Revoking last week’s decision of its administration to scrap a writ petition of former child Maoist combatants, the Supreme Court has ordered its staffers to register the petition that demands prosecution of the then Maoist supreme commander Pushpa Kamal Dahal, now the country’s prime minister, and the then ‘people’s government’ chief Baburam Bhattarai, who also is a former prime minister.

A single bench of Justice Anand Mohan Bhattarai ruled that the judiciary needs to resolve the issues raised by the petitioners. “The concerns raised in the petition demand a resolution from the court, therefore, the decision of May 30, 2023 to scrap the petition is revoked,” the apex court said in its verdict. The Supreme Court administration had last week refused to register the petition arguing that the case will be settled through the transitional justice mechanisms that are overseeing conflict-era cases.

Nine former child combatants led by Lenin Bista, the founding chair of the Discharged People’s Liberation Army, will register the petition on Sunday. “The court will give the date for the preliminary hearing on the same day,” Bista told the Post.

The petitioners have claimed that the Maoist leaders had committed war crimes by recruiting minors in the armed conflict. They have demanded an investigation into the matter through a tribunal, just as was done in Rwanda and Yugoslavia. “We demand an order to suspend Dahal [from his duties] as prime minister until the investigation does not end,” according to one of the points in the petition that was refused registration.

During the verification process for army integration conducted by UNMIN in 2007, thousands of Maoist fighters, including Bista, had been disqualified for being minors.

Among the 4,008 combatants who did not qualify for integration, 2,973 were verified as minors while the remaining 1,035 had joined the Maoist ‘People’s Liberation Army’ after the first ceasefire of May 26, 2006 — six months before the peace deal was signed. The government had provided between Rs500,000 and Rs800,000 each to the combatants who chose voluntary retirement. However, those who were disqualified didn’t get any substantial support, except for a few thousand rupees from the United Nations.

Friday’s apex court ruling comes while another petition against Dahal relating to the conflict-era cases of atrocities is sub judice. The court, on March 9, had directed him to furnish a written clarification over his statement that he would take the responsibility for 5,000 of the 17,000 deaths from the 1996-2006 insurgency. On January 15, 2020, while addressing a Maghi festival celebration event in Kathmandu, Dahal had said that he, as the leader of the Maoist party that led the decade-long insurgency, would take responsibility for the deaths of 5,000 people while the state should own up the remaining deaths.

The former Maoist child soldiers have been taking different measures to bring the Maoist leadership before the law after they were left out of the transitional justice process.

In June 2019, Bista had petitioned the United Nations Office of the High Commissioner for Human Rights in Geneva, demanding justice for thousands of former child soldiers. The petition sought the UN's support to ask the Nepal government to prioritize justice for former child soldiers, recalling that a serious crime was committed against thousands of children who were forced to fight on behalf of the Communist Party of Nepal-Maoist during the 10-year armed insurgency.

Those who have an understanding of the country’s transitional justice process say the petition from the former child soldiers is a reaction to the state’s indifference to accommodate them in the transitional justice process. “The former combatants have raised genuine concerns. It is natural of them to seek judicial support as there has been no attempt to incorporate them in the transitional justice process,” Raju Prasad Chapagain, a constitutional and human rights lawyer, told the Post. “They were forced to knock on the apex court’s door.”

Despite pressure from the former minor combatants and the human rights community, the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act and an amendment bill to the Act, which is under consideration in the federal parliament, do not include the concerns of the former child soldiers.

Tika Dhakal, who writes extensively on transitional justice, said there is no doubt that former minor combatants must get justice. “However, I don’t see any law in the country based on which the judiciary can take the matter forward. Yet, the former child soldiers need justice and the judiciary can find a way out,” Dhakal told the Post. He said there is no domestic law that directly talks about use of children in an armed conflict. It is the Rome statute, which explicitly says that the use of children is a war crime, but Nepal is not a party to it.

Dhakal said UNMIN verified 2,973 persons as minors, but no investigation about their use in the conflict was ever done. “Investigating the matter and bringing them under transitional justice was a must. As that never happened, the former child soldiers moved the Supreme Court,” he added.