Nepali Times Asian Paints
PRATEEK PRADHAN
Guest Column
Transboundary jurisdiction


PRATEEK PRADHAN


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BIKRAM RAI
ON-GUARD: A soldier stands in front of a banner with photos of Maoist rebels who died in the civil war.

Harvard Professor Bryan J Hehir in his famous class named Ethics of Statecraft liked to say: "The strong do what they will, and weak do what they must."

Nepal falls into the category of nations that are forced to do what they must. Our despair and frustration at being a weak country means that we compensate for it by jingoism, pseudo-nationalism and an inflated sense of our worth as a nation.

The latest example of that is the reaction in Kathmandu to the arrest of Nepal Army Colonel Kumar Lama in London by the UK Metropolitan Police. Had a British person who had violated human rights during the Northern Ireland 'troubles' been detained while trekking in Nepal, we would not be invoking universal jurisdiction to apprehend and prosecute him, for sure.

But should our ineptness and powerlessness infringe upon our need to uphold human rights and the pursuit of justice? The case of Kumar Lama might be over-inflated. The alleged torture of a civilian at Gorusinghe Barrack in 2005 may be not be comparable to what the Maoists perpetrated during the insurgency. It may be far less inhuman than the behaviour of US interrogators in Guantanamo.

For sure, Lama's transgression was much less brutal than the monstrous treatment of journalist Dekendra Thapa by Maoists in Dailekh at about the same time. Thapa was severely tortured for two days and buried alive when he refused to accept his mistake in protesting Maoist acts. There were many more far more ghastly crimes committed during the insurgency, so Lama should not be the only one punished.

Let us look at this through the eyes of the family of Ujjan Kumar Shrestha, a shopkeeper from Okhaldhunga. A Maoist named Bal Krishna Dhungel killed Shrestha out of personal enmity in 2004, nothing to do with Maoist ideology. Dhungel was found guilty and convicted for by the District Court, but the Baburam Bhattarai government got him released and he is walking around a free man, even serving as a nominated member of the dissolved Constituent Assembly.

If the Maoists remain directly or indirectly in power, Dhungel and many others like him will never be prosecuted and punished. Given this impunity, they may even resort to further violence in future just as the Maoists in Dailekh this week threatened journalists who are reporting on Dekendra Tahpa's murder. Thapa's executioners would probably never have been booked had they not belong to the breakaway Kiran Baidya faction of the Maoists.

So, who is going to protect the proponents of freedom of speech and other fundamental rights ensured by the Universal Human Rights Declaration and the Covenant on Civil and Political Rights if the state turns fascist, absolutist, or totalitarian? There are severe cases of violations of human rights by the security forces as well, but should we not take action against a culprit just because worse war criminals are still at large?

The argument some commentators have used to criticise Kumar Lama's arrest in the UK reeks of paranoia and nationalist jingoism. If an independent journalist values national sovereignty more than justice, then the future is bleak indeed. At the rate things are going, the Baburam government may turn tyrannical and if that happens we need an international cushion to save critics of his establishment. Safety in such a case comes only from powerful countries that dare to take action under the doctrine of the responsibility to protect.

Ironically, the most naive and reckless reaction to the Lama case came not from an authoritarian-minded political force, but the party with the longest tradition of democracy and human rights: the Nepali Congress. Either the NC leadership has lost its core values or it simply thought that siding with Nepal Army in this case was politically expedient.

Lama's arrest in the UK has empowered Nepali journalists like me to be more vocal in the support of democracy, free press and human rights. I do not mind that Nepal's national sovereignty has been compromised because an individual's right to live fearlessly transcends the physical borders of a country.

Thank goodness there are countries out there which still act on human rights violations, no matter where or when they took place. It is good to see perpetrators of similar violence squirming at the prospect that the strong arm of the law can transcend international frontiers.

Prateek Pradhan is the editor of Karobar newspaper in Kathmandu.

Also see:
Photo report on the CPN-Maoist 7th general convention held in Thundikhel on Wednesday.



1. DG
This shows the spirit of the youths of modern day Nepal; the Rising Nepal.
Thanks Prateek Pradhan, the real journalist.
Where are all those Civil society Stalwarts gone ?
 Where are all those flowers gone?
are they awaiting order from their benefactors?
Or are they waiting for the good fortune or wind fall for the post of prime minister/
The grapes are sour my friends.
Yesmin kule tyomutpannah gajas  tattra na hanyete!


2. Justin
Thank you for this opinion piece, one of the more level-headed stories I have seen in the media since this episode began. There is a deterrent effect on the Lama arrest, but it also highlights the complete asymmetry in transboundary pursuit if justice... 

3. Yug

I thought this statement by the author,

"At the rate things are going, the Baburam government may turn tyrannical and if that happens we need an international cushion to save critics of his establishment."

was over the top, until I saw Baburam on the TV news just now slashing Britain over the Lama detention and, even more, saying that the District Court shouldn't have arrested Maoist cadre for burying Dekendra Thapa alive. We, indeed, have a fascist prime minsiter. 

 



4. S Thapa
It is easy but naive to get all high and mighty in the name of justice, human rights, and civil society and behave as if our national sovereignty getting compromised is not a big deal.  But not so easy to ignore the fact that the country doing the arresting - the UK - has a shameful history of colonialism, racism, and genocide, not to mention a spotty record of protecting Asian and Muslim minorities in their own country.  And they have a former prime minister, Tony Blair a.k.a. Bush's Poodle who participated in the illegal, ill advised, and murderous invasion, looting, and pillage of Iraq in 2003 that continues to this day.  If the Brits are oh-so-concerned about justice and so fair minded, they should demonstrate this by arresting Tony Blair & co and trying them as war criminals instead of picking on an army officer from a weak third world country.

