UK Exercises Universal Jurisdiction to Prosecute Nepalese Colonel for Torture
On Thursday, January 3, 2013, British Metropolitan Police arrested Colonel Kumar Lama, a former Nepalese army officer, during a visit with his wife and children at their home in East Sussex, England. [BBC] Col. Lama was charged with two counts of torture allegedly committed in 2005 during Nepal’s civil war and faces trial in Britain.
Charges and Basis of British Jurisdiction
Col. Lama was arrested under Section 134 of the United Kingdom’s Criminal Justice Act, which implements the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Section 134 specifically defines torture as the intentional infliction of “severe pain or suffering on another” in the performance of a public official’s duties. Because the Criminal Justice Act applies to torture committed “in the United Kingdom or elsewhere,” British courts have jurisdiction over alleged torture by governmental officials such as Col. Lama who are physically present in the UK, no matter where the torture occurred.
Section 134 has been invoked in other cases involving acts of torture committed outside Britain, notably in the judicial decision authorizing the extradition to Spain of former Chilean dictator Augusto Pinochet and prosecution of Afghan warlord Faryadi Zardad. See House of Lords (United Kingdom), R v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No. 3), judgment of 24 March 1999  1 A.C. 147.
The charges against Col. Lama arise from the period in which he was the army officer in charge at the Gorusinge Army Barracks in the Kapilvastu district of Nepal, where he is accused of torturing two men. During his first court appearance on January 5, Col. Lama spoke only once to confirm his identity. He is to remain in custody until his next court appearance, on January 24. [Kathmandu Post] Col. Lama faces life imprisonment if convicted under Section 134 of the Criminal Justice Act.
At the time of the arrest, Col. Lama was working as part of a UN peacekeeping mission in South Sudan and was preparing for his return to Africa from England. Col. Lama had also previously served as a UN peacekeeper in Sierra Leone and twice in Lebanon. After learning of the arrest, the UN Department of Peacekeeping Operations pledged an investigation into Nepal’s screening process for UN peacekeepers. [Global Times] The Nepalese government maintains Col. Lama was more than qualified to serve as a peacekeeper. [Kathmandu Post]
This is not the first time the United Kingdom has penalized a Nepalese official for alleged human rights violations in the context of the nation’s civil war. According to Human Rights Watch, “[i]n November 2012, the UK reportedly denied a visa to Nepal’s Inspector General of Police, Kuber Singh Rana, based on credible human rights allegations against him.” [HRW]
Brief History of Nepal’s Civil War
Between the years of 1996 and 2006, Nepal was engaged in a violent civil war between anti-monarchist Maoists and government forces. According to an October 2012 report commissioned by the United Nations Office of the High Commissioner for Human Rights, the conflict left 13,000 dead, 1,300 missing and tens of thousands internally displaced. OHCHR, Nepal Conflict Report (2012).
For several hundred years, Nepal was ruled as a monarchy by a series of royal dynasties. During this time in Nepal’s history, there was a discernable caste hierarchy. This social stratification shaped and strained much of the lower class’ social and political standing within the country.
In 1996, violent opposition toward the government erupted when the United Communist Party of Nepal- Maoist (CPN-M) launched the “people’s war,” an armed insurgency with the purpose of overthrowing the feudal system. The CPN-M’s main objectives were abolishing the kingdom and establishing a republic. The Nepalese government reacted by sending military troops into conflict zones to suppress the uprising.
The civil war lasted for ten years, with serious international human rights violations committed by both sides. The war ended in 2006 and, in 2008, Nepal officially became a republic. After a post-war constituent assembly election in 2008, the Maoists become the largest political party in Nepal, where they enjoy a majority to this day. Unfortunately, political and economic instability still exists throughout much of the country. See Nepal Conflict Report.
Victims’ Quest for Justice and Accountability
After Nepal’s civil war ended in 2006, the CPN-M and an alliance of seven political parties began a series of talks that culminated in a “12-point understanding.” See id. As outlined in a September 2007 United States Institute of Peace report examining truth commissions in Nepal, this eventually paved way for a Comprehensive Peace Agreement (CPA) between the Maoist insurgents and Nepal’s government. The CPA calls for, in part, three governmental bodies to address abuses that took place during the ten-year conflict.
