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Defining enforced disappearance

Raisul Islam Sourav
IN last few days, the occurrences of abduction, kidnap, enforced disappearance, killing etc. have increased rapidly all over the country. Among them the recent seven murder case at Narayanganj has created most reaction among the citizens which exposed the cruelty and inhumanity of the incident as well as aware the country massively about the gravity of these offences. Apart from this, there are huge numbers of allegation in recent years regarding kidnapping, abduction, forced disappearance, extortion and finally killing by unidentified perpetrators.
The concept of enforced disappearance is unknown in our existing law. It is not only undefined in any penal law but also not treated as an offence in any way. Though there are provisions regarding kidnapping and abduction in our Penal Code, the offence of enforced disappearance is yet to be defined.
Enforced disappearance is a relatively new addition to state crime. After the expansion of this offence in December 2006, the UN adopted the International Convention for the Protection of All Persons from Enforced Disappearance. The convention aims to prevent enforced disappearances taking place, uncover the truth when they do occur, punish the perpetrators and provide reparations to the victims and their families.
The Convention delivers a definition of the crime of enforced disappearance and necessary state action in order to both prevent the occurrence of the crime and to allow for the investigation and prosecution of the culprits. As per the language of Article 2 of the mentioned Convention an enforced disappearance takes place when a person is arrested, detained or abducted by the state or agents acting for the state, who then deny that the person is being held or conceal their whereabouts, placing them outside the protection of the law.
Article 1 (2) also furnishes, in no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance. In addition to this, under Article 4 each State party has an obligation to take necessary measures to ensure that enforced disappearance constitutes an offence under its criminal law. Moreover, the said Convention added in Article 6(1) (a) & (b) that any person who commits, orders, solicits or induces the commission of, attempts to commit, is an accomplice to or participates in an enforced disappearance; and a superior who: knew, or consciously disregarded information which clearly indicated, that subordinates under his or her effective authority and control
were committing or about to commit a crime of enforced disappearance and he/she shall be liable for the commission of that offence.
Apart from this, the Rome Statute of the International Criminal Court, the Committee of the Red Cross Rules of Customary International Humanitarian Law, the InterAmerican Convention on the Forced Disappearance of Persons prohibits the act and obliges the State parties to define forced disappearance of persons as a crime in their national law and to impose a appropriate punishment commensurate with its gravity. Hence we need to legislate a new law urgently to prevent the crime effectively.
Enforced disappearance is a crime under international law for which states are obliged to hold perpetrators responsible through criminal investigation and prosecution. Moreover, it amounts to a crime against humanity when it is committed as part of a widespread or systematic attack on a civilian population. Forced disappearance is a particularly cruel human rights violation; a violation of the person who has disappeared and a violation of those who love him/her. The disappeared person is often tortured and in constant fear for their life, removed from the protection of the law, deprived of all their rights and at the mercy of their captors while every person has the right to life, liberty and security of person.
Unacknowledged detentions or involuntary and forced disappearances constitute a violation of these rights including right to security and dignity of person; right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment; right to humane conditions of detention; right to consult with a legal personality; right to a fair trial; right to a family life and when the disappeared person is killed, the right to life which are guaranteed as fundamental rights and enforceable by the court under the provision of the Constitution.
Often, people who have disappeared are never released and their fate remains unknown. Their families and friends may never find out what has happened to them. But the person has not just vanished. Someone, somewhere, knows what has happened to them. Someone is responsible but all too often the offenders are never brought to justice. However, the sufferer and his/her family have right to get fair justice and to reparation. They also have the right to know the truth about the circumstances of an enforced disappearance and the fate of the disappeared person, and the right to freedom to seek, receive and impart information to this end.
State must commit to conclude the practice of forced disappearance by taking steps to respect, protect and fulfill the rights of individuals not to be subjected to enforced disappearance. Bangladesh should ratify the convention and incorporate the offence in domestic law immediately. Also the State should take effective legislation, administrative, judicial or other measures for the taxpayers to prevent and provide protection against unacknowledged or involuntary and forced disappearances. Further, states must undertake the issue of impunity and ensure that the criminals are brought to justice.
THE WRITER IS A LEGAL RESEARCHER & RIGHTS ACTIVIST.