No habeas corpus

Apprehending people and then denying any knowledge about them has in recent decades become an established practice for governments across Southasia, especially during counter-insurgency operations. Indeed, with the 25th annual International Day of the Disappeared taking place on 30 August, the situation looks almost as bad as anytime over the past quarter-century, with disappearances taking place on a regular basis in several parts of the region. Moreover, there is hardly any accountability, and impunity remains rampant essentially everywhere.

In Sri Lanka, more than 30,000 people (most likely the largest number per capita in Southasia) are thought to have disappeared over the past two decades. In India's Punjab, thousands of secret cremations of individuals killed in police custody throughout the 1980s have been uncovered in just a single district. Numerous others are known to have disappeared in Punjab, as well as in Kashmir, Andhra Pradesh, the Northeast and, most recently, in Chhattisgarh. Since the peak of the insurgency in Kashmir in 1989, some 7000 people have been disappeared at the hands of Indian security forces, according to local activists.

In Pakistan, an increase of disappearances has taken place since October 2001, as hundreds have gone missing in the context of counter-insurgency measures in the US-led 'war on terror', including through renditions to US authorities. Unrest in Balochistan and Sindh over the past several years, meanwhile, has also resulted in hundreds of disappearances of Baloch and Sindhi nationalists. In Nepal, around 900 people are now estimated to have disappeared at the hands of the security forces, in addition to around 300 at the hands of Maoist rebels over the course of the decade-long civil war. Even in Bhutan, the UN records that five people were reported as disappeared. In Afghanistan, meanwhile, possibly tens of thousands are thought to have been disappeared at the hands of different armed entities over the years of conflict, though exact figures are impossible to come by. Finally, in Bangladesh, a few disappearances were reported during the violence in the Chittagong Hill Tracts in the 1980s, besides those who went missing during the 1971 War of Liberation. It is notable, however, that disappearances have not been a feature of state repression in Bangladesh.

Constricted activism
Of course, violations are not taking place in a political vacuum. Amid the large number of politically driven insurgencies in Southasia, rebel groups have not shrunk from utilising disappearance as a tactic. However, governments have been responsible for by far the largest number of persons who have gone missing. State apparatuses across the region continue to fail to address reports of disappearances, and very few perpetrators have ever been brought to justice anywhere – a fact that can be argued as leading directly to the continuation of such abuses. This has left a significant burden on civil society to respond to and maintain pressure on governments and other violators. At the same time, though, the civil-society reaction itself has sometimes been difficult.

The mainstay of activism on disappearances has been led by local human-rights organisations. These groups assist affected families in taking legal action, pressuring authorities, providing counselling, and mounting strategic challenges to government when they deny knowledge of the disappeared. These activist organisations also seek out the help of the media, judiciary, national human-rights commissions, international NGOs and United Nations agencies. The most significant actors in leading these campaigns are often the families of the disappeared themselves. In this, one thinks of brave individuals such as Devi Sunuwar, the mother of Maina Sunuwar, a 15-year-old girl who was disappeared in Nepal in 2004; Manorani Saravanamuttu, the mother of Richard de Soyza, a journalist who disappeared in Sri Lanka in 1990; and Jai Kishor Karna, the father of Sanjiv Kumar Karna, a student who disappeared in Nepal in 2003. Manorani, who founded the Mothers' Front, died in 2001 without seeing those responsible for her son's disappearance and death brought to justice. Devi and Jai, meanwhile, continue their fight.

Relatives of the disappeared have indeed garnered significant influence. At the same time, though, rarely have the families of those disappeared at the hands of armed opposition groups united with those disappeared at the hands of state agents. One can certainly see the potential power that such coalitions could wield. But this chasm is a manifestation of the deeper political differences that accompany conflict. In Sri Lanka, the Mothers' Front and others operating in the south of the country have tried to link up with families of the disappeared in Jaffna, as well as with the relatives of security-force personnel missing in action. But such coalitions have not gelled. One notable exception has been in Bardia District, in the western plains of Nepal, where families of those disappeared at the hands of both the security forces and the Maoists have joined hands to fight for justice.

Other efforts at broad-basing work on disappearances have likewise been unsuccessful. In general, disappearances-related efforts are the domain of urban NGOs, with a focus on civil and political rights. Thus far, NGOs working on disappearance have largely failed in building bridges with counterparts working on issues of discrimination or economic, social and cultural rights. But the fact is that the bulk of the disappeared come from disadvantaged communities in the rural areas. For example, though Bardia has the highest number of disappearances in Nepal, very few cases were reported until many years later, after the end of the armed conflict. It was only then that local community of disadvantaged indigenous people were finally able to link with the largely Kathmandu-based NGOs and international agencies involved in this issue.

