Significance of the Convention on Enforced Disappearances in Asia 1
By Mugiyanto 2
The yearly reports of the United Nations Working Group on Enforced or Involuntary Disappearances (UNWGEID) in the last few years are evidences enough to counter some arbitrary assumption that enforced disappearances are phenomena of the past and unique only to Latin and Central American countries. The reports indicate that Asian region contributed to most cases acknowledged by the Working Group.3 The continuous finding and reporting by the non-government organization and victims’ association on the cases in Asia also proves that these heinous crimes are still daily practices, and in some countries the situation is very alarming. Furthermore, even if there are no more cases of enforced disappearances at the current time, but the government fails to clarify the fate and whereabouts of the victims, they are considered continuous crimes.4
If we look at the history, enforced disappearance was first used by the Nazi in 1941 in the “occupied territories” especially in the extermination of the Jews. It was subsequently employed by the military and dictatorial regimes in Asia and Latin America and later even by formally democratic regimes, including those in Asia.5 The 9/11 tragedy in New York in 2001 that gave pretext to “war on terrorism” agenda launched by the United States unfortunately provides new grounds for some governments, mostly in Asia and Middle East to commit enforced disappearances against those considered “terrorists”.
In contradiction to the continuing practices of enforced disappearances in Asia, no single country in the region put enforced disappearances as a separate crime in their domestic legislation. Few countries such as the Philippines and Nepal have been in the process adopting the draft bill on enforced disappearances, but the way seems to be not an easy one. Some other countries including Indonesia put enforced disappearance a crime, but under the definition prescribed in the Rome Statute of the International Criminal Court which is difficult to prove.
Besides, as compared to Latin America, Europe and Africa, Asia also does not have regional instruments or mechanism to deal with such crimes in form of a convention or a court. What we have in the region which is still in initial step is the ASEAN Intergovernmental Commission on Human Rights (AICHR) which applies only in the Member State of ASEAN in Southeast Asia sub-region.6
Regional situation vis-a-vis enforced disappearances
The lack of political commitment of the most Asian governments, and the absence of the national and regional mechanism in combating enforced disappearances have made Asia a fertile ground for the practices of enforced disappearances.
In war-torn state of Jammu and Kashmir of India, around 8,000 people disappeared since the onset of armed conflict across the state in 1989, that are generally attributed to Indian security forces. The Association of Parents of the Disappeared Persons (APDP) has recently found more or less 2, 900 unmarked graves in cemeteries of 18 villages near the Line of Control, dividing Kashmir between India and Pakistan. Families believe that their disappeared relatives could have ended up in these unmarked graves. No single case was brought to court and the victim’s rights have been denied although India already signed the Convention on Enforced Disappearances in February 2007.
In Indonesia, the government still has to follow up the recommendations of the National Commission on Human Rights (Komnas HAM) and the Parliament in order the government to take comprehensive measures which includes the investigation and prosecution the cases of enforced disappearances of pro democracy activists that happened before the fall of the dictatorship in 1997-1998.7 Human rights organization such as the Commission for the Disappearances and Victims of Violence (KontraS) and the Indonesian Association of Families of the Disappeared (IKOHI) also documented thousands of cases that happened in the past from 1966 – 2004 that need to be resolved by the government. Follow up needs to be taken by the Government of Indonesia especially because it signed the Convention on Enforced Disappearances in September 2009 and plans to ratify it in the very near future.8
In Nepal, massive human rights violations, including enforced disappearances took place during the ten year conflict between the government of Nepal and the Communist Party of Nepal-Maoist (CPN-M), which ended in 2006 by both parties signing the Comprehensive Peace Agreement. However, the cases of disappearance remain unresolved up to this day despite efforts of the Nepali government to institute some legal reforms. The draft bill for the establishment of a Truth and Reconciliation Commission was strongly criticized by civil society, for it allows granting of amnesties to the perpetrators. The same is true with the anti-disappearance bill which was approved in a form of an ordinance but was retracted following clamors of foul play by the national and international human rights organizations.
In Pakistan, thousands of persons have been subjected to enforced disappearance, mostly from Balochistan province and from the North Western Frontier Province, Sindh and Punjab. The number of cases has sharply increased since Pakistan joined the “war on terror” campaign. Still, as a result of the constant protests and petitions in courts by families of the disappeared, and with the clear resolve on the part of the Supreme Court by issuing orders to the military to produce the detainees before the courts, the government has finally acknowledged the custody of dozens of alleged terror suspects, but in most cases, the intelligence agencies continue to defy these judicial orders in the name of national security.
