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Berkeley Journal of Social Science

Vol.3, Spring 2013

Missing Persons Issue in Pakistan with Reference to


International Law: Post 9/11 Scenario
Sara Mughal

"Political abductions, frequently ending in the murder and mutilation of the victims, continue.
The term ‘disappearance’, having acquired a new, dark meaning, has entered the vocabulary of
journalism and political science."
-----Annual report Amnesty international 1980

History of the crime of disappearance traces back its links to the 1940 disappearances of Nacht
und Nebel Erlass (eng. Night and Fog Decree). This act, as its name implies, introduced
enforced disappearance as a measure against the population of the occupied territories and was
justified by the reasons of security of Third Reich or occupying forces.1And since then this
practice has been going on in many states around the globe deniably and undeniably. Regimes in
Haiti, Brazil and Guatemala in the 1960s were using enforced disappearance as an “instrument to
control society at large and repress all political opposition”.2 In Asia, from the 1970s enforced
disappearances were practiced in Philippines, Sri Lanka, India, Nepal, Pakistan, Indonesia,
Thailand, China, Myanmar, North and South Korea and in Afghanistan.3 Latin America
experienced systematic practice of enforced disappearances in 1970s and 80s. Argentina, El
Salvador, Chile and Guatemala were most notorious by desparaiciónforzada.4Bolivia, Brazil,
Colombia, Dominican Republic, Ecuador, Haiti, Honduras, Mexico, Nicaragua, Paraguay, Peru,


MPhil Scholar in the Department of Peace & Conflict Studies, National Defence University Islamabad, Pakistan.
1
IzvorniNaučni Rad February 2010. International ConventionFor The Protection Of All PersonsFrom Enforced
Disappearance
2
AnVranckx, A long road towards universal protection against enforced disappearance, 2007, p. 4, Internet:
http://www.ipisresearch.be/download.php?id=152 30/10/2008.
3
UN Working Group on Enforced and Involuntary Disappearances (UNWGIED) has expressed its concern about growing
number of cases of enforced disappearances in Pakistan, Philippines, Sri Lanka and Thailand. Statement by UNWGEID on the
Occasion of the International Day of Disappeared, 28 August 2008, Internet:
http://www2.ohchr.org/english/issues/disappear/index.htm 30/10/2008.
4
An Vranckx, A long road towards universal protection against enforced disappearances, op. cit., p. 4, note 15;
ProyectoDesaparecidos, Amnesty International, Chile: The case against Augusto Pinochet, AMR 22/004/2008, 16 October 2008,
Enforced Disappearances Information Exchange Center, Internet: http://www.ediec.org/en/world-map/regional-
overview/americas 31/10/2008.
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Uruguay and Venezuela also have a history of enforced disappearances.5 North Africa and
Middle East suffered mostly in 80s and 90s (Iran, Iraq,Algeria, Morocco, Egypt, Turkey, Saudi
Arabia, Yemen, Jordan, Lebanon, Syria and Israel).6Although in Sub-Saharan region people are
victims of enforced disappearances these cases are not reported. There is a reasonable doubt that
enforced disappearances did occurred during internal violence and conflicts.7 The UN Working
Group onEnforced and Involuntary Disappearances reported that since its inception it has
transmitted 52,952 cases to Governments, but that there are still 42,393 cases under its active
consideration.It sums up to 95,345 reported cases of enforced disappearances in 79 States.In its
statement on the occasion of the International Day of the Disappeared, Working Group expressed
concerns “over growing number of cases of enforced disappearances occurring throughout the
world, particularly in Chad, Pakistan, the Philippines, Sri Lanka, Sudan and Thailand”.8

International legal framework:


Provisions relevant to missing persons are to be found in a number of universal orregional
international treaties, for instance:
 International humanitarian law
- Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field (1949);
- Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea (1949);
- Geneva Convention (III) relative to the Treatment of Prisoners of War (1949);
- Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (1949);
- Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts [Protocol I] (1977);

