The Supreme Court has issued an order in the name of the government to make a law that includes the inclusion of children under the age of 18 in the military forces during armed conflicts and other times as a serious human rights violation.

The Supreme Court issued such an order in the name of the government on Friday while delivering its verdict in the case related to the misuse of child soldiers.

A full bench of Justices Sapana Pradhan Malla, Sunil Pokharel and Shantisingh Thapa addressed some of the demands made by the writ petitioner Lenin Bista and rejected others.

Bista, a former Maoist fighter, had filed a writ petition alleging that the concerns of the child soldiers were ignored during the amendment of two laws related to transitional justice. After addressing the same writ petition, the Supreme Court issued a directive order to make a law that makes the use of child soldiers punishable. The Supreme Court has asked not to mention the term "disqualified/expelled combatants" in government documents or records.

‘The use of the discriminatory term ‘unqualified/expelled’ also appears to be contrary to the right to life with dignity under Article 16 of the Constitution of Nepal and the right to equality under Article 18 and the right to freedom from discrimination guaranteed by Article 2 of the Convention on the Rights of the Child,’  the judgment states,  ‘Since it seems fair to give individuals a respectful identity, it is now decided that a mandamus order will be issued to state bodies not to use or make use of derogatory terms such as unqualified/expelled in documents and records issued by the state for individuals like the writ petitioner who could not be integrated into the army affected by the conflict.’ 

The Supreme Court has also said that financial relief for them is not sufficient . ‘At the time of the expulsion, only ten thousand rupees were given from the then budget per person and an additional commitment of 200,000 rupees per person was made . But even that amount was not distributed to everyone,' the judgment said, 'In the case of the age group like the writ petitioner, these mentioned financial reliefs did not seem to be sufficient . Whereas, adult combatants who went on voluntary retirement have received between 5 lakh  and 8 lakh .' 

The Supreme Court has ruled that the principle of continuous violation is applicable in the context of non-compliance with the orders and obligations issued by the court for the victims of the conflict. 

'Unlike any isolated incident that occurred in the past, the failure of the Government of Nepal to rehabilitate these individuals is perpetuating an unjust situation day after day and is giving rise to continuous action accordingly,' the judgment said, 'Social reintegration programs seem indispensable to address the situation of mental trauma, fear, insecurity and social exclusion caused by the conflict.' 

The Supreme Court ruled that the State has not taken adequate steps for the reintegration and rehabilitation of the victims, despite national and international laws and judicial interpretations, stating that the Truth and Reconciliation Commission and the Commission of Inquiry on Enforced Disappearances were established under the Comprehensive Peace Agreement, 2006, concluded between the Government of Nepal and the Communist Party of Nepal (Maoist).

'It has also been realized that the third amendment to the Truth and Reconciliation Commission Act has excluded the use of child soldiers from the definition of 'serious violation of human rights,'' the judgment said. 'Therefore, it is the responsibility of the state to enact a law that completely prohibits the inclusion or use of children aged eighteen years or below in any military force and makes such acts a punishable offense, and has issued a directive order in the name of the opposition government agencies to take immediate steps in that direction.'

While considering the demand to prosecute the opponents Pushpa Kamal Dahal and Baburam Bhattarai for war crimes arising from the recruitment and use of child soldiers during the armed conflict, the judgment said that the constitution provides for addressing questions of transitional justice through the Truth and Reconciliation Commission and the Commission of Inquiry on Enforced Disappearances.'