STRUGGLE FOR THOSE WHO HAVE DISAPPEARED,
THE LATIN AMERICAN AND ASIAN LAWYERS’ MEETING AGAINST DISAPPEARANCE
Jakarta, November 27, 2000 to December 2, 2000
More than 40 lawyers from 7 Asian countries (Indonesia, East Timor, India, Pakistan, the Philippines, Thailand, Sri Lanka), 3 Latin American countries (Chile, Argentina and El Salvador), and from Geneva, Switzerland attended the “Latin American and Asian lawyers’ meeting against disappearance”. This 6 days meeting was held in Jakarta from November 27 to December 2, 2000.
It was sponsored by AFAD. The relevance of holding such a meeting was indeed pointed out by AFAD: the weakness or even the absence of legal instruments allowing law suits against the perpetrators of involuntary disappearances is a common difficulty in the countries where AFAD has members, Sri Lanka, Philippines, Indonesia, India and Thailand. To use the legal system to allow the victims of involuntary disappearances to get their rights recognized is far from being efficient or even remains impossible in some countries. Then to learn about the experiences of Latin American countries and to share the difficulties found in the Asian countries in their legal and meta-legal struggle against involuntary disappearance would already help the Asian lawyers to find proper solutions and initiatives for their own countries.
All the participants found the meeting fruitful, rich in the speeches and the exchange of experience. They have identified several topics on which they agreed to further cooperate, in ratifying 9 resolutions on several topics such as the United Nations draft Convention on the protection of all persons from enforced or involuntary disappearance, and the International Criminal Court. In between the speeches and meetings, participants visited President Abdurrahman Wahid and the Commission on Human Rights in Indonesia to explain the matters of concern of the participants about Indonesia and East Timor.
This report aims at presenting a comprehensive summary of this meeting: its background, its activities and contributions, its results. The present report is also analyzing the impact of this meeting on AFAD and AFAD members and is introducing proposals vis-à-vis the follow-up of the resolutions adopted during the meeting.
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I- BACKGROUND
II- SUMMARY OF DAILY ACTIVITIES OF THE CONFERENCE
III- SUMMARY OF THE CONTRIBUTIONS OF THE RESOURCE PERSONS
IV- RESULTS OF THE MEETINGS WITH THE INDONESIAN AUTHORITIES AND INSTITUTIONS
V- SUMMARY OF THE 9 RESOLUTIONS ADOPTED BY THE CONFRENCE
VI- IMPACT OF THE CONFERENCE ON AFAD AND AFAD MEMBERS
VII- PROPOSALS VIS-À-VIS CONCRETE IMPLEMENTATIONS OF THE RESOLUTIONS
I- BACKGROUND
I-1- Historical background of AFAD
The Asian Federation Against Involuntary Disappearances (AFAD) was established on June 4, 1998 in Manila, Philippines, through the initiative of the Families of Victims of Involuntary Disappearance (FIND). It was originally composed of FIND-Philippines; OPFMD-Sri Lanka and APDP-Kashmir¸India. KontraS of Indonesia was accepted in March 1999 as a member of the federation. Another member, the Relatives’ Committee of the May 1992 Heroes, after having fulfilled the necessary requirements for membership, was accepted as a full member in October 1999.
AFAD has now five members, from five different countries (Philippines, Thailand, Indonesia, Kashmir, India, and Sri Lanka. Prospective member organizations come from China, Pakistan and Manipur, India and East Timor.
The Founding Congress was convened on May 23-30, 2000. It was participated by the five members organizations, prospective members from China and Pakistan and Ms. Judith Galarza, Executive Director of the Latin American Federation of Associations of Relatives of Disappeared Detainees (FEDEFAM) and Henriette Emaar of Linking Solidarity, the Netherlands.
The major achievements AFAD during its first stage of existence were all linked to its capacity to facilitate the exchange of ideas and to promote mutual help. Twice, it has joined FEDEFAM and other organizations from other continents, in projecting the international phenomenon of disappearances at the United Nations.
