This lesson examines the disappearance of persons, systems and social discourse in various Asian countries.

A. Disappearance of persons

On 12 July 2006, the AHRC reported on three cases of enforced disappearances that had been brought to its attention in Pakistan. All three victims were allegedly taken by military and police personnel without due process, and have not been heard of since. In one case, the Sindh police arrested Mr Mehar Uddin Marri, a journalist based in Badin district, Sindh province from the house of the Federal Minister of State Mr Mohammad Ali Malkani on 2 July 2006. Mr Marri was part of the delegation called by the minister to discuss land disputes in Badin. During the meeting, the minister accused Mr Marri of being 'anti-government' and of associating with the Balochistan resistance movement. Officers from the Chohar Jamali and Sujawal police stations then cordoned off the minister's home and arrested Mr Marri. Since his arrest his whereabouts are unknown, while the police deny arresting him in the first place. His family fears that Mr Marri might be in army custody and subject to brutal torture.

Similarly, police from Hub district, Balochistan province arrested Mr Mir Mitha Khan Marri on 13 January 2006, accusing him of involvement in the resistance movement. Although he claimed that he had no political affiliations, he was forced to accompany the police officers. Although the Hub Police Station House Officer, the Inspector General of Police and Chief Minister of Balochistan assured Mr Marri's family that he would be returned home, until today his whereabouts are unknown. According to an anonymous source in the army, Mr Marri is in army custody in Punjab province. His family believes he was arrested because he has the same surname as the Marri tribe, which has been organizing the Balochistan resistance movement.

In another case that occurred on 26 June 2006, chairperson of the Sindh Nationalist Forum and a publisher working at the Peace Publishing House, Mr Asif Baladi was abducted by unidentified armed men from Share Faisal Road in Karachi. Mr Baladi had allegedly received several threatening phone calls before he went missing. The Sindh Nationalist Forum was planning to hold the Sindh Message Conference in August and September aimed at raising the issue of army brutality in Sindh province, with the participation of several international experts. On June 27 and 28, his family received phone calls from Mr Baladi, who told them to give his passport to two men who would come to the house. On June 29, two unidentified men collected his passport and identity card from his house without revealing their identity. His family suspects that Mr Baladi might be in army custody, but his whereabouts remain unknown.  

According to local human rights groups, more than 600 persons have been reported as disappeared from Sindh and Balochistan provinces in the first half of 2006. Among them, more than 20 persons were found dead after allegedly being tortured [See further: AHRC UA-227-2006, 12 July 2006].

Thailand is another country in Asia with a large number of disappearances. While victims and their families have largely kept silent on this issue in the past, slowly they are making their voices heard. On 30 August 2006, the International Day for the Disappeared, the Asian Legal Resource Centre (ALRC) together with the Working Group on Justice and Peace, a local human rights group, submitted to the United Nations details of 12 disappearances in southern Thailand, arising from seven incidents between 2002 and 2005. In each of the cases, the Thai government has paid the families 100 000 Thai Baht (USD 2500) per disappeared person, but has never given any information about what happened to the accused, or conducted credible investigations to identify and hold the perpetrators accountable.

Since the government crackdown in the south in 2004, more than 1300 people are estimated to have been killed. Significant numbers of disappearances, extrajudicial killings and other abuses committed by the police and military are also believed to have occurred; however, documenting these has been difficult due to overwhelming fear and security concerns [See further: AHRC UA-286-2006, 1 September 2006 and UG-010-2006, 5 July 2006].

On 30 August 2006, the International Day of the Disappeared, the AHRC lamented the widespread disappearances and impunity throughout Asia.

In Sri Lanka and Indonesia the scars left by a history of disappearances have not been healed. A series of commissions documented the tens of thousands lost from 1989 to the early 1990s in Sri Lanka, but no perpetrator has ever been prosecuted. The families obtained some paltry compensation. In Indonesia the state has not gone any way towards resolving questions over disappearances or addressing the demands of families. Neither of these countries has done anything to prevent the prospect of future mass disappearances if conditions again deteriorate to the point that the authorities find such a policy expedient.