In the Philippines, according to the reports of FIND and Karapatan, more than 2,000 people are victims of enforced disappearance since martial law up to the present. Disappearances are mostly carried out as a result of the counter-insurgency operations of the government against the communist and secessionist groups.
Although, the number of cases of disappearances had dropped significantly in 2007 after the visit of Mr. Philip Alston, then UN Special Rapporteur on Extrajudicial Execution to the country, the political persecution against known progressive and opposition leaders by slapping them with trumped-up criminal charges, continues unabated. But remains, impunity still holds sway as the Philippine government has failed to pass a domestic legislation penalizing enforced disappearance and neglects its voluntary pledge to the UN Human Rights Council stating that it would sign and ratify the Convention on Enforced Disappearances.
In Thailand, enforced disappearance continues unabated. The recent escalation of political violence in the central district of Bangkok between the police forces and the Red-Shirt protesters and the ongoing military operations in southern provinces are feared to have resulted in more cases of disappearances. While recent cases have not been fully investigated by the authority, the perpetrators of past human rights violations particularly the military crackdown on pro-democracy demonstrators in Bangkok in May 1992 remain unpunished. The unresolved disappearance case of Atty. Somchai Neelaphaijit, a human rights lawyer who disappeared in Bangkok in 2004 also continues to be a litmus test to the Thai judicial system.
In Timor-Leste, victims of gross violation of human rights under the Indonesian occupation from 1975 to 1999 are also still waiting for justice. The Truth, Reception and Reconciliation Commission (CAVR) of Timor-Leste, and the joint Commission of Truth and Friendship (CTF) with Indonesia have done many to them in term of truth. But in term of justice and prosecution to those most responsible, many thing still have to be done. Hundreds of Timorese children separated from their parents during Indonesian occupation living in Indonesia are still trying to identify them self and meet their relatives that supposed to be facilitated by the government of Timor-Leste and Indonesia. In terms of the Convention on Enforced Disappearances, Timor-Leste President Ramos Horta that AFAD met in 2009 as well as parliament member said that they are keen to ratify it.
Sri Lanka is even very bad with extrajudicial killings and disappearances in the 1980’s and 1990’s. Before those cases was thoroughly and justly resolved, the current government of President Mahinda Rajapaksa is even in very serious pressure by international community to deal with possible commission of war crimes and crimes against humanity during the massive military operation against the Tamils in 2008-2009.
In Bangladesh, one of the leading human rights organizations Odhikar reported several cases of enforced disappearances 2010 and 2011. The Odhikar has carried out fact finding missions on some incidents of enforced disappearance. Due to intensive national and international campaigns against extra-judicial killings; some decisions were passed by the High Court Division of the Supreme Court. Based on the reports by AFAD member Odhikar, Bangladesh should and will ratify the Convention on Enforced Disappearances although it might not be in a very near future.
The birth of the Convention on Enforced Disappearances
It takes some three decades of efforts that finally on December 20, 2006, the United Nations General Assembly adopted the International Convention on the Protection of All Persons from Enforced Disappearance (CED). The Convention became the latest main international treaty on human rights. Different from other international convention, the Convention on Enforced Disappearances is a result of a long struggle initiated by the families of enforced disappearances, mostly those from Latin American countries such as Argentina, Chile, Brazil, Guatemala and others. They are the first to campaign at the international level with the support of international NGOs and draw international attention on the existing practices of enforced disappearances in their countries and call on the international community, particularly the United Nations to address the problems.
Because of this struggle, in 1980 the United Nations established the first thematic mechanism to deal with enforced disappearances called the United Nations Working Group on Enforced or Involuntary Disappearances (UNWGEID). The Working Group is composed of 5 independent experts representing geographical division of the UN whose mandate is essentially of humanitarian nature, namely it acts as a channel of communication between the family of the victim and the government concerned to clarify the fate and whereabouts of the disappeared persons. As such, the Working Group lacks any binding power as well as judicial competence and does not have the competence to condemn a State for human rights violations, or to establish individual responsibility, or to order serious and thorough investigations, or to award any measure of reparation to victims of enforced disappearance.
