Special Cover Story on Missing Persons
What was purpose of The United Nations Working Group to visit Pakistan?
We have been observing debate/reservation on UN mission on Missing Persons, whether this group has right to analysis Human Rights issues in Pakistan? We do not go in debate but here we are going to give Facts & Figures on UN working group, why they visit to countries those are signatory of Universal Charter of Human Rights.
Here we are giving information on working group on human rights and full text of the preliminary observations of the Working Group. We have been taken information from “United Nations Human Rights.”
This information is arranged by our assistant editor Ms. Veengas
Basic facts about the UPR
What is the Universal Periodic Review?
The Universal Periodic Review (UPR) is a unique process which involves a review of the human rights records of all 192 UN Member States once every four years. The UPR is a significant innovation of the Human Rights Council which is based on equal treatment for all countries. It provides an opportunity for all States to declare what actions they have taken to improve the human rights situations in their countries and to overcome challenges to the enjoyment of human rights. The UPR also includes a sharing of best human rights practices around the globe. Currently, no other mechanism of this kind exists.
How was the UPR established?
The UPR was established when the Human Rights Council was created on 15 March 2006 by the UN General Assembly in resolution 60/251. This mandated the Council to “undertake a universal periodic review, based on objective and reliable information, of the fulfilment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States”. On 18 June 2007, one year after its first meeting, members of the new Council agreed to its institution-building package (A/HRC/RES/5/1) providing a road map guiding the future work of the Council. One of the key elements of this package was the new Universal Periodic Review.
What is the goal of the UPR?
The ultimate goal of UPR is the improvement of the human rights situation in every country with significant consequences for people around the globe. The UPR is designed to prompt, support, and expand the promotion and protection of human rights on the ground. To achieve this, the UPR involves assessing States’ human rights records and addressing human rights violations wherever they occur. The UPR also aims to provide technical assistance to States and enhance their capacity to deal effectively with human rights challenges and to share best practices in the field of human rights among States and other stakeholders.
When will States have their human rights records reviewed by the UPR?
All UN Member States will be reviewed every four years – with 48 States reviewed each year. All the 47 members of the Council will be reviewed during their term of membership. On 21 September 2007, the Human Rights Council adopted a calendar detailing the order in which the 192 UN Member States will be considered during the first four-year cycle of the UPR (2008-2011). The reviews will take place during the sessions of the UPR Working Group which will meet three times a year.
Who conducts the review?
The reviews are conducted by the UPR Working Group which consists of the 47 members of the Council; however any UN Member State can take part in the discussion/dialogue with the reviewed States. Each State review is assisted by groups of three States, known as “troikas”, who serve as rapporteurs. The selection of the troikas for each State review is done through a drawing of lots prior for each Working Group session.
What are the reviews based on?
The documents on which the reviews are based are: 1) information provided by the State under review, which can take the form of a “national report”; 2) information contained in the reports of independent human rights experts and groups, known as the Special Procedures, human rights treaty bodies, and other UN entities; 3) information from other stakeholders including non-governmental organizations and national human rights institutions.
How are the reviews conducted?
Reviews take place through an interactive discussion between the State under review and other UN Member States. This takes place during a meeting of the UPR Working Group. During this discussion any UN Member State can pose questions, comments and/or make recommendations to the States under review. The troikas may group issues or questions to be shared with the State under review to ensure that the interactive dialogue takes place in a smooth and orderly manner. The duration of the review will be three hours for each country in the Working Group.
Can non-governmental organizations (NGOs) participate in the UPR process?
Yes. NGOs can submit information which can be added to the “other stakeholders” report which is considered during the review. Information they provide can be referred to by any of the States taking part in the interactive discussion during the review at the Working Group meeting. NGOs can attend the UPR Working Group sessions and can make statements at the regular session of the Human Rights Council when the outcome of the State reviews are considered. OHCHR has released “Technical guidelines for the submission of stakeholders”.
What human rights obligations are addressed?
The UPR will assess the extent to which States respect their human rights obligations set out in: (1) the UN Charter; (2) the Universal Declaration of Human Rights; (3) human rights instruments to which the State is party (human rights treaties ratified by the State concerned); (4) voluntary pledges and commitments made by the State (e.g. national human rights policies and/or programmes implemented); and, (5) applicable international humanitarian law.
What is the outcome of the review?
