By Haidar KB Baloch

The enforced disappearance is defined as the arrest and detention of an individual by the state or any third party with the support of the state who later refuses to admit this act and the information about the person’s whereabouts. The act of forcible disappearance deprives an individual of several human rights, i.e. the right to a fair trial, the right to be recognised as a person before the law, the right to liberty and the right to be protected from torture and degrading treatment.

The history of enforced disappearance is quite fearful. Some of the first people who were abducted in Balochistan included Asad Mengal accompanied by Ahmad Shah and hundreds of others, mostly from, Balochistan’s Kohistan Marri region during the 1970s. Assad Mengal was the son of veteran Baloch leader Sardar Attah Ullah Mengal. He is still missing. The disappearances are nothing new in Pakistan. The military defends this heinous crime as an act to defend the country’s national interests and to counter ‘terrorism’.

The Baloch believe, and rightly so, that the Pakistani forces are repeating the war crimes that it committed to counter the Bengali people’s war of liberation but this time the guns are pointed at Balochistan and the victims are Baloch people.

Background and the political context of the issue

Balochistan is situated in the west of Pakistan and borders Iran and Afghanistan. It comprises more than 44% of Pakistan’s overall land area with the smallest population, which is only 5.94% of the overall Pakistan population. It has vast deposits of gold, coal, gas, oil, copper, chromite, barites, sulphur, marble, iron, quartzite and limestone. Despite the vast number of natural resources, Balochistan remains the poorest in the country. The 2017 census shows that the poverty rate of Balochistan was 47% which is the highest poverty rate in Pakistan.

The latest and ongoing wave of violence and enforced disappearances was triggered when the ex-military ruler of Pakistan, General Pervez Musharraf, ruled out a peaceful solution for the decades-long Balochistan issue and opted to test its military muscles to suppress the Baloch voice for their rights and justice.  In August 2006 a 90-year-old Baloch leader Nawab Akbar Khan Bugti was killed in a military offensive which sparked riots throughout Balochistan. Bugti’s murder added fuel to fire which engulfed the whole of Balochistan.

The fifth Baloch insurgency had already started shaping in the mid-90s after the pro-Pakistan religious extremists and Jihadists took over Afghanistan and expelled the Baloch refugees. The arrogant military general’s use of force in early  2000 only helped to accelerate the Baloch freedom struggle. As soon as Musharraf came to power he ordered the arrest of Nawab Khair Bakhsh Marri on fabricated allegations. The Baloch youth regarded Nawab Marri as the symbol of Baloch resistance to freedom. Nawab Marri and Tribesmen were indicted on trumped charges and put behind bars and tortured for many years.

Enforced disappearances in Balochistan

The issue of enforced disappearances surfaced during General Musharraf, the military ruler of Pakistan, in early 2000 and continues till today. Since then, thousands of Baloch have gone missing, and no one knows their whereabouts. Balochistan is a black hole not only for media but also for political activism, which is why most of the cases of disappearances go unreported. Independent sources say that the reported number of cases is far lesser than the actual number.

According to the Voice for Baloch Missing Persons (VBMP), a human rights organisation, the total number of reported cases is more than 20,000 (Twenty Thousand). However, government officials claim that the number of missing persons is 12756.

The UN reported in 2010 that many women and children are also missing in Balochistan. It has been noticed that the victims of the enforced disappearance are mostly politically conscious students, teachers, journalists, lawyers and individuals from all sections of society. This shows that the state of Pakistan has made a policy to crush the political movement of the Baloch people.

Baloch political and non-political groups have been using all democratic means for the safe recovery of the enforced disappeared persons. Mama Qadeer Baloch, the vice chairman of Voice for Baloch Missing Persons, Miss Farzan Majeed, the sister of the enforced disappeared Baloch student leader Zakir Majeed, along with several other families of disappeared Baloch organised a 3000 KM Long March from Quetta, the capital of Balochistan to the capital of Pakistan, Islamabad to convince the international community to play a role in the safe recovery of all missing persons.

However, no one paid heed to their demand. The leader of the march, Mama Qadeer Baloch, has also set up a protest camp in front of the Quetta and Karachi press clubs since 2009. The Voice for Baloch Missing Persons peaceful vigil has reached nearly 5100 days. In a democratic country where there are values for human dignity, respect for law and human rights exists, 5000 days is quite an achievement but in Pakistan nobody gives a damn.

