CONVENTION OF

FORCED
DIAPPEARENCES

Submitted to- Submitted by-

Ms. Kajori Bhatnagar Saanvi Singla
Kamini Chaudhary
Darpan Singla
Stanzin Yangdol
Zooravar Singh

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Acknowledgement

This project on “Convention on Enforced Disappearances” has been successfully

completed because of the guidance of various factors. We would firstly like to
thank our teacher, Ms. Kajori Bhatnagar for giving me the opportunity of making
this project and guiding me and answering all my queries along with it.

We would also like to thank our Department who has been able to arrange such a
marvelous library, full of books on various subjects. We were able to get ample
material required from the various books available on international law for the
compilation of our project.

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Index
Content Page No.
Introduction 4
History and Background of the Convention 6
Enforced Disappearance as a Multiple Breach of Human Rights 10
The Inter-Relation Between Enforced Disappearances and Torture as the 12
Gravest Breach of Human Rights
The International Convention for the Protection of all Persons from Enforced 17
Disappearances: An Overview
Obligations of the Contracting States 25
Critical Analysis of the Main Provisions 27
Legal Framework in India 29
Relevant Domestic Law Protections 34
India’s Legal Framework Regarding the Right to a Remedy for Endangered 37
Disappearances
Who all are affected? 46
Violations under the Convention Across the Globe 48
Implementation Mechanisms of the Convention 52
Achievements and Success of Convention for Enforced Disappearances 54
Shortcomings in the Convention for Enforced Disappearances 59

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Introduction
The crime of enforced disappearance of persons became known for the first time
when Adolf Hitler (on December 7, 1941) issued “Nacht und Nebel Erlass” (the
Night and Fog Decree). Hitler is known to have admired Stalin’s reign of terror
and secret arrests, and this admiration may have been an inspiration for the Decree.
Its purpose was to seize persons in Nazi occupied territories that were
“endangering German security” and make them vanish without a trace. No
information was given to victim’s families as to their fate, even when, as often
occurred, it was merely a question of the place of burial in the “Reich”.

This practice re-emerged during the reign of the national security ideology of Latin
American military dictatorships in the late 1960s—first in Brazil and then in
Guatemala. During the 1970s and the early 1980s, the practice of enforced
disappearance was a common feature in many countries of this region. In addition
to Latin America, the highest numbers of enforced disappearances were reported as
taking place in Iraq, Sri Lanka and the former Yugoslavia.

The complexity of enforced disappearances is well known. Enforced disappearance

is often categorized as multiple human rights violations which simultaneously
covers the violation of several human rights such as: the right to security and
personal dignity; the right not to be subjected to torture or other cruel, inhuman or
degrading treatment or punishment; the right to humane conditions of detention;
the right to legal representation; the right to a fair trial; the right to a family life;
and even the right to life, when the abducted person is killed.

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The international non-governmental organisation, Amnesty International describes
the phenomenon of enforced disappearance as a human rights violation when a
person is arrested, detained or abducted by the state or agents acting for the state,
who then deny that the person is being held or conceal their whereabouts, placing
them outside the protection of the law. Very often, people who have disappeared
are never released and their fate remains unknown to their families and friends.
The abducted person is often tortured and in constant fear for their life, removed
from the protection of the law, deprived of all their rights, and at the mercy of their
captors. It is a continuing violation which often persists for many years after the
initial abduction.

The international community has taken steps to combat enforced disappearance,

both at the regional and international level, with the Declaration on the Protection
of all Persons from Enforced Disappearance (1992) (“Declaration”), the Inter-
American Convention on Forced Disappearance of Persons (1994) (“Inter-
American Convention”), and the Rome Statute of the International Criminal Court
(1998) (“Rome Statute”). The last document to enter into force is the International
Convention for the Protection of All Persons from Enforced Disappearance, which
has been open for signature since 2007 (“the Draft Convention”).

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History and Background Of The Convention

The different steps that lead to the adoption of the Convention in 2006 with the
relevant documents that have been produced and published from 1981 onwards.
Including the 1992 Declaration and the Manfred Novak report of 2001.

1978 General Assembly resolution 33/173

In December 1978 the General Assembly first refers to the issue of 'Disappeared
Persons. In the resolution it is 'deeply concerned by reports from various parts of
the world relating to enforced or involuntary disappearances and asks
the Commission on Human Rights to consider the issue of enforced disappearances
with a view to making appropriate recommendations.

1979-1980 Commission on Human Rights and UNWGEID

In 1979 the Commission on Human Rights gave the mandate of formulating

recommendations to the Subcommission on Prevention of Discrimination and
Protection of Minorities. This Subcommission proposed the creation of a Working
Group consistent of experts to examine questions related to enforced or involuntary
disappearances. The Working Group on Enforced or Involuntary Disappearances
(UNWGEID) was established in February 1980 exists till this day.

1981-1984 Drafts of legal instrument

In 1981 the Human Rights Institute of the Paris Bar Association convened a high
level colloquium for the promotion of an international convention on
disappearances. The historical phrases of Julio Cortazars 'Refus de l'Oubli' were

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expressed here. The Latin American federation of family member organisations
FEDEFAM debated the possible project of a convention in their 1982 Congres in
Lima. In that same year several eminent lawyers, such ad Eduardo Novoa Monreal
of Chile and Alfredo Galletti of Argentina, drafted the first text for a Convention
against enforced disappearances. In 1983 FEDEFAM submitted text of the
convention to the United Nations for adoption. States responded saying that it
would be better to update the existing mechanisms rather than having a new
convention. In 1984 the Subcommission prepared a preliminary draft of an
International declaration against the Unrecognized Detention of Persons. This text
was not taken further.

1984-1994 Interamerican Convention and Preparation of UN Declaration

In 1987 the General Assembly of the Organisation of American States (OAS)

asked the Inter American Commission to prepare a first draft of an inter
american convention and in 1988 the Commission presented a draft text. Also in
1988 a first draft of the UN Declaration was prepared by the French expert Louis
Joinet in the Subcommission on the Prevention of Discrimination and the
Protection of Minorities. The Commission on Human Rights discussed the text and
December 1992 in Resolution 47/133 the Declaration on the Protection of all
persons from Enforced Disappearance was adopted by the General Assembly. Two
years later, in 1994, the OAS General Assembly adopted the Inter-American
Convention on Enforced Disappearance of Persons

1998 - September 25, 2005

In 1998 the Subcommission for the Promotion and Protection of Human Rights
adopted a 'Draft International Convention for the Protection of all persons from

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Enforced Disappearances. it was drafted in the Working Group of administrative
justice which was chaired by Louis Joinet. In 2001 the Commission on Human
Rights appointed Manfred Novak to examine the existing framework for the
protection of persons from enforced disappearance. At the same time an
Intersessional Open-ended Working Group to prepared a draft legally binding
instrument was created. This Working Group, chaired by French Ambassador
Bernard Kessedjian, met for the first time in 2003 and continued to hold two
sessions a year until September 2005. After three years of debate the
representatives of States in the working group agreed upon a proposal for a text on
September 25, 2005.

September 22, 2005

Joint Statement of the Associations of families of the disappeared and other

supportive NGOS on the occasion of the adoption of the Draft International
Convention for the Protection of All Persons from Enforced Disappearances.

September 25, 2005 - December 20 2006

The Convention was adopted on June 29 2006 as the first resolution of the
new Human Rights Council. On November 13 2006 the Third Committee of the
General Assembly adopted the text with 103 co-sponsors. Finally on December 20
2006 the text was adopted by the plenary of the General Assembly.

2007

On February 6 2007 the Convention was opened for signatures and signed by 57
States. It will enter into force on the 30th day after the deposit with the United
Nations of the 20th ratification of accession.

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December19, 2007 Bernard Kessedjian passed away

On December 19, 2007 Ambassador Kessedjian passed away at the age of 64 due
to illness.

June 18 2008 Louis Joinet, one of the architects of the convention retires

One of the masterminds behind the Convention against Enforced Disappearances,

the UN Special Rapporteur for Haiti Louis Joinet bade farewell to the Human
Rights Council on June 18th 2008, after presenting his final report.

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Enforced Disappearance as a Multiple Breach of Human Rights

Enforced disappearances are not new to the history of human rights violations.
However, their systematic and repeated use—as a means of creating a general state
of anguish, insecurity and fear—is a recent phenomenon. Considerable human
rights violations in the form of enforced disappearances have taken place in South
America, Asia, Central and Eastern Europe (in particular Belarus). Although this
practice exists virtually worldwide, it has occurred with exceptional intensity in
Latin America in the last several years.

