The trial of Nepal Army Colonel Kumar Lama on two counts of torture, which began at London’s Old Bailey on February 27, offers grounds for optimism. First, Lama’s prosecution signifies the willingness of the U.K. to make good on legal obligations related to the Convention Against Torture (CAT). Second, along with the February 26 ruling of Nepal’s Supreme Court, the trial will reinforce the need for transitional justice measures that go beyond Nepal’s current pro-amnesty Truth and Reconciliation Act. But even as the colonel’s trial will strengthen international law and enhance accountability, more probing questions on the role British agencies played in facilitating acts of torture in Nepal demand attention.
Colonel Kumar Lama, a married father of two then on sabbatical from UN peacekeeping duties, was arrested on January 3, 2013 by officers of Britain’s Metropolitan Police at St Leonards-on-sea, East Sussex. Two days later, at the behest of Attorney General Dominic Grieve, the colonel was charged under section 134 of the UK’s Criminal Justice Act 1988.
In reaction to the arrest, the Kathmandu establishment was unequivocal. The then Foreign Minister Narayan Kaji Shrestha claimed the action was “against the general principle of international law, and jurisdiction of a foreign country.” Prime Minister Baburam Bhattarai, in a letter to counterpart David Cameron, said the case could have “serious repercussions” for the peace process. Human rights activists, meanwhile, applauded the arrest and decision to prosecute as a necessary intervention.
While legal action against Lama is, as U.K. officials claim, in keeping with British law and consistent with the U.K.’s obligations under the CAT, the British government’s recent engagement in the country makes Lama’s case of special interest.
During Nepal’s decade-long civil war, the U.K. was one of the largest suppliers of military and logistical aid to the Royal Nepal Army (RNA). British officials were keen to advertise the U.K.’s help as “non-lethal” in nature. In 2012, then-British Ambassador John Tucknott was an outspoken critic of cross-party plans to set up a Truth and Reconciliation Commission with amnesty provisions, and used British aid as a point of leverage. After the Constituent Assembly was dissolved in the middle of that year, Britain’s decision to arrest and prosecute Lama in early 2013 provided a clear message that, whatever the transitional scenario, war crimes must be dealt with in a manner consistent with “international standards.”
Despite the Attorney General’s noble intent, between the time of the colonel’s arrest and his appearance in court, damning allegations of the role of British agencies in assisting acts of torture emerged. As documented by journalist Thomas Bell, throughout the four-year course of Operation Mustang – an MI6-led counter-insurgency operation aimed at enhancing intelligence capabilities – British resources played a fundamental role in facilitating what the UN Office of the High Commissioner for Human Rights has called “routine” and “systematic” torture carried out by the RNA.
Since 2002, the operation, allegedly signed off on by Foreign Secretary Jack Straw, led to the arrest and likely torture of dozens of suspected Maoist cadres at a time when Nepal was “said to have the highest rate of ‘disappearance’ in state custody in the world.”
Operation Mustang continued even after the royal coup of 2005 demolished any pretence the monarch had to respecting human rights and the rule of law. India was the first to formally cut-off military assistance, followed, in word, by Britain. (Much to the chagrin of the U.S. embassy in Kathmandu, congressional pressure effectively cancelled military aid to the regime, though a formal suspension was never announced.) Throughout King Gyanendra’s brutal 14-month period of direct rule, Maoist cadres continued to be arrested, detained and tortured, possibly with the connivance of British operatives and resources. The operation ended with the signing of the Comprehensive Peace Agreement in November 2006.
To be sure, the charges against Colonel Lama are related to specific incidents allegedly committed in 2005 at Gorusinghe Barracks in Nepal’s west, and may have little or no relation to Operation Mustang or the actions of British agencies and actors. The details of many wartime atrocities – whether they were systemic or otherwise, and the precise role of external forces in individual cases – remain, for the most part, elusive. But just as Lama’s trial will put immense pressure on Nepal to carry out a viable post-conflict truth and reconciliation process as a means of mitigating further arrests, it will become increasingly difficult for U.K. authorities and the British public to ignore the role of its own agencies in rights violations committed during the war.
According to the 2013 Gibson Inquiry Report, an investigation of Britain’s role in the improper treatment of detainees in third countries since 9/11, prior to March 2005 there was no consistent policy on the obligations of British officers and the provision of intelligence to foreign agencies implicated in the abuse of detainees. In November 2006 (ironically, the same month Operation Mustang ended), these obligations were clarified, while in 2010, a ‘consolidated guidance’ on detainee treatment was issued. For the most part, Operation Mustang existed in a legal void.
Changes to Britain’s justice system will, to some extent, protect these failures. The Justice and Security Act 2013, for example, allows authorities to present classified evidence, which they need not disclose publicly, in “security sensitive” civil cases. It also upholds the “principle of control” by which intelligence agencies effectively “own” information and may deny its disclosure – even in courts of law – in countries with which they have shared it. These disclosures were pivotal in establishing the extent to which British authorities were complicit in the torture of British resident Binyam Mohamed while in the care of the country’s allies.
Whatever Britain’s failures, they need not impede the legitimacy of current proceedings. Rather than a high-level sting, legal action against the colonel is the result of transnational networks of activists and victims’ rights groups working to combat impunity and enforce the rule of law. U.K. authorities were made aware of Lama’s travel plans and the evidence against him by the Nepal-based anti-impunity NGO Advocacy Forum, working jointly with British law firm Hickman & Rose. While further empowering victims’ groups and anti-impunity activists, Lama’s prosecution reinforces the country’s commitment to international law, and acts as a cogent reminder of states’ obligations under the CAT.
That the appearance of a Nepal Army colonel at London’s Old Bailey rankles post-colonial sensibilities and leads some to resist what they perceive as interference in Nepal’s transitional process, is understandable. But a more nuanced response is required. If the trial of Colonel Lama serves its purpose and provides justice to alleged torture victims while compelling Nepal to deal with war crimes effectively, we will likely find out more about the extent to which external forces colluded with, and engaged in, rights abuses. Enforcing the rule of law will result in greater transparency and accountability, and enhance the tools by which justice may be sought. This can only be a good thing.
Michael Vurens van Es (@mickvve) is a Kathmandu-based journalist. His work has appeared in Foreign Policy, World Politics Review and War on the Rocks among others.