The phenomenon of forced disappearance is not well understood outside of the countries in which it takes place. Imagine that police take your spouse or relative without observing any protocol for arrest and detention, offering no explanation and no information about where he will be taken. The next day, he is simply gone. Leaks trickle out from sympathetic police officers and rumours circulate in the community suggesting the victim has been imprisoned or killed, but you have no way to know what is true. Law enforcement officers deny that they ever saw him and refuse to open a case or investigate his disappearance. Police and government officials block attempts to find him, and you do not have the resources to appeal to anyone else. Families and friends never get resolution. Such a scenario is beyond the imagination of most developed countries yet still commonplace in parts of Latin American and much of Asia.
Throughout Latin America, the memory of large-scale, forced disappearances remains fresh and the struggle to bring perpetrators to justice is ongoing. In Chile, more than 3,000 people were disappeared during Pinochet’s regime (1973-90) while in Argentina the number who went missing during the Dirty War (1976-83) may be as high as 30,000. Guatemala must contend with legacies of approximately 45,000 forced disappearances over the course of its civil war (1960-96), and the number of desaparecidos continues to grow in Colombia as its nearly half-century long conflict between government and the Revolutionary Armed Forces of Colombia (FARC) continues. In this now-democratic region, however, high-profile trials to prosecute Latin American officials responsible for disappearances and international involvement herald the beginnings of the cultural and legal shift necessary to ending disappearances.
Across Asia, by contrast, disappearances continue unabated, and no broader understanding of the illegality of disappearances has emerged. Forced disappearances present a special problem in law. In many countries, there is not legislation equal to addressing the uncertain circumstances surrounding disappearances; either forced disappearance has not been criminalized or the legislation in place is inadequate. When a forced disappearance occurs, families and friends are left with little evidence of what has transpired, few leads, and limited legal recourse.
In Thailand, the trend in forced disappearances is especially troubling. As violence continues in southern Thailand, it is imperative that human rights abuses be publicly acknowledged and accountability enforced. Disappearances are among the most serious and debilitating events for families and communities because there is no way to attain resolution. Yet Thailand has yet to criminalize forced disappearance. The only way to appeal to the police for assistance in the case of a forced disappearance is to wait 48 hours and file a missing persons report. By the time 48 hours has passed the person who has been disappeared has been transported away or been killed and hidden.
The case of Somchai Neelapaijit illustrates how difficult instigating an investigation into even an obvious, high-profile disappearance can be under Thailand’s laws. A lawyer, Neelapaijit opposed the institution of martial law in southern Thailand and collected 50,000 signatures in opposition. He advocated for the rights of Muslims accused of terrorism and treason, and vocally criticized the use of violence by security and police forces. After receiving numerous threats, Neelapaijit was abducted from his car by five policemen in 2004. Like Thai Trade Union leader Thanong Bo Arn before him, he was not found. The five policemen were tried in conjunction with his disappearance; four were acquitted and one was convicted of physical coercion. The five policemen who were earlier acquitted now stand accused of physical coercion and robbery in the Court of Appeals. Although their identities are known, the case has progressed at a crawl and will be tried on March 11, 2011, nearly seven years after it was filed.
Confusion surrounds the nature of disappearances, how they can be proven, and what perpetrators can be charged with in the absence of physical proof of abduction, torture, or murder. Legal ambiguity abets perpetrators and the officials complicit in granting them impunity. Law enforcement often hides behind the pretext of searching for a body. Establishing clear grounds for pursuing disappearances — witnesses, documentation, or strong circumstantial evidence — and providing effective systems for witnesses and relatives to report abductions will facilitate investigation and trials.
Investigations and trials will reduce disappearances. The rationale for disappearance as a method of silencing dissenters and opponents is deniability. Disappearances can rarely be definitively proven, which ensures they receive less public attention and much more difficult to prosecute than overt violence. Further, that the experience and fate of the disappeared is unknowable ensures that this act inspires greater terror than a shooting or execution — and exposing disappearances demystifies this practice. Successful efforts to address disappearances in court will encourage others to pursue disappearances through the judicial system. The creation of precedent and instillation of institutional knowledge will increase the number of attorneys capable of bringing these cases against state officials responsible for disappearances.
The primary obstacle to pursuing cases of abduction and disappearance through legal avenues has to do with a warped concept of the burden of proof. In many Asian countries, in criminal and civil cases, the burden of proof is on the accused to prove innocence rather than on the prosecution to prove guilt. International human rights conventions and democracies generally espouse “innocent until proven guilty” models that place the burden of proof on the prosecution. Where disappearances are concerned, international human rights conventions support a legal model that closely resembles that of habeas corpus, in which the state bears the responsibility of proving the authority to detain someone or else must release the detainee. This concept of placing the burden of proof on the state applies in cases of abduction when a pattern of disappearances can be established and an individual case can be linked to that larger incidence1. Thailand must criminalize forced disappearance, ensure there is a system for filing complaints, guarantee effective investigations, and place the burden of proof on the state where reasonable.
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1 “Disappearances,” Max Planck Encyclopedia of Public International Law.
