TABLE OF CONTENTS
Chapter One: Introduction and Background
1.2. Statement of Purpose
1.3. Literature Review:
1.4. Thesis Statement:
1.5. Limitations of the Study:
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
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.
I wish to acknowledge and express my sincere gratitude to my dissertation supervisor Ms Naomi Burke Shyne who, irrespective of her professional engagements agreed to supervise my thesis. I appreciate the constructive comments she made on my thesis and thank her for her patience with me. The paper would not have completed without her support and assistance.
I am also indebted to Mr. Prabin Subedi for his substantive help throughout my research. I would also like to express my gratitude to Rosan Gupta, Bidhan Khaniya Nischal Pokhrel and Barun Ghimire for providing the assistance in completing my dissertation.
I genuinely appreciate the staffs of John Felice Rome Centre library Rome and the library of Social Science (BAHA), Kathmandu. They had always been of great help in providing me books and academic materials to for my research. Also I would like to take an opportunity to thank Prof. Karen Shaw who helped in and out in preparing the thesis proposal though series of classes and workshops.
I am also very thankful to Ms. Nishika Sharma for lending a hand in every thick and thin and incessantly motivating me during my entire work.
This thesis would not have been completed without motivation and assistance of my parents and family members.
Chapter One: Introduction and Background
'Sustaining peace will also require efforts to heal the wounds of the conflict. That means clarifying the fate of those who disappeared and compensating victims. It means enabling the return of displaced persons to their homes. And it means under taking an honest and inevitably painful acknowledgement of the truth of past human rights violations, and to end impunity.'
Ban Ki Moon
Secretary-General, United Nations
Addressing the Constituent Assembly of Nepal
Under the UN Secretary General report, transitional justice is defined as “comprising the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.” The report furthers both judicial and non-judicial mechanisms, with differing levels of international involvement (and none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof1. In recent years, a debate has flourished on the possibility to “deal with” crimes under international law using non- judicial mechanisms of accountability, such as a truth commission. States have a choice in deciding “what kind of justice” they may pursue: they may decide to conduct investigation of crimes and recommend legal prosecution under national judicial body or concentrate on truth-seeking and community reconciliation by granting amnesty. There is general tendency of governments to grant amnesty for the supposed reason of establishing peace in the country. The Truth and Reconciliation Commission in South Africa is an example of a body that granted amnesty to the perpetrators to build reconciliation and peace in the society.2 As such, the transitional justice mechanism broadly incorporates the range of approaches that society undertakes to reckon with legacies of widespread or systematic human rights abuse as they move from a period of violent conflict or oppression toward peace, democracy, the rule of law, and respect for individual and collective rights.3
Typically, the mechanisms for pursuing transitional justice include prosecution of the perpetrators of human rights violations, truth commissions that seek to reveal the truth about the past wrong, reparations for victim of human rights abuses, institutional reform and guarantee of non-repetition. The rights of victims should have first priority but unfortunately they are often ignored and forgotten at the end of the conflict, which is also observed in the post conflict situation of People's War in Nepal.