Enforced disappearance is a particularly complicated issue and is difficult to

discuss in a single article because it is a human rights violation falling under the
scope of man rights law, international criminal law and international humanitarian
law. Due to its continuity and complexity, it must be understood and confronted in
an integral fashion. The Human Rights Committee denoted that any act leading to
such a disappearance constitutes a violation of many of the rights enshrined in the
International Covenant on Civil and Political Rights—the right to liberty and
security of person (art. 9); the right not to be subjected to torture or to cruel,
inhuman or degrading treatment or punishment (art. 7); and the right of all persons
deprived of their liberty to be treated with humanity and with respect for the
inherent dignity of the human person (art. 10). It also violates, or constitutes a
grave threat, to the right to life (art. 6).

Due to the nature of “multiple” human rights violations, enforced disappearances

most commonly represents a violation of the right to life; the prohibition on torture
and cruel, inhuman or degrading treatment; the right to liberty and security of the
person; and the right to a fair and public trial.
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International human rights protection bodies have adopted relevant jurisprudence
involving the interpretation of so called enforced disappearances. The term
“enforced disappearances” is not included in regional human rights catalogues
such as the European Convention of Human Rights and Fundamental Freedoms
(ECHR) or the American Convention on Human Rights. Therefore, every segment
of human rights violations which corresponds to enforced disappearance should be
examined separately. Due to the difficulty in disclosing all possible linkages of
human rights violations and enforced disappearances, this article further examines
torture as one of the gravest human rights violations in the context of enforced
disappearances.

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The Inter-Relation between Enforced Disappearances and Torture as the
Gravest Breach of Human Rights

Inter-American institutions have defined the phenomenon of enforced

disappearances as representing acts of torture or cruel, inhuman or degrading
punishment or treatment. Torture can be defined as the intentional infliction of
severe pain or suffering on a powerless victim, usually a detainee, for a specific
purpose—extraction of a confession or information, intimidation, or punishment.
The international community has taken a number of steps to combat torture and
enforced disappearance.

In addition to the absolute prohibition of torture and other forms of cruel

punishment in international and regional human rights treaties, the United Nations,
the Council of Europe and the Organization of American States have adopted
various treaties which establish the specific obligations of states to prevent torture
and ill-treatment, to bring individual perpetrators of torture to justice, and to find
an effective remedy and reparation for the pain suffered by the tortured.

A number of decisions of international human rights bodies have identified the

elements of torture that relate to enforced disappearances. For example, the
European Court of Human Rights, in the case of Bazorkina v. Russia, examined
the alleged violation of Article 3 of ECHR in respect to the applicant. The Court
emphasized that the essence of such a violation does not mainly lie in the fact of
the “disappearance” of the family member, but rather concerns the authorities’
reactions and attitudes to the situation when it was brought to their attention. It is
especially in respect to the latter that a relative may directly claim to be a victim of
the authorities’ conduct. Finally, the Court found that the applicant suffered, and
12
continues to suffer, distress and anguish as a result of the disappearance of her son
and her inability to find out what happened to him. The manner in which her
complaints have been dealt with by the authorities must be considered to constitute
inhuman treatment contrary to Article 3. It is noteworthy that the United Nations
Convention against Torture (CAT) has become a source of reference for the
International Convention for the Protection of All Persons from Enforced
Disappearance. One of the most important features of the CAT is the obligation of
States Parties, under Article 4, to criminalise torture under their domestic laws with
appropriate penalties and to eliminate safe havens for perpetrators of torture by
establishing various types of jurisdictions, including criminal jurisdictions, in
accordance with the detailed provisions in Articles 5–9. Similar obligations to
punish perpetrators are found in regional human rights documents related to
enforced disappearance such as the Declaration on the Protection of all Persons
from Enforced Disappearance, the Inter-American Convention on the Enforced
Disappearance of Persons, and in the International Convention for the Protection of
All Persons from Enforced Disappearance. The central objective of the CAT and
enforced disappearance conventions is modeled on earlier treaties combating
terrorism (e.g. Montreal Convention for the Suppression of Unlawful Acts against
the Safety of Civil Aviation, 1971). The provision is based on the experience that
impunity for perpetrators of torture is one of the main reasons that torture (and
enforced disappearances) continues to be widely practiced in many countries
despite its absolute prohibition under international human rights and humanitarian
law.

The importance of torture as an element of enforced disappearances, and State

Parties’ obligation to criminalize torture, is beyond the scope of the previously
mentioned human rights documents. The positive obligations of State Parties to
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prevent, investigate and punish the perpetrators in cases of enforced
disappearances and torture are explicitly developed in the jurisprudence of regional
human rights courts like the European Court of Human Rights and the Inter-
American Court on Human Rights. In the case of Velasquez Rodriguez, the Inter-
American Court on Human Rights referred to Article 1(1) of the Convention and
analyzed the obligation to respect rights. The first obligation of the State Party is
“to respect the rights and freedoms”, and the second is to “ensure” the free and full
exercise of the rights recognised by the Convention of every person subject to its
jurisdiction. The Court indicated that the States must prevent, investigate and
punish any violation of the rights recognised by the Convention and, if possible,
attempt to restore the violated rights and provide compensation as warranted for
damages resulting from violation.

Interpreting Article 2 of the Convention, the American Court has denoted the
obligation of the State Parties to adopt [...] such legislative or other measures as
may be necessary to give effect to those rights or freedoms. The Court has
recognised the responsibility of the state for the acts that its agents undertake in
their official capacity and for their omissions—even when those agents act outside
the sphere of their authority or violate international law. In this case, The Court
was convinced that the disappearance was carried out by agents who acted under
the cover of public authority. The Court noted that according to the principle of the
continuity of the State in international law, responsibility exists independently of
changes of government and that responsibility exists continuously from the time of
the act that created the responsibility to the time when the act is declared illegal.

A similar decision was also adopted by the European Court of Human Rights
dealing with the Bazorkina v. Russia case. The Court, like its American
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counterpart, also stressed the obligation of the authorities to act on their own
volition once the matter has come to their attention. For an investigation [...] to be
effective it may generally be regarded as necessary for the persons responsible for
the investigation to be independent from those implicated in the events. The
investigation must also be effective in the sense that it be capable of leading to a
determination of whether the force used in such cases is or is not justified and lead
to punishment for those who are responsible. This is not an obligation of result, but
of means.

The Court noted that investigation delays compromised the effectiveness of the
investigation and had a negative impact on the prospects of arriving at the truth.
Universal human rights bodies such as the Human Rights Committee have also
become relevant in similar cases involving torture and enforced disappearances. In
the Edriss El Hassy v. The Libyan Arab Jamahiriya case the Committee
concentrated on the obligations of the State Party and referred to the importance of
States Parties’ establishment of appropriate judicial and administrative
mechanisms for addressing the alleged violations of rights under domestic law. It
referred to its General Comment No.31, which states that failure by a State Party to
investigate allegations of violations could give rise to a separate breach of the
Covenant. The Committee concluded that the State Party was duty-bound to
conduct thorough investigations into alleged violations of human rights—
particularly enforced disappearances and acts of torture—and also to prosecute, try
and punish those held responsible for such violations.

To sum up, the various international human rights bodies have denoted the
importance of positive obligations and the role of the state in combating the
phenomenon of enforced disappearances. Due to the gravity of the crime of
15
enforced disappearance, the possible human rights violations extend beyond
international human rights law. The complexity of the nature of the enforced
disappearances is reflected in human rights law and also humanitarian and
international criminal law.

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The International Convention for the Protection of all Persons from Enforced
Disappearance: an Overview

In 2003 the Commission on Human Rights decided to establish an Inter-sectional

Open-ended Working Group to elaborate a legally binding normative instrument
for the protection of all persons from enforced disappearance (ISWG). Throughout
the three-year negotiation process, over 70 States, as well as numerous NGOs,
associations for the families of victims, and experts participated in the sessions of
the ISWG. The International Convention for the Protection of all Persons from
Enforced Disappearances was adopted by the Human Rights Council during its
first session in June 2006 and by the General Assembly in December of that same
year.

The Convention on Enforced Disappearance is the first universal legally binding

instrument that addresses this complex crime. It is pending ratification by the
required number of states to come into force and its provisions were modeled
mostly on the CAT. The principal provisions of the Draft Convention—the
positive obligations of the States Parties, the definition of “victim” , an effective
remedy, and monitoring mechanisms—will be discussed later in more detail.

The Positive Obligations of States Parties

Despite highly controversial discussions during the drafting process, the Draft
Convention contains, in Article 2, a state-centered definition of enforced
disappearances similar to the one in Article 1 of the CAT. Article 3 requires States
Parties to take appropriate measures to investigate acts of enforced disappearances
committed by persons or groups acting without the authorization, support or
acquiescence of the state and to bring those responsible to justice. Article 5
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reiterates Article 7(1)(i) of the ICC statute by affirming that the widespread or
systematic practice of enforced disappearance constitutes a crime against humanity
which requires the consequences provided for under applicable international law.

