The Supreme Court has directed the government to enact a law criminalising the recruitment and use of children under the age of 18 in armed forces and to classify such acts as serious human rights violations, saying Nepal’s transitional justice Act fails to adequately address the issue despite the country’s international obligations.

A full bench of justices Sapana Pradhan Malla, Sunil Pokharel and Shanti Singh Thapa issued the ruling in response to a writ petition filed by nine former child combatants led by Lenin Bista, founding chair of the Discharged People’s Liberation Army, a non-governmental advocacy group, challenging amendments to the transitional justice law for failing to address the concerns of former child soldiers associated with the decade-long Maoist insurgency. After years of lingering, the federal parliament in August 2024 amended the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act.

The bench noted that although Nepal became a party to the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict 24 years ago, it has yet to fully translate its international obligations into domestic criminal law. The protocol prohibits the recruitment and use of children in armed groups and requires states to take measures to prevent and punish such practices.

The bench further noted that the amendment to the Act excluded the use of child soldiers from the definition of serious human rights violations. It said the omission was inconsistent with Nepal’s obligations under international law and required immediate legislative attention.

“Therefore, it is the responsibility of the state to enact laws that completely prohibit the recruitment, inclusion or use of children aged eighteen years or below in any armed force and make such acts punishable offences,” the verdict states. The court accordingly directed the government to take immediate steps to introduce legal provisions criminalising the recruitment or use of children in armed forces.

The ruling also directed the government to make immediate and adequate arrangements for the rehabilitation and reintegration of former child soldiers. It said reparations must address the full range of harms suffered by conflict-affected children rather than being limited to financial assistance.

According to the court, the state’s obligations towards former child soldiers extend beyond acknowledging past violations and include ensuring their social, economic and psychological reintegration into society.

The bench also instructed state agencies to stop referring to former child combatants in official records as “disqualified” or “discharged” combatants, saying such labels were discriminatory and incompatible with constitutional guarantees of dignity and equality as well as Nepal’s obligations under the Convention on the Rights of the Child.

“Since it is appropriate to provide individuals with a dignified identity, state agencies shall refrain from using derogatory terms such as ‘disqualified’ or ‘discharged’ in documents and records relating to conflict-affected persons like the petitioner,” the verdict states.

The court also found the financial support provided to former child combatants to be inadequate. According to the judgment, those released from Maoist cantonments received only Rs10,000 each, while a subsequent commitment to provide Rs200,000 per person was not fully implemented.

The bench noted that these measures were insufficient, particularly when compared to the benefits provided to adult Maoist combatants who opted for voluntary retirement and received between Rs500,000 and Rs800,000.

The ruling further held that the state’s failure to rehabilitate and reintegrate former child combatants constituted a continuing violation of their rights.

“Unlike a single event in the past, the government’s failure to rehabilitate these individuals has perpetuated an unjust situation on a continuing basis,” the court said, stressing the need for programmes addressing trauma, insecurity and social exclusion experienced by former child soldiers.

The petitioner has welcomed the decision. “The court has clearly said that the use of minors is a human rights violation and the existing transitional process fails to address our genuine concerns,” Bista told the Post. “It has generated a sense of hope that justice will be delivered to hundreds of former minor soldiers like me.”

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.

Referring to the 2006 Comprehensive Peace Agreement between the government and the then Communist Party of Nepal (Maoist), the court observed that despite the establishment of transitional justice mechanisms and Nepal’s national and international commitments, the state had not taken sufficient measures to ensure the rehabilitation and reintegration of conflict victims, including former child combatants.

However, the court declined to issue an order seeking the prosecution of former prime ministers Pushpa Kamal Dahal and Baburam Bhattarai for alleged war crimes related to the recruitment and use of child soldiers during the conflict.

The verdict said questions of individual accountability for command-level decisions taken during the armed conflict should be addressed through constitutionally mandated transitional justice bodies, including the Truth and Reconciliation Commission and the Commission of Investigation on Enforced Disappeared Persons.

“The question of individual accountability remains open and can be addressed through reports and recommendations prepared by the transitional justice mechanisms,” the court said. “There is no need for further observation by this court on that matter.”

A human rights lawyer said the court has given a way for justice to the former minor combatants by acknowledging that the existing laws do not address their concerns. “By directing to have a law in place, the full bench has made the state responsible to deliver justice to them,” Pushpa Poudel, a human rights lawyer who advocated on behalf of victims, told the Post.