Advocate Nepal
UK authorities arrested Nepal Army Colonel Kumar Lama on 3rd January 2013 from Sussex for his alleged involvement in the torture of detainees while assuming the role of commander of the Gorusinge Battalion barracks in Kapilbastu in 2005 when the country was undergoing though armed insurgency. The West Minster Magistrate Court had ordered him 20 days detention for further investigation. Similarly, on 5 January 2013 five people accused of killing of journalist Dekendra Thapa were arrested by Nepal Police in Dailekh. Though, implemented late, the arrest of alleged perpetrators of past armed conflict of Nepal is a welcome respite as these incidents have opened door for prosecution against impunity in Nepal.
Colonel
Lama has been arrested under the universal jurisdiction in the cases of
serious human rights violation and those alleged of murder of Dekendra
Thapa have been arrested under the existing criminal law of Nepal. As
both of these steps have initiated measures to bring those alleged of
"Serious Crime under International Law" into justice system and
prosecution against impunity at the national and international level,
victims welcomes these steps. The phrase "serious crimes under international law"
encompasses grave breaches of the Geneva Conventions of 12 August 1949
and of Additional Protocol I thereto of 1977 and other violations of
international humanitarian law that are crimes under international law,
genocide, crimes against humanity, and other violations of
internationally protected human rights that are crimes under
international law and/or which international law requires States to
penalize, such as torture, enforced disappearance, extrajudicial
execution, and slavery.
Nepal
government has strongly demanded with the UK government not to forward
prosecution against Kumar Lama, and the government is also trying to
influence the investigation on the murder of Dekendra Thapa. It is being
reported in the media that the Prime Minister and Attorney General have
been exerting pressure to stop investigation and prosecution process
against the murderers of journalist Thapa. These steps are highly
deplorable as it neglects respect of human rights and encourage
impunity. The victims and civil society have already strongly deplored these steps of the government.
Nepal
government has stated that the arrest of Colonel Lama and the alleged
murderers of journalist Thapa are intended to derail peace process as
such issues shall be addressed by Truth and Reconciliation Commission
and Commission on Disappearance. However, these commissions, if formed,
will be temporary non-judicial fact finding bodies only and they cannot
prosecute on their own. Therefore, there is no alternate of prosecution
for the serious crimes under international law that occurred in the
past, that are occurring now and that may occur in the future.
Therefore, prosecution of those alleged of involvement in such crimes
should not be ignored in the name of Truth and Reconciliation Commission
and Commission on Disappearance.
Nepal's
obligation under international law cannot be fulfilled merely by
investigating the incidents of armed conflict through formation of Truth
and Reconciliation Commission and Commission on Disappearance. Nepal
should prosecute against those accused of involvement in the violation
of international human rights and humanitarian law. Beside, The Nepal
Conflict Report 2012 published by UN Office of the High Commissioner for
Human Rights has documented about 30,000 incidents of past armed
conflict, out of which 9000 incidents have been mentioned as incidents
of international crime. Both the parties in conflict, government
security forces and activists of the then CPN (Maoist) have been
responsible for violation. Nepal government should take immediate steps
to make the perpetrators accountable as identified and recommended by
OHCHR.
Ending
impunity and promotion of accountability at the domestic level is a
must to stop the incidents such as the arrest of Colonel Lama in the UK.
The universal jurisdiction shall not be applicable for Nepal if we
succeed to effectively address the serious crimes under international
law through the Constitution of Nepal and criminal justice system.
The
Interim Constitution Drafting committee had recommended a provision on
impunity as a fundamental right in Part 3, Article 25 (4) of the Interim
Constitution which states, "Provided that this shall not hinder
prosecuting and punishing in the war crimes and crimes against humanity
by formulating a law with retroactive effect." The same draft had
recommended rights regarding justice in Article 25 (5), "Any person
shall have the right to obtain legal remedy against impunity and crimes
against humanity." Unfortunately, these provisions were omitted when the
constitution was published in the gazette after being passed by the
legislature parliament on 2063 Magh 1.
Similarly,
efforts were made to incorporate this provision in the new
Constitution. CA Committee for Fundamental Rights and Directive
Principles could not incorporate this provision as a major provision.
However, CA Member Pradeep Kumar Gyawali of CPN-UML recommended a
proviso to the Clause of non-retroactivity as an additional opinion that
reads, "Provided that this Clause shall not be deemed to prevent
punishment by formulating retroactive law in the crimes such as crime
against humanity, war crimes and genocide." CA Member Ramesh Lekhak of
Nepali Congress recommended a separate proviso to the same Clause that
reads: "Provided that this Clause shall not be deemed to prevent
formulating retroactive law and punishment in the crimes to be punished
under applicable international laws." Hence, as the two major political
parties proposed additional opinion with similar motive, there was
possibility of incorporating such provision in the new constitution. It
requires continuous pressure and lobbying to get complete success in the
future. UCPN (Maoist) was against this provision from the beginning, it
continues its stand till now. Therefore, without any further delay,
Nepal should criminalize serious crimes under international law through
domestic criminal law for strengthen prosecution in domestic level.
Several
political party leaders and officers of security agencies shall have to
face the fate of Colonel Lama if Nepal fails or becomes unwilling to
fulfill the obligations created by the international human rights
instruments ratified and acceded by Nepal. Nepal has acceded to the
Convention on the Prevention and Punishment of the Crime of Genocide
1948 on 17 January 1967, International Humanitarian Law (Four Set of
Geneva Convention) 1949 on 7 February 1964, Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 on 14
May 1990, International Covenant on Civil and Political Rights 1966 on
14 May 1991, Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment 1984 on 14 May 1990, Optional Protocol
of International Covenant on Civil and Political Rights 1966 on 14 May
1991. Apart from these, Nepal is a party to more than two dozen other
international treaties. The political party leaders, cadres and
security officers involved in serious violation of human rights in Nepal
shall not get emancipation from the universal jurisdiction in the
present circumstances. Prosecution at the domestic level shall save them
from prosecution at the international level. Therefore, Nepal
government should not make any delay to record criminalize serious
crimes under international law through domestic laws of Nepal and
prosecute on the incidents of violation of the past armed conflict
through effective investigation in time for ensure the justice of
victims. ( Delayed posting). Ed.
PS: The author is also the secretary general of Human Rights and Democratic Forum (FOHRID).
http://www.telegraphnepal.com/views/2013-03-09/nepal:-need-to-strengthen-prosecution-against-impunity.html
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