This essay provides a comparative analysis of human rights violations in The Gambia and Kashmir with a focus on enforced disappearances. By analysing international conventions and redressal mechanisms on EDs, it examines the possibility of acquiring justice and accountability from hostile systems. The essay also brings forth the means of resistance undertaken by women in both Gambia and Kashmir against structural impunity in their pursuit of truth and justice.
What is common between a woman from The Gambia and a woman from Kashmir? Apart from the invariable gender hierarchies and disparities existing everywhere, what unites women from across continents is the quest for justice.
Situated in West Africa, The Republic of Gambia witnessed a ghastly period of dictatorship from 1994 onwards, which was marked by a large scale and systemic violations of fundamental rights, witch-hunts, extra-judicial killings, torture, sexual and gender-based violence and enforced disappearances.[1] It was only after the end of the oppressive regime, that a Truth, Reconciliation and Reparations Commission (TRRC, 2017) was set up to investigate and establish an impartial historical record of the violations and human rights abuses committed during the decades of the bloody reign of the dictator-Yahya Jammeh.[2] On the other hand, Kashmir, albeit under a de-jure democracy, has also seen dark periods of oppression (only amplified since 5th August 2019) where thousands of lives have been and are continuing to be lost to state excesses and brutality. One of the goriest as well as well-documented of these human rights abuses is enforced disappearances.[3]
Alongside, the physical, social, economic and psychological impacts of the violations on every person living in these regions, it is to consider that, facing the dual burden of patriarchy and occupation, it is women who are most disproportionately and adversely affected by conflict and violence everywhere in the world. [4] Whereas more recorded data of a systemic onslaught of sexual violence and exploitation is found in the Gambia, both there and Kashmir, women have been at the receiving end, suffering the unrecognised consequences of enforced disappearances on their life and livelihood. With this knowledge, the essay briefly highlights the means of resistance undertaken by women against impunity, in the context of enforced disappearance in the Gambia and Kashmir, which are aimed at pursuing truth and justice.
Enforced Disappearance and the Right to Truth: A Cloak of Impunity under International Law?
Brought to the fore during the Holocaust, Enforced Disappearance is prohibited under a constellation of human rights treaties and conventions.[5] Notably, one of the most significant instruments dealing with the prohibition of Enforced Disappearance is the International Convention for the Protection of All Persons from Enforced Disappearances (2006), signed by over 98 countries.[6] The Convention identifies Enforced Disappearance as a crime, a violation of a host of human rights, and often occurring alongside other human rights abuses such as torture, arbitrary detention, extra-judicial killings, etc.[7] Enforced disappearance is also recognised as a continuing crime,[8] where victims and families of victims, have the right to truth, right to a remedy (consisting of reparations and the right to justice) and the right to a guarantee of non-recurrence of the crime, under international law.[9] Importantly, the Convention gives broad scope to the term victim,[10] emphasizing a gendered approach to any remedy prescribed under law.[11] In Kashmir, this would mean recognising “half-widows” as victims of enforced disappearance, reinforcing their right to know the truth and to live with dignity.
Under the Convention, the right to truth is elaborated as under:
The right to the truth in relation to enforced disappearances means the right to know about the progress and results of an investigation, the fate or the whereabouts of the disappeared persons, and the circumstances of the disappearances, and the identity of the perpetrator(s). The right to know the truth about the fate and the whereabouts includes, when the disappeared person is found to be dead, the right of the family to have the remains of their loved one returned to them, and to dispose of those remains according to their own tradition, religion or culture. [12]
Even though sufficiently wide in its scope, the Convention, like other relevant human rights instruments, hasn’t been signed and/or ratified by concerned states, defying any actual impact or change on ground. The Gambia signed the Convention only in 2017 (and subsequently ratified in 2018), whereas India has signed the Convention in 2007, but not yet ratified it.[13] As state consent forms the bedrock of international relations and international law, this simply means that many states cannot be held internationally responsible for their actions violating the mandate of the Convention. Regardless, as mentioned above, enforced disappearances often occur in conjunction with other human rights violations, which are prohibited under the International Covenant on Civil and Political Rights (ICCPR), a treaty to which India is a party, imposing obligations on the State to ensure the protection of individuals and to punish and prosecute perpetrators in their domestic courts.[14] Moreover, as the situation in Kashmir has often been categorised as an international armed conflict, the protective regimes of both human rights and humanitarian law obligate India to ensure safeguarding the rights of people at all times.[15]
Clearly, as the prohibition against Enforced Disappearance and Torture is codified in many international instruments (including the Universal Declaration of Human Rights), many argue that it is now part of customary international law, making consent irrelevant for states to be held responsible for such internationally wrongful acts.[16] Although such a proposition seems favourable, it is not an easy task in practice, requiring concerted international will and action. Adding to this, unlike Latin America, where the Inter-American Court of Human Rights has dealt with many cases of Enforced Disappearance, the shortcomings of the African Court of Human Rights, and the absence of a regional human rights court/governing body in Asia, leaves less avenues for the victims of these crimes to avail justice. Thus, what ensues, in most cases, is a thick blanket of impunity shielding perpetrators (mostly state officials and authorities) from any sort of accountability.
