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The phenomenon of forced disappearance is not well understood outside

of the countries in which it takes place. Of course, how could it be?


Imagine that one night police abduct your teenage son from your home
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.

For days, weeks, months, or years, leaks trickle out from sympathetic
police officers and rumors circulate among members of the community,
but there is no way to know what is true. Law enforcement officers deny
that they ever saw the victim and refuse to open a case or investigate the
disappearance. Police and government officials block attempts to find
those who have been disappeared, and most individuals do not have the
resources to circumvent them. 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 disappeared during
Pinochet's regime (1973-90) while in Argentina the number of people 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) rages on. In this now-democratic region, however, high-
profile trials to prosecute 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 well-


defined movement against forced disappearances as a tactic has
emerged. When a disappearance occurs, families and friends are left with
little evidence of what has transpired, few leads, and limited legal
recourse. In many Asian countries, there is not legislation fit to address
the uncertain circumstances surrounding disappearances; either forced
disappearance has not been criminalized or the legislation in place is
inadequate, leaving only the option of filing cases related to offenses
associated with disappearances, such as assault.

In Thailand, for example, the failure to address forced disappearances is


blatant. As violence continues in southern Thailand, it is imperative that
human rights abuses be publicly acknowledged and addressed.
Disappearances are among the most debilitating events for families and
communities because it is so difficult to obtain any form of resolution or
even restitution. Thailand has not criminalized 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. After
48 hours, the victim has more than likely already been transported or
killed, their body likely never to be discovered.

The case of Somchai Neelaphaijit illustrates how difficult instigating an


investigation into even an obvious, high-profile disappearance can be
under Thailand's laws. A lawyer, Neelaphaijit fought the implementation 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, Neelaphaijit was abducted
from his car by five policemen in 2004. Like Thai Trade Union leader
Thanong Bo Arn before him, he was never found. Five policemen were
tried in conjunction with his disappearance. Of those, four were acquitted
and one was convicted of physical coercion and sentenced to three years
in prison. The four policemen who were earlier acquitted now must again
face the charges of physical coercion and robbery in the Court of Appeals.
Although their identities are known, the case has progressed at a crawl
and will not be tried until February 7, 2011, at earliest, nearly seven years
after it was filed.

The underlying obstacle to pursuing cases of abduction and


disappearance through legal avenues in Thailand and elsewhere in Asia
has to do with a warped concept of the burden of proof. In many Asian
countries, in criminal and civil cases the burden is on the accused to prove
innocence rather than on the prosecution to prove guilt; with regard to
disappearances, the burden is on the complainant to prove wrongdoing.
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 protections for complainants resemble habeas
corpus rights, which hold that governments bear 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 incidence.

Generally, 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.
Because it can, law enforcement often hides behind the pretext of
searching for a body. Only formal legislative reform can initiate progress.
Establishing clear grounds for pursuing disappearances -- witnesses,
documentation, or strong circumstantial evidence -- and providing
effective systems for witnesses and relatives to report abductions paves
the way for fair investigative practices and legitimate trials.

Investigations and trials will reduce disappearances, perhaps regardless of


rulings. The major rationale for disappearance as a method of silencing
dissenters and opponents is deniability. Disappearances are much more
difficult to prosecute than overt violence and can rarely be definitively
proven, which ensures they receive less public attention. Further, that the
experience and fate of the disappeared is unknowable ensures that this
act inspires greater terror than a shooting or execution. Exposing
disappearances and prosecuting them publicizes and demystifies this
practice. Efforts to address disappearances in court will encourage and
enable others to pursue disappearances through the judicial system. The
creation of precedent and establishment of institutional knowledge will
increase the number of attorneys capable of bringing these cases against
state officials responsible for disappearances. Thailand must criminalize
forced disappearance, ensure there is a system in place for filing
complaints, guarantee effective investigations, and place the burden of
proof on the state when reasonable.

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