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International law haunts Nepali war criminals

By Gyan Basnet:
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.

(Copyright Gyan Basnet 2013.)

Published Date: Thursday, January 17th, 2013 | 05:13 AM

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