After its Founding Congress, AFAD has been promoting international solidarity further, for example in commemorating simultaneously the international Day of the Disappeared in five countries on August 30, 2000, and in participating to the Asia-Europe People’s Forum in Seoul, Korea in October 2000. AFAD has also been active in international lobby. AFAD participated to the 56th session of the United Nations Commission on Human Rights and to the FEDEFAM/ AFAD joint meeting on the occasion of the 62nd session of the United Nations Working Group on enforced or Involuntary Disappearances (UNWGEID), November 2000. AFAD has also upheld its duty of campaigning internationally against involuntary disappearance in writing and issuing press statements on issues related to involuntary disappearance in Asia and other continents. The Asian- Latin American Lawyers’ meeting was also sponsored by AFAD in the same perspective, promoting international solidarity, holding effective international lobby and organizing international campaign.
I-2- Rationale of the lawyers’ meeting
Disappearances in Asia still happen with complete impunity. In the course of its work for justice for the disappeared in Asia, AFAD realized the need for the help of Asian lawyers in the struggle against impunity. The AFAD had therefore the idea to call a conference of lawyers in order to allow the Asian lawyers to improve their knowledge and experience concerning law proceedings on involuntary disappearances.
Unlike in Latin America, Asian countries have never made a breakthrough yet in the filing of cases against perpetrators of disappearances. In some countries, the basic problem of documenting cases is a primary concern. To reach the place where involuntary disappearance occurs is sometimes a main difficulty for lawyers, then to help the victims to feel free to speak and testimony is a second major difficulty in areas where the trust in the legal system is still very low. In other countries where cases had already been documented, making a breakthrough in the legal struggle in the local as well as international levels is the present concern.
In the international level, the United Nations General Assembly adopted the United Nations Declaration on the Protection of All Persons from Enforced or Involuntary Disappearances without a vote on December 18, 2000. There is also a Draft Convention on the Protection of All Persons from Enforced or Involuntary Disappearances. In Latin America, there is an Inter-American Convention Against Disappearances, which has been useful to the families of the disappeared in the said continent. There is no regional mechanism of this kind in Asia.
The Rome Statute of the International Criminal Court still needs the ratification of governments for it to be used by victims of human rights violations who have already tried all local remedies to get justice. For this reason, lobbying by organizations and individuals, especially from the legal profession, plays a vital role.
During the 56th session of the United Nations Commission on Human Rights, most of the Asian governments and even many other governments in other continents for that matter did not support the United Nations Draft Convention on the Protection of All Persons from Enforced or Involuntary Disappearances. They said that this is a problem of the past and that it is only a problem in Latin America. In the meeting of Asian NGOs with Asian governments during the same occasion, the matter on creating regional mechanisms was brought to the attention of Asian governments. The latter just mentioned that they are open to this, but apathetically said that this would take a very long process.Families of the disappeared in Asia are mostly poor and thus lack of a significant capacity in bringing cases to court. Empowerment process is still an important thing to do for Asian organizations of families of the disappeared.
It is in this light that AFAD has sponsored the lawyers’ meeting in Asia and invited lawyers from Latin America, so that they can share their rich experiences in the field of human rights work, particularly on the issue of involuntary disappearances.
I-3- Objectives of the lawyers’meeting
The lawyers’ meeting in Asia had the following objectives:
1. To share experiences in the campaign for justice against involuntary disappearances and to learn from the Latin American lawyers in their legal and meta-legal struggle against impunity and involuntary disappearances;
2. To improve the participants knowledge on international law instruments, to improve the actual instruments (adopting a joint resolution urging Asian governments to ratify the United Nations Draft Convention on the Protection of All Persons from Enforced or Involuntary Disappearances and the Rome Statute of the International Criminal Court and other resolutions related to disappearances) and to study the possibility of new regional instruments;
3. To work in a long-term perspective for fighting against impunity: in building a network of lawyers that will serve as a rich resource of information, know-how, experience and solidarity; in forming a consultative team of lawyers who will provide legal assistance and give suggestions and recommendations to AFAD and its member organizations; and in coming up with proposals to AFAD and its member organizations for consideration in AFAD’S planning;
4. To help the democratization process in Indonesia and the efforts for solving conflicts within the Indonesian society in serving as a venue for lobbying the Indonesian government and institutions on important local concerns.
