KUALA LUMPUR, April 11 — Last week, the public heard from the Human Rights Commission of Malaysia (Suhakam) that activist Amri Che Mat and pastor Raymond Koh were victims of enforced disappearance.

They were allegedly bundled into four-wheel-drives by masked men dressed in black and never seen again.

A public inquiry by Suhakam determined that state-hired agents carried out the enforced disappearances of Amri and Koh, who went missing in November 2016 and February 2017 respectively.

Prime Minister Tun Dr Mahathir Mohamad said the government would open a new investigation into Suhakam’s report, but only after Tan Sri Mohamad Fuzi Harun retired next month as Inspector-General of Police.

What is an enforced disappearance?

Recognised by most nations as a crime against humanity, enforced disappearances involve the clandestine abduction of someone regarded as a threat by their government that then refuses to acknowledge the victim’s fate or whereabouts.

The state’s refusal in acknowledging the victim’s fate, or invoking plausible deniability through lack of evidence, puts the "disappeared” person in a perilous position outside the protection of the law.

Enforced disappearances, however, are not new and have been employed by communists, democratic and junta regimes, paramilitary groups, and drug cartels all over the globe against activists or political foes with conflicting ideologies.

Often used as a means to silence these critics, enforced disappearances usually involve detention and torture-style interrogations followed by the covert killing of said persons and the disposal of their remains.

Some cases of enforced disappearances have escalated into genocide such as the Anfal genocide during the late 1980s that saw at least 182,000 Kurds killed during the Iran-Iraq war.

Believed to have had the backing of Iraq’s Saddam Hussein, the anti-insurgent conflict saw the use of chemical warfare and systemic wiping out of settlements resulting in mass deportations in northern Iran.

Further west and the three-decade-long Operation Condor, a US-backed anti-Soviet-Communist cross-nation terror campaign, caused at least 60,000 deaths in South America, with numbers still being disputed.

Victims of enforced disappearances during the conflict covered a wide spectrum of disciplines ranging from intellectuals, politicians, students, to priests and nuns.

Initially seen as a tactic to wipe out communist influence among Latin American nations, the conflicts eventually saw suspected guerrillas, activists and even students exhibiting differing beliefs fall victim to enforced disappearances.

Closer to home, without discounting the remaining unsolved cases of our own, neighbours Thailand and the Philippines have also had a number of their citizens relegated into the realm of enforced disappearances.

While under martial law, most of the victims who fell to enforced disappearance were advocates of human and religious rights in Thailand, among them a former attorney.

Numbers are, however, more worrying in the Philippines. At least 2,300 people are reportedly still missing, including student activists and journalists dating back to the time of dictator Marcos Ferdinand’s reign during the 1970s.

Loose enforcement and almost absolute power afforded to Filipino politicians have also resulted in the recent extrajudicial killings of suspected drug addicts, said to be planned, organised and encouraged by state authorities.

Jurisprudence

In the early 1980s, as a result of conflicts during Operation Condor, the Inter-American Court of Human Rights passed its first conviction onto the nation of Honduras for violating human rights in regard to a missing student said to have been abducted by heavily armed civilians connected to a guerrilla paramilitary faction.

Since no existing law curtailing enforced disappearance was in existence at the time, the human rights court had to rely on different but similar articles from the American Convention on Human Rights in 1969.

The decision then set a precedent for the United Nations, which in 2006 adopted the International Convention on the Forced Disappearances of Persons, a treaty 25 years in the making that was initially ratified by 20 participating nations.

In 2006 the treaty was redrafted and then signed in 2010, and renamed the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED).

Should Malaysia ratify ICPPED?

The ICPPED is an international convention with 98 signatories that provides a framework to criminalise enforced disappearance as required by its members.

The treaty sets an expectation from its members to claim awareness of the extreme seriousness of enforced disappearance, criminalising it, and channel efforts to combat and prevent it.

The following is an excerpt from Article 2 of the ICPPED which defines enforced disappearances:

For the purposes of this Convention, "enforced disappearance" is considered to be 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 person, which place such a person outside the protection of the law.

Suhakam’s report outlined how the abductions of Amri and Koh were allegedly carried out by state agents, namely from the Bukit Aman Special Branch, under the instruction of the ruling regime satisfying the first vein of Article 2.

It went on to argue that public statements made by senior police denying the duo’s fate and the force’s refusal to reclassify the cases from abduction to enforced disappearance had the prerequisites to satisfy Article 2’s second limb addressing refusal to acknowledge the victim’s fate or whereabouts.

Suhakam, among its recommendations, suggested the Malaysian government ratify or at least adopt ICPPED’s legal framework to criminalise enforced disappearances.

Suhakam claimed circumstances and outcomes of both cases had satisfied the definitions of what constitutes an enforced disappearance, which should not see a repeat of events.

It is relevant to note the 98 signatories of ICPPED include countries such as Thailand, Iraq, Indonesia, Germany, and France.

Malaysia is among a group of non-signatories including Singapore, Brunei Darussalam, the United States, and England.    

Foreign Affairs Minister Datuk Saifuddin Abdullah had in November last year revealed the Pakatan Harapan (PH) government’s intentions to ratify ICPPED along with the United Nations Convention Against Torture, but details have been scarce regarding the ratification of the two treaties since.