The ‘Mistrial’ of Kumar Lama: Problematizing Universal Jurisdiction

‘We know the grave can cry out after 50 years’. Kumar Lama, a colonel in the Royal Nepalese Army (RNA), sat in his hut in Gorusinghe Barracks opposite Amnesty official Daniel Alderman in May 2005. The Amnesty visit was prompted by on-going reports of serious human rights violations in the course of the people’s war between the CPN (Maoist) and the RNA. Alderman described the colonel as ‘a man of the world’, friendly and forthcoming, who clearly understood the laws of war and (as his comment to Alderman reflected) the possibility of bringing violators to justice, even many years later. In 2009, years after his visit to Nepal, Alderman received an email with the title ‘From a Nepalese friend’. The email was from Lama, then doing an MA in International Relations at Sussex University, inquiring about an Amnesty research job on Nepal, ‘a job’, Lama wrote confidently, ‘I could easily do’.

Colonel Lama was never offered the Amnesty job. In January 2013, he was arrested at his home in East Sussex and charged with two counts of torture under section 134 of the Criminal Justice Act, relating to incidents that had allegedly occurred between April and May 2005 at the Gorusinghe Barracks. The Act vested British courts with ‘universal jurisdiction’ over the offence of torture, meaning the offence could be prosecuted in the UK whatever the offender’s nationality and wherever the crime was committed. The arrest was the result of a sensible wager on the UK’s part, bargaining relatively low diplomatic cost for diplomatic credit in fulfilling its obligation under the Torture Convention to prosecute those suspected of torture found on its territory. While Nepal reacted angrily to the arrest, this served merely to expose the unholy (and inverse) relationship between justice and power. The most the Nepalese government could do in reaction to Lama’s arrest was to reject the offer of RAF chinook helicopters to help in the relief effort following the devastating earthquake in Nepal in April 2015.

The trial of Kumar Lama took place in the Old Bailey from June to July 2016. It can hardly be said there was a public appetite for the trial. Public and press galleries were consistently empty – I often sat there alone with Lama’s wife and daughters (disrupted occasionally by bored and bemused school groups, interested pensioners or tourists who had taken a wrong turn in the Lonely Planet guide). The Lama trial proceeded, like many trials in the Old Bailey, as something of a private conversation between judge and lawyers, upon which the public gallery were intrusive eavesdroppers. Trial observation is not easy in a system increasingly geared to see public access as less an aspiration of than a threat to the justice system. Even the jury seemed cast in the role of vexatious bystanders in a trial in which they were ultimately expected to be judges of facts affecting a family, victims, a country in which they had no apparent interest and of which they had no apparent knowledge.

Unreported, unobserved, the trial in Court 13 of the Old Bailey might well have passed through the factory of domestic justice like so many incidents of shoplifting, drug possession or gangland violence. Why, after all, should this trial be any different? One reason to care about this question is that universal jurisdiction is regarded in some quarters as the inevitable endpoint of the international criminal law project. According to the master narrative of international criminal justice, the future of international criminal law is domestic. As the first Prosecutor to the International Criminal Court declared in 2003, ‘the absence of trials before [the ICC], as a consequence of the regular functioning of national institutions, would be a major success.’ In her book, Kathryn Sikkink talks about a ‘justice cascade’, which starts as a small stream, but catches on suddenly, sweeping along many actors in its wake. The direction of the tide does not suit everyone. Referring to universal jurisdiction, Henry Kissinger reflected with dismay (and some self-interest) that ‘in less than a decade, an unprecedented concept has emerged to submit international politics to judicial procedures’, a concept that ‘has spread with extraordinary speed and has not been subjected to systematic debate’.

Universal jurisdiction advocates the trial of extraordinary crimes through ordinary means. Yet the Lama trial demonstrated that much about international criminal law can be lost through recourse to the ordinary. There is a fundamental inconsistency at the heart of such trials where a domestic court is re-imagined as an organ of international criminal justice. In a domestic criminal court, the question of the individual’s guilt is quite simply the only thing at stake. In this process, the relationship between justice and truth can sometimes seem contrapuntal. Domestic criminal trials build in a philosophical fault-line between original truth and juridical truth, where the latter is a narrow by-product of a judicial process focused on establishing the guilt of the accused beyond reasonable doubt. Domestic criminal lawyers must necessarily work within the confines of legal narratives chosen for their legal strength and relevance, which may mean excluding significant events. Doris Lessing had a point when she remarked on the paradox that fiction is often the best way of conveying truth. Literature, film, even investigative journalism has proved its superior capacity to reach the ‘deeper strata of truth’ described by Werner Herzog.

The DNA of international criminal justice is intrinsically different from that of domestic criminal justice. Here, the quest for truth must be broader, contextualized and, importantly, publicized. When forced into comparative exercises, it can feel at times like relating a kettle to a steam engine. While both are powered by criminal law, everyday criminal justice differs in important respects from international criminal trials intended to play a role in shifting or recalibrating entire societies. As Hannah Arendt noted in her book on the Eichmann trial, the point of international criminal law is that ‘an altogether different order is broken and an altogether different community is violated’. The objectives of international criminal justice are not fulfilled by the mere conviction of an individual, where focus on a single perpetrator – a bad apple – can sometimes become a way of avoiding rather than securing justice. The focus of international criminal law is less the individual accused than the authority, institution, government or even society the individual represents. International criminal trials work not merely at the level of an individual, but aim to make it more difficult for whole societies to take refuge in denial.