The Draft Convention has been formulated on the basis of the CAT—it provides an
explicit list of obligations envisioned for the States Parties (Article 17), it enables
States Parties to take the necessary measures to hold persons criminally responsible
(Article 6), it makes the offence of enforced disappearances punishable by
appropriate penalties (Article 7), it ensures the right of individuals to report the fact
of enforced disappearance to the competent authorities (Article 12), and it provides
mutual legal assistance among the States Parties (Article 14). In comparison to the
CAT, Article 4 has similar provisions to ensure that enforced disappearance
constitutes an offence under domestic criminal law. Article 7 (1) adds the need for
appropriate penalties, taking into account the extreme seriousness of crime. Article
9 is identical to Article 5 of the CAT and establishes universal jurisdiction. The
obligations of any state exercising jurisdiction laid down in articles 10, 11, 13 and
14 correspond to those in Articles 6–9 of the CAT. The right to complain about
cases of enforced disappearance and the obligation to investigate such cases are
brought together in Article 12 and are linked to the criminal investigation
provisions (whereas in the CAT these provisions are separated). The non-
refoulement provision in Article 16 resembles the one in Article 3 of the CAT.

The main source of inspiration for the draft Convention was the CAT. However,
the draft Convention has also inherited the positive obligations established in the
Declaration on the Protection of all Persons from Enforced Disappearance. The
Declaration encourages taking effective legislative, administrative, judicial or other

18
measures to prevent and terminate acts of enforced disappearance in any territory
under its jurisdiction.

It states that all acts of enforced disappearance should be offences under criminal
law punishable by appropriate penalties which will take into account their extreme
seriousness. The Convention expands these provisions of the Declaration, adding
sensitive groups such as children and explicitly listing acts punishable by law, such
as:

a) The wrongful removal of children who are subjected to enforced

disappearance, children whose father, mother or legal guardian is subjected
to enforced disappearance, or children born during the captivity of a mother
subjected to enforced disappearance.
b) The falsification, concealment or destruction of documents attesting to the
true identity of the children.

Similar provisions are not foreseen in the CAT, in the Declaration, nor in the Inter-
American Convention on Forced Disappearance of Persons.

“Victim” Definition
The Convention, contrary to the Declaration or the regional conventions, goes
further when defining the concept of “victim”. According to the Convention
“victim” means the abducted person and any individual who has suffered harm as
the direct result of an enforced disappearance. This definition covers both—direct
and indirect—victims.
This means that a broad “victim” definition encompasses both the abducted person
and any individual who has suffered harm as a direct result of an enforced

19
disappearance. The latter is particularly important in enforced disappearance cases
when close relatives suffer from an ignorance of the whereabouts of their family
members and can, therefore, be qualified as (direct or indirect) torture victims. It
establishes, for the first time in a human rights treaty, the explicit right of each
victim to know the truth regarding the circumstances of the enforced
disappearance, the progress and results of the investigation, and the fate of the
person who has disappeared.

Effective Remedy
The Convention, contrary to the Declaration and related human rights documents,
defines the “victim” and also lists forms of reparation:
The right to obtain reparation [...] covers material and moral damages and, where
appropriate, other forms of reparation such as:
a) Restitution;
b) Rehabilitation;
c) Satisfaction, including restoration of dignity and reputation;
d) Guarantees of non-repetition.

These forms of reparation echo the provisions of the General Assembly resolution
A/RES/60/147. This resolution recognised the need for an effective remedy and its
importance in cases of gross violations of international human rights law and
serious violations of international humanitarian law. The resolution denoted the
obligation of the States Parties to have the duty to investigate and, if there is
sufficient evidence, the duty to prosecute the person allegedly responsible for the
violations. And, if found guilty, the duty to punish the perpetrator, to cooperate
with one another, and assist international judicial organs competent in the
investigation and prosecution of these violations. The States Parties are encouraged
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to facilitate extradition, to surrender offenders to other States Parties, to
appropriate international judicial bodies, to provide judicial assistance, and to
cooperate in the pursuit of international justice. This would include assisting and
protecting victims and witnesses, consistent with international human rights legal
standards and subject to international legal requirements such as those relating to
the prohibition of torture. Among other forms of effective reparation, the resolution
includes the possibility of rehabilitation, which should include medical and
psychological care, as well as legal and social services. It is noteworthy that the
Convention also foresees the possibility of rehabilitation. While other forms of
reparation are widely used for human rights violations according to all core United
Nations human rights treaties, this form of reparation should be considered as a
novelty in international human rights treaties and is currently used only in the
practice of the Committee against Torture, which is responsible for monitoring the
prevention of torture and other cruel, inhuman or degrading treatment or
punishment.

Monitoring Mechanisms
Lastly, the Convention establishes a Committee on Enforced Disappearances to
supervise the implementation of the Convention. The Committee on Enforced
Disappearances may consider state reports, requests and communications.
Interestingly, in addition to the mandatory reporting procedure under Article 29, as
well as optional individual and interstate complaints procedures, in accordance
with Articles 31 and 32, the Convention also contains a tracing procedure in
Article 30 which empowers the Committee to communicate requests for urgent
action and interim measures to States Parties. This is similar to the practice of the
Working Group on Enforced and Involuntary Disappearances (WGEID).

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The Committee may consider the request that an abducted person be sought and
found, and request the State Party concerned to provide it with information on the
situation of the persons sought, within a time limit set by the Committee. This
request may be presented as a matter of urgency by relatives of the abducted
person, their legal representatives, or any person authorized by them, as well as
any other person having a legitimate interest. In order for the request to be
admissible, it should satisfy certain admissibility conditions. Those conditions
resemble the admissibility criteria of individual petitions: (i) the request is not
manifestly unfounded; (ii) it does not constitute an abuse of the right of submission
of such requests; iii) it has already been duly presented to the competent bodies of
the State Party concerned, where such a possibility exists; (iv) it is not
incompatible with the provisions of this Convention; and (v) the same matter is not
being examined under another international investigation or settlement of the same
nature.

The inquiry procedure in Article 33 is modeled on Article 20 of the CAT and also
permits visits to the territory of the States Parties only if the respective government
agrees. But in the case of a widespread or systematic practice of enforced
disappearances, the Committee, pursuant to Article 34, may also urgently bring the
matter to the attention of the General Assembly. Finally, Article 35 clarifies that
the Committee has competence solely in respect to enforced disappearances which
occur after the Convention comes into force, which will take place after ratification
or the accession of 20 states. The creation of this supervision mechanism under the
provisions of the Convention gives hope that as soon as this Convention enters into
force, the workload in the Human Rights Council will decrease with respect to
procedure 1503. In the meantime, the Human Rights Council, which includes the
International Criminal Court on the one hand and the Working Group on Enforced

22
and Involuntary Disappearances on the other, will remain a major forum to deal
with the phenomenon of enforced disappearance.
Criminalization of Enforced Disappearance

Under the Rome Statute of the International Criminal Court, enforced

disappearance has been declared a crime against humanity when committed as part
of a widespread or systematic attack directed against any civilian population, with
knowledge of the attack.

According to the International Law Commission, the inclusion of enforced

disappearance in the Rome Statute as a crime against humanity was due to its
extreme cruelty and gravity.

Enforced Disappearance as Torture

The Convention against Torture confers universal jurisdiction over alleged

perpetrators of torture in article 5(2) which provides that a state may establish
jurisdiction over offence amounting to torture “where the alleged offender is
present in any territory under its jurisdiction”.

Torture defined in CAT article 1 an act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person for such purposes as
obtaining from him or a third person information as a confession punishing him for
an act he or a third person has committed or is suspected of having committed or
intimidating or coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity.

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The UN special Rapporteur on torture has stated “prolonged incommunicado
detention in a secret place may amount to torture as described in article 1 of the
CAT. The suffering endured by the disappeared person, who are isolated from the
outside world and denied any recourse to the protection of the law”.
Enforced Disappearance as a Crime Against Humanity

The Modern Notion of a crime against humanity was developed during the
international military tribunal trials in Nuremberg, wherein three kinds of crime
were discussed such as peace, war crimes and crime against humanity. The crime
against humanity were defined as “murder, extermination, enslavement,
deportation and other inhumane acts committed against any civilian population,
before or during the war or prosecution on political, racial or religious grounds.”

