ICJ tells nations to criminalise enforced disappearance

Kathmandu, August 30

South Asian countries can address the tens of thousands of cases of enforced disappearances only by recognising enforced disappearance as a serious crime in domestic law, said the International Commission of Jurists today.

On the occasion of the International Day of the Victims of Enforced Disappearances, the ICJ’s 58-page report ‘No more missing persons: the criminalisation of enforced disappearance in South Asia’ analyses the states’ obligations to ensure that enforced disappearance constitutes a distinct crime under the national law.

It also provides an overview of the practice of enforced disappearance, focusing specifically on the status of the criminalisation of the practice, in five South Asian countries: India, Pakistan, Bangladesh, Sri Lanka and Nepal. For each state, the report briefly examines the national context in which enforced disappearances are reported, the existing legal framework, the role of the courts and the international commitments and responses to recommendations concerning criminalisation.

“It is alarming that despite the region having some of the highest numbers of reported cases of disappearances in the world, enforced disappearance is not presently a distinct crime in any South Asian country,” said Frederick Rawski, ICJ’s Asia director. “This shows the lack of political will to hold perpetrators to account and complete apathy towards victims and their right to truth, justice and reparation,” he added.

In Nepal and Sri Lanka, draft legislation to criminalise enforced disappearance is under consideration. Though the initiatives are welcome, the draft bills in both countries are flawed and require substantial improvements to meet international standards, it said.  In the absence of a clear national legal framework specifically criminalising enforced disappearance, unacknowledged detentions by law enforcement agencies are often treated by national authorities as ‘missing persons’ cases.

On the rare occasions where criminal complaints are registered against alleged perpetrators, complainants are forced to categorise the crime as ‘abduction’, ‘kidnapping’ or ‘unlawful confinement’. These categories do not recognise the complexity and the particularly serious nature of enforced disappearance, and often do not provide for penalties commensurate to the gravity of the crime, according to the report.

“Like torture and extra-judicial execution, enforced disappearance is a gross human rights violation and a crime under international law. South Asian States must recognise that they have an obligation to criminalise the practice with penalties commensurate with the seriousness of the crime,” said Rawski.

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