The People’s War in Nepal resulted in the death of more than 13,000 people, disappearance of nearly 5,000 people and displacement of 100,000 people4. The UN Working Group on Enforced or Involuntary Disappearances asserted Nepal among the list of countries with the most disappearances in 2003-2004.5 Other forms of human rights violations incorporated were tortures, mass killings and illegal detentions, killings of the detainees, and raping and murdering of female civilians. The two conflicting parties, the Government of Nepal and the Communist Party of Nepal (Maoists) ended with the peace agreement in 20066 (Comprehensive Peace Accord between Government of Nepal and Communist Party of Nepal Maoist) as a major breakthrough in the politics of Nepal. Emphasizing restorative justice, the agreement mandates for the institutional reform, reparations, truth-telling, and reconciliation, but remains silent on lustration and retributive justice mechanisms. The agreement also grants general amnesty through the revocation of charges for all politically-motivated violence, requires the immediate release of political prisoners, and calls for both sides to disclose publicly information on detainees, the disappeared, and those killed during the conflict. The agreement guaranteed the disarmament on both sides and the Nepal army’s was obliged to be limited within barrack (Nepal Army ought not be mobilized outside the barracks) and it also guaranteed the return of property and authorizes a commission to provide relief and rehabilitation for victims and displaced citizens.7
In 2006, the conflicting parties, i.e. the Nepal Government and the Maoist concluded a Comprehensive Peace Agreement8. According to clause 5.2.5 of the agreement, both parties agree to set up a High-level Truth and Reconciliation Commission (Hereinafter referred to as 'TRC' or 'Truth Commission') as per the mutual consensus in order to investigate those involved in serious violation of human rights and crime against humanity in course of the armed conflict and develop an atmosphere for reconciliation in the society.9 Unfortunately, although it has been eight years passed from the conclusion of the agreement, the Truth Commission is not yet established.
However, prospective Truth Commission of Nepal is being highly criticized for possibility of it to grant amnesty to perpetrators of gross human rights violations, the guarantee of sustainable peace and development is questionable. For example, Section 5.2.7 of Comprehensive Peace Accord and Section 23.7 and Section 25.1 of Truth and Reconciliation Bill has been criticized as it provides for the amnesty to perpetrators. Human rights defenders, civil society members and national and international human rights organizations are skeptical about amnesties because amnesties to perpetrators of gross human rights violations create a climate of impunity for such violations. Hence, the non judicial approach being highly debatable, it calls for the judiciary into play for the effective addressing of the crimes of past (during the armed conflict), reconciling the debates of truth commissions and reestablishing the rule of law.
Regarding this topic, prior research and scholarly articles are more focused on the role of truth commissions in reestablishing rule of law in Nepal, and less emphasis has been laid on judicial proceedings. This study will scrutinize the challenges of both judicial and non judicial proceedings in dealing with the crimes of the past and sort the logical conclusion on the judiciary being the most effective apparatus in addressing the justice for the crime committed in past.
1.2. Statement of Purpose
This paper will seek to explain why it is critical that the judiciary is better engaged in Transitional Justice going forward. Firstly, the paper will highlight the impact/importance of the judiciary’s involvement in Transitional Justice in line with the practical solution for the delayed transitional justice mechanism in Nepal. It will accordingly assess the positive and negative roles and functions carried out by the Judiciary of Nepal vis-à-vis the establishment of Transitional Justice. Next, the paper will demonstrate the limitations of the TRC, detailing the process of establishment of the body and obstacles to formation of Transitional Justice in Nepal in line with access to justice to the victims of people’s movement of 1996-2006. Finally the paper will set out the relevant mandate and powers of the judiciary and argue there is a clear need for the judiciary to progress transitional justice in Nepal.
1.3. Literature Review:
Gwen K. Young (2002)10 recognizes that the experience of the transitional societies emerging from violent conflict has shown the sustainable peace being possible only through the justice either judiciary or non judiciary, by holding the perpetrators of human rights violations accountable. Both judicial and non-judicial approaches to transitional justice are available to hold perpetrators of human rights violations accountable. The author also sums up with the conclusion that Truth and Reconciliation Commissions have gained force as a “second-best” option where trials were deemed too destabilizing, but it always depends upon the geo-politics of the specific country. The author in her article stresses on non-judicial means gaining more importance at the present date, however, taking into consideration of the geo-politics, trials via judiciary seems more logical and effective because economic reason of the state firstly, as the establishment of whole new non-judicial system requires more capital and secondly the current ordinance dealing with non-judicial mechanism (i.e. TRC) are being highly criticized for its provision on amnesty. Thus, taking into consideration the geo-politics of the state, judiciary serves as the best answer for the victim’s access to justice.
