As Nepal continues to debate how to deal with the legacy of the internal armed conflict of 1996-2006, the rule of law and transitional justice are of utmost importance in the current setting. This paper aims to find a possible solution to why it is critical that the judiciary is better engaged in Transitional Justice going forward. To that end, the paper explores the non-judicial mechanism as a failed idea in the context of Nepal, the significant impact and importance of the judiciary’s involvement in Transitional Justice, the complementary roles judiciary could provide to the non-judicial mechanisms, and the possible pitfalls of the judiciary in Nepal. The paper analyzes the constructive role played by the judiciary of Nepal to date and the prospect of dealing with the crimes of the past in the future, as well as establishing prosecution as the best possible option for Nepal in the period of transition. The research methodology used is doctrinal, using the study of reports and scholarly articles as a major source of data collection. Various reports published by different Non-Governmental and Governmental organizations have been used for research purposes as well.
Seeing as how the rule of law has been dismantled in this period of conflict, it can be established that judiciary has a better chance of re-establishing the rule of law in Nepal with a primary focus on access to justice through the prosecution. Uncovering the details of the past provides both a primer on what conditions permitted the violations of the rule of law in the past, and a deterrent to would-be human rights abusers of the future. Therefore, examining the crimes of the past via judiciary in the transitional justice scenario could help develop the institutional basis and the cultural norms to support the rule of law in Nepal. However, it is important to be cautious of the possible pitfalls of the judiciary in terms of dealing with the prosecution and its implementation.
Table of Contents
Chapter One: Introduction and Background
1.1. Introduction
1.2. Statement of Purpose
1.3. Literature Review:
1.4. Thesis Statement:
1.5. Limitations of the Study:
1.6. Significance/Implication:
Chapter Two: Overview of the Research Approach
2.1. Research Methodology:
2.2. Research Questions:
2.3. Key Terms and Definitions:
Chapter Three: General Overview on People’s War of Nepal 1996-2006
3.1. Over view of people’s war in Nepal
3.1.1. The Maoist Insurgency (1996-2006):
3.1.2 Cease Fire and Comprehensive Peace Accord:
Chapter Four: The Human Rights Situation during the People’s War
4.1. Major Human Rights violations during people’s war
Chapter Five: The Transitional Justice Mechanism in Nepal and the Contribution of Judiciary
5.1. Post War and Transitional Justice Mechanisms: An Overview
5.1.1. The Mechanisms of Transitional Justice:
5.2. Truth Commissions and Transitional Justice Prospects in Nepal:
5.3. The Pitfalls of Non Judicial Mechanism in Nepal:
5.4. Importance of Judicial Proceedings and International Obligation to be borne by the government of Nepal
5.5. Contribution of judiciary on upholding international obligation and ensuring victims’ access to justice in Nepal:
5.6. The complementary role of judiciary vis-à-vis non judicial mechanisms in Nepal:
5.7. The Possible Pitfalls of Judiciary in Dealing With The Past Crimes and Way Forward:
Chapter 6: Conclusion
6.1. Conclusion
Research Objectives and Themes
This dissertation aims to evaluate the critical role of the Nepalese judiciary in the context of transitional justice following the 1996-2006 internal armed conflict. It investigates why reliance on non-judicial mechanisms, specifically truth commissions, has stalled the pursuit of justice and argues that judicial engagement is essential to address past human rights violations, uphold international obligations, and re-establish the rule of law.
- Evaluation of the limitations inherent in non-judicial transitional justice mechanisms in Nepal.
- Analysis of the judiciary’s contribution to date in filling legislative and institutional gaps regarding transitional justice.
- Examination of the interplay between judicial proceedings and international legal obligations.
- Assessment of the potential for a complementary relationship between truth commissions and the judiciary.
- Identification of obstacles to effective judicial intervention in post-conflict transitional periods.
Excerpt from the Book
5.1. Post War and Transitional Justice Mechanisms: An Overview
Transitional justice refers to the processes and mechanisms by which a society in transition addresses past large-scale human rights violations in order to lay a foundation for sustained peace, democracy, and justice. Mostly the society in transition is usually one going from conflict or authoritarian rule (during which human rights violations occurred) to the ultimate goals of establishing and strengthening peace or democracy.
