What the enforced disappearance commission report failed to address

The Commission of Inquiry on Enforced Disappearances, in its report, substantiated prima facie evidence of torture in 253 cases of enforced disappearances (Eds) and established compelling evidence of gross human rights violations committed by law enforcement agencies (LEAs). However, the commission appeared to have trapped itself in the pursuit of punishing individual perpetrators rather than holding the state accountable or recommending effective remedies for the sufferings of the victims in these cases.

The report, the first of its kind, reveals that out of 1,676 complaints received, 253 cases met the definitional threshold of EDs under international law, with supporting evidence such as general diaries, criminal complaints, and media reports. The commission confirmed that the victims named in these complaints had been in state custody, that LEAs had filed false criminal cases against them when some of them reappeared, and that these individuals are now alive, with many having testified about their detention and mistreatment.

Despite acknowledging the existence of such evidence, the commission remained focused on the absence of domestic legal provisions criminalising EDs. It recommended enacting a new penal statute, which primarily looks to punish individual perpetrators and does little to ensure accountability of the state and its agencies for gross human rights violations. The commission further advocates for the utilisation of the International Crimes (Tribunals) Act, 1973, and the Army Act, 1952, as available legal frameworks, even though sufficient constitutional and statutory mechanisms for redress already exist under the Constitution of Bangladesh and the National Human Rights Commission Act (NHRC), 2009.

By narrowing its scope to criminalisation, the commission fails to acknowledge the broader principle of state accountability, overlooking reparations, public apologies, and guarantees of non-repetition to which victims are entitled under international human rights law, our constitution, and the NHRC law. This limited approach risks reducing the commission's crucial work to a purely procedural exercise, detached from the lived realities of victims and from the interim and immediate remedies they require. Although the commission discusses at length the constitutional protection of the right to life, it remains conspicuously silent on possible constitutional recommendations for remedial and preventive frameworks, areas that are not contingent upon statutory criminal measures.

Developing international and domestic human rights jurisprudence indicates that criminal accountability, although necessary, should not be the sole avenue of justice, particularly in systems where prosecutions may take years, if not decades. The state, as both violator and protector of rights, bears an immediate duty to provide remedies and preventive safeguards that operate independently of criminal proceedings.

The commission could have referred the 253 substantiated complaints to the NHRC, which possesses quasi-judicial authority to issue show-cause notices to the government and to recommend appropriate remedies. Alternatively, it might have submitted its findings to the High Court Division seeking the issuance of a rule nisi against the state, or facilitated the NHRC or civil society organisations in representing the victims on the basis of its prima facie evidence. Such measures would be consistent with precedents, such as Nurul Amin and Others v Government (2015), in which the Appellate Division affirmed citizens' constitutional right to compensation for loss of life and liberty resulting from a breach of public duty, independent of any statutory provision.

The commission's own findings, based on documentary evidence and victims' testimonies confirming their detention in state custody, meet the civil standard of proof, namely the balance of probabilities, which is sufficient to establish state responsibility for gross human rights violations. Yet, the commission made no recommendations urging the government or relevant ministries to provide compensation or guarantees of non-recurrence.

Besides, it failed to recognise that the absence of enabling legislation may itself constitute a human rights violation, thereby warranting judicial and quasi-judicial intervention. Moreover, the commission appears to have overlooked several articles of the International Convention for the Protection of All Persons from Enforced Disappearance, which require state parties to ensure remedies, prevention, and guarantees of non-repetition, obligations that extend well beyond the confines of criminal law.

Comparative experience from India shows how both the judiciary and its NHRC have adopted complementary approaches to address disappearances and torture. The Indian Supreme Court, in Extra Judicial Execution Victim Families Association v Union of India (2017) and Union of India v Luithukla (SMT) and Others (1999), recognised state accountability and ordered compensation for victims' families with prima facie evidence. The Indian NHRC has likewise ensured interim financial relief and recommended preventive measures in numerous cases, including the disappearance of Tayab Ali by paramilitary force (1999-2000), the killing of two civilians by India Border Security Force (BSF) in Rajasthan (2000-2001), and the killing of a 16-year-old boy by BSF in Jammu & Kashmir (2010). Across these decisions and interventions, both the Supreme Court and the Indian NHRC have consistently held that victims of gross human rights violations must, in appropriate cases, receive compensation and other remedial protections from the state, irrespective of, and in addition to, any criminal proceedings. They have also emphasised the need to establish mechanisms that prevent the recurrence of similar violations in the future.

In contrast, Bangladesh's enforced disappearance commission's recommendations reflect an inadequate institutional understanding of how human rights protection can operate through existing constitutional and quasi-judicial mechanisms. It neither addressed the evidentiary value of its own report nor clarified who may rely on its findings in judicial or quasi-judicial proceedings.

Nonetheless, the report remains a milestone in documenting serious human rights violations in Bangladesh, acknowledging that "enforced disappearances are among the gravest violations of human rights, constituting crimes against humanity. When the state itself is complicit in such crimes, it not only erodes trust in public institutions but also entrenches a climate of fear." Yet, its recommendations stop short of addressing how that erosion of trust might be repaired realistically. This way, it has missed a crucial opportunity to strengthen the nation's human rights architecture that could ensure justice for victims, accountability for violations, and guarantees of non-repetition beyond the narrow lens of criminalisation.

Md Abdul Halim is a practising barrister in the Supreme Court of Bangladesh and PhD candidate and visiting lecturer at the School of Law in the University of Hertfordshire, UK.

Views expressed in this article are the author's own. 

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