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End disappearances now

August 30, 2012

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FOR the next three weeks extended discussions will be held and searching questions, often painful, asked about one of Pakistan’s major festering sores — enforced disappearances. Should one hope that all this debate will lead to a meaningful conclusion?

The exercise will begin today, when the families of disappeared people and human rights activists join the worldwide observance of the International Day of the Victims of Enforced Disappearances. One of the key demands rights activists are likely to reiterate is that Pakistan must immediately ratify the International Convention for the Protection of All Persons of Enforced Disappearance and start implementing its provisions. A cursory reading of the convention is enough to reveal the significance of this step.

The convention defines enforced disappearance as the “arrest, detention, abduction or any other form of deprivation of liberty by agents of the state or by persons or groups of persons acting with the authorisation, support or acquiescence of the state, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law”.

According to the convention, an enforced disappearance cannot be justified by invoking any “exceptional circumstances whatever, whether a state of war or a threat of war, internal political instability or any other public emergency”. Further, “the widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law”. Surely Pakistan would not like to be branded an outlaw by the international community.

Since the state is ultimately responsible for each instance of enforced disappearance, a state party to the convention “shall take the necessary measures to ensure that enforced disappearance constitutes an offence under its criminal law”, that it shall hold criminally responsible any person involved with enforced disappearance and his supervisor, and “no order or instruction from any public authority, civilian, military or other, may be invoked to justify an offence of enforced disappearance”. The appropriate penalties for the offence of enforced disappearance must “take into account its extreme seriousness”.

The convention obliges a state party to inform the family or counsel of the disappeared person of the authority that ordered deprivation of liberty; the date, place and time of occurrence; the identity of the supervisory authority; the whereabouts of the disappeared person; the date, time and place of release and the state of his or her health; and in the event of death the circumstances and cause of death and the destination of the remains. The convention also emphasises victims’ right to compensation: “Each state party shall ensure in its legal system that the victims of enforced disappearance have the right to obtain reparation and prompt, fair and adequate compensation.” Reparation includes, besides “material and moral damages”, restitution, rehabilitation, “satisfaction, including restoration of dignity and reputation”, and guarantees of non-repetition.

It is easy to see that all the issues embraced by the convention have been debated in Pakistan over and over again during the past eight years. During this period it has been established that: the victims of enforced disappearance have been picked up by state agencies under the cover of anti-terrorist operations or without any excuse; that often arrests are made by unauthorised officials and the victims are detained at unauthorised places and almost invariably tortured; that recourse to courts for the recovery of the disappeared has only been partly successful and that the intelligence and security agencies have found ways to circumvent and defy the orders of even the Supreme Court; that the recommendations of the three-member judges’ commission of 2010 of a ban on arrests by unauthorised personnel, new legislation to rein in intelligence agencies and payment of compensation to victims’ families remain largely unimplemented; and that the dumping of the mutilated corpses of missing persons is a crude bid to terrorise the entire population and prevent it from asking for justice.

Nobody today challenges the view that failure to end disappearances has on the one hand emboldened the perpetrators of this crime against humanity and, on the other, fuelled public anger and separatist tendencies in Balochistan. Of late there has been a spike in cases of disappearance in Sindh and observers have started warning the authorities against a Balochistan-like crisis in this province too.

All these matters will figure in the discussions a delegation of the UN Working Group on Enforced or Involuntary Disappearances will hold with government representatives, civil society organisations and hopefully members of the victims’ families from Sept 10 to 20. The government would do well to use the intervening days to make adequate preparations for offering the maximum possible satisfaction to the UN mission.

First, the authorities must reject concealment in favour of transparency and denial in favour of acceptance of responsibility. The delegation should be enabled to meet not only official denial experts but also all others that have anything to contribute to a realistic assessment of the situation. The latter must obviously include informed and articulate members of the victims’ families and their counsels.

Second, discussions with the UN team could become easy and fruitful if Islamabad ratified the relevant convention before the delegation’s arrival. This will obviate the need for sparring over the nature and size of the problem and allow detailed discussions on ways and means of tackling it in accordance with international standards.

However, the government’s responsibility will not end with cordial exchanges with the UN delegates or with making brave promises. Regardless of the outcome of the UN mission, Pakistan will delay putting an end to enforced disappearances at grave peril to itself.

That Pakistan must enact laws to make enforced disappearance a serious penal offence, comparable to terrorism, and lay down adequate penalties for offenders should be pretty clear to anybody who matters. One effective way of ending enforced disappearances could be to compile a complete list of detention centres, safe houses, et al, maintained by any state institution or agency and bringing them under a scheme of periodic and surprise inspection by judicial authorities. Heavy penalties may be imposed for illegal detention anywhere and the punishment may be made more severe for anyone who detains a person at a place outside the list mentioned above.