• 失踪罪|戴啟思
  • 2020-09-19    

 

'Sometimes, when one person is missing, the whole world seems depopulated'. (Alphonse de Lamartine, 1790-1869)

I missed an important date in the human rights calendar on 30 August. It was the United Nations International Day of the Disappeared.

People disappear all the time. Sometimes it is for a short time. Sometimes longer. Long or short, disappearance brings anxiety and heartache to family members who long to know the whereabouts of loved ones.

Some disappearances are voluntary acts. A person may want to re-order their life, and they may feel that it can only be achieved by moving far away and starting again. The disappearing person can mitigate the upset felt by friends and family by leaving a message explaining why they are dropping out of their lives. Very often, the disappeared will send the occasional letter to friends and family to provide some reassurance.

But many disappearances are not voluntary. They can occur in times of strife that causes mass displacement of civilians or after a natural disaster like the 2004 Indian Ocean tsunami. Adults and children become separated and, after a time, the separation becomes a disappearance because there is no news from the person that has gone. Organizations like the International Committee of the Red Cross, experts in tracking people after a disaster, cannot throw light on the whereabouts of the missing person.

In this situation, people will become reconciled to the loss after a time. They may hope against hope that the missing person will one day walk back into their lives again, but they will know that the likelihood is that their loved one is dead.

The most painful kind of disappearance is the enforced one. A person disappears from an ordered and regular life into a bureaucratic black box created by the State. The pain inflicted on families and friends is acute. The disappearance is, obviously, not voluntary. Neither is the person caught up in a life-or-death disaster when you have at least the comfort if it can be so described, of knowing that the person is likely to be just another casualty.

The pain caused by enforced disappearance is worse. It lies in knowing that the missing person is within state custody but not knowing whether he or she is okay, where they are and what may happen to them.

This state of uncertainty and worry is not a consequence of enforced disappearance. It is its very purpose. The kidnapping state wishes to impress on the people that it has the power to make you disappear. It instils fear and apprehension in people who are not family, but who know the person disappeared, like work-colleagues. The message is, "Watch your step! You could be next."

The precursor to modern enforced disappearances was the Nacht und Nebel ('Night and Fog') decree that was promulgated in Nazi Germany in December 1941. The law purported to address a 'national security' issue in the European countries that Germany occupied since 1939. Some people in the occupied territories resisted by committing acts of sabotage or by attacking troops. Rather than try captured resistance figures before military courts in the occupied lands, the decree authorized secret removal to Germany for trial before special courts.

If the special court did not sentence a prisoner to execution, the order was for indefinite detention in a concentration camp. In either case, execution or custody, no news of the court order would be published. When the decree issued, the SS Chief Himmler acknowledged that the aim of the Nacht und Nebel measures was to intimidate the civilian population.

After lengthy consideration, it is the will of the Führer that the measures taken against those who are guilty of offences against the Reich or against the occupation forces in occupied areas should be altered. The Führer is of the opinion that in such cases, penal servitude or even a hard labour sentence for life will be regarded as a sign of weakness. An effective and lasting deterrent can be achieved only by the death penalty or by taking measures which will leave the family and the population uncertain as to the fate of the offender. Deportation to Germany serves this purpose."

After the war, the treatment of prisoners under the Nacht und Nebel decree was classified as a war crime.

Notwithstanding this example of deplorable conduct, enforced disappearances continued after the war in totalitarian states. In the 1970s and 1980s, they were prevalent in some South American countries, including Paraguay, Chile, Brazil and Argentina. They were used to deal with inconvenient political opponents who were almost always murdered. The result was a widespread state of fear.

Enforced disappearances have not gone away. They continue with depressing frequency all over the world. Such was the concern of the international community that in 2006 the United Nations adopted an international convention about enforced disappearances ('International Convention for the Protection of All Persons from Enforced Disappearances').

The Convention requires states that sign up to it to prevent and punish enforced disappearances in their territories and provide means of redress to persons affected by them. The Convention provides a clear definition of what constitutes an enforced disappearance.

"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 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."

Since 2006, ninety-eight countries have signed the Convention, and sixty-three have ratified it signifying that they agree to be bound by its provisions under international law. It is gratifying to see that the South American countries that were the worst offenders in perpetrating enforced disappearances have all ratified the treaty. The United States of America has not signed the Convention. Nor has the People's Republic of China.



About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

探索驚奇精彩的 wONdEr 故事,請LIKE 我們的Facebook Page,並設定為「搶先看」:

https://www.facebook.com/wondermedia.hk/

----------------------------

請即預購《噴火30年壹驚艷 性感女星典藏集》特刊,當年《壹週刊》鏡頭下的李嘉欣、黎姿、朱茵、舒淇、邱淑貞等三十位經典港姐、性感女星,一一復刻,艷壓全港。

自取優惠價 港幣$83【按此搶購】

包運費價 港幣$110【按此搶購】

----------------------------

守住新聞自由 和你撐壹週刊計劃 每月港幣$300起

按此了解更多

-----------------------------

英國移民、升學、就業、買樓生活資訊!

立即加入「走佬去英國 - BNO 5+1 移民資訊研究所