JAN 10 - Ours is not a time when impunity on personal liability for international crime should be veiled under the pretext of diplomatic immunity. The development of international criminal law inspired by the aspirations of human rights does not tolerate contempt of human rights. Acts of a government or its officials that are in violation of the peremptory norms of international criminal law enforceable with universal jurisdiction cannot invoke the privilege of diplomatic immunity.
In recent days, the Nepal government, and politicians are in denial of the self-evident truth on human rights by ignoring the abuses that took place during the 10 years of conflict. A case in point: the recent arrest of the Nepal Army officer, Col Kumar Lama, on a charge of torture in the UK. Col Lama has been charged with intentionally inflicting severe pain or suffering to individuals in two separate incidents between April and May 2005 at the Gorusinghe Army Barracks in Kapilvastu. The public seems happy with the arrest, but the government and political leaders are protesting against the arrest as an assault on Nepal’s sovereignty, a violation of the international law of diplomatic immunity (as a UN peace keeper), and an act in contravention of the general principles of international law.
Are the arguments of the Nepal government and political leaders used in denouncing the arrest of Col Lama justifiable under the international law? The simple and plain conclusion is no. Instead, their arguments undermine the value of human rights, and the rule of law. Let me support this conclusion with the following.
First, both Nepal (accession on May 14, 1991) and the United Kingdom (ratified December 8, 1988) are parties to the Convention against Torture (CAT), 1984, which entered into force from June, 1987. Article 5(2) of the CAT requires the State Parties to create a universal jurisdiction in which they should try and penalise acts of torture taken place anywhere in the world. The presence of any alleged offender in the territory of a Party to the CAT requires them to arrest the alleged offender and start prosecution. Thus, the arrest of Col Lama falls under the premise and requirement of the CAT Article 5(2).
Second, Article 29 of the Vienna Convention on Diplomatic Relations, 1961, and Article 31 of its Optional Protocol provide diplomatic immunity from arrest and detention. The contextual question is: has the UK government violated diplomatic immunities in the case Col Lama? This question should be examined in the light of Articles 1, 2 & 4 of the CAT, and the legal principles established under the international law, including in the famous case of General Pinochet.
CAT Article 2.2 denies any ‘circumstances whatsoever’ to be invoked as a justification for torture. In other words, the veil of state power, office, or position cannot be invoked to escape from the charge of torture. This is made clearer by CAT Article 2.3, which forbids the exoneration of any public officer for an act of torture even on the grounds of following superior’s order. What is more, the offence of torture itself is the product of the abuse of public office or authority. Article 1 of the CAT defines the crime of torture as the severe pain or suffering inflicted by a public officer. It is clear that the CAT does not discount any public officer from the charge of torture on any grounds, including diplomatic immunity.
The development of the CAT as the segment of the principles of jus cogens or peremptory norms under international law has special significance. The jus cogens principle has institutionalised the CAT as fundamental in international law, and thus obligations arising from it cannot be set aside on any grounds. Especially, the post-war development of international law has featured torture as a crime against humanity. The International Criminal Tribunal for the former Yugoslavia (ICTY) has clearly recognised torture as a peremptory norm. As a part of jus cogens, the CAT enjoys a higher place in the hierarchy of international law than any treaty or even customary rules.
Pinochet’s case, decided by the House of Lords of the UK in 1999, explains the relationships between the CAT, diplomatic immunity, and domestic law of the UK. This landmark decision has clearly established a personal liability for a public official of any rank or nationality violating the CAT. The House of Lords observes that, “… it would run completely contrary to the intention of the Convention if there was anybody who could be exempt from guilt.” In short, the Pinochet principle is significant in establishing that anyone who is suspected of torture could be accused under the universal jurisdiction of the Convention. No negotiators ever opposed the inclusion of the principle of universal jurisdiction even during the negotiations. Now, as a party to the Convention, the Government of Nepal cannot simply decline the application of its universal jurisdiction.
Also, the arrest of Col Lama is authorised by Section 134 of the Criminal Justice Act, 1988 of the UK, which fulfills the country’s obligation to have effective legislative, administrative, and judicial measures in place to prevent the acts of torture.
An official, including a head of state or head of government, is liable to prosecution anywhere in the world as long as the country is party to the Convention. The concern for Nepal’s government, at this point, should not be in engaging in arguments that are contrary to international law. It would instead be better if the government ensured that no human rights violation went unpunished. Still, Nepal’s government has every responsibility to ensure that Col Lama gets fair trial. As they say, until proven guilty, you remain innocent.
