Nepal Maoist Leaders: The Hague Journey!
TRANSCEND MEMBERS, 30 Sep 2019
23 Sep 2019 – Child soldiers are the children, under the age of 18, who are recruited by armed organizations, i.e., state-and-non-state forces. Children are widely trained for informants or spies, porters, messengers, sentries, cooks and often used for sexual purposes and as human shields for tactical benefit in political propaganda. Children are easily trapped appealing for hope of better future (education, money, security and prestige) and are trouble-free targets for military recruitment owing to their grater defenselessness to influence compared to the grown-ups. Girl children are ever at high risk of rape, other forms of degrading treatment and such children who have had pregnancies or babies are often rejected by their own families or communities. Such forms rob their childhood and depict dreadful risks through the psychological, physical and sociocultural sufferings.
In recent Nepal, child soldiers (Discharged People’s Liberation Army in early 2010) put forward their issue of livelihood supports and have succeeded to attract civil society and media. Their voices are heard nationally and globally, especially when a former child soldier visited Europe and discussed with the officials of the International Criminal Court and among other pertinent institutions and actors. To file a case in The Hague (ICC) against the former Maoist leaders has been a much debated issue right now in Nepal and abroad. It means the case of Nepal’s former child soldiers is still a less attentive issue internally, but has been an international issue.
Establishment of the Court
The International Intergovernmental Organization, International Criminal Court, entered into force on July 1, 2002, is the world’s first permanent body that puts on trial to suspected individuals of alleged crimes. The objective of it is to investigate, prosecute and punish the perpetrators on international concerns: genocide, crimes against humanity, war crimes and crimes of aggression. The ICC aims to end global impunity ensuring justice to the victims/survivors making perpetrators accountable for their crimes and preventing these crimes from repeating again. The ICC complements national courts and is governed by an international treaty, the Rome Statute.
Situation Referring by the Court
The ICC performs its tasks in 27 countries: investigations are underway in 10 countries, preliminary examinations continue in 10 countries, and preliminary examinations have completed in 7 countries till the mid of September 2019. The countries under investigations are Burundi, Central African Republic, DR Congo, Georgia, Ivory Coast, Kenya, Libya, Mali, Sudan (Darfur) and Uganda. Similarly, preliminary examinations have been completed in Afghanistan, Bangladesh/Myanmar, Colombia, Guinea, Iraq/UK, Nigeria, Palestine, Philippines, Ukraine and Venezuela (I).
Even from the preliminary examinations, the Office of the Prosecutor closed the situations of seven countries since the information provided a reasonable basis to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court. These countries include Cambodia, Comoros and Greece, Gabon, Honduras, the Republic of Korea and Venezuela.
A total of 44 suspected individuals are indicted by the Court until September 2019. Out of the 44 persons, proceedings against 22 have been completed, the charges of six were dismissed, two are serving, four finished their sentences, two were acquitted, the charges of two were withdrawn, two were declared inadmissible, and four died before the trial. Only six persons are under detention, 15 are fugitives, and one is under arrest.
Nepal is not a State Party to the Rome Statute, but the Court shall work even in non-State Party. Nepal shall learn a lot examining the past performances of the Court in the non-State Party in the world.
Justice by the Tribunal
Before the formation of the ICC, a temporary judicial body named International Criminal Tribunal (ICT, recognizes as ‘UN Court of Law’) was to be formed focusing on specific country’s crimes. In 1999, Yugoslavian President Slobodan Milosevic was charged with crimes in Kosovo and became the first sitting Head of State to be charged with war crimes by an international tribunal. While he resigned from the Presidency, he was arrested in March 2001 on the charges of corruption and abuse or misuse of power. Milosevic denounced to ICT as an illegal body that was formed without the consent of the UN General Assembly. On 11 March 2006, he died in his prison cell in the lack of medicines, but people had collected one billion dollars for his treatment. The Tribunal officially closed in December 2017.
Against the 800,000 people’s genocide in Rwanda in a year in 1994, the UN Security Council established the ICT in Rwanda as the Court of Justice which indicted 93 policymakers – individuals of superior responsibility including Prime Minister Jean Kambanda. On October 19, 2000, his verdict was upheld by the ICTR through Appeal Chamber. The Tribunal was officially concluded in December 2015 and he is currently in Prison in Mali.