II- SUMMARY OF DAILY ACTIVITIES OF THE LAWYERS’ MEETING
The meeting lasted 6 days, from Monday 27 November, until Saturday 2 December, 2000.
The first day of the meeting was open to public, especially to Indonesian public institutions, embassies, NGOs, families of victims, and the press. During this first day, the president of AFAD, Mr. Edcel Lagman, presented the situation of involuntary disappearance in the countries of AFAD members. Country situations were also presented by the participants.
During the following days, the Asian and Latin American lawyers’ meeting included speeches on country situations and on international law instruments, with an open forum for each subject. The participants could also meet Mr. Abdurrahman Wahid, president of Indonesia (Friday 1 December 200), and Mr. Asmara Nababan, Secretary General of the Indonesian Human Rights Commission (Thursday 30 November 2000).
The situations of the prosecution on disappearance cases in Latin American countries and in Sri Lanka were presented more precisely. Mr. Roberto Garreton presented the situation in Chile, Mr Diego Morales the situation in Argentina, Mr. Benjamin Cuellar the situation in El Salavador and Mr. KDC Kumarage and Mr. KLJ Wishvajith de Silva presented the situation in Sri Lanka.Four topics were chosen to present the international instruments concerning involuntary disappearance. Mr. Neri Colmenares from the Philippines made a presentation on the International Criminal Court. Ms. Cecilia Jimenez, from the Association for the Prevention of Torture explained the United Nations draft Convention on Involuntary Disappearances. Mr. Diego Morales, from Argentina, presented the Inter American Convention on the Protection of All Persons from Enforced or Involuntary Disappearances. Mr Rene Sarmiento, from the Philippines, presented the Amnesty International 14 points on Involuntary Disappearances.
The contribution from Martha Meijer, from Linking Solidarity, the Netherlands, was also read and a debate on the civil society and the struggle against involuntary disappearance followed.
The participants adopted 9 resolutions for the campaign against involuntary disappearance on the last day of the conference.
During a press conference on Friday 1 December, the participants presented the results of the meeting and responded to approximately 20 journalists from Indonesian media, including newspapers, radio and television.
III- SUMMARY OF THE CONTRIBUTIONS OF THE RESOURCE PERSONS
III-1- Argentinean experience
Three different periods in the recent evolution of Argentinean society can be described. For each period, different kinds of law instruments and strategies have been used for the defense of human rights.
The first period characterized by the degradation of the political system was mainly the occasion of the defense or the protection against human rights violations. During this period, Argentina experienced rotation between Military State and Civil State. The judicial system was inefficient or empty. In the Supreme Court, the judges were subject to manipulation, and made a new Constitution under the order of the Military. During this period, judges were afraid to use the normal legal process against their superior. Only one judge investigated all the cases of disappearance he received. For each case, the police was contacted and an habeas corpus was presented to the justice. It was possible to publish all the cases with all the details and to use the holes of the authoritarian system and to take advantage from them.
After 1983, during the transition period towards democracy, new strategies for the recognition of human rights had to be found. The research on all the proofs and details of human rights violations during the previous regime had to be done carefully, so that people and the government are publicly aware of the consequences of the dictatorship. An investigation commission was created. The difficulty in the search of proofs during this period was coming from the fact that the judges and the people who had been manipulated had to judge their previous partner, the military. The people involved in the crimes were also still at the same positions.
After this period of proofs/ facts finding, the process of law started progressively. The impunity laws were however still protecting the perpetrators of human rights abuses. In 1998, a course bringing back to Court those who had been pardoned started. Recently a judge accepted to fight against impunity, in declaring in a case involving two low rank officials that the amnesty laws were unconstitutional and that crimes against human rights cannot be pardoned. Moreover when the victim has two nationalities or when the case involves someone from another nationality, the cases were also filed in the other country (example Spain, France, Germany). Then it becomes possible to use the laws of other countries and international law.