Naomi Roht –Arriaza(2006)11 argues that the better justice and for leading the transitional society to the stability, the guilty persons should be prosecuted and convicted and penalties should be imposed on them. The author gives the example of Argentina and Chile, where the incoming civilian governments commissioned broad-based commissions of notables to investigate and document the human rights violations of the prior regime but later the court prosecuted ruling juntas in Argentina. This sets a very good example which Nepal can refer to in dealing with the criminals of the People’s War.
Faustin Z. Ntoubandi (20017)12 argued that amnesties are needed to promote healing and national reconciliation in post conflict societies. The author provides the example of South Africa being arguably the best known example of restorative justice. Describing more on restorative justice approach, the author forwards the focus has been made on the victims and reintegration of offenders rather than on the retributive justice ascribed to criminal law. The author by providing this specific example hold up the aspiration of amnesty being feasible at times while considering the broader objective of access to justice. However, the article fails to provide the specific role to be played by the courts in relation to providing amnesties. In common law countries like Nepal, the judiciary could be the best institution to mandate the amnesties to the criminals of war.
In Azanian People Organization (AZAPO) and Others v. Truth and Reconciliation Commission and Others,13 the AZAPO raised the question about the Amnesty for persons responsible for Gross Human Rights Violations, in particular the four Geneva Convention of 1949 which obliges States to prosecute persons responsible for gross human rights violations. It further explains that offering amnesty in exchange for confession, South Africa’s Truth Commission emphasized reconciliation between perpetrators and victims built ideally on a perpetrator’s repentance and a victim’s forgiveness. However, the model of South Africa’s TRC is not so far from criticism. Significantly, United Nation Human Rights Committee has been opposed to granting amnesties in the aftermath of a conflict. For instance, in the concluding observation of the Human Rights Committee (El Salvador)14, committee reiterates its concern to the Government of El Salvador at the General Amnesty Act of 1993 and the application of that Act to serious human rights violations, including those considered and established by the Truth Commission and recommend to review the effect of General Amnesty Act and amend it to make it fully compatible with the ICCPR. Nepal could take a lesson as the truth and reconciliation ordinance of Nepal incorporates the provision on amnesty which has been highly criticized and challenged, in this milieu, amending it to enable a compliance with ICCPR would possible be a better solution at the present context in Nepal.
Charles Trumbull(2002)15 quotes the former U.N Secretary Kofi Anan, while noting that amnesty is legally acceptable to aid peace and reconciliation at the end of the conflict, stated that the UN “[ is of the view] that amnesty cannot be granted in respect of international crimes, such as genocide, crime against humanity and other serious violation of international humanitarian law. Besides, the author also explains that the U.N Commission on Human Rights has stated that “amnesties should not be granted to those who commit violation of international humanitarian and human rights law that constitute serious crime.” On this backdrop, the People’s War of Nepal has witnessed some serious human rights violations including crime against humanity, so amnesty itself is not a bad idea in context of Nepal, it may be useful at times but in the cases serious violations of international law and international humanitarian law, provision of amnesty would be a blunder, hence it calls for a better investigation mechanism in Nepal.
Shree Krishna Mulmi16 in his article provides a glimpse about the present scenario on judiciary in dealing with the transitional justices including the recommendations for the future reference about the role judiciary could play in strengthening the rule of law in Nepal. The author primarily focuses on the judicial reform for the effective reprisal of the right of the victims. He points out the lacunas in the judicial system and recommends for the change. For example, he explains that there are not any definite criteria for recommendation for the appointment for the judges, transfer of, disciplinary action against, and dismissal of Judges and matter relating to judicial administration. Most of the appointments, promotions and actions are done on subjective basis than objective criteria. In addition, the judicial council is reluctant to take action against tainted judges. Only a few actions have been taken against wrongdoers and removed from their office, it depends on the Chairperson of the Judicial Council. In light of these pitfalls, the author recommends for a revised commission model that should be discussed and placed in relation to appointment for the judges, transfer of, disciplinary action against, and dismissal of Judges and matter relating to judicial administration. Taking a reference from this article, this study shall thoroughly scrutinize the stand of judiciary in relation to the access to justice of the victims vis-à-vis the People’s War and recommend for the better mechanism that is best suitable for Nepal at the current moment.