This inability to connect the issue of disappearance and impunity to broader concerns could also explain some of the public apathy and lack of mass support for these and related campaigns. Indeed, it has been a notable facet of anti-disappearance campaigns in Southasia over the years that they have garnered very little prominence within the media. By and large, the Southasian media shy away from the issue, especially if the violations are occurring in the context of armed conflict, as can notably be seen in Sri Lanka, Kashmir and the Indian Northeast. There are, however, certain laudable exceptions to this – for instance, intense media coverage has been given to cases of the disappeared over the last three years in Pakistan, with the issue becoming one of the platforms for widespread anti-government protests.

Compensation culture
While the majority of groundwork on disappearances is being done by families and civil society, national human-rights commissions and the judiciary are at times able to bring a modicum of certainty into the lives of the relatives of the disappeared. In Afghanistan, in the context of a weak civil society and government, the role played by the Afghan Independent Commission on Human Rights in bringing issues of transitional justice onto the political agenda has to be applauded. Though so far no one has been held accountable for past human-rights abuses, as justice has been sidelined in favour of security considerations and political objectives, the Commission has acted on information about mass graves (with the assistance of the UN mission in Afghanistan, UNAMA), despite a lack of capacity and a very difficult security situation in much of the country.

Much of the time, national human-rights commissions are forced to give in to political imperatives when it comes to challenging the security forces, including in relation to disappearances. In December 2007, Sri Lanka's Human Rights Commission became the first in Southasia to be downgraded to 'observer status' by the international body governing national human-rights bodies. The reason given was the Colombo government's influence on its independence.

If anything, in lieu of prosecution, compensation has become the norm in cases of disappearance in Southasia. The Indian Supreme Court set the example when, in 1984, it ordered the state to pay compensation to the families of C Daniel, a school headmaster in Manipur, and C Paul, a pastor, both of whom had disappeared following their arrests in 1982. Years later, the Sri Lankan Court of Appeal followed suit, and started to award 'exemplary costs' in habeas corpus (Latin for 'you have the body') court cases. As noted earlier, however, beyond such actions criminal conviction remains extremely rare. In India, the conviction of six police officers by the Punjab courts in 2005 for the abduction and killing of Jaswant Singh Khalra was a notable exception, but one that only resulted from massive national and international outrage. The Sri Lankan High Court has also, in rare cases, convicted those responsible for disappearances – interestingly, twice in cases involving children.

Any exception to this trend is generally thanks to an individual judge or commissioner, rather than due to any commitment at the institutional level. This underscores the most crucial problem in tackling disappearances: the criminal justice systems in Southasia are not tailored to deal with crimes against humanity. In the countries of the region, violations such as disappearances are still not defined as crimes, nor has 'command responsibility' (when a senior who gives an order is held culpable together with the junior). In several countries – Bangladesh, Sri Lanka and India, and currently under discussion in Nepal – amnesties for security forces acting in the line of duty (or for those who have laid down their arms, and are abiding by the Constitution, as in Afghanistan) have been incorporated into law.

Amidst such a situation of impunity, the role of the United Nations in relation to disappearances in Southasia has been significant. The UN Working Group on Enforced or Involuntary Disappearances (a special mechanism set up in the mid-1980s) has made significant contributions through yearly reporting, urgent actions and country visits. Another useful mechanism has been the filing of individual complaints to the Human Rights Committee in Geneva under the Optional Protocol to the 1966 International Covenant on Civil and Political Rights; unfortunately, in Southasia only Nepal and Sri Lanka have ratified the Protocol.

At the moment, it appears that NGOs and activist organisations are most successful when they work in close collaboration with others, including the UN and other international organisations. Under sustained pressure from national and international actors, states have indeed been forced to respond, though almost always half-heartedly. In Sri Lanka, five commissions of inquiry have been set up; but while some compensation has been paid, and death certificates have been issued (making it possible for widows to receive pensions, or to access their husbands' bank accounts), few perpetrators have been brought to justice. Even when compensation was paid in Sri Lanka, it has been used as a tool of political patronage: 100 percent has been paid out in the south, while little or no payments have been made in the east, where most victims were Tamil.

To date, the track record of the responses of Southasia's governments to issues of disappearance has been one of success – in thoroughly frustrating attempts by families and NGOs to obtain justice. While some instances of concerted, broad-based efforts have been able to force some official actions, the farthest this goes is in compensating relatives of the disappeared with cash. In this 'compensation culture', for an average of USD 2500, a government thinks it can simply forget about the disappeared.

~ Ingrid Massage is a longtime researcher on Southasia at Amnesty International, and more recently with OHCHR in Nepal.