From the Argentinean experience presented by Mr. Diego Morales, it is important to remember that even during a strong military regime, even during a strong dictatorship, to investigate carefully and file each case is fundamental. Even if the means of justice are not sufficient at the time, one day will come allowing the cases being brought to justice. During that time it is important to use every hole of the system and take advantage of these holes. The difficulties in the search of proofs are coming from the fact that the judges and the people who have been manipulated have to judge their previous partner and that the people involved in the crimes are also still at the same positions. But the involvement or complicity of every level of the public institutions in human rights violation will decrease. In order to be well prepared for this moment and to be able to try the perpetrators of human rights violations, it is necessary to keep on having a meticulous filing of the cases, so that even if it is not possible to bring the case to justice immediately, it can still be done years after. In the cases of total failure of the local justice system, it is still possible to overpass it, by using international action or by exploiting the cases involving other countries where the cases can be filed (like the cases of double nationality).
III-2- The Chilean experience
Before the dictatorship of Pinochet (which started in 1973), Chile experienced a period of high participation of the Chilean people in the socio-political life of the country. The first political murder came after the election of S. Allende, in order to pressure the Parliament not to ratify the election of Allende. The economic and social crisis was emphasized and taken as excuse to use force in order to avoid chaos. Then democracy started to become a variable concept and State violence, including involuntary disappearances, grew. Pinochet faced two enemies: the Churches (in particular with the Committee of Cooperation for Peace in Chile), and the international community, including democratic States, NGOs and international organizations).
During the dictatorship of Pinochet, the human rights violations were systematic, institutional, massive and universal (in the sense that the whole people of Chile can be considered as a victim), and permanent.
Some human rights violations were “legal”, i.e. executed through administrative or judicial acts supported by legal texts; others were “criminal”, basically affecting the right to life (like assassinations due to political reasons and enforced disappearances).
Forced disappearance was used since the beginning of the dictatorship and with varied intensity until the end of the regime.
The whole system of human rights violations in Chile was based on the impunity, supported by the secrecy of activities and the functioning of military tribunal, the complacency of the Supreme Court and the law of amnesty. Impunity has legal, political and moral aspects. There is no penal sanction for the crimes committed, the crimes are prevented to be recognized as such through the political discourse, and the system is building perpetrators without any scruple for their crimes.
During the dictatorship, the human rights organisations played a fundamental role in the legal work for the cases. They had two main objectives, first to save lives and free the prisoners, then to defeat impunity. During the dictatorship, there were more than 10000 cases of protection, or habeas corpus. Only 6 cases prospered but the appeal of habeas corpus helped to stop torture, it also served to change the criteria of the tribunals, it was also used as a basis for denunciation at the international level and it contributed to social protest. The fight against impunity was particularly difficult under the dictatorship, especially after the law of amnesty was passed in 1978. This law was attacked by defense lawyers since the beginning, based on five fundamental arguments:
1- the crime of forced disappearance is not of instant execution but is with permanent character;
2- the responsible institutions were not dissolved on the date of the amnesty law so continued in existence;
3- the amnesty law was granting amnesty to authors, accomplices and collaborators, so can only be applied when the authors are known;
4- The dictatorship and the tribunals should apply the law of wars if they maintain that there was a war in Chile;
5- There was the precedent of the Velasquez Rodriguez case against Honduras in the Inter- American Court of Human rights, where the law of amnesty was declared inapplicable because contrary to the American Convention on Human Rights (especially its article 1 regarding respect for human rights).
None of the cases were successful during the dictatorship. The tribunals usually claimed that the crimes were not proven. They were also not disposed to recognize the obligation for the States to respect human rights, enshrined in article 1 of the American Convention on Human Rights, as jus cogens.
