Unwilling to manage dissent and challenges in a democratic manner, States of the Global South have resorted to enforced disappearances under legal cover.

Enforced disappearances are a worldwide phenomenon, with several countries in the Global South showing a tendency to resort to them to quell dissent. And that is done under legal cover, with draconian laws often passed by elected legislatures to give them a democratic veneer.

The Problem

It was Nazi Germany that pioneered enforced disappearances. But the technique was adopted with alacrity in the post-war years by regimes in Latin America, Africa, South Asia, and South East Asia when insurgencies posed a threat to established authority.

According to a paper published by the University of California Law Clinic (see https://www.law.berkeley.edu/wp-content/uploads/2015/04/Working-Paper-1-India-Right-to-a-Remedy-151027-1.pdf), the total number of disappeared persons between 1970 and 2000 in Latin America, Asia, Africa, and Europe was between 300,000 and 500,000.

“States continue to use enforced disappearances to spread terror, deter insurgency, take land, and engage in social cleansing of their most vulnerable populations,” the study says.

India

India has a long history of enforced disappearances. In Punjab, between 1986 and 1992, the State used the technique to quell Sikh separatist militancy. In Kashmir, it did the same to tackle pro-independence activists.

The Indian government recognised the disappearance of 3,744 persons nationwide from 2000 to 2003. The government, including the judiciary, observed “uneasy silences in violation of international law,” the California University paper commented.

According to the Association of Parents of Disappeared Persons (APDP) in Kashmir, 8,000–10,000 enforced disappearances had taken place between 1989 and 2006, primarily attributed to government forces and militants.

During the Punjab counterinsurgency from 1984 to 1995, thousands of cases were reported, with a 2019 filing at the Supreme Court citing over 8,000 cases of enforced disappearances and illegal cremations. The UN Working Group on Enforced or Involuntary Disappearances (WGEID) reported 530 cases from India between 1980 and May 2024, but this reflects only cases formally submitted to the UN.

Given the gross under-reporting, a conservative approximation for enforced disappearances across India since the 1980s ranges from 10,000 to 20,000 cases, with the majority concentrated in Jammu and Kashmir and Punjab.

Disappearances were often reported as “encounters” between the police and armed militants when actually they might have been extrajudicial executions. India has liberally used draconian anti-terror laws, including the Armed Forces Special Powers Act (AFSPA), in Kashmir, Punjab, and North-Eastern States like Nagaland and Mizoram.

Bangladesh

Enforced disappearances were a hallmark of Sheikh Hasina’s decade-long rule in Bangladesh. “Odhikar”, a human rights organisation, estimated that 708 people were forcibly disappeared during Hasina’s rule. While some people were later released, produced in court, or said to have died during an armed exchange with security forces, nearly 100 people are still missing.

The Interim government had made a commitment to sign the International Convention for the Protection of All Persons from Enforced Disappearances, a landmark move after years of refusals by the previous government to recognise enforced disappearances. But for no stated reason, the Yunus government has not disbanded the Rapid Action Battalion (RAB), despite the UNHRC saying that this killer force needs to be disbanded and the US sanctioning its top brass.

Pakistan

Since 2000, enforced disappearances have risen in Pakistan. Hundreds of thousands of people from all spheres of life started to disappear, according to reports. The Baloch and the Pashtun were the most targeted. The Commission of Inquiry on Enforced Disappearances (COIOED) said in 2022 that 8,696 persons were missing. Many reappeared, but 2,219 remained to be traced.

According to the Pashtun Tahaffuz Movement (PTM), over 5,000 Pashtuns are still missing. The Voice for Baloch Missing Persons (VBMP) said that 6,500 people were registered as missing.

Former senator and ex-chairperson of the Human Rights Commission of Pakistan, Afrasiab Khattak, told DW that in his term in the Senate, he formed a special committee to investigate the enforced disappearances. The committee found the country’s intelligence agencies, notably the Inter-Services Intelligence (ISI), were involved in the enforced disappearances.

Sri Lanka

Enforced disappearances were a part of counterinsurgency operations in Sri Lanka in the Janatha Vimukthi Peramuna (JVP) insurrections in 1971 and 1989 and during the Tamil militant movement through the 1980s up to 2009. However, estimates of the number of persons killed or disappeared varied widely, though they ran into thousands.

In her study entitled “A Sociological Exploration of Disappearances in Sri Lanka” published by the Hong Kong-based Asia Human Rights Commission in 2014, Jane Thomson-Senanayake says: “Given the strategy of repression employed by the government which permitted the disposal of dead bodies without any form of official documentation, the actual figure of those who disappeared and were killed in State custody will never be known.”

State repression in Sri Lanka actually dates back to 1947, when the State Council passed the Public Security Ordinance No. 25, 1947 (PSO) in response to a massive but peaceful demonstration of the country’s working class. In response to the 1971 JVP insurrection, the United Front (UF) government imposed a State of Emergency. The Emergency Regulations (ERs) provided the police and security forces wide powers of arrest and detention without normal checks.

On 9 August 1970, the then Secretary of the Ministry of Defence A.R. Ratnavale, declared that the JVP was “the government’s public enemy No.1 and one which has to be relentlessly pursued and eradicated.”  

When the JVP launched its revolution on 5 April 1971, attacking 93 police stations, the security forces “abducted, tortured and extra-judicially executed suspected JVP members while also engaging in helicopter bombing and mortar shell attacks,” Thomson-Senanayake writes.

The ERs empowered the police to arrest without a warrant and detain on suspicion for up to 15 days at any location designated by the Inspector General of Police (IGP) without having to bring the detainee before a magistrate. Statements made in police custody could be given as evidence in court. The writ of habeas corpus was suspended.

The ERs removed the power of the courts to grant bail, which could only be granted by order of the Executive. The legality of a detention order issued by the Defence Minister could not be challenged in court. The ERs gave the Assistant Superintendent or Officer-in-Charge or any personnel authorised by them the authority to dispose of bodies without adhering to any requirements under normal law, including the issuance of a death certificate.

There was also no requirement under the ERs to retain a record of the identity of the person who died. In fact, when somebody died in state custody, the only legal requirement under the ERs was to dispose of the body, Thomson-Senanayake points out.

Any person who made a complaint against a police officer faced the risk of arrest for making a false allegation. To cover up such an arrest, the police could resort to killing the complainant and disposing of their body without the knowledge of any other party, according to Thomson-Senanayake.

The leader of the JVP was killed supposedly when he tried to escape from custody.

Criminal Justice Commission Act of 1972

Under mounting pressure from the international human rights community, the government enacted the Criminal Justice Commission Act of 1972. But it was one of the most controversial pieces of legislation introduced by the government because it compromised the internationally accepted standards of criminal justice.

Foreign Expertise

Sri Lanka obtained foreign expertise to quell insurgencies. In 1971 and 1989, the Sri Lankan security forces had no experience in armed combat, let alone counter-insurgency tactics. According to Thomson-Senanayake, the army’s head, Major-General Attygalle, had undergone military training in Yugoslavia where Marshal Tito was running a police state. Senior army officers were sent to Malaya to undergo training with General Sir Gerald Templer, whose counter-insurgency tactics against communist insurgents had included the public display of corpses.

In 1970, agents from Israel’s intelligence organisations, Mossad and Shin Bet, assisted the Sri Lankan security forces in undercover and intelligence operations.

With democracy under stress in the countries of the Global South due to competing demands from an increasingly conscious and also ethnically diverse population, rulers have preferred to take short cuts like enforced disappearances to enforce their writ and draft laws to give patent illegalities a veneer of legality.