Criminalising 'disappearances'

In August 2018, the Senate's Functional Committee on Human Rights urged the Ministry of Human Rights to draft legislation to recognise enforced disappearances as a distinct, autonomous offence. A few days later, the Minister for Human Rights, Dr Shireen Mazari, also announced that the government is considering tabling a law to criminalise enforced disappearance.

These assurances were welcomed by those who have been tirelessly campaigning for decades to put an end to enforced disappearances and for perpetrators of this crime to be brought to justice. Disappointingly, however, there has been little follow up on these promises.

Rather, it appears that instead of bringing a law on enforced disappearances, the government is now considering merely signing (not even ratifying) the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) – and that too with reservations.

It is important to note that signing an international treaty does not establish the state’s consent to be bound by its provisions — it only creates an obligation to refrain, in “good faith”, from acts that would defeat the object and the purpose of the treaty. Unless signing the ICPPED is followed by ratification of the treaty and the incorporation of the provisions of the treaty into domestic law, such a step would be mere tokenism and a significant step back from the government’s earlier promises.

If Pakistan is to stop the practice of enforced disappearances, it must start bringing those responsible for this practice to justice. At the minimum, this would require recognising enforced disappearance as an autonomous offence (and until such time, prosecuting such acts under existing laws); empowering independent institutions like the National Commission for Human Rights (NCHR) to investigate cases of alleged disappearances, notwithstanding the identity of the perpetrators; ensuring cases of serious human rights violations are only tried by civilian courts, including where members of the security apparatus are allegedly responsible; and as recommended by the UN Working Group on Enforced or Involuntary Disappearances (WGEID), enacting “clear rules and dedicated institutions … to ensure the oversight and accountability of law enforcement and intelligence agencies”.

Let us consider the question of the criminalisation of enforced disappearances.

Even though thousands of cases of “disappearances” have been reported in Pakistan, enforced disappearance is still not recognised as a distinct, autonomous crime. Cases of enforced disappearances are currently treated by the police as “missing persons” cases, or as those of abduction and kidnapping. These offences, however, are inadequate classifications of enforced disappearance cases: they do not recognise the gravity of the crime, do not provide for commensurate penalties, and do not address the need to remedy the harm to families of those disappeared as they are not recognised as victims under the law.

The Pakistani government has committed to criminalise enforced disappearances on multiple occasions but has dragged its feet in fulfilling these promises. For example, during Pakistan’s first Universal Periodic Review in 2008, Pakistan accepted recommendations to ratify the ICPPED. The Convention, among other obligations, requires enforced disappearance to be made an autonomous crime. Similarly, in 2012 and 2017, during Pakistan’s second and third Universal Periodic Reviews, the government once again accepted recommendations to make enforced disappearance a distinct criminal offence and to ensure that all allegations of enforced disappearance are thoroughly investigated and those responsible are brought to justice.

A number of national and international expert groups have also recommended that Pakistan recognise enforced disappearance as a distinct offence. The “Task Force on Missing Persons”, constituted by the government in 2013, submitted its report in December 2013. While the report has not been made public, members of the Task Force have revealed that one of the recommendations in its report was the criminalisation of the practice.

Similarly, following its visit to Pakistan in September, the UN Working Group on Enforced or Involuntary Disappearances recommended that the crime of enforced disappearance be established and included in the Criminal Code of Pakistan in line with the definition given in the ICPPED.

In its Concluding Observations, following the first review of Pakistan’s implementation of the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment, the UN Committee against Torture also recommended Pakistan “should ensure that enforced disappearance is a specific crime in domestic law, with penalties that take into account the grave nature of such disappearances”. The UN Human Rights Committee made similar recommendations in its Concluding Observations issued after Pakistan’s first ICCPR review in July 2017.

It is, therefore, time that the government give heed to these recommendations and no longer delay the enactment of a law on enforced disappearance. However, in doing so, it must ensure that the law is comprehensive and in accordance with Pakistan’s constitutional and international legal obligations, which includes certain minimum requirements.

First, the definition of enforced disappearance must be at least as broad as that in Article 2 of the ICPPED. This means that at the minimum, it should cover: any deprivation of liberty, by or with acquiescence of state officials, which is followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the person concerned.

Second, a law on enforced disappearances must not provide for amnesties, immunities, and similar measures that prevent perpetrators of enforced disappearance from being investigated, prosecuted and punished by the courts. Similarly, the use of limitation periods should not be permitted to allow for impunity.

Third, such a law must ensure that individual criminal liability is not limited to the direct perpetrator of the crime, but extends to superiors where they either order or induce the commission of an offence or fail to take diligent measures to prevent or report the violations. In addition, subordinates must not be absolved of criminal responsibility simply because they acted pursuant to orders from a superior.

Finally, the jurisdiction over the offence of enforced disappearance should lie with ordinary courts, both in terms of the investigation of the crime and the trial—not with military courts.

While a comprehensive set of reforms – both in law and policy – is required to end the practice and combat entrenched impunity for enforced disappearances in Pakistan, the enactment of a law criminalising the practice in line with international standards would be a significant first step in this direction..

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Omer is a legal adviser for the International Commission of Jurists. She can be reached at [email protected]

Note: The views expressed are those of the author, and do not necessarily reflect the official policy or position of Geo News or the Jang Group.