The occurrence of enforced disappearance is nothing novel to mankind, whether committed in times of war or times of peace. However, the human rights violation or the crime of enforced or involuntary disappearance in the narrow sense is a more recent phenomenon. Professor Manfred Nowak, a former international judge and former UN Special Rapporteur, in his report as an independent expert to the UN Commission on Human Rights charged with examining the existing international legal framework for enforced or involuntary disappearances, declared that the notion was first raised by Adolf Hitler on 7 December 1941 by the issuance of the “Night and Fog Decree (Nacht und Nebel-Erlass)”. This decree introduced the notion of conducting executions and then providing no information to the families on their fate and whereabouts. This practice was subsequently followed by the Khmer Rouge in Cambodia between 1975-1979, the Latin American Military Regimes in the 1980s, the States of the former Yugoslavia between 1991-1995 and is still practiced today in many parts of the world.
According to Amnesty International, enforced disappearance is defined by an arrest or abduction by the State, or its agents, who then conceal the act by placing the individual outside the protection of the law. This definition is indeed wide in scope and would seem to indicate that a denial of acknowledgment, for however short a period, would amount to enforced disappearance. It is recognised that the denial must be for the purpose of placing a person outside the protection of the law. The definition recognises that it is the lack of acknowledgement or concealment that makes the act an enforced disappearance. Accordingly, the fact that a person held by the authorities may have been subjected to torture or other forms of ill-treatment does not mean that he is automatically the victim of enforced disappearance unless there is concealment of his whereabouts or a denial that he is being detained.
The Rome Statute of the International Criminal Court (hereinafter: ICC Statute) now regulates the crime of enforced disappearance as a crime against humanity.
Under treaty-based human rights law enforced disappearance was first recognised in 1992 by the UN Declaration on the Protection of All Persons from Enforced Disappearances, the 1994 Inter-American Convention on Forced Disappearances of Persons and the 2005 UN Convention on the Protection of All Persons from Enforced Disappearances.
The reason for defining enforced disappearance is to illustrate the gravity of the phenomenon and consider the impact that it has on the families of missing persons where no effective remedy exists and that the failure by national prosecutorial authorities to bring charges in a particular case for the crime of enforced disappearance may remove the right of victims to appropriate reparations. For that reason the constituent elements of enforced disappearance, such as arbitrary arrest and detention, torture and extra- judicial killings although grave in isolation are all the more serious when part of a practice of enforced disappearance.
Bangladesh is a State Party to the ICCPR, the Rome Statute of the ICC and a number of other treaties for the protection of human rights and fundamental freedoms. However, it has thus far refused to take any action regarding the UN Convention on the Protection of All Persons from Enforced Disappearance and senior members of the Government, including the former Foreign Minister and the present Home Minister have stated that there are no enforced disappearances in Bangladesh and therefore refuses to take any responsibility for the numerous, well documented, instances of arbitrary arrests and enforced disappearances.
I have written previously on the subject of international hypocrisy, drawing a parallel between the criticism of some countries against those who remain ignored, and the myopic approach that continues to be adopted by the international community.
I make no apology for highlighting these issues again however as the international community must be reminded time and time again that, as Moliere put it “it is not only for what we do that we are held responsible, but also for what we do not do”.
Arguably, it is inaction that is remembered more, and it is inaction that highlights hypocrisy.
How many times over the years have we heard the words ‘never again’ being used after a tragic deterioration in human rights and the right to life, that, often, was entirely preventable and foreseeable, if only the international community had acted.
Srebrenica was preventable, Rwanda was preventable, Syria was preventable, and yet these three tragic episodes in human history were allowed to happen, all under the watchful eye of the international community and the United Nations.
It is not fearmongering and it is not an exaggeration to suggest that we may be on the verge of another tragedy. Bangladesh society has now fractured to such an extent that there is a very real risk of implosion.
Six years ago the warning signs were there, and they have only become louder and more stark as the years have passed. Yet, the international community has remained steadfast in its myopia and have chosen to ignore what is unfolding.
Hundreds, if not thousands of citizens, have been arbitrarily detained, abducted, tortured forcibly disappeared by the State Security apparatus and no-one is held accountable. This impunity is entrenched further by the erosion, to the point of destruction, of those fundamental freedoms that we all take for granted.
There is no intention to reduce the seriousness of any episode of such an abhorrent crime, but three individuals deserve special mention, purely because of the circumstances.
In the first half of August 2016, three individuals were, quite separately, forcibly disappeared, and to date their fate and whereabouts remain unknown.
These three, Abdullahil Amaan Azmi, Hummam Quader Chowdhury and Mir Ahmed Bin Quasem are the sons of three individuals who were tried and sentenced – two having been executed and one having died in custody – by the now almost universally condemned Bangladesh International Crimes Tribunal (ICT).
It is simply nonsensical to suggest that the abduction and disappearance of the three is coincidental, and not as a consequence of their vocal opposition to the policies being adopted by the ruling Awami League, as a result of the flawed trials that their fathers were forced to endure.
The examples of the mass human rights violations occurring on an almost daily basis in Bangladesh are simply too numerous to list, the net result is clear however, and that result is the erosion to the point of destruction of democracy in Bangladesh.
The points being raised in this article are not new, they are not highlighting them for the first time; they are constantly referred to and highlighted by highly credible human rights NGOs such as Human Rights Watch, Amnesty International, Bar Human Rights Committee of England and Wales and Odhikar, and many other critical commentators including UN bodies, Parliamentarians, Congressmen, Senators and senior jurists.
There is simply no justification for inaction and no justifiable argument for allowing these internationally recognised crimes to continue with absolute impunity.
One of the founding principles of the United Nations was to “promote international cooperation and to achieve peace and security”.
The question must therefore be asked of the UN, EU and Governments of the United Kingdom and United States of America, Bangladesh’s principle partners, as to why it has failed to apply universally recognised norms to the situation in Bangladesh. Equally, the ICC Prosecutor must be urged to conduct a preliminary examination into what are unquestionably crimes against humanity that, due to their gravity, warrant an international investigation.
It is not too late to address these violations in Bangladesh, the point of no return has not yet been reached. However, without action, and without public condemnation, the Government of Bangladesh will continue to act with impunity.
It will continue to silence dissent by force, it will continue to forcibly remove political opponents, and it will continue to silence its detractors.
The international community, through the UN, or indeed any other avenue, must be urged to address these concerns; Bangladesh cannot be allowed to become another ‘never again’, and the international community would do well to heed Moliere’s advice, whether it wishes to acknowledge it or not, ‘we are responsible for what we do not do’.
This article was originally published at The Huffington Post on 12th December 2016.