Enforced Disappearance Has Been a Serious Violation of Human Rights

Enforced disappearance has been a serious violation of human rights for decades. It occurs when a person is secretly imprisoned or killed by agents of a State without any reasonable suspicion. The party who’s responsible for the crime doesn’t even admit to carrying out the act, thereby placing the victim outside the protection of the law. A forced disappearance generally leads to murder. The victim is abducted, illegally detained and tortured, then killed and the body is kept hidden. This has been a huge issue and states around the world haven’t taken adequate steps to address it.

“To give a clear definition of enforced disappearance, it has been defined as the ‘arrest, detention, abduction or any other form of deprivation of liberty committed by agents of the state or by persons or groups of persons acting with the authorization, 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.” [1]

“The Declaration on the Protection of All Persons from Enforced Disappearance was first instituted in 1992. In 23 September, 2005 the United Nations General Assembly adopted the International Convention for the Protection of All Persons from Enforced Disappearance.” [2] In this paper, I’ll be focusing on the strategies and other elements that are being employed by the Convention to curb Enforced Disappearances.

“In paragraph 1, I’ve mentioned about enforced disappearance being a serious human rights violation. The rights that are violated are right to recognition as a person before the law, right to liberty and security of the person; the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment; and the right to life.” [3] “It also violates the right to a family life as well as various economic, social and cultural rights such as the right to an adequate standard of living and the right to education. The disappearance of the family’s main economic support, particularly in the less affluent societies, frequently leaves the family in a desperate socio-economic situation in which the majority of the rights enumerated in the international Covenant on Economic, Social and Cultural Rights cannot be realized.” [4] A large number of women and children have been victims of enforced disappearance. This Convention lays a lot of emphasis towards curbing an illegal practice like this and also wants to protect the rights of various persons.

“The Preamble to this Convention acknowledges extreme seriousness of enforced disappearance, which constitutes a crime and, in certain circumstances defined in international law, a crime against humanity.” [5] ” The Convention also asserts that no one shall be subjected to enforced disappearance” [6] “and that no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political stability or any other public emergency, may be invoked as a justification for enforced disappearance.” [7]

Article 7 of the Convention places an obligation on the State to monitor the practice of enforced disappearance and to make it punishable by appropriate penalties which take into account its extreme seriousness. It also requires making of the death of disappeared person or the commission of an enforced person in respect of pregnant women, minors, persons with disabilities or other particularly vulnerable persons as aggravating circumstances without prejudice to other criminal procedures.

“Each state shall take necessary measures to establish its jurisdiction over the offence of enforced disappearance:

When the offence is committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;

When the alleged offender is one its nationals;

When the disappeared person is one of its nationals and the state party considers it appropriate.” [8]

“Each state shall take adequate measures to establish its jurisdiction over the offence of enforced disappearance when the alleged offender is present in any territory under its jurisdiction, unless it extradites or surrenders him or her to another state in accordance with its international obligations or surrenders him or her to an international criminal tribunal whose jurisdiction it has recognized.” [9]

These are some of the most essential provisions of the Convention. As you can see, the State has an obligation towards curbing this practice and also gives a clear description as to how the state should punish the offender for committing this unlawful act. It also talks about the various measures that the state has to address to establish its jurisdiction over the offence of enforced disappearance.

“Article 17 of the Convention obliges the State to take preventive measures to strengthen guarantees with respect to detention. It obliges States to take measures to prevent and punish under criminal law the adoption or removal of children born in captivity or whose parents are subjected to enforced disappearance.” [10]

“Lastly, it sets up the Committee on Enforced Disappearances, an innovative monitoring body with investigative powers (Part II of the Convention). In addition to the traditional duties of a treaty body (i.e. examining reports from States and individual and inter-State communications and submitting reports to the UNGA), this ten-member committee will perform a preventive function in issuing urgent appeals and conducting field visits in response to acute situations. It will coordinate its activities closely with treaty bodies and special procedures.” [11]

From this we can say that the Convention has taken adequate steps towards addressing enforced disappearance. But do the provisions of the Convention go far enough? This is the question I’m going to address in this paper. I’ll also be giving a brief historical overview of the Convention.