Following the State review by the Working Group a report is prepared by the troika with the involvement of the State under review and assistance from the OHCHR. This report, referred to as the “outcome report”, provides a summary of the actual discussion. It therefore consists of the questions, comments and recommendations made by States to the country under review, as well as the responses by the reviewed State.
How is the review adopted?
During the Working Group session half an hour is allocated to adopt each of the “outcome reports” for the States reviewed that session. These take place no sooner than 48 hours after the country review. The reviewed State has the opportunity to make preliminary comments on the recommendations choosing to either accept or reject them. Both accepted and refused recommendations are included in the report. After the report has been adopted, editorial modifications can be made to the report by States on their own statements, within the following two weeks. The report then has to be adopted at a plenary session of the Human Rights Council. During the plenary session, the State under review can reply to questions and issues that were not sufficiently addressed during the Working Group and respond to recommendations that were raised by States during the review. Time is also allotted to member and observer States who may wish to express their opinion on the outcome of the review and for NGOs and other stakeholders to make general comments.
What steps are taken as follow up to the review?
The State has the primary responsibility to implement the recommendations contained in the final outcome. The UPR ensures that all countries are accountable for progress or failure in implementing these recommend-ations. When it comes time for the second review of a State they must provide information on what they have been doing to implement the recommendations made during the 1st review four year’s earlier. The international community will assist in implementing the recommendations and conclusions regarding capacity-building and technical assistance, in consultation with the country concerned. If necessary, the Council will address cases where States are not cooperating.
What happens if a State is not cooperating with the UPR?
The Human Rights Council will decide on the measures it would need to take in case of persistent non-cooperation by a State with the UPR.
Enforced Disappearances: UN expert group welcomes official efforts in Pakistan, but notes that “serious challenges remain”
ISLAMABAD (20 September 2012) – The United Nations Working Group on Enforced or Involuntary Disappearances welcomed today “the declared will of the Government of Pakistan to tackle the issue of enforced disappearances,” but noted that “serious challenges remain.”
“We acknowledge the security challenges faced by Pakistan” said the independent experts at the end of their official visit to the country. “However, according to the 1992 Declaration for the Protection of All Persons Against Enforced Disappearances, ‘no circumstances whatsoever, whether a threat of war, a state of war, internal political instability or any other public emergency, may be invoked to justify enforced disappearances.’”
“There is acknowledgement that enforced disappearances have occurred and still occur in the country. We note that cases continue to be reported to the national authorities. But there are controversies both on the figures and on the nature of the practice of enforced disappearances,” they observed.
The experts welcomed the role played by the judiciary to shed light on the phenomenon of enforced disappearances in Pakistan and to trace missing persons. “The relatives of the disappeared persons have the right to know the truth about the fate and whereabouts of their loved ones”, they stressed.
However, they expressed their concern that relatives of victims reported that even when clearly identified by witnesses, so far perpetrators have not been prosecuted and convicted. “It is the responsibility and the duty of the State to thoroughly investigate all allegations of enforced disappearances and bring the perpetrators to justice,” they recalled.
The experts underlined the need to reinforce the Commission of Inquiry on Enforced Disappearances, as well as to ensure the oversight and the accountability of law enforcement and intelligence agencies, and to provide protection for victims and witnesses.
“Other important challenges that Pakistan needs to overcome are the absence of a provision qualifying enforced disappearances as an autonomous crime, and the lack of reparation measures and social assistance programs for the relatives of the disappeared.” they stressed.
Olivier de Frouville and Osman el Hajjé, two of the five members of the Working Group, visited Pakistan from 10 to 20 September 2012, and held meetings with State authorities, civil society organizations and relatives of disappeared persons in Islamabad, Lahore, Karachi, Quetta and Peshawar.
The analysis of the information received during and prior to the visit will be considered in the preparation of the report which will be presented to the Human Rights Council at a session in 2013.
Read the full text of the preliminary observations of the Working Group:
The Working Group on Enforced or Involuntary Disappearances concludes its official visit to Pakistan
A delegation of the United Nations Working Group on Enforced or Involuntary Disappearances (*) concluded its ten-day official visit to Pakistan. The visit took place from 10 to 20 September 2012. The delegation of the Working Group was composed of Mr. Olivier de Frouville, Chair of the Working Group, and Mr. Osman El-Hajjé, member of the Working Group. During the visit, the Working Group received information on cases of enforced disappearances and studied the measures adopted by the State to prevent and eradicate enforced disappearances, including issues related to truth, justice and reparation for the victims of enforced disappearances.
