What the Commission on Disappearances should do

The Bangladesh government has established an inquiry commission under the Commission of Inquiry Act 1956 to investigate disappearances, led by a former High Court judge. According to the ordinance setting up the inquiry, the commission has the responsibility, among other things, to:

• Search for, identify, and determine under what circumstances people have been forcibly disappeared by any law enforcement agency, including the Rapid Action Battalion (RAB) and the Directorate General of Forces Intelligence (DGFI).
• Submit details of cases of enforced disappearances to the authorities.
• Notify families of the whereabouts of those forcibly disappeared.

I have been writing about disappearances in Bangladesh since 2014 and below are my nine recommendations to the newly formed commission:

Extend the time frame: The government has said that the commission should report back within 45 days. However, the Act does not require such a short time frame. Clearly, no proper inquiry into the hundreds of disappearances can take place in such a limited period.

Even if the government wanted an initial report, 45 days is still far too short; in that time, the commission could do little more than aggregate existing evidence and summarise it. The commission must strongly argue for its mandate to be extended until its work is complete and agree to provide interim reports during the process.

Establish a sufficient secretariat: The ordinance reads that the Cabinet Secretary should provide “secretarial” assistance to the commission; however, this is far from sufficient. The commission needs a substantial secretariat to help the commissioners undertake their investigations into hundreds of disappearance cases. This task cannot be left to just five people — it will be a recipe for failure.

While the commissioners can direct and supervise the work and be involved directly in some investigations, most of the work will need to be carried out by others. This requires a well-staffed secretariat of at least ten to twenty people, perhaps more. The ordinance does say that the Cabinet secretary can assign “any government official” to assist them which may allow a proper secretariat to be formed, but otherwise, the Commission must ask for the ordinance to be amended.

Demand access to all secret detention centres: The commission should demand immediate access to all secret detention centres in the country. So far, only the cells within the Detective Branch of the police have been scrutinised. Although DGFI and RAB are known to have held disappeared people, no one has been granted access to their secret detention centres.

It’s possible that some people remain secretly detained, so the commission must demand access.

Investigate a wide range of cases: The commission should not limit its investigations to high-profile enforced disappearances but should instead investigate a much broader range of cases.

Bangladeshi law requires that a person be arrested and brought before a magistrate’s court within 24 hours. A disappearance occurs only when a person is taken by a law enforcement authority and their whereabouts remain unknown for over 24 hours. Disappeared persons in Bangladesh can be categorised based on what happens following their detention:

• Those “released” from secret detention but then formally arrested by the police, thus entering the criminal justice system. In these situations, the police fabricate a story about the circumstances of the arrest and never acknowledge any prior secret detention. This category includes those secretly detained for a few days to many years.
• Those released onto the streets.
• Those whose dead bodies are found.
• Those whose whereabouts still remain unknown.

The total number of people in the first two categories is unknown but likely to be in the thousands, though many of them will only have been disappeared for relatively short periods. The numbers of those detained for significant periods, and then taken into police custody or released will be in the hundreds. 

As of 2022, the human rights organisation Odhikar reported that, in relation to the third category of disappearances, there have been over 84 dead bodies found.

In relation to the fourth category, in 2000, Human Rights Watch had identified 86 people whose whereabouts remain unknown, whilst Odhikar reported in 2022 that the number was over 150 - with the difference attributable to the difficulty in confirming whether disappeared people had been released or not.

Since 5th August, new families have also reported disappearances so the numbers may be higher.

The commission should investigate all four kinds of disappearances.

Gather evidence from released individuals: The first two categories of disappearances—those released into the criminal justice system and those released onto the streets—provide a significant opportunity for evidence gathering. This is because the disappeared person remains alive and can provide detailed evidence about their initial detention, the location of their detention, what happened during detention, and the identity of those directly responsible. They may also be able to provide information about others secretly detained in the same location.

While it may not be possible to identify and investigate all of these cases, the commission should certainly investigate a large number, particularly those who were secretly detained for significant periods. In the current political environment, collecting this evidence should be relatively straightforward.

Investigate cases of unknown whereabouts or death: Families are understandably extremely concerned about what has happened to their relatives whose whereabouts remain unknown or whose bodies were subsequently found. In these cases, the commission should start by taking evidence from the families and determining if there are eyewitnesses to the initial detention, which is often the case. 

Finding further information about what has happened to these individuals will be difficult and will likely depend on the cooperation of people within the law enforcement system. This could include law enforcement officers, but also guards, cleaners, doctors, and administrative staff involved in secretly detaining large numbers of people. One hopes that some of these individuals will come forward voluntarily.

Encourage whistleblowers with legal protection: There is an important provision within the Inquiry Act that states: “No statement made by a person in the course of giving evidence before the Commission shall subject him to, or be used against him in, any civil or criminal proceeding except a prosecution for giving false evidence by such statement.”

This provision provides important protection to those within law enforcement who may wish to provide evidence. The commission must publicise this provision and encourage whistle-blowers from within the former Awami League law enforcement system to come forward. Without the assistance of people from these agencies, the truth is unlikely to emerge.

Avoid law enforcement involvement in investigations: The commission must not seek the assistance of the police and other law enforcement agencies in investigating any incidents, nor should these agencies be present when people are being interviewed. Their only role might be to ensure the security of commission members and staff, where required.

Secure documentation and prevent destruction: To detain people for significant periods, a bureaucracy is involved, and where there is bureaucracy, there is paperwork and documentation. Those involved in the secret detention system will be eager to lose or destroy such documentation.

Therefore, it is important that the commission uses its powers to obtain any available paperwork as soon as possible.

David Bergman is a UK-based journalist and can be followed on X at @TheDavidBergman