Enforced Disappearances
in
1.
Introduction
(a) Status of
enforced Disappearances after the 50th Anniversary of the Universal Declaration
on Human Rights.
Fifty years ago, during the Second World War, in Nazi Germany enforced
disappearances were born as a practice against Jews and Communists. The Report
of the Working Group on Enforced Disappearances, states that this practice,
until today, has expanded to 63 countries of the world.
Actually, enforced disappearances have turned into a worldwide practice.
Originally implemented in
In the past, only military dictatorships were known for this practice.
Today however, they are commonplace under any type of political regime, even
under formal democracies, and in situations of armed conflict, of ethnic or
religious “cleansing”, or declared international conflict.
(b) The situation of human right defenders
and those who struggle against enforced disappearances.
Fifty years after the adoption of the Universal Declaration on Human
Rights
the struggle of civil society against the practice
of enforced disappearance has been responded with the same cruelty as the
enforced disappearance itself. During 1997, human rights defenders were victims
of enforced disappearance, of summary execution, of arbitrary imprisonment, of
death threats, of exile and of internal displacement in many countries.
Examples are the assassination of Monsignor Jose Gerald in
(c) Role of
the Working Group on Enforced or Involuntary Disappearances.
In this context AFAD report to the Working Group during its session held
in the July 14-1998, we are convinced that the role of the Group is of vital
importance to the determination of the fate and the whereabouts of victims of
enforced disappearances.
We agree with the conclusions of the Group’s report to the 54th
Commission on Human Rights, in the sense that:
“Impunity is one of the root causes of
enforced disappearances, and at the same time one of the major obstacles to
clarifying past cases. That is why the declaration obliges States to make all
acts of enforced disappearance offenses under domestic criminal law, to
promptly, thoroughly and impartially investigate any allegation of Enforced
Disappearances and to bring the perpetrators to justice”.
As asserted by the Group in its Report on
Amnesty laws,
“In some States with a high number
of outstanding cases, families of missing persons demand as a precondition for
a lasting solution to this problem, that governments comply with their
obligations under the Declaration to carry out thorough investigations, to
inform the public of the outcome of such investigations and to punish the
perpetrators.”
(d) Figures of
enforced disappearances
But regardless of the feeling of impotence, there still remain needs to
be satisfied and gaps to be overcome. One of them is for the Group’s report to
show the real quantitative and qualitative dimension of the enforced disappearances.
One of our concerns is, that meanwhile on one hand the Working Group’s mandate
is weakened with the adoption of partial forms of clarification, particularly
of the so-called “old cases” - those of the seventies - and the inaction of the
sources, on the other hand, the figure of 43980 disappearances, registered by
the Group as pending cases, don’t reflect the whole quantitative dimension of
enforced disappearances registered and denounced by non-governmental
organisations.
The number of cases registered by non-governmental organizations is
considerably higher than the number of cases registered by the Group. This
discrepancy stems from the fact that some enforced disappearances are
registered at the national level but never reported to the Group. Sometimes,
the reports submitted do not meet the Group’s criteria. Other times, the person
first reported as missing appears later killed. In the later case, the fact of
finding a person’s corpse does not change the essence of the crime committed
before the homicide took place. This means that the crime of enforced
disappearance still remains and should be investigated.
As a result, these not registered, but real cases of enforced
disappearances do not figure as a part of the Group’s data and remains
invisible in the official statistics of the United Nations.
It is a matter of serious concern that the practice of enforced
disappearances has been extended to international conflicts and is carried out
in these circumstances a massive and systematic manner.
2. Enforced
Disappearances in
Though, the Enforced Disappearance is a global phenomenon but mostly it
exists in the under developed countries. In
In India Enforced disappearances have
taken place in the North East states reeling under armed conflict, like
Nagaland, Mizoram,
3. Disappearances in
The phenomenon of enforced disappearances emerged in
during its campaign against combatant Kashmiris has
resorted to different forms of human right violations like extra-judicial
executions, custodial deaths, custodial torture, rapes, forced labour, including the Disappearances. As
security forces suspect every Kashmiri so due to promiscuous arrests of the
non-combatant Kashmiris and subsequent tortures has resulted in the
disappearances from last 11 years. People from all spheres of life and
different age groups, from 10 years to seventy years after their arrests have
got disappeared. Militants, their sympathizers, political activists and large
number of innocent persons have become the victims of E.D. It is reported that
more than 2000 people since 1989, after their arrests by the law enforcing
agencies have disappeared. And the disappearances have taken place during the
Governors as well as civilian rule imposed in state since 1989 by the
Government of India.