The imperfect congruence between domestic and international criminal justice revealed itself day after day in the Lama trial. The trial was only the third universal jurisdiction trial in UK history. It was very nearly lost in translation. The first trial collapsed in March 2015 when interpreter after interpreter proved their ineptitude in the difficult task of court translation, an essential aspect of a trial scheduled to include testimony from twenty Nepalese witnesses. It is an aspect for which those involved in the Lama trial were seemingly under-prepared. Ultimately, the prosecutor in the first trial called for the jury to be discharged fearing that the constant interruptions and adjournments had led the jury to become disconnected. If this wasn’t apparent from the jurors’ glazed expressions in court each day, it could be gleaned from the fact that only one question was raised by the jury over the duration of the first trial – by a juror concerned about the fate of a cruise trip she wished to plan in April.

Both trials were an insight as to the important work done by narrative in criminal trials, at times on account of its absence. Experimental research has yielded the insight that jurors do not generally estimate probabilities of discrete elements when determining verdicts, but rather draw conclusions based on whether information assembles into plausible narratives. The crime of torture poses unique challenges in this regard where evidence of key events is inherently scarce. Perpetrators are almost never a source of evidence, by definition operating within state structures with a distinctive capacity to control access to evidence. The victim’s reliability is relatively easy to disassemble given torture’s relationship to memory has been proven to be a corrosive one. In the Lama trial, the regular refrain of ‘I don’t remember’ from the key prosecution witness was clearly frustrating to prosecutor, defence, judge and jury alike. The witness could not remember whether he had been dragged behind a car, whether he had been pecked by a bird until it drew blood, whether he had water poured up his nose or whether his legs had been cut by razor blades and chilli and salt rubbed into the wounds, though he had made such allegations in earlier witness statements. When asked if he had had a heavy log rolled over him, he said ‘I remember the sensation. It was heavy. I can’t remember if it happened’.

As the Latin-American experience shows, courts in such trials must become accustomed to rebuilding the truth using circumstantial evidence. The task becomes more complicated where domestic juries are involved. As the judge explained to the jury in the Lama trial, ‘your role is to bring your joint experience of life and your common sense’ to judgment of the facts. There was little that was joint or common between the jury’s experience and that of a Nepalese colonel operating at the height of a civil war. The role of bridging the significant political, social and cultural gaps was instead given over to expert witnesses. An academic expert marched the jury through Rajas (kings) and Ranas (Prime Ministers), an absolutist monarchy and the declaration of a state of emergency. The word ‘terrorist’ was used on several occasions when discussing the Maoist opposition forces. When defence counsel asked the expert whether the Maoists were ‘sort of like Al Qaeda’, this wasn’t contradicted. Defence counsel expertly drew a link between the Maoist insurgency and the contemporary plot-line familiar to the jury in which the RNA were our allies in the ‘war against terror’ and the Maoists became the existential threat to us all.

Wherever you looked in the Lama trial, context was either distorted or deliberately discounted. Consistently with good domestic practice, the judge worked hard to cut away evidence relating to the collective enterprise out of a sense it could obscure the innocence of the individual accused. As a trial observer, it was hard not to be left with the concern that pulling too hard at an individual thread could serve to unravel the tapestry. Circumstantial insights were brushed away or deliberately labelled as irrelevant. On the ninth day of the trial, the doctor that examined the key prosecution witness let slip that he had seen over 400 cases of similar injuries in his medical practice. On the eighteenth day of the trial, Manfred Nowak, former UN Special Rapporteur on Torture, repeated conclusions reached unequivocally in his 2006 UN report that torture was systematically practised in Nepal at the relevant time by the police, the armed police and the Royal Nepalese Army. Details of the torture methods he outlined mirrored precisely the conduct of which the chief prosecution witnesses complained.

The defence called no witnesses, relying instead on good character testimonies from two individuals who knew the accused. The defence strategy was the humanization of Kumar Lama. This was easy to do. A dignified figure sat in the dock. His wife and two daughters regularly sat in the public gallery, the only consistently visible victims of the crime charged. In his closing statement, defence counsel conceded that soldiers commanded by Colonel Lama may have tortured prisoners without his knowledge. However, he was quick to add, ‘there is no such thing in this court as command responsibility’. While under international criminal law, Colonel Lama’s failure to prevent or punish torture by his subordinates would be the basis for conviction, in the domestic setting, his position of leadership was to be the ground for his salvation.

Ultimately, on 6 September 2016, Colonel Lama was cleared of all charges. The jury found Colonel Lama not guilty on one count and failed to reach a verdict on the other. The judge told the jury, almost apologetically, ‘it is relatively rare for so many witnesses to require interpreters and indeed for so many problems to arise in one case’. The defendant’s solicitor announced that he was ‘pleased that Colonel Lama will now be able to return to Nepal and resume his military career’. The draft Anti-Torture bill, registered in the Parliament Secretariat in Nepal immediately after the arrest of Colonel Lama, was left to gather dust, with Colonel Lama’s release described in Nepal as a ‘victory’.

For students of law, the question of a court’s ‘jurisdiction’ can often seem prosaic and technical. However, as scholars such as Shaunnagh Dorsett, Shaun McVeigh and Sundhya Pahuja recognize, in a world of rival jurisdictions, jurisdiction is also a mode of political engagement. Acceptance or dismissal of a case on ‘jurisdictional grounds’ can mask a violent political contest, imposing a particular form of political authority on others or denying recognition to rival claims to authority. In universal jurisdiction trials, the question of jurisdiction is not simply something that can be ‘disposed of’. Rather it is a question that should orient, inform and influence the entire trial and its conduct. All parties to the trial, including authorizing government officials, barristers and domestic judges must take responsibility for the authority claimed in such trials and the normative community it puts into relation. Otherwise, courts such as the Old Bailey risk becoming just another site where – in an age of internationalism – staunch reliance on local road maps results in global disorientation.