The concept of universal jurisdiction, invoked to punish those guilty of international crimes when the government concerned is deemed either unwilling or unable to take action, has been one of the most controversial topics in international jurisprudence. To Henry Kissinger, it represents a serious breach of the sovereignty of individual state actors, and risks giving rise to “universal tyranny” of judges. But for its defenders, universal jurisdiction is an indispensable component of internal jurisprudence in an increasingly globalized world, where those responsible for crimes against humanity are looking to escape prosecution by hopping borders. Different countries invoke universal jurisdiction under different conditions. In the case of the United Kingdom, according to the British Embassy in Kathmandu, “the UK has universal jurisdiction over the most serious of international crimes including the crime of torture.” In other words, universal jurisdiction, as the UK defines it, permits it to arrest and prosecute people accused of human rights abuses committed overseas, even if the crime is not related to events in the UK.
This is the rationale being offered by the UK for its arrest on Thursday of Nepal Army Colonel Kumar Lama on its soil, on the suspicion of his involvement in a 2005 torture case in Nepal. As has been the case whenever universal jurisdiction has been involved anywhere in the world, Col Lama’s arrest has given rise to a storm of controversy. On the one side are Nepal government and major political parties in the country that are crying foul at an ‘arbitrary’ arrest of a Nepali national on foreign soil, which they believe has compromised Nepal’s sovereign status. On the other side are the UK government (which seems determined to bring Col Lama to book on the principles of universal jurisdiction) and the international human rights community (which believes that Col Lama’s arrest is the right response to the inordinate delay in the formation of transitional justice mechanisms in Nepal). In the view of Amnesty International, Col Lama’s arrest results from the absence of “any meaningful investigations into the multitude of abuses committed by both government forces and Maoist combatants during Nepal’s civil war.”
This first case of its kind for Nepal could set an important and potentially troubling precedent. On the positive side, the out of the blue arrest of a Nepali national by invoking international justice mechanism has sent an unmistakable message to the Nepali state that it can no longer afford to sit on the cases of serious rights violations; if it doesn’t act, the international community will. But it also perpetuates a dangerous message that Nepal’s justice delivery mechanisms are utterly incompetent—an unmistakable sign of state failure. The growing perception that Nepal is edging closer to a failed-state status could have all kinds of repercussions, including increased foreign meddling. In the absence of a legislature and a plenipotentiary government, the onus is on political parties to halt the spread of this troubling perception at any cost. And that would be possible only if they can see eye to eye on transitional justice mechanisms along internationally accepted norms, as stipulated in the interim constitution. They might have taken umbrage at the timing of Col Lama’s arrest, since the Truth and Reconciliation Commission has been a topic of discussion in latest political negotiations. Why now? While this is a legitimate concern, we believe there was also visible lack of urgency on this important issue. We hope Col Lama’s arrest has imbued our political actors with that much-needed sense of urgency.
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