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Enforced Disappearance
By Dr Laifungbam Debabrata Roy
As one of the United Nations' most important statutory organs, the Commission on Human Rights enters into its 58th session from March 16 to April 27, this year it will be focusing on a number of areas within its wide mandate. One important area is the relatively less publicized human rights issue of missing persons.
The phenomenon of persons who go missing and never return is not new to human experience. People fail to return home and are then reported as missing by their families and friends for a variety of reasons. These range from the purely unexplained (or mysterious even) to armed conflict or war, natural disasters, internal disturbances, riots or criminal abduction. They may be even absconding voluntarily to escape justice or for other reasons.
In the case of people missing in armed conflicts, internal disasters or in certain other situations of humanitarian need the International Red Cross and Red Crescent movement may take action to trace the missing persons. The International Committee of the Red Cross (ICRC) has a long experience of tracing soldiers or other combatants who go missing in military operations ("missing in action") and for civilians reported missing as a consequence of armed conflict.
The interest of the Commission, however, will be looking at the human rights violation and crime of enforced or involuntary disappearance. This is a much more specific concept and a fairly recent disturbing phenomenon. Modern history has credited Adolf Hitler for its invention in his Nacht und Nebel Erlass (Night and Fog Decree) of December 7, 1941. The purpose of this decree was to seize persons in occupied territories suspected of "endangering German security" who were not immediately executed, to transport them secretly to Germany, where they disappeared without trace. In order to achieve the desired intimidating effect, it was prohibited to provide any information as to their whereabouts or fate.
The phenomenon reappeared as a systematic policy of state repressions during the late 1960s and early 1970s in Latin America, starting first in Guatemala and Brazil. The term "enforced disappearance" was first used by Latin American NGOs and is a translation of the Spanish expression "desaparicion forzada". The UN Commission was the first international human rights body to respond both in general terms and also in specific cases which had occurred in Chile since the military coup d'etat on September 11, 1973.
Since then, the practice of enforced disappearance has unfortunately become a truly universal phenomenon. Over the past 20 years, the Commission's thematic Working Group on enforced or involuntary disappearances (set up in 1980 as the first so-called "thematic mechanism" of the commission) has transmitted some 50,000 individual cases of disappearances to the government of almost 90 countries in all regions of the world. Only about 10 per cent of these cases could be clarified through the efforts of the working group. India has attracted the attention of this working group as one of the countries with the highest number of unclarified cases of enforced or involuntary disappearances.
The countries with the highest number of outstanding cases currently are Iraq and Sri Lanka, followed by Argentina, Guatemala, Peru, El Salvador, Algeria, Colombia, Chile, Indonesia, Iran, the Philippines, Lebanon, India, the Sudan, Mexico, the Russian Federation, Yemen, Honduras, Morocco, Ethiopia, Nicaragua and Turkey. In 2001, the largest number of cases reported to the working group occurred in Nepal, Colombia and Cameroon, while in 2000 and 1999, Indonesia, India, the Russian federation and Colombia had the largest number of reported
cases.
It may be worthwhile to mention here that a 15 years old child from Manipur, Yumlembam Sanamacha, disappeared from his home in 1998 and was never seen again nor was his case ever satisfactorily clarified by his alleged
perpetrators or through the courts of law. Manipur and, indeed, the troubled northeastern region of India have experienced hundreds of enforced
disappearances. In other parts of India, the coordination committee on disappearances in Punjab (CCCP) is still working to clarify thousands of allegations of enforced disappearances, many of which involve children, during the Khalistan movement. The People's Human Right Commission (PHRC) in Kashmir has recorded a phenomenal high incidence of unclarified enforced disappearances; many are children again.
Enforced disappearances in Jammu and Kashmir are estimated at 1,100 (Amnesty International, 2001) to more than 2500 according to some observers. In 2001 alone, the state government of J&K quoted the number of "disappearances" at both 750 and 1745.
The UN, last year, appointed an Independent Expert, Mandred Nowak, to
investigate the human rights violation known as enforced or involuntary disappearance. The commission, in its resolution 2001/46 (paragraph 11), charged him with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearances. The commission, in particular, further asked this expert to identify gaps "in order to ensure full protection from enforced or involuntary disappearance".
It emerges from Nowk's study that enforced disappearance is one of the most serious human rights violations, which if committed as part of a widespread or systematic attack against civilians, constitutes a crime against humanity. The crime of enforced disappearance is not only directed against the disappeared persons but equally against their families, friends and the society they live in. Often, the disappeared persons are killed immediately, but their children, parents or spouses continue to live for many years in a situation of extreme insecurity; anguish and stress, torn between hope and despair. They must, therefore, also be considered as victims of enforced disappearance.
In view of the extreme seriousness of this human rights violation, the international community at the universal and regional levels has taken measures in response. Certain standards have been developed in the framework of international human rights, humanitarian and criminal law. At the same time, it must be recognized that protection against enforced disappearance is a slowly developing concept with many gaps, disputed questions and uncertainties.
To illustrate, little is known that after the French expert in the then sub-commission on the prevention of discrimination and the protection of minorities, Louis Joinet had prepared a first draft in 1988, the commission elaborated a text, which was adopted in 1992 by the General Assembly as the Declaration on the protection of all persons from enforced disappearance.
In the third preambular paragraph, the declaration contains a working definition of enforced disappearances which is based on that of the working group on enforced or involuntary disappearances, "that persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the government, 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."
Until today, no specific human right not to be subjected to enforced disappearance has been recognized, although the human rights violation has occurred systematically for almost 30 years. It is generally considered as a multiple human rights violation but there is no agreement on which human rights, apart from the right to personal liberty, are actually violated by an act of enforced disappearance. The various attempts at defining enforced disappearance in international human rights and criminal law have had differing outcomes.
Although there seems to be general agreement that enforced disappearance needs to be combated by domestic criminal law measures (including the principle of universal jurisdiction) and by a broad range of preventive measures, no legally binding universal obligations exist in this respect. Since the protection of international criminal law will only apply in exceptional cases, universal jurisdiction in clearly defined individual cases of enforced disappearance, with appropriate punishment, will constitute the most effective measure to deter the practice of enforced disappearance in the future. Finally, there exist many gaps in respect of concrete measures of prevention (such as the obligation to maintain centralized registers of all places of detention and all detainees) and in respect of the right of disappeared persona and their families to an effective remedy and to reparation.
Thus, the gaps in the current international legal framework outlined in the present report clearly indicate the need for a "legally binding normative instrument for the protection of all persons from enforced disappearance" as referred to in paragraph 12 of commission resolution 2001.46. Such a legally binding normative instrument might be drafted as a separate human rights treaty, such as the draft international convention of the protection of all persons from forced disappearance, as an optional protocol to the convention against torture, or as an optional protocol to the international covenant on civil and political rights. Under the assumption that governments wish to avoid a further proliferation of treaty monitoring bodies, the human rights committee might be in the best position to undertake the additional task of monitoring states' compliance with their obligation to protect persons from enforced disappearance.
The commission on human rights will therefore be deeply interested in examining Nowak's report and resolve to urgently address this distressing human rights violation. It has already established an inter-sessional open-ended working group of the commission, with a mandate to elaborate, in the light of the findings of the independent expert (i.e. the present report), a draft legally binding normative instrument for the protection of all persons from enforced disappearance. Till a full protective mechanism comes into existence, and become universally accepted and enforceable, people will continue to be unaccounted as "missing; dead or alive."
(Courtesy: The Imphal Free Press) |
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