Failure to criminalize enforced disappearance a major obstacle to justice in South Asia – New ICJ report

South Asian states can only address the tens of thousands of cases of enforced disappearances by recognizing enforced disappearance as a serious crime in domestic law, said the ICJ today.

On the eve of the International Day of the Victims of Enforced Disappearances, the ICJ 58-page report  No more ‘missing persons’: the criminalization of enforced disappearance in South Asia  analyzes States’ obligations to ensure that enforced disappearance constitutes a distinct, autonomous crime under national law.

It also provides an overview of the practice of enforced disappearance, focusing specifically on the status of the criminalization of the practice, in five South Asian countries: India, Pakistan, Bangladesh, Sri Lanka and Nepal.

For each State, the report briefly examines the national context in which enforced disappearances are reported, the existing legal framework, the role of the courts; and the international commitments and responses to recommendations concerning criminalization.

“It is alarming that despite the region having some of the highest numbers of reported cases of disappearances in the world, enforced disappearance is not presently a distinct crime in any South Asian country,” said Frederick Rawski, ICJ’s Asia Director.

“This shows the lack of political will to hold perpetrators to account and complete apathy towards victims and their right to truth, justice and reparation,” he added.

In Nepal and Sri Lanka, draft legislation to criminalize enforced disappearance is under consideration.

Though the initiatives are welcome, the draft bills in both countries are flawed and require substantial improvements to meet international standards.

In the absence of a clear national legal framework specifically criminalizing enforced disappearance, unacknowledged detentions by law enforcement agencies are often treated by national authorities as “missing persons” cases.

On the rare occasions where criminal complaints are registered against alleged perpetrators, complainants are forced to categorize the crime as “abduction”, “kidnapping” or “unlawful confinement”.

These categories do not recognize the complexity and the particularly serious nature of enforced disappearance, and often do not provide for penalties commensurate to the gravity of the crime.

They also fail to recognize as victims relatives of the “disappeared” person and others suffering harm as a result of the enforced disappearance, as required under international law.

“Like torture and extrajudicial execution, enforced disappearance is a gross human rights violation and a crime under international law,” said Rawski.

“South Asian States must recognize that they have an obligation to criminalize the practice with penalties commensurate with the seriousness of the crime–filing “missing” person” complaints in cases of disappearance is not enough, and in fact, it trivializes the gravity of the crime,” he added.

Other barriers to bringing perpetrators to account are also similar across South Asian countries: military and intelligence agencies have extensive and unaccountable powers, including for arrest and detention, often in the name of “national security”; members of law enforcement and security forces enjoy broad legal immunities, shielding them from prosecution; and military courts have jurisdiction over crimes committed by members of the military, even where these crimes are human rights violations, and proceedings before such courts are compromised by their lack of independence and impartiality.

Victims’ groups, lawyers, and activists who work on enforced disappearance also face security risks including attacks, harassment, surveillance, and intimidation.

A comprehensive set of reforms, both in law and policy, is required to end the entrenched impunity for enforced disappearances in the region – criminalizing the practice would be a significant first step, said the ICJ.

Contacts:

Frederick Rawski (Bangkok), ICJ Asia Pacific Regional Director, e: frederick.rawski(a)icj.org

Reema Omer, ICJ International Legal Advisor (South Asia) t: +923214968434; e: reema.omer(a)icj.org

Thyagi Ruwanpathirana, ICJ National Legal Advisor (Sri Lanka), e: thyagi.ruwanpathirana(a)icj.org

Background

Under international law, an enforced disappearance is the arrest, abduction or detention by State agents, or by people acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the detention or by concealing the fate or whereabouts of the “disappeared” person which places the person outside the protection of the law.

The UN General Assembly has repeatedly described enforced disappearance as “an offence to human dignity”.

South Asia-Enforced Disappearance-Publications-Reports-Thematic Reports-2017-ENG (full report in PDF)

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