Justice for “disappearances”

Document Type: Op ed
Date: 2016

An opinion piece by Reema Omer, ICJ Legal Adviser in Pakistan.

“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 last week.

The report is a follow-up of the recommendations made by the WGEID pursuant to a country visit to Pakistan in 2012.

In the report, the Working Group “regrets that most of the recommendations contained in its country visit report have not been implemented” and also points out that the Government has failed to communicate even a single case “where perpetrators of enforced disappearances have been held accountable.”

The WGEID’s critical assessment of Pakistan’s record in confronting serious human rights violations at the UN Human Rights Council should push the Government 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 WGEID 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” in Pakistan following the apparent abduction by or with the complicity of the state, enforced disappearances are still not specifically criminalized.

This is particularly deplorable as Pakistan accepted a recommendation made during its 2012 Universal Periodic Review to make enforced disappearances a distinct crime.

As a result, on the rare occasion where the police register criminal complaints in such cases, “disappearances” are reported as “missing persons” cases or as cases of “abduction” or “kidnapping”.

These categories are inadequate classifications of enforced disappearance cases as they do not recognize the seriousness or complexity of the crime; do not provide for commensurate penalties; and do not address the need to remedy the suffering and grief of families of those “disappeared”, who are not considered “victims” according to the law.

In a conference on enforced disappearances last month, the ICJ and Human Rights Commission of Pakistan (HRCP) also highlighted the Government’s failure to specifically criminalize enforced disappearance as one of the biggest hurdles towards bringing perpetrators to justice.

Furthermore, the WGEID 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 on Enforced Disappearances.

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

Pursuant to the 21st Amendment and amendments to the Army Act, 1952, all personnel associated with military courts –including members of the court, prosecutors, and “any person concerned with court proceedings” – 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 human rights activists and criminal justice proponents, this has led to further entrenching impunity for the crime of enforced disappearance.

The WGEID’s report comes just weeks after the Supreme Court dismissed all 16 petitions made by families of people convicted and 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 had been 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, even calling this practice a “crime against humanity” and urging strict action against those responsible.

In this case, however, the Court refused to even consider the question of the alleged “disappearances”.

Interpreting its jurisdiction to review trials by military courts very narrowly, it 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.

What this means is that a conviction by military courts “legitimizes” the act of enforced disappearance, and people abducted by law enforcement agencies years before military courts were even authorized to try cases of civilian terrorism suspects are left with no legal recourse to challenge their “disappearance”.

As the WGEID highlighted in its 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 necessarily 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.

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