SPEAKING
FREELY International law haunts Nepali war
criminals By Gyan Basnet
Speaking Freely is an Asia Times
Online feature that allows guest writers to have
their say. Please
click hereif you are interested in
contributing.
The norms and values
of international human rights and humanitarian law
advance the idea that certain kinds of crimes must
be subjected to the jurisdiction of any country in
the world, no matter where they were committed or
by whom - a principle that have developed from a
long international practices is known as universal
jurisdiction.
Reacting strongly to the
culture of impunity and lawlessness that persists
in Nepal, the United Kingdom has arrested a Nepalese
Army officer over
allegations of extrajudicial detention and torture
committed during the 10-year Maoist insurgency,
which ended in 2006. A serving colonel, currently
deployed on a United Nations Peace Mission in
Sudan, is being held on a charge of human-rights
abuse.
Police from a specialist unit of
the Metropolitan Police arrested Colonel Kumar
Lama in St Leonards-on-Sea, East Sussex, on
suspicion of torture under Section 134 of the UK's
Criminal Justice Act of 1988. The torture is
alleged to have taken place in Nepal in 2005 at
the height of the Maoist insurgency.
Colonel Lama, aged 46, was in charge at
that time of the Royal Nepal Army's Gorusinghe
Barracks in Kapilbastu, where he is alleged to
have tortured detainees.
This is the first
time in Nepal's history that a serving army
officer has been charged in a foreign country for
a rights violation under universal criminal
jurisdiction. The questions must be asked: Can
more arrests like this be expected? Who might be
next and where? The step could be an important
milestone for those thousands of victims suffering
from the Nepal's failed justice system.
During Nepal's 10-year civil war, both
government and Maoist forces committed gross
violations of human rights, including mass
killings and rapes. Statistics and reports show
that the conflict witnessed over 18,000 deaths and
a multitude of crimes such as kidnapping,
extortion, arson, the demolition of
infrastructure, the possession and destruction of
property, extra-judicial killings, displacement,
forced recruitment, and the disappearance of
hundreds.
The Comprehensive Peace Accord
signed in 2006 affirmed the commitment of both
parties to ensure that impunity would not be
protected and that the rights of victims and their
families would be safeguarded. However, the
present Maoist-led government has continually
sought pardons for alleged murderers and has
cancelled cases against hundreds accused of
heinous crimes. Justice for the victims has been
ignored. In treating violators as political
criminals, the government has undermined the basic
legal rights both of victims and of the society as
a whole. In fact, the whole country has been
suffered because of actions and omissions on the
part of the government.
If a national
jurisdiction fails to address serious human-rights
violations, "universal jurisdiction" can step in.
Any state can define and prescribe punishment for
offences that are recognized by the community of
nations as being of "universal concern". These
include piracy, torture, attacks on or the
hijacking of aircraft, genocide, war crimes, and
possibly certain acts of terrorism.
The UK
and many other European countries have practiced
"universal jurisdiction" over the most serious of
international crimes including genocide, torture,
war crimes, crimes against humanity and forced
disappearances. "Universal jurisdiction" permits
the arrest and prosecution of any person accused
of such human-rights abuses wherever those were
committed and regardless of whether the offences
were in any way connected with the country now
taking action.
"Universal jurisdiction" is
invoked to punish those guilty of international
crimes when the government with prime
responsibility is unwilling or unable to act
against them. 'Universal jurisdiction' over such
serious offences results from a universal
condemnation of these activities, and a general
interest in co-operating to suppress them. This
co-operation is reflected in widely accepted
international agreements and in the resolutions of
international bodies.
The concept is
closely linked to the idea that some international
norms are owed to the entire world community
(erga omnes) and to the fact that
international law obligations are binding on all
states (jus cogens). According to Amnesty
International, "certain crimes pose so serious a
threat to the international community as a whole
that states have a logical and moral duty to
prosecute an individual responsible for them: no
place should be a safe haven for those who have
committed genocide, crimes against humanity,
extra-judicial executions, war crimes, torture and
forced disappearances".
Nepal is party to
almost all international human-rights covenants
and instruments including the International
Covenant on Civil and Political Rights and the
Convention against Torture. These international
legal instruments have already prevented Nepal
from granting amnesty to those responsible under
universal jurisdictions for murder of an unarmed
person, murder in detention, disappearances, rape
and torture.
Almost 10 years have passed
since the Human Rights Commission identified about
400 people as being perpetrators of human-rights
violations during the conflict and recommended
that they be brought to justice. They ranged from
government and Maoist leaders to armed forces
personnel at all levels.
Over three months
have passed since the United Nations Human Rights
Office of the High Commissioner published its
"Nepal Conflict Report" which gave detailed
listings of human-rights violations by the warring
parties such as unlawful killings, enforced
disappearances, torture, arbitrary arrests, and
sexual violence. The report strongly recommended
that Nepal establish effective transitional
justice mechanisms, but this has never happened.
Instead, the Maoist led-government continues to
practice the culture of impunity, granting amnesty
to alleged criminals and withdrawing cases of
alleged crimes against humanity.