During these years, the human rights organizations had the constant concern of obtaining proof for every case and build solid and credible reports. A scrupulous respect for the truth and the sense of history of the human rights organizations made it possible that a National Commission of Truth and reconciliation was established at the end of the dictatorship and could begin working with trustworthy antecedents. Later it also made possible the initiation of criminal process by Garzon.
The electoral campaign of 1989 placed human rights at the center of the debates, the democratic candidate committing himself to ‘promote’ the abolition or nullification of the decree of the law of impunity. However, because of the composition of the Senate (largely pro Pinochet), he failed to promote what he promised. A few steps were taken in the first years of transition on matters concerning justice and reparation. Some decisions, although not constant, revoked acquittals handed down by the military judges. A law was passed on reparation to the victims.
Despite these little steps, the interest for human rights fell drastically: the major obstacle was coming from the institutions inherited from the dictatorship and the democratic parties at the government opted to avoid conflict with the opposition.
This situation changed when the former dictator was detained in London on October 16, 1998, accused by Spanish law for crimes against humanity, genocide, torture and terrorism. It was a stimulus for the Chilean judges to bring cases against the military. The government tried also to seek for a direct agreement between the victims and the perpetrators, through the initiative known as Mesa de dialogo (Dialogue table). This initiative was nevertheless frustrated because the principal organization of victims refused to take part and because the military side concentrated on obtaining better terms of impunity. It is still difficult to evaluate whether the table was a success or not.
M. Garreton emphasized that research for and commitment to truth is a main source of success of the human rights organizations in their struggle for respect of human rights and against impunity. The human rights organizations should work on the research of proofs in a rigorous, professional and transparent attitude. They also should set up campaigns of education so that the victims are informed of their rights and the society starts to gain confidence in rights as a form of solution to social conflict.
III-3- The Salvadorian experience
In El Salvador, in 1993, a law of amnesty gave full amnesty for the perpetrators of political crimes before January 1992, before the date of the Peace agreement. This law of amnesty was passed only 5 days after the Commission for Truth presented its report in which the responsibility of military and para-military groups was established. A request on unconstitutionality was presented but immediately refused. Only 5 years later, in 1999, after a resolution of the Inter-American commission against El Salvador, the Court accepted exception to this law, in saying that the law is constitutional but admits that the law is nullified in the case of the rights covered by article 2 of the Constitution. The responsibility to determine the validity of the amnesty law in particular circumstances is then transferred to the judge. The problem is that in El Salvador the people in charge during the dictatorship are still in place.
El Salvador has not signed the International Criminal Court Statutes. Officially in 1998, was incorporated in the Penal Code the crime of involuntary disappearance, but it was not included as a time-less crime.
The work of the Non Governmental Organizations has been primordial in the research and the establishment of truth in El Salvador. They were able to get a condemnation of El Salvador in the Inter- American Human Rights Commission. Certain success is also won in the Court: recently two generals, former ministers of El Salvador, were brought to justice for the assassination in 1980 of four religious sisters and an American woman. Even if it was not possible to condemn them, they recognized that grave human rights violations had been committed in El Salvador.
An major problem of the struggle for the establishment of the truth in El Salvador is the apathy of its people. In general poverty is very high in El Salvador. The victims cannot, because of financial reasons, file cases in Europe, as Chilean or Argentinean victims do it. Violence is also still seen as a mean to solve social conflicts in El Salvador. The impunity of the past is creating the impunity of the present.
To make the fight against impunity successful, the participation of the people should be encouraged through commissions, discussions, and international links. It is important to show to have very good signs, to show that you can touch the “untouchables”. It is also a problem of imagination: the victims and the non-governmental organizations have to be very imaginative in using the law as well as political means.
III-4 The Sri Lankan experience
To be completed
III-5- The 14 point program of Amnesty International
The 14 points program of Amnesty International was adopted in December 1992 as part of the organization’s campaign against involuntary disappearance. This program is still relevant today to be used at a local, national and international level for the eradication of involuntary disappearance.