(a) APDP
The APDP was founded in
1994, when large number of parents used to visit the High court to file or to
pursue the Habeas Corpus petitions.
The relatives used to take the individual efforts in a disorganised manner.
Finally the Patron, a practicing lawyer and a Human Rights activist with the
help of chairperson, herself the victim of Enforced disappearances put them on
collective forum for collective efforts. The APDP technically is not a human
right group but the association of the sufferers wronged by the functioning of the
state, who are campaigning for knowing the whereabouts of their missing
relatives. Any person victim of the disappearances could be the member of the
association. The association has no political affiliations or political
positions. It is an independent group seeking justice from the state. At the
time of the formation of the association the APDP was not aquatinted with this
fact that there are identical organisations operating in different parts of
world, the most famous were the Mothers of Plaza de Mayo,
FEDEFAM, Latin American Federation of Association of
Relatives of Disappeared Detenues, Mothers of Saturday,
The problems faced by the victims of the Enforced disappearances are
multiple. The majority of E.D. victims are from the underdog community of the
society who are mostly ignorant of their rights. Whenever a person is arrested,
during raids or routine patrolling or during cordon and search operations
(Crackdowns), the relatives of arrestee exhaust all the extra judicial remedies
to locate their dear ones. First the law enforcing officials are approached to
know the whereabouts, which invariably assure them that the detenues will be
released shortly. After few visits of the helpless relatives they are
“politely” told that they did not arrest the detenue at all. The relatives in a
desperate state approach the other security officials for the help. They move
from pillar to post. They move applications to the civil authorities including
Deputy Commissioner and Divisional Commissioner. Some of them approach the
politicians of different political parties who seem to be equally helpless. The
police officials invariably hesitate to file a FIR against the security forces.
These exhausted endeavors cost lot of money. In most of the cases the relatives
have spend lakhs of rupees to know the whereabouts of there missing ones. The
relatives travel different interrogation centers in the state and outside the
state. The relatives at the first instant are hesitant to seek the judicial
remedy, as it will endanger the life of the detenue. Finally with the passage
of time exhausting all the channels the dejected, desperate relatives take the
legal recourse.
The disappearances have economical dimensions. The disappearance of the
earning member of the family threatens the very existence of the whole family
and the half widows with the passage of time either is deserted from their
in-laws along with their children. They become burden on their parents and this
economical dependence affects the education and the future of their children.
Besides the economical instability the relatives suffer from the
constant agony, trans-generational trauma, and post traumatic stress disorder.
They cease to have the normal existence. With the passage of time they suffer
from different physiological and psychological disorders. With no organised
institutions to help them in the state finally they resign to their fate.
(b) REMEDIES:
De-facto remedies are available but dejure no remedies are available from
the state. The Govt. has not acknowledged the phenomenon of disappearances in
the state. So they have not addressed the issue. The civilian Govt. after
coming to power in1996 blamed the previous governments for the disappearances
in the past. In past the Deputy Commissioners of different districts in the
state had through a public notification invited the applications from the relatives
for providing the details of the missing persons. With lot of hope the relatives responded but
without any results. Nothing tangible was done. When civilian Govt. took over
in 1996, contrary to the expectations that enforced disappearances will stop
but the disappearances continued unabatedly. It has increased alarmingly this
year. The Div. Commissioner Kashmir Mr.
Khurshid Ganai through a public notification published in the local dailies
advised the people to seek the help of
civil administration in case any member of their family disappears suddenly or
is arrested by the security forces and task force.
In
the public statement Div.Commissioner directed the people to immediately register a complaint with the concerned
police station and request for information about their whereabouts and safety.
Simultaneously, they must approach the senior officials of the civil
administration including the deputy commissioners, sub- divisional magistrates,
tehsildars and if need be even the divisional commissioner.
