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