Article 5.2.5 of the CPA specifically calls for a Truth and Reconciliation Commission to be established in order for both sides to “probe about those involved in serious violation of human rights and crime against humanity in course of the armed conflict and develop an atmosphere for reconciliation in the society.” However, there has apparently been no significant progress towards the establishment of such a commission. Internal political debate over constitutional reform has recently overshadowed efforts to ensure justice for victims of human rights abuses and war crimes. [BBC] According to the BBC, “[t]he matter has been further complicated by a debate on whether any commission investigating war crimes should focus on prosecuting suspects or allowing them to confess in return for an amnesty – similar to the South African Truth and Reconciliation Commission set up in 1995 after the end of apartheid.” [BBC] Importantly, it appears that while most political parties within Nepal favor amnesty, the civil society groups and victims are generally proponents of prosecution. [Amnesty]
When the charges against Col. Lama were announced, Nepal invoked the potential establishment of a Truth and Reconciliation Commission as evidence of its own efforts to provide justice. In a January 6 República article, Nepal’s UCPN (Maoist) Chairman Pushpa Kamal Dahal was quoted as saying, the “UK must be aware that parties are in the process to form a [Truth and Reconciliation Commission] to address the cases of human rights violations. The arrest of army officer [Col. Lama] that came without prior information has saddened our party.” The Chairman did not provide additional details regarding a Truth and Reconciliation Commission. A January 8 República article quoted the prime minister’s political advisor Devendra Paudel as saying, “This kind of incident [arrest of Lama] could repeat even in the future if we failed to address human rights issues. We should settle the issues through the formation of TRC and Disappearance Commission on our own at the earliest.”
The UN Office of the High Commissioner for Human Rights has discouraged the creation of a Truth and Reconciliation Commission, in favor of a mechanism that would ensure accountability and avoid impunity. Chapter 11 (“Recommendations”) of the Nepal Conflict Report urges the creation of transitional justice commissions to examine Nepal’s war criminals. The OHCHR cautions against reconciliation, stating that foregoing prosecution of war criminals would allow Nepal’s transitional justice commissions to become an amnesty mechanism. The “Recommendations” portion of report concludes by exhorting that Nepal, “[a]s is required by international law, provide an effective remedy to victims” by “[p]rosecuting suspected perpetrators wherever suspicion exists that they have either directly participated in violations, or are responsible due to their command responsibility at the time.” In December 2012, Nepal’s government decided not to extend the term of its agreement with the UN Office of the High Commissioner for Human Rights. [OHCHR Nepal] As a result, the OHCHR is no longer directly involved in guiding or assisting Nepal’s new government or civil society on human rights issues.
The Nepalese government has also proven unwilling or unable to prosecute suspected war criminals and human rights abusers; legislation providing amnesty to suspects has been frequently discussed, and proposals for the Truth and Reconciliation Commission have envisioned broad prosecutorial discretion with regard to who would be charged criminally. [Amnesty] Advocates have confirmed that no criminal prosecutions for human rights abuses committed during the conflict have been carried out in Nepalese courts. [Guardian] In recent years, the Nepalese government has also been criticized for appointing to positions of power, and pardoning, individuals suspected of human rights abuses during the war. [OHCHR; Amnesty]
For the time being, the exercise of universal jurisdiction by foreign courts may be the only avenue immediately available to hold former Nepalese officials accountable for human rights abuses. This possibility, while highly limited, was recognized in the Nepal Conflict Report, which states:
[i]n some instances, notably when the crimes attract ‘universal jurisdiction’, they can also be tried in domestic courts of other states. Universal jurisdiction exists on the premise that some international norms are erga omnes, meaning that the obligation is owed to the international community as a whole. While some debate remains about the full scope of crimes captured by universal jurisdiction, it is well settled that, at a minimum, domestic courts of all states have the power to prosecute under international law, those responsible for crimes against humanity, war crimes (such as serious violations of Common Article 3), genocide, and torture.