Enforced Disappearance: Bangladesh’s Darkest Hours

Michael Chakma, a youth leader of United People's Democratic Front (UPDF) based in the Chittagong Hill Tracts, was forcibly disappeared in broad daylight from the outskirts of Dhaka on April 9 this year. He was, sadly, one of many victims of suspected disappearances in recent years. According to a report released by International Federation of Human Rights, at least 507 people have been forcibly disappeared between January 2009 and the end of 2018. Among them, 62 people were found dead, 286 were released and the fate of 159 remains a mystery. State officials either deny they are in their custody or refuse to say where they are.

The disappeared persons are at risk of torture and other human rights violations—even death by their unknown captors. Those who live to see the light of day once again carry with them the physical and psychological scars of their ordeal. Those who are killed leave behind families who never recover from the loss. Disappearances are nothing short of a tool of terror, striking not just individuals or their families, but societies as a whole. This is why they are crimes under international law. If such incidents are widespread or systematic, they constitute a crime against humanity.

In Bangladesh, disappearances have taken place in disparate parts of the country, but they are not a series of random events. Rather, there is an alarming pattern that emerges. The victims are mostly members of political groups that oppose the government. The families often allege that it was state officials from law enforcement agencies who were responsible for the crime. In the cases where people have been released, a strong sense of fear still grips them, stopping them from speaking about their gruesome ordeal.

When confronted about this dismal record, the government officials have sought refuge in evasions. In the recently held UN session of the Committee Against Torture (CAT), Bangladesh's Law Minister Anisul Huq has denied that enforced disappearance occurs in Bangladesh frequently—contrasting reports of hundreds of enforced disappearance cases from the civil society organisations.

Earlier, when speaking on the subject in parliament in November 2017, Prime Minister Sheikh Hasina referred to people who have gone missing for other reasons. The home minister, Asaduzzamn Khan Kamal, went as far as blaming the disappeared persons for their fate, claiming that they had staged their disappearances to escape their debts or for unexplained "social reasons". However, the government cannot evade their constitutional and human rights obligations of keeping track of its own citizens. If so many people have disappeared, then the government has an obligation to find out what happened to them. If the current culture of impunity continues, this can eventually erode citizens' trust in the state and weaken the very foundation of the social contract.

The problem of enforced disappearance in Bangladesh goes beyond the official denials. The country's criminal code does not even acknowledge enforced disappearance as a crime. Repeated calls from civil society and human rights groups to criminalise enforced disappearance through amending laws have fallen on deaf ears.

Article 32 and 33 of Bangladesh's Constitution declare that "no person shall be deprived of life or personal liberty" and guarantee against arbitrary arrests while also giving the detainees the right to consult or to be defended by a legal practitioner.  However, the people who would execute the laws apparently lack political will. The institutions of accountability, especially judiciary, which are supposed to protect the citizens from executive excesses, have arguably failed to restrain such incidents. The vertical accountability and the voices outside the government, have been tamed or suppressed through fear and intimidation. 

Where domestic accountability mechanisms are inadequate to protect people from enforced disappearance, international legal and human rights instruments and mechanisms have a role to fill that void. There are several international human rights instruments prohibiting enforced disappearance. The most pertinent one is the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), which defines the crime of enforced disappearance (Article 2) and obligates each state party to act appropriately to investigate the allegations of enforced disappearance (Article 3).

Bangladesh chose to opt out of the convention and did not sign it. This is hardly expected from a country that gained its freedom through a prolonged struggle for all sorts of freedom that came at a huge expense of human lives to shy away from committing to a human rights instrument, the sole purpose of which is to safeguard its citizens from heinous crimes.

There are, however, other international human rights instruments that Bangladesh has signed and ratified with little impact on the ground. Bangladesh has ratified the 1998 Rome Statute of the International Criminal Court, which considers enforced disappearances a "crime against humanity" when committed as part of a "widespread or systematic attack directed against any civilian population" and allows for its prosecution by the International Criminal Court (Article 7).

Bangladesh has also ratified the International Covenant on Civil and Political Rights (ICCPR) that guarantees right to life (Article 6) and clearly prohibits arbitrary arrest or detention [Article 9]. However, neither of these instruments have had any significant impact on the domestic reality or the behaviour of the domestic actors.

It is high time for authorities to address the menace of enforced disappearances and strengthen trust and confidence of the people in the system. The requirements are not a tall order. To begin with, the government will be well-advised to amend the code of criminal procedure to make enforced disappearances a crime with the provisions of appropriate punishments for the perpetrators.

Second, an independent judicial commission may be formed to thoroughly investigate all disappearance cases, which must lead to prosecuting the perpetrators responsible for the crimes.

Third, we need to strengthen the independent judiciary as it is a sine qua non for ensuring the rule of law and for making sure that the citizens can seek remedies against any violation or abuses committed by any entity or actor. The executive branch and the legislature must adhere to the constitutional provision of separation of power and strengthen the independent functioning of the judiciary.

Fourth, the authorities should consider signing and ratifying ICPPED and create a commensurate domestic legal regime. Last, but not the least, there must be a determined political will. Because, in the end, no law or instrument can restrain the perpetrators from the execution of such heinous crimes if there is insufficient political will to allow institutions to work independently and impersonally. A country born out of the sacrifice of three million people does not deserve any less.

Sultan Mohammed Zakaria is a South Asia Regional Researcher for Amnesty International South Asia Office.

Email: sultan.zakaria@amnesty.org