sofiabhambri
- Jun 8, 2021
- 9 min read

Enforced or Involuntary Disappearances: An Anathema to Human Rights

Introduction

As the name suggests, enforced or involuntary disappearance is simply the act of making someone disappear against their will and interest. The activity generally refers to arrest, detention, abducting of a person and is followed by the refusal to acknowledge the fate of the person disappeared. The state officials or even the non- state actors immune their agents to arrest the person without warrant, charge or prosecutions. The victims find themselves at the vulnerable risk. Involuntary disappearance is something different from confinement or extrajudicial execution. The act of involuntary disappearances now no longer simplest reasons the sufferers to go through, however additionally their families and loved ones suffer from psychological trauma with the feelings swinging between hope and disillusionment.

Historical background

Enforced or involuntary disappearance is frequently identified as violent techniques especially utilized by the states and it had records with coup d’états, civil wars or the on-going internal conflicts. The enforced or involuntary disappearances widely came to be known in the late 1970s and the early 1980s during the ‘Dirty War’ at Argentina. Dirty War is also called the Process of National Reorganization and it was an infamous campaign by the Argentine Military dictatorship against the suspected left-wing political opponents, wherein it was reported that between 9000 to 30,000 residents had been kidnapped, murdered and disappeared. The citizens subjected to disappearance mainly included workers, peasants, students and unionists who were exercising their freedom of speech and expression, considering themselves the political subjects. Such crime of enforced disappearances was also reported at Brazil, Uruguay, Chile, Peru, and Guatemala. Although such practice got global attention during the war at Argentina, it had been carried in Guatemala since the early 1960s which was later geographically recognized as Philippines, El Salvador, Sri Lanka and Syria. The earliest instance of enforced or involuntary disappearances was later traced at Germany during the regime of Hitler on December 7, 1941. It was reported that the people who resisted against the working of the Nazi occupation were either tried at special courts or were forcefully disappeared and executed. In the contemporary world, such crime of involuntary disappearances is reported mainly at China, Sri Lanka, Nepal, Iran, Iraq, Pakistan, Bangladesh, Argentina and Algeria. It is likewise pretty essential to say that the maximum number of enforced or involuntary disappearances was reported between 1980s and 2000. Even the 9/11 terror attack at America could be an instance of involuntary disappearances subjected to diverse dynamics.

Elements of Involuntary or Enforced Disappearances

Use of force- The main reason behind such crime is that people are taken under the custody of officials and even after obtaining their statement they are subjected to forceful disappearances. Involuntary or enforced disappearances as the name suggests is backed by the use of force and this could differentiate such disappearance from other form of disappearances.
Torture- The international jurisprudence defines involuntary or enforced disappearances as a form of torture. The act results in torture for not only the victims but also for their relatives. For example- prolonged isolation and depriving a person of communication are themselves so cruel that it is a severe form of torture as stated by the Inter- American Court of Human Rights. In the case of Kurt v. Turkey, the court held that the apprehension suffered by the mother of the victim (applicant) served her with stress and anguish.
Arbitrary detention- Enforced or involuntary disappearances are often the result of arbitrary detention and arrest of the person without warrant.
Continuing offence- The crime of involuntary disappearance is a continuing offence. It generally begins at the time of abduction and continues till the state acknowledges such crime or the victim is released. Hence, the state is held responsible for such crime before any relevant national or international legal instruments enter to it.
Crime against Humanity- International Convention on involuntary disappearance recognizes such crime as a crime against humanity because it involves attack, attack that particularly targeted the civilians, attack that was widespread in nature and the perpetrator had the knowledge of attack.

The problems

Involuntary or enforced disappearance causes problems that include-

Tool of terror- The crime is most often used as a tool to spread terror in the society. The feeling of distress, anguish and insecurity not only affect the victims and their relatives but the society as a whole.
Global issue- The crime of enforced or involuntary disappearance now happens in every region in wider range. The act is mainly carried by the government due to internal conflicts or to suppress the on-going political oppositions. The recent instances have proved that non- state actors or armed opposition are responsible for massive disappearances.
Who is at risk?- The act basically put Human Rights offenders, relatives of the victim, society and lawyers at risk.
Agony and danger for families- The families experience slow anguish and distress. The life of whole family goes in vain when they start searching for truth.
Men are the real target, women led to struggle- Globally, it was reported that the majority of victims of enforced disappearances are the men and the women are subjected to intimidation, persuasion and violence.

Constituents of Enforced or Involuntary Disappearances

The three distinguishing elements that outline enforced or involuntary disappearance are as follow-

The man or woman is disadvantaged of his liberty towards his will.
The nation officers are concerned as a minimum through acquiescence.
The actors concerned in the crime refuses to acknowledge the deprivation of liberty or the whereabouts of the person disappeared.

