No Escape

MURARI SHARMA

MILITARY, MAOISTS AND JUSTICE

The recent arrest of Nepal Army Colonel Kumar Lama in London by the Metropolitan Police has put Nepal and the United Kingdom at unprecedented diplomatic loggerheads. Kathmandu has called it against international law and asked London to handover Lama either to its embassy in London or the UN mission in New York. The British Foreign Office has justified the arrest. Disconcerting as it may be, Lama’s arrest could expedite the establishment of transitional justice measures in Nepal.

After the 1816 Sugauli Treaty signed at the end of the second war between them, the two countries have enjoyed warm, cordial and cooperative relations. Under the treaty, the UK recognized Nepal’s sovereignty and began recruiting Nepali nationals into its army, a practice which continues to this day. Now London is supporting Nepal’s development endeavors. Similarly, Nepal allowed the recruitment of its youth in the British army, helped British India suppress the Sepoy Mutiny in 1857, and sent its army to fight on Britain’s side in World Wars I and II. The row over Lama will upset bilateral relations at least for a while.

This was inevitable. Nepal has failed to put in place a credible transitional justice system to resolve the cases of human rights violations committed during the Maoist conflict. If Nepal does not fulfill its obligations, the international community will. Lama’s arrest is a testament to this fact.


PHOTO: CRIMEANDINVESTIGATION.CO.UK

Under Article 3 of the 1949 Geneva Convention (IV) and Part II of the Additional Protocol (II), murder, mutilation, torture, hostage-taking, degrading treatment and vigilante justice of unarmed civilians are war crimes. Many security personnel and Maoists perpetrated these crimes during the conflict. Consequently, more than 15,000 people lost their lives, several thousand disappeared, and thousands more lost their limbs and property.

These victims need justice. Then-government and Maoists agreed to set up a transitional justice mechanism by creating commissions for truth and reconciliation and for disappeared persons. But six years into the peace process, the commissions have not materialized. The Maoists want blanket amnesty for their cadres. Other parties want the provisions to be consistent with international norms and practices.

UN General Assembly resolutions have defined norms and standards for transitional justice. Chief among them are the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (GA resolution A/RES/30/34 of 29 November 1985) and the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (GA resolution A/RES/60/147 of 21 March 2006). None of these accepts blanket amnesty for rights violators.

Unless the Maoists agree to these standards, transitional justice will not materialize. Meanwhile, the government has promoted some security officials accused of rights violation, such as Col. Lama and Col. Raju Basnet. Lama allegedly tortured two suspected Maoists when he was in-charge of the Gorursinghe army barracks in western Nepal during the conflict. Basnet was accused of playing a lead role in torturing and disappearing a dozen or so Maoist cadres.

Maoist rights violators—such as Pushpa Kamal Dahal, Baburam Bhattarai, Agni Sapkota and Balkrishna Dhungel—hold senior positions in their party and in government. Dahal, who led the insurgency and allegedly authorized the blowing up of a passenger bus in Madi, in which 38 people were killed and 73 injured, is Maoist Chairman.

Bhattarai, who as head of the parallel Maoist government during the insurgency allegedly authorized torture, beheading and burying people alive, is prime minister. As prime minister, he has withdrawn hundreds of criminal cases from courts against Maoist cadres and opposed an investigation into the case of Dekendra Thapa, a journalist, whom the Maoists buried alive in 2004, even though those who tortured and killed him have volunteered to face justice for penance.

Sapkota, accused of torturing and killing Arjun Lama of Kavrepalanchok in 2005, is Maoist spokesperson. Dhungel, convicted of murdering Ujjan Kumar Shrestha of Okhaldhunga in June 1998, was a member of the dissolved Constituent Assembly.

No one should be allowed to escape justice. Justice is necessary to punish the perpetrators of crimes and help victims heal their wounds and move on. It is necessary to prevent potential perpetrators from committing crimes, protect sanctity and dignity of human life, and to strengthen democracy. But now justice could jeopardize the fragile peace process in Nepal, because big players will come into its net. At this difficult juncture, the international community—mainly, UN member states—must assist Nepal to follow the path of justice.