The Working Group wishes to thank the Government of Pakistan for extending an invitation to visit the country. It acknowledges the efforts undertaken before and during the visit to facilitate it, in particular for the assistance in terms of the security arrangements in cooperation with the United Nations. The
Working Group also wishes to thank the United Nations Pakistan Country Team as well as the United Nations Office of the High Commissioner for Human Rights Secretariat, for their support.
During its ten-day mission, the Working Group visited Islamabad, Lahore, Karachi, Quetta and Peshawar. In Islamabad, the Working Group had the honour of meeting with Her Excellency, the Minister of Foreign Affairs and His Excellency the Minister of Interior. The Working Group also met with the Advisor to Prime Minister on Human Rights, the Governor of Punjab, the Additional Secretary in charge of the United Nations and Economic Coordination at the Ministry of Foreign Affairs and the Inspectors General of various provincial police agencies. In Lahore, the Working Group met with the Home Secretary, the Additional Home Secretary and the Secretary Prosecution of Punjab. In Karachi, the Working Group met the Chief Minister, the Chief Secretary, the Home Secretary, and the Advocate General of Sindh. In Quetta, the Working Group held meetings with the Chief Secretary and the Home Secretary of Baluchistan. In Peshawar, the Working Group met with the Home Secretary of Khyber Pakhtunkhwa.
In Islamabad, the Working Group also held meetings with the Chief Justice and the judges of the High Court of Islamabad, the Chair of the Commission of Inquiry on Enforced Disappearances and the parliamentarians of the Standing Committee on Human Rights.
Regretfully, some of the meetings that the Working Group had requested with a number of important actors both at the federal and provincial levels did not take place, notably with the Minister of Law, Justice and Parliamentary Affairs, the Minister of Defence, the Chief Justice of the Supreme Court, the Directorate for Inter-Services Intelligence, the Inspector-General of Frontier Corps in Baluchistan and Khyber Pakhtunkhwa provinces and the Chief Justices of the High Courts of Lahore, Karachi, Quetta and Peshawar.
The Working Group held a number of meetings with representatives of all sectors of the civil society including NGOs, activists and lawyers. The Working Group also met a number of relatives of disappeared persons in all parts of the country.
The Working Group received allegations according to which some of the persons with whom we met had been threatened or intimidated. We call on the State to guarantee the safety of those who have met with us and protect them against any form of reprisals, threat or intimidation.
In addition, the Working Group met with representatives of the diplomatic community in Islamabad, as well as with Heads of various United Nations Agencies.
The invitation extended by the Government to us and other special procedures of the Human Rights Council is a testimony of its will to cooperate and take human rights issues seriously. The WGEID welcomes this opening and hopes that other special procedures mandate holders will be invited in the near future to visit Pakistan.
The Working Group also welcomes the ratification by Pakistan of the International Covenant on Civil and Political Rights and of the Convention against Torture. It calls on the Government to ratify the Convention for the protection of all persons against enforced disappearances.
The Working Group undertakes its visits in a spirit of dialogue and cooperation and aims at formulating constructive recommendations.
Before stating our preliminary conclusions and recommendations, please note that we did not make any public statements before the press conference today. Any declaration quoted from one of the members of this Working Group has thus incorrectly been attributed to us.
I.Mandate of the WGEID
The WGEID is tasked with two main mandates. The first mandate is to deal with cases of enforced disappearances. We receive allegations of cases of enforced disappearances and we transmit those cases to the States, asking them to take all necessary measures to find the fate or the whereabouts of the concerned person. This is done in a “humanitarian spirit”, that is to say that once the person is found, the case is considered clarified. We do not look for individual or State responsibilities. But we always remind the State of its obligations to investigate the case, punish the perpetrators and provide integral reparations to the victims.
The other mandate entrusted to the WGEID is related to the Declaration for the protection of all persons against enforced disappearances, adopted by the UN General Assembly in 1992 (thereafter ‘the Declaration’). The WGEID promotes the implementation of the standards of the Declaration and encourages States to implement those standards at the national level. In this respect, we receive general allegations concerning violations of the Declaration that are transmitted to the State, with the request to explain their position and describe the steps they have undertaken in relation to those allegations.
