Trouble Making on China’s Door Step

China’s foreign minister, Wang Yi, who exchanged a telephone conversation with UN Secretary-General, Ban Ki-moon, concerning North Korea’s saber rattling on April 6 said, “China would not allow troublemaking on China’s doorstep.” This statement from the Chinese top diplomat has been quoted by Zhu Feng in his essay “North Korea’s Step Too Far?” in Project-Syndicate.

Does it not suggest policy change on the part of China vis-a-vis North Korea as the latter relies on the former for 90% of energy, 80% of consumer goods and 40% of its food? This question has been asked too often particularly in the wake of latest UN-sponsored sanctions against North Korea reprimanding it for its third nuclear detonation (February 12, 2013).

EU’s former High Representative for Foreign and Security policy and Spain’s former Foreign Minister, Javier Solana has articulated in his essay “The Sino-American Test on North Korea” that China continues to regard North Korea as an important strategic asset. His contention is logical because North Korea serves China as a buffer state shielding the border of its closest neighbor to the west from American troops on the Korean peninsula.

Viewed from this perspective China would be prudent in maintaining the status quo, which is a North Korea remaining loyal to her savior, declining to be a part of future Korean peninsula that realizes reunification in concert with the aspirations of superpower, the U.S. and its traditional ally, South Korea. North Korean leadership perceives that reunification with South Korea under the present circumstances would prove suicidal to her as the latter’s vibrant democracy and buoyant economy would have the increasing bargaining power.

The ups and downs in Sino-American bilateral relationship have influenced the North Korean behavior to a greater extent. Historically, North Korea has been an adversary of South Korea and the 1950 Korean War has added complexities to relations between North Korea and the U. S. as the latter had sided with South Korea during the conflict, which has not ended with the signing of any peace treaty. UN-sponsored Armistice (1953) halted the three-year-long war but has left the scars in adversarial North Korean-American bilateral relationship.

The U.S. has not normalized relations with North Korea and still avoids direct talks at the government level. This raises suspicion in the minds of successive leaders of North Korea, which is run by Kim family since partition of the Korean peninsula in the aftermath of World War II.

The most recent tensions in the Korean peninsula is also attributable to the annual joint military exercises conducted by the U.S. and South Korea-especially when American nuclear-capable B52 and B-2 bombers were added to the drill in the opinion of Javier Solana.

Nuclear enterprise pursued by North Korea, which has even decided to withdraw from the Treaty on the Non-Proliferation of the Nuclear Weapons (NPT) about a decade earlier, is implicitly connected to its non-cooperative relationship with the U.S. Like it or not North Korea has become a nuclear power having successfully exploded nuclear devices thrice (2006, 2009 & 2013).

More alarmingly, its February 12 nuclear test was likely a miniaturized device as commented in Javier Solana’s essay “The Sino-American Test on North Korea”. The nuclear experts are worried that successful miniaturization is critical for using nuclear weapons in ballistic missiles.

Interestingly, Solana has even stated that repeated threats from North Korea have turned the northeast Asia into one of the world’s most dangerous hot spots however the same situation can also be a blessing in disguise if the two countries (China and the U.S.) gain a strategic trust with their capabilities to resolve the tensions in the Korean peninsula permanently. Resolution to Korean problem depends predominantly on collaboration between China and America. The former Spanish foreign minister rightly observes that if they manage to cooperate constructively in order to shape a peace acceptable to all sides, this would make not only Korea, but also the region and the world, a safer place.

Echoing the sentiments of his foreign minister, the Chinese president, Xi Jinping has said, “No country should be allowed to throw a region and even the whole world into chaos for selfish gain.” The president has been quoted by Zhu Feng in his piece, “North Korea’s Step Too Far?” Xi was addressing an assembly of primarily Asian political and business leaders at the annual government-sponsored “Boao Forum for Asia” on April 7, 2013.

Based on above reality Zhu Feng concludes that China’s exceptional tough talk (China even supported the UN resolution sanctioning North Korea after its third nuclear test) does not necessarily mean that it intends to abandon Kim Jong-un’s regime; but at the very least, it does suggest that a radical shift in China’s policy toward North Korea might no longer be unthinkable.

In “The Next Korean War”, a recent Foreign Affairs piece, Kier A. Liber & Daryl G. Press have analyzed the current turmoil in North Korea and said that the North Koreans, even pressed to go to war (with the U.S.) if the situation escalates dangerously, the leaders in Pyongyang wish to survive, so they are highly unlikely to do anything as foolhardy as using nuclear weapons.