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http://www.desaparecidos.org/fedefam/eng.html 31/10/2008.
6
Enforced Disappearances Information Exchange Center, available at http://www.ediec.org/en/world-map/regional
overview/north-africa-and-middle-east 31/10/2008; International Center for Transitional Justice, Internet:
http://www.ictj.org/en/where/region5/508.html 31/10/2008.
7
Report of the Working Group on Enforced or Involuntary Disappearances, E/CN.4/2005/65, 23 December 2004, p. 9, para. 9,
Internet: http://www.ediec.org/world-map/regional-overview/sub-sahara 17/11/ 2009.
8
Report of the Working Group on Enforced or Involuntary Disappearances, A/HRC/10/9,6 February 2009, p. 2, Ibidem, The
August 30th was established as the (International) Day of Disappeared in 1983 by the Latin American non-governmental
organization FEDEFAM, Statement by UNWGEID on the Occasion of
the International Day of Disappeared, 28 August 2008, Internet: http://www2.ohchr.org/english/issues/disappear/index.htm
30/10/ 2008.
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- Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of Non-International Armed Conflicts [Protocol II]
(1977)
 International human rights law
- International Covenant on Civil and Political Rights (1966);
- Convention on the Rights of the Child (1989);
- International Convention for the Protection of All Persons from Enforced Disappearance
(2006);
- Regional conventions on protection of human rights: the Council of Europe Convention for the
Protection of Human Rights and Fundamental Freedoms (1950), the American Convention on
Human Rights (1969), and the African Charter on Human and Peoples’ Rights (1981).

 Other relevant international (universal and regional) instruments:


- The Rome Statute of the International Criminal Court (1998);
- United Nations Convention on the Elimination of All Forms of Discrimination
against Women (1979);
- United Nations Declaration on the Protection of All Persons From Enforced Disappearance
(1992);
- United Nations Guidelines for the Regulation of Computerized Personal Data
Files (1990);
- Council of Europe Convention for the Protection of Individuals with regard to
Automatic Processing of Personal Data (1981);
- OECD Guidelines on the Protection of Privacy and Trans-border Flows of Personal Data
(1980).

Legal framework:Enforced disappearance as violation of multiple human rights in the light


of international law
Under international law, the practice of enforced disappearances is prohibited by several treaties,
as it violates fundamental rights such as right to a fair trial and life.Article 2 of International

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Convention for the Protection of All Persons from EnforcedDisappearance define enforced
disappearances as,

“‘Enforced disappearance’ is considered to be the arrest, detention, abduction or any other form
of deprivation of liberty by agents of the State or by persons or groups of persons acting with the
authorization, support or acquiescence of the State, followed by a refusal to acknowledge the
deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person,
which place such a person outside the protection of the law.”

The problem of enforced disappearances was previously addressed as a violation of multiple


human rights i.e. right to life, liberty and security; right not to be subjected to torture or to cruel,
inhuman or degrading treatment or punishment; right to recognition everywhere as a person
before the law; right not to be subjected to arbitrary arrest, detention or exile; right to an effective
remedy by the competent national tribunals for acts violating the fundamental rights granted by
the constitution or by law; right to a fair and public hearing by an independent and impartial
tribunal, in the determination of rights and obligations and of any criminal charge against person.

These rights are confirmed at the universal level in the Universal Declaration of Human Rights
(1948). International Covenant on Civil and Political Rights (1966), Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), Body of Principles for
the Protection of All Persons under any form of Detention or Imprisonment (1988) and
Principles on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary
Executions. Practice of enforced disappearances also violates many of the rights enshrined in the
International Covenant on Economic, Social and Cultural Rights (1966) such as right to social
security or protection of family.

