Accession to the Enforced Disappearance Convention Ending Impunity?

In recent years, enforced disappearance has emerged as a grave concern in Bangladesh because many such incidents have gone unpunished in the absence of any law to criminalise it. Needless to mention, enforced disappearance is prohibited under international human rights law. In case of enforced disappearance, typically, the victim is removed from the protection of the law and is often subjected to torture and even extrajudicial execution. In addition, the victim's family and friends are deliberately denied knowledge of the individual's arrest or detention. Enforced disappearances have been used to suppress political dissent and have assisted in maintaining oppressive political regimes in many countries. Enforced disappearance takes place through abducting people and then holding them in clandestine prisons, subjecting them to torture, and often executing them without trial. Enforced disappearance can be committed by state agents or non-state actors such as organised criminal gangs.

Accession to the Convention by Bangladesh will facilitate the ensuring of accountability of individual perpetrators of acts of enforced disappearance by extending criminal jurisdiction to these acts. However, given the special nature of the crime and numbers of victims potentially involved in enforced disappearance, a separate law criminalising it is of immense need.

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In Bangladesh, enforced disappearance came into the forefront as news of political opponents being kept in 'Aayna Ghar' came to light during the previous regime. On the other hand, enforced disappearances are further pursued to ensure the impunity of those who commit them. Criminalisation of enforced disappearance at the national level is crucially important for ensuring accountability of the perpetrators. Enforced disappearance can amount to a violation of several rights contained in the international human rights instruments and the constitution of Bangladesh such as the right to liberty and security, the right to life, the freedom from torture, cruel, inhumane, or degrading treatment or punishment. Disappearances also entail the violation of other fundamental human rights such as the right to a fair trial, legal counsel, and to equal protection under the law.

In Bangladesh, enforced disappearance is not explicitly prohibited although kidnapping and abduction are categorically prohibited in the Penal Code. The difference between abduction and enforced disappearance lies in the fact that the participation of the State, whether directly through its agents or by its acquiescence is often the defining and characteristic element of the latter. The refusal by the authorities to provide information on the whereabouts and fate of the missing person is another element of enforced disappearance that  affects not only the missing person but also their families. Moreover, the existing laws of Bangladesh require government sanction prior to suing a public servant, which remains a primary obstacle to holding law-enforcement agencies accountable for enforced disappearance. As a result, currently, state actors involved in enforced disappearance enjoy impunity for such crimes. Another barrier in ensuring legal accountability is the lack of witnesses in cases of enforced disappearance.

The International Convention for the Protection of All Persons from Enforced Disappearance 2006 is the first legally binding instrument to address the issue of enforced disappearance. It requires each State Party to make enforced disappearance a criminal offence, to investigate acts of enforced disappearance, and to hold criminally responsible perpetrators of such crime. The Convention contains detailed provisions on prevention of enforced disappearance and it sets out an absolute prohibition on 'secret detention'. Crucially, it gives victims the right to seek reparations and to demand the truth about the circumstances of the disappearance. Bangladesh has acceded the Convention recently – a significant nascent step towards ending impunity for enforced disappearance. However, it is the first step for undertaking an international obligation to prohibit enforced disappearance and it must be followed by enactment of law or reform of existing penal law to implement such obligation.  

  Enforced disappearance is inherently wrong and goes against established norms of human rights. The State has the responsibility to protect the right to life and ensure security of all its citizens. Accession to the Convention by Bangladesh will facilitate the ensuring of accountability of individual perpetrators of acts of enforced disappearance by extending criminal jurisdiction to these acts. However, given the special nature of the crime and numbers of victims potentially involved in enforced disappearance, a separate law criminalising, it is of immense need.

The author is Professor and Dean, Faculty of Law, University of Chittagong.