There have been a lot of discussions during the visit about the mandate of this Working Group, in particular on the issue of whether this was a “fact-finding” mission. This expression can have different meanings. If one means by that a body which is tasked with collecting evidence, with the view to initiate criminal proceedings, this is not the role of the WGEID, as the WGEID has always interpreted its mandate, as far as individual cases are concerned, as “humanitarian”. Within this mandate of dealing with cases of enforced disappearances, the WGEID always receives information about alleged individual cases of enforced disappearances, as it did during this mission. Furthermore, the WGEID receives information with respect to its second mandate, which is related to the implementation of the standards of the Declaration by States.
II. General context
Pakistan has been on the road to democracy since its independence. As in all countries worldwide, this road has been difficult and met with many obstacles. Pakistan has endured several periods of military dictatorship throughout its history, which resulted at times in massive violations of human rights. The perceptions of different groups in the society of not being treated on an equal footing with others created frustrations and demands which were often responded to through violent means and further inequalities. Article 25 of the Constitution of Pakistan provides that “All citizens are equal before law and are entitled to equal protection of law” and this principle should lead all policies of the State.
Since 2008, there has been a new phase of parliamentarian democracy, bringing much hope to the people of this country. Pakistan’s political and institutional life is characterized by a multi-party system, a strong independent judiciary, a vibrant civil society and a lively press, discussing all kinds of matters, including the problem of enforced disappearances.
Meanwhile, Pakistan is facing important security challenges. There is a widespread perception, among the population, that their security is not sufficiently ensured. The State has to deal with multiple threats, coming from terrorist movements or violent groups. The conflicts taking place in neighbouring countries or territories is an additional factor of insecurity. The Working Group acknowledges these threats and the need for the State to ensure the right to life of their citizens. However, it also underlines that actions taken to deal with security threats, and in particular with terrorism, must at all times respect nationally and internationally recognized human rights. Human rights violations in the name of the fight against terrorism does not achieve its aim but can only, on the contrary, lead to further violations.
III. The phenomenon of enforced disappearances in Pakistan
1. Cases pending before the WGEID
A number of cases of enforced disappearances filed with the WGEID have allegedly occurred in 1985 and in the beginning of the 1990s, in the north-west region, in relation to the conflicts taking place in Afghanistan. A number of cases were also reported to the WGEID to have taken place in the 1990s, in relation to the military operations carried out in Karachi and its aftermaths (Sindh province). At the beginning of the 2000s, the Working Group started receiving cases of persons allegedly abducted in the context of the so-called “war on terror” and sometimes said to have been transferred to other State’s territories or detention centres. Those cases mostly concerned the provinces of Punjab and KPK, between 2003 and 2006. Starting from 2005-2006, a number of cases were received from Sindh and Baluchistan. In 2011, as noted in its annual report, the Working Group transmitted five new cases to the Government, including two cases through its urgent action procedure. The 2011 annual report of the WGEID also indicates the latest public information on the reported 107 cases concerning Pakistan, pending before the WGEID.
2. Allegations received during the mission
According to various official and unofficial sources met during the visit, it is in the post 9/11 period that the question of “missing persons” began to raise real attention at the national level. There is acknowledgement that enforced disappearances have occurred and still occur in the country. Cases continue to be reported to the national authorities. But there are controversies both on the figures and on the nature of the practice of enforced disappearances.
The figures communicated to us range from less than a hundred to thousands. In Baluchistan alone, some sources allege that more than 14,000 persons are still missing, while the provincial government only recognizes less than a hundred. To date, the Commission of Inquiry on Enforced Disappearances still has more than 500 cases in its docket concerning the whole country. The number of officially registered allegations, although may not be reflective of the reality of the situation, is itself an indication of the existence of the phenomenon.
As far as the nature of the practice is concerned, the authorities at the federal and provincial levels with whom we met often declared that most of the “missing persons” were in fact not victims of enforced disappearances. According to those authorities, some of those persons had been under criminal charges and had chosen to go in hiding, while some others have fled to another country to join illegal armed groups. Others, according to the same authorities, have been the victims of abductions by non state actors for various reasons. Cases of enforced disappearances by State actors, in this context, would be the result of misconducts and ultra vires behaviour by some agents of the State.
However, nongovernmental sources allege that there is a pattern of enforced disappearances in Pakistan, imputable to law enforcement agencies in conjunction with intelligence agencies.