24
Obligations of Contracting States

➢ To promote universal respect for, and observance of, human rights and
fundamental freedoms,
➢ Having regard to the Universal Declaration of Human Rights, recalling the
International covenant on economic, social and cultural rights and
humanitarian law and international criminal law,
➢ Also recalling the Declaration on the protection of all persons from enforced
disappearance adopted by the General Assembly in its resolution of 1992
December,
➢ Aware of the extreme seriousness of enforced disappearance, which
constitutes a crime and, in certain circumstances defined in international
law, a crime against humanity,
➢ Determined to prevent enforced disappearances and to combat impunity for
the crime of enforced disappearance,
➢ Considering the right of any person not to be subjected to enforced
disappearance, the right of victims to justice and to reparation,
➢ Affirming the right of any victim to know the truth about the circumstances
of an enforced disappearance and the fate of the disappeared person, the
freedom to seek, receive and impart information.
➢ State parties must enact specific laws establishing the crime of enforced
disappearance. They must investigate complaints and reports of enforced
disappearance and bring those responsible to justice.
➢ Other obligations are of a preventive nature, such as obligation to detain
persons only in officially approved and monitored institutions in which all
prisoners are registered, the absolute right to Habeas Corpus (detention
lacking sufficient cause or evidence), the interdiction of concealment of the

25
 whereabouts of arrested persons which are in this way placed outside the
protection of the law, as well as the right to receive information on prisoners.
✓ The convention recognises the right of victims and their families to know the
truth regarding the circumstances and fate of the disappeared person. It also
treats the unlawful abduction of children whose parents were victims of
enforced disappearance as well as the faking of these children’s identities
and their adoption.

26
Critical Analysis of Main Provisions

• The definition of enforced disappearance requires state involvement under

the CED and does not criminalise such practices perpetrated by non-state
actors.
• The CED does not prohibit states from granting Military Tribunals
Jurisdiction to adjudicate claims of enforced disappearance. Thus, a state
could not designate a military tribunal to fulfil its duties to prosecute the
crime of ED.
• The CED fails to address “amnesty laws, pardons and other similar measures
conceived to evade responsibility for human rights violations.
• The CED does not allocate the Burden of proof for cases of enforced
disappearance. Article 20 of the convention creates an exception to the
general rule that information shall be made available to the victims next to
kin. Above said provision runs counter to the information-sharing provision
of 1992 Declaration which simply stipulates information to be made
available for victim’s next of kin.
• The CED allows states to impose statute of limitation on claims of a
enforced disappeared and fails to place limits on state’s ability to impose
such statutes. Though the Declaration of 1992 allowed states to impose
statutes of limitation. Declaration required “statutes of limitation” not begin
to run until the establishment of the “fate and the whereabouts of persons of
enforced disappearance”. The CED lacks similar provision.
o Rather, CED merely requires states to take into account “continuous
nature” of ED. Narrow interpretation of article 8 could allow states to
implement statute of limitation begun to run before the establishment

27
 of “fate and whereabouts” of victim and thus barring victims from
judicial enforcement of their rights.
o Though India has not ratified the CED but favoured the definition of
ED including the intent factor. India justified its position by asserting
that definition should parallel the Rome Statute.
o India also suggested that the proposed treaty would better function as
an (optional protocol) to the ICCPR instead of a separate convention
with its own monitoring body.
• Armed Forces Special Powers Act enacted in 1958, regulates instances of
use of special powers by the Armed Forces in “disturbed areas” of country.
• As per the act, disturbed area “affected by conflict that exists for a limited
duration and is dangerous to the extent that use of armed forces is deemed
necessary”
• The Supreme Court in Naga people’s Movement of Human Rights vs. union
of India, AIR 1998 SC 431 has ordered “periodic review” within every six
months. Currently, Manipur, Assam, Arunachal Pradesh, Meghalaya,
Mizoram, Tripura, Nagaland, and J&K are classified as disturbed areas.
• The Act permits Indian Armed Forces to use lethal force, immunizes state
agents from public or private prosecution, thereby preventing victims from
right to a remedy for enforced disappearance in most situations.
• The special Rapporteur on Extra judicial killings had stated that the powers
granted under AFSPA are broader than those under “states of emergency”
and suspension of individuals may constitute suspension of the “right to
life”.

28
Legal Framework in India
The international legal framework regarding India’s obligations to ensure the right
to a remedy for enforced disappearances and other gross human rights violations. It
offers Indian activists guidance in considering the role that international norms
may play in developing an advocacy strategy to promote redress for victims of
enforced disappearances and torture.

In several Indian states, individuals and their families have suffered from
widespread human rights violations in the form of enforced disappearance, torture,
and rape. These violations harm not only the direct victim, but also his or her next
of kin. In addition, there are gendered impacts of these violations. For example, in
instances in which the direct victim is the male breadwinner, his wife is left to
struggle with the economic, psychological, and social distress as a result of the loss
of her husband. Or, where a husband is tortured as part of the enforced
disappearance and unable to resume his former livelihood activities, the surviving
wife may suffer the burden of not being able to support the family economically
due to lack of employment opportunities for women. Despite their widespread and
devastating effects, enforced disappearances and other gross human rights
violations in India have been met with
a culture of impunity, lack of investigation, and wholly inadequate reparations.
These shortcomings are also violations of India’s international legal obligations to
ensure victims access to effective remedies, which include the rights to truth,
justice, and reparations, as well as guarantees of non-recurrence.

The International Convention for the Protection of All Persons from Enforced
Disappearance defines an enforced disappearance as: the arrest, detention,
abduction or any other form of deprivation of liberty by agents of the State or by
29
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.

Thus, enforced disappearances are recognized as a human rights violation that

includes three legal three elements: (1) the deprivation of liberty, (2) with state
involvement, and (3) state denial or concealment of the fate of the disappeared.
Enforced disappearances are distinguishable from other human rights violations by
the state’s denial of knowledge or responsibility of the disappearance of the
individual. Official concealment of the individual’s detention leaves the families of
the victim in a state of uncertainty about the fate of their loved one, causing
anguish. The practice of enforced disappearances is a global phenomenon that
advocates largely date back to practices undertaken by Latin American
dictatorships. At the international level, sustained attention to developing a legal
framework to address enforced disappearances culminated in the drafting of a new
international human rights treaty, the International Convention for the Protection of
All Persons from Enforced Disappearances (CED), which entered into force in
2010. The CED provides a comprehensive framework that codifies enforced
disappearance as a human rights violation and establishes states’ obligations to
respect, protect, and ensure the right of individuals to be free from it. The CED
also provides a comprehensive remedy scheme that includes the rights to truth,
justice, reparations, and guarantees of non-recurrence.

India has signed but not ratified the Convention. As a signatory to the treaty, India
has accepted the international obligation not to act contrary to the object and
purpose of the CED. In addition, by becoming party to other human rights treaties
30
that address related human rights violations that occur in the course of an enforced
disappearance, and as India is bound by norms of customary international law,
India has undertaken certain obligations outside of the CED that protect individuals
from enforced disappearances. For example, enforced disappearances often occur
in conjunction with other human rights violations, such as arbitrary detention,
extrajudicial execution, incommunicado detention, torture, or rape. These
violations are prohibited under the International Covenant on Civil and Political
Rights (ICCPR), a treaty to which India is a party. Beyond applying to the direct
victim of an enforced disappearance, enforced disappearances also violate the
rights of the family of the direct victim, in particular the rights of surviving women
family members.

The analysis of India’s international legal obligations is further complicated

because some Indian states arguably are in a state of armed conflict and, thus,
international humanitarian law (the law of war), including its protections for
enforced disappearances, is also triggered. Depending on the type of conflict—
internal or international—distinct international legal norms apply to states’
conduct. Beyond the type of conflict occurring, there is debate about the temporal
relationship between human rights protections and international humanitarian
protections. The majority view holds that fundamental human rights apply at all
times, thus, simultaneously with humanitarian protections in times of conflict;
under this view, India is obligated to guarantee human rights, including those
related to enforced disappearances, at all times.

Once a violation has occurred, whether during time of peace or conflict, India is
obligated to ensure that victims have access to a remedy. The right to a remedy is a
well-established norm of international law; however, its substance continues to
31
develop. An emerging view of the right to a remedy identifies four substantive
components of the right to a remedy—the right to justice, the right to truth, the
right to reparations, and guarantees of non-recurrence. The right to justice requires
that states criminally prosecute perpetrators of gross human rights violations and
serious violations of international humanitarian law. The right to truth requires that
states adequately investigate serious human rights violations and provide
individuals and communities with the results of its investigation. The right to
reparations requires that states provide access to redress and compensation for
violations. Guarantees of non-recurrence require that states take concrete measures
to prevent similar violations from occurring in the future. The type of human rights
violation determines the applicability of each of these four dimensions in satisfying
the right to a remedy.

