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.