This is an optimistic note though the war, hypothetically speaking, with North Korea probably means nuclear war because Pyongyang’s only option (to avoid defeat) would be to try to force a ceasefire by playing its only trump card : nuclear escalation as Liber and Press have opined. They elaborate that this strategy, planning to use nuclear escalation to stalemate a militarily superior foe, is not farfetched.

Considering the fact that conflict with North Korea could go nuclear, Washington should put in extra efforts to see that there is no more escalation to push the isolated leaders in Pyongyang to the brink of military confrontation. Moreover, its collaborative endeavors with China, which, of late, has signaled policy transformation with regards its relations with North Korea, may lead to a win-win situation not only for the Koreas but also for the world at large.

 

Politics of Nukes in South Asia

 

Even since the U.S. became the first country in the world to successfully detonate the atomic bombs in 1945 and also to test the destructiveness of such weapons of mass destruction in World War II, the international community’s attention has been drawn to the politics involved in nukes.

The growing polarization emanating from the increasing interest on the part of many developing countries, our South Asian neighbors no exception, to possess nuclear weapons for various reasons, has been more apparent in the wake of three nuclear tests conducted by North Korea and frequent allegations of UN’s nuclear watchdog (International Atomic Energy Agency) leveled against Iran that its current nuclear program has possibly military dimensions.

At present clouds of nuclear confrontation are hovering in Northeast Asia against the backdrop of February 12, 2013 nuclear explosion by North Korea despite warning from the world community, and subsequent sanctions-imposing UN Security Council resolution, opposing which the young but untested leadership of North Korea has been saber-rattling for weeks now. Considering this ominous situation some have even expressed alarm that there might be next Korean War with the nuclear weapons. This may be a far-fetched prediction though.

The last Korean War (1950-53) was fought at the height of Cold War that involved the U.S., China, and the two Koreas. That war ended in UN-brokered Armistice (1953) but with no peace agreement. Recently, and quite provocatively, North Korea has threatened that it would not abide by the above truce, which has maintained peace in the Korean peninsula for almost six decades.

No more congenial environment is seen in the Middle East, particularly, Iran where nuclear standoff has not been resolved despite all the negotiations under the auspices of world’s six major powers. P-5 (Britain, China, France, Russia, and the U.S.) plus Germany is the forum, where six major powers have been sitting for talks with Iran in order to persuade the latter to abandon its uranium enrichment program. The west believes that 20% enrichment of uranium is a quality not required for peaceful purposes i. e. nuclear energy and medical research as claimed by Iran. Disappointingly, two rounds of such talks held in Kazakhstan in February last and this month (referred to as Almaty-1 & Almaty-2) have not yielded any positive results so far.

While both North Korea and Iran have been the targets of international condemnations because of their suspected nuclear ambitions, (albeit in North Korean case no such suspicion exists as evidenced by its  nuclear tests in 2006/2009/2013) due to their membership of the Nuclear Non-proliferation Treaty (NPT), that prohibits production and possession of nuclear weapons, India and Pakistan have, however, become nuclear capable nations since 1998 and have declined to accede to the 1970 NPT. Surprisingly, both of them have now been welcomed internationally as nuclear capable countries with the lifting of all kinds of sanctions imposed against them in the wake of nuclear tests (May, 1998).

Embarrassingly, for the proponents of the NPT, the U.S. has struck a nuclear deal (2008) with India providing the latter facilities of obtaining nuclear fuel and technology, which is indeed the privilege confined to a member of the nonproliferation treaty.

According to Michael Krepon (co-founder of the Stimson Center, a think tank, and director of its South Asia and Space Security Program), who has contributed to the opinion piece of the New York Times (April, 2013) “Nuclear Race on the Subcontinent”, “Pakistan is the hare in an Aesopian nuclear competition under way between the two neighbors with nuclear weapons, struggling to devote scarce resources to compete with a country whose economy is nine times as great. To him, India is the tortoise, whose nuclear program is moving steadily forward without great exertion.”

Krepon elucidates by saying that in the continuing nuclear arms race in the South Asian subcontinent, the tortoise is going to win. Probably, in this competition India has the edge over her rival Pakistan due to its burgeoning economy and the writer is correct when he predicts that India could quicken its pace in the race.

His elaboration that Pakistan as a hare continues to run fast, because nuclear weapons are a sign of strength amid domestic weaknesses and because it can’t keep up with the growth of India’s conventional military programs is hardly unconvincing judged against the background of what a nuclear-armed North Korea has been doing to escalate tensions with the U.S., the world’s only existing superpower and the possessor of the world’s largest nuclear arsenals.

Is South Asia safe because the nuclear-armed neighbors like India and Pakistan are not at loggerheads with each other to the point of nuclear Armageddon? This has been a great puzzle for the world.