In recent days, the Nepal government, and politicians are in denial of the self-evident truth on human rights by ignoring the abuses that took place during the 10 years of conflict. A case in point: the recent arrest of the Nepal Army officer, Col Kumar Lama, on a charge of torture in the UK. Col Lama has been charged with intentionally inflicting severe pain or suffering to individuals in two separate incidents between April and May 2005 at the Gorusinghe Army Barracks in Kapilvastu. The public seems happy with the arrest, but the government and political leaders are protesting against the arrest as an assault on Nepal’s sovereignty, a violation of the international law of diplomatic immunity (as a UN peace keeper), and an act in contravention of the general principles of international law.
Are the arguments of the Nepal government and political leaders used in denouncing the arrest of Col Lama justifiable under the international law? The simple and plain conclusion is no. Instead, their arguments undermine the value of human rights, and the rule of law. Let me support this conclusion with the following.
First, both Nepal (accession on May 14, 1991) and the United Kingdom (ratified December 8, 1988) are parties to the Convention against Torture (CAT), 1984, which entered into force from June, 1987. Article 5(2) of the CAT requires the State Parties to create a universal jurisdiction in which they should try and penalise acts of torture taken place anywhere in the world. The presence of any alleged offender in the territory of a Party to the CAT requires them to arrest the alleged offender and start prosecution. Thus, the arrest of Col Lama falls under the premise and requirement of the CAT Article 5(2).
Second, Article 29 of the Vienna Convention on Diplomatic Relations, 1961, and Article 31 of its Optional Protocol provide diplomatic immunity from arrest and detention. The contextual question is: has the UK government violated diplomatic immunities in the case Col Lama? This question should be examined in the light of Articles 1, 2 & 4 of the CAT, and the legal principles established under the international law, including in the famous case of General Pinochet.
CAT Article 2.2 denies any ‘circumstances whatsoever’ to be invoked as a justification for torture. In other words, the veil of state power, office, or position cannot be invoked to escape from the charge of torture. This is made clearer by CAT Article 2.3, which forbids the exoneration of any public officer for an act of torture even on the grounds of following superior’s order. What is more, the offence of torture itself is the product of the abuse of public office or authority. Article 1 of the CAT defines the crime of torture as the severe pain or suffering inflicted by a public officer. It is clear that the CAT does not discount any public officer from the charge of torture on any grounds, including diplomatic immunity.
The development of the CAT as the segment of the principles of jus cogens or peremptory norms under international law has special significance. The jus cogens principle has institutionalised the CAT as fundamental in international law, and thus obligations arising from it cannot be set aside on any grounds. Especially, the post-war development of international law has featured torture as a crime against humanity. The International Criminal Tribunal for the former Yugoslavia (ICTY) has clearly recognised torture as a peremptory norm. As a part of jus cogens, the CAT enjoys a higher place in the hierarchy of international law than any treaty or even customary rules.
Pinochet’s case, decided by the House of Lords of the UK in 1999, explains the relationships between the CAT, diplomatic immunity, and domestic law of the UK. This landmark decision has clearly established a personal liability for a public official of any rank or nationality violating the CAT. The House of Lords observes that, “… it would run completely contrary to the intention of the Convention if there was anybody who could be exempt from guilt.” In short, the Pinochet principle is significant in establishing that anyone who is suspected of torture could be accused under the universal jurisdiction of the Convention. No negotiators ever opposed the inclusion of the principle of universal jurisdiction even during the negotiations. Now, as a party to the Convention, the Government of Nepal cannot simply decline the application of its universal jurisdiction.
Also, the arrest of Col Lama is authorised by Section 134 of the Criminal Justice Act, 1988 of the UK, which fulfills the country’s obligation to have effective legislative, administrative, and judicial measures in place to prevent the acts of torture.
An official, including a head of state or head of government, is liable to prosecution anywhere in the world as long as the country is party to the Convention. The concern for Nepal’s government, at this point, should not be in engaging in arguments that are contrary to international law. It would instead be better if the government ensured that no human rights violation went unpunished. Still, Nepal’s government has every responsibility to ensure that Col Lama gets fair trial. As they say, until proven guilty, you remain innocent.
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