India has promulgated legislation that affect individuals’ ability to access effective
remedies for human rights violations, including the Armed Forces Special Powers
Act, the National Human Rights Commission (created by the Protection of Human
Rights Act), the Prevention of Terrorism Act, the Right to Information Act, the
Prevention of Torture Bill, and the Prevention of Communal and Targeted
Violence (Access to Justice and Reparations) Bill. Other legislation or legal
institutions, including the Armed Forces Special Powers Act, the National Human
Rights
Commission, the Prevention of Terrorism Act, and the Prevention of Torture Bill,
immunize from prosecution certain categories of state actors who commit abuses.
Such bars on investigations and prosecutions compromise the rights of victims to
truth and justice. Other laws and legal institutions, such as the Armed Forces
Special Powers Act, the National Human Rights Commission, and the Right to
Information Act, provide for important remedies under law, but where they exist,
32
are not adequately enforced. Lawmakers have proposed legislation, like the
Prevention of Communal and Targeted Violence (Access to Justice and
Reparations) Bill, that include further remedies for human rights violations, but
these have not yet been enacted. As a consequence of weaknesses in legal norms as
well as lack of their enforcement, India’s domestic laws and policies regarding
accountability for human rights violations fall short of the country’s international
legal obligations to ensure that victims may access effective and adequate remedies
for such acts.

33
Relevant Domestic Law Protections

As provided above, under international law, the right to a remedy includes a

comprehensive set of state obligations, of which India has assumed some, but not
all. The right to justice obligates India to prosecute perpetrators of genocide and
individuals who commit grave breaches during times of international armed
conflict. For the right to truth, as a state that has signed but not ratified the CED,
India arguably should not frustrate mechanisms that facilitate an individuals’
ability to access the truth about enforced disappearances. Additionally, persuasive
sources increasingly recognize the right to truth, and advocates can point to such
non-binding legal authority as part of their advocacy strategy in India. Concerning
the right to reparation, India must end the violations of rights set out in the treaties
to which it is a party, including the ICCPR and CERD, and provide redress that
aims to wholly restore the harmed individual. India also has a duty to provide
guarantees of non-recurrence that effectively prevent future violations of the
human rights norms established in these treaties.

Although the right to a remedy, as guaranteed in the ICCPR, encompasses judicial,

administrative, and legislative remedies, this paper focuses exclusively on Indian
legislative remedies and analyzes the extent to which these comport with
international norms. Though judicial and administrative remedies are also
important, they fall outside the scope of this paper.

Because India is a dualist country, international treaties do not automatically

become law until Parliament legislates the provisions into binding legal obligations
enforceable by municipal courts. The discussion in this section begins with an
examination of the Indian Constitution and the human rights conferred therein. It
34
then examines six domestic instruments that affect the individual’s right to a
remedy for enforced disappearances in India.

The Constitution of India, adopted in 1950, provides a comprehensive legal

framework for human rights enforcement. Part III of the Constitution on
Fundamental Rights provides justiciable civil and political rights, including the
right to equality and freedom from discrimination. Part IV of the Constitution on
the Directive Principles of State Policy outlines social, economic and cultural
rights that are non-justiciable and serve as guidelines to frame laws. The Supreme
Court has interpreted these non-justiciable rights, for example, interpreting the
right to life in Article 21 of the Constitution to guarantee the right to life with
dignity. The Constitution also provides individuals with the right to file a claim
with the highest court of the land when a justiciable rights violation of the
Constitution or another law, has occurred.

In 1994, India adopted the Protection of Human Rights Act (PHRA), which
defines “human rights” as “the rights relating to life, liberty, equality and dignity of
the individual guaranteed by the Constitution or embodied in the International
Covenants and enforceable by courts in India.” While international treaties are not
self-executing and do not entitle individuals to bring international legal claims in
domestic courts, under this Act, India is expected to “foster respect for
international treaties.” India has passed several pieces of legislation that may be
used by victims of enforced disappearances to access their international right to a
remedy. These domestic laws include the Right to Information Act, the Prevention
of Torture Bill, and the Prevention of Communal and Targeted Violence (Access to
Justice and Reparations) Bill. Together, these acts protect the right to truth and the
right to justice by enabling individuals to request that the state provide information
35
and investigate violations. India also created the National Human Rights
Commission through the PHRA, which, as discussed below, protects the right to a
remedy in a variety of ways. At the same time, India has passed several restrictive
acts—such as the Armed Forces Special Powers Act and the Prevention of
Terrorism Act—that curtail the right to a remedy by creating a widespread system
of impunity for human rights violations.

36
India’s Legal Framework Regarding The Right To A Remedy For Enforced
Disappearances

This section describes and assesses India’s current domestic legal regime in the
area of remedies for enforced disappearances. The laws and entities analyzed in
this section include: (a) the Armed Forces Special Powers Act; (b) the National
Human Rights Commission; (c) the Prevention of Terrorism Act; (d) the Right to
Information Act; (e) the Prevention of Torture Bill; and (f) the Prevention of
Communal and Targeted Violence (Access to Justice and Reparations) Bill.

1. Armed Forces Special Powers Act

Enacted in 1958, AFSPA “regulates instances of use of special powers by the

Armed Forces in so-called ‘disturbed areas’ of the country.” A disturbed area
refers to an area affected by conflict that exists for a “limited duration” and is
“dangerous to the extent that the use of armed force is deemed necessary.” The
Supreme Court has ordered the periodic review of “disturbed area” determinations
every six months, but in practice these periodic reviews rarely occur. Currently, the
following areas are classified as disturbed areas: Manipur, Assam, Arunachal
Pradesh, Meghalaya, Mizoram, Nagaland, Tripura, and Jammu and Kashmir.
AFSPA does not apply in times of armed conflict or in times of “undisturbed”
peace.

AFSPA permits the Indian armed forces to use lethal force, and the law prohibits
individuals from bringing a judicial action against officers alleged to have used
excessive force or to have abused their powers under the act. In other words,
AFSPA immunizes state agents from public or private prosecution, thereby
37
preventing victims from accessing their right to a remedy for enforced
disappearances in most circumstances.

Section four of AFSPA enables an officer to fire at—and cause the death of—a
person acting against a law, so long as the officer deems such use of force
necessary to maintain public order and gives due warning to the target of his fire.
According to the Special Rapporteur on extrajudicial, summary or arbitrary
executions (SR on Extrajudicial Killings), section four violates the “international
standards on use of force.” Section six of AFSA also poses vexing problems by
prohibiting the prosecution of members of the armed forces unless the government
grants “sanction” (permission) to prosecute the military official. Notably, only
forty-four applications for sanction have been brought to the authorities, none of
which were granted.

The SR on Extrajudicial Killings has stated that the powers granted under AFSPA
are broader than those allowed under states of emergency, and the suspension of
individuals’ rights may constitute a suspension of the right to life. Moreover, the
Special Rapporteur has stated that India should repeal or substantially amend
AFSPA so that individuals may hold the government accountable for enforced
disappearances. Not only has the Special Rapporteur recommended that AFSPA be
repealed, but Indian domestic bodies—such as the 2004 Indian Government special
committee, the Second Administrative Reforms Commission, and the National
Human Rights Committee—have called for its repeal.

The Indian state defends AFSPA. Officials have stated that the Act “provides
necessary powers, legal support and protection to the Armed Forces for carrying
out proactive operation[s] against the terrorists in a highly hostile environment.”
38
Additionally, in 1997 the Supreme Court of India ruled in favor of AFSPA’s
constitutionality and upheld all its provisions. While the Court outlined precise
guidelines for using lethal force under AFSPA, the Special Rapporteur believes
these guidelines do not conform to prevailing international standards.

2. The National Human Rights Commission

The National Human Rights Commission (NHRC) plays an important role in

guaranteeing respect for human rights in India. Created in 1993 under the PHRA,
the NHRC is a permanent, autonomous public institution with an annual budget of
about 40 million rupees ($600,000 USD). The NHRC employs a staff of 350 that
conducts research and investigations to protect and promote human rights. In
conducting investigations, the NHRC staff may “utilize the services of any officer
or investigation agency of the Central Government or any State Government with
the concurrence of the Central Government or the State Government . . . .”.
Additionally, the NHRC has issued several important guidelines, including the
Guidelines on Encounter Deaths. This particular guideline was issued in 1997, and
it identifies steps for police to take when they initiate lethal action against civilians
suspected of particular crimes without due process of law.

In 2010, the NHRC issued a formal letter to the Chief of Ministers criticizing
Indian states for noncompliance with the guideline. Thus, the NHRC can be seen
as one example of how India is implementing its obligations under the ICCPR to
establish a domestic legal infrastructure to prevent and redress human rights
violations.

39
While the NHRC has been pivotal in protecting the right to life in India, it has been
criticized for taking an overly “legalistic and deferential approach.” The SR on
extrajudicial Killings investigated the functioning of the NHRC and found several
shortcomings. First, he concluded that the Commission’s effectiveness is limited
by its mandate, which restricts its investigative powers to complaints filed within
one year of the incident, a circumstance which he found may create obstacles for
those who want to expose past violations. Second, he identified a lack of clarity
about the extent to which NHRC may examine human rights violations by
members of the armed forces. Section 19 of the PHRA enables the Commission to
request reports from the central government and make recommendations about its
findings. However, the Commission is not expressly authorized to investigate
members of the armed forces for human rights violations. As a result of these
findings, the SR on Extrajudicial Killings recommended that the statute of
limitations be extended and that Section 19 be amended to expressly authorize this
investigatory power.

