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Submission of Research on: Enforced Disappearance and Infringement of Human

Rights: A Critical Review of Legal Aspects from Bangladesh Perspective

Submitted By

Course title: Legal Research and Methodology

Course code: LAW402

Section: 01

Semester: Spring 2021

BRAC University

Submitted to:

Md. Mostafa Hosain

Assistant Professor, School of Law, BRAC University

Date of Submission: 29.03.2022

ENFORCED DISAPPEARANCE: CONCEPTUAL ISSUES

The term ‘enforced disappearance’ means abduction, carrying or kidnapping illegally, secret
arrest or detention. In general, 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. 1 The
definition of an enforced disappearance has experienced variations in its evolution through
international law of the human rights and international penal law. However, the universal
definition of enforced disappearance was eventually found in the draft of the ‘International
Convention for the Protection of All Persons from Enforced Disappearance’ (ICCPED), held in
Paris, France, on June 26, 2006. According to Article 2 of ICCPED:

[…] ‘enforced disappearance’ is considered to be 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.2

Article 2 of the Convention, in fact, recognises the following elements in the definition of
enforced disappearances:

1. There is an arrest, detention, abduction or any other form of deprivation of liberty of the
vulnerable person;

2. That conduct is carried out by the agents of the state or persons or a group of persons with the
support and consent of the state;

3. The conduct is followed either by a denial to acknowledge the deprivation of liberty or by

disguise of the fate of the disappeared person;

4. The objective of the conduct is that the disappeared person is placed outside the protection of
the law.

In the context of Bangladesh, the basic features of the offence include the followings :

1. The law enforcing agencies do not provide proper direction to find out the disappeared
persons;

1
See, “Amnesty International,” available at: http://www.amnesty.org/en/enforceddisappearances (accessed on March 15, 2013)
2
OHCHR, “International Convention for the Protection of All Persons from Enforced Disappearance” (ICCPED), June 26, 2006, available at:
<http://www2.ohchr.org/ english/law/pdf/disappearance convention.pdf> (accessed on March 21, 2013)
2. They always deny about the occurrence and impose the liability to the shoulders of others;

3. One agency condemns other(s) about the occurrence;

4. The affected family is asked to go to other agencies and thus they are harassed;

5. The concerned authority passes time showing pleas, one after another.

Enforced disappearance affects a number of human rights, specified by the universal documents,
such as the right to individual security, the right to protection under the law, the right not to be
arbitrarily deprived of one’s liberty and the right not to be subjected to torture or to any cruel and
inhuman treatment.3 The practice is also considered as a serious danger to the human security, as
it poses direct threat to the right of the people to get the freedom from fear and the rule of law in
a certain democratic society.

The Sandoval decision is however the first Supreme Court ruling on the non-applicability of the
amnesty law to a conviction and sentence of enforced disappearance. In the case the Supreme
Court of Chile concluded that forced disappearance is an ongoing crime until proof of the
victim’s death has been established and the Amnesty Law did not apply as statutes of limitation
and amnesties lead to impunity for the alleged perpetrator.4 But the ICC Statute provides clearly
states at Article 29, that the ‘crimes within the jurisdiction of the Court shall not be subject to
any statute of limitation’, it is silent with regard to amnesties. It may be that it will be up to the
Court to determine whether the application of an amnesty law in domestic legislation may render
a state ‘unable or unwilling’ to genuinely prosecute the offender. The decision of the Court of
Appeal that amnesty for enforced disappearance would defeat the object and purpose of that
treaty was thus an innovative interpretation of the Statute by a national court, and one which
would have deserved some analysis by the Supreme Court. The Court of Appeals concluded that
forced disappearance is an international crime, specifically a crime against humanity, which
carries legal consequences, including individual responsibility and State responsibility, universal
jurisdiction, the obligation to extradite or try those responsible for the crime, the inapplicability

3
See, UNGA, “Resolution 33/173,” December 18, 1978, available at: <http://www.undemocracy.com/A-RES33-173.pdf> (accessed on March
15, 2013); UNGA, “The Universal Declaration of Human Rights,” December 10, 1948, available at: <http://www.un.org/en/documents/udhr/>
(accessed on March 18, 2013)
4
Lafontaine, Fannie; “No Amnesty or Statute of Limitation for Enforced Disappearances: The Sandoval Case before the Supreme Court of

Chile,” Journal of International Criminal Justice, Vol. 3, Issue 2, 2005, pp. 469-484.
of statutes of limitation, the illegality of benefiting from actions of the executive or legislative
branches which may lead to impunity of the crime and obligation to investigate and sanction
those responsible for the crime.5 Bangladeshi law, much of which has its roots in the legal
framework of the British colonial era, provides protection for broad human rights and freedoms.
However, several legislative provisions are often used by the authorities to perpetrate or justify
human rights abuses.