In Thailand and Pakistan, disappearances are ongoing. Opponents of the Pakistani government, journalists, writers, lawyers and others have been vanishing at an alarming rate: some 600 are reported to have fallen victim to the practice in 2006 alone. In the last five years 4000 persons are estimated to have been disappeared after arrest. Some bodies that have been recovered later show signs of severe torture. Still the country's military government is continuing to deny any knowledge of these incidents. In Thailand, a handful of families in the south have been paid some compensation by the government, but there have been no prosecutions and service personnel there have been indemnified under a law that is a blatant violation of the country's international obligations. Meanwhile, disappearances are known to be going on all over the country and yet a proposal by the forensic science institute for a missing persons investigation centre has been subjected to constant obstructions by the police and other parts of government. The lack of sincerity with which the Thai government has approached the problem of disappearances has been typified in the case of human rights lawyer Somchai Neelaphaijit: two-and-a-half years since his disappearance and despite huge pressure and recognition by the entire country--including the prime minister--that the police abducted and killed Somchai, the authorities are no closer to revealing what happened to him and obtaining justice for his family than they ever were. Even a recent attempted abduction of one of the country's National Human Rights Commissioners was met with shameful silence by the national administration.

Like in the south of Thailand, the northeast of India is a heavily militarised area where disappearances are reported to be going on constantly. Protest in Manipur, Assam and Nagaland against the Armed Forces Special Powers Act is muzzled by undocumented arrest, torture and killing. Those who survive are kept in detention under another severe law, the Unlawful Activity (Prevention) Act. Complaints against the armed forces are not taken up by civilian courts. Even the Supreme Court of India has failed to address the ongoing disappearances by turning down challenges to the legality of the laws used in the region.

Nepal has been among the lead countries in the world for forced disappearances during recent years, but political change has brought new hope and heavy expectations. By the reckoning of the National Human Rights Commission of Nepal in its first five-year report, some 1700 had been disappeared throughout the period of conflict between the armed forces and Maoists up to April 2006, when the absolute king was toppled by a popular uprising. During the conflict, and particularly since 2001 when the army was unleashed under new emergency regulations, the security forces used arbitrary arrest and detention, torture and other gross abuses together with disappearances under guarantees of complete impunity. Since April the incidence of reported abductions has dropped considerably; however, around a thousand cases remain unresolved [AHRC AS-201-2006, 29 August 2006].

The disappearance of any person is a violation of the basic rights to life, freedom and due process. Every individual has the right to be free from arbitrary arrest, abduction or torture, and all those accused of crimes have the right to a fair trial and due process. When persons are disappeared, when their identity is callously taken away, a gross act of abuse is committed. This abuse is suffered not only by the disappeared individuals, but also by their families.

Disappearances cannot occur without state recognition and involvement, particularly when widespread and systematic disappearances and extrajudicial killings occur. This means that governments have official policies for conducting enforced disappearances. Such policies require the disabling of certain institutions and removal of controls.

B. Disappearance of a system

Together with the disappearance of persons, governments must also disappear a system; the system of rule of law, of human rights. This must start with the institutions meant to protect and defend their fellow citizens, the police and army. Without regard for the usual due process procedures, policemen and soldiers are now told to 'disappear' people. They no longer keep records of the arrests and detention of victims. Criminal investigation becomes a mockery. Postmortem procedures are ignored in order to ensure that bodies can be disposed of secretively. Not only is this done by overlooking present laws and regulations, but also by introducing new ones. The phenomenon of manipulating law as a means of social control can be seen throughout history, from Nazi Germany, apartheid South Africa, to Pinochet's Chile (as discussed in Lord Steyn's Attlee Foundation Lecture of 11 April 2006 www.attlee.org.uk/Transcript-Steyn.doc).

Similarly, in Sri Lanka, where as many as 60 000 persons were abducted and killed without a trace between 1989 and 1992, two preceding indemnity acts and emergency regulations removing all limitations to the powers of law enforcement officers, ensured that no one was ever punished. In Bangladesh an indemnity law was introduced to protect the police and other state officials responsible for atrocities under "Operation Clean Heart" in 2002 from the courts. In the words of the UN Special Rapporteur on extrajudicial killings, the emergency decree operative in southern Thailand makes "impunity look like the official policy" of the government.

Once criminal investigation procedure and the behaviour of law enforcement agencies are removed from rule of law norms and standards, only anarchy and violence is possible. Officers who are used to engaging in illegal arrest, detention, torture and killing cannot go back to earlier norms. They will be unable to perform any tasks of normal law enforcement with a sense of conviction. They will have developed physical and psychological skills to deny the rule of law rather than to uphold it.

A programme of disappearances cannot be confined to a particular locality, no matter the intention of its planners. Once abductions begin, the state as a whole must deny them. Internal distrust and confusion increases and causes permanent damage to the functioning of government. The cumulative result of disappearances is a deep cynicism in society. The value of life and truth, prospects of government adhering to standards of transparency and accountability, and sense of basic human decency are all gravely undermined.