Later on December 18, 1992, the United Nations General Assembly unanimously adopted the United Nations Declaration for the Protection of all Persons from Enforced or Involuntary Disappearances under the Resolution 47/133. This declaration, although non-binding, reproduces some generally recognized customary rules and establishes the principles that shall guide and govern all States in the prevention and suppression of the practice of enforced disappearance.
Another historical moment indicating the victory of the efforts by families association, NGOs and some States was when after long and difficult negotiations since 2002, a text of the Convention on Enforced Disappearances was finally approved on 23 September 2005 by the drafting working group led by the late Ambassador of France, Bernard Kessedjian. It was then adopted by the UN Human Rights Council on 27 June 2006 and then unanimously adopted by the UN General Assembly in New York on 20 December 2006.
What is very remarkable in the process of negotiating the draft instrument (the Convention), is that the families associations such as the Latin American Federation of Association of Families of Disappeared Detainees (FEDEFAM), the Asian Federation Against Involuntary Disappearances (AFAD) and others were given very significant chances to participate and intervene. This makes the Convention becomes very strong and significantly reflect the needs and interests of the victims.
If we look at the status of the Convention on Enforced Disappearances, it has 30 ratification and 90 signatures. Of the 30 ratification, only 13 recognize the competence of the Committee on Enforced Disappearances. Of the 30 ratifications, only three are from Asia, namely Japan, Kazakhstan and Iraq. So if we look at the composition, Asia is still very much underrepresented. The Convention entered into force on December 23, 2010, 30 days after the deposit of the document of ratification of the 20th ratification, namely Republic of Iraq to the Secretary General of the United Nations.9
Some important provisions of the Convention on Enforced Disappearances
As a campaign and education material, AFAD published a “Primer to the Convention for the Protection of All Persons from Enforced Disappearances” which helps public to understand the background of the Convention, what it is and why we particularly in Asia need the Convention. Some of the important points are to be mention here.
1. The Convention establishes the non-derogable rights of everyone not to be subjected to enforced disappearance. No circumstance whatsoever, be it a state or threat of war, internal political instability or any other public emergency, may be invoked to justify an enforced disappearance. The Convention holds that enforced disappearance constitutes an offense under criminal law and it considers this widespread or systematic practice of enforced disappearance a crime against humanity. Indeed, enforced disappearance is a crime under international law.
2. The Convention provides for the right of the relatives of the disappeared persons and of the society as a whole to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate and whereabouts of the disappeared person. According to the Convention, each State Party shall codify enforced disappearance as an autonomous offense under its criminal law and punish it by appropriate penalties which take into account its extreme seriousness. State Parties to the Convention shall cooperate in searching for, locating and releasing disappeared persons and, in the event of death, in exhuming and identifying them and returning their remains. Each State Party shall take appropriate measures in this sense.
3. The Convention contains a provision that emphasizes the right to form and participate freely in organizations and associations supporting the cause of the disappeared. The Convention also provides that:
• Enforced disappearance is a continuing offense and statutes of limitation for criminal proceedings shall not apply until the fate and whereabouts of the victim are established with certainty;
• Enforced disappearances constituting crimes against humanity (systematic and widespread practice) are imprescriptible;
• No one shall be held in secret detention;
• All States Parties shall establish and maintain up-to-date official registers of persons deprived of liberty and, upon request, provide some basic information on people deprived of their liberty to judicial authorities and any person with a legitimate interest in this information;
• In cases of enforced disappearance, “victim” means the disappeared person and any individual who has suffered harm as a direct result of an enforced disappearance; and
• All victims (in the broad sense stated above) of disappearance have the right to obtain reparation and prompt, fair and adequate compensation.
The Convention on Enforced Disappearances fills the gap 10
There have been several international and regional bodies tasked to address the issue of enforced are the following such as the United Nations Working Group on Enforced or Involuntary Disappearances (UNWGEID), European and Inter-American Court of Human Rights and the African Commission of Human and Peoples’ Rights, International Criminal Court (ICC), United Nations Human Rights Committee (HRC) and International Committee of the Red Cross (ICRC). But they all have their own limitation.
The United Nations Working Group on Enforced or Involuntary Disappearances (UNWGEID) established in 1980, for instance, lacks any binding power as well as judicial competence. Its mandate is essentially humanitarian and despite much valuable work, it has not been able to stop the spread of enforced disappearance. The regional mechanisms apply only for countries in the region respectively.