Attracting the most attention on a global scale are commissions set up following internal armed conflicts, particularly since the early 1990s. The typically non-judicial role of these inquiries, often termed “truth commissions”, is to deliver a combination of truth about widespread harms and underlying causes, recommendations regarding reparations for victims, and the production of any evidence of crimes committed that merit follow-up by the criminal justice system under the norms of applicable domestic and international law.
Truth Commission aim to find out the truth by documenting not individual cases, but on establishing the pattern of human right abuse committed within a time frame. The first aim of truth commissions thus, is to officially investigate and provide an accurate record/analysis of the broader pattern of abuses committed during repression and civil war finding out factual, personal, social and healing truth. From 1974 to 2007, at least 32 truth commissions were established in 28 countries. More than half of these commissions have been established in the past ten years.
Summary of Chapters
Chapter One: Introduction and Background: Introduces the concept of transitional justice and the specific context of Nepal’s 1996-2006 conflict, framing the necessity of judicial engagement.
Chapter Two: Overview of the Research Approach: Outlines the qualitative, doctrinal research methodology employed, including the use of primary and secondary legal sources.
Chapter Three: General Overview on People’s War of Nepal 1996-2006: Provides historical context on the Maoist insurgency and the subsequent transition to the Comprehensive Peace Accord.
Chapter Four: The Human Rights Situation during the People’s War: Details the extent of human rights violations, focusing on enforced disappearances, torture, and extrajudicial killings.
Chapter Five: The Transitional Justice Mechanism in Nepal and the Contribution of Judiciary: Analyzes the failures of non-judicial mechanisms and presents the judiciary as a critical apparatus for enforcing international obligations and ensuring victim access to justice.
Chapter 6: Conclusion: Summarizes the study’s findings, reiterating that the judiciary provides the most viable path for justice in Nepal’s post-conflict transitional landscape.
Keywords
Transitional Justice, Nepal, Judiciary, People’s War, Human Rights, Rule of Law, Truth and Reconciliation Commission, Amnesty, Impunity, Prosecution, International Obligations, Conflict, Access to Justice, Constitutional Mandate, Accountability
Frequently Asked Questions
What is the core subject of this thesis?
The thesis explores the role and necessity of the Nepalese judiciary in navigating transitional justice after the 1996-2006 internal armed conflict, specifically in light of the perceived shortcomings of non-judicial mechanisms.
What are the primary themes analyzed in this work?
Key themes include the failure of planned truth commissions to deliver justice, the critical importance of judicial proceedings for ending impunity, and the obligation of the Nepalese state under international law.
What is the main research question of the study?
The research asks how the Nepalese judiciary can and should engage in transitional justice to provide access to justice for victims of the 1996-2006 conflict, especially where other mechanisms have failed or are inadequate.
Which methodology does the author use?
The author employs a doctrinal, qualitative research approach, utilizing legal instruments, case decisions, academic journals, and reports from governmental and non-governmental organizations as primary data sources.
What is discussed in the main body of the paper?
The main body covers the history of the Maoist insurgency, the human rights situation during the war, an critique of proposed non-judicial mechanisms, and an analysis of how judicial intervention can uphold international human rights standards.
Which keywords define the research?
Key terms include Transitional Justice, Nepal, Judiciary, People’s War, Human Rights, Rule of Law, and Accountability.
Why are truth commissions in Nepal subject to criticism according to this study?
The study argues that proposed commissions lack political independence, suffer from structural flaws, and contain controversial provisions for amnesty that undermine international standards for justice.
What role does the judiciary play in filling the gaps left by the government?
The judiciary has intervened to interpret legislation, define crimes that lacked domestic recognition (like enforced disappearance), and direct the government to enact laws compatible with international treaties.
Is the judiciary in Nepal completely free from political influence?
No, the author notes that while the judiciary is constitutionally independent, it faces practical challenges, including political involvement in the appointment and oversight of judges.
What does the author conclude regarding the future of transitional justice in Nepal?
The author concludes that judicial engagement remains the most effective apparatus for ensuring accountability, even if truth commissions are eventually established, because the courts can provide the necessary oversight and legal prosecution.
- Quote paper
- Anurag Devkota (Author), 2014, The Contribution of Judiciary to Transitional Justice following the 1996-2006 Conflict in Nepal, Munich, GRIN Verlag, https://www.grin.com/document/492436