Situation Referring to Court by UNSC
While 300,000 people were extra-judicially killed between 2003-2008 in non-State Party Darfur (Sudan), crimes were referred to the ICC for the first time by the UN Security Council. The Pre-Trial Chamber of the Court issued the warrants of arrest to senior Ministers including State of Head President Omar Al Bashir. However, all remain at large as fugitives. The Chamber asked for cooperation of the UN Security Council to bring them under Court’s jurisdiction, but in vain. Thus, the Court could not move ahead for further investigation.
Libya is not a State Party to the Rome Statute. But, in February 2011, the UN Security Council referred the situation to exercise ICC’s jurisdiction over the crimes in Libya. In June 2011, the ICC issued warrants of arrest to the senior most authorities including outgoing Head of the State Muammar Gaddafi. However, he was assassinated by the agitators and his case was dismissed. Gaddafi’s associates are now recognized as fugitives.
Jurisdiction on Transnational Crimes
Besides international crimes, the ICC also investigates the Transnational (cross-border nature) crimes. Cross-border crimes take place in a non-State Party, but their consequences substantially affect another State-Party country: Myanmar/Bangladesh and Syria/Jordan. About 750,000 Rohingya fled from non-State Party Myanmar to the territory of State Party Bangladesh. Taking permission from the Pre-Trial Chamber of the ICC in June 2019, the Prosecutor investigates atrocities against Rohingya Muslim minority of Myanmar.
Contrary to 360,000 people killed and millions displaced, human rights lawyers filed the first case against (non-State Party) Syrian President Bashar al-Assad at the ICC on behalf of 28 Syrian refugees residing in Jordan (State Party) in March 2019. Lawyers have given a precedent set by the Court ruling on Rohingya refugees in Bangladesh. Russia used its 13th time veto powers till April 2019 at the UN Security Council for not to have Court’s referral to its non-State Party Syrian ally.
Acceptance of Court’s Jurisdiction
The Rome Statute shall also be effective once the non-State Party accepts its Article 12(3)’s jurisdiction. The Government of Ukraine accepted the Court’s jurisdiction through the first declaration in April 2014 and the second declaration in September 2015 over alleged crimes committed on its territory Crimea and eastern Ukraine from November 21, 2013 onwards. The preliminary examination continues there.
Similarly, the Palestinian Government lodged a declaration accepting the jurisdiction of the ICC acts committed on its territory. The Prosecutor initiated a preliminary examination of a reasonable basis for investigation and report submitted at the Pre-Trial Chamber (United Nations, December 5, 2018). But, the Chamber stopped the examination stating there had been a lack of jurisdiction.
A decade-long Maoist People’s War in Nepal has been a witness of violation of international human rights law and humanitarian law. On July 25, 2006, Nepalese House of Representatives unanimously issued a Sankalpa Prastab (resolution motion, a directive also called the accession bill) to the Government of Nepal to ratify the Rome Statute. Following the directive, Ministry of Foreign Affairs tabled the proposal in the Council of Ministers to ratify the Statute on February 11, 2009, but could not move towards presenting the draft to the House of Representatives.
Criteria of Court’s Admissibility
The examples above illustrate that the ICC establishment under the Statute shall be complementary to national criminal (issue-matter, territorial/personal and temporal) jurisdictions. It ensures justice to the victims or survivors and prosecutes to the perpetrators. The Prosecutor may open an investigation under four criteria (circumstances): (i) if the State becomes a Party to the Rome Statute; (ii) if the State Party shall accept the jurisdiction of the Statute; (iii) if the Security Council refers a situation to the ICC; and (iv) if the Pre-Trial Chamber authorizes the prosecutor to open an investigation on complaint registration by the victim/representative or NGO.
Former Child Soldier in Nepal
The criteria numbers 1 to 3 have already been used by the ICC. The circumstance number 4 may, for the first time, be used in the case of former Child Soldiers in Nepal. The issue-matter of ICC gradually intensifies in the present-day Nepal by the Maoist recruited children and UNMIN verified child soldiers in Nepal.