The possession of nuclear weapons by India and Pakistan and their intermittent tensions in bilateral relations are issues of legitimate security concerns for the majority of the South Asian countries, and more so for Nepal, which has contiguous border with India on three sides. There are no possibilities of getting the nuclear-armed rivals entangled in a nuclear war in the very near future seeing from the prism of optimism. Nevertheless, should December 2008 like Pakistan-based terrorist attacks are launched against India resulting in mass casualties, none can rule out the use of nukes in a future war that may become inevitable.

The words of possible nuclear exchange between India and Pakistan still reverberate among all of us when both these countries were seen very close to such a devastating war in 1999 Kargil dispute. Understandably, the then U.S. leadership played a very constructive mediating role in thwarting the nuclear confrontation to our great relief.

To the consternation of Nepal and other neighbors, both India and Pakistan have not engaged themselves in serious, sustained nuclear risk-reduction talks even after fifteen years of their nuclear detonation in 1998. It is imperative that they do not delay any further to take appropriate confidence-building measures to meet the genuine security concerns of the international community in general and those of their SAARC neighbors, in particular.

Peace or Justice?

Created in Rome (1998), the International Criminal Court (ICC), aims at ending impunity by bringing all the perpetrators of serious crimes to justice. The ICC has to investigate and accordingly prosecute those involved in war crimes, crimes against humanity, genocide and crimes of aggression committed on the territories of its member states or by their nationals, or whenever asked by the UN Security Council. The permanent court was set up following multilateral negotiations with the signature of Rome Statute and thus is different from its predecessor tribunals which were set up on ad hoc basis.

The ICC sits at the intersection of war and peace, politics and law and thus would attract enemies as articulated by professor of Law at the University of California, David Kaye, in his Foreign Affairs (2011) piece “Who is Afraid of ICC?” The writer is   prompted by the policy of the U.S. administration regarding the above court. The U.S. government has been opposing the forum since the beginning in 1998. Almost after four years of struggle to obtain the sixtieth ratification of its Charter (Rome Statute), the court has become operational since July, 2002.

In the opinion of Fatou Bensouda, current prosecutor of the ICC, “we have seen an unprecedented integration between peace and security and international justice”.

Encouragingly, the initial resistance to the ICC by the U.S. administration has been declining in the recent past. The American support of the UN Security Council’s referral of the Libyan situation to the ICC, which was demonstrated in its support of the resolution 1973 of the UN Security Council (26 February, 2011), which referred then Libyan leader Muammar el-Qaddafi and his close associates to the ICC. Despite this, it has not been cooperative to assist the ICC investigation of the Libyan officials of the ousted regime in the post-intervention era.

By not signing and not ratifying the court’s charter, America, China and Russia (the only three permanent members of the UN Security Council to do so) have shown their reluctance to abide by the norms of global accountability. They have been joined by some emerging economies, including India and Indonesia. Surprisingly, in the year 2003, John Negroponte, then U.S. envoy to the UN, had issued a threatening call to the member states that his country would shut down UN Peacekeeping operations in different regions, if the UN Security Council did not immunize the American peacekeepers from prosecution by the international criminal court. The subsequent UN resolutions were then drafted taking into account this U.S. concern.

During the administration of George W. Bush the majority of small and weaker nations in Asia and Africa had become the victims of American arms-twisting and were coerced to sign pacts with its government that has prevented them from surrendering the U.S. citizens to the ICC. This illustrates the bullying tactics of a world power, which paradoxically calls itself the champion of human rights.

China, Russia and many others from South Asia including India, and Nepal have not joined the ICC purportedly to protect their nationals from ICC prosecutions. But a country with increasing aid dependency characterised by crumbling economy and growing political stability like Nepal should realize that it will not be treated internationally at par with the veto-wielding world powers, should the letters’ self interests be jeopardized.

What is alarming for us is that last month former Prime Minister Babu Ram Bhattarai unhesitatingly stated that he would have been produced before the international criminal court, had he not been in his post.

Nepal’s failure to establish a credible transitional justice mechanism to investigate the cases of serious human rights violation has also reignited the debate whether we strive for peace at all costs. Last Monday the apex court of the country stayed the move to promulgate ordinance relating to Truth and Reconciliation Commission (TRC), which indicates the lack of determination on the part of the government to punish the perpetrators of serious crimes, let alone those which come under the jurisdiction of the ICC.

In connection with the latest Supreme Court stay order concerning the TRC ordinance, the plaintiffs have demanded that the court should order the defendants (Chairman of the Interim Election Government, Office of the Prime Minister, Minister for Law and the Minister for Peace and Reconstruction) to formulate laws on transitional justice as per the previous court order until war crimes and crimes against humanity are not declared criminal offences and provision for punishment are not put in place.