Enforced disappearance as crime under International Law

Criminal prohibition of enforced disappearance is not a recent product of human rights law. In
the conventional human rights conception, the international crime of enforced disappearance
evolved out of human rights instruments and declarations created in response to disappearances
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perpetrated in Latin America during the 1960s, 1970s, and 1980s. According to this account, the
key milestones in the criminalization of the enforced disappearances are the 1992 Declaration on
the Protection of All Persons from Enforced Disappearance, the 1994 Inter-American
Convention on Forced Disappearance of Persons, and the 2006 International Convention for the
Protection of All Persons from Enforced Disappearance.

The act of enforced disappearance has long been criminal under international law and that the
origins of this criminal prohibition lie in the laws of war, not in human rights law. The
foundational case law on enforced disappearance is found in the judgments of the Nuremberg
Tokyo war crimes tribunals 1946-1948.iInitially enforced disappearance was prohibited as
criminal within a narrow context, belligerent occupation during armed engagement, but that this
limited proscriptionhas subsequently been expanded to apply to supplementary contexts later on.

In the Justice case, the leading lawyers of the Third Reich were tried for their roles in
implementing the Night and Fog program. The NMT built upon the earlier decision of the IMT
regarding the criminality of enforced disappearance, but it also expanded upon the IMT’s
judgment. The NMT’s prosecutors and judges grounded their arguments not only in the laws of
war, but also in the “general principles of criminal law as derived from the criminal laws of all
civilized nations” and the “laws of humanity,” and therefore classified enforced disappearance
both as a war crime and as a crime against humanity.9

Article 4 of the International Convention for the Protection of All Persons from
EnforcedDisappearance reads, ‘Each State Party shall take the necessary measures to ensure that
enforced disappearance constitutes an offence under its criminal law’; bounding all the
signatories to take all possible measures, to include the act of enforced disappearances under
criminal law.

9
United States v. Josef Altstoetter, et al.On February 13, 1947, the US Military Government for Germany created Military
Tribunal III to try the Justice Case, the third of the Subsequent Nuremberg Proceedings, United states Holocaust Museum
Encyclopedia.

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Article 6 of the international convention for the protection of all persons from enforced
disappearances says,
1. Each State Party shall take the necessary measures to hold criminally responsible at least:
(a) Any person who commits orders, solicits or induces the commission of, attempts to commit,
is an accomplice to or participates in an enforced disappearance;
(b) A superior who:
(i) Knew, or consciously disregarded information which clearly indicated, that subordinates
under his or her effective authority and control were committing or about to commit a crime of
enforced disappearance;
(ii) Exercised effective responsibility for and control over activities which were concerned with
the crime of enforced disappearance; and
(iii) Failed to take all necessary and reasonable measures within his or her power to prevent or
repress the commission of an enforced disappearance or to submit the matter to the competent
authorities for investigation and prosecution;
(c) Subparagraph (b) above is without prejudice to the higher standards of responsibility
applicable under relevant international law to a military commander or to a person effectively
acting as a military commander.
2. No order or instruction from any public authority, civilian, military or other, may be invoked
to justify an offence of enforced disappearance.

Missing persons issue in Pakistan

Since Pakistan became a key ally in the US-led ‘war on terror’ in late 2001, hundreds of people
accused of links to terrorist activity have been suspected to be arbitrarily detained and held in
secret facilities. They are considered victims of enforced disappearance, denied all access to the
outside world, including lawyers, families and courts, and held outside the protection of the law.
Furthermore, the systematic pattern of enforced disappearances and extrajudicial killings,
eyewitness accounts, and structural barriers to redress victims’ families from around this time
have provided substantial support for the argument that the Pakistan security forces are suspected

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to be involved.10 But government has failed to acknowledge any such involvement in arbitrary
disappearances.

As well as those accused of involvement in terrorism after September 2001, domestic political
opponents of the Pakistani government were also increasingly subject to enforced disappearance,
in particular members of Pakistan’s Sindhi and Baloch nationalist groups advocating greater
autonomy in Balochistan, in the south-west of the country. The Baloch community has been
especially targeted for abductions, enforced disappearances and extrajudicial executions. Non-
Baloch communities in Balochistan have also faced the same human rights violations, although
in smaller numbers. Baloch political and human rights activists, lawyers, journalists and student
leaders are among those who have been targeted for enforced disappearance, abduction, arbitrary
arrest, and torture and other ill-treatment.