HISTORICAL OVERVIEW OF THE CONVENTION

“The General Assembly refers to the issue of enforced disappearance for the first time in December 1978. The resolution 33/173 was basically passed to address enforced disappearances. In 1979, the Commission on Human Rights gave the mandate to appoint a Subcommission and this Subcommission appointed a Working Group consisting of experts to examine questions related to enforced or involuntary disappearance. In 1988, the first draft of the UN Declaration was prepared by the French expert Louis Joinet in the Subcommission on the Prevention of Discrimination and the Protection of Minorities. In December 1992 in Resolution 47/133, the Declaration on the Protection of all Persons from Enforced Disappearance was adopted by the General Assembly. Elsewhere, in 1994 the OAS General Assembly adopted the Inter-American Convention on Enforced Disappearance of Persons. In 1998 the Subcommission for the Promotion and the Protection of Human Rights adopted a ‘Draft International Convention for the Protection of Persons from Enforced Disappearance’. This was drafted in the Working Group of administrative justice which was chaired by Louis Joinet. The Convention was adopted on June 29, 2006 and on November 13, 2006 the Third Committee of the General Assembly adopted the text with 103 co-sponsors. Finally on December 20, 2006 the text was adopted by the General Assembly.” [12]

INTERNATIONAL RESPONSE TO ENFORCED DISAPPEARANCES:

Enforced disappearance has caused a huge uproar around the world. It has violated the person’s individual rights and has also given the State the authority to arbitrarily abduct individuals for no particular reason. Countries that have been practicing enforced disappearance are Argentina, India, Algeria, Pakistan etc. This has been primarily practiced in Third World countries in the last few decades. However, this issue became a cause for international concern and the world decided to address this issue seriously.

Argentina:

“A few decades back, in Argentina’s ‘Dirty War’, thousands of civilians who were opposed to the military regime, disappeared. The mothers of these missing persons organized themselves and protested against this heinous practice. They have managed to place this issue on international agenda and their protest also lead to similar movements elsewhere in other countries of the world which were convulsed by ongoing conflicts in which the government forces and armed opposition groups resorted to disappearances.” [13] An organization called Mothers of the Plaza De Mayo [14] was formed during this dictatorship. It was an association of mothers whose children disappeared during the ‘Dirty War’. It was a unique organization of women who became human rights activists in order to reach a common goal i.e. to re-unite with their abducted children.

However, between 1998 and 2002, the Argentine courts indicted a number of military officers for human rights crimes not covered by the amnesties. These prosecutions focused on the kidnappings of prisoners’ babies and the crimes of Operation Condor, a coordinated campaign uniting the security forces of Southern Cone dictatorships to carry out joint operations against political opponents.

Russia- Chechnya:

“Enforced disappearance has also occurred in Chechnya. Russian human rights groups estimate there have been about 5,000 forced disappearances in Chechnya since 1999.” [15] “Most of them have been buried in mass graves. The Russian Government has failed to monitor this and nobody has taken accountability for these crimes that have been committed. A large number of victims have filed applications in the ECHR (European Court of Human Rights). The court ruled that the Russian government was guilty of violating the right to life and torture with respect to civilians who had died at the hands of Russian federal troops.” [16]

Pakistan:

“In Pakistan, the government has admitted to the Supreme Court that around 1,600 persons disappeared in 2008 and the Balochistan Provincial Ministry issued a list that contains 992 names of missing persons, on December 10, 2009. The disappeared are thought to include 168 children and 148 women. The police are complicit in these disappearances as police officers typically refuse to register First Information Reports (FIR) regarding cases of disappearances, eliminating the prospect of having such cases investigated, and therefore enabling impunity. The afore-mentioned list issued by the Ministry resulted from it making a public appeal for people to report missing persons. However, despite the Supreme Court and the Ministry now having lists of disappeared persons, there is only a small chance that any of these will be investigated, the victims’ whereabouts located or those responsible prosecuted due to police inaction.” [17] A lot of these acts have been orchestrated by the ISI (Inter Services Intelligence). The persons abducted are trained to become Jihadis and also for various other forms of espionage.

“The Jihadis that return to Pakistan after completing their assignments and have refused further assignments have reportedly been disappeared. The disappeared are thought to include 168 children and 148 women.” [18]

Despite the political change of leadership in Pakistan, the government hasn’t done enough to keep a watch on this unlawful act. The military still continues to be above the law and have been acquitted of all human rights abuses. This has been going on for a long time and also there is no form of transparency in the present political setup.

