Challenging disappearances —Asma Jahangir

In the coming months the HRCP will translate the Convention text and post it on its website. Other relevant information contained in the Convention will also be disseminated to relevant institutions and bodies

The United Nations Human Rights Council in its first session in June this year adopted the International Convention for the Protection of All persons from Enforced Disappearances and recommended that the General Assembly adopt it too. It will subsequently be opened for signature, ratification and accession at a signing ceremony in Paris.

The story of the passage of this Convention has many lessons for us. Foremost, that we must not succumb to pressures and continue to recall that repression cannot succeed for long. More importantly, that the protection of human rights is no longer a domestic issue. It concerns the finer values of the global human community.

The human rights community has a tough challenge to meet. It is their obligation to document all cases of disappearances. They must reach out to the families and acquaintances of those who have disappeared. All facts must be verified and it is crucial that all reports containing allegations of disappearances must contain credible information.

The Human Rights Commission of Pakistan (HRCP) hopes to fulfil this responsibility in Pakistan. There are many routes, domestic and international that we can follow in seeking relief and, ultimately, justice. At the international level, the Working Group on Enforced and Involuntary Disappearances (WGEID) considers all cases that are fairly well documented.

In order for a person to be considered ‘disappeared’, three conditions must be fulfilled: the deprivation of liberty against the will of the person concerned; involvement of government officials, at least indirectly by acquiescence; and the refusal to disclose the fate and whereabouts of the person concerned.

The crime of disappearance is a continuous one and therefore WGEID keeps cases under consideration until the fate or whereabouts of the disappeared person become known. The WGEID does not establish criminal liability nor does it declare state responsibility. Its primary goal is to assist families in determining the fate and whereabouts of their relatives who, having disappeared, are placed outside the protection of the law.

The WGEID endeavours to establish a channel of communication between the complainants and the governments concerned to ensure investigation with the objective of clarifying the whereabouts of disappeared persons.

While the WGEID is not a substitute for domestic judicial remedy, nor does it declare criminal responsibility, it can exert pressure on governments to discontinue such heinous practices. Eventually, national governments and institutions, particularly the judiciary, bear the responsibility of guaranteeing protection to individuals.

Pakistan has been recently elected to the newly formed Human Rights Council and should be obliged to respond to allegations against it for having violated human rights. The WGEID should make a formal request to the government of Pakistan to invite it to conduct a fact-finding mission.

The Declaration on the Protection of All Persons from Enforced Disappearances obliges governments to take “effective legislative, administrative, judicial, or other measures to prevent and terminate acts of enforced disappearance in any territory under its jurisdiction.” It stipulates that all acts of enforced disappearances shall be offences under criminal law and that there be no impunity or amnesty for perpetrators of this crime. It is important to note that the Convention denies impunity for anyone engaged in the crime of disappearances even if it is carried out under official instructions.

Anyone involved in the crime of disappearances, regardless of their position, bears an individual responsibility. However, “mitigating circumstances may be established for those who, having participated in enforced disappearances, are instrumental in bringing the victims forward alive or in providing voluntary information which would contribute to clarifying cases of enforced disappearance”. In addition, domestic legislation should not place any limitation of time for seeking redress in cases of disappearances.

In the coming months the HRCP will translate the Convention text and post it on its website. Other relevant information contained in the Convention will also be disseminated to relevant institutions and bodies. It will also be involved in raising awareness on the issue. The media can play a pivotal role in this campaign and they ought to be commended for the positive contribution they have made so far. Indeed a number of working journalists have themselves been victims of this abhorrent practice.

Incidents of involuntary disappearances have been reported from all parts of the country — Balochistan, Sindh, NWFP and Punjab. The HRCP has received reports of over 600 incidents of disappearances during the last three years. Our sources include media reports, complaints from victims’ families, information received from human rights defenders, lawyers, political parties, trade unions and other individuals. The HRCP has not been able to verify all the cases brought to its notice, partly because of lack of capacity but mostly because of the inaccessibility of those close to the victims.

Witnesses, in a number of cases, do not come forward or are threatened by offenders. An important number of incidents have occurred in places which remain inaccessible for activists in carrying out their work satisfactorily. Verifying cases of disappearances requires special skills. The HRCP has so far been able to verify 170 cases in the last two years but will continue to carry out its obligation so that it can verify all cases brought to its notice. It is our belief that the figures represented here do not indicate the full extent of the numbers of disappearances taking place in the country.

There are several cases where victims have requested confidentiality as they have been released on assurances of maintaining their silence. The actual number of disappearances cannot therefore, be estimated but some patterns do emerge from the available information.

Broadly speaking, there are five categories of people who are picked up by plainclothes men in Pakistan. A category of reports received by the HRCP indicates that at least 50 journalists have been picked up by members of intelligence agencies during the last two years. They are usually warned of dire consequences and released after a few days. Their family members receive phone calls threatening them and asking them to remain silent. They are told that if they alert the press, the victim will be dealt with harshly. There is a constant turnover of journalists, mostly from remoter areas of the country, who are picked up, threatened and then released — a revolving-door policy of involuntary disappearances.

The second category is of a large number of Baloch nationalists. A large number remains missing but some have since been released. In the third category are people from Sindh belonging to groups opposing the government. Members of the Jeay Sindh Mutahidda Mahaz party are among the disappeared persons.

The fourth category is of people who are picked up on suspicion of being terrorists. Among them are people belonging to religious minorities and women. Some returnees from Guantanamo Bay prison disclosed that they were initially picked up by Pakistan’s intelligence agencies and kept in illegal custody. They were interrogated in Pakistan and later handed over to the US authorities. They disclosed that money changed hands at each transfer of illegal custody.

The last category comprises people who are picked up by either the law enforcement or the intelligence agencies for settling scores. They act either on their own or at the behest of well-placed individuals. In such situations, the victim’s family simply gives in to the demands made on them.

The families of a number of victims of disappearances have filed habeas corpus petitions. Our courts dismiss many such petitions following a statement by government agents that the ‘detainee’ is not in their custody. This practice is followed despite eyewitness accounts of evidence indicating involvement of state functionaries.

The issue of disappearances in Pakistan is closely linked to the ‘war on terror’. A number of individuals who have vanished were ostensibly picked up on suspicion of being affiliated with militant groups. Moreover, the new methodology of interrogation — by administrating injections — has evolved during the war on terror.

Most shockingly, such grave human rights violations are being carried out on a daily basis while the international community looks away. The HRCP’s report on Balochistan, its annual report, media reports, press releases and conferences on this issue as well as protests by families of victims have not received any response from the government.

The law enforcement and more importantly the intelligence agencies remain unaccountable. The callous lack of concern by the government strongly indicates that they tolerate, if not approve, of this crime. A few recommendations put forward by the HRCP include urging the judiciary of Pakistan to act in an independent manner and to effectively use its authority in recovering all disappeared individuals. The HRCP also calls upon WGEID to request for a mission to Pakistan and demand that the government invites them.

Pakistan should sign and ratify the ICCPR and the Convention for the Protection of All Persons from Enforced Disappearance and parliamentarians to urgently set up a Working Group to document cases of disappearances and use their authority to investigate these cases so that the perpetrators are brought to justice. Finally, all human rights organisations should work in partnership in advancing the campaign against involuntary disappearances.

This article is based on a lecture given by Asma Jahangir, the chairperson of the Human Rights Commission of Pakistan at a Workshop on Enforced Disappearances held during September 30-October 1, 2006