The CPN (Maoist) initiated the People’s War on February 13, 1996, with the main objectives of sweeping away the constitutional monarchy, bureaucratic capitalism, feudalistic mode of society and historical roots of social inequality to establish a patriotic, democratic, progressive and prosperous People’s Republic of Nepal. A decade-long (1996-2006) People’s War adversely left great impacts on political, legal, economic and societal dimensions. About 20,000 people were extra-judicially killed; more than 3,000 people were involuntarily disappeared; thousands were indiscriminately injured, made disabled and single women; there are no records of arbitrary arrest, detention, torture and rapes; and tens of thousands were internally displaced and among several other damages.
The signing of the Comprehensive Peace Accord between the Government of Nepal and the CPN (Maoist) on November 21, 2006, finally concluded a decade-old Nepalese civil war. Following the request of Nepal for assistance, the UN Security Council deployed the political mission named United Nations Mission in Nepal (UNMIN). The objective of the UNMIN was to assist in creating a conducive environment for free, fair and impartial Constituent Assembly elections and complete transitional justice by disarming, demobilizing, reinserting, integrating (into state security forces-society) and rehabilitating (into society-family) the combatants of the Maoist Army (MA). The UNMIN served in Nepal from January 23, 2007, to January 15, 2011 (for 3 years, 11 months and 3 weeks). The UNMIN had initially registered 32,250 MA combatants but only 19,602 (61%) were verified, comprising 4,008 minors and late recruits stationed in 7 main and 21 satellite cantonments.
The UNMIN decided the disqualified combatants, i.e., Verified Minors and Late Recruits (VMLRs or child soldiers) to be discharged from temporary cantonments in Nepal on the witness of Special Representative of the Secretary-General for Children and Armed Conflict Radhika Coomaraswamy. The first group of VMLRs was initiated from the cantonment in Sindhuli on January 7, 2011, and completed in a month. Each child soldier received Rs.10,000 from the UN and Rs. 12,000 from the Maoist Party as transportation and transition allowances. About one-third of the total numbers of those child soldiers were female. Almost all discharged were above 18 years.
Many discharged combatants had thrown their garlands in front of the Maoist supremo Prachanda, UN representatives and other diplomats on February 8, 2010, the concluding day of the ceremony at Dahaban in Rolpa district. The then Government of Nepal did not provide any package for their livelihood. The Maoist party, on the other hand, might think that once they received a handsome resettlement package, they would either initiate their normal life or might work with other parties, too.
|Name, location of main and satellite cantonments of UNMIN-verified former Child Soldiers|
|Develop. Region||District||Main Cantonment||Satellite Cantonment||Children (a)||Late recruit May 25, 2006(b)*||Unqualified (a+b)|
Chalachuli- Division I
|Biplab-Srijana Smriti at Danabari, Ilam
Ratna-Shakuntala Smriti at Tandi, Morang; and Chintang-Sukhani at Yangshila, Morang
Dudhauli – Division II
|Solu-Salleri Jana Kalyan, Sindhuli;
Bishal-Kumar Smriti at Tribeni, Udaypur; and Rambriksha Smriti at Kalijore, Sarlahi
|Chitwan||Shakti Khor- Division III||Basu-Smriti, Tinchowk, Chitwan;
Bethan Smriti at Namobuddha, Kavre; and Pratap Smriti at Kamidanda, Kavre
|Jhyaltung Danda – Division IV||Paribartan Smriti at Thulokot, Kaski-Tanahun; Basanta Smriti at Tingire, Palpa-Arghakhanchi; and Krishna Sen Smriti at Jhingamara, Rupandehi||424||198||622
|Dahavan – Division V||Mangalsen First at Tila, Rolpa;
Jawahar Smriti at Chaupatta, Dang; and
Dirgha Smriti at Holleri, Rolpa
|Dasarathpur- Division VI||Jeet Smriti at Dasarathpur, Surkhet;
Ghorahi-Satbariya at Lek Pharsa, Surkhet; and Pili Smriti at Kalyan, Surkhet
|Masuria – Division VII||Lisne Gam at Masuriya, Kailali;
Bahubir Yoddha at Sahajpur, Kailali; and
Lokesh Smriti at Chisapani, Kailali
|Maoist Party HQ (security to leaders)||3||1||4|
|1,035 (26%)||4,008 (100%)|
|Note: * May 25 is the day of code of conduct signature by both the Government of Nepal and the CPN (Maoist)|
The rehabilitation packages for the reintegration of the child soldiers were supported by the UN Integration Rehabilitation Program (IRP), Nepal. The rehabilitation package included formal schooling, vocational training, training as health workers and setting up small/micro-enterprises. By November 2010, a total of 2,225 discharged former child soldiers were counseled under the packages. Similarly, a large number of discharged allegedly said that they received worth of NRs. 40,000 materials after trainings though the UN had allocated NRs 400,000 to each child soldier.