During our visit families told us their stories and each story, while being different, revealed the same pattern. The abduction, often taking place in front of witnesses, is reported to be perpetrated by law enforcement agencies, like the police or the frontier corps, jointly with members of intelligence agencies in civilian clothing. When asked whether they had filed a complaint for illegal arrest, families generally say they tried to file a first information report (FIR) with the police, but were turned down or discouraged to do so. Most of them finally filed their cases with the provincial High Court or the Supreme Court of Pakistan, so that the Court would issue an order to the police to initiate an investigation. In a large number of cases, families reportedly received threats or were intimidated to try to prevent them to file such cases. Some families were promised that if they would not file a case, their loved ones would be released, which did not happen.
Some other families were threatened that if they did file a case, their loved ones will be harmed, or another member of their family would also be abducted. According to the families we have heard, witnesses who were called to testify before the courts were threatened and in some cases victimized. In a few cases, the lawyers defending the families were reportedly themselves victims of enforced disappearances.
Some of the abducted persons were released while others were never seen again by their relatives. A number of those who have returned have testified to being held in unofficial places of detention. Many of those who came back were allegedly threatened not to speak about their period of disappearance. Some however have chosen to take high risks to give statements before courts or before the Commission of Inquiry. In Baluchistan, since 2010, a number of persons whose whereabouts were previously unknown were found dead, generally with signs of torture and sometimes decomposed to the point that their relatives were unable to identify them. Sometimes those bodies were found far from the place where they had been abducted, for some in deserted areas. The practice of “delivering” dead bodies has allegedly accelerated in the years 2011 and 2012. Most of the families we have met, telling their stories, felt abandoned and hopeless.
They implored that if their loved ones were being accused of any crime, he or she should be presented before a judge and, if recognized guilty, be convicted.
It is the responsibility and duty of the State to investigate thoroughly these serious allegations. The State of Pakistan, acknowledging the existence of the problem of enforced disappearances, has already taken positive steps to try to address this issue. The WGEID welcomes the declared will of the Government to tackle this issue and look at the current shortcomings in order to find the truth about the disappeared and finally eradicate the crime of enforced disappearances in Pakistan. Nevertheless, serious challenges remain when it comes to the prevention and the eradication of enforced disappearances in Pakistan. The WGEID emphasizes that, under article 3 of the Declaration, the State must take effective measures to prevent and terminate acts of enforced disappearance in any territory under its jurisdiction.
The WGEID also underscores that in order to prevent any act of enforced disappearances, it is of outmost importance that, as enshrined in the Declaration on the Protection of All Persons from Enforced Disappearances, any person deprived of liberty shall be held in an officially recognized place of detention and be brought promptly before a judicial authority (art. 10(1)).
IV. Efforts made by the State of Pakistan to deal with the problem of enforced disappearances
The Working Group welcomes the role played by the judiciary to shed light on the phenomenon of enforced disappearances in Pakistan and to trace missing persons. In 2007, the Supreme Court filed a number of petitions presented by individuals or NGOs. It was followed by provincial high courts which also began to take up cases under their jurisdiction to protect human rights. In a number of cases, the Supreme Court also took suo motu actions, showing its determinate will to tackle the problem. After the independence of the judiciary was reinstated in 2009, the courts continued to play a major role in the search for the disappeared persons and a number of persons resurfaced after having been kept in unlawful custody for several months, sometimes for years. The WGEID was told that the courts were also instrumental in facilitating the filing of FIR by families in relation to the abduction of their relatives, when they had previously been turned down by the local police.
Two special bodies were set up successively on the issue of enforced disappearances. In April 2010, the Interior Ministry set up a committee to investigate the fate of the disappeared persons. In March 2011, the Supreme Court decided to institute a specific body to deal with cases of enforced disappearances, initially for six months, but its mandate was then extended for three years. The two-member Commission of Inquiry on Enforced Disappearances is tasked with following up on the work done by the Interior Ministry’s Committee and to deal with cases already received by the Supreme Court, as well as with receiving new cases. The Commission can hear the families and the witnesses, in general in the presence of the representatives of most of the law enforcement and intelligence agencies. The Commission has held hearings in different parts of the country. It can order the setting up of a “Joint Investigation Team” (JIT) at the provincial level, in charge of investigating the matter. It can also summon any potential perpetrator. The JIT must report to the Commission on the result of the investigation.
In May 2012, the Statute of the National Commission on Human Rights as a national human rights institution (NHRI) has been adopted by the Parliament. The authorities have told the WGEID that the Commission will, among other mandates, have the responsibility to deal with the issue of enforced disappearances, including the exercise of quasi-judicial powers.
