Questions raised by Col Lama’s Trial
The case of Kumar Lama is a significant case from various perspectives. Lama is the first person to be tried outside Nepal for crimes committed during the Nepalese civil war that lasted from 1996-2006. Furthermore, it is the first case in Nepal’s history that a serving security officer was arrested in a foreign land. The case is a rare instance of an arrest of the member of the security force in an alleged human rights violation case under universal jurisdiction in the UK. Since the case began, it has drawn huge media attention both home and abroad. The trial ended on September 6, with Lama’s acquittal. But it has raised some serious question that cannot be overlooked.
Firstly, the decision to acquit Lama came with the decision of the Prosecution Service stating, as reported by The Argus, "that it would offer no further evidence against Lama" since they no longer see a realistic prospect of conviction in the case. Was the case appropriately researched and documented? It is the fundamental duty of the prosecution office to evaluate the evidence relating to the cases beforehand and determine the course of action and presentation of the case in the court. However, in this case, the office of prosecution services decided that there was no possibility of conviction. This raises a question regarding the preparation of the case and the evidence prosecution office relied on to establish its charges. What is the underlying reason for prosecution services to reach to that conclusion? In a significant case like this, where prosecution and the Human Rights Organization well prepared, and had evidence to establish the charges against Lama as required by law? Do the prosecution services and the organization involved owe an answer to such outcome of the case?
Secondly, the defense lawyer Jonathan Grimes stated (as reported by The Guardian) that “The reliance by British police and the CPS on evidence gathered by a human rights organization, Advocacy Forum, has proven to be a mistake.” Has the organization representing the victims, Advocacy Forum committed mistakes that cost the trail, as alleged? If Grimes’ statement is not ipso facto dismissed as speculative and baseless, does this allegation raises questions on the preparation made for the case by the human rights organization? Did the Forum do enough to represent the case, provide the evidence, and facilitate the prosecution services? The lessons learned in this case process offer rare insight on how human rights organization can better represent the interest of victims in the trial.
Thirdly, should human rights organizations pursuing cases on behalf of victims weigh the merit of the case beforehand using the available expertise before resorting to legal action? The Court relies on concrete evidence while deciding a case. The case can be won or lost on the ground of jurisdiction or on the ground of merit. In this particular case, was the merit of the case and available evidence convincing enough to establish the charges? Or was it convincing enough to convince the prosecution service to pursue the trail with full effort? As the trial's conclusion suggests that there was a lack of material evidence in the case, this raises a doubt that the prosecution service was initially convinced that conviction was possible in the case.
In the legal world, the “benefit of the doubt” is a basic principle of the criminal law with universal acceptance. The alleged charges must be established beyond reasonable doubt. This principle in translated in all legal documents and is accepted principle in all jurisdiction. “The benefit of doubt” always plays in favor of the alleged. Hence, the lack of convincing evidence leads to the acquittal of Colonel Lama. Does the organization representing the victim in cases like this need to assess the case in realist manner before dedicating their scarce resources and time in the case? I am in no way, negating the importance and significance of the case but does organization have to be more cautious on the merit of the case beforehand? This is more of a strategic question that needs to be answered by the organizations working on issues like this.
Fourthly, if the court decision was to reaffirm that universal jurisdiction works, is it worth three and half years of legal proceeding and one million pounds? This is the first case of exercise of Universal Jurisdiction derived from Nepali case. However, this is not the first case of exercise of the principle of universal jurisdiction and obviously is not going to be the last. Following the court verdict, the founder of the Advocacy Forum, Mandira Sharma commented that “Regardless of the decision not to re-prosecute Mr Lama, the case has already established that the door of universal jurisdiction for the victims of torture and other gross violations is open in the UK and beyond.” However, this prospect has always been open and is not a resultant development arising out of the case. After more than three and half years of litigation and expense of 1 million pound in the case, if the acquittal is merely to confirm that universal jurisdiction actually works and perpetrators might be prosecuted (if enough evidence to establish the charge is available), we need to ask our self, was the win worth the effort?
Lastly, how efficient can we consider the trial be when all the evidences and witnesses are in Nepal and speak the local language? Was the case lost due to such complexities or due to the merit of the case itself? The case also has brought one of the inherent challenges to the exercise of universal jurisdiction. The judge, Mr Justice Sweeney, regarding the case stated that it was “relatively rare for so many witnesses to require interpreters and indeed for so many problems to arise in one case”. This is not an unforeseeable challenge in the case being heard under the principle of universal jurisdiction. This case has reflected the need of preparedness required in the cases like this. Further, both the aspect of “jurisdiction” and the “merit” of the case must be evaluated and assessed in cases like this. The mere exercise of jurisdiction without required merit of the case can only play the role of deterrence on a short-term basis. Colonel Lama’s case has reminded the legal minds to look at both the ‘jurisdiction’ as well as ‘merit’ of the case. If the exercise of jurisdiction is not the end we are seeking, we need to focus on the merit of the case. This shall avoid similar hitch in the prosecution in other cases, which concluded Lama’s trial.
The decision of the court ought to be respected by all parties involved. A critical appraisal is necessary in cases like this. This case and its conclusion should steer discourse on various issues of universal jurisdiction and related issues. As an academic involved in human rights domain, I see the legacy of the case to lie in having attained what it did given the underlying challenges. The effort of all those involved is a mammoth one, which should be commended.
(Ghimire is an advocate with specialization in human rights practice. He is also involved in teaching human rights law.)
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