In this sense, international criminal law opens a small window (if not an entire door), where some semblance of accountability and justice can be achieved. Earlier categorised as ‘other inhumane act’ under Crimes Against Humanity,[17] the International Criminal Court Statute (Rome Statute), lists Enforced Disappearance as a separate crime under Crimes Against Humanity, which can result in individual criminal responsibility, meaning that the perpetrators (state officials/security forces) can be held criminally responsible for these crimes.[18] However, to come under the ambit of Crimes Against Humanity, additional contextual thresholds [(i) as part of a widespread or systematic attack ii) directed against any civilian population, iii) with knowledge of the attack] have to be fulfilled to be charged under this grave crime. Even though, enforced disappearance has never been specifically tried under international criminal law, it has been held that an individual who only commits one enforced disappearance can be charged with the crime against humanity, granted it fulfils the requisite conditions of Crimes Against Humanity (that “there is a link with the widespread or systematic attack against a civilian population.”)[19]
Considering that international criminal law warrants States to “be willing and able” to prosecute domestically, it is unlikely that the party (herein the state and its officials) perpetuating the crime would prosecute and punish itself. Obviously then, countries like the USA, Israel and India are not a party to the International Criminal Court.[20] More so, India has vehemently opposed the International Criminal Court and specifically objected to the inclusion of enforced disappearances in the Rome Statute. [21] Yet again, this translates to lesser and lesser accountability mechanisms for the crime. Nevertheless, considered customary in nature, many countries have also incorporated Crimes Against Humanity into national legislations, utilising the powers of Universal jurisdiction, to prosecute any perpetrator of Crimes Against Humanity in their national courts.[22] The Gambia also has a Draft International Criminal Bill on its way which aims to criminalise Crime Against Humanity in the Gambia. Furthermore, countries (mostly within the EU) such as France, Germany and Sweden have embarked on exercising universal jurisdiction to prosecute war criminals (such as in the Syrian or ISIS context), bringing the perpetrators to book within their national criminal justice system. [23] Thus, instead of taking the Human Rights route (which deals with state responsibility), criminal justice (or individual responsibility) has offered an alternative, and perhaps a more effective channel/platform for victims of international crimes to tell their stories and avail some form of redress.
Resist to Exist: Pursuing the Right to Truth through Women’s Resistance
And when I screamed that I was dying he said:
“No, it’s fun.”
And to people wondering why am I saying this so vividly and so loud it’s because it’s time that we hear this. It’s time that we all get uncomfortable,
because comfort has been very disastrous.’
-Toufah Jallow[24]
After many decades of silences and impunity, countless women came forward to speak about their experiences, including before the TRRC,[25] revealing the horrors of the Jammeh regime.[26] These revelations are set to lay the foundation for the prosecution of international crimes in the Gambia.[27] Parallel to this, organisations such as the ANEKED (African Network against Extra-judicial Killings and Enforced Disappearances), led by young African human rights activists, also started actively documenting the process.[28] Recognizing that there is a duty to remember, ANEKED termed their endeavour a memorialisation project, in honour of the sufferings and injustices borne by the victims fighting impunity in the region.[29]
Similarly, in Kashmir, a well-known, local non-profit organisation-Association of Parents of Disappeared Persons (APDP), has also massively contributed to preserving memory and archiving the truth of victims and their families. [30] Born out of the struggle of a grieving mother, Ms. Parveena Ahanger, whose son was forcibly disappeared in the 1990s, the work of APDP has led to the documentation of many cases of enforced disappearances in Kashmir.[31] Naturally, Ms. Ahanger’s story and work has become a symbol of hope and resilience in Kashmir, enabling a larger movement of visible public action against state violence. In this endeavour, in 2019, APDP also published a report on the victims of pellet injuries, titled, “’My World is Dark’ – State Violence and Pellet Firing Shotgun Victims from the 2016 Uprising in Kashmir.”[32]
Conclusion
‘I started as a crazy grieving mother. Today I have the support of students from all over the world. Hundreds of students from all over come to help me – to make our voice heard. Initially, some members were doubtful but slowly we have overcome fears and are able to see the importance of this force and support.’