This can most clearly be seen in countries such as Sri Lanka or Indonesia, where disappearances of decades ago still haunt both society and state. When enforced disappearances are not punished, a social climate is created which has no trust in institutions, and thereby there is no social stability. Furthermore, such instability and impunity can only lead to further violence, as presently occurring in Sri Lanka. During the 1980s, armed men travelling in white vans without number plates abducted thousands of persons who were never seen again. These vans are now reappearing in the Jaffna peninsula. Just after midnight on 11 September 2006, 15 armed men broke into a house on the Jaffna peninsula. After much searching and questioning, they forcibly took one of the family members away with them. The men had come in a van and two motorbikes, mostly dressed in black.

Not surprisingly, the person's whereabouts are not known since then, even though complaints have been made to the police and other authorities. The abducted person has not been seen or heard of ever since although the family members have made complaints to the police and all other authorities. Will he become another statistic, one more addition to the hundreds of disappearances reported in recent months from the North and the East, as well as an addition to the tens of thousands of people who have disappeared in Sri Lanka in the recent decades?

According to the Human Rights Commission of Sri Lanka, 419 persons have disappeared from the Jaffna peninsular since December 2005. Not all of these disappearances are attributed to 'armed men in white vans without number plates', which is usually the military. The Liberation Tigers of Tamil Ealam (LTTE) and other militant Tamil groups alleged to be working with the military have also been accused of such abductions.

In the above case however, family members suspect that the military was either directly or indirectly responsible. Such complicity comes as no surprise; reports of the Commissions appointed to investigate earlier disappearances within the country place the responsibility squarely on the shoulders of state agencies.

The AHRC notes that the Sri Lankan state continues to use enforced disappearance as a legitimate means to deal with 'terrorism'. When opponents of the government, such as the LTTE or the JVP (Janatha Vimukthi Peramuna or Peoples' Liberation Front) use violence, the state sees fit to respond with similar violence, including extrajudicial killings and enforced disappearances. The notion that the violence of terrorism must be dealt with by equal or more ferocious violence is an unquestioned part of the state ideology, regardless of which government is in power.

In the latter part of the 1980s, then deputy minister of defence Ranjan Wijeratne, was known as a leader who openly advocated and carried out this policy; disappearances during that period are officially cited at 30 000, while non-state sources cite higher numbers. Today, it is commonly accepted that only a handful of these victims were in fact insurgents, although even then they should not have been disappeared. The reports of the Commissions of Disappearances mentioned above indicated that most cases of disappearances happened after securing arrest, which often took the form of abduction.

For leaders like Ranjan Wijeratne, disappearances were the most practical method of dealing with insurgency; he told the parliament that if this was to be done through legal means, it would take too much time. Enforced disappearances do away with the necessity for arrest and detention, which can create many legal difficulties; the keeping of political prisoners, which is another awkward predicament; conducting trials, which requires security arrangements, and other situations that create practical problems for state agents. Disappearances also ensure the erasure of all evidence as they most often end in the secret disposal of bodies. The mistaken arrest of innocent persons in the use of this 'easy method' is unavoidable according to Ranjan Wijeratne, who termed such incidents as 'mere excesses'.
 
This ideological position has never been clearly repudiated by any successive Sri Lankan government. Furthermore, Sri Lanka today has no government authority with the capacity to efficiently investigate disappearances such as the one mentioned above. For several years the AHRC has criticized the deep impasse in the state's criminal justice system which makes it impossible for any gross abuse of human rights to be credibly investigated or prosecuted. There have been no attempts to cure this situation [See further: AHRC AS-213-2006, 13 September 2006].

Under these circumstances, the recent conviction in Argentina of Julio Simon is an inspiring judgment.

On August 4 a court in Argentina sentenced Julio Simon to 25 years in prison. Simon, who is now 65, was a police officer who in late 1978 was among those responsible for the abduction and killing of José Poblete and Getrudis Hlaczik. The couple was held incommunicado for at least a month before being killed. Their baby daughter was given to the family of an army officer, and it was not until she reached adulthood that her real identity was discovered. Simon and others like him were granted immunity from prosecution for the abduction and killing of government opponents from 1976 to 1983 under subsequent amnesty laws, but in 2005 the country's Supreme Court declared the amnesties illegal. Simon is the first police officer to have been sentenced for his part in the forced disappearances that rocked the country through those years, due in large part to the lifelong vigorous struggle by families of victims to obtain justice for their loved ones. Another senior police officer is facing similar charges in connection with a further six cases.