Although the ICC ignores the crimes committed before its creation, its non-membership does not  guarantees that no cases of genocide, or crimes against humanity, or war crimes  or crime of aggression would be filed against the nationals of that country. The example is the president of The Sudan, Omar al-Bashir, whose case was referred by the UN Security Council to the ICC even though his country has not joined the court. Nepal can’t afford to have the luxury of incumbent and prospective permanent members of the UN Security Council, in case the future resolutions refer her nationals to the court.

While speaking on a recent conference “International Justice and Diplomacy”, the ICC’s prosecutor Fatou Bensouda, as quoted by the New York Times, has remarked that the debate about peace versus justice or peace over justice are two sides of the same coin”. There is hardly any forceful logic to counter her when she adds that the road to peace should be seen as running via justice, and thus peace and justice can be pursued simultaneously.

As controversy prevails whether there can be an election conducted in a free and fair manner under the present circumstances with a significant political force feeling excluded from the political mainstream reflected in ongoing obstructions to voter registration process, it is imperative that serious consideration be given to convince the disgruntled groups that their legitimate demands are met. No less urgent is to enact laws that declare crimes against humanity, war crimes, genocide and crime of aggression  as criminal offences.

Nepal should treat the ICC as a global forum for justice. Peace and justice complement each other and thus are not mutually exclusive.

Education & Accountability

As the eyes of the educationists are fixed upon the upcoming school leaving certificate final examinations scheduled from March 14, 2013 considered to be the iron gate for prospective college goers, it may be contextual to discuss a little bit about the instructional quality of school education with special reference to government/community schools in the country. Thousands of such schools, where majority of Nepali children receive formal education, are unjustly blamed for poor performance of their students every year.

Any independent observer would reasonably conclude that the root causes of eroding teaching standards in government schools, which provide free education up to secondary level, have either not been unearthed properly or have been turned a blind eye by those enjoying the perks and privileges at the Ministry of Education. Even the guardians of the students visiting community schools bear a major chunk of responsibility to the falling standards of such government-funded institutions, blinded by an illusion that they have not lost anything here as they do not pay any fees for their wards. Who has to explain to them that the government funds made available to the community schools is nothing but their own tax money?

A dilemma exists because the government of Nepal has been pouring billions of rupees as grants to community schools in maintaining them. The government pays the salaries of the teachers from primary to secondary level, some of whom draw as high as any gazetted first class level civil servant draws. Unfortunately, these schools perform so embarrassingly in SLC examinations each year.

One may be tempted to remark that many government schools are not equipped with basic educational materials and face a growing problem of trained and competent teachers’ scarcity. This point has some elements of truth though in majority of the schools inside the cities and in their close neighborhoods the shortage of teachers is not that serious issue. What is really lacking is the dedication and more significantly the accountability on the part of the teachers in community schools, who have grown ungovernable with no supervision either from the government or the concerned school management committees and the guardians.

There are exceptions everywhere and this applies to some government schools in different parts of the country. In the recent past a community school (Gyanodaya Higher Secondary School) in Bafal, Kathmandu was very much in the media because it has been setting a good example of maintaining enviable records of teaching standards although it is not a private school, which charges an exorbitant amount of fees from the students. There may be many other schools which have been performing quite satisfactorily but are not highlighted in the media. This establishes the fact that higher fees alone is not essential to have a school run smoothly and efficiently where the maximum number of students get through the iron gate with excellent results.

School management aspect has also been neglected in an astonishing manner with dirty politics having its sway over its formation and functioning. The intrusion of local politicians in management committees, who bear no accountability to the welfare of the academic institutions has contributed heavily to the deteriorating situation of government schools around the country. Worryingly, a nexus prevails between the incompetent teachers and the local politicians who have utilized the schools as forums to continue their nefarious political activities with utter negligence to their own solemn duties.

An immoral partnership between the teachers and some of the school management committees is seen even in running private schools in the vicinity of the government school to which they are attached. This scribe has himself observed such painful scenario while volunteering in a community school in Parbat (Bhawani Vidyapeeth Higher Secondary School) as one of its former students and tried to persuade the teachers and the school management teams to refrain from such unethical behavior, but in vein.

I had queued up before the Indian Embassy complex in Kathmandu in the freezing temperatures of mid-December last year to submit the Mahatma Gandhi scholarship application forms intended for grade XI students, who are poor but talented (I was carrying the documents on behalf of students of the school where I volunteer and happily all of them have been short-listed and interviewed as well at Pokhara almost a week ago). During that wait one of the guardians of such applicant was expressing dismay at the intellectual bankruptcy of government school teachers, who boast that their kids attend the so-called boarding school in the same village, where the worst performers of community school have been employed as teachers. What a pity!