Div.
Commissioner further stated that
directions have been issued to all deputy commissioners that they must make
themselves and their subordinate magistrates available to hear complaints and
receive reports of such nature and subsequently intervene effectively to have
the picked up persons released in case he or she is innocent. They must also
ensure that the arrested persons, if they are not involved in militancy, are
not harmed.
Div.
Commissioner stated the deputy
commissioners have also been directed to hold meetings of the district level
coordination committee regularly and sought out complaints regarding arrests of
innocent civilians and harassment to ordinary people during searches, checking
of vehicles and anti militancy operations.
And the government has issued a circular, which reads as:
In continuation of Government
Order No.723-GR-GAD of 1990 dated
10-7-1990 read
with Government Order No.1073-GR of 1990 dated 19-11-1990, the following norms
may be kept in view by the concerned while recommending the cases for grant of
ex-gratia relief to persons who are reportedly missing or his body has not been
identified: -
(a) The District Magistrate will place
such cases before the District
Screening-Cum- Coordination Committee where representatives of security
forces, police are participants. The committee should decide that it can be
presumed that the person is dead and ex-gratia relief should be recommended by
District Magistrate saying that Screening Committee has cleared him. This will
also clear the case from the standpoint of the involvement of the missing
persons in any militancy-related activity.
(b) The District Magistrate while
recommending the case will furnish an indemnity bond as well as surety bond of
a Person of substance to the effect that the amount of ex-gratia relief shall
be refunded in the event of any subsequent event which proved that the death
had not in fact taken place.
(c) A certificate should be furnished by
the District Magistrate to the effect that the NOK’s of the missing person are
not involved in any militancy-related activities.
The relatives of the E.D.P
families had provided the details to the deputy commissioner’s office way back
in 1996 when they were asked to do so but without any results. They did so
half-heartedly this year before the office of Div. Commissioner but nothing
tangible was done. The Div. Commissioner in a meeting with Chairperson of APDP admitted
that the administration is helpless to prevent the enforced disappearances or
to locate the missing persons, however the efforts could be made for ex-gratia
relief. The government has issued two SRO’s, where in the people getting killed
in militancy related incidents but not related with the militancy, are entitled
to an ex-gratia relief of 1 lakh for which an NOC certificate has to be
obtained from the concerned police stations regarding the non involvement of
the deceased / victim with the ongoing militancy. Wide SRO 43, on compassionate
grounds the nearest relative is being appointed in Govt. jobs.
The Govt. circular dated
(c) Role of
Judiciary
The judiciary was the only institution of the state on which people had
reposed faith. Since 1990, there were thousands of Habeas Corpus petitions instituted before the J&K High Court by
the people, only with the passage of time to get disillusioned with the time
consuming process of the judiciary. Like truth the judiciary became also the
casualty of the armed conflict. The orders passed by the judges were seldom
complied by the executive, compelling one of the judges to observe in October
1994, in petition No. 850/94 “ There
is total break down of law and order machinery. I shall not feel shy to say
that this court has been made helpless by the so-called law enforcing agencies.
Nobody bothers to obey the order of the Court. Thousands of directions have
given to top administrative and law enforcing agencies which have not been
responded to”.
In the early 90’s relatives of E.D. with lot of hope and expectations
were approaching to the High Court for justice but justice seem to be a mirage
to them. Though the lawyers of the J&K High Court Bar Association were not
charging any fee in these petitions but with the passage of time the majority
of lawyers lost interest in free briefs. The disillusioned relatives also lost
interest to pursue their cases as the cumbersome judicial process had added
their agony, only to the advantage of the state Govt., the majority of the
petitions due to non-persuasion got dismissed. Only some determined relatives
are still fighting their cases. Some of them are fighting legal battle from
more than 10 years including the Chairperson (whose son Javed Ahmed Ahanger who
was arrested in 1990). The relatives of the recent E.D.P. are now hesitant to
file the petitions. The most deplorable has been the role of the High Court
Judges who have behaved more executive than the executive and their conduct has
given impression to the people that Judiciary in state is disgracefully
prejudice towards Kashmiris and is behaving like the colonial judicial system.
