On Wednesday, leaders from the South Asian nations of Afghanistan, Bangladesh, Bhutan, India, the Maldives, Nepal, Pakistan, and Sri Lanka will convene in Kathmandu for the 18th Saarc Summit. Saarc was first conceptualised in 1980—its first summit was held in 1985 in Bangladesh—with the aim of promoting welfare economics, fostering self reliance among South Asian countries, and promoting socio-cultural development.

Saarc and human rights

There have been 17 summits since 1985, the most recent of which was held in the Maldives in 2011. The last time the summit was held in Kathmandu was in 2002, during the height of the Maoist insurgency that engulfed the country from 1996 to 2006. The declaration that resulted from that 11th Saarc Summit in 2002 addressed a number of topics, including regional cooperation and economic development, but did not address ongoing human rights concerns. The last summit in the Maldives made mention of human rights, asserting the states’ commitments to human rights, but did not address in any specific detail issues that require action.

Enforced disappearance is but one of many prevalent human rights issues across the South Asian region—a pernicious reality that impacts many thousands of individuals and families over extended periods of time, creating a host of unanticipated consequences. Many families suffer the loss of a breadwinner, spouses cannot remarry due to religious rites, and legal demands cannot be completed without confirmation of death; livelihoods suffer and children bear the brunt of being raised without parents. Above and beyond all this, families are tortured by not knowing if their loved ones are dead or alive, and while they continue to suffer, little is being done in a collaborative manner to help these people.

This article will consider the background and dynamics of enforced disappearance in South Asia and suggest that given the regional nature of this problem, greater awareness and regional collaboration is needed to help address the issue and support those that continue to suffer from such rights violations. All families have the right to truth, justice, and reparations, the facilitation of which will help create positive social conditions for the future.

As defined by Article 2 of the United Nations International Convention for the Protection of all persons from Enforced Disappearance, ‘enforced disappearance’ is considered 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 persons, which place such persons outside the protection of the law.

Disappearances across the region

During Nepal’s ‘People’s War’, around 1,400 citizens were disappeared. The majority were taken by the State, though the Maoists perpetrated disappearances as well. Indeed, the height of enforced disappearance in Nepal occurred in 2002, when the Saarc summit was last held in Kathmandu. Little progress has been made on the issue in the more than eight years since the end of the conflict and the signing of the Comprehensive Peace Agreement in November 2006. Currently discussions over the formation of a high-level transitional justice mechanism—a commission for the investigation of enforced disappearances—have stalled due to protracted disagreement over the provision of amnesty to perpetrators. Countless cases have been filed with the Supreme Court of Nepal, but no trials have been held and no one has been punished for their crimes. By and large, families have received no news or information concerning the whereabouts or fate of their loved ones. Some have received minimal monetary relief, but livelihood difficulties persist. This, however, is a problem beyond Nepal, affecting the entire region, and as such is an issue for Saarc.

In Kashmir, where India and Pakistan continue to disagree over territory, there have been between 8,000 and 10,000 cases of enforced disappearance between 1989 and 2006, according to the Asian Human Rights Commission. In India, this was in part spurred by the Armed Forces Special Powers Act of 1990, which created a culture of impunity by codifying immunity for armed forces in law. According to the Association of Parents of Disappeared Persons (APDP), the majority of those disappeared are young men from a range of professional and ethnic backgrounds—many of whom have no connection to armed opposition groups in Kashmir. Despite the number of instances of disappearance decreasing in recent years, the struggle of the families of those disappeared between 1989 and 2006 continues.

In Sri Lanka, cases of enforced disappearances have been prevalent since the 1980s, peaking every time conflict intensifies. According to the UN Working Group on Enforced Disappearances only Iraq rates higher in terms of total number of unsolved cases of disappearance. However, it should be noted that the numbers in Sri Lanka only account for registered cases. Most recently, this February, a mass grave was uncovered in Mannar, the first to be found since the end of the civil war in 2009. While the exact number of cases of disappearance in Sri Lanka is unknown, there were approximately 15,000 cases documented between 1988 and 1998 alone and it is suspected that there are tens of thousands of cases arising from both the Janatha Vimukhi Peramuna (JVP) uprising and the long war with the Tamil Tigers.