There have been commitments from several official authorities to “solve” the problem of the “missing persons” in Pakistan. In particular, as far as Baluchistan is concerned, the Baluchistan “package” adopted by the new government included a provision according to which all persons being in custody should be either released or brought before a court.
V. Challenges faced by the State of Pakistan in resolving the issue of enforced disappearances
1.The judicial inquiries
Efforts made by the courts proved to be efficient in a number of cases, where the persons could effectively be traced and found, and could finally return to their family. However, in the greatest number of cases, the investigations initiated under the orders of the courts remained inconclusive.
Reportedly, the courts have avoided using compelling methods to ensure the cooperation of law enforcement and intelligence agencies whose agents were accused of having perpetrated an enforced disappearance. Some families informed the WGEID that, although they had brought witnesses before the court to substantiate their claims, the court before which the case was filed satisfied itself with the oral declaration by the representative of the said agency, denying the custody of the person. Others told the WGEID that the court failed to use its power to summon an agent suspected of having participated in an enforced disappearance.
The main complaint was that the courts’ proceedings failed to result in prosecutions of the named perpetrators, even when evidence was, according to their lawyers, sufficient to do so.
2. The Commission of inquiry
The same criticism was also made of the Commission of Inquiry, which is said to have limited authority on the various law enforcement or intelligence agencies, allegedly involved in the enforced disappearances reported to the Commission. As in the case of courts, the WGEID received reports that the Commission satisfied itself with the denial of the accused agency that it had the concerned person in custody.
The Commission informed the WGEID that should its orders not be complied with, it had the power to initiate criminal proceedings against the potential perpetrators. But the WGEID has received no report of such criminal proceedings.
Some families also reported to the WGEID that the Commission, after having reviewed a case, gave oral assurances to the family that their loved ones would soon return back home, which in fact never happened. They were not aware of whether or not a formal order had been delivered to the authority allegedly having the disappeared person in its custody.
The families we met had different feelings about the fact that the hearings took place in the presence of representatives of different agencies, including those being accused of having abducted their loved ones: some said they had no fear to confront them, whereas others felt intimidated. The Commission has told the Working Group that families were given the choice to be heard alone with the two members of the Commission, if they preferred to do so. The Working Group is of the opinion that this should be the rule, rather than the exception.
If families are willing to confront and tell their stories in front of the agencies, they should be given the possibility to do so. But generally, the families should be heard by the two members of the Commission in a confidential meeting.
There is no doubt that the courts and the Commission are facing enormous difficulties in their task related to cases of enforced disappearances. The fact that they are being criticized by some families is reflective of the frustration, anguish and fear endured by these families. It is also a sign that those institutions ought to be further strengthened. The WGEID is in particular aware of the limits imposed on a two-member Commission, notably with respect to the limited capacities in terms of staffing.
As the High Commissioner for Human Rights said when recently visiting the country “Impunity is dangerously corrosive to the rule of law in Pakistan.” Listening to authorities and to victims, we could feel that impunity was a concern for the whole society. Some officials conveyed their concerns that criminals, terrorists or militants from armed groups enjoyed a great impunity because, even when investigations were initiated against them, they managed to get out of them, by using threats against the police, the judges or witnesses. There were hints that this might explain why some law enforcement or intelligence agents might resort to illegal practices such as enforced disappearances.
The WGEID is aware of the difficulties encountered by law enforcement officials to bring criminals to justice and acknowledge the security challenges faced by Pakistan in different areas. However, it underscores that these challenges cannot be accepted as a justification to commit such a heinous crime as enforced disappearances. We draw attention, in this respect, to Article 7 of the Declaration which provides that: “No circumstances whatsoever, whether a threat of war, a state of war, internal political instability or any other public emergency, may be invoked to justify enforced disappearances.”
Furthermore, according to the information received by the WGEID, the practice of enforced disappearances was also a tool to target political or human rights activists, who are legitimately exercising their freedoms of expression, association, and assembly.
Victims complained that, even when clearly identified by witnesses, the perpetrators were not only never convicted, but even never submitted to any effective investigation. The WGEID, despite its reiterated requests, has received no information related to convictions of state agents in relation to acts of enforced disappearances.
We were told by government officials that families of disappeared persons were not so keen to file complaints against named perpetrators and that in the absence of any complaint, no prosecution could be initiated. However, the WGEID would like to recall article 13(1) of the Declaration which provides that whenever there are reasonable grounds to believe that an enforced disappearance has been committed, the State shall promptly refer the matter to a competent and independent State authority for investigation, even if there has been no formal complaint. No measure shall be taken to curtail or impede the investigation.
