‘Will the state take responsibility?’

"Who will accept responsibility for the incident? Will the state take responsibility?" Asked the Supreme Court of Bangladesh on February 13 of this year to the lawyers representing the state of Bangladesh while addressing a review petition. The review petition was submitted by the state. These questions were about those who have disappeared and remained missing for years.  

The review petition was not about the growing incidence of enforced disappearances, but about the provisions for arrest without a warrant. But the exasperation of the highest court of the land about enforced disappearance was quite evident. While expressing dissatisfaction over the non-implementation of a 16-year-old High Court (HC) order regarding Section 54 of the CrPC, which allows arrest without a warrant and interrogation on remand, the court asked these two questions—plain and simple, about a more disturbing phenomenon. The Attorney General did not respond to these queries, as it was not germane to the case at hand, or simply because it appeared to him as rhetorical. 

That enforced disappearances have become routine in Bangladesh in the past decade is an understatement. According to the human rights group, Odhikar, a total of 553 persons have become victims between 2009 and 2019, and in the past six months, 14 individuals faced the same predicament. The stories of these incidents are familiar and almost similar. Family members and friends have alleged that these individuals have been picked up, either from their home or from the streets, by plain-clothed members of law enforcing agencies such as the RAB, or the police. The law enforcement agencies deny that the person was brought to their custody. When the family members visit the local police station or the RAB camps, the answer is "he is not here".

Often the police refuse to register a case, particularly when the complaint is against any of the law enforcing agencies alleging them as the perpetrators. There are instances when family members have knocked on all the doors one can think of—filing written complaints to the police, the RAB, other government bodies including military intelligence and the National Human Rights Commission. Yet, nobody has an answer—where is the person?

In some instances, those who "disappeared", mysteriously return. According to Ain O Salish Kendra (ASK), between 2014 and August 2018, of the 310 abductees, 33 persons returned. But many others do not. Their families keep on hoping—their day will come, and their loved ones will be coming home—one day. They pray and whenever opportunities arrive—they plead to the authorities, to the prime minister. For them, God and the government are the places where they can ask, and they do. Often, children, parents or spouses of the victims are offered sympathy from the higher ups; promises are made that all will be done to find their loved ones. But seldom are their prayers answered, and far less the government takes the trouble to tell the families what is being done, let alone bring the victims home.

In some instances, families are told that their loved ones were found dead. For example, in 2019, of the 34 who were reported to be picked up by law enforcing agencies, eight were found dead; 17 were released or produced before the courts. The instances of producing before the court is relieving for the families, the victims are alive and no longer traceless, but what is inexplicable is how did these people, who for days or weeks were not there, suddenly appear.

Not only these incidents, but the entire phenomenon of enforced disappearances have been denied by the government, time and again. Appearing before the United Nations Committee against Torture in June 2019, for the first time since ratifying the Convention 20 years ago, Bangladesh's representatives, including the Law Minister, emphatically denied any incidents of enforced disappearances. Anisul Huq said, "We do not agree to the proposition that enforced disappearances occur in Bangladesh frequently." Alas! if it was only true for those who are still waiting for their loved ones, when every knock on the door raised their hopes—he is back.

While the government continue to deny, international human rights organisations, who have investigated cases of such incidents have concluded to the contrary. In a report published in April 2019, the International Federation for Human Rights (FIDH) alleged that these are neither sporadic nor arbitrary incidents, but "part of a concerted strategy executed by State actors." Describing these as "systematic" and "amount to a State policy", the FIDH insisted that as "most of the victims were targeted on political grounds... these acts [qualify] as a crime against humanity." 

The allegation of "crime against humanity" is derived from the internationally accepted agreement called, "International Convention for the Protection of All Persons from Enforced Disappearance".  In Article 2 of the Convention, enforced disappearance is defined as "the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorisation, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law". The Convention further stipulates in Article 5, "The widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law."

In the court or outside, the AG has not responded to the question the Supreme Court asked, but the Law Minister's denial is an answer to the question. If the government is confident that no such incidents take place, it is incumbent on the government to take steps to show that it has done its part, stipulated in Article 12 of the Convention: "Each State Party shall ensure that any individual who alleges that a person has been subjected to enforced disappearance has the right to report the facts to the competent authorities, which shall examine the allegation promptly and impartially and, where necessary, undertake without delay a thorough and impartial investigation" (Article 12). Although Bangladesh is not a signatory to the Convention, it does not preclude it to act along the stipulated line.

The continued denial of the government of enforced disappearances is disturbing, but unfortunately not surprising because increasingly the incumbent has created a system of governance which is devoid of any accountability. In the past decade, as the country witnessed its journey further away from any semblance of democracy, the incumbent has become more reliant on coercion, and the coercive apparatuses of the state have become predominant in governance. With two consecutive elections which can be hardly described as "elections", the entire accountability mechanism of governance has fallen by the wayside. With the demise of the vertical accountability mechanism, that is holding free and fair elections, the need for horizontal accountability mechanisms, that is holding the government accountable by the non-state institutions, became imperative. But the abject failure of the National Human Rights Commission (NHRC) to raise its voice against incidents of enforced disappearances, let alone act robustly, show how deep the crisis has become.

As we raise voices against enforced disappearance, we should underscore that the question of enforced disappearances is intrinsically connected to the system of governance and accountability, and unequivocally say that the state must take responsibility.

Ali Riaz is a Distinguished Professor of Political Science at Illinois State University, and a nonresident Senior Fellow of the Atlantic Council, USA.