An interesting irony is prevalent in the standard of English the private schools have been maintaining where the students (with some exceptions) are hardly instructed to the correct use of possessive forms of nouns. I have encountered a number of times when a boarding school going secondary level student finds it difficult to answer correctly if he or she is asked a question like “What is your school’s name? Most of the times their answers will be “My school name is XYZ.” There are several examples of incorrect use of apostrophe‘s especially after plural nouns like boy’s or girl’s etc. which we read in signboards hanging on the walls of Kathmandu-based hostels. More frustratingly, some of such schools are ignorant of the true meaning of the word boarding, which means residential. Do all the boarding schools provide hostel facilities for their students as their names suggest?

A valid question arises as to why the community schools, where we have a good number of qualified and trained teachers, do not meet our expectations compared to the private schools, which have less qualified teachers.

Teachers are supervised constantly and are hired and fired quickly in case of private schools. They are constrained to protest against the injustice they may have to suffer in terms of limited facilities (such teachers are the lowest paid) because they are not given any appointment letters. The proprietors are all in all and can function the way they like and the teachers are quite vulnerable and they seldom grumble fearing the possible loss of their jobs. They are forced to be dedicated.

Conversely, the teachers in the government schools are not held accountable to what they have been doing in the class rooms. None bothers whether they are punctual or regular. They are not required to complete the course of their subjects in due course of time. The government has no supervisory roles, which picks up some incompetent teachers as resource persons and deputes its school inspection work to them. Astonishingly, the school management committee rarely discusses about their performance even after the SLC results when a maximum number of students have failed in Mathematics, Science or English. When nobody bears responsibility for poor results, how can one expect improvement?

Therefore, all the three main stakeholders viz teachers, school management committees and the guardians must rise up to the challenge and act determinedly to ensure quality teaching environment so that those who perform better are rewarded and those failing in their duties are punished. Only carrot and no stick principle has been the main culprit. It is imperative that such principle is discarded sooner rather than later.

Surviving with Self-Respect

 

Although successive governments in Nepal have been boastful of their achievements in tackling unemployment to a larger extent through foreign employment, it is hardly sustainable given the fact that the demand for our workers in foreign lands depends on how our competitors in the job market perform to satisfy their employers. The latest situation of employment in Kuwait for the Nepalese workers and particularly the housemaids reveals this fact, where our female employees are privileged to be offered more housekeeping opportunities due to temporary restrictions placed by the Kuwaiti authorities on those from Pakistan and Bangladesh.

Foreign employment has been on the rise after the then government in the 1990s decided to open the Gulf countries to seek jobs for its citizens. In the beginning our employees used to be predominantly males as then the women did not venture for outside employment with a few exceptions. Furthermore, Nepal government was also found hesitant to permit female workers to look for employment in the Gulf countries, where comparatively people are more conservative.

Later on the government showed flexibility with regards to employment for the Nepali women both because it felt pressure of growing unemployment at home and also the women organizations lobbied vigorously for giving equal opportunities to the women without whose partnership the society cannot move forward. Viewed from this lens the decision by the government to loosen restrictions on female workers to go abroad for jobs looks prudent but the story does not end here.

Despite the fact that our female job seekers have been working in countries like Malaysia and lately in South Korea in quite a good number, their concentration is certainly in the six Gulf Co-operation Council (GCC) countries where more housemaids are on an increasing demand for the last few years. This council comprises Saudia Arabia, Qatar, Kuwait, United Arab Emirates, Oman and Bahrain. Among these the largest concentration of Nepali workers is in Saudia Arabia followed by Qatar and rest of the GCC members.

In the mid 2000s we have witnessed the steady flow of female workers to Israel where the demand is for caregivers besides the housemaids. When opportunities for such jobs were noticed our so-called manpower agents started to persuade the Nepali female job seekers to go to Israel even though no formal government channel was available to manage the employment-related problems. Consequently, there was the problem of our female workers being harassed due to loss of jobs and also employed illegally. With more such instances of illegal employment which naturally victimizes the poor and vulnerable workers increasing, the government of Israel persuaded the government of Nepal to open an embassy in Tel Aviv so that the grievances of Nepali workers in the country could be handled more efficiently and humanely.

Responding to this persuasion of a friendly country which has a developed economy and where more old aged persons require care and attention and taking note of the possibility of having our less educated work force employed with attractive remuneration, the government of Nepal hastily took a decision to operate an embassy at the level of CDA (Charge d Affaires). However, the Nepal embassy in Israel is now headed by a full-fledged ambassador. Then it was justified considering that the presence of a diplomatic mission would facilitate the employment for our workers and the governments of Israel and Nepal would enter into a relevant agreement to better manage the problems related to the jobs.