1.4. Thesis Statement:
Although the Transitional Justice mechanism of Nepal has, to date relied upon the establishment of Truth and Reconciliation Commission, the highly criticized provision enshrined on TRC act on the issues like granting amnesties and failure of government to effectively address the crimes committed at the people’s movement have provided in making Transitional Justice a stalled process in Nepal. In this backdrop, the judiciary must respond to this deficit in action and take action to progress transitional justice processes.
1.5. Limitations of the Study:
Overall the study will focus on the role of judiciary in re-strengthening rule of law through access to justice during the post war error currently taking place in Nepal. However, due to limitation of time and other constraints, study specially regards the People’s War of 1996-2006. While taking the People’s War as a case study, it uncovers both political and non political aspects of the war. However, the research restrains the political agendas and agreement between the political parties of Nepal in the study. The large part of the study will be based on the constitutional mandate than on political.
With regard to the case law, the study only covers the cases that have been officially reported. Unofficially reported cases are limited to be used only as a reference of the study.
The study focuses on the access to justice element of the rule of law. So, the study will be focusing on the rights of the victims and the role judiciary is and will be playing in being the guardian of the right and providing the remedies, judicial mechanisms and procedures involved. In that milieu the study will be limited on the prosecution aspect vis-à-vis a transitional justice mechanisms.
The significance and implication of the respective subject matter could be summarized under following explanations:
- Currently, Nepal is going through the dilemma over addressing the crimes that took place during the time of war. However, no specific conclusions have been made so far regarding the feasible and comprehensive way outs. On that milieu, my research findings will sort the loopholes by analyzing the effective means to bridge the gap in finding the practical way out through the research and provide the specific recommendation to the state actors and government to carry out the specific activities on their part in order to re-strengthen rule of law through access to justice.
- The debates have been going on over the role of transitional justice mechanism and its ordinance regarding the provision of providing the amnesty and other structural and functional flaws. The thesis research will focus on the strengths and weaknesses of the ordinance and by verifying its meaning and importance it will sort the possible way out and assess the role of judiciary in interpreting the provision of ordinance in the current scenario of Nepal.
- The paper will provide the substantive answer to the government of Nepal to remove the deadlock of prosecuting the crimes that took the place at people’s war. The paper will stipulate the answer to the question regarding prosecution of the offenders and also present the favorable reasons for prosecution in dealing with past criminals.
- Various arguments and discussion have been made regarding access to justice and its modes of operation. However, no significant and uniform answer has been reached so far. This paper will resolve the queries by providing the significant response of judiciary being the only answer to the contention and judiciary being the best possible approach of addressing and guaranteeing the rights of victims and victim’s access to justice.
- The obligation to be borne by the government of Nepal under the international obligation will duly be analyzed in line with the role judiciary could play in this milieu. This paper aims at providing a substantive answer to the question of international laws and state’s obligation.
Chapter Two: Overview of the Research Approach
2.1. Research Methodology:
The methodology used in this research is a qualitative research approach. The researcher has made a doctrinal study using reports and scholarly articles as a major source of data collection. Various reports published by different non-governmental and governmental organizations have been examined and the research has focus on the inductive and deductive data analysis. Decisions from the Court of Nepal in addressing the issue of political / non-political crime during the war have also been analyzed during the course of research. This is the case based research carried out during the research.
b. Nature and Source of Data
This study is based on the qualitative data existing literature in both primary and secondary sources of data are used in course of the study. The primary sources included legal instruments such as the international conventions (multilateral treaties), case decision of various courts, UN Charter and other UN human rights documents. Also, advisory opinions of various courts and annual reports of various regional human rights commissions have been referred hereto. Secondary sources included articles of various journals, relevant books on the subjects, and websites of different human rights organizations.