3. The Prevention of Terrorism Act

In response to several terrorist attacks that occurred in India and around the world
at the turn of the last century, the Indian Parliament passed the Prevention of
Terrorism Act (POTA) in 2002. According to its proponents, this anti-terrorism
legislation aimed to increase national security without compromising individual
liberty. The Act defined “terrorist acts” and granted authorities power to restrict
individual liberties while investigating such acts. POTA was considered an
improvement over its predecessor— the Terrorist and Disruptive Activities Act
(TADA)—because the scope of POTA was limited to terrorist activities and it
provided some procedural safeguards. Importantly, under POTA, only
40
Superintendents of Police were permitted to investigate cases, and an officer of
higher rank had to approve the investigations. In 2004, Parliament repealed the
POTA, which had been criticized for curtailing individual liberties for several
reasons. First, the definition of “terrorist activities” was vague and officers were
entitled to loosely interpret “involvement” and “terrorist acts.” Second, Section 7
allowed officers to seize all property of those accused of POTA offenses, thus
impoverishing individuals and family members accused under the Act. Third, no
system existed to monitor and verify the validity of charges made against the
accused. Without adequate controls, state authorities violated the rights of
individuals by applying and overbroad definition of “terrorist activity.”390 For
example, possessing an unlicensed firearm and causing “significant damage to any
property” could be considered a terrorist act under POTA. Although the law
narrowed the scope of the TADA, it still permitted the government to abuse its
authority.

4. The Unlawful Activities Prevention Act

Just before the Indian Parliament repealed POTA in 2004, legislators incorporated
its major provisions into another piece of security legislation, the Unlawful
Activities Prevention Act (UAPA). Originally adopted in 1967, UAPA gave the
central government power to ban unlawful organizations. The records of
parliamentary debates proceedings its passage reveal that legislators intended to
provide the central government power to control secessionist organizations. With
the 2004 amendments, the UAPA became India’s primary anti-terrorism
legislation. The 1967 act banned “unlawful associations” and the 2004 amendment
expanded the law to include “terrorist activity” within the ambit of the act.

41
Subsequent amendment in 2008 further strengthened government powers to curtail
civil liberties in the aftermath of the Mumbai terrorist attacks.

In its present state, the UAPA defines “unlawful association” as a person who
carries out activities that threaten the internal security or territorial integrity of
India. The terms “internal security” and “territorial integrity” have not been
defined, which makes their consistent application difficult. An “unlawful activity”
is defined as any act that supports or propagates succession or disrupts the security
and integrity of India. Such an act does not have to be violent; it can be verbal,
oral, or visual in nature. Furthermore, the central government holds the power to
declare any association unlawful. Such an order is final once a special government
tribunal—created under the act—has confirmed the order. The 2008 amendment
also allows police officers to arrest suspected the UAPA violators without a
warrant, and a person accused of an offense under the UAPA can be kept in
detention for up to 180 days without bail. All offences under the 1967 The
UAPA’s provisions weaken the rights of the accused. Section 43(e) of the UAPA
provides that, for persons being prosecuted for terrorism, guilt is presumed if arms
or explosive material are recovered from the accused person’s possession. In
contrast, under POTA, if law enforcement recovered arms from the accused or
found fingerprints of the accused at the terrorist site, courts were limited to merely
drawing an adverse inference against the accused. The UAPA further compromises
the rights of the accused by turning the presumption of innocence on its head.
Under the UAPA, Indian courts are to presume that the accused is guilty, unless he
is able prove otherwise. This mandatory presumption against the accused violates
the fundamental principle of criminal law that an accused is presumed innocent
until proven guilty.

42
A major Indian civil society organization, Coordination of Democratic Rights
(CDR), has criticized the government for its enforcement of the Act. CDR claims
the definitions of “unlawful activity” and “unlawful association” are vague and
give overly broad powers to the executive to quell political dissent.406
Commentators have also opined that the UAPA has enabled the police to institute a
policy of detaining people for an indefinite time and has undermined the rule of
law in India. CDR further claims that the lack of police and prosecutorial
oversight, as well as the immunity provided government officials, fosters the
misuse and abuse of police authority under the act. Another civil society report
documents that government authorities have used the UAPA to target minorities,
tribal groups, members of oppressed groups, and political activists. Reparations are
not available under the UAPA for those claiming that government officials abused
their legal authority. The provisions of the POTA, which contained a provision for
punishment and compensation for malicious prosecution, were not included in the
2004 amendments to the UAPA. As a result, victims wrongfully prosecuted and/or
subjected to illegal, incommunicado detention under the UAPA, are not eligible to
receive reparation.

5. The Right to Information Act

In 2005, India’s parliament enacted the Right to Information Act (RTI) to give
citizens access to information controlled by public authorities, including notes,
draft documents, government records, and virtually any other document.
Additionally, the RTI formalized the right to petition the Supreme Court as a
fundamental right under Articles 32 and 226 of the Constitution. Both articles
promote government transparency and increase accountability. RTI activists have
emerged and begun to successfully use the law to expose human rights violations,
43
poor governance, and corrupt officials. By providing citizens the right to obtain
government information, India has taken an important step toward promoting the
right to truth for victims of enforced disappearances and fulfilling its obligation
under Article 19 of the ICCPR to ensure the “freedom to seek, receive and impart
information of all kinds.” While RTI was a major achievement, its implementation
has produced concerns about the violence associated with RTI filings. There have
been several reports of RTI activists having been targeted for killing, because they
sought to expose human rights violations and corruption within the government
through RIT requests. In 2010, there were as many as ten killings where the
targeted individuals had filed RTI requests. Many of the assailants were
unidentifiable. If individuals cannot safely exercise their right to information under
the RTI, then the act will be a meaningful advance toward India’s fulfillment of its
obligation to provide individuals access to the truth in cases of enforced
disappearance.

6. The Prevention of Torture Bill

In 2010, the lower house of India’s parliament passed the Prevention of Torture
Bill (PTB) and it now awaits passage by the upper house before it becomes law.
The preamble of the PTB states that it aims “to provide punishment for torture
inflicted by public servants.” The PTB defines torture and gives victims the right to
file claims so long as their claims fall within the statute of limitations. The bill was
designed by proponents to support ratification of CAT, which India signed but has
not yet ratified. If passed by parliament, the PTB will be the first law in India
providing a domestic legal framework aimed at addressing torture.

44
The PTB has been widely criticized for failing to accurately reflect the provisions
of CAT. The bill is only 500 words and legislators created it within only a few
hours, leading many to believe the PTB is too skeletal to provide an adequate legal
framework to address torture. For example, the definition of torture reflects CAT
in its simplest form, but it does not enumerate some of the most common forms of
torture in India. Additionally, under the PBT’s provisions, victims must file claims
within six months of the alleged incident, which may not reflect a reasonable
timeline for torture survivors to come forward. Moreover, because India signed the
Convention on the Non-Applicability of Statutory Limitations to War Crimes and
Crimes against Humanity and torture may be a crime against humanity, the PTB’s
statutory limitation could be argued to violate the Convention’s object and
purpose. Last, and most importantly, the PTB does not criminalize torture and,
thus, it does not provide a mechanism to investigate or protect witnesses. Despite
its shortcomings, the SR on Extrajudicial Killings has suggested that the bill be
passed as soon as possible to pave the way for CAT ratification.

7. The Prevention of Communal and Targeted Violence Bill

The Prevention of Communal and Targeted Violence (Access to Justice and

Reparations) Bill (PCTV) of 2011 is a comprehensive piece of legislation that was
cleared by the Indian government’s cabinet in 2013 for introduction to parliament.
It addresses state responses and remedies for situations of communal and targeted
violence.430 The PCTV defines communal and targeted violence as (a) any
spontaneous or planned action that results in injury to a person or harm to his or
her property, (b) action that was deliberately directed because of his or her
membership to any group, and (c) action that destroys the secular fabric of the
country.
45
Who All Are Affected?

• The Victims Themselves

The victims are frequently tortured and in constant fear for their lives. They are
well aware that their families do not know what has become of them and that the
chances are slim that anyone will come to their aid. Having been removed from the
protective precinct of the law and “disappeared” from society, they are in fact
deprived of all their rights and are at the mercy of their captors.

Even if death is not the final outcome and the victim is eventually released from
the nightmare, the physical and psychological scars of this form of dehumanization
and the brutality and torture which often accompany it remain.

• Friends and Families of the Victims

The families and friends of the victims, experience slow mental anguish, not
knowing whether the victim is still alive and, if so, where he or she is being held,
under what conditions, and in what state of health. They alternate between hope
and despair, wondering and waiting, sometimes for years, for news that may never
come. In addition, they are well aware that they, too, are threatened, that they may
suffer the same fate themselves and that searching for the truth may expose them to
even greater danger.