A CRITICAL REVIEW ON THE EXISTING LEGAL AND INSTITUTIONAL

MECHANISMS

The unavailability of strong and effective legal instruments against the practice of enforced
disappearance serves as a key factor to the rise of the offence in Bangladesh.
Bangladesh is a party to the Rome Statute where enforced disappearance and systematic attack
on a civilian population considered as a crime against humanity. 6 However the government of
Bangladesh till date has not signed and ratified ICCPRD which is a universal legal document
concerning the practice of enforced disappearance, adopted by the United Nations General
Assembly Resolution A/RES/61/177 on December 20, 2006. The convention basically outline
the definition of the practice of enforced disappearance along with the obligation of
investigation, punishment  of the cases and providing all the necessary legal and institutional
basis to ensure the elimination of the practice of forced disappearance within the states.

Besides there are substantial lack of specific law regarding the practice of enforced
disappearance. The constitution forbids any action that is “detrimental to the life, liberty, body,
reputation or property of any person and further obligated to secure the right to life and personal
liberty.7 And as there is no specific term 'enforced disappearance ' in our law, the close we have
is  the penal code which  criminalizes various kinds of abduction, that can be punished by up to
10 years in prison.8 As a result  soon after filing a case on enforced disappearance, the law-
5
The Sandoval Case, available at: <http://papers.ssrn.com/sol3/ papers.cfm? abstract id=915720> (accessed on May 20, 2013)
6
Rome Statute of the International Criminal Court (Rome Statute), A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, art. 7(1)(i).
7
Constitution of Bangladesh, http://bdlaws.minlaw.gov.bd/pdf_part.php?id=367 (accessed December 12, 2016), art. 31.
8
Ibid., art. 32.
enforcement agencies begin their investigation considering it as an ordinary kidnapping case
which made the situation worst.

In early November 2016, Bangladesh’s Supreme  Court published guidelines requiring law
enforcement officers to undertake a basic set of actions when arresting a person. They
include an obligation to inform a close relative or friend of the arrested person about the
time and place of the detention; to make clear the location where the person is being held;
and to allow the arrested person access to a lawyer and relatives. Officers must prepare a
memorandum of arrest to be signed by the arrested person and complete a case diary,
which must be handed to a magistrate if the officer requests custody of a suspect for more
than 24 hours, setting out the allegations and need for further investigation. 9
However the culture of impunity for Bangladesh security forces is institutionalized through a
variety of legal mechanisms.

Bangladesh Constitution
Section 46 of the Constitution of Bangladesh entitles parliament to provide indemnity through
law to any state officer for any act done to maintain or restore order, and to lift any sanctions
inflicted on this person:
Parliament may by law make provision for indemnifying any person in the service of the
Republic or any other person in respect of any act done by him in connection with the national
liberation struggle or the maintenance or restoration of order in any area in Bangladesh or
validate any sentence passed, punishment inflicted, forfeiture ordered, or other act done in any
such area.10

Criminal Procedure Code

The law enforcement agencies in Bangladesh allegedly use Section 54 (1) of the Code of
Criminal Procedure 1898 as a legal weapon to justify the practice of enforced disappearance. The
section talks about the arrest without warrant and detention rules. Under that particular Section
of the Criminal Procedure, law enforcement agencies can arrest and detain a person on the basis
9
Guidelines for the Law Enforcement Agencies, Bangladesh v. Bangladesh Legal Aid and Services Trust (BLAST), Civil Appeal N0. 53 of
2004, May 24, 2016, http://www.supremecourt.gov.bd/resources/documents/734650_Civil_Appeal_-No_53_of_2004_final_2016.pdf (accessed
January 22, 2017), pp. 389-396.
10
Constitution of the People’s Republic of Bangladesh, 1972, sec. 46.
of mere suspicion. In that case the person has to go with the law enforcers with a view to
respecting the laws of the country. In such circumstances, the law enforcement members enjoy
impunity under that particular section of the Criminal Procedure. 11 However, the description
provided by the eyewitnesses on the outlooks of the offenders in most of the cases of enforced
disappearance match to that of the law enforcers. Therefore, a number of human rights
organisations claim the direct involvement of the law enforcement agencies on the practice of
enforced disappearance in Bangladesh.12
Even in some cases it has also been observed that, the law enforcement agencies do not have the
joint collaboration on the cases of disappearance. Therefore if a person is arrested by RAB or DB
Police, the local police station often can not confirm that arrest, which creates panics among the
family members of the arrested person on the fear of the enforced disappearance.
Another one is section 197(1) of the Criminal Procedure Code which requires government
approval to bring criminal charges against public officials—including police officers—if the
offense is committed while the officer is acting or purporting to act in his official capacity. 13 The
Supreme Court has, in several cases, declared that police officers committing murder and other
human rights violations are not acting within the scope of their official duties. However, in
practice the provision enables impunity even when permission is requested, the relevant
government department often fails to grant approval.

