• Bangladesh plans to sign the ‘International Convention for the Protection of All Persons from Enforced Disappearances’ soon, a top official of the interim government said.
• The signing may take place before August 30.
• The ‘International Day of the Victims of Enforced Disappearances’ falls on August 30.
• The interim government is considering forming a commission to investigate the incidents of forced disappearances as many people disappeared during the reign of the ousted Sheikh Hasina government.
• Hasina fled to India on August 5 after resigning from her post amidst unprecedented anti-government student-led protests.
• The Hasina-led government was replaced by an interim government, and 84-year-old Nobel laureate Muhammad Yunus was named its Chief Adviser.
What is enforced disappearance?
A disappearance has a doubly paralysing impact:
i) On the victim, who is removed from the protection of the law, frequently subjected to torture and in constant fear for their lives.
ii) On their families, ignorant of the fate of their loved ones, their emotions alternating between hope and despair, wondering and waiting, sometimes for years, for news that may never come.
• Enforced disappearance has frequently been used as a strategy to spread terror within societies. The feeling of insecurity generated by this practice is not limited to the close relatives of the disappeared, but also affects their communities and society as a whole.
• Enforced disappearance has become a global problem, and is not restricted to a specific region of the world.
• Once largely a practice of military dictatorships, enforced disappearances can be perpetrated in complex situations of internal conflict of any kind, especially as a means of political repression of opponents.
• New patterns are emerging, including that of short-term enforced disappearances, whereby persons are placed in secret detention, outside the protection of the law.
• They may resurface shortly thereafter, either dead or alive. If they are alive, it is likely that they have been tortured, without ever having been brought before a judge or any other civil authority.
• “Short-term enforced disappearances” also occur when persons are detained (sometimes in the context of demonstrations) and the authorities subsequently refuse to provide information about the location of those persons.
• Enforced disappearances can also take place in the context of migration, sometimes when individuals leave their country as a consequence of a threat or risk of being subjected to enforced disappearance there. People sometimes disappear during their journey or in the country of destination.
• Enforced disappearances can take the form of abductions for political or other reasons, they can occur in the context of detention or deportation processes, or they may be a consequence of smuggling or trafficking.
• In some cases, States may resort to transnational transfers leading to enforced disappearances with the participation, support or acquiescence of other States, in an attempt to capture their nationals or third-country nationals, often as part of purported counter-terrorism operations.
• In addition, non-State actors that exercise government-like functions or de facto control over territory and population are increasingly implicated in the commission of disappearances, often in the context of extrajudicial executions or in organised crime activities, such as trafficking in persons.
International Convention for the Protection of all Persons from Enforced Disappearances
• The International Convention for the Protection of all Persons from Enforced Disappearances (ICPPED) was adopted in 2006.
• ICPPED is the first universally legally binding human rights instrument concerning enforced disappearance.
• It was preceded by the Declaration on the Protection of All Persons from Enforced Disappearance proclaimed by the General Assembly in December 1992, which remains a valid reference as a body of principles for all States and some of its provisions reflect customary international law on the subject.
• The adoption of the ICPPED was prompted by the tireless advocacy of families of disappeared persons and NGOs from across the world, which emphasized the pressing need for a universal treaty to effectively prevent and eradicate this heinous practice.
• Indeed, the existence of relevant gaps in the international legal framework for the protection from enforced disappearance was confirmed in 2001 by the independent expert appointed by the Commission on Human Rights to examine the available legal tools and assess their effectiveness and completeness.
The independent expert outlined several gaps in the international legal framework. Some of the are:
i) The lack of recognition of a specific human right not to be subjected to enforced disappearance.
ii) The absence of a legally binding universal obligation on the applicability of universal jurisdiction.
iii) Many loopholes regarding measures of prevention.
• The expert held that these gaps clearly indicated the need for a legally binding normative instrument for the protection of all persons from enforced disappearance.
• Following the report of the independent expert, in 2003, the Commission on Human Rights decided to draw up such a treaty.
• The negotiation process lasted three years and the ICPPED was eventually adopted in 2006, entering into force in 2010.
• On February 6, 2007, the historic opening for signature of the Convention took place in Paris, where 57 countries signed it.
• India signed the ICPPED on February 6, 2007, but has not ratified it.
• The Convention entered into force on December 23, 2010 and with it the Committee on Enforced Disappearances was established.
• As many as 98 countries have signed the convention and 75 have ratified it.
• The Convention creates an obligation for States to make the offence of enforced disappearance punishable by appropriate penalties which take into account its extreme seriousness.
• It also affirms that enforced disappearances constitute a crime against humanity when practiced in a widespread or systematic manner as did the Declaration.
• The Committee on Enforced Disappearances (CED) is the body of independent experts which monitors the implementation of the Convention for the Protection of all Persons against Enforced Disappearance by the States parties.
• The Committee and its Secretariat work daily to support victims, civil society organisations, National Human Rights Institutions and States to search for and locate disappeared persons, eradicate, punish and prevent this crime, and repair the damage suffered by the victims.
Definition of enforced disappearance in the Convention
An enforced disappearance is considered to be 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.
It is characterised by three cumulative elements:
i) Deprivation of liberty against the will of the person.
ii) Involvement of government officials, at least by acquiescence.
iii) Refusal to acknowledge the deprivation of liberty or concealment of the fate or whereabouts of the disappeared person.
How does the Convention protect people?
The Convention includes terms that:
i) Provide that no one shall be subject to enforced disappearance without exception, even in time of war or other public emergency.
ii) Oblige States parties to criminalise enforced disappearance and make it a punishable offence.
iii) Provide that enforced disappearance constitutes a crime against humanity when practiced in a widespread or systematic manner.
iv) Oblige States to search for disappeared persons, investigate their disappearance, and provide victims with access to justice and reparation.
v) Oblige States to afford one another the greatest measure of mutual legal assistance and cooperation for the search and investigation.
vi) Prohibit secret detention.
vii) Oblige State parties to guarantee minimum legal standards around the deprivation of liberty, such as maintaining official registers of persons deprived of liberty with minimum of information and authorising them to communicate with their family, counsel, or any other person of their choice.
