BANGLADESH鈥橲 recent ratification of the International Convention for the Protection of All Persons from Enforced Disappearance signifies a pivotal step in the nation鈥檚 commitment to rights and justice. The move, initiated by the interim government, has come at a time when Bangladesh grapples with the dark legacy of enforced disappearances, notably the 鈥榓ynaghar鈥� scandal. The incidents have not only traumatised the nation but also underscored the urgent need for comprehensive legal reforms to prevent the recurrence of incidents.
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Historical context: journey to ratification
The path towards ratifying the International Convention for the Protection of All Persons from Enforced Disappearance is intertwined with its tumultuous political history. Since independence, the nation has experienced periods of political unrest and authoritarian rule, during which enforced disappearances were used as a tool of repression. The 鈥榓ynaghar鈥� scandal, which involved the disappearance of political activists, journalists and dissenters, brought international condemnation and highlighted the absence of adequate legal mechanisms to address gross rights violation.
Despite being a party to several international rights treaties, including the International Covenant on Civil and Political Rights and the Convention against Torture, Bangladesh鈥檚 domestic laws have not fully conformed to the international standards, especially concerning enforced disappearances. The ratification of the International Convention for the Protection of All Persons from Enforced Disappearance presents an opportunity to mend these loopholes and fortify the commitment to rights.
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ICPPED: overview
The International Convention for the Protection of All Persons from Enforced Disappearance, which the United Nations General Assembly adopted on December 20, 2006, is an international treaty aimed at addressing the crime of enforced disappearances. It defines enforced disappearances as the arrest, detention, abduction, or any other form of deprivation of liberty by state agents or individuals acting with state authorisation, followed by a refusal to acknowledge the deprivation of liberty or concealment of the fate or whereabouts of the person who disappears.
The convention mandates that that states should take concrete steps to prevent enforced disappearances, including criminalising the act, ensuring thorough investigation, prosecuting perpetrators and providing reparations to victims and their families. For Bangladesh, the challenge lies in effectively integrating the provisions of the convention into its domestic legal system.
The convention establishes a comprehensive legal framework against enforced disappearances. Article 1 defines enforced disappearances as actions by state agents or authorised individuals that lead to the deprivation of liberty, coupled with denial of acknowledgment or concealment of the individual鈥檚 fate. Article 2 prohibits enforced disappearances, deeming it a crime under the international law. States must prevent such acts (Article 3) and criminalise enforced disappearances in domestic law (Article 4).
Article 5 emphasises that no exceptional circumstances can justify enforced disappearances. Article 6 and 7 require states to investigate such acts and prosecute offenders. Article 8 affirms victims鈥� rights to remedy and justice while Article 9 ensures non-discrimination. Article 24, lastly, promotes international cooperation among states to prevent and address enforced disappearances, highlighting the collective responsibility of state parties.
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Need for ratification: diplomatic and rights perspective
Bangladesh鈥檚 ratification of the convention is not just a legal obligation. It is a moral imperative that reflects the nation鈥檚 commitment to upholding rights. As a signatory to various international rights instruments, Bangladesh has a duty to protect its citizens from violations such as enforced disappearances. Ratifying the convention signals the country鈥檚 dedication to ending impunity for such crimes and bolsters its diplomatic standing by demonstrating adherence to international norms.
Moreover, this move sends out a clear message to the international community that Bangladesh is serious about collaborating with global bodies to ensure justice and accountability for enforced disappearances. It also sets a precedent for other countries in the region to follow suit.
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Legal framework: challenges and solutions
BANGLADESH must undertake significant reforms in its legal framework to effectively implement the convention. This involves amending laws, creating legal provisions and ensuring that the judiciary and law enforcement agencies are adequately prepared to handle cases of enforced disappearances.
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Legal framework integration
Criminal law reforms (Penal Code)
Definition and criminalisation: The Bangladesh Penal Code must be amended to include a clear definition of enforced disappearances, consistent with provisions of the convention. This definition should outline the actions that constitute enforced disappearances and differentiates it from other forms of abduction or unlawful detention. Specific penalties for enforced disappearances, including severe sentences such as life imprisonment for the people or quarters found guilty, should be established. Sections on abduction (Section 359鈥�367) should be revised to categorise enforced disappearances as a distinct and more serious offence.
Victim compensation: Provisions should be introduced for victim compensation and support, ensuring that victims and their families have access to reparations, including financial compensation and psychological counseling.
Maximum punishment: Bangladesh should amend the Penal Code to establish specific penalties for enforced disappearances, including life imprisonment for perpetrators.
Code of Criminal Procedure amendment
Investigative powers: The Code of Criminal Procedure should be amended to empower the law enforcement agencies to initiate the investigation of enforced disappearances without requiring formal complaints, thereby ensuring timely and proactive responses to such incidents.
Burden of p=roof: Revisions should include shifting the burden of proof on to the authorities in cases of enforced disappearances, requiring them to demonstrate that individuals were lawfully detained and that their rights were upheld. A strict time frame for the investigation of enforced disappearances should be established with mandatory progress reports submitted to an independent oversight body to ensure accountability.