In Afghanistan, decades of conflict and a lack of governance has led not only to a large number of disappearances perpetrated by the state—in its various incarnations—and a host of non-state actors, but a failure to even acknowledge the issue. The scale of deaths over the period of Soviet occupation, the civil war, and conflict with the Taliban is huge, and in many cases, families lack information about what happened to relatives. In 2013, a list emerged confirming the fate of almost 5,000 persons killed after arrest in the first 20 months of communist rule, following the 1978 coup d’état. However many more families continue to await news of the fate of relatives. Continuing conflict appears to make this unlikely. French scholar Oliver Roy estimates that 50,000 to 100,000 people have been disappeared in Afghanistan’s recent history.

Finally, in Pakistan, conflict continues in parts of the country, including in Balochistan, where an independence move has provoked a crackdown, and in the north, where the Pakistani Taliban are active. Cases of enforced disappearance have been growing in recent years. Reports vary wildly as to the actual number of disappearances, particularly between 2008 and 2010 with some stating only a handful and others suggesting that thousands have gone missing. Human Rights Watch published a report discussing the disappearance of 45 individuals between 2009 and 2010.

Policy recommendations

These examples suggest that the issue of enforced disappearance is one that deserves the attention of the leaders of member states at this year’s Saarc summit. The leaders have a duty to hear the thousands of voices of victims and family members, to address the ongoing humanitarian concerns and victims’ agendas pertaining to these crimes that have long been ignored and denied. Cooperation is crucial, not only at the highest political levels, but also to promote democratic practices, human rights, and social, economic, and cultural solidarity for national and regional cooperation. There is a need not only to address past cases, but ensure accountability and process to stop future disappearances. In terms of concrete policy initiatives, there are a number that could be potentially considered.

A regional mechanism could be developed to address violations of human rights. Similar to the Asean Intergovernmental Commission on Human Rights (AICHR), Saarc should develop a regional charter to promote and protect human rights and facilitate regional cooperation on human rights in its member states. Such a mechanism would strengthen coordination amongst national human rights institutions and create pressure on member states to implement recommendations and respect peoples’ dignity. This type of mechanism can help local organisations raise their concerns regionally. Around the issue of enforced disappearances, many family associations have no access to justice and national remedies in Sri Lanka, Nepal, India, and elsewhere; a regional mechanism could move to fill this void.

Further, the heads of state and government must commit to ratifying the International Convention for the Protection of All Persons from Enforced Disappearance. Nepal’s Supreme Court, in two historic rulings (June 1, 2007 and January 2, 2014) directed the Government of Nepal to establish a Commission of Inquiry on Disappearances based on international norms of human rights law and on the UN convention on enforced disappearances. However, the new disappearance legislation fails to define enforced disappearance as a crime against humanity and the UN convention on disappearances remains unratified. In Sri Lanka, based on the report of the Lessons Learned and Reconciliation Commission (LLRC), the President appointed a new commission of inquiry on disappearances, but it has not been and is unlikely to be effective, given the lack of effective consultation and participation of families and their networks.  Ratification of the convention would support the national process to adopt international norms and open a door to international justice.

A regional model of truth and justice to build trust both nationally and regionally could be established. Addressing disappeared families’ demands and dealing with the past can be a common agenda that can connect states and sentiments of peoples. Families of the disappeared in all countries face similar problems and challenges. The desire for truth, justice, and reparations are universal, as is the need for a policy to support victim livelihoods through education, employment, social entrepreneurship, health, psychosocial, and memory initiatives. To end impunity and reduce future violations, the upcoming commissions in member states can be lessons that can build trust and expertise at the national and regional level, and strengthen regional connectivity on human rights. States should develop a new framework of participatory democratic norms to support and strengthen civil engagement for justice and improve victim agency. Heads of state and government should review past state actions and commitments and implement their previous declarations on human rights, and address current challenges in a principled human rights-based approach that can support development of a common agenda across the region.

Collaboration and progress on these policy initiatives would not be a simple matter, but would go a long way in creating a stable foundation for redressing past violations as well as exploring a model for regional cooperation on human rights moving forward.

Bhandari is Coordinator of the National Victims Alliance and General Secretary of the Nepal South Asia Centre; Wilson is a development professional working on transitional justice issues in Nepal