On February 10, 2011, the UN office at Dhangadi, Kailali district, in the far-western region was vandalized by the discharged disgruntled child soldiers on the charge of corruption on food they were eating and the accommodation they received during skill-oriented training. The discharged child soldiers reached their heart-broken and conflict victim families with empty hand-stomach.
Former child soldiers conducted a several protests against the state mechanism. They put forward 5-point demand for the removal of the tag of ‘disqualified’ labeled by the UNMIN; arrange employment to them; provide lump sum compensation and relief economic package; search for missing people; and disclose the misuse of fund that came from the UN in their names. They demanded the UN and related donors to disclose the fund allocated to their names by the UN Peace Fund in May 2012, but that never happened.
A true story of a child soldier verified by the UNMIN
Sarjit Budha Magar of Kapra VDC, Salyan district, joined the Maoist People’s War at the age of 15 while he was studying at grade 5 in June 2002. He was attracted to the People’s War for three reasons: to protect himself from the frequent harassing of the state-security forces, to escape from the hands of severe poverty, and to liberate the people who were in distress. At the begging, he was active in the cultural sections, for example, dance, play music and singing to provide recreation to the tired Maoist army. He worked as a messenger for some time and received a hard military training at the Dirgha Smriti, 5th Division. On January 31, 2005, he was first involved to in capturing the Palpa District Headquarters. They aimed at liberating their comrades from the district jail destroying the then Royal Nepal Army barrack, other administrative authorities. A total of 250 Maoist Army reached at Palpa at 6.00 PM. He was on the frontline. While the Nepal Army alerted with bullet armor vehicles, they returned back. While two more 4th and 5th divisions with thousands of Maoist army arrived there at night “assembling the whole force for an action” approach, they first opened fires at 10.30 PM. They brought the district headquarters under their control before dawn, but he was injured with several bullets in his legs, chest and head and became unconsciousness. When he was awoken, he was at the hospital bed at Lucknow, India. He got treated there for two years and came back to Nepal while the Maoist armies were being kept in the cantonments with the help of UNMIN in early 2007. He was finally shocked while he was disqualified saying minor by the UNMIN. He could hardly walk then. He ignored to participate in the skill development training provided by the UNDP and boycotted the materials that the UNDP provided for their livelihoods. He said, “The amount what UNDP provides NRs. 40,000 was severely misused from the allocation of NRs. 400,000.” Now he is a secretariat member of its newly formed Disqualified PLA Association and working closely with Baidya-led Maoist party.
Source: Interview with Sarjit Budha Magar at Ghorahi, Dang district on May 5, 2012
India had informally proposed to train and provide necessary material supports to the combatants of the MA including the child soldiers at the beginning of the peace process. Besides, India stated that they were ready to assist in the integration model of the MA if the Maoist party wished so. While the Maoists rejected the proposal, India did not feel comfortable. Moreover, the invitation and establishment of the UNMIN made India more humiliated and frustrated.
At first, the UNMIN was given the mandate to accomplish its tenure in one year, but the tenure was extended six times on request of the Government of Nepal. Finally, it was withdrawn with a full humiliation leaving peace process halfway.
It had happened while Nepal’s high hope and expectation with the UNMIN could not be materialized. Borrowing a lesson from the political parties in poor Nepal, the political mission UNMIN appeared no less than a political institution (see box story). Besides free, fair and independent role of the UNMIN with regards to (re)integration and rehabilitation of the combatants of the Maoist Army, it played a tricky game against the dwarf, thin and weak Maoist Army stating ‘disqualified’ at first, ‘minor’ secondly and ‘child soldier’ at the end of its work. The UNMIN produced a report for Nepal and another report for the international community, particularly to the UN Security Council.
