The concept of enforced disappearances is not a new one as it predates the twenty-first century and was by and large, for instance, committed during Germany's occupation of Europe between 1939 and 1945. Even to this day, this phenomenon persists in some countries throughout the world. An enforced disappearance occurs when someone is arrested, often without any warrant and/or reason, then detained or abducted by the state or by persons acting for the state, who subsequently deny that such a person is being held or conceal where the person is. The victims are in some cases also killed in the process. This places the disappeared person not within the ambit of the protection of the law. The person who has vanished is often not released. This has a perpetual effect on the person's family and friends, especially where the individual who has disappeared is the bread earner of the family, which amplifies the deprivation of the disappeared person's family's economic situation and leads them to a scenario of being socially marginalised. In most societies, such acts would not allow opponents or critics of the state to raise their voices against forced disappearance. Gradually it would take a toll for those who would want to speak out as it brings about a sense of dread and fear in the community as a whole. As enforced disappearances are frequently associated with a state's action, it is plausible to say that a human being does not simply 'vanish' but rather in the normal course of things someone is fully aware of her or his existing circumstances and is therefore responsible.
It must be borne in our minds that enforced disappearance is a crime under international law. The perpetrators of such a crime should not be given any impunity. Such a crime contravenes fundamental human rights and freedoms, including persons' right to security and dignity, the right to benevolent and proper detention, the right to a fair trial, the right to not be subjected to torture or cruel, inhuman or degrading treatment or punishment, and most notably, the right to life. Even if someone is released, they may face persisting physical and psychological repercussions. Moreover, this act is an offence against human dignity that is not acceptable under the freedoms asserted in the Universal Declaration of Human Rights.
The International Covenant on Civil and Political Rights, 1966, to which Bangladesh acceded in October 1998, sums up key rights for enforced disappearances that relate to the fundamental right to life (Article 6), the prohibition of torture (Article 7), the right to one's own liberty and security, and to ensure no such deprivation occurs (Articles 9 and 10). One may also appeal to this when an infringement occurs to her or his private and family life (Article 17). The freedom of thought and expression (Articles 18 and 19) and political rights (Article 25) are also contemplated here. As families are often victims to their loved ones' enforced disappearance, the established provision in this regard is Article 1(2) of the United Nations Declaration on the Protection of All Persons from Enforced Disappearance, 1992.
In order to tackle this predicament in the twenty-first century, the United Nations adopted the International Convention for the Protection of All Persons from Enforced Disappearance in 2006, which entered into force on December 23, 2010. The Vienna Declaration and Programme of Action's Part II, para 62, adopted by the World Conference on Human Rights in 1993, paved the way for the 2006 Convention. This is currently the foremost convention which endeavours to put a stop to enforced disappearances. By way of its provisions, it intends to reveal and deduce the truth when such events transpire, punish the persons responsible for it, and provide compensation to the victims and their families. A number of its provisions have instituted certain new standards which are imperative for every nation. Bangladesh is yet to sign, accede or ratify this pertinent treaty.
Under Article 38, the 2006 Convention is open for signature by all Member States of the United Nations. The International Coalition against Enforced Disappearances, a worldwide network of organisations of disappeared persons' families and NGOs which are working in conjunction against enforced disappearances, are trying to expedite its ratification and implementation of the Convention. The Convention observes that enforced disappearance is tantamount to a crime and more so, a crime against humanity in certain scenarios defined in international laws. Furthermore, as secret detention is frequently associated with disappearance of people, Article 17(d) encapsulates that no one may be held in secret detention and that detained persons shall be supervised by competent authorities and be able to communicate with their family or counsel, subject to the conditions of national laws. Concurrently, all victims have the right to learn the truth relating to the situation of their enforced disappearance and the development and results of any investigation, which the state party is to carry out by appropriate measures under Article 24 of the 2006 Convention.
Enforced disappearance is also prohibited in customary international humanitarian law. Nonetheless, most treaties do not use the term, but rather connote it as a violation of a range of customary rules of international humanitarian law, such as those prescribed in the International Committee of the Red Cross' Rule 98, and Rule 99 which specify the arbitrary deprivation of liberty. Conversely, the International Criminal Court in line with the Rome Statute views systemic and organized enforced disappearance as a crime against humanity [Article 7(1)(i)]. Even in the case of emergencies, the proscription of abductions and detention are not subject to derogation in the view of the UN Human Rights Committee.
Enforced disappearance have existed for a long time and for the most part in history, it has subsisted in military despotism. Such an act may not be condoned by any society. While a counter-terrorism approach is largely viable for national security and fighting crime in the new millennium, this action by states has also exasperated individuals to question the state. It must be emphasised that the victims and their families be given the chance for ample investigation without unwarranted obstacles. Transparency would definitely help and is also an amicable and promising demonstration of political will to address this important issue.
The author is an alumnus and Research Assistant, School of
Law, BRAC University and intern
of a law firm in Dhaka.
© 2024 - All Rights with The Financial Express