These points are requesting the governments to:
1- Produce official documentation showing the total opposition of the authorities to involuntary disappearances;
2- Maintain strict chain-of-command control to avoid officers to commit ‘disappearances’ and to criminally hold responsible those responsible for such acts;
3- Produce accurate information on detention and releases;
4- Ensure effective mechanism for locating and protecting prisoners;
5- Ensure that prisoners are held only in publicly recognized places of detention;
6- Ensure that arrest and detention are carried out only by officials who are authorized by law to do so;
7- Ensure that the lawyers, relatives and doctors have prompt and regular access to the prisoners;
8- Ensure that the commission of disappearance is a criminal offense;
9- Instruct the officials involved in the arrest and custody of prisoners that they have the right and the duty to refuse to obey any order to participate in involuntary disappearance;
10- Ensure that all the cases of involuntary disappearances are investigated promptly, impartially and effectively by an independent body;
11- Ensure that those responsible for disappearances are brought to justice;
12- Entitle victims of disappearance and their dependents to obtain fair and adequate redress from the State;
13- Ratify all international treaties containing safeguards and remedies against ‘disappearances’;
14- To be aware of their responsibility to prevent the perpetration of disappearances in other countries.
III-6-The International Criminal Court
The Rome statute establishing the International Criminal Court was adopted on July 17, 1998. 120 States voted in support, 21 abstained and 7 voted against (including the United States, China, Japan, India and Israel). As of November 28 2000, 115 States have officially signed the Treaty and 22 of these signatories have ratified. In Asia only Tajikistan and Bangladesh have ratified the treaty and only Kyrgystan, South Korea and Thailand have signed. The Statute will only enter into force once it is ratified by 60 States.
The International Criminal Court will be a permanent, independent, judicial body seating in the Hague. It has the power to investigate, prosecute and convict individuals. The International Criminal Court exercises universal jurisdiction.
The largest number of countries opposing the International Criminal Court is in Asia: Indonesia, India and China opposed it for various reasons.
The Court will only deal with four of the most serous crimes committed by individuals. These crimes, specified and carefully defined in the Statute, are genocide (defined in article 6), crimes against humanity, war crimes (applicable in international conflict and non international conflict under different conditions). The crime of aggression will come under the jurisdiction of the Court only when State Parties have agreed on the definition, elements and conditions under which the Court will exercise jurisdiction.
Three ways can be used to initiate an International criminal Court investigation and file a case:
1- A State Party may refer a ‘situation’ to the Prosecutor;
2- The Security Council may refer a ‘situation’ to the Prosecutor;
3- The prosecutor may initiate an investigation moto proprio, on the basis of information received from any reliable source as to the commission of crimes (individuals and NGOs may file a complaint with the prosecutor who may conduct an investigation).
In cases where the crime was referred by a State or initiated by the Prosecutor, the International Criminal court may exercise its jurisdiction if one or more ot the following States are Parties to the Statute:
- The State on the territory which the alleged crime occurred;
- The State of which the person accused of the crime is a national.
Those States which did not sign or ratify the Statute may accept the jurisdiction of the Court on a particular case and cooperate in the implementation of the Statute.
The International Criminal Court will be able to act only when States with responsibility over an accused who is either resident or national, are unable or unwilling to prosecute the crimes above mentioned. Other principles of international law and criminal govern the Court. The Statute also includes provisions on protection for victims and witnesses. The Statute will not recognize amnesties, pardons or other measures of impunity. The Court will not impose death penalty. The ICC cannot have jurisdiction over crimes committed before the Court is established based on the principle of non-retroactivity. It is a result of a compromise with governments nervous about the Court. But the crime of enforced disappearance could be still used to reach back to past and prosecute human rights violators for crimes committed before the establishment of the ICC as long as there is no acknowledgement of the fate of the disappeared. This constitutes a great hope for victims families of victims and NGOs working on involuntary disappearances.
III-7- The Inter American Convention on the Protection of All Persons from Enforced or Involuntary Disappearances.
To be completed
III-8- The United Nations Draft Convention on the Protection of All Persons from Enforced or Involuntary Disappearances.
