Enforced disappearances should not be confused with kidnappings or abductions or people who go ‘missing’. Even though the latter are all serious criminal offences, enforced disappearances are far more serious and are even considered crimes against humanity, and rightly so.
Delwar Hossain is a 30 year old trader of trader of scrap paper, metal and plastic, who lives in Madaripur municipality. His family alleges that at around 9.30 pm on June 23, 2011 Delwar was taken away by some people who identified themselves as members of the Rapid Action Battalion (RAB) from the boat terminal of Gachbaria market at Mostofapur. There were witnesses who saw Delwar being taken, but who refrained from approaching the men, after being shown RAB identity cards.
Thirty-two year old Mohammad Jamal Ahmed from Tongi Model Thana, Gazipur went to the ‘Dhaka Electric Supply Company’ situated in Cheragali Squib Road for a new electricity connection for his home on the afternoon of May 4, 2011. When he approached the gate of the company, some people identifying themselves as law enforcement officers, took him away. Jamal is a vital witness in the murder of Ahsanullah Master, former Member of Parliament (MP) from Gazipur.
Habibur Rahman Haoladar is a 48 year old fishmonger of Bagerhat district. At around 5.30 am on July 6, 2011, the police of the local police station, members of the Armed Police Battalion, and District Detective Branch (DB) police, with the help of some local people, arrested him from his house. The local police later denied involvement in his arrest and claimed that he had some influential enemies who may have abducted him wearing police uniform. However, his daughter recognised one of the men as being the sub inspector of the local police station.
The three men have nothing in common except for the fact that they were taken away by men claiming to belong to law enforcement agencies. Some of these men were not in uniform, but in civilian dress; some allegedly showed identity cards; some were recognized as local police officers. Law enforcement deny involvement in these incidents of enforced disappearances, but the questions remain, as people start to doubt the credibility of law enforcement and resort to mob violence and taking the law in their own hands; and as families of those who ‘disappear’ receive little assistance from the police.
In order to clear the confusion as to what entails ‘enforced disappearance’, we need to look to the international definition of this crime, so as not to confuse it with the crimes of ‘abduction’ or ‘kidnapping’. In order to give a lucid understanding of the issue, I have taken the liberty of breaking down Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance, to make it more understandable: Thus, the term ‘enforced disappearance’ is: 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 authorization, 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 places such a person outside the protection of the law.
Thus, enforced disappearances should not be confused with kidnappings or abductions or people who go ‘missing’. Even though the latter are all serious criminal offences, enforced disappearances are far more serious and are even considered crimes against humanity, and rightly so. The confusion as to who perpetrated the crime, the lack of assistance given to the family of the disappeared and the reluctance of the law enforcement to offer any insight or assistance, all ensure that this crime against humanity continues with impunity and that the families of the disappeared are denied justice and denied the knowledge of where the victim is. In such a crime, there is no closure till the victim is recovered. Sometimes, as in the case of Kalpana Chakma, the closure never comes.
However, enforced disappearances are not a new phenomenon in the history of Bangladesh. During the Liberation War, many notable intellectuals were abducted and their whereabouts remained unknown till their bodies were found. After liberation, the crime continues under various regimes.
Criminal Law in Bangladesh has no provisions for the crime of enforced disappearance, just as it has none for the crime of torture. However, there are penal provisions for crimes such as abduction, wrongful confinement, murder and grievous hurt. The Code of Criminal Procedure lays down all the paths to be taken to ensure a proper investigation and prosecution. There is, however, a hitch; since criminal procedure also has it that government sanction is required prior to suing a public servant. As a result, it is difficult to make accountable, law enforcement officers, for crimes amounting to torture, ill treatment and other violations to human rights. If that is the case, does that mean that public servants are above the law? If a public servant commits a crime, he becomes a common criminal. He has no more right to call himself a servant of the people, and in my humble opinion, he should be treated in the court just as any other criminal is treated – with no need for the government to stew about whether he ought to be tried or not.
The Government of Bangladesh has ratified the Convention against Torture, but has yet to accede to the International Convention for the Protection of All Persons from Enforced Disappearance. Article 4 of the Convention states: ‘Each State Party shall take the necessary measures to ensure that enforced disappearance constitutes an offence under its criminal law.’ Article 3 obliges member states to take measures to investigate acts of enforced disappearance, committed by persons or groups of persons acting without the authorisation, support or acquiescence of the State and to bring those responsible to justice. So it does not matter who perpetrated the crime of enforced disappearance – it is the State responsibility to investigate and bring to justice all perpetrators. Clause 2 of Article 6 also states that no order or instruction from any public authority, civilian, military or other, may be invoked to justify an offence of enforced disappearance.
As one can infer from the international definition of ‘enforced disappearance’, the perpetrator does not have to be an agent of the State to be liable. The crime could also be perpetrated by a ‘group of persons’ acting with the acquiescence of the State. Even though the Government of Bangladesh has not acceded to the Convention, given the attention and activism recently generated by the human rights community around enforced disappearances, and the statements issues by the Ministry of Home Affairs, the State is now in no position to deny that it does not know that the crime is being perpetrated and thus it has a high level of responsibility to ensure that this crime is controlled, put to a stop and the perpetrators taken to task. It also has the responsibility to return those who have been disappeared to their families – in whatever condition.
Successive governments of this country have ratified most of the major international instruments – including the ICCPR and the Convention against Torture. That does not mean that torture and cruel and degrading treatment has vanished from the country or that the government has made any serious drive to eliminate the practice. It has also ratified CEDAW, the convention to eliminate discrimination against women and the convention that protects the rights of the child. That does not mean that violence against women is taken into very serious consideration or that the rights of street children are protected and they are cared for by the state. More recently, the state finally ratified the Rome Statute for the International Criminal Court – but that does not mean that any VIP will be taken to the court any time soon. Then why sign, ratify or accede to these international standards and guidelines? Why not? It shows that the state has taken note of violations of human rights and has the commitment to do something to rectify matters, when and if it can. Acceding to the International Convention for the Protection of Persons from Enforced Disappearance will add to the commitment of Bangladesh – the same commitment it showed when it ratified the other international conventions; when it was elected to the Human Rights Council for two successive terms ; and when it decided to put in place a National Human Rights Commission. Signing an international human rights instrument does not mean that the violation will disappear overnight, but it does add to the state’s commitment to do something to rectify the matter and control it.
Reports of enforced disappearances, regardless of who perpetrated the crime, are becoming a common topic in the news papers. Almost as common as the issue of torture and deaths in ‘cross fire’, which seems to have ‘mysteriously’ taken a back seat. The media and human rights defenders must continue to investigate and highlight all these issues, to ensure that no one loses out on a fair trial. As a signatory to many important international human rights conventions, and a member of the UN Human Rights Council, it would be, in my humble eyes, in the best interest of the Government of Bangladesh to accede to the International Convention for the Protection of all Persons from Enforced Disappearance, in order to further its commitment to preserve, protect and enhance the human rights of the people of Bangladesh, to ensure that everyone gets a fair trial and to maintain its balance on the path to effective democracy and democratic practices.