‘In particular no action detrimental to the life, liberty, body, reputation, or property of any person shall be taken except in accordance with law’
Published in The Dhaka Tribune on Sep. 23 by Sharif Hasan, Lam-ya Mostaque ::
“Tears are falling from my eyes, as I sit and cry. Blood is dripping from my heart. I have so much pain; I’m hurt a lot, I can’t explain all this; I’m just falling apart. I wish I could forget all this and leave it But I can’t.”
This was one of the authors feelings after hearing the victims relative description of enforced disappearance who attended the convention of the victim families against involuntary disappearances at the National Press Club on August 30.
The increasing tendency of the occurrence of enforced disappearances pose a serious threat to human security. The criminality of enforced disappearance may be regarded as an apparatus to create panic in society – when victims are picked up and never seen again and the victims’ families are left behind in a whirl of fear, insecurity and, after all, economic crises.
But it is pretty clear that hundreds of people have disappeared under mysterious circumstances, and in most cases they were victims of the secret operations of the law enforcement agencies. For example, Ain o Salish Kendra (ASK), a human rights watchdog, reports that some 74 people have been the victims of such disappearance in the first six months of this year alone. Of those, 39 could be traced, while bodies of 23 have been found
The Narayanganj incident in which seven people were kidnapped and killed, reportedly by a few RAB personnel has exposed almost everything. It is difficult to suggest what the victims’ near and dear ones should do to seek justice. The killers in this particular case are not petty criminals, and a number of questions, mostly unpleasant and undesirable, will have to be answered before the case can be resolved in the true spirit of justice.
However, much the home minister may deny that these were cases of “enforced disappearance,” or resort to semantics to call them ‘abductions,’ he owes it to the public to explain why these incidents are happening in the first place. Even if these are cases of “abduction,” then the responsibility still falls squarely on the shoulders of the police to rescue the victims as well as to arrest the perpetrators.
A brief history
During World War II, Nazi Germany set up secret police forces, including branches of the Gestapo in occupied countries, which they used to hunt down known or suspected dissidents or partisans. This tactic was given the name Nacht und Nebel (Night and Fog), to describe those who disappeared after being arrested by Nazi forces without any warning. The Nazis also applied this policy against political opponents within Germany. Most victims were killed on the spot, or sent to concentration camps, with the full expectation that they would then be killed.
Guatemala was one of the first countries where people were disappeared as a generalised practice of terror against a civilian population. Enforced disappearance was widely practiced by the government of Guatemala during the 36-year Guatemalan Civil War. An estimated 40,000 to 50,000 individuals disappeared through the actions of the Guatemalan military and security forces between 1954 and 1996.
The tactic of disappearance first saw widespread use in Guatemala during the mid-1960s, as government repression became widespread when the military adopted harsher counterinsurgency measures.
The first documented case of forced disappearance by the government in Guatemala occurred in March 1966, when 30 PGT (Partido Guatemalteco del Trabaho) associates were kidnapped, tortured and killed by the security forces; their bodies were put in sacks and dumped at sea from helicopters. This was one of the first major instances of enforced disappearance in Latin American history.
Back in 1970s, the authoritarian regimes of Latin American countries adopt such heinous policy of enforced disappearances. Several hundred thousands of people were made to disappear by the military and paramilitary forces. Secret imprisonment and enforced disappearances were the common practice of the day.
As the countries began to recover and made the transition to democracy the incidence of enforced disappearances waned. Such disappearance is also common in countries that experience civil war. Rights groups estimate that as many as 100,000 to 120,000 people have become victims of disappearance in these countries since the strife broke out.
Ensaaf, a non-profit organization working to end impunity and achieve justice for mass state crimes in India , allege their law enforcement agencies are engaged in such practices in Kashmir and in a few north-eastern states.
In recent times the virus has transferred to other countries that pride themselves as democratic. Although these states have – parliaments, executives, judiciaries and periodic elections, and are under civilian rule, in reality they are no less authoritarian than the much detested military dictatorships.
International Convention on enforced disappearances
The International Convention for the Protection of All Persons from Enforced Disappearance (ICCPED) is an international human rights instrument of the United Nations, and is intended to prevent forced disappearance defined in international law, crimes against humanity.
