| Enforced disappearances can't be justified under any circumstance: UN group |
ISLAMABAD: Pointing that no nature of national emergency could be used to justify enforced disappearances, the UN Working Group on Enforced or Involuntary Disappearances on Thursday
pressed the government and the judiciary to fulfill their duty to thoroughly investigate the enforced disappearances and bring the perpetrators to justice.
The group, addressing a press conference on concluding its 10-day trip said that there was a “declared will” of government in Pakistan to tackle issue of enforced disappearances but what it
termed, “serious challenges remain.”
The Working Group’s head Olivier de Frouville, and Member, Osman El-Hajj acknowledged security challenges being faced by Pakistan.
However, the experts said according to the 1992 Declaration for 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.
Frouville pointed out that there is acknowledgement that enforced disappearances have occurred and still occur in the country. He said during the visit, the Group received information on cases
of enforced disappearances and studied the measures adopted by State to prevent and eradicate enforced disappearances, including issues related to truth, justice and reparation for the
victims of enforced disappearances.
“We note that cases continue to be reported to national authorities, but there are controversies both on figures and on the nature of practice of enforced disappearances,” he observed. To date,
the Commission of Inquiry on Enforced Disappearances still has more than 500 cases in its docket in the entire Pakistan. They added that some sources in Balochistan gave them a figure of
14000, while the government maintains the figure of missing persons is below hundred. They noted that the number of officially registered allegations may not be reflective of the real situation,
rather is an indication of the existence of the phenomenon.
Frouville though welcomed the role played by the judiciary to shed light on the phenomenon of enforced disappearances in Pakistan and to trace missing persons. He said the relatives of
disappeared persons have right to know the truth about fate and whereabouts of their loved ones and added it is responsibility and duty of the State to thoroughly investigate all allegations of
enforced disappearances and bring the perpetrators to justice.
The US Expert underlined the need to reinforce the Commission of Inquiry on Enforced Disappearances, as well as to ensure the oversight and accountability of law enforcement and
intelligence agencies, and to provide protection for victims and witnesses.
Suggesting a solution, Frouville said that one important challenge that Pakistan needs to overcome is the absence of a provision qualifying enforced disappearances as an autonomous crime,
and lack of subsequent reparation measures and social assistance programmes for relatives of the disappeared.
The two members of the Working Group had held meetings with state authorities, civil society organisations and relatives of disappeared persons in Islamabad, Lahore, Karachi, Quetta and
Peshawar during their ten day visit. However, a number of Pakistan officials refused to meet them including the Chief Justice of the Supreme Court, and the IG FC in Balochistan.
He said 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.
Answering a question, he said the Group undertook its visits in a spirit of dialogue and cooperation which aims at formulating constructive recommendations.
The UN Expert said 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 Human Rights Council at a
session in 2013.
View full text of the UN report here. >> http://www.scribd.com/doc/106483276/UN-report-on-enforced-disappearances-in-Balochistan
SOURCE >> http://tribune.com.pk/story/439990/enforced-disappearances-cant-be-justified-under-any-circumstance-un-group/
UN report on enforced disappearances in Balochistan
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. Olivierde 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 Convention 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. Theconflicts 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 centers. 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 9/11period 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 behavior 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 out most 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, maybe 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
offense 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 alack 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.
- 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 complaint
sunder 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.
SOURCE: >> http://www.scribd.com/doc/106483276/UN-report-on-enforced-disappearances-in-Balochistan
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By APP
September 20, 2012
chair rapporteur of the United Nation and UN working group on enforced or involuntary disappearances Olivier de Frouville addressing a press
conference in Islamabad. PHOTO: INP
September 20, 2012
chair rapporteur of the United Nation and UN working group on enforced or involuntary disappearances Olivier de Frouville addressing a press
conference in Islamabad. PHOTO: INP