The family’s distress is frequently compounded by the material consequences of

the disappearance. The disappeared person is often the family’s main breadwinner.
He or she may be the only member of the family able to cultivate the crops or run
the family business. The emotional upheaval is thus exacerbated by material
deprivation, made more acute by the costs incurred should they decide to undertake
a search. Furthermore, they do not know when —if ever — their loved one is going
to return, which makes it difficult for them to adapt to the new situation. In some

46
cases, national legislation may make it impossible to draw a pension or receive
other means of support in the absence of a death certificate. Economic and social
marginalization is frequently the result.

The serious economic hardships which usually accompany a disappearance are

most often borne by women, and it is women who are most often at the forefront of
the struggle to resolve the disappearance of family members. In this capacity they
may suffer intimidation, persecution and reprisals. When women are themselves
direct victims of disappearance, they become particularly vulnerable to sexual and
other forms of violence.

Children can also be victims, both directly and indirectly. The disappearance of a
child is a clear contravention of a number of provisions of the Convention on the
Rights of the Child, including the right to a personal identity. The loss of a parent
through disappearance is also a serious violation of a child’s human rights.

• Communities
Communities are directly affected by the disappearance of breadwinners, and the
degradation of the families' economic situation and their social marginalization.

Enforced disappearance has frequently been used as a strategy to spread terror

within the society. The feeling of insecurity generated by this practice is not
limited to the close relatives of the disappeared, but also affects their communities
and society as a whole

47
Violations Under The Convention Across The Globe

Even though the convention has been setup to prevent enforced disappearances of
people , in some places of the world it still takes place . There are many reasons to
carry out enforced disappearances, one of them being to root out any opposition in
the general population so that the group which is carrying it out has a strong base
and no obstacles. Some of the places where it’s still carried out are given below .

1. Afghanistan
More than four decades of armed conflict in Afghanistan has left tens of thousands
without news of the fate or whereabouts of their loved ones. Tens of thousands
were forcibly disappeared when the People’s Democratic Party of Afghanistan
seized power in the late 1970s. Enforced disappearances remained a constant
feature of the Soviet invasion that followed, the civil war that ensued after the
Soviet retreat and under the Taliban’s rule. Enforced disappearances sadly continue
to this day in Afghanistan. Instead of reckoning with this haunting past and
granting truth, justice and reparations to all these victims, the Afghan government
has failed to ratify the International Convention for the Protection of All Persons
from Enforced Disappearance even as people continue to be snatched from their
families by the authorities.

2. Bangladesh
Since 2013, the Bangladeshi authorities have been responsible for hundreds of
enforced disappearances. According to a recent report by Human Rights Watch, 90
people were forcibly disappeared in 2016 alone. Most of these cases were short-
term disappearances, with the individual presented in court weeks later after the
abduction. However, 21 people were later found dead, and nine people remain
unaccounted for. The victims have mainly been members of the political

48
opposition, but the authorities have not launched credible investigations to search
for those who remain disappeared and bring all those responsible to justice.

3. India
In India, reports of enforced disappearances are largely from areas declared
“disturbed” under the Armed Forces Special Powers Acts (AFSPA), like Kashmir
and Manipur. According to a report published by the International Commission of
Jurists (ICJ) in 2017, around 8000 enforced disappearances have been reported in
Kashmir during the period 1989-2012. It also mentioned that enforced
disappearances were common in Manipur and other states in the North East of
India in the 1980s and 1990s. India has not made enforced disappearances a
specific criminal offence in its penal code. As a result, families of the
“disappeared” have to file complaints under general provisions of Indian criminal
law. Despite signing the United Nations’ International Convention for the
Protection of All Persons from Enforced Disappearances in 2007, India is yet to
ratify the Convention.

4. Maldives
Four years ago, Ahmed Rilwan, a blogger and a reporter for the Maldives
Independent newspaper was abducted by unidentified assailants from outside his
home. There has been no news of his fate or whereabouts since amid fears that he
may have been taken into the custody of the state. In 2012, Rilwan received death
threats for reporting on the attack on blogger Ismail Hilath Rasheed, who was
stabbed and wounded. In the face of protests sparked after his disappearance, the
authorities arrested four suspects in September 2014. The following month, two of
the suspects were released. In August 2018, a criminal court in the Maldives
acquitted two men accused of kidnapping Rilwan. The President of the Maldives,
Abdullah Yameen, callously remarked that Rilwan was “undoubtedly dead” before

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walking back his comments the next day. To this day, the fate and whereabouts of
Rilwan remain unknown.

5. Nepal
During the more than decade-long conflict, more than 1,300 people were forcibly
disappeared. The United Nations estimates that more than 250 people were
forcibly disappeared from a single district. The government has established a
Commission of Investigation on Enforced Disappearances, which finally began
receiving information in 2016 and has collected more than 3,000 complaints.
However, due to limitations on its mandate and persistent political and resource
constraints, the commission has not been allowed to function effectively to
uncover the truth and determine the fate and whereabouts of victims of enforced
disappearance.

6. Pakistan
Over the past two decades, Pakistan has seen perhaps thousands of people forcibly
disappeared by the authorities. The UN Working Group on Enforced or
Involuntary Disappearances has more than 700 pending cases from Pakistan, and
Pakistan’s State Commission of Inquiry on Enforced Disappearances has received
reports of hundreds more, from across the country. People who have been forcibly
disappeared include bloggers, journalists, students, political activists, human rights
defenders, members of religious minorities, and suspected members of armed
groups. Once confined to the restive provinces of Khyber Pakhtunkhwa and
Baluchistan, cases of enforced disappearance now strike deep into Pakistan’s
heartlands and its main cities.

7. Sri Lanka

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Since the 1980s, Amnesty International estimates there have been at least 60,000
and as many as 100,000 cases of enforced disappearance in Sri Lanka. The victims
include Sinhalese young people who were killed or forcibly disappeared by
government death squads on suspicion of leftist links in 1989 and 1990. They
include Tamils suspected of links to the LTTE, disappeared by police, military and
paramilitary operatives during the conflict from 1983 to 2009. And they include
human rights defenders, aid workers, journalists, government critics, and
prominent community leaders.

8. Saudi Arabia
Saudi Arabia has been the latest topic in relation to enforced disappearances. It
enforced disappearance of the Saudi journalist Jamal Ahmad Khashoggi when he
entered the Saudi Arabian consulate in Istanbul in 2nd October 2018 .

Even though a investigation was carried out on 15 October the Saudi Arabian
Government denied any connection. But on 20 October it was found out that a
fight had broken out in the consulate which was later contradicted by the attorney
general of Saudi Arabia as it was stated that the murder was premeditated. An
audio recording was released by Turkish government stating that the murder was
ordered by the Saudi Royal Family.

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Implementation Mechanisms of the Convention

The International Convention for the Protection of All Persons from Enforced
Disappearance obliges contracting State Parties to search for disappeared persons.
An investigation has to be conducted into the location and circum stances of their
disappearance and, in the event of their death, their remains identified and returned
to their family. In many places, this search proves difficult in practice, and often
the political will and/or the technical means for such a search are lacking. In such
cases, international urgent actions can support those affected in the search for
disappeared persons.

State Parties are obliged to search for victims of enforced disappearance.

The international community of states first explicitly formulated this obligation in
the 2006 International Convention for the Protection of All Persons from Enforced
Disappearance: “Each State Party shall take all appropriate measures to search for,
locate and release disappeared persons and, in the event of death, to locate, respect
and return their remains.” ( Article 24 (3))

In addition, the Convention stipulates that State Parties shall undertake an

investigation of each case of a disappeared person, even when there has been no
formal complaint (Article 12). Moreover, under the Convention, State Parties agree
to mutually cooperate and assist one another (Article 15).

In negotiating this Convention, the codification of State Party obligations to

search for victims of enforced disappearance and clear commitments to the right
to the truth were key demands from groups affected and human rights experts.
Although the previous Declaration on the Protection of All Persons from

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Enforced Disappearance (1992) was already an international instrument, it did not
contain these points.

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Achievements and Success of Convention for Enforced Disappearances

Enforced Disappearances “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.”

In many countries, children and young people, who are in any case often limited in
the exercise of their rights, are victims of disappearance. They are either left
behind without family members or are themselves victims of enforced
disappearance. For example, during the Spanish Civil War and Franco’s
subsequent dictatorship (1936 – 1975), medical professionals and state employees
stole over 30,000 children from their parents and gave them, in most cases, to
families loyal to Franco’s regime. In 2013, the UN Committee on Enforced
Disappearances gave Spain the recommendation to expand, the search for those
disappeared children and young people, with the help of a national DNA database.