The
arrest of Colonel Lama must, therefore, be
something for celebration by all who believe in
human rights, fundamental freedoms, and a liberal
society. After a long but failed wait for justice
within the national jurisdiction, there is now
something happening abroad leading to a hope that
justice will triumph in the end especially where
gross violation of human rights has occurred. That
Colonel Lama's arrest has taken place abroad is
due to the culture of impunity and the undermining
of the values and norms of the rule of law and
constitutionalism adopted by the Nepalese
government and concerned authorities. It is a
bitter consequence of the on-going political
unwillingness to address the gross human rights
atrocities of the conflict era and to establish a
proper transitional justice mechanism.
Arrests under "universal jurisdiction" of
those involved in heinous human-rights violations
in the conflict era are unlikely to end here. This
is probably just the beginning. The government of
Nepal should now take steps at least to avoid
future arrests under 'universal jurisdiction'
abroad. Otherwise all who are listed as serious
violators of human rights will be confined forever
within Nepalese borders!
Firstly, Nepal
must learn from the arrest and begin a process of
viable transitional justice system to demonstrate
its commitment to the victims of the past
conflict. The Nepalese government needs to
convince the international community that it will
establish a transitional justice mechanism without
further delay and that the mechanism will be based
on internationally established practice.
Secondly, the government must show its
political sincerity with an assurance that the
mechanism will be independent, fair,
victim-oriented and, most importantly, guided by
the norms of international human rights and
humanitarian laws.
Thirdly, the government
must convince the international community that it
is willing to co-operate fully, to show a strong
desire to punish all perpetrators, to end the
on-going impunity and to establish the rule of law
in the country.
Fourthly, the government
must withdraw all those earlier decisions to
pardon and provide amnesty for those who were
heavily involved in mass killings, enforced
disappearances, rape and torture and who can be
tried for crimes against humanity.
The
democratic transition is an exceptional period in
the relationship between the armed forces and
civil and political society. That relationship is
marred by the judicial processing of gross
human-rights violation cases in which the armed
forces, and the leaders who ordered them to act,
are charged with being the main perpetrators of
the crimes. Nepal's judicial institutions and law
enforcement agencies, together with the political
forces in the country, have so far failed to, or
seem reluctant to, deal with these issues.
They must now create a positive
environment for the ratification of the Rome
Statute of the International Criminal Court in
order to ensure that there is no repeat of the
recent human-rights violations in the country and
so the proposed Truth and Reconciliation
Commission can ensure accountability for the
perpetrators and justice for the victims.
Fifth, Nepal must ratify the Rome Statute,
not only to ensure that similar human-rights
atrocities do not recur in this country, but also
so the rule of law and fundamental freedoms are
respected in future.
Nepal's accession to
the Rome Statute would instantly restore
credibility to the peace process and to the
country's commitment to justice and the rule of
law. It would send a strong message to all
perpetrators and would work as a strong deterrent
against those continuously engaged in crimes
against humanity in the country.
The act
of ratification will be evidence of a commitment
to uphold the rule of law, to eliminate the
practice of lawlessness at the national level, and
to confirm the country's international commitment
on human-rights issues.
Finally, the
government and civil society - even including
perpetrators of war crimes - must welcome steps
such as the arrest of the colonel in the UK, and
cooperate. This is something that should have been
done long ago for the sake of the country, for a
durable peace, for political stability and most
importantly for setting the country on the path to
becoming a peaceful and prosperous nation.
However, Nepal's political parties and
their leaders have heavily criticized the arrest
of Colonel Lama, painting the incident as an
internal matter and assault on the sovereignty of
Nepal. Meanwhile, the government has initiated
necessary legal process to free him on bail.
This attitude of the political forces and
their leaders towards the arrest is most
unfortunate and could shame the nation in the eyes
of international community. This raises the
question: Should the protection, promotion,
respect and fulfillment of the human rights not be
a matter of global concern in today's globalized,
interconnected and interdependent world?
There can be no permanent peace without
justice, and I strongly believe that the
horrendous civil war that the country faced for a
decade cannot be declared over until its causes
and consequences are adequately addressed.
The arrest of Colonel Lama for alleged
torture offers an excellent potential catalyst for
long-delayed justice in Nepal. It also conveys a
strong message to those perpetrators of heinous
crimes that there is no way out and no place to
hide. They have to be made responsible for their
wrongdoings sooner or later. The power of human
rights now has a global reach, and its
jurisdictions can cross any borders. The concept
that so-called "state sovereignty" provides a
shield against "universal jurisdiction" has
already diminished. Human rights certainly work,
and they do make a difference.
Dr
Gyan Basnet, who holds a PhD and an LL M
degree in International Human Rights Law at
Lancaster University, UK, is a columnist, lecturer
and researcher in international human rights law
and a human rights and constitutional law lawyer
in the Supreme Court and Subordinate Court of
Nepal. He can be reached at
gyanbasnet@aol.com.
Speaking Freely
is an Asia Times Online feature that allows guest
writers to have their say.Please
click hereif you are interested in
contributing. Articles submitted for this section
allow our readers to express their opinions and do
not necessarily meet the same editorial standards
of Asia Times Online's regular contributors.
Head
Office: Unit B, 16/F, Li Dong Building, No. 9 Li Yuen Street East,
Central, Hong Kong Thailand Bureau:
11/13 Petchkasem Road, Hua Hin, Prachuab Kirikhan, Thailand 77110