Finally, the question I’d like to address is whether the provisions of the Convention go far enough. I shall be doing a critical analysis on this subject and also on the Convention’s commitment on curbing this practice.

CRITICAL EVALUATION ON THE CONVENTION AGAINST ENFORCED DISAPPEARANCE

As I’ve mentioned, the Convention was formed in order to keep a watch on enforced disappearances. It is a violation of various non-derogable and essential human rights that have been enshrined in the Universal Declaration of Human Rights and various other Conventions. The 2 Conventions i.e. International Convention for the Protection of All Persons from Enforced Disappearance and Intra-American Convention on the Forced Disappearance of Persons have done a reasonably good job in raising this issue in the UN General Assembly. Human Rights groups have consistently stressed that preventive measures have to be taken to curb this practice. It requires 2 elements:

“Firstly, it should be declared a crime against humanity and have legal effects of the crime: no possibility of amnesty or political asylum for perpetrators, who would be subject to universal jurisdiction in whichever country they were found, regardless of the passage of time and who could not use the defense of obedience to superior orders. Secondly, the instrument must dictate effective mechanisms to prevent disappearances from taking place, to investigate the fate of the disappeared, to sanction those responsible, to provide compensation to the relatives of the victims, and to trace the children of the disappeared.” [19]

Several NGOs and regional organizations have also produced evidence related to enforced disappearances. “The Convention has already attracted 57 signatures when opened for signature in Paris.” [20] “The only country that hasn’t signed the Convention is USA because it didn’t meet their expectations.” [21] “The other Convention which is also monitoring this practice is the ICAED (International Coalition against Enforced Disappearances). It was founded and their primary objective is the working together towards ratification and effective implementation of International Convention for the Protection of all Persons from Enforced Disappearances.” [22]

LEGAL CHALLENGES OF THE CONVENTION:

“The Convention was set up to keep a watch on enforced disappearances. The United Nations has declared that enforced disappearance as a violation of human rights. Already, 2 Conventions have been set up to address this issue. The United Nations General Assembly Declaration on the Protection of All Persons from Enforced Disappearance” [23] addresses the nature of enforced disappearance as a circumstance involving persons who are:

“Arrested, detained or abducted against their will or otherwise deprived of their liberty by officials…followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law.” [24]

The U.S. has also recognized this definition. “In Forti v Suarez-Mason [25] , a federal district court stated that causing a disappearance in violation of customary international law can be characterized by 2 elements:

Abduction by state officials or their agents.

Official’s refusal to acknowledge the abduction of to disclose the detainee’s fate.” [26]

“The Convention on Forced Disappearance recognizes that forced disappearance is a crime that is a grave and abominable offence against the inherent dignity of the humans being, and the one that contradicts the principles and purposes the Charter of the Organization of American States and that the systematic practice of the forced disappearance of the persons constitutes a crime against humanity.” [27]

The Convention was also set up to investigate and prosecute acts of enforced disappearance. Several international organizations and regional NGOs have been forcing States to tackle this issue very seriously. I’ve already mentioned the important articles that were drafted to end this unlawful act.

“The Convention relies on primacy of domestic jurisdiction in holding individuals responsible for acts of enforced disappearance.” [28] “It places an obligation on the state to hold individuals responsible for committing this act and to assert its authority over enforced disappearance, where the offence is committed in its territory under its jurisdiction where the alleged perpetrator is one of its nationals and the state party considers it appropriate [29] .” “Domestic trials help to promote a sense of ownership of the accountability process in societies in which enforced disappearances occur; although acts should be of concern to all humankind.” [30]

Amnesty International has also been active on this issue. They have played a vital role in motivating states to sign the Convention. The organization condemns it as crimes under international law.

“In recent years, in the course of the “war on terror”, the USA, sometimes with the complicity of other governments, has acrried out enforced disappearances of terror suspects.  Amnesty International has campaigned to demand that the USA and all states reveal the whereabouts and fate of disappeared persons, and if they are not to be released that they are charged with a recognizably criminal offence and given a fair trial in accordance with international standards. Every year Amnesty International also joins activists around the world to observe 30 August as the International Day of the Disappeared, to remember those who have disappeared and their relatives” [31]  They seek to bring justice against the perpetrators who commit this unlawful act.