Mama Qadeer’s son Jalil Reki Baloch was also subjected to enforced disappearance, and later his mutilated body was recovered in the Kech area of Balochistan. It is commonly seen in Balochistan that women and children with pictures of their loved ones protest for the safe recovery of their loved ones. They demand to bring their loved ones to justice. If they are found guilty of any charge, they should be dealt with according to the law. However, it is deplorable that the women and children using their right to protest are often manhandled by the Pakistani police and law enforcement agencies.

The fate of the disappeared Baloch persons

Hardly any disappeared persons is seen again after their abduction because the Pakistan forces continue their ‘kill and dump’ policy. Thousands of enforced disappeared persons’ bullet-riddled bodies have been found on the roadside in Balochistan. The first such incident was noted on April 3 2009, when three prominent Baloch political leaders, Gulam Muhammad Baloch, Lala Muneer Baloch and Sher Muhammad Baloch, were forcibly abducted in broad daylight from the law chamber of their lawyer, Mr Kachkol Ali Advocate, who was also the opposition leader of the Balochistan assembly. Later, on April 9 2009, their mutilated dead bodies were found on the outskirts of the District Kech area of Balochistan. Since then, thousands of Baloch have been extra-judicially killed in the ISI dungeons.

The killing of a person in custody is a blatant violation of the right to life granted by the UN Declaration of Human Rights. The kill-and-dump policy of Pakistan has aggravated the human rights situation in Balochistan. Mass graves containing the bodies of the disappeared persons were first found in 2014 in the Khuzdar District of Balochistan and later in Turbat Kech. Then British Minister of State Affairs at the Foreign and Commonwealth Office and the Department for International Development, Mr Nigel Adams, also acknowledged in March 2020 that the British government is well aware of the mass graves in Balochistan and that they raised their concerns with Pakistan.

Enforced disappearances under international law 

Enforced disappearance is a serious crime against humanity. It is systematically carried out by the states or the groups with the support of the states against civilians. International laws urge the states to protect their citizens from involuntary disappearances. The International Convention for the Protection of all Persons from Enforced Disappearance 2010 not only compels the states to fight against this inhuman act but also take appropriate steps to eliminate it in their territories.

The ICPPED emphasises on the right of individuals to be informed about the whereabouts of their loved ones and be provided with justice. Article 1 of the International Convention for the Protection of all Persons from Enforced Disappearance 2010 states that no one shall be subjected to enforced disappearance under any circumstances.

Though Pakistan is not a signatory of the convention, the enforced disappearance is not an infringement of a single right. Under international law, forcible disappearance violates the right to liberty and security and the right to protection from torture and ill-treatment. The mentioned rights are protected under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights (ICCPR). Pakistan signed and ratified both agreements in 2010. However, the state of Pakistan has continuously been disrespecting international agreements, and the world has failed to compel it to fulfil its obligations under international agreements.

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International case law has also contributed to fighting against forcible disappearance. In Osmanoglu v Turkey, the European Court of Human Rights held that involuntary disappearance violates Article 3 EHCR, which states that ‘No one shall be subjected to torture or inhuman or degrading treatment or punishment’. In a later case of Janowiec and Others v Russia, the ECHR held that enforced disappearance is against the rights given by Article 3 in the circumstances where the state is directly responsible for the disappearance, but the rights under Article 3 will also be infringed when the state does not address the victims and their families.

Furthermore, if a state hinders the investigation of a case of disappearance, it will have violated Article 3 ECHR. The decisions mentioned above of the ECHR demonstrate that not only disappearing an individual is a crime but also intervening in the investigation is against international laws.

Enforced disappearance under national law

Though Pakistan is not a signatory of the leading convention for protecting persons from involuntary disappearance, its constitution seems to be protected against such crimes. Article 9 of the country’s Constitution states, “No person shall be deprived of life or liberty save under law.” In recent years Pakistani judiciary has also been active in the disappearance cases brought before them. The High Court of Islam Abad, in a petition filed against enforced disappearance, decided that enforced disappearance is a heinous crime, and it is intolerable. It further stated that it is the state’s failure that despite the multiple security agencies operating in the country, it has failed to stop this crime against humanity. The apex court of Pakistan has also declared the enforced disappearance of the infringement of the rights given by Article 184(3) of the Constitution of Pakistan.

In 2014 the Supreme Court ruled that though Pakistan is not a signatory of the ICPPED, Article 10 of the country’s constitution protects against forcible disappearance; however, the cases of enforced disappearances are treated as mere cases of abduction and ordinary kidnapping and registered under section 364 of the Pakistan Penal Code. It is also noted that the police fear identifying the secret agencies’ personnel in their first information reports and just writing the case against ‘unidentified’ culprits.