Victim support mechanisms
Victims鈥� rights commission: An independent commission dedicated to advocating the rights of victims of enforced disappearances should be established. The commission should provide legal aid, psychological counseling and social reintegration assistance for victims and their families. Robust protection programmes for victims and witnesses involved in enforced disappearance cases should be implemented, ensuring their safety from potential reprisals. This includes safe housing, legal assistance and psychological support.
Law enforcement training: Comprehensive training programmes for law enforcement personnel should be implemented to enhance their understanding of rights standards and their obligations under the convention. The programmes should focus on the ethical conduct of investigation and the protection of victims鈥� rights.
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Institutional reforms
Specialised investigative units
Formation: Specialised units within the law enforcement agencies should be created to deal exclusively with investigating cases of enforced disappearances. The units should be staffed with personnel trained in rights laws and investigative procedures specific to enforced disappearances. Law enforcement agencies, the judiciary and rights institutions should receive specialised training in the provisions of the convention. This will equip them with the skills to handle cases of enforced disappearance effectively and sensitively.
Independent oversight: An independent oversight body should be established to monitor and review the investigation of enforced disappearances, ensuring that law enforcement agencies are held accountable for their action. This body should have the authority to recommend legal action and reforms based on its findings.
Special tribunal for enforced disappearances
Bangladesh may consider establishing specialised tribunals tasked with handling cases related to enforced disappearances to ensure accountability. The tribunals can focus on unique aspects of such cases, ensuring that victims receive justice timely and effectively.
Argentina established specialised tribunals to handle cases of rights violations during its military dictatorship, ensuring focused judicial oversight and accountability. This model can guide Bangladesh in addressing the challenges posed by enforced disappearances.
Establishment: A special tribunal should be formed to deal with cases of enforced disappearances. This tribunal should run independent of political influence and possess the legal authority to hold even ranking officials accountable.
Mandate: The tribunal鈥檚 mandate should include not only prosecution but also the provision of reparations and guarantees of non-repetition to prevent the recurrence of enforced disappearances.
Training and capacity-building
Bangladesh can learn lessons from other countries that have successfully implemented the convention:
Argentina 鈥� CONADEP: Argentina established the National Commission on the Disappearance of Persons to investigate enforced disappearances during its military dictatorship. The commission鈥檚 work led to the prosecution of military officials and the creation of a comprehensive historical record, underscoring the importance of truth commissions and judicial accountability.
Mexico 鈥� general law on enforced disappearance: In response to the widespread problem of enforced disappearances linked to organised crimes, Mexico enacted the General Law on Enforced Disappearance in 2017. The establishment of a national search commission demonstrated the importance of specialised agencies and involving victims鈥� families in the search and investigation process.
Sri Lanka 鈥� Office on Missing Persons: Sri Lanka ratified the convention and created the Office on Missing Persons to investigate enforced disappearances. Despite political resistance, the office represents a significant step towards accountability and highlights the importance of the will in implementing the convention.
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Case law and judicial precedents in Bangladesh
The successful implementation of the convention in Bangladesh will rely heavily on judicial precedents and the interpretation of international human rights law by domestic courts.
The Nazrul Islam case (2014): The High Court affirmed the government鈥檚 constitutional obligation to investigate and prevent enforced disappearances, emphasising the right to life and personal liberty as enshrined in the constitution.
The Aminul Islam case (2012): This case highlighted challenges in prosecuting enforced disappearances in the absence of a specific legal framework, thereby underscoring the necessity for comprehensive legal reform.
The Rubel Molla case (2020): The disappearance and extrajudicial killing of Rubel Molla attracted international scrutiny and underscored the need for a prompt and thorough investigation of enforced disappearances. The outcome of this case will set an important precedent for future cases.
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Role of govt: accountability and justice
The interim government has a unique opportunity to cement its legacy by ensuring that the convention is fully implemented. This includes necessary legal reforms, the required institutions and a culture of accountability. The interim government must also work closely with civil society organisations, victims鈥� groups and international rights bodies to ensure that the voice of those affected by enforced disappearances are heard and justice is served.
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New era of justice
THE ratification of the convention marks a critical step forward in Bangladesh鈥檚 journey towards justice and accountability. The test, however, lies in an effective implementation of the provisions of the convention. By reforming its legal framework, strengthening institutions and drawing lessons from other countries, Bangladesh can ensure that enforced disappearances become a thing of the past.
The 鈥榓ynaghar鈥� scandal and other cases of enforced disappearances serve as stark reminders of the consequences of impunity. The interim government must seize this moment to make meaningful change and ensure that all people are protected from enforced disappearances. This will not only uphold Bangladesh鈥檚 international obligations but also restore the faith of its citizens in the rule of law and the pursuit of justice.
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Ataur Rahman Kollol ([email protected]), a political and rights activists, is an advocate at Dhaka judges鈥� court.