For instance, 18-year old former child soldier, Manju Gurung, who was escaped from Shaktikhor cantonment in Chitwan, was invited to the 6341st meeting of the UN Security Council as a special guest by the UN Special Rapporteur on Children in Armed Conflict, Radhika Coomaraswamy on June 16, 2010. She gave testimony at the UN Security Council recounting her past life story and detailing how she was enforced to join the Maoists People’s War at the age of 11. After her presentation, many delegates out of 60 countries suggested the Security Council take strong measures to bring the recruiters of child soldiers to justice. The UNMIN expressed that it is a success story for its organization.
On September 10, 2019, on the program of Improving Access to Justice for Nepal’s Former Child Soldiers, the representatives of former child soldiers stated narrated how the CPN (Maoist) mobilized them at the forefront as human shield on the course to raid on Police posts and Army barracks during the armed conflict. They voiced to receive livelihood support package from the Government of Nepal.
The UNMIN could recommend seeking financial assistance either from the international community or the Government of Nepal for the former child soldiers before their discharge from the main and satellite cantonments. However, it tried hard to internationalize the issue doing politics rather to working on humanitarian backgrounds and resolving it as most of the officials of UNMIN were anti-communist ethics. Otherwise, former child soldiers should not be further victimized. As the former child soldiers could not be rehabilitated even in their own families and communities, a dozen of them had already committed suicide. Therefore, Nepal suffers for a long time from the wrong decision of the UNMIN on child soldiers.
The Government should revisit to accomplish the provision of the Comprehensive Peace Accord (CPA). Under Observance of the Human Rights, Fundamental Rights and Humanitarian Law of the CPA, the article 7.6 ensures Rights of Woman and Child. The article states that conflict affected Children shall, immediately, be rescued and necessary-appropriate assistance shall be provided for their rehabilitation.
The reappointing Team of the Truth and Reconciliation Commission should be out of politics and should guarantee the right to life, liberty, security and dignity of each former child soldier. The TRC shall register the complaints of former child soldiers under the definition of article 2.J (9) of the Enforced Disappearances Inquiry, Truth and Reconciliation Commission Act, 2014 “Any types of inhuman act committed against international human rights or humanitarian law or other crimes against humanity.”
The voices of a few former child soldiers to file a case in The Hague (the Court) against the former Maoist leaders have been a high vocal beyond the borders. While former Maoist Supremo Prachanda said, “If I will be taken to The Hague, I will return being a hero,” the forum of former child soldiers further widens. If any former child solider/representative or NGO representative files a case at the Office of the Prosecutor (ICC), the case shall be dysfunctional till transitional justice bodies, namely the Commission of Investigation on Enforced Disappeared Persons, and the Truth and Reconciliation Commission, function in Nepal. Besides, there is a political stability (three tiers elected Governments) maintaining law and order situation in the country. Despite stagnant economy, socio-cultural harmony exits. It is thus likely that the Pre-Trial Court of The Hague may reject the Prosecutor’s request to open an investigation to Nepal similar to Afghanistan of April 12, 2019. It means, there is far-away of The Hague Journey to the leaders of Nepal including the Maoist leaders in present day Nepal.
Nevertheless, the former child soldiers shall need to seek domestic resolution or transformation rather than talking of The Hague, arrest and detention. Moreover, the Government of Nepal must also listen to the voices of the former child soldiers as a guardian of ALL. Therefore, the indirect/direct informal (mediation-facilitation) and indirect/direct formal dialogues are the only ways left to resolve or transform the present impasse of the former child soldiers.
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Bishnu Pathak is a Ph.D. holder in Conflict Management and Human Rights, and president and director of the Conflict Study Center. He is a Board Member of TRANSCEND International for Nepal and also a BM of the TRANSCEND Peace University. Besides writing the book Politics of People’s War and Human Rights in Nepal, he has published a number of research articles on issues related to Human Rights, UN, Security, Peace, Civil-Military Relations, Community Policing, and Federalism. A Nobel Peace Prize nominee, he had been working as a former senior commissioner at the Commission of Investigation on Enforced Disappeared Persons (CIEDP), Nepal from February 2015-April 2019. He can be reached at firstname.lastname@example.org.
Tags: Africa, Asia and the Pacific, Child Soldiers, Child protection, Conflict, Human Rights, ICC, International Court of Justice, Justice, MENA, Military, Nepal, Nonviolence, Peace, Politics, Power, Rome Statutes, Social justice, Solutions, UN, United Nations, Violence, War, West, World
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