Friday, December 02, 2011

Prosecuting Serious Crimes in Asia

Prosecuting Serious Crimes in Asia; Perspective of the Victims*
By Mugiyanto**

“Let alone for the massacre in 1965,
even for the case that happened in 1998, no single perpetrators are held accountable, because the government is protecting them”
a son of a victim of massacre in 1965 from Semarang, Indonesia.***

Impunity is still a major problem in Asia. The countries in the continent still face great challenges in their obligations to respect, protect and fulfill the human rights of their people. Many of Asian governments are also tasked not only to deal with the legacies of atrocities during the armed conflicts and authoritarianism in the past, but also to make sure that similar systematic and widespread violence will not happen again. It particularly is so in the situation of the so called democracy or transition to democracy like most of Asian countries. The challenges are even tougher in countries where violence is still ongoing, such as with the pretext of “war against terrorism” or undemocratic regime is still standing. It is in this context that justice, truth, reparation and guarantee of non recurrence are the outcry of the victims of the gross violations of human rights in the region.

In this short paper I will briefly share victims’ perspective in some countries in Asia, particularly the victims of enforced disappearances, in relations to how justice and other victims’ rights should be served and delivered.

Many serious crimes, less remedy
The culture of impunity continues to reign across territorial boundaries in Asia. The situation prohibits the victims’ search for justice particularly on the issue of enforced disappearances. The violation continues to be a common practice specifically to quell dissidents, insurgents and their supporters and eliminate suspected terrorists. In many cases, sadly speaking, disappearances happen in the so called democratic regimes.

In Bangladesh, one of the leading human rights organizations ODHIKAR reported that 16 persons have ‘disappeared’ in 2010 and two persons have disappeared so far in 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. But prosecutions against those most responsible is still a long way to go, despite the fact that Bangladesh is one of the few countries in Asia that ratified Rome Statute of the International Criminal Court (ICC).

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, who 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.

In Indonesia, two Ad Hoc Human Rights Courts had been carried out for the case of gross violations of human rights in East Timor and Tanjung Priok and one Human Rights Court for the Abepura case in Papua. However, of the three courts, all the perpetrators have finally been acquitted. The existing Human Rights Courts in Indonesia have been unable to deliver justice. Much has to do with the independence of judiciary and the capacity of the law enforced, particularly judges and prosecutors. Other has to do with the weaknesses in the legislation (The Law No 26, 2000 on Human Rights Court), which accordingly it is important for Indonesia to soon ratify the Rome Statute of the ICC.****

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 terms of prosecution, so many things are still to be done.

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. Prosecution of those responsible for the serious crimes seems to have no hope in the near future.

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.

Prosecution of the existing serious crimes has been the weakest point of the Philippines road to justice. But there is a hope in the near future especially because Philippines is the second last country from Asia that acceded Rome Statute this year before Maldives. Hopefully this development in the Philippines be the answer to the pray of Edita Burgos, the mother of the disappeared victims in 2007 Jonas Burgos who once said, “Yet even as I embrace them for forgiveness, I pray for justice to be served. I hold them, the military and their commander-in-chief accountable for my son”.

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 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.

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.

Other Asian countries including Cambodia, Burma and China have also problems with commission of serious crimes now and then, which make the region have bigger burden to deal, especially to compare it with those in Europe or Latin America. Asia has also lack in term of human rights mechanism, not necessarily judicial mechanism, to deal with the gross violation of human rights. In terms of convention and court, Europe and Latin America, and even Africa have already their regional convention and courts. Whereas in Asia, we have only the newly sub-regional ASEAN Inter-governmental Commission on Human Right (AICHR).

If we look at the geographical composition of the ratification of the Rome Statute of the ICC, Asia is the lowest with 17 states parties. At the same time, African Group has 33 states parties, Eastern European Group has 18 states parties, Latin American and Caribbean Group has 26 states parties and Western European and Other Group has 25 states parties. This I believe has something to do with the fact that very few serious crimes in Asia are brought to court.

Lastly, although for the victims justice in form of prosecution is one of the elements of victims’ rights besides truth, reparation and guarantee of non recurrence, but it places the most important one.

It is for this very same reason with us that Patricia Isasa, the survivor of abduction, torture and rape of the military junta in 1976 in Argentina during the “Dirty War” who just visited Indonesia and Timor-Leste said that “There is nothing worse than seeing the criminals go unpunished”

* This short paper is presented in the regional seminar and symposium “Prosecuting Serious Crimes in Asia” organized by ICTJ, Kontras, Indonesian Coalition for the ICC and Paramadina University in Jakarta on November 15-16, 2011.

** Mugiyanto is the survivor of the abduction of pro democracy activists in Indonesia in 1998 by the Indonesian army. He is now the Chairperson of IKOHI and AFAD and the Convener of the Indonesian Civil society Coalition for the ICC.

*** Interview of the victims and relatives of the victims for the drafting of position paper on the rights of the victims to reparations.

**** Indonesia supposed to ratify Rome Statute in 2008 as mentioned in the previous National Plan of action on Human Rights (RANHAM). It reschedules the plan in the new RANHAM 2011-2014 that the Rome Statute accession will be done in the third year (2013)

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