Military Laws
Bangladesh’s military laws effectively shield members of the armed forces from being
prosecuted by the civilian justice system for human rights violations. This is particularly relevant
given that many of the officers that make up the Rapid Action Battalion are seconded from the
military. The Army Act, 1952, Air Force Act, 1953, and Navy Ordinance, 1961, provide that a
serviceman who commits a crime while on active duty shall be trialed by a military court martial
regardless of the nature of the crime or the circumstances under which it was committed. 14 Once

11
Supra note 46 & 47.
12
FIDH and Odhikar, “Bangladesh: Criminal justice through the prism of capital

punishment and the fight against terrorism,” October, 2010, p. 36.

13
Code of Criminal Procedure, 1898, sec. 197(1).
14
Army Act, 1952, sec. 9; Air Force Act, 1952, secs. 71, 72; Navy Ordinance, 1961, secs. 78, 79. The only situation under which a serviceman
may be prosecuted by a civilian court is when he or she is not on active duty and is suspected of having committed one of the following crimes
a person has been convicted by a court martial, they cannot be trialed by a civilian court. The
only situation under which a serviceman may be prosecuted by a civilian court is when he or she
is not on active duty and is suspected of having committed one of the following crimes against a
civilian: murder, culpable homicide not amounting to murder, or rape.
Bangladesh’s military laws stand in stark conflict with the opinions of the Human Rights
Committee and other treaty bodies and mechanisms of the United Nations, which have held that
military tribunals should only have jurisdiction over offenses that are strictly military in nature,
and that gross human rights violations by members of the armed force cannot be considered
military offenses.15 The Human Rights Committee has also recognized that the powers of
military courts to deal with violations of human rights contribute to impunity.16

Armed Police Battalions Ordinance

The Armed Police Battalions Ordinance, which lays the foundation and legal framework for the
Rapid Action Battalion, provides blanket immunity under Section 13, stating:

“No suit, prosecution or other legal proceedings shall be against any member of the Force for
anything which is done or intended to be done in good faith under this Ordinance.”17

The vague and overly broad use of the term “good faith” means that cases of alleged violations
can be easily dismissed. Although RAB is tasked with civilian law enforcement duties,
jurisdiction over RAB offenses under the ordinance are referred to internal tribunals, similar to a
court martial. Like their military equivalent, these courts operate without any transparency, and
little is therefore known about decisions they have made in specific cases. The courts are headed
by senior RAB or police officers, and a conviction can be appealed to either the president of
Bangladesh or the inspector general of police.

against a civilian: murder, culpable homicide not amounting to murder, or rape.

15
See, for example, Human Rights Committee, “Consideration of Reports Submitted by State Parties under Article 40 of the Covenant,
Concluding Observations of the Human Rights Committee, Chile,” CCPR/C/CHL/CO/5, May 18, 2007, para. 5; “Consideration of Reports
Submitted by State Parties under Article 40 of the Covenant, Concluding Observations of the Human Rights Committee, Guatemala,”
CCPR/CO/72/GTM, August 27, 2001, para. 20; “Concluding Observations of the Human Rights Committee, Lebanon,” CCPR/C/79/Add. 78,
April 1, 1997, para. 14.
16
Ibid.
17
Armed Police Battalions Ordinance, 1979, sec. 13.
The offenses listed in the ordinance are almost identical to those set out in the Army Act. Most
relate to such issues as neglect of duty, disobedience, and assisting an enemy. 18 While the listed
offenses include two crimes that may be considered civilian in nature—extortion and rape—there
are concerns about the absence of any guidance on other crimes under the penal code, including
murder.19
In its 2019 review of Bangladesh under the Convention against Torture, the Committee against
Torture recommended the repeal of the “good faith” clause of the Armed Police Battalion Act,
and expressed concern that it has “in practice given the impression that members of the force
enjoy legal immunity from prosecution for torture or extrajudicial killing.”20

Thus, the inadequate national legal provisions regarding the practice of enforced disappearance
have proved the inactive functioning of the government regarding the issue.

18
Ibid., secs. 8 and 9.
19
M I Farooqui, “Armed Police Battalions Ordinance: A Hybrid Law,” Dhaka Law Report, 57, 2005.
20
Committee against Torture, “Concluding observations on the initial report of Bangladesh,” August 26, 2019.