On July 17, 2015, Gazain Baloch and Salman Baloch were abducted this time by Frontier Corp, a paramilitary force deployed in Balochistan in broad daylight; later, their mutilated dead bodies were dumped in Quetta, but police refused to lodge an FIR against the FC. The Criminal Procedure Code states that police cannot detain an individual for more than 24 hours without an arrest warrant. They must produce such individuals before the magistrates within 24 hours. This section of the CrPC of Pakistan shows that under the country’s criminal law, the police are the only authority to arrest and detain people.

This notion was affirmed in the case of Aamir Bashir vs State, where the Supreme Court of Pakistan held that Inter-Services Intelligence (ISI), the premier Pakistani secret agency, has no authority to arrest and detain anyone. The mentioned agency only has the authority to investigate, not arrest and detain anyone. However, the ISI, along with other security forces involved in the enforced disappearances, have never followed the court’s orders, and despite this defiant response from the security authorities, the courts have never taken any action against the involved security authorities.

Still, hundreds of habeas corpus petitions filed by the family members of the disappeared persons in the country’s higher courts are pending. Having seen its failure, the Supreme Court of Pakistan tried to shift this burden and formed an enquiry commission with the mandate of the investigation to decide who is responsible for this crime. The commission is still operative but has failed to deliver.

Analysis

The authorities in Pakistan have often tried to interpret the national and international laws in a way that they could get rid of accountability. The enquiry commission has defined the enforced disappearance as “such person as has been picked up/taken into custody by any Law Enforcing/Intelligence Agency, working under the civilian or military control, in a manner contrary to the provisions of the law.” Under this definition, the non-disclosure of secret detention and deprivation of liberty does not amount to forceful disappearance, while the international law counts them as the essential elements for a case of enforced disappearance.

These two elements differentiate the ED from an ordinary kidnapping. The words picked and taken into custody in the definition created by the commission of enquiry can lead to arrest, confinement or imprisonment, which all are prohibited in Article 9 of the Constitution of Pakistan.

However, unfortunately, the commission has never been interested in acting according to its definition. Therefore, this negligence of the commission gives leverage to the secret agencies to disappear more and more people. During the last ten years since its formation, the commission has failed to bring even a single perpetrator of this inhuman act to justice. The governments have been using the commission to deflect the international pressure saying that the commission’s formation is proof that the state is serious about resolving the issue; however, the reality is different. The commission performs compromised inquiry leading to no real accountability and no reparations for the victims.

In December 2021, Imran Khan’s government followed the footsteps of their predecessors in the issue of enforced disappearance in the country. It proposed a bill in Parliament to criminalise the forceful disappearances. The bill’s provisions stated that no one should be forced to disappear anyone with no legal reason or authority. The provision permits the secret agencies to disappear people in certain circumstances defined by these forces. This is a clear violation of the international laws, which say enforced disappearance cannot be allowed under any circumstances.

The bill, later in January 2022, went missing during the process. The issue of enforced disappearance is a serious issue which needs to be addressed on an urgent basis. Under international laws, Pakistan is obligated to investigate such cases and bring the perpetrators to justice. In order to ensure Pakistan abide by the international treaties, world powers like the USA and the UK must link their financial support to Pakistan with improving the human rights situation in Pakistan.

Conclusion

In conclusion, the conflict between Pakistan and ethnic Baloch is almost seven decades old, and there has been much bloodshed. The conflict is political; however, the state has never attempted to resolve it through dialogues. The continuous military offensives have enraged the anger, and Baloch have resisted politically and with arms against the state atrocities.

Pakistan has been trying to suppress the Baloch resistance with the forcible Disappearance of Baloch activists, followed by throwing their mutilated bodies. International rights organisations have been vocal in this regard but have failed to compel Pakistan to abide by the international laws. Though Pakistani courts have continuously ruled against this heinous crime, the authorities seem to be ignoring their own country’s laws.

Having seen that Pakistan has not signed and ratified the ICPPED, the international powers have never tried to convince or urge Pakistan to  at least fulfil its international obligations and respect the Articles of the UN Declaration of Human Rights that protect individual’s right to life and the right to protection against torture and degrading treatment. It is greatly needed that there must be table talks in the presence of the international community to resolve the conflict and recover thousands of missing Baloch civilians from the torture cells and give them the fundamental right to live with dignity.

(The writer – a member of the Free Baluchistan Movement (FBM), was a practicing lawyer in Pakistan till he was forcibly abducted by the Pakistani security forces and held captive in a dungeon for a three years)