(d) State
Human Right Commission (SHRC)
The Govt. controlled State Human Right Commission has no mandate over
the security forces and is only a recommendatory body. It behaves like any
other state commissions. This toothless institution has in few cases
recommended ex-gratia relief of 1 lakh to the Govt but seldom the Govt. pays
compensation to the victims. It is believed that the institution is a fig leaf
for the Govt. before the growing International humanitarian concern about human
rights excesses in
(e) Strategies
(1) The APDP is giving more emphasis on extra judicial remedies. The top
priority is documentation of the missing persons. Since 1990, believed to be
more than 2200, taken place during three gubernatorial regimes of Jagmohan,
G.C. Saxena, and General Krishna Rao and so called civilian government of
Farooq Abdullah. For this gigantic task lot of Human and material resources are
required, but for a credible documentation the most important thing is the
cooperation of the relatives who have a right to know what happened to their
dear ones after their arrests by the security forces. Since the relatives are
ignorant about their rights, the APDP shall campaign for educating them about
their legal rights. Only the collective efforts could force the government to
address this humane issue. The APDP will further lobby with the press, which
has been cooperative at local level, but the metropolitan press has remained
uncooperative. Besides this the International press is to be further apprised
about this worst form of human rights violation not permissible even in war
times in the state of J&K.
(2) The Amnesty International has already opened an Action File on APDP
and all the groups of Amnesty International in different countries have been
expressing their concern time to time to the Indian Govt. and the State Govt.
about the continued disappearances in the valley and also their concern about
the security of the APDP activists.
(3) The APDP is lobbying with the
independent Indian Human Right organisations to campaign against disappearances
in
4. Recommendations
(1) As in other Asian
countries the Governments have appointed Commissions for the investigation of the disappearances. Srilankan
Govt. has appointed four commissions and four high-armed officials including
the rank of a brigadier have been sentenced life imprisonment by the
(2) The association recommends
for repealing the impunity laws like section 6 of The Armed Forces (Special
Powers) Act. The impunity laws, which prevent the accountability from the
perpetrators, are the major factor behind the ED. The impunity that empowers
the law enforcing officials to resort to all sort of human right violations are
to be withdrawn. A powerful campaign is needed in this behalf.
(3) The association is
approaching to the United Nations Working Group on Enforced or Involuntary
Disappearances to visit
visits to Srilanka. We reiterate our demand that the
United Nation expedite the process of the ratification of the Draft Convention
on the Protection of All Persons From or Involuntary Disappearances and the
Rome Statute on the International Criminal Court so that those who were
involved in these incidents may finally face prosecution.
(4) The association recommends the Chief Justice of the J&K High
Court to opponent a bench exclusively to deal with the cases of the missing
persons on weekly bases.
(5) There should be institutional safeguard for the custodial
disappearances. The concerned Session Judge of the districts in J&K should
be empowered to conduct an investigation in any allegations made, within his
jurisdiction.
(6) The Govt. should amend the
Govt. order no. 723-GR-GAD of 1990 to the extent that any person alleged to be
missing should be paid the ex-gratia relief within reasonable time.
(7) The association recommends
that the 14-point recommendations made by Amnesty be adopted.
(8)
International Human Rights organisations, like Amnesty International,
Amnesty has been allowed to visit
(9)
We also call on the respective governments, especially here in
We must make both governments and the immediate perpetrators answerable
for whatever wrongdoing that has been committed. Everyone must be made aware
that tyranny cannot go unpunished though the perpetrator, be he a simple armed
security force or the other higher state functionaries. What is important is
that justice be meted out, truth be ferreted, perpetrators be prosecuted and
families be indemnified. The process begins by assuaging our fears and saying
to ourselves: “Never again......tyranny”.
5. Appeal
The association appeals to the local people that they should support the
children of the economically deprived families of the disappeared persons
directly. The association can be approached to provide the names of such
families qualified to get such financial support. The association has decided
to raise a monument in the memory of disappeared person’s since1990, for which
the land is required. The association appeals to people for bequeath the land
for this cause.
We shall never allow the past to be forgotten
and we shall never allow it to happen again to future generations. The justice
we seek lies not in forgetting the past but in remembering those which should
never be forgotten.