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 Jos?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.
Here in Asia, many countries have gone through periods when state officers and persons working on their behalf have been organised to abduct and kill citizens and dispose of their bodies without a trace. They include Sri Lanka, Nepal, India, Indonesia, Thailand, Pakistan and the Philippines. In each, the use of forced disappearances has at one time or another been ordered or condoned by senior officials.
In each country of Asia where a policy of forced disappearances has been pursued it has been accompanied by manipulation of the law to indemnify the perpetrators, as in Argentina. In Sri Lanka, as many as 60,000 persons were abducted and killed in a similar manner between 1989 and 1992: two preceding indemnity acts and emergency regulations ensured that no one has been punished. Subsequent commissions of inquiry and recommendations by UN bodies have not led to prosecutions. 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, which anyhow are not independent. In Thailand the emergency decree operative across three southern provinces, in the words of a senior UN expert, “makes it possible for soldiers and police officers to get away with murder”.
Pointing to the examples of Nazi Germany, apartheid South Africa and Pinochet’s Chile, Lord Steyn, a retired UK Lord of Appeal in April observed that law has invariably been scrupulously applied and manipulated by autocrats as a method of social control:
“Even totalitarian states mostly act according to the laws of their countries. They demonstrate the dangers of uncontrolled executive power. They also show how it is impossible to maintain true judicial independence in the contaminated moral environment of an authoritarian state.”
This is an accurate description of the judiciary in most parts of Asia over recent decades. However, most recently there have been some signs of change.
One of the most hopeful and positive developments is the emerging role of the courts in Thailand. Whereas for many years this judiciary was constrained by other parts of government, the notion of judicial review has now become a matter of almost daily discussion across that country. The Supreme Court, together with other parts of the higher judiciary, has become actively involved in scrutinising the activities of the executive, and public opinion is turning strongly in favour of a more significant role for judges. There are signs of more dramatic changes to come.
Kidnapper police and killer soldiers should beware: as Julio Simon found out this week, there is no guarantee to a lifetime of legal protection when the laws offering that protection are themselves illegitimate and contrary to the interests and principles of natural justice and the rule of law. In the south of Thailand, the decree being extended quarterly was introduced without the scrutiny of parliament and is patently in violation of international law, as confirmed by at least two parts of the UN human rights wing. It may not take as long as 27 years, as it did in Argentina, for the Supreme Court in Thailand to declare its provisions illegal, opening the way for similar prosecutions of perpetrators.
Ultimately, the success of the struggle against disappearances, the struggle to disappear impunity itself, depends upon the will of family members of the disappeared. They are the ones who carry the burden of an inestimable loss with them throughout their lives, who carry the burden of deep mistrust of the state and its institutions with them to their graves: mothers, fathers, wives, sisters and brothers left in a permanent state of shock, who awake every day with the same sense of horror as at the moment that their loved ones were taken away. And as it has been in Argentina this last week, so it could be in Sri Lanka, Indonesia or Nepal. ?lt;br />
The AHRC has in recent years worked closely with the families of disappearance victims in a number of countries and their partners. Among those in Thailand is Angkhana Neelaphaijit, whose husband Somchai, a human rights lawyer, was abducted by the police in 2004. Angkhana has worked tirelessly in the name of her husband, and most recently has rejected an offer of compensation from the government for his loss, saying that nothing less than justice through the courts will satisfy her family. It is the same desire that she shares with the families in southern Thailand with whom she is now working, and the families of victims in Sri Lanka, Nepal, Argentina, Chile and numerous other countries throughout the world. It is the desire that guides the determination of all these persons to carry on as long as it takes to obtain justice. This is the lesson from Argentina today.
The impunity of one man was ended in Buenos Aires last week thanks to the unceasing efforts of the families of Jos?Poblete and Getrudis Hlaczik together with their supporters. The Asian Human Rights Commission wants them to know that their actions and words are being felt and heard by likeminded people around the world. We urge them to pressure their government to take up the records of other countries whose governments have records of carrying out disappearances, including those in Asia, and carry the struggle forward both at home and abroad in concert with the families of victims and their supporters throughout the world. It is our hope that one day the names of both Jos?Poblete and Somchai Neelaphaijit will be synonymous not with the perpetuation of impunity but rather, with its disappearance.
