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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