Following a General Assembly resolution in 1992 containing a 21 article declaration about enforced disappearance, and its resolution of 1978 requesting that recommendations be made, the Commission on Human Rights established an “inter-sessional open-ended working group to elaborate a draft legally binding normative instrument for the protection of all persons from enforced disappearance” in 2001. In 2002, the UN Commission on Human Rights formed a working group to formulate a draft which appeared in a General Assembly session in September, 2005.
Finally, The Group concluded its work in 2006 and its draft international convention was adopted by the Human Rights Council on June 29, 2006, and welcomed the offer by France to host the signing ceremony. The text was adopted by the United Nations General Assembly on December 20, 2006, and opened for signature on February 6, 2007. It entered into force on December 23, 2010. As of July 2014, 93 states have signed the convention and 43 have ratified it.
Article 1 of the Convention states that: No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.
“Enforced disappearance” is defined in Article 2 of the Convention as:
The arrest, detention, abduction, or any other form of deprivation of liberty by agents of the state or by persons or groups of persons acting with the authorisation, support, or acquiescence of the state, followed by a refusal to acknowledge the deprivation of liberty, or by concealment of the fate, or whereabouts of the disappeared person, which place such a person outside the protection of the law.
Crime against humanity is declared in Article 6 of the convention as:
The widespread or systematic use of enforced disappearance is further defined as a crime against humanity.
The government of Bangladesh has ratified the Convention against Torture, but has yet to accede to the International Convention for the Protection of All Persons from Enforced Disappearance.
Moreover, as a party to the International Covenant on Civil and Political Rights (ICCPR), since September 6, 2000, Bangladesh has obligations to implement Articles 2 and 6 for protecting the right to life of its citizens. According to Article 2 and 6 of the ICCPR, Bangladesh has the obligation to ensure the right to life of its people, and ensure prompt and effective reparation where violations occur. It is also obliged to bring legislation into conformity with the ICCPR.
Constitutional rights vs reality
The Constitution of Bangladesh is the earnest expression of the will of the people, and of course the supreme law of Bangladesh. It is a constitution where democracy, human rights, freedom of expression and conscience have been guaranteed.
Article 32 of the Bangladesh Constitution guarantees the right to life and liberty, which reads: “No person shall be deprived of life or personal liberty save in accordance with law.” This provision exists only on paper. The life of the families of the victims of enforced disappearances tells the real tale.
Moreover Article 31 of the Constitution reads: “[to] enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation, or property of any person shall be taken except in accordance with law.”
In reality, these provisions have not been implemented, and this very fundamental right is being repeatedly violated with complete impunity. Enforced disappearances, that took thousands of human lives in the early 1970s and continued during the tenures of the successive governments with fewer numbers of cases, have resumed, without consequence, in Bangladesh after the RAB started operating in the country.
The constitutional guarantees to protect the rights (to life, of personal safety, and of liberty) of the citizens are mere parchments without any practical value in the real lives of the people. Disappearances continue despite the fact that the country has the obligation as per the Constitution of the country and international human rights instruments.
Moreover, the families of victims of enforced disappearances are refused access to the grievance procedures whenever allegations are brought against the agents of the state. The police refuses to register complaints. The few families that are not dissuaded, are forced to modify their complaints by removing the names of the law-enforcement agents from the list of the alleged perpetrators.
The complaints are registered only when the complainants bring allegations against “unidentified persons.” This makes the case, one of a “missing person,” rather than a case of enforced disappearance.
As a result, seeking justice for the disappeared victims is impossible at the stage of registration of the complaint itself, never mind the dream of credible investigation or prosecution. Additionally, state agents systematically intimidate the relatives of the disappeared victims, forcing families into silence.
We believe that it is the state’s responsibility to provide safety and security to its citizens rather than be in denial, virtually giving indulgence to possible abuse of power by those who are supposed to protect citizens. Demands should also be made to sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearance. Enforced disappearances cannot be permitted in a civilised society. Our record in this particular area is quite embarrassing. The rule of law is the first casualty.