-Parveena Ahanger, APDP’[33]
The fight for justice is a long drawn out battle. Everyday crimes such as enforced disappearance, rob children of their childhood, women of their dignity and families of their truth. What is remarkable still, is the courage and relentless struggle of common people against forgetfulness, bringing a visible ray of hope. In this, whether before investigative mechanisms, or as an organised collective action, women and women-led movements have played a pivotal role, bringing a layered understanding of agency and victimhood to the debate.
Whereas in the Gambia, a changed regime and the TRRC is a promising reform and relief to some extent, in Kashmir, especially after August 2019, increased militarisation, and the abrogation of the (already defunct) state human rights bodies, have removed any façade of accountability, making state impunity a norm in the region. In such a scenario, the work of movements like ANEKED, and APDP, in seeking and archiving truth, becomes even more crucial and relevant in the fight against impunity and the pursuit of justice.
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[1] See, Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances on its mission to the Gambia, A/HRC/39/46/Add. 1 (27 August 2018); Human Rights Watch, World Report 2017.
[2] The Truth Reconciliation and Reparations Commission Act, 2017, Preamble.
[3] See, UN Human Rights Council, OHCHR, Report on the Situation of Human Rights in Kashmir: Developments in the Indian State of Jammu and Kashmir from June 2016 to April 2018, and General Human Rights Concerns in Azad Jammu and Kashmir and Gilgit-Baltistan (14 June 2018).
[4] In this essay, the definition of “women” is as developed by the Committee on the Elimination of all forms of Discrimination against Women, which is broader than gender and sex, and intersects with other factors, including “sexual orientation and gender identity.”
[5] See International Convention for the Protection of All Persons from Enforced Disappearance, 2716 UNTS 3 (20 December 2006); UN Declaration on the Protection of all Persons from Enforced Disappearance (18 December 1992), ACHR, Customary IHL, Rule 98.
[6] https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20IV/IV-16.en.pdf.
[7] International Convention for the Protection of All Persons from Enforced Disappearance, Article 2.
[8] Situation in the Republic of Burundi, Case No. ICC-01/17-X-9-US-Exp, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation in the Republic of Burundi, 25 October 2015, para. 121; Human Rights Committee, Communication No. 107/1981, Quinteros v. Uruguay, 21 July 1983, para. 14; Case of Velásquez-Rodriguez v Honduras, IACtHR Series C No. 4, 29 July 1988, paras 155 and 181; Case of Goiburú et al. v. Peru, IACtHR Series C No. 153, 22 September 2006, para. 81; Case of Heliodoro Portugal v. Panama, IACtHR Series C No. 186, 12 August 2008, paras 34-35, 106-107; Case of El-Masri v. The Former Yugoslav Republic of Macedonia App no 39630/09, (ECtHR, 13 December 2012), para. 240; Case of Varnava and Others v. Turkey App no 16064/90, 16065/90, 16066/90, 16068/90, 16070/90, 16071/90, 16072/90 and 16073/90, (ECtHR, 18 September 2009), para. 148. Inter-American Court of Human Rights.
[9] Sub‐Comm’n on Prevention of Discrimination and Protection of Minorities, Question of the Impunity of Perpetrators of Human Rights (Civil and Political), Para 18, delivered to the Commission on Human Rights, U.N. Doc. E/CN.4/Sub.2/1997/20/Rev.1 ( 26 June, 1997).
[10] Article 24 of the convention defines the victim as “the disappeared person and any individual who has suffered harm as the direct result of an enforced disappearance. Case of Blake v. Guatemala, IACtHR (24 January 1998), Series C No. 36, para. 97.