Recent occurrences

Myanmar- Human Rights watch dog on February 1, 2021 reported that Myanmar’s Military Junta has forcibly disappeared hundreds of people. Politicians, election officials, journalists, activists and protestors were taken in custody forcibly by the authorities. They were constrained from accessing to their families and legal professionals in violation to international law. People suspected of participating in anti- coup demonstrations or in opposition to the civil disobedience movement have been arrested and forcibly disappeared. Human Rights watch dogs were able to identify the location of 2500 detainees. The use of arbitrary arrests and enforced disappearances by the Military Junta created fear in the mind of anti- coup protestors. Till February 2021, the Human Rights watch dogs were able to meet 16 such families who have reported about enforced disappearances. One family told about the phone call from their elder son who sounded like distress after four days of disappearance. It was reported that no formal communication was made about whereabouts of victims, families feared whether they are still alive or dead.
China- The Working Group of China has received numerous reports of enforced disappearances from either the family members or the society of the victims. The act was mainly committed in the pretext of re-education to prevent terrorism. It was reported that massive number of involuntary disappearances had been occurred in the Xinjiang Uyghur autonomous region. The minorities were forcibly sent to what Chinese authorities call as ‘vocational education and training centers’ and the relatives have no idea on their whereabouts. The Working Group Chair with the help of the family members of the victims is trying to find the victims who are forcibly disappeared. The Residential Surveillance at a Designated Location (RDSL) under article 73 of the amended Criminal Procedure laws is against the individuals putting state security at danger and the another issue that requires concern. RDSL basically puts the under incommunicado detention and no formal communication is made to the family and it also amounts to enforced or involuntary disappearances.
Sri Lanka- It is the state with second highest number of involuntary disappearances in the world. As reported, the number of victims subjected to disappearances lied between 60,000 and 100,000 in the late 1980s and 1000 of people since the year 2015, wherein the majority of victims were ethnic Tamils. Several activists and rights organization made an appeal to the International Community to refer Sri Lanka to the International Criminal Court in 46th UNHRC session in Geneva from 23rd February to 23rd March, 2021. However, it was also reported that the government initiative to work on enforced disappearance is working and the state has now been promoting cultural impunity for such crime.
Pakistan- In the state like Pakistan, enforced disappearance is being committed in the name of counter terrorism measures. Imran Khan, the Prime Minister of Pakistan met with the families of people who had been forcibly disappeared. After the meeting on 18th March, 2021 the PM directed for quick investigation. The families in Islamabad protested with the photos of relatives who had been arbitrarily detained by the security forces before disappearing. The High Court of Islamabad heard the petition on a disappearance case from 2015 and held that the PM and his cabinet were responsible for the failure of state to protect their citizens. The criminal justice system and enforcement agencies have failed to demonstrate the political will to end such crimes of disappearances.
Bangladesh- The situation in Bangladesh is somewhat same to that of Pakistan, where involuntary disappearances are committed in the name of counter terrorism measures. The UN working group showed their interest in visiting to Bangladesh in relation to two cases of enforced disappearances and the victims were Ansar Ali and Saidur Rahman Kazi. The former victim had been abducted from Dhaka by armed men on April 18, 2012 and the later victim had been arrested by police personnel from Jashore Municipality Park on April 5, 2015.

Global Measures

United Nations Working Group on Enforced or Involuntary Disappearances (WGEID) – In the year 1980s, the United Nations Commission on Human Rights extensively referred to as United Nations Human Rights Council decided to establish a working group. The working group will be established for a period of one year, consisting of five members to serve at the best of their capacity with the aim to examine all the relevant questions pertaining to enforced disappearances. The working will not only examine the questions but also assistance will be provided to the families who made a report of disappearances. The states are also obliged to monitor the progress of the state by fulfilling obligations and assistance to their respective government in its implementation. The implementation program will also require the assistance of Non-governmental Organizations (NGOs) to overcome such crime.
International Conventions for the Protection of all persons from enforced disappearances in 2006- The International Convention was adopted with the aim to protect the rights of citizens and set the victim free from enforced disappearance. The convention came into effect in the year 2010 and a Committee on Enforced Disappearances (CED) was established. CED and WGEID are co-extensive to each other and they seek to collaborate in order to strengthen the efforts to prevent and eradicate enforced disappearance. The number of the participating states in the treaty is less as compared to other treaties. It is reported that only 8 Asian states have ratified the treaty, although the signatories were 63 in number. The treaty is ratified only by the four East- Asian states including Cambodia, Japan, Mongolia and Sri Lanka. India although being a signatory to the treaty has not yet ratified it.

Relevant laws in India

In India, till date we do not have any legislation specifically for enforced disappearances. The citizens are protected from torture, extra judicial killings and forced disappearances via International and Constitutional legal protections that are available. We have the Armed forces and special powers act, 1958, Prevention of torture bill, 2017, Right to Information Act, 2005, etc.

Observation

Enforced disappearance has now become the global issue and is a serious matter of concern. It has been recognized as a crime at international level. Involuntary or enforced disappearance infringes the right of victim guaranteed under Universal Declaration of Human Rights and hence such crime is anathema to human rights. The crime is violation of both the International Convention on Human Rights as well as other major instruments of International Human Rights.

Suggestion

Enforced or involuntary disappearance is a heinous crime and is against humanity. The crime deprives the victim of his basic human rights that are guaranteed at the international level. The pain and the sufferings of the families do not end unless and until they are able to find the location of their cherished ones. Enforced disappearance is committed at massive rate mainly in the Asian countries and it is the need of the hour that they should abide by the obligations and responsibilities more seriously. The state should prohibit the culture of impunity in order to prevent disappearances. The law of the land is not sufficient to deal with such crime and hence the International Conventions for the Protection of all persons from enforced disappearances should be signed and ratified by more states, wherein the experts from all over the globe could participate to deal with all the relevant issues of enforced disappearance. Since involuntary disappearance is a continuing offence, it requires more of comprehensive approach. The international community should be strengthened and different working chairs should be established to burn the roots of such crime at the earliest.

Conclusion

The act of enforced or involuntary disappearance is serious offence and requires global attention. It is widespread and systematic in nature and is committed the civilians as a whole. Enforced disappearance is antithetic to human rights. The International Community should collaborate and joint efforts should be emphasized upon to eradicate such global crime. The International Human Rights should be strict enough to prevent enforced disappearance. Those responsible for such crime must be brought to fair trial and effective remedy should be provided to victims as well as their family members.

References

Submitted by-

Akriti Sinha

2nd Year BA LLB (Hons.)

Central University of South Bihar, Gaya

S. Bhambri & Associates (Advocates)