To be completed
IV- RESULTS OF THE MEETINGS WITH THE INDONESIAN AUTHORITIES AND INSTITUTIONS
Kontras had arranged meetings with the president Gus Dur and Secretary General Asmara Nababan. Both were positive, in terms of lobbying the national institutions.
IV-!- . Meeting with Mr. Asmara Nababan
On Thursday 30 th November, at 4.00 pm, all the participants joined the meeting with Mr. Asmara Nababan in the Human Rights commission building. The meeting lasted an hour and a half. Ms. Mary Aileen Bacalso, Secretary General of the AFAD and Ikravany Hilman, coordinator from Kontras, presented the AFAD and the meeting and Mr. Asmara Nababan explained the role and function of the Human rights Commission. The lawyers could then ask questions and a discussion followed.
Mr. Asmara Nababan pointed out that the Indonesian Human Rights Commission does not have the power to make decisions on the cases they investigate. Komnas-HAM can only submit their conclusions and recommendations to the Attorney General and the government, and has only a consultative and not a binding opinion.
This meeting helped the non-Indonesian participants to understand better the limited role and power of the Human rights commission in Indonesia. Some participants were also able to compare the functions and powers of the national human rights commissions in their countries and also to briefly explained the situation regarding involuntary disappearance in their country. The Indonesian participants would have liked to meet the less progressive members of the human rights commission.
IV-2-. Meeting with President Gus Dur
On Friday 1st December at 2.00 pm a delegation of 12 persons went to visit the President Wahid. The delegation included Mr. Roberto Garreton from Chile; Mr. Diego Morales from Argentina; Mr. Benjamin Cuellar from El Salvador; Ms. Isabella DC Fereira from East Timor; Mr. Parvez from India; Mr. Farooq from Pakistan; Ms. Mary Aileen Bacalso from the Philippines; Mr. KDC Kumarage from Sri Lanka; Mr. Nakhoin Chomphuchat from Thailand; Mr. Munarman from Kontras Indonesia; Mr. Aguswandi from Aceh, Indonesia; Mr. Pieter Ell from Papua, Indonesia.
The meeting with the president lasted 40 minutes. Mr. Munarman explained Kontras concerns on the Indonesian situation. Ms. Mary Aileen Bacalso explained the recommendations of the AFAD and the meeting. Among the recommendations were mentioned:
- the necessity for countries to ratify the International Covenant for Civil and Political Rights, the UN Convention against Torture, the Rome Statute of 1998 for the establishment of the international Criminal Court and other human rights international instruments;
- the importance of creating a regional mechanism to prevent involuntary disappearance like the Inter American Convention on the Protection of All Persons from Enforced or Involuntary Disappearances.
Regarding the Indonesian context, the AFAD recommended that:
- the Indonesian government invites the United Nations Working Group on enforced or Involuntary Disappearance (UNWGEID) to make a country visit and investigate all the cases of involuntary disappearances;
- all the cases of involuntary disappearance should be investigated and the officers suspected of committing human rights violations should face trial;
- the protection of all persons working for human rights should be ensured;
- the role of the Human rights Commission should be strengthen.
The President Gus Dur showed his interest in the recommendation of inviting the UNWGEID in Indonesia and the recommendation of strengthening the role of the Human Rights Commission. He also asked the Indonesian participant from Papua to present directly to him a report on the human rights violations in his region.
To be completed…
This meeting was a good opportunity to publicize AFAD preoccupations in Asia and in Indonesia in particular. It was also the first time AFAD meets the Chief of the State of one of its members.
V- SUMMARY OF THE 9 RESOLUTIONS ADOPTED BY THE CONFERENCE
The participants to the lawyers’ meeting have adopted nine resolutions to contribute to the struggle against involuntary disappearance.
The lawyers from Asia and Latin America urge the governments and legislatures of Asian countries to enact a domestic legislation that will criminalize enforced ort involuntary disappearance, in accordance to international human rights standards.
They also called the Asian governments to establish an Asian Regional Trial Court, which would be competent for trying and deciding for human rights violation cases committed in the Asian countries and which decisions would be final and enforceable judgements for the national courts.
