September 1, 2003. 20 Human Rights Watch, “‘We Don’t Want to be Refugees Again,’ A Human Rights Watch Briefing Paper for the Fourteenth Ministerial Joint Committee of Bhutan and Nepal,” May 19, 2003, available at: http://hrw.org/backgrounder/wrd/refugees/. The Bhutanese and Nepalese governments have agreed upon a system of categorization into four groups: (1) bona fide Bhutanese who were forcibly evicted, (2) Bhutanese who voluntarily migrated, (3) non-Bhutanese, and (4) Bhutanese who have committed crimes. 21 Under the 1985 Bhutan Citizenship Act, citizenship through naturalization requires: twenty years of residency in Bhutan; the ability to speak, read, and write Dzongkha proficiently; good knowledge of the culture and history of Bhutan; good moral character; no “record of imprisonment for criminal offenses in Bhutan or elsewhere”; and “no record of having spoken or acted against the King, country and people of Bhutan in any manner whatsoever.” Most refugees will not be able to fulfill the Dzongkha proficiency requirement. The vagueness of several provisions in the 1985 Bhutan Citizenship Act permit arbitrary interpretations that make returning refugees vulnerable to discrimination. The government of Bhutan issued an application form to refugees for citizenship that states, “The re-applicants shall not be associated with activities of any anti-national organizations/individuals.” Government of Bhutan, Form KA-(C): Terms and Conditions for Re-Application, June 18, 2003. This provision could prevent refugees who participated in peaceful demonstrations, and their relatives, from obtaining citizenship. 22 Human Rights Watch, “We Don’t Want to be Refugees Again.” 23 As the JVT has not explained the criteria it used to categorize refugees, it is possible that many of those placed in this category are indeed Bhutanese and will be denied their right to return to Bhutan. 24 Given Bhutan’s treatment of political dissidents in the past, these activists could be subject to criminal trials without due process of law or suffer other human rights abuses during their time in pre-trial or post-conviction custody. 25 E-mail message from AHURA Bhutan, Kathmandu, Nepal, to Human Rights Watch, July 7, 2003. 26 Human Rights Watch, “We Don’t Want to be Refugees Again.” Without citizenship or appropriate security clearance documents, children in Bhutan cannot take qualifying national exams and may be barred from high school. 27 Human Rights Watch interview with Kala G., Khudanabari camp, Nepal, March 21, 2003. 28 The Executive Committee (“ExCom”) is UNHCR’s governing body, and has passed a conclusion calling upon States, relevant United Nations organizations, and NGOs to “[p]rovide, wherever necessary, skilled female interviewers in procedures for the determination of refugee status and ensure appropriate access by women asylum-seekers to such procedures, even when accompanied by male family members—[and to p]rovide for informed and active consent and participation of refugee women in individual decisions about durable solutions for them,” ExCom Conclusion No. 64 (1990). Since 1975, ExCom has passed a series of conclusions at its annual meetings. The conclusions are intended to guide states in their treatment of refugees and asylum seekers and in their interpretation of existing international refugee law. While the conclusions are not legally binding, they constitute a body of “soft” international refugee law. They are adopted by consensus by the ExCom member states, are broadly representative of the views of the international community, and carry persuasive authority. 29 Convention Relating to the Status of Refugees (“Refugee Convention”), 189 UNTS 150, 1951, entered into force April 22, 1954. In 1967 a Protocol was adopted to extend the Refugee Convention temporally and geographically. Protocol Relating to the Status of Refugees, 19 UST 6223, 606 UNTS 267, 1967, entered into force October 4, 1967. Article 1(A) of the Refugee Convention defines a refugee as a person who, “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, or membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.” Neither Nepal nor Bhutan are party to the Refugee Convention. 30 Human Rights Watch interview with Chandra Maya R., Bhutanese refugee camps, Nepal, March 24, 2003. 31 Human Rights Watch interview with Kira Maya R., Bhutanese refugee camps, Nepal, March 24, 2003. 32 Human Rights Watch interview with Devi C., Bhutanese refugee camps, Nepal, March 24, 2003. 33 The JVT treated individuals above the age of twenty-five, single or married, as separate family units from their parents and siblings. E-mail message from Giulia Ricciarelli-Ranawat, protection officer, UNHCR Branch Office, Kathmandu, Nepal, to Human Rights Watch, September 10, 2003. 