A distinct crime

Published September 4, 2018

RECENTLY, the Senate’s Functional Com­m­ittee on Human Rights urged the human rights ministry to draft legislation to recognise ‘enforced disappearance’ as a distinct, autonomous offence. A few days later, Minister for Human Rights Shireen Mazari, announced that the government is considering tabling a law to criminalise enforced disappearance. It is imperative these assurances are followed up with concrete steps — not just to enact legislation to criminalise ‘disappearance’ — but also to ensure that perpetrators are brought to justice.

Despite thousands of cases having been reported, enforced disappearance is still not recognised as a distinct crime. The police treats it as a ‘missing persons’ case, or of abduction and kidnapping. These offences, however, are inadequate classifications for enforced disappearance cases: they do not recognise the gravity of the crime; do not provide for commensurate penalties; and do not address the need to remedy the harm to families of those disappeared as they are not recognised as victims under the law. The government has committed itself to criminalise enforced disappearances many times, but has dragged its feet in fulfilling its promise. During Pakistan’s first Universal Periodic Review (UPR) in 2008, the government accepted recommendations to ratify the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED). Among other obligations, the ICPPED requires enforced disappearance to be made an autonomous crime.

During Pakistan’s second and third UPRs, in 2012 and 2017, the government once again accepted recommendations to make enforced disappearance a distinct criminal offence. It ensured that all allegations would be thoroughly probed and those responsible brought to justice.

A law is needed to criminalise disappearances.

A number of national and international expert groups have also recommended that Pakistan recognise enforced disappearance as a distinct offence. The Task Force on Missing Persons, constituted by the government in 2013, submitted its report in December 2013. While the report has not been made public, its members have said that one of the recommendations was the criminalisation of the practice.

Similarly, following a visit to Pakistan, the UN Working Group on Enforced or Involu­ntary Disappearances recommended that the crime of enforced disappearance be established and included in the Criminal Code of Pakistan in line with the ICPPED definition.

In its concluding observations following the first review of Pakistan’s implementation of the Convention against Torture, a UN committee also recommended Pakistan “should ensure that enforced disappearance is a specific crime in domestic law, with penalties that take into account the grave nature of such disappearances”. The UN Human Rights Committee made similar recommendations in its observations issued after Pakistan’s first ICCPR review in July 2017.

It is time to heed these recommendations and no longer delay enactment of a law on enforced disappearance.

However, as the human rights ministry considers draft legislation on disappearances, it must ensure that the law is comprehensive and in accordance with constitutional and international legal obligations.

First, the definition of enforced disappearance must be at least as broad as that in Article 2 of the ICPPED. At the minimum, it should cover any deprivation of liberty, by or with acquiescence of state officials, which is followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the person concerned.

Second, a law on enforced disappearances must not provide for amnesties, immunities, and similar measures that prevent perpetrators of enforced disappearance from being investigated, prosecuted and punished by the courts. This includes any exemptions for intelligence agencies and military personnel. Similarly, the use of limitation periods should not be permitted to allow for impunity.

Third, it must ensure that individual criminal liability is not limited to the direct perpetrator of the crime, but extends to superiors where they either order or induce the commission of an offence or fail to take measures to prevent or report the violations. Subordinates must not be absolved of criminal responsibility simply because they acted pursuant to orders from a superior.

Finally, the jurisdiction over the offence of enforced disappearance should lie with ordinary courts, both in terms of the investigation and the trial — not with military courts, even if the perpetrators are allegedly military personnel.

While a comprehensive set of reforms — both in law and policy — is required to end the practice and combat entrenched impunity for enforced disappearances in Pakistan, the enactment of a law criminalising the practice in line with international standards would be a significant first step in this direction.

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

Published in Dawn, September 4th, 2018



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