Erga Omnes

If two wrongs don’t make a right, one right isn’t always enough.  The UK’s recent use of universal jurisdiction against a Nepali colonel, for torture committed during his country’s civil war in 2005,  has received a great deal of attention.  Kumar Lama, who was serving on a peacekeeping mission in southern Sudan, was on holiday with his family at their home in East Sussex when he was arrested.  Almost two months after the unexpected arrest, a British court on March 1st agreed to release Lama on bail. 

Human rights activists, inside and outside Nepal, point to the incidence as a sign of hope and progress—transitional justice, at long last.  Nepal’s government, in contrast, opposed the arrest, labeling it an incursion into its internal affairs.  Despite the loud resistance, the government promptly agreed to resume implementing the peace process, including steps towards a truth and reconciliation commission.

For advocates of universal jurisdiction, these are all noteworthy developments; and they should be.  But what of the British government’s refusal to prosecute other rights violators?  Let’s not forget that states use universal jurisdiction selectively, reflecting the primacy of foreign policy in international law.

Human rights advocates must celebrate a progress without illusions.  As Seyla Benhabib says of cosmopolitanism more generally, the human rights field is one of “unresolved contrasts”:

between particularistic attachments and universalist aspirations; between the multiplicity of human laws and the ideal of a rational order that would be common to all human cities…  Cosmopolitans become dead souls only if they forget these tensions and contrasts and embrace instead a Pollyannaish, ceaseless affirmation of global oneness and unity. (Dignity in Adversity: Human Rights in Troubled Times, 2011), 2.

In the world of complex motives, Lama’s arrest sends an important signal about the power (and politics) of universal jurisdiction.  So too does the Nepali government’s choice of legal team: the same lawyers who defended Augusto Pinochet are now representing Lama.