Kathmandu School of Law Review

P-ISSN : 2091-2110, E-ISSN : 2773-8159, DOI : 10.46985, Publisher : Kathmandu School of Law, Nepal
Annual flagship journal of Kathmandu School of Law, Nepal

Volume 7, Issue 2, November 2019
Articles

Gurkha's Quest for Justice: Possible Remedies for Gurkhas under International Human Rights System

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  • Geeta Pathak Sangroula
Geeta Pathak Sangroula
Professor, International Human Rights Law and International Humanitarian Law, Kathmandu School of Law
DOI: https://doi.org/10.46985/kslr.v7i2.1462

Published 2021-03-08

How to Cite

Sangroula, G. P. . (2021). Gurkha’s Quest for Justice: Possible Remedies for Gurkhas under International Human Rights System. Kathmandu School of Law Review, 7(2), 14–36. https://doi.org/10.46985/kslr.v7i2.1462
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Abstract

There is a 205-year long history of Gurkha’s entanglement with the British. In 1816, the British East India Company defeated Nepal in the Anglo-Nepalese war. Dominant narratives of this history suggests that the British were impressed by the war-fighting capabilities and loyalty of the Gurkhas, and recruited them- not as mercenaries but part of their army- to fight in the World Wars, to maintain imperial administration in British India, Burma, Malaya, Singapore, and Hong Kong. After the 1947 Tripartite Agreement between India, Nepal, and Britain, Gurkha soldiers were recruited annually in both British and Indian armies. For decades, the Gurkhas have carried out a movement seeking equal pay and pension in comparison to their British counterpart. After a long struggle, their movement reached the European Court of Human Rights wherein the Court did not find a violation of the European Convention regarding the differential treatment of Gurkha soldiers. The paper, briefly subscribes to the available literatures about the magnitude of problems and the status of Nepali Gurkhas in the British Army, including an overview of the commitments and obligation of United Kingdom towards human rights. The paper fills the scholarly gap by taking international human rights as an analytical framework in approaching the Gurkhas’ issue. In making a case for possible remedies, Gurkhas as ‘rightsholders’ is proposed as a suitable frame. It concludes with recommendations, grounded in international human rights law, as a possible remedial mechanism for the Gurkhas — in their quest of justice.

"We never got equal terms and pay, and we are not even bothered about that. What we are seeking is justice for our pensions, getting equal to what the British get, according to the service rendered." (Retired major Tikendra Dal Dewan)

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References

  1. Tikendra Dal Dewan served 31 years in the Gurkhas. He is now in British Gurkha Welfare Society (BGWS), see for detail, Ram Barker, ‘Gurkha Veterans for better pensions despite Government top-up’, The Telegraph, 18 March 2019, available at https://www.telegraph.co.uk/pensions-retirement/news/ gurkha-veterans-battling-better-pensions-despite-government/, accessed on 31 October 2019.
  2. The term ‘Gurkha’ derives from the place name of Gorkha, one of the hilly Districts of Nepal. See for detail, ‘Lionel Caplan, ‘Bravest of the Brave’: Representations of ‘The Gurkha’ in British Military Writings’, School of Oriental and African Studies, Cambridge University Press, 1991, p. 571.
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  9. TPA 1947, Annexure III, Section G, art. 1.
  10. Protocol 1 of 1977 Additional to the 1949 Geneva Conventions’ (not yet ratified by the United Kingdom) contains the only internationally agreed definition of a ‘mercenary’. This definition excludes anyone who “is a member of the Armed Forces of a party to the conflict”. See for detail, https://www.gurkhabde.com/gurkhas-and-the-term-mercenary/, accessed on 31 October 2019.
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  13. Ibid, Executive Summary, para.4.
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  64. See the ILO database at www.ilo.org.
  65. Discrimination (Employment and Occupation) Convention, 1958 (No. 111), art. 1(b).
  66. Ibid.
  67. C169 - Indigenous and Tribal Peoples Convention, 1989 (No. 169), Nepal has ratified this Convention but Britain has not ratified.
  68. Article 6 of the UDHR and Article 16 of the ICCPR guarantee for the ‘recognition as a person before the law’.
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  97. Anil Giri & Nabin Pokhrel, ‘Retired British Gurkhas hope Boris Johnson will work in their favour’, Kathmandu Post, 28 July 2019, p. 4.
  98. Ibid.
  99. See for detail at The Telegraph, ‘Daughter of British Army Gurkha veteran faces being separated from her father in deportation legal battle’, 20 July 2019, available at https://www.telegraph.co.uk/news/2019/07/20/court-rules-gurkha-veterans-daughter-not-allowed-join-uk/, accessed on 4 November, 2019.
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