The Supreme Court has directed the government to enact a law that completely prohibits the recruitment or use of children aged 18 or below in any military force.
The directive was issued on Friday by a full bench comprising Senior Justice Sapana Pradhan Malla and Justices Shanti Singh Thapa and Sunil Kumar Pokharel while delivering a verdict on a petition related to child soldiers.
“It is the responsibility of the state to enact legislation that completely prohibits the inclusion or use of children aged 18 years or below in any military force and criminalizes such acts. Therefore, a directive order is issued to government agencies to take immediate steps in this regard,” the judgment states.
The full bench noted that the third amendment to the Truth and Reconciliation Commission Act excludes the use of child soldiers from the definition of “serious human rights violations,” and accordingly ordered the government to formulate legislation addressing the issue.
The petition was filed by Lenin Bista and others who served as child soldiers during Nepal’s armed conflict. They alleged that they were used as child combatants during the insurgency and were later labeled with derogatory terms such as “disqualified combatants” or “discharged personnel.” The petition named current Nepali Communist Party Coordinator Pushpa Kamal Dahal, former prime minister Baburam Bhattarai, and the Government of Nepal as respondents.
The full bench also issued mandamus orders on two additional issues related to former child soldiers.
The court held that referring to former child soldiers as “disqualified combatants” or “discharged personnel” violates the constitutional right to live with dignity under Article 16, the right to equality under Article 18, and protections against discrimination under Article 2 of the Convention on the Rights of the Child.
“Since providing a dignified identity is justified, state agencies shall refrain from using derogatory labels such as ‘disqualified’ or ‘discharged’ for conflict-affected individuals who could not be integrated into the army, including the petitioners, in official documents and records issued by the state. A mixed order of mandamus and prohibition is issued to that extent in the name of the defendants,” the judgment states.
The court further ruled that relief available to victims under the law cannot be limited solely to financial compensation.
It noted that the suffering endured by Lenin Bista and others extended beyond financial losses and included loss of educational opportunities, serious impacts on physical and mental health, social stigma, and damage to their social standing.
“The pain suffered by the petitioners includes not only financial losses but also lost educational opportunities, severe impacts on physical and mental health, societal stigma, and the erosion of social prestige,” the judgment states. “Therefore, all of these dimensions of damage must be central to any reintegration process undertaken by the state. Accordingly, a mandamus order is issued directing the Government of Nepal to ensure immediate and adequate reparations for the petitioners.”
However, the Supreme Court declined to order prosecution of Dahal and Bhattarai.
The court stated that issues related to transitional justice should be addressed by the Truth and Reconciliation Commission.
It noted that questions of individual accountability for command-level decisions made during the armed conflict remain open and should be dealt with through recommendations from constitutionally established transitional justice mechanisms.
“Since the issue of individual accountability for command-level decisions taken during the armed conflict remains open and will be addressed through reports and recommendations prepared by constitutionally established transitional justice mechanisms, no further remarks are necessary on this matter,” the judgment states.
The full written text of the verdict is expected to take some time to be released.