The Asian Human Rights Commission (AHRC) joins the applause that was heard throughout the courtroom in Buenos Aires when Simon was convicted last Friday, and which is now echoing around the world. As many as 30,000 persons were abducted during the seven-year "Dirty War", Poblete and Hlaczik being but two of them. However, to obtain a landmark judgment is a significant event and it can be expected that it will open the way for further progress, not only in Argentina but wider afield too [AHRC AS-187-2006, 8 August 2006].

C. Disappearance of social discourse

The conviction of a criminal such as Julio Simon is possible not only when there is a proper legal system in place, but when there is a certain social climate. Systems are not made on their own, nor do they function as such. In fact, systems tend to be greatly affected by the social climate. In a large number of Asian countries, legal systems are ineffective, fall short of international standards and in some they may even be non existent. In such situations, public demand for change and effective implementation of international standards is crucial to the initiation of reform. On the other hand, even when there are adequate legal systems in place, without public demands for effective prosecution of criminals, they are unlikely to occur.

So why is there an absence of a social climate condemning disappearances--and other human rights abuses--in the majority of Asian countries? The answer can be found in the lack of coherent social discourse regarding these issues, which is perpetuated by missing terms of reference. Societies are held together by commonly understood words. When meanings of words are held in common, people work towards shared objectives. When meanings are lost, they become confused; institutions malfunction and the consequences can be disastrous.

For instance, a judge is by norm a person who is trained to assess and decide disputes based upon an impartial reading of the law and the standards of civilized society. The decisions given by the judge must be rational, explained and open and records of these are kept to show how a decision was reached. The decisions of a judge may relate to life and liberty, and therefore, they must be made with the greatest care. These are among the most serious decisions put before society.

A judge defends society's values: above all, the value of life. Although not appointed as a guardian of morality--but rather only as a guardian of the law--a judge resolves moral disputes by preventing vengeance from becoming the means by which conflicts are resolved. The decision of a judge is not the same as the decision of a mob. It is not the same as the decision of a policeman. For this reason, it occupies a special place.

Where forced disappearances or extrajudicial killings occur, the power of decision making that is normally with the judge is passed to the hands of police or military personnel, or persons working for them. They act as the arbiters of life and liberty. They do not keep records of what they do. They act secretly. They do not reveal anything to the public or other concerned government authorities and groups. They do not follow an established procedure. There is no way to appeal against them. In effect, they are usurping the powers of a judge.

When the executive or military take the powers of judges, people become confused about the meanings of different words. The distinct and common meanings of 'judge', 'policeman' and 'soldier' are lost. There is uncertainty and instability. Sensible discussion about social problems becomes difficult, perhaps even impossible.

Forced disappearances or extrajudicial killings attack the foundations of judicial power. Its entire authority is cast into doubt. When the state can detain and kill people without reference to due process, the judiciary becomes irrelevant, and even ridiculous. The judiciary depends upon public confidence for its survival and effectiveness. It cannot survive if it is nothing more than the butt of jokes. When it is reduced to this, it cannot function to protect morality through adherence to law.

Without the judiciary to protect morality, there is an inability to distinguish between good and bad behaviour. Of course, ideas about good and bad vary from time to time and place to place. Here the importance of morality is not what is defined as good or bad per se but how society uses this distinction to create a common understanding--hence the need to distinguish between that which is more serious and that which is less serious.  
 
The loss of any distinction between serious and trivial decisions, that is, the ability to make moral choices, undermines the meaning of life itself; what meaning does the question "Life or death?" hold when there is no distinction between what is serious and what is trivial? When the distinction between life and death itself is reduced to casual considerations, the entire meaning of life, a society and its traditions is also trivialized. In this way people are diminished. Without the morality attached to the value of life, no other forms of morality are valid. This is the ultimate effect of forced disappearances or extrajudicial killings on a society, which can be seen in the Asian societies described in the previous sections.

Questions For Discussion

1.    Do you know any victims of forced disappearances? Are there many such victims in your country? Do these victims share any common characteristics (such as occupation, ethnicity or political affiliation)?
2.    Are people speaking out against disappearances? If not, why?
3.    In your opinion, what is the relationship between your country's legal system and enforced disappearances?
4.    Discuss what you can do to address this serious human rights abuse.