All published material including conventions, other books, article and selected web materials available in the issues specifically dealing with transitional justice mechanism and judiciary of Nepal available in Social Science Baha Library, Kathmandu; Central Law Library of Kathmandu, John Felice Rome Centre library, Rome, Westlaw and Lexixnexis.com respectively has been limited the input of qualitative data.
d. Sampling Method
The study has employed purposive sampling method in selecting the books, article, cases and web material in terms of their content and dynamics associated to the study.
e. Technique of Data Collection
Researcher has relied on content analysis as tools of data collection for the study.
f. Presentation/ Analysis of Data
Data has been analyzed in quantitative way and presented in statements
2.2. Research Questions:
a. What could be the mandate and role of the judiciary in the establishment of Transitional Justice by providing access to justice to the victims of the People’s War?
i. What is judicial and non judicial mechanism within the context of post war?
ii. Why non judicial mechanism is not practical in Nepal or why is truth commission criticized?
iii. What have judiciary of Nepal done so far in advancing victims’ access to justice?
b. What could be the possible role of judiciary in reconciling the procedures and role of truth and reconciliation mechanism in addressing the crimes committed at time of people’s war?
i. What role could judiciary play in complementing the mandates and mechanisms of TRC?
ii. What could be the possible challenges judiciary face in addressing and prosecuting the past crimes?
iii. What could be the possible contribution of judiciary in reconciling the international obligation of the state of Nepal?
2.3. Key Terms and Definitions:
Abbildung in dieser Leseprobe nicht enthalten
b. Key Words:
- Comprehensive Peace Accord: The Comprehensive Peace Agreement (CPA) was a result of long and often difficult negotiations between the Seven Party Alliance (SPA) and the Maoist. When it was finally signed in November 2006 in Kathmandu by all the SPA leaders, including the then Prime Minister Girija Prasad Koirala and Maoist Chairman Prachanda, it officially signaled the end of the 10-year long Maoist conflict. Through this agreement, the SPA and Maoists committed themselves to a peace process that would not only end the Maoist conflict but also lay out a road map for elections to a Constituent Assembly that would restructure Nepal along a more democratic and inclusive lines.
- Maoist: The Unified Communist Party of Nepal (Maoist)or UCPN (M) is a Nepalese political party. It was founded in 1994.Following massive popular demonstrations and a prolonged civil war against the monarchy, the Communist Party of Nepal (Maoist) became the ruling party during the Nepalese Constituent Assembly election, 2008. On February 13, 1996 the party launched the "Nepalese People's War", and it gained control of some rural areas throughout Nepal before a ceasefire agreement was reached.
- TRC Bill: It is the bill that proposes the creation of a TRC to investigate instances of gross violations of human rights and crimes against humanity that occurred during the course of the 1996–2006 the People’s War. Focusing on truth-seeking, reparation, and reconciliation, the bill includes provisions to promote reconciliation between victims and perpetrators, as well as for the TRC to recommend amnesties to perpetrators of some violations in exchange for full disclosure of such violations. However, they are highly criticized for its provision regarding amnesty.
- Impunity: Means "exemption from punishment or loss or escape from fines". In the international law of human rights, it refers to the failure to bring perpetrators of human rights violations to justice and, as such, itself constitutes a denial of the victims' right to justice and redress. Impunity is especially common in countries that lack a tradition of the rule of law, suffer from corruption or that have entrenched systems of patronage, or where the judiciary is weak or members of the security forces are protected by special jurisdictions or immunities.
- Amnesty: It is a pardon extended by the government to a group or class of persons, usually for a political offense; the act of a sovereign power officially forgiving certain classes of persons who are subject to trial but have not yet been convicted.