The recent history on this issue attests the fact that our employment problems in Israel have remained as they were seen in the beginning with no conclusion of an agreement supposed to be a panacea in this regard. Our oft-quoted labor diplomacy and recruitment of labor attaches for whose assignment the government ministers are found lobbying hard have proved less effectual than expected. Where lies the remedy to this pathetic scenario no one seems to be in the knowledge.

The two concerned government ministries are complacent one rejoicing at the appointment of labor attaches and another being privileged to select the diplomatic envoys. In a country whose diplomatic envoy enjoys vacationing in the New Years Eve with his family members and reports back to his office only after being instructed to shorten his pleasure trip even knowing the fact his country’s senior defense official is sent to judicial custody by the host country police on charges of serious human rights violation, what more can the people of Nepal expect.

Our problems in this front have been encountered in a number of foreign employment destinations including Malaysia and South Korea though the latter has approved Nepal as one of the countries that are covered under the Employment Permit Service (EPS).

No more serious is the situation as in Kuwait with the staggeringly rising number of our victimized female workers, which the latest report in Kantipur suggests. Kuwait is the country where one of our female workers has been awarded capital punishment and all our diplomatic endeavors to get her early release have not borne fruit. This scribe vividly remembers the pains she had to undergo when she was given the death penalty by the Kuwaiti court a few years back and also the investment made the government and the organization like the Non-Resident Nepalese in raising a fund to pay as a blood money to the relatives of the Filipino, who was allegedly murdered by the Nepali worker. Had this blood money not been paid the Kuwaiti government would have probably executed the court order of death sentence.

For the sake of employment in the foreign countries our citizens have been agonizing. Their genuine demands for fair pay and other facilities are seldom attended to. Our limited capacities at the missions with no home-based diplomat having local language skills and constrained resources, which are not in tune with what the situation on the ground like a difficult destination as Kuwait requires, will always put our workers at constant risk. The remittances flowing from labor destinations may have its role in supporting our economy temporarily, but it can never substitute domestic employment. Transient solution to unemployment should not become our policy, rather the government should refocus on exploring possibilities, that provide jobs domestically. Only then we can survive with self respect.

Moral Strength on Decline

 

Sadly, for the beleaguered Nepal government the Supreme Court has decided that the recent directives of the Attorney General to obstruct the investigation of accused in the murder case of journalist Dekendra Thapa, are unconstitutional. This order has indeed dealt a severe blow to the government, which is widely blamed for undermining the rule of law at a time when one of its serving army colonel has been remanded to judicial custody until next hearings on January 24 by a court in London for his alleged involvement in torturing a suspect, which resulted in the victim’s death.

A hearty debate whether Nepal’s national sovereignty has been violated by the UK government’s decision to arrest a Nepali citizen on suspicion of committing torture crimes during the Maoist insurgency without notifying the government of the arrested person has been continuing. Opinions are seemingly divided as one school of thought believes that the detention amounts to an attack on sovereignty whereas another group of people, particularly the human rights lawyers hold the view that considering Nepal’s international obligations arising out of her accession to anti-torture convention, the arrest is lawful.

In the recent past many columnists including some professors of international law have been arguing that certain conventions like The 1984 UN Convention Against Torture (CAT) attract universal jurisdiction in view of some heinous crimes like war crimes, crimes against humanity and genocide etc. Crimes related to torture are considered to be crimes against humanity and CAT has outlawed it. In so doing the said convention unequivocally mentions in its Article 2, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture”.

It is this provision embodied in the CAT, which Nepal acceded to in 1994, renders the pleadings of Nepal government that the detention of its citizen in a foreign land is infringement upon Nepal’s sovereignty ineffectual.

Nevertheless, one can also argue that application of human rights standards has not been uniform. Some countries are treated more equal than others in censuring countries for abusing such rights. There are a few examples that substantiate such criticism. Critics question if the US government has adhered to CAT in its truest form vis-à-vis one of its former presidents, whose administration was accused of not punishing the perpetrators and paying reparations to the victims despite flagrant violation of human rights of Iraqi detainees in Guantanamo Bay. More glaringly, the British government has shown double standards in handling the case of former Israeli foreign minister, Tzipi Livni to prevent whose arrest in the country in 2011, it even amended some of the provisions of Criminal Judicial Act of 1988. It has, however, invoked it to detain a Nepali citizen. Against such dubious history of treatment can the government of David Cameroon legally prosecute the suspected torture criminals in the United Kingdom, if they are from its close allies and especially the United States? Doubts persist.

