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Forced disappearances have become a common feature in many parts of Asia. While Sri Lanka’s record on forced disappearances for several decades now in the south, north and east, is considered the highest, there are several other countries with very high records as well. These include Pakistan, parts of India – the Punjab, Kashmir, Assam, Manipur, Tripura, Nagaland, Orissa and Bihar – some parts of Rajasthan, Thailand and the Philippines.
There are also places such as Nepal, where in the recent past there have been large-scale forced disappearances, but no action has been taken against the perpetrators even after the conflict that gave rise to the disappearances is over.
The forced disappearance of persons is almost always accompanied by the disappearance of the criminal justice system. In order to enable such disappearances for political or military purposes, it is necessary to alter laws like those relating to the disposal of bodies -- normally there should be a judicial order before such disposal. There is also the elimination of laws relating to post-mortems and allowing firearms, the suspension of laws relating to the protection of persons after arrest, and the suspension of laws relating to records of those who are arrested or otherwise dealt with by the police or military authorities.
The suspension of laws to allow for forced disappearances virtually breaks down the discipline within the policing and military systems. Once this type of indiscipline is allowed it is difficult to re-establish respect for laws and rules within the law enforcement section itself. Forced disappearances also diminish the role of the judiciary. Legal remedies like habeas corpus applications, writs and the like are of little use once a forced disappearance completes its course by way of assassination in secret, as has happened in literally tens of thousands of cases.
The law enforcement agencies, which often work with criminal elements in such operations, become the accuser, judge, executioner and undertaker all at the same time. The tremendous problems caused to a legal system by allowing forced disappearances have not yet received sufficient international or local attention.
Though there is a convention against forced disappearances, it has received very little attention and is not one of the international conventions that is talked about very much. Perhaps this is because the experience of forced disappearances is far away from the eyes of developed democracies. However, given the frequency with which forced disappearances are being used in anti-terrorism drives, this issue needs to be discussed much more frequently and thoroughly both internationally and at local levels.
Another form of arbitrary deprivation of life that is frequently carried out in Asia is the killing of those who are called criminals or undesirable persons after arrest, without subjecting them to the jurisdiction of the courts. In India this form of killing is called an encounter killing, which tries to make it appear that the killing was a consequence of some group attacking the police or military and, as a result, these government officers returning fire.
There are many instances in which there is evidence that persons who have been killed in this way had been arrested previously and disposed of using this system. There are even instances where innocent persons were arrested and killed in order to create statistics about encounter killings which may lead to promotions for officers who have allegedly braved danger.
In Bangladesh similar occurrences are called crossfire killings and in Sri Lanka they are called self-defense killings. Newspaper items appear frequently stating that a person arrested by the police had been taken to the scene of the crime or a place where some stolen goods were hidden and that on the way, this person attacked the police and therefore they were shot dead. Often there are no further inquiries into these cases. In the Philippines such killings are called legitimate encounters.
Besides this there is also arbitrary deprivation of life by custodial deaths, which often means people dying due to torture in custody. These are frequent in India, Pakistan, Sri Lanka, Malaysia and the Philippines. Another frequent form of killings is lynching, which is a sort of mob killing that is directly or indirectly encouraged by the law enforcement agencies. These killings are most frequent in Bihar in India, and often the reason is the complete failure of the rule of law, which forces people to take the law into their own hands as a last resort. Lynching also takes place frequently in Cambodia, Pakistan, Sri Lanka and many other places.
Thus, the question of arbitrary deprivation of life today needs a fresh discussion internationally, as well as locally, in different countries with a view to finding solutions to this most brutal denial of the right to life.
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(Basil Fernando is director of the Asian Human Rights Commission based in Hong Kong. He is a Sri Lankan lawyer who has also been a senior U.N. human rights officer in Cambodia. He has published several books and written extensively on human rights issues in Asia. His blog can be read at http://srilanka-lawlessness.com.)
