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?

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