This convention has tried to achieve its goal but it has its own successes and
failures which are discussed below:

➢ State Parties obliged to cooperate

The search for disappeared persons is especially complicated if they were

abducted in a third country or were victims of enforced disappearance
outside their home country. Such cases occurred, for example, under
Operation Condor in Latin America (from 1975 into the 1980s), as well as in
the later Timor-Leste during its occupation by Indonesia (1976 –1999).

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 Under Article 15, State Party signatories to the International Convention for
the Protection of All Persons from Enforced Disappearance are to
cooperate and mutually assist one another in searching for and clarifying the
location of disappeared persons as well as supporting those affected. Such
mutual assistance extends, for instance, to locating and releasing disappeared
persons as well as – in the event of death – exhuming and identifying their
remains, and returning them.

There are many examples of such interstate cooperation. In 2004, Indonesia

and Timor-Leste set up a bilateral Commission on Truth and Friend ship
which also had the remit of investigating enforced disappearance before
Timor-Leste’s independence in 2002. Those affected and human rights
organizations called for implementing the Truth Commission’s
recommendations and, in 2014, achieved the appointment of a team to
search for children through the National Human Rights Commission of
Indonesia as well as the establishment of an Ombudsperson for Human
Rights and Justice in Timor Leste. On the Western Balkans, Bosnia-
Herzegovina, Croatia, Serbia and Montenegro have agreed between
themselves to co operate in the search for victims of enforced disappearance,
and in exhuming and identifying human remains.

➢ Prosecute perpetrators and search for victims

Two factors are crucial in cases of enforced disappearance: the search for the
victims and bringing to light the truth of the crime, as well as the criminal
prosecution of the perpetrators. In practice, these two elements are not
automatically interrelated. The successful prosecution of the perpetrators is
essential in preventing further crimes. Since such investigations concentrate on

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establishing the perpetrators, identifying individual victims – i.e. by exhuming
remains – is not necessarily a factor in this kind of investigation. For example, the
Peruvian state prosecutor’s office primarily dealt with enforced disappearance
during the violent conflict (1980 –2000) by means of penalties under criminal
law. It was not until 2016 that the government passed a law with a programme of
measures codifying the right of the surviving families to the truth. This law also
provides for the search for, exhumation and identification of those disappeared and
stipulates the participation of family members in the search, their access to
information, psycho social care and further measures.11 In the legal process of
coming to terms with the crimes committed under the dictatorship in Argentina,
although only a few of the persons disappeared could be identified (among other
reasons, because the victims were thrown into the sea on the so called ‘death
flights’), the criminal prosecutions and court proceedings nonetheless provided
important know ledge about the victims, the course of events, and the perpetrator
structures. Here, coming to terms with the past through the application of
criminal law did lead to implementing the fundamental rights of victims to the
truth – and, as a result, to redress.

The Argentinian experience shows that besides persecuting the perpetrators for
their crimes, it is also possible to clarify the events, uncovering the structures
underlying the crimes, their intellectual architects and perpetrators. The search for
perpetrators can be connected to the search for the victims, disappeared and
surviving, and their right to the truth.

The situation is different in the countries in the Western Balkans where the
governments have concluded agreements especially emphasizing the humanitarian
aspects – namely, the search for and identification of the victims and returning the
remains to the bereaved. In the wake of these agreements, 80 per cent of those

56
disappeared have been identified – around ten times as many as in Argentina.
Admittedly, this humanitarian search has to be supplemented by clarifying what
befell the victims of enforced disappearance, where they were detained or
abducted, where they were then taken, and what happened to them.

➢ Searching for the dead and their identification

Very different approaches are taken to searching for and identifying people who
disappeared a long time ago. Many countries affected have set up dedicated
institutions for searching and clarifying cases. For instance, Truth Commissions, as
they are known, in Timor-Leste, Paraguay, Chile, Spain and Morocco have
confronted and dealt with the crimes of the past, while Peru and Mexico have
created special prosecutors’ offices to investigate disappeared persons. The work
of such institutions was rarely effective – either because the countries lacked the
political will to throw light on and resolve these crimes, or because the enforced
disappearances occurred too long ago.

➢ Urgent actions on the UN level

On the international level, the urgent actions, as they are known, of the UN
Working Group and the UN Committee on Enforced Disappearances are their most
important instrument in the search for victims of enforced disappearance, and used
especially intensively by family members searching for a disappeared relative.

People from all countries can turn to the UN Working Group for assistance, which
acts under the mandate granted by the Declaration on the Protection of All Persons
from Enforced Disappearance from 1992. This Declaration, however, is not legally
binding. An urgent action of the UN Working Group on Enforced Disappearances
can be sought by all persons, whether or not they live in a state that has ratified the
International Convention and so is obliged to take measures against enforced
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disappearances. In a survey of their urgent actions, the UN Working Group
estimates that around 25 per cent of all urgent actions are successful, i.e. the
disappeared per son could be found alive. At its last session in May 2017 alone, the
UN Working Group received 65 urgent action requests from Egypt, Bahrain,
China, Malaysia, Pakistan, Palestine, Sudan, Syria, Turkey, Turkmenistan and
Venezuela.

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Shortcomings in the Convention for Enforced Disappearance

➢ The Convention does not include in the definition the responsibility of

non-state actors

Enforced disappearance as such is viewed in the Convention as an act solely

attributable to a state, and the obligations under the Convention therefore lie only
with the state, excluding any private entity. However, faced with political
difficulties, the Convention drafters provided in a separate article (Article 3) for
obligations to be imposed on states in connection with enforced disappearances
committed by non-state actors. This goes some way towards preserving essential
objectives, but it does not impose any duties on non-state actors themselves.
Enforced disappearances orchestrated by such groups as self-styled rebel forces,
private militias or even private business enterprises trying for example to terrorise
a local population into abandoning their land are still not covered.

➢ The Convention is silent on the question of intent

The “constructive ambiguity” adopted by the Convention drafters on the

question of intent raises a serious issue to which a clear response will have to be
given: can or must a possible binding European legal instrument avoid introducing
in the definition of enforced disappearance the subjective element (that is to say,
the element of intent), which is usually part and parcel of any serious criminal
offence? Is it possible in practice to facilitate the proof of such a subjective
element in such a way that it does not make any effective prosecution illusory? In
any event, the threshold for triggering the States’ duty to protect and investigate
under a human rights treaty such as the UN Convention does not need to be, and
should not be set as high as the threshold triggering individual criminal

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responsibility, as in the case of the Rome Statute of the ICC or in national criminal
law.

➢ The absence of a prohibition of amnesties

This is one of the principal omissions of the UN convention compared to the

Assembly’s 2005 “wish list”: no provision in the Convention prohibits an amnesty
or any similar measure for perpetrators of enforced disappearances, which seems to
be a retrograde step compared with the present state of international law for serious
violations of human rights and international humanitarian law. In our opinion,
impunity is precisely an obstacle, not a possible condition for lasting
reconciliation, which must be based on the establishment of the truth and
individual rather than collective responsibility for serious crimes.

➢ The absence of provisions relating to jurisdictional and other

immunities

It emerges from the debates that, owing to strong opposition from the United
States, which argued that such a provision would prevent the granting of certain
transactional immunities, the Convention contains no article on immunities, even
though the granting of immunities, just as amnesties, may create obstacles to
criminal prosecution, thus contributing to the impunity of perpetrators.

➢ The absence of provisions on granting asylum to persons who

perpetrate or are involved in enforced disappearances

The Convention is silent on the question of a prohibition on granting asylum or

refugee status to perpetrators of enforced disappearances. Moreover, no link is
established with the 1951 Geneva Convention on the Status of Refugees, Article 1-
F of which contains an exclusion clause for persons “with respect to whom there

60
are serious reasons for considering” that they have committed serious crimes (a
crime against peace, a war crime, a crime against humanity, a non-political crime
outside the country of refuge) or “acts contrary to the purposes and principles of
the United Nations”.

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References
• https://www.humanrights.ch/en/standards/un-treaties/disappearance/
• https://www.mruni.eu/upload/iblock/934/9Vitkauskaite_Meurice.pdf
• https://www.icaed.org/the-convention/history-and-background-of-the-
convention/
• https://www.law.berkeley.edu/wp-content/uploads/2015/04/Working-Paper-
1-India-Right-to-a-Remedy-151027.pdf
• https://www.forbes.com/sites/ewelinaochab/2018/08/29/the-international-
day-of-the-victims-of-enforced-disappearances/
• https://www.humanrights.ch/en/standards/un-treaties/disappearance/
• https://treaties.un.org/doc/publication/ctc/ch_iv_16.pdf
• http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=2
1647&LangID=E
• http://www.asiaajar.org/files/AJAR%20Policy%20PaperLONG%20JOURN
EY%20HOME.pdf
• http://www.un.org/depts/german/uebereinkom men/ar61177oebgbl.pdf
• https://www.ohchr.org/en/hrbodies/ced/pages/conventionced.aspx
• http://hrlibrary.umn.edu/instree/disappearanceconvention.html

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