Vital steps

It was encouraging to learn through a report in Republica that the Prime Minister had consulted with the President on how to move ahead on transitional justice issues. Nepal Army Colonel Kumar Lama’s recent arrest by UK police under universal jurisdiction on torture seems to have reminded him of the government’s unfulfilled commitment on truth and justice. However, it is doubtful whether this represents an informed and genuine awakening. This suspicion stems from the government’s knee-jerk reaction against the arrest without even bothering to understand the arrest from a legal perspective. Regrettably, the government’s uninformed reaction was followed by equally uninformed objections of the arrest by opposition leaders.



Unlike traditional criminal law system, the principle of universal jurisdiction allows for the trial of international crimes, irrespective of the identity of the perpetrator and the location of the crime. Under universal jurisdiction, criminal proceedings can be initiated against alleged perpetrators of serious crimes including genocide, crimes against humanity, torture, war crimes and slavery. In another words, invoking it doesn’t call for a territorial or personal link with the crime, the perpetrator or the victim. No safe haven should be available for those who commit grave crimes that harm the international community, which is the justification of universal jurisdiction.



The UK is amongst 145 countries that have adopted the principle of universal jurisdiction over one or more international crimes, including torture. Pursuant to the Convention against Torture of 1984, the UK has enacted the Criminal Justice Act 1988 to criminalize torture and provide universal jurisdiction over it. Under Section 134 of this Act, torture by a public official, committed anywhere in the world, is an offence. This is exactly what the UK police applied to initiate criminal proceeding against Lama, following the complaint filed by the victim. Chilean dictator Pinochet was arrested under the same law in 1998 for the atrocities he committed during his misrule in Chile, following the warrant issued by Spain requesting his extradition. It is crystal clear that Lama’s arrest is a consequence of the compliance with treaty obligations that both the UK and Nepal are bound to; there is no need to link this development to issue of sovereignty.



COL LAMA ARREST FALLOUT



PHOTO: RNW.NL



It’s not that only the western countries have adopted this jurisdiction; there are a number of Asian Countries including four from SAARC (Bangladesh, India, Sri Lanka and Bhutan) that have already accepted this jurisdiction over one or more such crimes. Nepal is also not new to this principle, as a number of international conventions to which Nepal is a party incorporate this principle. In particular, Nepal has acceded to this principle through the ratifying of the Torture Convention in May 1991 and the Geneva Convention in February 1964. By virtue of the ratification, Nepal is obliged not only to enact laws criminalizing war crimes and torture but also to accept universal jurisdiction over these crimes. In 2004, the government was also directed by the Supreme Court to enact legislation as required by the Geneva Convention. The same is the case with the Convention against Torture as the Supreme Court, in December 2008, directed the government to pass an anti-torture law in compliance with the treaty and the Interim Constitution. However, these orders have not yet been complied with. Nepal too would be in the comity of nations that are against international crimes, if it had enacted laws in line with the Geneva Convention and the Convention against Torture.



This is not the country’s only failing. It also made a blunder by not fulfilling its commitment to establish transitional justice mechanisms mandated under the CPA and the Interim Constitution. After dumping the transitional justice bills (TRC and Disappearance) introduced in the Parliament after nationwide consultations with the victims and civil society, the government attempted to adopt an Ordinance aimed at providing de jure amnesty to all perpetrators, regardless of the nature and gravity of violations committed during the conflict.



The story doesn’t end there. The government intensified its noncooperation with the justice system in many ways, including by not enforcing arrest warrants issued by the courts and Supreme Court convictions and by misusing the case withdrawal clause under CPA and the State Cases Act to protect political leaders and their allies from criminal responsibility. No government in recent times, including the current one, has taken steps to ensure non-repetition of serious violations in the future, one of the goals of transitional justice. For example, the government declined to abide by July 25, 2006 House of Representative resolution which directed the government to initiate the process of ratifying the Rome Statute of International Criminal Court.



With increasing hopelessness of justice for conflict-era violations, it is natural for victims and rights activists to access the jurisdiction of foreign courts and UN human rights committee. It is also noticeable that the human rights community has supported such efforts beyond the border in order to keep transitional justice agenda alive and generate pressure upon the State to act on its commitments. It appears that government inaction has not only deprived victims of justice, but also created barriers for the government to ask for extradition of alleged perpetrators like Lama arrested abroad. Unless a law is enacted in line with treaty obligations, there is no legal basis for Nepal to assure that it can initiate criminal investigation and prosecute the alleged perpetrators as and when appropriate.



Against this backdrop, it is high time for the government and responsible political parties to revisit their position on transitional justice and abandon their hidden policy of de facto impunity. Otherwise, the state will continue losing its control over these issues. It is therefore recommended that the government undertake the following simple and straightforward steps:



It should initiate constructive engagement with stakeholders including victim groups, NHRIs and civil society and garner confidence among all stakeholders that there can be a joint action with a view to advance transitional justice initiative. It should revoke the Ordinance on Disappearance and TRC pending before the President and initiate constructive dialogue on the bills previously introduced in the Parliament which was prepared after consultations with stakeholders throughout the country.

The government should initiate transparent and consultative process of drafting the anti-torture legislation and implementing Act in relation to Geneva Convention.



Besides these measures, it should fully cooperate with the justice system including through enforcing arrest warrants and conviction decision issued by the courts in relation to past human rights violations. Lastly, it should desist from misusing ‘case withdrawal clause’ under the CPA and the State Cases Act to protect political leaders and their allies from criminal responsibility. Only if these measures are enacted without further ado will Nepal be able to stand as a law-abiding country in the international community.



The author is a constitutional and human rights lawyer based in Kathmandu

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