On the other hand, the ICC is a Court of international criminal law which establishes criminal responsibility of individuals for crimes against humanity, genocide, and war crimes, and not individual cases of enforced disappearances as defined by the Convention. Victims of enforced disappearances and their relatives do not have direct access to this international tribunal, for it is so created so as to condemn international criminals and not to primarily protect the rights of the victims.
For its part, the Human Rights Committee (HRC) serves as the monitoring body of the International Covenant on Civil and Political Rights (ICCPR) for all States that have ratified it and its First Optional Protocol. As many States are Parties to the Covenant, it has a colossal workload and a huge backlog that is almost paralyzing its action. The HRC is a quasi-judicial body and its views on individual communications lack a binding power. Families have always insisted that the Convention should be a fully bodied instrument in its own right with its own monitoring organ.
The ICRC works to guarantee the implementation of the Geneva Conventions and their Additional Protocols. However, its competence is limited to situations of conflict and to international humanitarian law. Further, the ICRC lacks any binding or judicial power and all its actions are highly confidential and strictly humanitarian.
Conclusion
Enforced disappearances are continuously practiced by governments in many countries in Asia with different pretexts, such as national security and stability, war against terrorism, war against separatism, war against communism and others. It happens in different nature of government from military regime, authoritarian regime, and sadly it happens also in the so called democratic government. This ongoing practice brings about masses of cases reported to the United Nations Working Group on Enforced or Involuntary Disappearances that make Asia contributes most of the cases reported by the Working Group.
On the other hand, there is an absent in national and regional level for legislation able to tackle these massive crimes. No single country in Asia criminalized enforced disappearances. This situation then resulted in massive of neglected victims unable to access their rights to truth, justice, and reparations.
However, some countries show progress in their willingness to dealing with the phenomena by signing and ratifying the Convention on Enforced Disappearances (Japan, Kazakhstan, and Iraq already ratified, India and Indonesia signed) or in the process of doing so such as Thailand, The Philippines, Nepal, Timor-Leste, South Korea and others.
In the global world where human rights and fights against impunity has been a common language and spirit, each country should makes efforts to its best to move and transform words into reality. Ensuring the protection and fulfillment of human rights should then be our transformed commitment. Only this way we can measure our country as a democratic and civilized country. This all can be done initially by joining the international justice and human rights systems that have been agreed by our government in the United Nations. In the context of global fights against enforced disappearances, ratification and implementation of the International Convention for the Protection of All Persons from Enforced Disappearances should be our common goal.
Footnotes:
1. The paper is presented at the Advocacy Meeting on the Accession to the International Convention for the Protection of All Persons from Enforced Disappearances held in Dhaka, Bangladesh on December 10, 2011 by Odhikar.
2. Mugiyanto is the Chairperson of the Asian Federation Against Involuntary Disappearances (AFAD). He himself is a survivor of disappearances in Indonesia in 1998 when Indonesia was still under the authoritarian rule of General Suharto.
3. In the report released on January 26, 2011, the UNWGEID reported that the total number of cases transmitted by the Working Group to Governments since its inception is 53,337. The number of cases under active consideration that have not yet been clarified, closed or discontinued stands at 42,633 in a total of 83 States. The Working Group has been able to clarify 1,814 cases over the past five years.
4. Article 8, paragraph 1 (b) states that the statute of limitation “Commences from the moment when the offence of enforced disappearance ceases, taking into account its continuous nature”.
5. See the report submitted on January 8, 2002 by Mr. Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearances, E/CN.4/2002/71.
6. On 23 October 2009, the Heads of State/Government of ASEAN presided over the Inaugural Ceremony of the ASEAN Intergovernmental Commission on Human Rights (AICHR), during which they also announced the “Cha-am Hua Hin Declaration on the Inauguration of the AICHR” to pledge full support to this new ASEAN body and emphasize their commitment to further develop cooperation to promote and protect human rights in the region.
7. Besides the prosecution in the Human Rights Court, the Parliament also recommend the President to find out the 13 people still disappeared, to provide the compensation and rehabilitation foe the victims and to ratify the Convention on Enforced Disappearances.
8. As mentioned in the National Plan of action on Human Rights 2011-2014, Indonesia supposed to ratify the Convention on Enforced Disappearances in 2013. But the human rights organization such as KontraS and IKOHI are confident that the ratification could happen sooner than planned.
9. See the UN website: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-16&chapter=4&lang=en
10. Most points here are taken from the Primer on the Convention published by AFAD
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