The surreptitious nature of the arrests and detentions makes it impossible to know exactly how
many have been subjected to enforced disappearance. Many relatives remain silent due to the
fear of repercussions against their loved ones or themselves. Many cases never reach the courts
or attract media attention. Inaccuracies and confusion on the part of the authorities regarding the
names of released detainees further obstruct the task of compiling accurate statistics of those still
missing. In 2010, the Ministry for the Interior admitted to 965 disappearance cases for which
there was some record, although there are differing claims on figures made by families,
human rights groups and the state, ranging from 200 to 7,000.ii

Following the attacks on the United States of America (USA) on 11 September 2001, Pakistan
has supported in numerous ways the efforts made by the coalition led by the USA to curb
‘terrorist’ activities. In this process Pakistan has violated the right to fair trial and the right of
detainees to be treated in accordance with law and enjoy equal protection of the law.

10
Ali Ansari-- The Michigan Journal of Public Affairs – Volume 9, Spring 2012

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Under international law, the practice of enforced disappearances is outlawed by several treaties,
as it violates fundamental rights to a fair trial and life. Yet Pakistan has not signed the most
active treaty concerning disappearances, the Convention for the Protection of All Persons from
Enforced Disappearances. This convention obliges signatories to prosecute state officials,
including military generals, who directly engage in the abduction of citizens or allow for it to
occur under their command. Further, Pakistan has also failed to sign the Rome Statute, which
establishes an international criminal court to prosecute state officials involved in disappearing
citizens.

But Pakistan is a signatory to the United Nations Charter. Declarations passed by the United
Nations guide countriescomprehensively on how to infer the charter, so Pakistan must respect
such documents.

United Nations (UN) Commission on Human Rights in its Resolution on Human Rights and
Terrorismiii reiterated that “All States have an obligation to promote and protect all human rights
and fundamental freedoms and to ensure effective implementation of their obligations under
international humanitarian law”. The resolution also emphasized “The need to intensify the fight
against terrorism in all its forms and manifestations at the national level and to enhance effective
international cooperation in combating terrorism in conformity with international law, including
relevant State obligations under international human rights and international humanitarian law.”
It urged “States to fulfill their obligations under the Charter in strict conformity with
international law, including human rights standards and obligations and international
humanitarian law, to prevent, combat and eliminate terrorism in all its forms and manifestations,
wherever, whenever and by whomever committed, and calls upon States to strengthen, where
appropriate, their legislation to combat terrorism in all its forms and manifestations.”

Perhaps the most difficult issue with attempting to address enforced disappearances is that the
practice is symptomatically un-documented. The 'disappeared' individuals are not charged with
any crime, and they never appear before any magistrate to challenge their detention or plead their
innocence. In fact, there is no paperwork informing any public institution of their detention, and

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the victims are held indefinitely. Further, the families of the victims cannot offer help as they are
denied any information on the whereabouts of their loved ones. iv

In 1992 the General Assembly adopted Declaration on the Protection of All Persons from Enforced
Disappearances, which has qualified the act ofenforced disappearance as “an offence to human dignity”
and condemned it asa “grave and flagrant violation of the human rights and fundamentalfreedoms”.

The process of regulating the enforced disappearances as a specific human rights violation
started with the work of UN Commission for Human Rights and General Assembly. In its
Resolution 33/1973, the Assembly expressed concern about the practice of enforced and
involuntary disappearances in various parts of the world and called upon governments to
investigate such cases, to ensure protection of human rights of detained persons and full
accountability of law enforcement and security agencies in discharge of their duties. The General
Assembly designated the Commission for Human Rights to consider theproblem and make
recommendations. The Commission, “convinced of the need to take appropriate action”,
consulted Governments and decided to establish a special mechanism to “examine question
relevant to enforced and involuntary disappearances” v