Can Nepal afford to emulate the United Kingdom and other most powerful countries such as the members of the exclusive club (permanent members of the UN Security Council) with regard to her international responsibilities?

Astonishingly, the government has invited people’s wrath by impeding the investigation related to the torture followed by death of Radio Nepal journalist Dekendra Thapa. With such incident in the country the international community seldom has the reason to believe that the government of Nepal is really serious to enforce the rule of law. By pleading that individual criminal investigation like that of Dekendra Thapa would derail peace process, the government has exposed its true intention of protecting the perpetrators of heinous crimes that attract universal jurisdiction.

The lawyers have been explaining that the Truth and Reconciliation Commission is not supposed to deal with all criminal cases that have occurred during the conflict period. The normal criminal procedure has to address such criminal cases. Moreover, there is a difference between the cases that took place in actual conflict situation when fire was exchanged and those when no fire was exchanged. Therefore, the government cannot treat all cases putting them in one basket. As per the international practice the crimes not committed in actual conflict situation are not dealt with by the Truth and Reconciliation Commission. The government’s claim that all the accused criminals of murder, torture and other serious crimes would be investigated by the proposed commission, a hallmark of post-conflict situation, is not convincing.

The diplomatic intervention put in place by the government to obtain the early release of the army colonel in London is getting nowhere the reasons for which are obvious. Firstly, the Nepali envoy has not met the expectations of the people as his parleys in London have not persuaded the host authorities at all. His absence of leave from the embassy at the time of arrest and the resumption of duties almost after a week has compromised the performance. Secondly, the government has not been able to reassure the international community about its promise to abide by the provisions of the treaty it has ratified. The most persuasive action on the part of the government in this regard would be to start fair investigation against all the pending criminal cases and deliver justice by punishing the criminals and paying reparations to the victims.

Instead the government took a reverse course by instructing the district legal authorities to stop investigation of the accused persons involved in serious crimes. Fortunately, the stay order from the apex court nullifying the written instruction from the Attorney General has corrected the course and has reinforced the faith of the common people in the rule of law.

The government has lost its moral strength by unconstitutionally obstructing the justice as evidenced in Dekendra Thapa episode. Unless and until justice is delivered to the victims of heinous crimes by bringing all the perpetrators to book, Nepal has the risk of facing such humiliation not only in the UK but in many other countries, which have enacted criminal justice law enjoying universal jurisdiction that allows them to prosecute anyone accused of heinous crimes wherever committed.

Enough is Enough

Unsurprisingly, the top diplomat hurriedly summoned a press conference at his office in Singh Durbar on Friday,January 4, 2013 in the wake of a confirmed news report that a Nepal Army colonel has been arrested by the British court allegedly on charges of violating the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. He has expressed his government’s outrage against the decision to arrest the army officer and has even directed his official to hand over a protest letter (perhaps for the first time under such circumstances) to the Kathmandu-based British envoy. Under the instructions of the government, a copy of the above Letter of Protest was also conveyed to the British Foreign Office through Nepal’s embassy official at London.

The pride of Nepal has come under threat and all Nepali people, who have seen one disappointment after another, have been ashamed of themselves. Who is responsible for such predicament? The most obvious answer is the government in power and its predecessors, who have been at the helm of affairs since the Jan Aandolan of 2006 AD. Had they been sincere to their duties to establish transitional justice mechanism in time and bring all the perpetrators who committed crimes during conflict era to justice such untoward incident could have been avoided.

Before delving into what went so wrong to prompt a traditional friend like the United Kingdom to order the arrest of a serving Nepal Army senior officer, who is now deployed in UN mission in Sudan as an observer, a brief introduction to what obligations are put by the above mentioned UN Convention against Torture upon its parties including Nepal looks relevant. Nepal has been a state party to the UN Convention against Torture since 1994 and consequently she has commitments to fulfill her obligations to the human rights instrument.

Signed in 1984 and brought into force in 1987, the UN Convention against Torture is founded on the Charter Principles and also on the 1975 UN General Assembly Declaration on the Protection of All Persons from being subjected to Torture, and Other Cruel, or Inhuman or Degrading Treatment or Punishment.

Torture has been meant to describe any action by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain, suffering is inflicted, or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity as per the UN Convention against Torture.

Questions arise about the intention of any state parties to the aforementioned convention whether they have been responsible members of the UN if they do not comply with the provisions of the treaty, the basic foundation of which is the Charter itself. Article 55 of the UN Charter obligates the member states to promote respect for, and observance of, human rights and fundamental freedoms.