- Political and Non-political Crimes: Political crimes are the crimes that violate the law or public peace for political rather than private reasons; as the act directed against a particular government or political system. Crimes by Government: Include violations of human rights, civil liberties, and constitutional privileges, as well as illegal behavior that occur in the process of enforcing the law or maintaining the status quo. Crimes against the government: May range from protests, illegal demonstrations, and strikes to espionage, political whistle blowing, assassination, and terrorism.
The crimes that are not political and consist of the acts punishable under the penal law of the country like murder, rape etc are referred as non political crime in the paper.
1 Report of the Secretary-General, The rule of law and transitional justice in conflict and post-conflict societies, Retrieved from United Nations website: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N04/395/29/PDF/N0439529.pdf?OpenElement.
2 Campbell, P. J. (2000), The Truth and Reconciliation Commission (TRC): Human Rights and State Transitions--The South Africa Model, African Studies Quarterly, 4 (3), 42.
3 Annual Report 2004/2005. Retrieved from International Center for Transitional Justice website : https://ictj.org/sites/default/files/ICTJ_AnnualReport_2004-5.pdf
4 UN Secretary-General to the Security Council, A report of January 2007 outlining the case for a special UN mission to Nepal, (UN DOC. S/2007/7)
5 Report of the Working Group on Enforced or Involuntary Disappearances, E/CN.4/2005/65 Retrieved from Iran Human Rights Documentation Center website : http://www.iranhrdc.org/english/human-rights-documents/aadel-collection/11762-report-of-the-working-group-on-enforced-or-involuntary-disappearances.html#.UrLfaNJDtlM.
6 See Request of Nepal for United Nations assistance in support of its peace process, UN DOC. S/2007/235 of 26 April 2007, 13.
7 Comprehensive Peace Agreement, Nov 21, 2006, Section 5.2.3, 7.3.2 and 7.1.3, Retrieved from http://www.usip.org/files/file/resources/collections/peace_agreements/nepal_cpa_20061121_en.pdf.
8 The Comprehensive Peace Agreement (CPA) was a peace agreement signed by the then Government of Nepal and Communist Party of Nepal (Maoist). The agreement officially ended the decade long Maoist conflict. Government and Maoist committed themselves to a peace process, Constituent Assembly Election and provide remedy to the conflict victims by formation of a Commission named as 'Truth and Reconciliation Commission'.
9 (CPA 2006, s5.2.5)
10 Young G.K, Amnesty and Accountability, University of California, Davis, L. Rev. 450, 35
11 Arriaza, N. R. (2006). Transitional Justice in the Twenty – First Century: Beyond Truth Versus Justice. London: Cambridge University Press, 3
12 Ntoubandi, F. Z. Amnesty for Crimes against Humanity under International Law. Journal of International Criminal Justice (2008) , 6, 13
13 See The AZAPO et al v. The President of the Republic of South Africa et al, (Case CCT 17/96) (1996).
14 Concluding Observation of the Human Rights Committee: El Salvador (2003, July 7) Retrieved from http://reproductiverights.org/sites/default/files/documents/XSL_CO.ElSalvador2003.pdf
15 Trumbull, C. P. Giving Amnesties a Second Chance (2007). 25 Berkeley J. Int'l Law, 283 (quoting ‘The Secretary- General Report on the Establishment of a Special Court of Sierra Leone,’ p22, delivered to Security Council, U.N. Doc. E/CN.4/RES/2002/79 (Apr 25, 2002)).
16 Mulmi, S. K. (n.d.). Judicial Reform in the Post Conflict Situations: A Brief Nepali Experience. Retrieved from http://www.hrbajustice.asia/wp-content/uploads/2011/08/Judicial-Reform-in-Nepal-by-Shreekrishna-Mulmi.pdf.
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- Loyola University Chicago
- Transitional Justice Human Rights Nepal Judiciary