South Asians for Human Rights (SAHR), a democratic regional network, discussed common issues of human rights across the sub-region with special reference to enforced or involuntary disappearances. Experts including civil society activists, lawyers, as well as family members of victims of enforced disappearances participated in the discussion.
The International Convention for the Protection of All Persons from Enforced Disappearances (CED) defines enforced disappearances as; the arrest, detention, abduction, by state agents or persons/ groups acting with the authorization or support of the state, followed by a refusal to acknowledge the deprivation of liberty or concealment of the fate or whereabouts of the disappeared person, which place the person outside the protection of the law. The Convention is yet to be ratified by any South Asian country. Although India and the Maldives are signatories, enforced disappearances are not considered a crime within domestic legal frameworks in the sub region.
The context in which enforced disappearances take place in South Asia varies between countries reflecting the diverse political, socio-cultural and human rights issues prevailing across the sub-region. In Afghanistan since 1978, government forces, and armed non state actors and international interventions have led to involuntarily disappearnces; Bangladesh too faces an unstable political situation due to ongoing clashes between the ruling party and the opposition with increasing numbers of enforced disappearances of opposition politicians and family members which also pose as a threat to human rights activists and journalists. Thousands of people have been subjected to enforced disappearances by the Indian State Forces with impunity in the areas of Jammu-Kashmir where the struggle for self-determination is ongoing. Similarly in the North Eastern States like Manipur which are highly militarized since the 1950’s enforced disappearances is carried out with impunity; in the Maldives there is concern over the dissapearance of a journalist which creates fears for future occurances of a similar nature within an increasingly volatile political context; Nepal is yet to agree on a Constitution which has created a state of stagnancy in the political and socio-economic environment in the country and prolonged the quest for justice, reparation and accountability for the high number of disappeared persons during the period of the conflict; Pakistan too has forcibly dissapeared hundreds, if not thousands, of suspected members of armed groups, insurgents, political dissidents, and human rights defenders, and has passed laws seeking to legalise the practice of dissapearances and provide immunity to perpetrators; Sri Lanka has the second highest number of reported cases of enforced dissapearance as report to in the UN Working Group on Enforced or Involuntary Disappearances. and eventhough the number has reduced compared to the time of the war no efforts have been made to locate and determine the fate of those dissapeared and the culture of impunity continues unabated.
Counter-terrorism and national security laws in most of these countries have enabled and at times palpably encouraged enforced disappearances, especially of those opposed to the ruling regime as well as during times of civil conflict and strife. States may not invoke any circumstances whatsoever, including a state of war, internal political instability or any other public emergency to justify enforced dissapearances. States have a duty to conduct investigations, prosecutions and punish the perpetrators, irrespective of their official status. Enforced disapearances is a continuing offence. The state also has an obligation to provide reperative justice to the victims and victim families including; restitution, rehabilitation, restoration of dignity and guarantees of non-repetition.
Further, crimes of enforced disappearances implicate other gross human rights violations including torture and extra-judicial killings.
SAHR calls upon South Asian governments to;
- Ensure all persons held in secret or arbitraty detention are either released forthwith or charged with a recognisable criminal offence and brought promptly before a competant, independent and impartial judicial forum for a trial that meets international standards.
- Halt extraordinary rendition across international borders secretly transferring persons in detention
- Ratify the International Convention for the Protection of All Persons from Enforced Disappearances (CED), enact legislation which reflect the provisions of the Convention, including codification of EID as a distinct offence, amending domestic laws which contradict provisions of the Convention and recognize the competence of the Committee on Enforced Disappearances to consider individual complaints
- Repeal national laws and policies – especially counter terrorism and national security laws – that allow enforced disappearances and conduct credible investigations to prosecute alleged perpetrators
- Ensure that alleged perpetrators of enforced disappearances including members of the armed forces and other law enforcement agencies are prosecuted within the country’s national judicial system rather than under military jurisdiction.
- Implement with immediate effect, remedies and reparation for victims of the disappeared and other support for family members, in addition to the right to demand truth, justice and accountability
- Enact laws to provide adequate protection to witnessess and victims engaged in search for their loved ones, and pursuing justice
- End the culture of impunity that perpetuates enforced disappearances, custodial and other forms of torture and extra-judicial killings including political opponents, human rights activists, marginalized groups, and other groups of civilians caught in situations of civil conflict or strife
Hina Jilani Dr. Nimalka Fernando