Actually, UN member states—as parties to various UN human rights covenants and resolutions as well as to the decisions that established the International Criminal Court and tribunals for Rwanda and former Yugoslavia—have a moral and legal obligation to do so. So they should convince Nepali decision makers to create a reliable transitional justice mechanism. If Nepal fails to act, other UN member states should take the alleged rights violators to ICC or try in their courts if they get hold of these violators.

That brings us to Lama’s arrest in London where he was visiting his family from the UN mission in Sudan. Lama might be the first to be arrested abroad. But he will not be the last. His arrest has enthused the human rights community and opened the eyes of the victims or their relatives living abroad that they can get justice by filing cases against the Maoists and security officials in countries of their residency. The UK is not alone in having laws with universal jurisdiction for human rights violations, war crimes and crimes against humanity. Several other countries—including the US, Germany and Belgium—also have such laws in their books.

Expect a burst of cases filed in various countries in the days ahead to book the rights violators of Nepal. There is no statute of limitation for rights violation cases (GA resolution A/RES/60/147). So these cases can be filed now or any time in the future. Justice never leaves violators alone. It is worth noting that a Bangladeshi court has recently handed down death sentence in absentia to Maulana Azad of the Jamaal-e-Islamic Party for a war crime committed 41 years ago.

As a sovereign country, it would have been infinitely more respectable for Nepal to have its own transitional justice system to deal with war crimes committed by the security officials and the Maoists. I hope Lama’s arrest in London will prove to be a watershed for Nepali leaders to understand that even if they do not rise to their obligation, the international community will. This will perhaps motivate these leaders to speed up the process of establishing a credible system. Otherwise, they could face the fate of Lama whenever they travel abroad.

Nepal and the UK should and will find a way to put the case of Colonel Kumar Lama behind in their mutual national interest. However, Lama’s arrest shows that those rights violators who travel to Western countries will face justice even if Nepal does not do anything about them. Either way, the victims of rights violation will have the solace that there is light at the end of the tunnel, though the tunnel could prove to be quite long and dreary

http://www.myrepublica.com/portal/index.php?action=news_details&news_id=48902
Published on 2013-01-27 01:15:36
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CALL ON THE PRESIDENT: Be Prompt and Decisive

MURARI SHARMA

Nepal is in a mess. President Ram Baran Yadav is in a bind. Political parties have made a mockery of his deadline for consensus and put his prestige on the line. He must rescue the country and his prestige from this mess.

The failure of political parties and government has created and prolonged this mess. The parties let the Constituent Assembly (CA) die without delivering a new constitution. Maoist Prime Minister Baburam Bhattarai announced fresh elections for November 2012 but failed to hold them. He has rescheduled the polls again for April this year. But he cannot hold the vote without amending the constitution. The constitution cannot be amended without legislature or political consensus, none of which exists now.

To put pressure for consensus, the President issued a deadline and extended it seven times. But the parties are squabbling over premiership. The opposition parties want to replace Prime Minister Bhattarai with one of their leaders citing the five-point agreement, which provides for a Nepali Congress-led government to conduct the polls under the new constitution. His shifting positions aside, Bhattarai wants the opposition parties to join his government, because the new constitution did not materialize.

Both postures look plausible if you overlook the history behind it. Bhattarai had rejected UML leader Madhav Nepal as prime minister from day one, and his party had refused to join the Nepal government. A self-proclaimed tit-for-tat person, Bhattarai should naturally expect other parties to reciprocate. Moreover, the opposition parties argue, rather validly, that Bhattarai has lost legitimacy after he failed to organize the elections on schedule.


PHOTO: KESHAB THOKER

So the impasse continues to hold the country hostage, derailing the constitutional order and frustrating the people. Pressure, therefore, has built up on the President to take further measures to remove the impasse. To formulate a prudent roadmap for his action, the President must put things in perspective.

As head of the government from the largest party in the dissolved CA, Bhattarai was more responsible for creating the mess and has more obligation, power and resources to resolve it than the opposition parties have. A highly educated person, Bhattarai must understand this. But two things have blinded him from seeing it: His lust for power and his party’s fear to go into the election so soon after its vertical split.

For public consumption, Bhattarai had said he would clear the deck for a consensus candidate. When such a candidate began to emerge, he backed out of his pledge and said he would step down for an independent candidate. I am sure, when the parties rally around such a candidate, Bhattarai will shift the goal post again. It is in Bhattarai’s character. He is too much of an opinionated ideologue to compromise and sacrifice for the greater good.

