Dr. Leila Nicolas*
Enforced disappearances have tended to be a continuing
feature since the starting of the civil revolution in Bahrain. Reports from
human rights' organizations highlight the detention of journalists, activists,
bloggers etc.. and the security forces deny any information about them.
The International Convention for the
"Protection of All Persons from Enforced Disappearance" that was adopted
on 20 December 2006 - during the sixty-first session of the General Assembly by
resolution A/RES/61/177- and entered
into force on December 23,2010, defines the Enforced disappearance as the
phenomenon when "a person is subject to 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 authorization, 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".
Even
though Bahrain is not a state party of that convention, it still has the
obligation to respect this prohibition, as it is a rule in customary
international law. The states' practice established " the prohibition of
enforced disappearances" rule as a
norm of custom applicable in international humanitarian law, international
human rights law and the international criminal law. Here are some indications:
- the ICRC study of customary rules of international
humanitarian law proved that Enforced disappearance is prohibited in the rules
of customary international law (rule 98) for it constitutes a grave threat to
the right to life, and it violates, or
threatens to violate, a range of rules of international law, as follows:
- violates the
prohibition of arbitrary deprivation of liberty ,
- breaches the right
of a person not to be subjected to torture and other cruel, inhuman or
degrading treatment or punishment and the prohibition of murder .
- it constitutes a violation of the right to recognition as
a person before the law, the right to fair trial, and the right to liberty and
security of the person,
Furthermore,
The development of international criminal law, and the precedents of the
international criminal courts stressed on the prohibition of Enforced
displacement:
- It was constituted in the Statute of the International
Criminal Court (the Rome Statute), that "the systematic practice of
enforced disappearance constitutes a crime against humanity" (article 8)
- the International Criminal Tribunal for the former
Yugoslavia found that enforced disappearance could be characterized as a crime
against humanity if it was done systemically, although it was not listed as
such in the Tribunal’s Statute (Kupreškić case, 2000). It should therefore be
noted that, although it is the "widespread" or "systematic"
practice of enforced disappearance that constitutes a crime against humanity,
any enforced disappearance is - for sure- a violation of the international
humanitarian law and the human rights law.
The
phenomenon of “enforced disappearance” is prohibited by international law,
meaning that states have a duty of investigating cases of alleged enforced
disappearance, and preventing them through the registration of detained or deprived of their liberty, taking
all feasible measures to account for persons reported missing and to provide
their family members with information it has on their fate etc...
It is more
than urgent for the Bahraini government to comply with these obligations and
duties under international law, and to bring to justice those responsible for
those crimes. No exceptional circumstances whatsoever, whether internal
political instability or any other public emergency or even accusations of
"terror" attacks, may be invoked as a justification for enforced
disappearance done by a state or its agents.
It is the
government's duty to guarantee the right of the victims' families to know the
truth regarding the circumstances of the enforced disappearances of their
beloved ones, their fate, and the
progress and results of the investigations, to take appropriate measures in
this regard, and reaffirm their right to freedom to seek, and receive impartial information to that end.
It is time
to change the track, it is time to call for serious actions, Bahraini
government and civil society are on urgent call for duty and responsibility.
Dr. Leila Nicolas is a professor in the
Lebanese University, and an expert in the fields of Humanitarian international
law and international Justice.
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