Missing person’s issue ‘the disappeared’ of Pakistan first arose in the Supreme Court in 2006,
after enforced disappearances had multiplied in the wake of 9/11. A mother and wife, unrelated,
joined forces and filed a petition in the Court against the ‘disappearances’ of their son and
husband, and other missing relatives and friends. A list of 41 persons was submitted. That year,
the Human Rights Commission of Pakistan reported that a total of 242 persons were on their list
of the ‘disappeared’. Since then, the Supreme Court under Chief Justice Iftikhar Muhammad
Chaudhry has taken up and put down cases related to enforced disappearances, which under the
concealment of a democratic government, continues to upsurge.

In 2010, the government was ordered to form a commission to look into the cases of enforced
disappearances, which by that time had reportedly risen to 1,600, most suspected to be picked
up by those shadowy bodies known as the ‘agencies’ and the majority in the unfortunate,
unhappy province of Balochistan.11But it is difficult to figure out exactly what is what, as figures

11
AminaJilani, Los desaparecidos’, the express tribune, November 2nd 2012
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released by the various commissions and authorities tend to confuse. Last month, again
reportedly, the government-formed commission came up with a figure of 80
disappearances brought to their notice during the past three months, bringing the total number
then before it to 85212. What has happened to the residue of the 1,600 since 2010 is not clear.
However, a total of 80 over the period of three months is certainly a healthy count. The
‘agencies’ are obviously hard at it, and as with all matters involving the military, there seems to
be little that either Court or government can do about it.

The government ‘acknowledged’ the fact that instances of enforced disappearances have
happened frequently and continue to happen, but, as stated by the Working Group after their
rather unfruitful visit, “there are controversies both on the figures and on the nature of the
practice of enforced disappearances.”
The issue of the enforced disappearances involves serious breaches of the ‘hallowed’
Constitution of Pakistan and of international law. It involves not only the fate of hundreds of
citizens entitled to the due process of law, but also the devastating effect on their
families. Article 4 of the Constitution provides that “to enjoy the protection of law and to be
treated in accordance with law is the inalienable right of every citizen, wherever he may be… ”

Continuing violations:
“Continuing violation is the breach of an international obligation by an act of a subject of
international law extending in time and causing a duration or continuance in time of that
breach.”vi
Continuing cases of disappearances in several areas of Pakistan are not merely breach of the
constitutional rights but also the violation of several universal human rights and international
laws. The acknowledgement on the part of government doesn’t clarify the hue of the situation
but also some concrete measures are required to be taken to put a full stop to this severe violation
of human laws as well as international laws as every signatory of UN charter is bound to exercise
the pattern of international humanitarian laws and international customary laws. It’s the duty of

12 th
The express tribune September 20 2012
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the government to recognize the hands behind these enforced disappearances as well as identify
and produce them before court of law to eliminate such practices from its land.

Article 6 of the international convention for the protection of all persons from enforced
disappearances says,
“ Each State Party shall take the necessary measures to hold criminally responsible at least:
(a) Any person who commits orders, solicits or induces the commission of, attempts to
commit, is an accomplice to or participates in an enforced disappearance.”

References
i
The Nuremberg Trials were a series of military tribunals, held by the Allied forces of World
War II, most notable for the prosecution of prominent members of the political, military, and
economic leadership of the Nazi Germany. The trials were held in the city of
Nuremberg, Bavaria, Germany, in 1945–46, at the Palace of Justice; Gallagher Law library,
University of Washington, Updated Feb. 7, 2009
ii
Amnesty international Disappeared justice in Pakistan, Index: ASA 33/022/2008, August
2008.)
iii
The Commission on Human Rights; Resolution, 2002/35, 22 April 2002.
iv
Waris Husain, The only resource, September 14-20, 2012 - Vol. XXIV, No. 31, The Friday
Times
v
Working Agenda of UN (WGEID)
vi
JoostPauwelyn, The Concept of a 'Continuing Violation' of an International Obligation:
Selected Problems",

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