“THERE is a climate of impunity in Pakistan with regard to enforced disappearances, and the authorities are not sufficiently dedicated to investigate cases of enforced disappearance and hold the perpetrators accountable.” The UN Working Group on Enforced and Involuntary Disappearances (WGEID) in September last year made this scathing assessment of Pakistan’s performance in addressing the practice of enforced disappearances in the country.
It has become a cliché to speak of a ‘climate of impunity’, but the phrase is entirely apt in describing the situation in Pakistan, where impunity for human rights violations has become institutionalised and systemised. It is also essential in understanding why the practice of enforced disappearances has persisted and is spreading — both in terms of geographical reach and also the categories of people being targeted.
‘Impunity’ means the impossibility of bringing violators of serious crimes and gross human rights violations to account, typically because there is an absence of a proper investigation that would lead to the arrest, prosecution and sentencing of those responsible. It results in concealing the truth; denying victims the right to effective remedy and reparation; and emboldening perpetrators of human rights violations.
People continue to go missing.
While there are reports that the practice of forcibly disappearing people has existed in Pakistan since at least the 1970s, such cases have been recorded in significant numbers after Pakistan became a key ally in the US-led ‘war on terror’. Since then, hundreds, many of them suspected to be associated with terrorism-related offences, have reportedly been ‘disappeared’ and detained in secret facilities. Cases of ‘disappearances’ are also reported in large numbers in Balochistan against political activists, students and journalists, particularly those perceived as sympathetic to separatist movements in the province. In recent years, there has been a rise in cases of enforced disappearances in Sindh, where largely political activists have been targeted.
Enforced disappearances have now become a national phenomenon: in August 2015, Zeenat Shahzadi became one of the first women victims, and recently a number of bloggers and activists were ‘disappeared’. Efforts to bring perpetrators of enforced disappearances to justice, however, have failed at all levels.
The National Commission of Human Rights does not have jurisdiction over the intelligence apparatus and can only make recommendations where members of the security forces have allegedly violated rights. The Commission of Inquiry on Enforced Disappearances keeps a record of reported enforced disappearances and ‘traces’ the whereabouts of ‘missing’ people, but has failed to take any action where such individuals are found in the custody of security agencies. Courts have played an important role in highlighting and condemning enforced disappearances, but have largely confined their role to recovering ‘disappeared’ people, not bringing perpetrators to account.
Even where courts have actively pursued such cases, loopholes in the legal system have allowed culprits to evade responsibility. Muhabbat Shah, a case involving the enforced disappearance of 28 people from a Malakand internment centre, is a telling illustration. In December 2013, the Supreme Court ruled that “no law enforcing agency can forcibly detain a person without showing his whereabouts to his relatives for a long period” and that those responsible for the enforced disappearances should be dealt with “strictly in accordance with law”. The government responded by filing a review of the judgement, asking the court to delete remarks implicating the agencies as such findings could “demoralise the troops”.
In March 2014, after repeated court orders, the defence minister lodged FIRs for wrongful confinement against some military officers allegedly responsible for the ‘disappearances’. However, KP reportedly referred the matter to the military for further investigation and possible trial under the Army Act, 1952. Since military trials are secret and not open to the public, what became of the case is not known.
If Pakistan is to stop the practice of enforced disappearances, it must start bringing those responsible for this practice to justice. At the minimum, this would require recognising enforced disappearance as an autonomous offence (and until such time, prosecuting such acts under existing laws); empowering independent institutions like the NCHR to investigate cases of alleged disappearances, notwithstanding the identity of the perpetrators; ensuring cases of serious human rights violations are only tried by civilian courts, including where members of the security apparatus are allegedly responsible; and as recommended by the WGEID, enacting “clear rules and dedicated institutions … to ensure the oversight and accountability of law enforcement and intelligence agencies”.
This crisis of impunity must end, not only to bring justice to victims and their families, but also to avoid irreparable damage to the rule of law in the country.
The writer is a legal adviser for the International Commission of Jurists.
Published in Dawn January 31st, 2017
