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Restoring the Rule of Law in Nepal: Can Transitional Justice Deliver without Criminal Justice?


This Article examines the intersectionality of transitional justice and international criminal justice. In particular, the Article evaluates the impact of criminal justice and accountability mechanisms to address serious international crimes in post-conflict transitions on the broader transformative goals of strengthening the rule of law, restoring public confidence in the criminal justice system, fostering reconciliation, and, thereby, achieving sustainable peace. Looking at Nepal as a case study, the Article seeks to answer whether transitional justice can succeed in restoring the rule of law in Nepal in the absence of a meaningful criminal justice process. Through a comparative analysis of transitional justice experiences elsewhere, the Article argues that transitional justice cannot succeed in Nepal without a credible and robust criminal justice process that both delivers justice and accountability for victims of past abuses, and signals a commitment on the part of the State and political elites to the rule of law for the future.

In Nepal, transitional justice has thus far failed to move the country closer toward the rule of law and sustainable peace. The culture of impunity that was at the root of the conflict remains firmly in place and continues to act as an impediment to real progress. The political establishment has recently made overtures toward reinvigorating a thus-far unsuccessful transitional justice process that may include criminal accountability measures to address gross human rights abuses committed by both sides during the conflict. This renewed interest presents a critical opportunity to reevaluate the process to date in order to improve its chances for success moving forward.

The success of transitional justice in Nepal is critical not merely for its own future, but for its regional value as well, as a potential roadmap for neighboring countries dealing with their own post-conflict transitional justice and impunity issues. To date, South Asia has decidedly little or no “good practice” examples for combating impunity for serious international crimes or mass atrocities through meaningful accountability processes. Nepal is at a pivotal juncture in its own transitional justice journey and still has an opportunity to serve as the long-awaited “good practice” model for the region.

Finally, scholarship focusing on Asian transitions, and particularly South Asian transitions, is noticeably sparse. There is remarkably little or no in-depth scholarly literature on post-conflict justice and accountability in South Asia. While the international human rights community has documented extensively the alleged atrocities committed in various contexts in South Asia, systematic scholarly analyses of the successes and failures in addressing these crimes are less available. This Article attempts to begin filling this void.