5. Ujjwal Acharya
Well argued piece, Prateek dai!

I was one who felt that it was wrong for Britain to do it especially after letting him go through immigration. Although I believe culprits of all war crimes should be punished, I see it was not right for Britain to do it also because they will not have access to evidences in Nepal.

But after reading your piece, I am actually neutral. I feel for our country to be on right path, there should be something like this so that leaders are pressured to set up TRC and prosecute war crimes. May be its an effect of PM BRB's speech today where he said 'attempt to prosecute murderers of journalist Dekendra Thapa will derail peace process' and 'no court can prosecute on cases of incidents during conflict period.'



6. Mukesh Baral
As a student of Conflict Resolution, I believe cooloneal Kumar Lama was arrested under the UN convention against torture which Nepal and Britain both signed and ratified. Nepali goverment needs to see the law that it signed in 1991 before using the card of sovereignty. R2P is a norm not a law, but for R2P can still kick in to book Lama for his crime against humanity.

7. Deepak Kumar Bhattarai
According to international public law principle of universal jurisdiction, any country can try for certain crimes including torture.


8. Krishna
What Baburam Bhattarai said is horrific indeed. That is why he is unsuitable for the public office, and must be ousted at earliest. We live in a democratic country, and thus we can and should exercise that right to oust him in the next election. However, your fear doesn't justify your point. Should the whole world look up for the people responsible for Apartheid in SA? Did the whole world wake up one day and decide to give that authority to UK? For your perspective, would UK arrest US army personnel in London if somebody made a complaint about that person's involvement in killings in Iraq war or Guantanamo bay or sth like that?

As a Nepali citizen, it isn't wrong to be offended when such things happen to your national pride. One can proudly ask for fair trail for civil war crimes in Nepal, and at the same time, be offended when a person representing your country in a UN mission is being tried at courts in another country. There is nothing "pseudo-nationalism" about it. I don't understand why you'd call this jingoism. Maybe, being a person from a third word country, some inferiority complex is at play here. Trying to impress friends in the West? or the Western donors perhaps? I don't know. If the point of your article is to offend a section of Nepali society, then you've succeeded. Bravo.


9. Hare team
Well said indeed. 

10. Armugam
I see the whole of Col. Lama episode as the blatent dualistic policy pursued by western countries. Would Brits be equally agressive forthright in pursuing       

11. Armugam

I think the whole of Col. Lama episode reflects the blatant and dualistic policy pursued by western countries. Would UK be equally aggressive in pursuing cases of US's over enthusiasm on the torturing front? I am sure that is "null and void" as that was "WAR" and they worked hand in glove in invading Iraq. And what about Northern Ireland in their own backyard and the treatment of IRA "terrorists" and Maze prison atrocities? 

Armugam



12. Nirmal
From when the murders  and brutality against human dignity has stopped to be prosecutable?! Since the peace process started and Nepal becomes New Nepal?! 

Those who are against the move with different excuses and pretexts should have realized by now that the general public are not burning Briitish flag and destroying the embassy because "the national pride" has been damaged as they are claiming. However, they are undressing the corrupt and criminal political class --as is the case of  Baburam Bhattarai with the spontaneous and firm protests against the Maoists in Dailekh-- who they think is the main hindrance to a peaceful  nepali society where principles of modern democracy are upheld. I'm begining to see that only the Nepali people --and not this criminal and corrupt ruling class of Nepal-- have the power to establish a peaceful and democratic Nepal by sweeping these netas who want to establish a kind of state which openly sponsors institutional criminality in name of reconciliation and safeguarding the peace process. 




13. ke garne
The national sovereignty argument in this case is totally bogus. When did national sovereignty come to mean the so-called "right" of one group of armed Nepali thugs (army leaders or Maoist radicals) to kill another group of Nepalis who happen to be unarmed and not a party to the conflict? Is that what national sovereignty has come mean these days? Yeah, right. We are lawless barbarians. We have the right to kill whoever we like. So leave us alone because, well, we have something called "national sovereignty." What a joke. Yes, Britain does have its share of human rights problems but, in this case, what they did to Lama is a good thing. From now on our murderous criminals will have to think twice before they decide to hack another civilian to pieces in front of family members or bury another journalist alive.  

14. FunkyBuddha
Transboundary jurisdiction sounds great but the asymmetry in its delivery is what should bother us. I would love to see George Bush and his poodle Tony Blair arrested in one of the 'third-world' countries for crimes against humanity. But then, who watches the watchmen?


15. Anonymous
Let there be no surprise that even General Pinochet, the brutal Chilean dictator under the direct watch of whom thousands of Chileans were brutally murdered, maimed  or disappeared in the 1970's, was detained during his tour in Europe, on the request by the human rights organizations in Europe. If Nepal's position is to be restored as one of the civilized nations on earth, the war perpetrators must be brought under justice. No democracy can survive or prosper in eternal impunity under the perpetual fear of the war mongers. Only through proper Truth and Reconciliation process at home, like in South Africa, can fear be removed from the minds of citizens and healing be restored to the national psyche. The current coalition government under the Maoists and the Madhesi lost that precious window of opportunity-- first, they failed to draft the constitution under their watch; second, they failed to develop a mechanism to bring reconciliation. They have lost credibility both at home and abroad. Thanks to the human rights organizations in the UK, moral pressure has been once again exerted on the ruling political class of Nepal. Should the political elite class and the NA be not accountable to the people of Nepal?


16. Rajaram Singh
Gefest ist nicht gefest.
Baburam qualifies to head a Neo-Nazi party of Nepal .
He has a fascist mind set . His statements  are crystal clear towards that direction.


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