Forgotten justice

September 25, 2016


“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) made this scathing assessment of Pakistan’s dismal response to the widespread practice of enforced disappearances in the country in a report presented to the UN Human Rights Council recently.

The report is a follow-up of the WGEID’s recommendations pursuant to a country visit to Pakistan in 2012. The group regretted that “most of the recommendations contained in its country visit report have not been implemented” and pointed out that the government has failed to communicate even a single case “where perpetrators of enforced disappearances have been held accountable”.

The review of Pakistan’s record in confronting rights violations should push the centre to reconsider its perfunctory engagement with UN human rights mechanisms and work towards implementing its recommendations on ending the now nationwide practice of enforced disappearances.

The group reiterated its previous calls that the crime of enforced disappearance be expressly included in Pakistan’s criminal code. Despite hundreds, if not thousands, of people ‘missing’ following their apparent abduction by or with complicity of the state, the disappearances are still not specifically criminalised. This is deplorable as Pakistan accepted a recommendation made during its 2012 universal periodic review to make the practice a distinct crime.

Few remember the missing.

Hence, on the rare occasion where police register criminal complaints in such cases, ‘disappearances’ are reported as ‘missing persons’ cases or as those of ‘abduction’ or ‘kidnapping’. These categories are inadequate classifications of enforced disappearance cases; they don’t recognise the seriousness of the crime; don’t provide for commensurate penalties; and don’t address the need to remedy the grief of families of those ‘disappeared’ who are not legally considered ‘victims’.

The group reiterated that “clear rules and dedicated institutions should be created to ensure the oversight and accountability of law-enforcement and intelligence agencies” in light of the security agencies’ failure to comply with orders of the courts and the commission of inquiry.

Since the 21st Amendment empowering military courts to try certain terrorism-related cases, Pakistan has moved further from ensuring ‘oversight and accountability’ of security agencies, particularly where the alleged rights violations are in the name of fighting terrorism.

Pursuant to the 21st Amendment and changes to the Army Act all personnel associated with military courts have complete immunity from prosecution for actions taken in ‘good faith’. This immunity is retrospective, which means that even if people were arrested and detained before the 21st Amendment was passed, they are considered to be arrested or detained under the authority of the amended law and therefore may benefit from its immunity provisions. In practice, as feared by the legal community and human rights activists, this has led to further entrenching impunity for the crime of enforced disappearance.

The report comes just weeks after the Supreme Court dismissed all 16 petitions by families of those sentenced to death by military tribunals. In some cases, the families had alleged people convicted by military courts had been subjected to enforced disappearance by military authorities as far back as 2010 and kept in secret detention for many years before their military trials.

In the past, the Su­preme Court has ac­knowledged the unlawfulness of keeping people in secret detention, calling this practice a “crime against humanity”. In this case, however, interpreting its jurisdiction to review trials by military courts very narrowly, the court held that the circumstances in which people were arrested, even if they were forcibly disappeared and kept in secret detention for years, was not relevant to its review jurisdiction.

What this translates into is that a conviction by military courts ‘legitimises’ the act of enforced disappearance, and people abducted by law enforcement agencies years before military courts were even authorised to try cases of civilian terrorism suspects are left with no legal recourse to challenge their “disappearance”. As highlighted in the report, there is no question that Pakistan faces serious security challenges. However, experience from around the world shows that disregard for human rights fuels cycles of terrorism and counterterrorism, and that respect for human rights must constitute a part of the solution in situations of conflict and instability.

This means that all suspects, including people suspected of committing terrorism-related crimes, must be given a chance to defend themselves in trials that meets basic standards of fairness. The cruel practice of forcibly disappearing people and putting them outside the protection of the law must end.

The writer is a legal adviser for the International Commission of Jurists.

Twitter: reema_omer

Published in Dawn September 25th, 2016