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Transitional Justice in Absent Political Transitions

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Transitional Justice in Absent Political Transitions University of Leuven European Master's Degree in Human Rights and Democratisation Academic Year 2016/2017 TRANSITIONAL JUSTICE IN ABSENT POLITICAL TRANSITIONS: A CASE STUDY OF NEPAL Author: Kevin Toro Sánchez Supervisor: Prof. Dr. Stephan Parmentier Kevin Toro Sánchez Master's Thesis University of Leuven/EIUC Abstract Transitional justice, as a normative framework for post-conflict societies, is increasingly being applied to situations that differ from the traditional transitions from authoritarianism to democracy. Transitional theory presents the transitional goals of peace and democracy as universal and apolitical. However, these goals are deeply influenced by a Western liberal approach that might not work in post-conflict societies that hold other values. This thesis meets these twin research aims through an extensive study of the transitional process in Nepal. The approach taken in the research is based on interviews with prominent actors representing the national and international community as well as comparative analysis of legal, political and historical literature. The perspectives presented in this analysis are through the lens of a foreign observer. The main conclusion drawn from this research are: the shortcomings that the liberal approach to transitional justice has in absent political transitions and the instrumentalisation of the transitional process by political elites in order to serve their national agendas. Accordingly, this thesis argues for the amendment of the necessary transitional laws and national legislation that allows for a meaningful transition that meets not only the rights of victims but the pressing needs of historically marginalised groups. i Kevin Toro Sánchez Master's Thesis University of Leuven/EIUC Table of Contents Abstract .................................................................................................................................................. i Acronyms ............................................................................................................................................. vi Preface ................................................................................................................................................ viii Origin of this research and personal motivations .......................................................................... viii Research question, aim and objectives of this study ....................................................................... ix Methodology ................................................................................................................................... xii Structure ........................................................................................................................................ xiii Acknowledgments ............................................................................................................................. xiv PART I CONCEIVING THE FRAMEWORK: TRANSITIONAL JUSTICE IN ABSENT POLITICAL TRANSITIONS ................................................................................................................ 1 Chapter I TRANSITIONAL WHAT?: A LIBERAL THEORY ................................. 3 Introduction .................................................................................................................................. 3 1.1 Historical development .......................................................................................................... 3 1.2 Liberal assumptions ............................................................................................................... 4 1.3 The goals of transitional justice ............................................................................................. 5 1.3.1 Transitional law .............................................................................................................. 5 Peace ................................................................................................................................... 6 Democracy .......................................................................................................................... 7 Rule of law ..................................................................................................................... 8 Human rights ................................................................................................................ 10 1.4 The peril of expansion .......................................................................................................... 11 1.5 Conclusions .......................................................................................................................... 11 C h a p t e r I I TRANSITIONAL JUSTICE AND POLITICS: A DYNAMIC RELATIONSHIP ..................................................................................................... 12 Introduction ................................................................................................................................ 12 2.1 The role of national elites ..................................................................................................... 12 2.2 Transitional mechanisms and their contribution to transitional goals ................................. 14 2.3 Transitional justice in political transitions ........................................................................... 15 2.3.1 Liberal transitions ......................................................................................................... 15 2.3.2 Non-liberal transitions .................................................................................................. 16 ii Kevin Toro Sánchez Master's Thesis University of Leuven/EIUC 2.4 Transitional justice in absent political transitions ................................................................ 16 2.4.1 Well-established democracies ...................................................................................... 17 2.4.2 Deeply conflicted societies ........................................................................................... 17 2.5 Conclusions .......................................................................................................................... 18 PART II TRANSITIONAL JUSTICE IN NEPAL: A DECADE ON HOLD .................................. 20 Chapter III THE NEPALI TRANSITION .................................................................... 21 Introduction ................................................................................................................................ 21 3.1 The Maoist insurgency ......................................................................................................... 21 3.1.1 Background .................................................................................................................. 21 3.1.2 The armed conflict (1996-2006) .................................................................................. 22 3.2 The transitional laws ............................................................................................................ 24 3.2.1 The Comprehensive Peace Accord .............................................................................. 24 3.2.2 The legislative process to establish the transitional mechanisms ................................ 24 The process to establish a Commission on Investigation of Enforced Disappeared Persons ............................................................................................................................... 25 The process to establish a Truth and Reconciliation Commission ................................... 25 The Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act ...... 26 The contested provisions ............................................................................................. 27 3.3 The transitional mechanisms ................................................................................................ 28 3.3.1 The Truth and Reconciliation Commission ................................................................. 29 3.3.2 The Commission on Investigation of Enforced Disappeared Persons ......................... 30 3.3.3 The Special Court ......................................................................................................... 31 3.4 Conclusions .......................................................................................................................... 31 Chapter IV TRANSITIONAL GOALS IN NEPAL ..................................................... 32 Introduction ................................................................................................................................ 32 4.1 Peace .................................................................................................................................... 32 4.2 Democracy ........................................................................................................................... 34 4.2.1 Rule of law ................................................................................................................... 37 4.2.2 Human rights ................................................................................................................ 39 4.3 Conclusions .......................................................................................................................... 40 iii Kevin Toro Sánchez Master's Thesis University of Leuven/EIUC PART III MERGING THEORY AND PRACTICE .........................................................................
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