To “disappear” is to vanish, cease to be, to be lost. But the “disappeared” have not simply vanished. Someone, somewhere, knows what happened to them.

Enforced disappearances, a dominant feature of the second half of the 20th century as they were committed on a gross scale in Nazi-occupied Europe, are not a thing of the past. They are continuing in our country.

When the Srinagar-based Association of the Parents of Disappeared Persons (APDP), recently released its report, Facts under Ground, indicating the existence of multiple graves in localities which, because of their proximity to the Line of Control with Pakistan, are not accessible without the specific permission of the security forces, and the Army claimed that those buried there were armed rebels and “foreign militants” killed lawfully in armed encounters, it opened the lid on many facts.

According to the report, more than 8,000 persons have gone missing in Jammu and Kashmir since 1989. Central and State authorities countered, saying the number was less than 4,000. The government branded those who went missing “the people who went to Pakistan to join the armed opposition groups.” But the detailed testimonies in the report, taken from local villagers, state that most of those buried were residents from the State.

These exchanges remind us of the intervention by the judiciary in a number of high-profile cases, including the Chattisingpura case in which a series of hearings established that the security services had extra-judicially executed five local residents, while claiming lawful use of force against suspected “foreign militants.” However, the number of such judicial inquiries into individual complaints has not been many, going by their volume. But it establishes one thing — that in recent years and decades, in the course of our fight against terrorism, the security agencies, sometimes with the complicity of our governments, have carried out enforced disappearances of terror suspects. They have responded to terror with terror. They have lowered society’s standards and undermined the prospects of justice. Those who commit these crimes have done so with near impunity.

To “disappear” is to vanish, to cease to be, to be lost. But the “disappeared” have not simply vanished. Someone, somewhere, knows what happened to them. Someone is responsible. Each enforced disappearance violates a swathe of human rights: the right to security and dignity of a person; 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 a legal personality; as well as rights related to fair trial and family life. Ultimately, it violates the right to life, as victims of enforced disappearance are often killed.

Not limited to regions or issues

These disappearances and extrajudicial executions are not limited to specific regions or terror-specific issues. They are happening not only in Jammu and Kashmir and the northeast but are also being regularly reported from Gujarat, Maharashtra, Andhra Pradesh, Uttar Pradesh, Bihar, Rajasthan and Orissa. Those who have disappeared are not just terror suspects. People of all ages, professions and backgrounds have been victims. These are crimes committed on the order of state organs, and those responsible for them always try to avoid being called to account, through lies, cover-ups and propagation of misleading explanations and excuses. An institutionalised impunity, which has ensured that almost no one is brought to justice for human rights violations, is particularly entrenched in the case of forced disappearances. Courts, prosecution services, the investigating police and State human rights commissions have repeatedly failed in their obligations to investigate crimes of forced disappearances, and remained subordinate to the interests of state institutions such as the military and civilian executive authorities, who have sought to prevent access to truth and justice.

Take for example Jammu & Kashmir, where the State government pledged that the State Human Rights Commission (SHRC) would investigate all enforced disappearances. However, the SHRC was unable to order prosecution against members of the security forces, without prior sanction from the Union Home Ministry. In August 2006, outstanding concerns over the powers of the SHRC and its ability to effectively investigate enforced disappearances were further heightened when its chairperson resigned over the ‘non-serious’ attitude of the State government to addressing human rights violations.

Or, see the situation even when India signed the International Convention for the Protection of All Persons from Enforced Disappearances in February 2007. In spite of this, the government does not allow the United Nations Working Groups on Arbitrary Detention and on Enforced or Involuntary Disappearances to visit the country. India has still not ratified the Convention against Torture, and requests by the U.N. Special Rapporteurs on torture and on extrajudicial executions to visit the country have been pending for long.

On December 21, 2006, the U.N. General Assembly unanimously adopted a major new human rights treaty: the International Convention for the Protection of All Persons from Enforced Disappearance. For over 25 years, relatives of the disappeared, some governments and non-governmental organisations worked hard to bring this landmark convention into existence, and it filled a major gap. Before this, the U.N. Declaration on the Protection of All Persons from Enforced Disappearance was adopted by the General Assembly without a vote in December 1992 “as a body of principles for all States.”

The Declaration emphasises the non-derogable right to be free from disappearances, stating in Article 2 that the prohibition of ‘disappearance’ is absolute. Article 7 states: “No circumstances whatsoever, whether a threat of war, a state of war, internal political instability or any other public emergency, may be invoked to justify [an] enforced “disappearance.”’ This places an obligation on the states to adopt and enforce safeguards against disappearances, and requires them to provide judicial remedy and redress to the victims and their families.

Then why does the Indian state not ensure that its national courts and commissions exercise universal jurisdiction over grave crimes like enforced disappearances? Why don’t our national legislatures ensure that their courts and commissions exercise jurisdiction over anyone suspected or accused of this crime, whatever the official capacity of the suspect or the accused at the time of the alleged crime or anytime thereafter? Why don’t we ensure an investigation and a prosecution, where there is sufficient admissible evidence, without waiting for a complaint by a victim?

To ensure that justice is not only done but also seen to be done, should not NGOs be permitted by competent authorities to attend and monitor the trials of persons accused of causing a disappearance? Should not the interests of victims, witnesses and their families be taken into account? Should not courts protect them?

Till such time broad principles and laws based on them come into existence, action is needed on specific issues and incidents raised locally by victims’ relatives, human rights organisations and others. We need to ensure that all past and current allegations of enforced disappearances are promptly, thoroughly, independently and impartially investigated, and that where there is sufficient evidence, anyone suspected of responsibility for such crimes is prosecuted in proceedings that meet international fair trial standards; that all victims of unlawful killings, enforced disappearance and torture are granted full reparation, including restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition; that the civilian prosecutor’s office is assigned jurisdiction to investigate all cases of suspected enforced disappearances, irrespective of whichever military, security or law-enforcement agency is suspected of being involved; and that the civilian prosecutor’s office is provided with the mandate and authority to be able to effectively investigate all such cases. These will provide a healing touch to the troubled families and societies.

The continuing failure of our states to implement these measures could pave the way for an increase in the number of enforced disappearances in the future. Finally, the crime of disappearance should be introduced in the Indian law in accordance with international standards.

(Mukul Sharma is Director of Amnesty International in India. mukul@amnesty.org.in)

http://www.hindu.com/2008/06/24/stories/2008062454620800.htm

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