Barrister Md. Muzahidul Islam :
The practice of enforced or involuntary disappearances puts the victims out of the territory of law. This practice restricts to establish rule of law, administration of justice and hold the perpetrators accountable.
There are many states in the globe where the offence of enforced disappearance is being committed; and North Korea is the one of those. How can North Korea get rid of this practice?
Before jumping to the issue of enforced disappearance in North Korea, I would like to share some international human rights instruments and mechanisms in this area such as the Declaration on the Protection of all Persons from Enforced Disappearance. This instrument was adopted in December 1992. The International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) came into force in December 2010.
A treaty-based mechanism Committee on Enforced Disappearance (CED) established under this convention (ICPPED).
A charter-based mechanism UN Working Group on enforced or involuntary Disappearance was established by a resolution of the Commission on Human Rights in 1980, and since then the mandate of this mechanism has been extended from time to time.
However, the challenge is that even though the convention (ICPPED) came into force in December 2010, out of 193 States, only 76 States have been parties to it to date. Unfortunately, this rate is not satisfactory. It is expected that states ratify this convention and recognize the competence of the committee established under this convention
. It is further expected that states implement the provisions of the declaration domestically, and the states avail themselves of the technical assistance, advisory services and other cooperation provided by the Working Group.
About the enforced disappearance in North Korea, I would like to share a report (DEMOCRATIC PEOPLE’S REPUBLIC OF KOREA, Enforced Disappearances: “These wounds do not heal”, 27 March 2023) of the Office of the High Commissioner for Human Rights (OHCHR).
Paragraph 10 of this report provides that “The enforced disappearances documented in this report constitute a violation of the obligations of the Democratic People’s Republic of Korea under international human rights law. The Democratic People’s Republic of Korea is a party to the International Covenant on Civil and Political Rights (ICCPR).
According to the Human Rights Committee, while the ICCPR does not explicitly use the term “enforced disappearance”, it constitutes a unique and integrated series of acts and omissions representing a grave threat to life and a continuing violation of various rights recognized in the ICCPR.
The deprivation of liberty followed by a refusal to acknowledge that deprivation of liberty or by concealment of the fate of the disappeared person, in effect removes that person from the protection of the law and places his or her life at serious and constant risk, for which the state is accountable.
Enforced disappearance thus results in a violation of ICCPR article 6 (right to life), article 7 (prohibition of torture or cruel, inhuman or degrading treatment or punishment), article 9 (liberty and security of person) and article 16 (right to recognition as a person before the law).
The United Nations Working Group on Enforced or Involuntary Disappearances (WGEID) has noted that enforced disappearance occurs when persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of a Government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law.
The WGEID has also indicated that “enforced disappearance causes ‘anguish and sorrow’… to the family, a suffering that reaches the threshold of torture”, and that this torture is continuous upon the relatives.
The latter raises a key point: that enforced disappearance is a “prototypical continuous act.” In this sense, the crime of enforced disappearance continues “until the state acknowledges the detention or releases information pertaining to the fate or whereabouts” of the disappeared person.”
I quote a relevant part from paragraph 11 of this report which states that “In accordance with their obligations under ICCPR, states must take adequate measures to prevent the enforced disappearance of individuals and conduct an effective and speedy inquiry to establish the fate and whereabouts of persons who may have been subject to enforced disappearance.”
The accounts of the victims that were stated in paragraph 24 of this report. It provides that “Other victims stated: “My husband was repatriated in August 2000 … The Government never officially informed my relatives that my husband was secretly executed. I learned about the secret execution a little over two years after it happened, and to my knowledge he was executed by the MSS [Ministry of State Security].” “I heard they [my wife and son] were sent separately to different political prison camps. My son, who was a minor back then, should have finished his prison term of four years, but I still have no idea about his whereabouts. That suggests either he [my son] is still in a political prison camp or died in detention.”
It is expected that North Korea should get rid of the practice of enforced disappearanceby acknowledging the occurrence of enforced disappearances, ensuring full accountability for the crime of enforced disappearance, and ratifying all relevant international treaties and human rights instruments, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Convention for the Protection of All Persons from Enforced Disappearance, to which North Korea has not been a party yet, and cooperating with treaty and charter-based mechanisms.
(The writer is a human rights activist and an advocate at the Supreme Court of Bangladesh).