[11] Report of The Committee On Enforced Disappearances On Its Third Session (29 October – 9 November, 2012), Para 15; Preliminary observations of the Working Group on Enforced or Involuntary Disappearances at the conclusion of its visit to Sri Lanka (9-18 November 2015); Committee on Enforced Disappearances considers report of Colombia.
[12] General Comment on the Right to the Truth in Relation to Enforced Disappearances, Working Group on Enforced or Involuntary Disappearances, Principle 4.
[13] https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20IV/IV-16.en.pdf.
[15]http://www.rulac.org/browse/conflicts/international-armed-conflict-between-pakistan-and-india; https://www.hrw.org/reports/1999/kashmir/intl-law.htm.
[16] Goiburú et al. v. Paraguay, IACtHR (22 September 2006), Para 84 (“…the corresponding obligation to investigate . . . [has] acquired the character of jus cogens”).
[17] See, ICTY, Prosecutor v. Kupreskic et al, Judgment, IT-95–16-T, TC, 14 January 2000, para. 566.
[18] Rome Statute of the International Criminal Court, Article 7.
[19] Prosecutor v. Tadic, Case No. IT-94-1, Trial Chamber, 7 May 1997, Para 649.
[20] See, https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx.
[21] See Rome Statute of the International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court: Official Records, Vol. II, p. 148 para 47 (June 15‐17, 1998).
[22] To know more about Universal Jurisdiction, See, https://trialinternational.org/topics-post/universal-jurisdiction/.
[23] See, https://www.nytimes.com/2020/04/23/world/middleeast/syria-germany-war-crimes-trial.html; https://www.hrw.org/news/2016/10/20/qa-first-cracks-impunity-syria-iraq#Q14; https://www.mei.edu/publications/road-justice-syria-goes-through-europe.
[24] Fatou Network, 2019, available at, https://www.humanium.org/en/gambian-women-are-speaking-out/.
[25] International Center for Transitional Justice, ‘Women’s Experiences of Dictatorship in the Gambia: A Submission by Women from Sintet, Janjanbureh, and Basse to the Truth, Reconciliation and Reparations Commission’ (December 2019), p. 6; Convention on the Elimination of All forms of Discrimination Against Women, ‘Consideration of reports submitted by States parties under article 18 of the Convention Fourth and fifth periodic reports of States parties due in 2010: Gambia’ (13 December 2013), CEDAW/C/GMB/CO/4-5, paras 34-35; The Gambia Bureau of Statistics, ‘The Gambia: Demographic and Health Survey 2013’ (September 2014), p. 229. See also, Aneked, ‘Truth, Reconciliation & Reparations Commission (TRRC) Digest Edition 9’ (14-31 October 2019).
[26] International Center for Transitional Justice, ‘Women’s Experiences of Dictatorship in the Gambia: A Submission by Women from Sintet, Janjanbureh, and Basse to the Truth, Reconciliation and Reparations Commission’ (December 2019), pp. 5-6; L Hunt, ‘The Gambia’s ‘MeToo’ year breaks silence on rape’ (The New Humanitarian, 5 February 2020).
[27] See, http://www.trrc.gm/updates/.
[28] See, https://www.aneked.org/archives.
[29] See, https://www.aneked.org/aneked.
[30] General Comment on the Right to the Truth in Relation to Enforced Disappearances, Working Group on Enforced or Involuntary Disappearances, Principle 3.
[31] Ms. Parveena Ahander is the 2005 Nobel Peace Prize Nominee, 2017 Rafto Human Rights Awardee and recognised by the BBC as a 100 of the world’s most inspiring and influential women.
[32] See, “’My World is Dark’ – State Violence and Pellet Firing Shotgun Victims from the 2016 Uprising in Kashmir.”
[33] See, https://apdpkashmir.com/a-provisional-biography-of-the-association-of-parents-of-disappeared-persons-kashmir/.
Madeeha Majid, hailing from Srinagar, is a lawyer and a recent cum-laude graduate of the Advanced Master’s in Public International Law (LL.M.) from Leiden University, where she pursued a specialization in Peace, Justice and Development. She is currently interning at the Global Rights Compliance, in The Hague, working on a project relating to the prosecution of international crimes in The Gambia. Madeeha has previous work experience at domestic and international NGOs, and legal offices on human rights, and civil rights matters, especially relating to Kashmir.