When a supposed National Cyber Crime Agency (NCCIA) official witness, who could not even produce a valid NCCIA identification card, is cross-examined in this alleged cybercrime case and declares that using the term “enforced disappearance” in a tweet amounts to propagating a terrorist narrative, the farce underlying both the First Information Report (FIR) and the trial stands fully exposed.

The absurdity deepens when it is pointed out that the very same term has been used repeatedly by Pakistan’s Supreme Court, the Islamabad High Court, and other high courts; by politicians, including the current chief minister of Punjab, Maryam Nawaz Sharif; and that Pakistan itself has an official Commission of Inquiry on Enforced Disappearances. Yet the witness insists that when others use the term, it does not constitute terrorist propaganda, but when the accused uses it in this particular trial, even in a similar legal and factual context, it suddenly does.

This contradiction lays bare not only the falsehood underpinning the prosecution but also its mala fide intent. It shows how, in today’s Pakistan, words are being weaponized – stripped of their legal meaning and context – to silence human rights defenders, lawyers, journalists, and all those who question or criticize the policies and actions of the state and its institutions.

Take the term “enforced disappearance.” The NCCIA would do well to educate itself. Enforced disappearance is not a political slogan; it is a well-established concept in international law and international relations, particularly since the aftermath of the Second World War.

The first documented instance of systematic enforced disappearances occurred during WWII, when Nazi Germany covertly abducted thousands of people from occupied territories under the infamous 1941 Nacht und Nebel Erlass – the Night and Fog Decree.

The Nuremberg War Crimes Tribunal addressed this policy directly. Its judgments relating to the Night and Fog decree constituted the first application of international law to enforced disappearances. Field Marshal Wilhelm Keitel, who was responsible for implementing the decree, was tried and executed for his role. As legal scholars have noted, the Nuremberg judgments established that conduct underlying enforced disappearance was prohibited under the customary laws of war and constituted a war crime carrying individual criminal liability (Brian Finucane, “Enforced Disappearance as a Crime Under International Law: A Neglected Origin in the Laws of War,” Yale Journal of International Law, 2010). These judgments also underscored that enforced disappearance amounts to a crime against humanity, not merely a war crime.

Against this backdrop, how can the government of Pakistan justify filing a cybercrime case against an individual simply for using the term “enforced disappearance,” accusing them of furthering a terrorist narrative?

The argument that referencing enforced disappearances necessarily accuses the state, law enforcement agencies, or intelligence services is also legally untenable. International law has always defined enforced disappearance within these parameters.

“In today’s Pakistan, words are being weaponized – stripped of their legal meaning and context – to silence human rights defenders, lawyers, journalists, and all those who question or criticize the policies and actions of the state and its institutions.”

 

A clear distinction exists between kidnapping by non-state actors and enforced disappearance. Kidnapping is an unlawful seizure carried out by individuals and is addressed under ordinary criminal law. Enforced disappearance, by contrast, involves the arrest, detention, or abduction of a person by state agents, or by non-state actors acting with the authorization, support, or acquiescence of the state, followed by a refusal to acknowledge the detention or concealment of the person’s fate or whereabouts.

This places the individual outside the protection of the law, making enforced disappearance not only a crime but a grave human rights violation.

This distinction is reflected consistently in United Nations’ resolutions and in the International Convention for the Protection of All Persons from Enforced Disappearances (ICPPED). Pakistan’s position further undermines the NCCIA’s claims because the country did not oppose two key UN General Assembly resolutions on enforced disappearances: Resolution 33/173 in December 1978 and Resolution 47/133 in December 1992. Both were adopted unanimously.

The 1978 resolution expressed deep concern over reports of enforced or involuntary disappearances resulting from excesses by law enforcement or security authorities and called on states to hold perpetrators accountable and assist in locating the disappeared. It also urged UN bodies to take action to prevent such practices. The 1992 resolution adopted the Declaration on the Protection of All Persons from Enforced Disappearance and paved the way for the ICPPED.

Although Pakistan is not a party to the Convention, its definitions reflect the consensus expressed in those earlier, unanimously adopted resolutions.

Pakistan’s Supreme Court has itself relied on the same definition, including in the Mohabbat Shah case. Article 1(2) of the ICPPED states that no exceptional circumstances — whether war, political instability, or public emergency — may be invoked to justify enforced disappearance. Article 2 defines enforced disappearance as the deprivation of liberty by state agents or those acting with state acquiescence, followed by a refusal to acknowledge the detention or concealment of the person’s fate.

Enforced disappearances are not unique to Pakistan. They have occurred across the world — from Latin America to Asia and Africa — particularly during the Cold War era. The Indian state, for instance, has been implicated in enforced disappearances in Indian Illegally Occupied Jammu and Kashmir since 1989, as well as in Punjab and Manipur during the 1980s and 1990s.

In many Latin American countries, the end of military dictatorships and the restoration of democracy led to the cessation of enforced disappearances and, in some cases, accountability for past crimes.

In Pakistan, however, impunity continues to prevail, despite our international commitments against enforced disappearance.

Recently, Pakistan’s military spokesman Lieutenant General Ahmed Sharif Chaudhry held a prejudicial and inflammatory press conference and commented on the subject matter of Imaan and Hadi’s ongoing trial. It reveals the real origin of the case, making it clear that it is no longer possible for any court in Pakistan to adjudicate upon the matter in a fair and unbiased manner.

This trial is about whether Pakistan will uphold the rule of law, respect international legal norms, and protect the fundamental right to speak the truth.

Shireen Mazari

The writer is a defense and security analyst and served as Pakistan’s Minister for Human Rights from 2018 to 2022.

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