Enforced Disappearance, Abduction, Kidnap, Killing: Words Creating Fear in Bangladesh

In last few days, the occurrences of abduction, kidnap, enforced disappearance, killing etc. have increased rapidly all over the country. Among them the recent seven murder case at Narayanganj has created most reaction among the citizens which exposed the cruelty and inhumanity of the incident as well as aware the country massively about the gravity of these offences. Apart from this, there are huge numbers of allegations in recent years regarding kidnap, abduction, forced disappearance, extortion and finally killing by unidentified perpetrators. 

Most of the incidents are still unsolved and a very few people are rescued successfully by the law enforcers. However, in most of the abduction cases family members, relatives and friends of the victim triggered their assertion towards law enforcement agencies and specifically they suspect and alleged that people wearing civil dress introduce them as member of Rapid Action Battalion (RAB) or Detective Branch (DB) are arresting and forcefully bringing the victim with them. 

But when victim’s family or media are asking the law enforcers, they repeatedly denied the matter and told that they even do not know anything about it or they did not conducted any such operation. Till now, none of the offenders have brought to trial. Moreover, the incidents are neither properly investigated nor any actions are taken with proper liabilities to prevent such events. Hence it is not impractical at all that the criminals took the opportunity and gained their desire by the name of law enforcement agency. 

However, in our existing law there is no existence of enforced disappearance. It is not only undefined in any penal law but also not treated as an offence in any way. It is a new form of crime in this country and launched last couple of years past. But there are provisions regarding kidnap & abduction in our Penal Code. According to section 362 of the Penal Code, 1860 a person is said to commit the offence of abduction when he by force compels or by any deceitful means induces any other person to go from one place to another. 

On the opposite side, section359 enumerates kidnapping is of two kinds i.e kidnapping from Bangladesh and kidnapping from lawful guardianship. Whoever conveys any person beyond the limits of Bangladesh without the consent of that person, or of some person legally authorized to consent on behalf of that person, is said to kidnap that person from Bangladesh. On the contrary, whoever takes or entices any minor or any person of unsound mind, out of the keeping of the lawful guardian without such guardian's consent is said to kidnap such person. 

As per the provision of the Penal Code a person whoever kidnaps any person from Bangladesh or from any legal guardian shall be punished with detention of either description for a term which may extend to seven years and shall also be liable to fine. Further, section 364 prescribed the punishment for kidnapping or abduction where the intention is to murder up to imprisonment for life or rigorous imprisonment for a term, which may extend to ten years and fine also. 

Apart from this, if a person kidnaps or abducts any child under the age of ten, in order that such child may be murdered or subjected to grievous hurt, or slavery, or to the lust of any person, shall be punished with death or with imprisonment for life or with rigorous imprisonment for a term which may extend to fourteen years, and shall not be less than seven years. Additionally, if a person kidnaps or abducts any woman with intent that she may be compelled to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

The punishment for murder after abduction is death penalty or imprisonment for life as stipulated in section 302 of the Penal Code, 1860. In addition to this, if kidnapping or abduction is committed with an intention to wrongful confinement, the offender shall be punished with custody of either description for a term, which may extend to seven years and shall also be liable to fine.

However, enforced disappearance is a relatively new addition to state crime. After the expansion of this offence in December 2006, the UN adopted the International Convention for the Protection of All Persons from Enforced Disappearance. The convention aims to prevent enforced disappearances taking place, uncover the truth when they do occur, punish the perpetrators and provide reparations to the victims and their families. 

The Convention delivers a definition of the crime of enforced disappearance and necessary state action in order to both prevent the occurrence of the crime and to allow for the investigation and prosecution of the culprits. As per the language of Article 2 of the mentioned Convention an enforced disappearance takes place when a person is arrested, detained or abducted by the state or agents acting for the state, who then deny that the person is being held or conceal their whereabouts, placing them outside the protection of the law. 

Article 1(2) also furnishes, in no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance. In addition to this, under Article 4 each State party has an obligation to take necessary measures to ensure that enforced disappearance constitutes an offence under its criminal law. Moreover, the said Convention added in Article 6(1) (a) & (b) that any person who commits, orders, solicits or induces the commission of, attempts to commit, is an accomplice to or participates in an enforced disappearance; and a superior who: knew, or consciously disregarded information which clearly indicated, that subordinates under his or her effective authority and control were committing or about to commit a crime of enforced disappearance and he/she shall be liable for the commission of that offence.

Apart from this, the Rome Statute of the International Criminal Court, the Committee of the Red Cross Rules of Customary International Humanitarian Law, the Inter-American Convention on the Forced Disappearance of Persons prohibits the act and obliges the State parties to define forced disappearance of persons as a crime in their national law and to impose a appropriate punishment commensurate with its gravity. Hence we need to legislate a new law urgently to prevent the crime effectively.

Enforced disappearance is a crime under international law for which states are obliged to hold perpetrators responsible through criminal investigation and prosecution. Moreover, it amounts to a crime against humanity when it is committed as part of a widespread or systematic attack on a civilian population. Forced disappearance is a particularly cruel human rights violation; a violation of the person who has disappeared and a violation of those who love him/her. The disappeared person is often tortured and in constant fear for their life, removed from the protection of the law, deprived of all their rights and at the mercy of their captors while every person has the right to life, liberty and security of person.

 

Unacknowledged detentions or involuntary and forced disappearances constitute a violation of these rights including right to security and dignity of person; right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment; right to humane conditions of detention; right to consult with a legal personality; right to a fair trial; right to a family life and when the disappeared person is killed, the right to life which are guaranteed as fundamental rights and enforceable by the court under the provision of the Constitution.

Often, people who have disappeared are never released and their fate remains unknown. Their families and friends may never find out what has happened to them. But the person has not just vanished.  Someone, somewhere, knows what has happened to them.  Someone is responsible but all too often the offenders are never brought to justice. However, the sufferer and his/her family have right to get fair justice and to reparation. They also have the right to know the truth about the circumstances of an enforced disappearance and the fate of the disappeared person, and the right to freedom to seek, receive and impart information to this end.

State must commit to conclude the practice of forced disappearance by taking steps to respect, protect and fulfill the rights of individuals not to be subjected to enforced disappearance. Bangladesh should ratify the convention and incorporate the offence in domestic law immediately. Also the State should take effective legislation, administrative, judicial or other measures for the taxpayers to prevent and provide protection against unacknowledged or involuntary and forced disappearances. Further, states must undertake the issue of impunity and ensure that the criminals are brought to justice.

Published in precise form in the Law & Our Rights page (p. 12) of the Daily Star on 20.05.2014 
Published in the Daily Observer (Opinion-Editorial, P. 7) on 22.05.2014. 
published in the Financial Express (Views & Opinion, P. 4) on 22.05.2014.