It was also reported to the WGEID that some victims and witnesses received serious threats when reporting their cases to the police, the courts or the Commission of Inquiry. The WGEID was pleased to hear from official authorities of the Sindh and Baluchistan, but also at the federal level, that laws and regulations relating to the protection of victims and witnesses were in the process of being adopted. As provided in article 13(3) of the Declaration, “steps shall be taken to ensure that all involved in the investigation, including the complainant, counsel, witnesses and those conducting the investigation, are protected against ill-treatment, intimidation or reprisal.” A strong and comprehensive program for the protection of victims and witnesses should be set up, with a special attention to women as relatives of disappeared persons.
The WGEID notes that the Prime Minister promised to the High Commissioner, during her visit, that there would be a “zero tolerance” policy for such abuses, and hopes that this policy will be implemented with urgency.
Investigation against, and punishment of perpetrators, should be in accordance with the law, and with all the guarantees of a fair trial.
Perpetrators should be punished with appropriate penalties, with the clear exclusion of the death penalty. Enforced disappearances can also be punished on the basis of other crimes, as defined in the Criminal Code of Pakistan, such as the offence of “kidnapping or abducting with intent secretly and wrongfully to confine person”. However, it is recommended the creation of a new and autonomous crime of enforced disappearances, following the definition given in the 2006 Convention or the protection of all persons against enforced disappearances, and with the legal consequences flowing from this qualification (see the WGEID’s study on the best practices on enforced disappearances in domestic criminal legislation, doc. HRC/16/48/Add.3).
The WGEID also notes that, in Pakistan, military personnel cannot be submitted to trial before civil courts. This might constitute a factor of impunity for human rights violations and should be changed. Article 16 §§ 1 and 2 of the Declaration states that persons alleged to have committed an enforced disappearance shall be suspended from any official duties during the investigation and shall be tried only by the competent ordinary courts, and not by other special tribunal, in particular military courts.
4. Supervision and training of law enforcement agencies and intelligence agencies
During its visit, the WGEID repeatedly received allegations according to which there was a lack of supervision and accountability of law enforcement and intelligence agencies to the Government.
Accountability and full oversight of law enforcement and intelligence agencies is all the more essential in a situation where the State has to face multiple threats, like terrorism or political violence. In these circumstances, there is a risk that intelligence agencies would acquire new powers to interrogate, arrest and detain individuals, to the detriment of the law enforcement agencies. This shift can ultimately endanger the rule of law, as the collection of intelligence and collection of evidence about criminal acts becomes more and more blurred.
Furthermore, agents in charge of intelligence may be tempted to abuse the usually legitimate secrecy of intelligence operations and commit violations of human rights under the cover of this secrecy.
For these reasons, it is of major importance that the executive effectively supervise and direct the actions of the intelligence agencies. The Parliament has also a role to play in this regard, as it is to hold the executive branch and its agents accountable to the general public.
Appropriate training should also be given to members of law enforcement and intelligence agencies in the field of human rights, with particular focus on enforced disappearances. It should be made clear to all, in particular, that, as stated in article 6(1) of the Declaration that: “No order or instruction of any public authority, civilian, military or other, may be invoked to justify an enforced disappearance. Any person receiving such an order or instruction shall have the right and duty not to obey it.”
5. Assistance to the families and reparation
Victims of enforced disappearances are not only those who have been disappeared, but also their families. Relatives are enduring pain and anguish, as a consequence of the continuous uncertainty about the fate or the whereabouts of their loved ones. In the immense majority of cases, the disappeared persons are men and it is the women who are left alone. The gendered dimension of the phenomenon of enforced disappearances should be duly taken into consideration.
Family members are also prevented from exercising their rights and obligations due to the legal uncertainty created by the absence of the disappeared person. This uncertainty has many legal consequences, among others on the status of marriage, guardianship of under age children, right to social allowances of members of the families and management of property of the disappeared person. When asked, officials told us that there were no specific legal institutions designed to deal with these complex issues. To address this issue, the State of Pakistan should enable the issuance of a “declaration of absence by reason of enforced disappearance.”
During some meetings with officials, we heard that relatives of the disappeared are often taken care of by the extended family and that, in any case, they can file a civil claim in court in order to obtain compensation. But the issue of “compensation” should be clearly distinguished from the aid that should be provided to the families to cope with the dire consequences of the absence of the main breadwinner.
