It’s not over yet

  • Nepal should hold people accused of torture and other ill-treatment accountable through fair trials in its own courts
- CHAMPA PATEL
The necessity of universal jurisdiction is reinforced by Nepal’s own failure to investigate and prosecute crimes of the past. Justice still eludes tens of thousands of victims of Nepal’s internal conflict

Sep 9, 2016-

Just this week, the proceedings against Colonel Kumar Lama in the UK were brought to a halt. Authorities in the UK said that they are no longer prosecuting him for the alleged torture of two men during Nepal’s decade-long armed conflict. In August, a jury acquitted him on one charge of torture, but was unable to decide whether the evidence presented on the second charge established guilt beyond a reasonable doubt.

Colonel Lama’s case represents a rare, but important, attempt to bring those suspected of torture to justice in fair trials. An officer in the Nepali army, Colonel Lama was arrested in 2013 while on leave in the UK. Under universal jurisdiction, those suspected of crimes under international law—like torture—can be tried in any country. This is for crimes committed outside its territory, which are not linked to the state by the nationality of the suspect or the victims or by harm to the state’s own national interests. Without universal jurisdiction, many allegations of crimes under international law would never be tested through a fair trial in a court of law.

The necessity of universal jurisdiction is reinforced by Nepal’s own failure to investigate and prosecute crimes of the past. Justice still eludes tens of thousands of victims of torture and other crimes under international law during the harrowing and brutal years of Nepal’s internal conflict. The Nepal government has failed to deliver on any of its commitments to hold the multitude of crimes committed by both government forces and Maoist combatants. It fell to the UK authorities to prosecute allegations of grave human rights abuses. However, it could have been in any other state in whose territory a person suspected of criminal responsibility was found.

Controversial decision

Before and during the time Colonel Lama was undergoing trial in the UK, the Nepali government withdrew criminal cases against politically-favoured individuals. It also installed people suspected of criminal responsibility into senior leadership positions, even allowing some of them to take part in UN peacekeeping missions. The government’s controversial decision to propose amnesties for serious crimes—setting aside its obligations under international law—has sparked outrage and protest in the country.

In 2014, Nanda Prasad Adhikari passed away after more than 300 days of a fast-unto-death. He resorted to this extreme form of protest to seek justice for the murder of his son. In 2004, Krishna, Nanda’s 18-year-old son, had travelled to Chitwan to visit his grandparents when he was allegedly abducted and killed by Maoists. The government rebuffed Nanda Prasad Adhikari’s appeals for justice, even as they were echoed nationally and globally.

Now, his wife could suffer the same fate if her own protest continues to meet with indifference from Nepal’s authorities. Ganga Maya’s health has been rapidly deteriorating over the past three weeks as she perseveres with the couple’s fight for justice for their son Krishna, refusing all food. 

Without justice being viable in Nepal, the only avenue open to victims was to take their appeals abroad. “I was forced to shout for help outside the country because I had no possibility to bring my alleged torturer to justice here in Nepal,” Janak Raut, one of the complainants against Colonel Lama said after the verdict was issued. He noted that Colonel Lama’s case provoked Nepal’s authorities to renew their promise to prosecute people involved in serious human rights violations. However, time will tell if this will actually hold true.

The way forward

There are key steps that Nepal can take to strengthen its accountability mechanisms and legal framework. Without them, the Nepali government’s pledges will just ring hollow, and meaningful investigations and prosecutions for grave human rights violations will remain elusive.

As a first step, the authorities should reform the 2014 Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act. In its current state, it is a deeply flawed law that runs counter to any serious attempts to deliver justice, truth and reparation for conflict-era crimes in Nepal. Notoriously, the law retains language from a 2012 ordinance permitting amnesty for serious crimes under international law. Despite the fact that the Supreme Court struck down the amnesty provision in February 2015, a year and a half later the law has not been amended by the government.

The indulgence of impunity extends to torture and other ill-treatment, which are still not considered criminal offences under Nepal’s laws, in breach of the country’s international obligations. The proposed Torture and Cruel, Inhuman or Degrading Treatment (Control) Bill, 2014 makes encouraging movement in the right direction, but still falls short of international law and standards.

Among the changes needed, the time limits outlined for filing a criminal complaint (90 days) should be removed—statutory limitations should not apply to any crime under international law. The penalties for those convicted of torture and other ill-treatment must be commensurate with the gravity of the crime. And no officials should enjoy protection for supposedly acting in “good faith” in the commission of crimes.

In a rather bizarre twist of fate, the State Affairs Committee of Nepal’s Parliament started discussion on the bill a day before the UK prosecutor’s decision not to proceed with the Lama case. This provides Nepal’s parliamentarians with an important opportunity to ensure the bill meets the country’s international obligations and paves the way for accountability of those suspected of criminal responsibility for crimes under international law, including torture and other ill-treatment.

The trial of Colonel Lama should mark an important step towards realising that ambition. But Nepal shouldn’t leave it to other countries to deliver justice. It should seize this moment to demonstrate that the country can hold people accused of torture and other ill-treatment accountable through fair trials in its own courts.

 

- Patel is Amnesty International’s South Asia Director

Published: 09-09-2016 08:45

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