34 Convention on the Rights of the Child (CRC), U.N. Doc. A/44/49, 1989, entered into force September 2, 1990, arts. 3(1), 9, and 10(1). Bhutan ratified the CRC on August 1, 1990 and Nepal ratified it on September 14, 1990. ExCom Conclusion No. 84 (1997) urges “States and concerned parties to take all possible measures to protect child and adolescent refugees, inter alia, by: preventing separation of children and adolescent refugees from their families and promoting care, protection, tracing and family reunification for unaccompanied minors.” 35 Human Rights Watch interview with Saraswati D., Bhutanese refugee camps, Nepal, March 26, 2003. 36 United States Department of State, “2002 Country Reports on Human Rights Practices: Bhutan,” March 31, 2003 [online], http://www.state.gov/g/drl/rls/hrrpt/2002/18310.htm (retrieved on May 30, 2003). Bhutanese men may marry more than one woman with the permission of the first wife. 37 The right of persons to participate in their own culture is well-established under international law. The UDHR, recognized as customary international law, states in article 22 that “Everyone, as a member of society — is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality”; and in article 27, that: “Everyone has the right freely to participate in the cultural life of the community—.” The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) recognizes the “right to equal participation in cultural activities.” CERD, 660 U.N.T.S. 195, entered into force Jan. 4, 1969, art. 5(e)(6). Bhutan signed the CERD in 1973. Under article 18 of the Vienna Convention on the Law of Treaties, a state that has signed but not yet ratified a treaty is obliged to refrain from acts that would defeat the object and purpose of a treaty. See also, International Covenant on Economic, Social, and Cultural Rights (ICESCR), G.A. Res. 2200 (XXI), 21 U.N. GAOR Supp. (no. 16), U.N. Doc. A/6316, entered into force January 3, 1976, art.15 and International Covenant on Civil and Political Rights (ICCPR), 999 U.N.T.S. 171, entered into force March 23, 1976, art. 27. 38 Human Rights Watch, Rape for Profit: Trafficking of Nepali Girls and Women for India’s Brothels, (New York: Human Rights Watch, 1995); United States Department of State, “2002 Country Reports on Human Rights Practices: Nepal,” March 31, 2003 [online], http://www.state.gov/g/drl/rls/hrrpt/2002/18313pf.htm (retrieved on May 30, 2003). No reliable data exists on the magnitude of trafficking in Nepal, but local NGOs estimate 5,000 to 12,000 girls and women are trafficked each year, primarily to India for sex work. 39 Polygyny refers to men having more than one wife and polyandry refers to women having more than one husband. Polygamy encompasses both. The Country Code states, “No male shall, except in the following circumstances, marry another female or keep a woman as an additional wife during the lifetime of his wife or where the conjugal relation with his first wife has not been dissolved under the law: [i] If his wife has any contagious venereal disease and has become incurable; [ii] If his wife has become incurably insane; [iii] If no child has been born or remained alive within ten years of the marriage; [iv] If his wife has become lame and unable to walk; [v] If his wife has become blind of both eyes; [vi] If his wife has lived separately after obtaining her partition share under No. 10 or No. 10A of the Chapter on Partition.” Muluki Ain 2020 [Country Code 1963], chapter on Marriage, no. 9. The Country Code also stipulates a woman may only have custody of her children older than five years if she has not “eloped” (remarried). Muluki Ain 2020 [Country Code 1963], chapter on Husband and Wife, no. 3(2). 40 Nepal Civil Code Act, 2059 (Eleventh Amendment, 2002). The eleventh amendment to the Civil Code changed Nepal’s 1963 Country Code (Mulaki Ain 2020) to protect the inheritance rights of daughters and widows; the property rights of divorced women; and the unrestricted right to an abortion up to the twelfth week of pregnancy. The eleventh amendment also increased the punishment for rape up to fifteen years and removed several provisions discriminatory toward women from the Country Code. 41 Center for Reproductive Rights, “Nepal’s King Urged to Continue Commitment to Human Rights by Releasing Women Imprisoned for Abortion,” New York, July 1, 2003 [online], http://www.reproductiverights.org/pr_03_0701Nepal.html (retrieved July 17, 2003); The Center for Reproductive Law and Policy and Forum for Women, Law and Development, Abortion in Nepal, Women Imprisoned (New York and Kathmandu: CRLP and FWLD, 2002). Some women who were convicted of infanticide had still births or induced abortions. E-mail message from Sapana Pradhan-Malla, president, FWLD, Kathmandu, Nepal, to Human Rights Watch, August 15, 2003.
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