The WGEID recommends the establishment of mechanisms providing for social allowances or appropriate social and medical measures for relatives of disappeared persons in relation to the physical, mental and economic consequences of the absence of the disappeared. In this respect, we welcome the information provided by the Advisor to the Prime Minister on Human Rights that there is an existing fund dedicated to women which could be used for this purpose.
In no case should the acceptance of financial support for members of the families be considered as a waiver of the right to integral reparation for the damage caused by the crime of enforced disappearances, in accordance with article 19 of the Declaration.
In addition to the punishment of the perpetrators and the right to monetary compensation, the right to obtain reparation for acts of enforced disappearance under article 19 of the Declaration also includes the means for as complete rehabilitation as possible. This obligation refers to medical and psychological care and rehabilitation for any form of physical or mental damage as well as to legal and social rehabilitation, guarantees of non-repetition, restoration of personal liberty, family life, citizenship, employment or property, return to one’s place of residence and similar forms of restitution, satisfaction and reparation which may remove the consequences of the enforced disappearance.
The WGEID would like now to share a number of preliminary recommendations to the State of Pakistan. It is to be noted that these recommendations – as well as the conclusions we have just exposed – are not exhaustive and will be complemented in the final report, which will be presented before the Human Rights Council at one of its sessions in 2013:
– As a preventive measure against enforced disappearance, any person deprived of liberty shall be held in an officially recognized place of detention and be brought promptly before a judicial authority.
– The Commission of Inquiry should be reinforced. Its membership should be extended, so as to allow parallel hearings. Its staff and resources should be strengthened and the Commission should be given its own premises.
– The courts and the Commission of Inquiry should use all powers they have to ensure compliance with their orders, including the request of sworn affidavits and writs of contempt of courts.
– As a rule, the families should be heard in confidential meetings before the Commission of Inquiry, without the presence of representatives of law enforcement and intelligence agencies.
– A new and autonomous crime of enforced disappearances should be included in the Criminal Code, following the definition given in the 2006 Convention or the protection of all persons against enforced disappearances, and with all the legal consequences flowing from this qualification.
– Investigation against and punishment of perpetrators should be in accordance with the law, and with all the guarantees of a fair trial. Perpetrators should be punished with appropriate penalties, with the clear exclusion of the death penalty.
– Investigations should be initiated whenever there are reasonable grounds to believe that an enforced disappearance has been committed, even if there has been no formal complaint.
– Measures should be taken to ensure that, in case of human rights violations, suspected perpetrators, including army personnel, are suspended from any official duties during the investigation and are tried only by competent ordinary courts, and not by other special tribunal, in particular military courts.
– Clear rules and dedicated institutions should be created in order to ensure the oversight and the accountability of law enforcement and intelligence agencies.
– Appropriate training should be given to members of law enforcement and intelligence agencies in the field of human rights, with particular focus on enforced disappearances.
– A comprehensive program for the protection of victims and witnesses should be set up, with a special attention to women as relatives of disappeared persons.
– The State has to guarantee the safety of those who have met with the WGEID during this visit and to protect them against any form of reprisals, threats or intimidation.
– A system of declaration of absence as a result of enforced disappearance should be issued in order to address the legal uncertainties created by the absence of the disappeared person.
– Financial aid should be provided to the relatives of the disappeared persons, in particular women and children, in order to help to cope with the difficulties generated by the absence of the disappeared person.
– A program of integral reparation should be set up for all victims of enforced disappearances, including not only compensation but also full rehabilitation, satisfaction, including restoration of dignity and reputation, and guarantees of non-repetition.
– Ratify the Convention for the protection of all persons against enforced disappearances, and recognize the competence of the Committee to consider individual and inter-state complaints under article 31 and 32.
– If requested by the Government of Pakistan, the United Nations and other international organizations should stand ready to provide technical assistance and consultative services, so as to implement the Working Group’s recommendations.
To conclude, a mother of a disappeared person has asked us to convey a message to all persons in charge of public affairs in Pakistan.
She asked: “If your child disappeared, what would you do?”
This question summarizes the ordeal families are going through. As far as the WGEID is concerned, our only – but unsatisfactory response – to such a torturing pain is to recall that the relatives of the disappeared persons have the right to the truth, the right to justice and the right to reparation, and it is the duty of the State of Pakistan to take all necessary measures to make those rights effective.
Courtesy: United Nations Human Rights.