I had written in September 2010, well before he became prime minister, that Bhattarai was incapable of providing consensual leadership. A prime minister is a consensual leader who must, among other things, negotiate and compromise to balance competing interests. Harri Holkeri, the former Finnish prime minister and successful UN diplomat, says, “If you come to a negotiation table saying you have the final truth, that you know nothing but the truth and that is final, you will get nothing.”

Nonetheless, Bhattarai got everything, not because he was a prime ministerial material but because he was right for nimitta nayak, a circumstantial hero. India opposed Prachanda for his anti-Indian stance. The opposition parties propped up Bhattarai to drive a wedge between him and Prachanda to weaken the latter. However, the nimitta nayak turned out to be more strategic and cunning than the opposition parties had thought. He has tackled three sources of threat to his power dexterously, and is trying to checkmate the fourth.

Bhattarai will keep shifting goal posts. It is in his character. He is too much of an opinionated ideologue to compromise and sacrifice for the greater good.

Bhattarai won India’s favor by signing the BIPPA and extradition treaty, by agreeing to hand over Nepal’s airports, and by not raising the prickly border and 1950 treaty issues. No other Nepali prime minister since 1951 has surpassed his loyalty to New Delhi. Consequently, India has prevented the key coalition partners from abandoning Bhattarai. Bhattarai blunted Prachanda’s threat by strengthening his own faction in the party and frightening his party boss by setting his supporters against him. Prachanda cannot pull the plug on him without risking a split in the party. Bhattarai has conveniently disregarded the opposition parties, for they lack clout to shake his power.

Bhattarai is trying to checkmate the President, the fourth source of threat. For this, Bhattarai and his advisors have generated false rumors about bogey of presidential activism and threatened the President with dire consequences if he removed the government. His supporters have filed a case with the Supreme Court, challenging the President’s authority to issue a deadline for consensus.

However, President Yadav, as the guardian of the constitution, has moral and constitutional obligation to bring the country back on constitutional track. Accordingly, he has started consultations, after his visit to India, which told him that Nepal should find its own solution. The President needs to act promptly and decisively. As he ponders his next move, here are some options he may wish to consider.

Consensus

The President can continue extending the deadline until Bhattarai quits out of shame, or until Prachanda pulls out the rug from under his feet. This option will maintain the status quo, undermine the President’s deadline and status, and fail to restore the broken constitutional order anytime soon. If Bhattarai agrees to bow out in favour of an independent prime minister, that could be a way out. But I doubt that Bhattarai would do so.

CA restoration

Suo motu or at the government’s request, the President can seek advice of the Supreme Court to restore the dissolved CA for a short period with a built-in dissolution mechanism. A restored CA can amend the Interim Constitution to make room for new elections, approve constitutional appointments, and change the government if necessary, in that order. In this case, two-third majority in the CA can amend the constitution, and a majority government can conduct the polls. I prefer this solution, as it will be constitutionally most appropriate.

No-Confidence

If the opposition parties formally write to the President informing him that the prime minister has lost the support of majority members in the dissolved CA, the President can ask Bhattarai to prove the majority’s support in so many days or quit. If Bhattarai proves his majority, he stays. Otherwise, he leaves on his own or the President dismisses him and appoints a new government to hold the election.

Popular mandate

If civil society collects and submits hundreds of thousands of signatures asking the President to take all appropriate measures to rescue the country from the current political impasse and organize the vote within next several months, the President can take a decisive step based on such a popular mandate.

Presidential activism

If none of the above options materializes, the President can give Bhattarai a final deadline for consensus with the proviso that his government will cease to exist once the deadline has elapsed. If there is no consensus, the President can appoint a new government headed by himself, by an independent person, or by another political leader. His job will be much easier if the Supreme Court says, in the case filed by Dilli Guragain and Laxmi Subedi challenging the President’s authority to issue a deadline, the head of state has the authority to issue the deadline and take other appropriate actions to restore constitutional order.

Whichever option President Ram Baran Yadav chooses, he should act promptly and decisively to free himself and the country from the constitutional and political mess. He should be aware that Prime Minister Baburam Bhattarai would not make his path easy

Published on 2013-01-13 01:15:17
Published in Republica of 13 January 2013.