Furthermore, the Universal Declaration of Human Rights (1948) and International Covenant on Civil and Political Rights (1966) through their Articles 5 and 7 respectively provide that no one shall be subjected to torture, or to cruel, inhuman or degrading treatment or punishment. Flouting the Convention against Torture thus amounts to the violation of the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights.

Is it possible that the government of Nepal remains ignorant of its obligations to all the human rights instruments of which Nepal has been a party? The Nepali authorities claim that a state party’s sovereignty has been encroached by an lawful action against one of its citizens taken on the justifiable grounds of  adherence to the provisions of human rights law that enjoys universal jurisdiction demonstrates silliness.What appears from the behavior of Nepal’s successive governments is that they hardly care for country’s international standing. They very often show reluctance to abide by their commitments, they have made by becoming parties to different UN conventions, to the world community. It is unfortunate that the mandarins of the Ministry of Foreign Affairs have failed to dissuade the emotive political master from handing over the Letter of Protest to a friendly nation, whose arrest of Nepal government officer is in full conformity with the provisions of the law that apply to us as well.

When Nepal is forced to undergo the unending pain of not having a consensus government despite several rounds of presidential calls under Article 38(1) of the Interim Constitution, the apparent tug of war between the governments of Nepal and the United Kingdom could not have occurred at a worse time. Frustratingly, this incident of legal prosecution against a Nepali peacekeeper, who is currently deployed in UN Mission in South Sudan (UNMISS), is likely to create a situation of tussle between Nepal government and the United Nations.

The reason is obvious. The UN Department of Peacekeeping Operations (DPKO) is asking the contributing country about the suitability of latter’s peacekeeper to serve in the mission, who presumably had dubious background of committing torture crimes when the nation was mired in conflict. Indications suggest that the jailed peacekeeper may face repatriation from the Sudan mission. The repatriation of major Niranjan Basnet from Chad mission in 2009 alleged to have committed torture crime in conflict time has still reverberations in Nepal Army.

Understandably, the articulation by the Deputy Prime Minister and Foreign Minister for safeguarding country’s sovereignty is contextual, however, is he really listening to the warning that has been signaled by the arrest case on violation of human rights. His government envoy in Geneva might have struggled to convince the audience in the Human Rights Council after the issuance of October 9, 2012 Nepal Country Report from the Office of the UN High Commissioner for Human Rights. None will find him credible in his defense of a government action in fulfilling its human rights obligations against the background of a trial by a civilian court in London of a serving Nepal Army officer on charges of committing torture crimes.

The Nepal Country Report quotes the chief of the Asian Pacific and Middle East and North Africa branch of the UN Human Rights Office, Hanny Megally, who has said “According to the documents examined in the course of compiling this report, it is reasonable to suspect that up to 9000 serious human rights or international humanitarian law violations may have been committed during the decade-long conflict, however, at the time of writing this report, no one in Nepal has been prosecuted in a civilian court for a serious conflict-related crime”.

Was that not a serious allegation? Repeated statements by the Nepali government representatives in Geneva and elsewhere that transitional justice mechanism will be in place soon have sounded hollow. More annoyingly, the assertion by the government that an appropriate action has already been taken against the arrested officer as per the law of the land has exposed the falsehood to its fullest extent. This has been contradicted by a news item of Kantipur Daily of January 5. 2013. It narrates the Kapilbastu District court proceedings and the final verdict concerning the torture and claim of reparations by one of the victims of inhuman treatment. Had that verdict been implemented, the NGO, which seemingly filed the case before the court in London would not have found the justifiable ground for petition.

In this case either the government has lied to the international community by telling that the court’s verdict was upheld or misled the UN in hiding the fact that the said observer had been charged by the civilian court on human rights abuses. The government of Nepal has made a blunder, which has been made public.

Ironically, the government envoy based in London, where a national crisis arose necessitating diplomatic intervention, was busy celebrating New Year in Europe until he was instructed to report back to his place of assignment on Monday, January 8 and by then a lot of damage has been done to Nepal-Britain relations. Had he been sensitive to his high responsibilities, he could have rushed back to London  and advise the headquarters timely and prudently as the news of colonel’s arrest by the police had already splashed by January 3. With such irresponsible diplomats on the ground and inexperienced leadership at Kathmandu, our capacity to conduct foreign relations has remained questionable.

The final outcome of the hearings of the court in London will not be known until January 24 till when the officer has been remanded to judicial custody as Nepali authorities failed miserably to obtain his release on bail. The arrest is a bad omen for Nepal at a time when she has been disappointed lately in having some of its most capable generals denied force commandership year after year. Will the new Army Chief be pro active in this regard too?