The participants of the lawyers’ meeting also emphasized their support to the establishment of the International Criminal Court, in calling the Asian government to sign and ratify the Rome Statute and in committing themselves to conduct information campaigns about the International Criminal Court in their respective countries and to lobby their respective governments.
The lawyers urged also the States to guarantee the right to reparation for the victims of involuntary disappearance, including restitution, compensation, rehabilitation (physical and psychological) and satisfaction.
Willing not to let this meeting without concrete follow-up, and considering the amount of work, the follow-up of the conference would create, the participants agreed on.
In addition to the resolutions above-mentioned, particular resolutions were adopted on several countries. In a resolution on Sri Lanka, the lawyers called the Sri Lankan authorities, to prosecute all those identified as alleged offenders in involuntary cases and to ensure the impartiality and independence of the national human rights commission. Similarly, they demanded the Indian authorities to appoint an independent judicial commission to investigate all the cases of involuntary disappearance in Jammu and Kashmir since 1989 and to try all the perpetrators of involuntary disappearances. They also called the Indian government to allow the UN working group on enforced disappearances and international Non Governmental Organizations to visit Kashmir, Punjab and North East States of India. Finally they expressed their support to their Indonesian colleagues in calling the Indonesian government to engage a reform of the justice system, to investigate cases of human rights violations and try all those suspected of committed human rights violations. They also urged the Indonesian government to stop the continuing practice of involuntary disappearance and ensure the protection of all persons working for human rights.
VI- IMPACT OF THE CONFERENCE ON AFAD AND AFAD MEMBERS
During this conference, AFAD has shown its capacity to strengthen its international campaign against involuntary disappearance. The links between organizations from Latin America and Asia are essential to an effective work at the international level and to a relevant and experienced lobbying at the national level. AFAD and its members not only gained experience in this regard, through the meaningful interventions of the participants, but also could reinforce the determination of all the participants to work together.
To be completed: the contribution of AFAD members could be asked. good if we can quote them.
VII- PROPOSALS VIS-À-VIS CONCRETE IMPLEMENTATIONS OF THE RESOLUTIONS
Some of the resolutions adopted by the participants to the lawyer’s meeting are focussing on country situations and others are more oriented on the international and regional instruments. Different activities can be proposed to implement these resolutions.
- Research activity to strengthen the AFAD capacity to lobby on cases and law instruments of the countries of AFAD members.
AFAD should be able to create its “country cases data base” accompanied by a comprehensive summary of the law instruments available in the countries of AFAD members, so that it can provide a quick and adequate response on emergency cases and on other lobbying activities. This would be the result of a continuous research activity lead by AFAD secretariat with the help and information of the AFAD members (through questionnaires and immediate information and follow up on cases).
- Assistance of AFAD members in the filing of cases:AFAD secretariat would provide assistance to AFAD members in their filing of their cases, if necessary in asking advice from other members or participants who have already filed similar cases.
- Training activities in the different countries with the help of AFAD members.
With the help of its members, AFAD secretariat will organize training activities on law instruments, national and international, in the respective countries. The participants of these activities should be lawyers or the legal officers of other NGOs working on human rights in the country were is held the training. Partnerships with law schools and universities could be also proposed. These training activities in the different countries should be also used as an opportunity to arrange meetings with judges, members of human rights commission and national authorities. Prominent lawyers and NGOs workers from countries experienced in lawsuits on involuntary disappearance would be invited.
- Lobbying activities
AFAD secretariat will keep its lobbying activities on particular cases linked to the actuality, through press conferences, press releases, solidarity messages and if possible in arranging meetings with the embassies or representations of the respective countries.
AFAD Secretariat could also organize lobbying activities on law instruments, national and regional and international, on a regular basis, in using the occasion of particular cases or particular events or commemorations.
The activities of lobbying the governments to ratify the existing international law instruments, can be arranged in accordance with the dates of signature of treaties, a new ratification to an existing international instruments, human rights sessions in the United Nations, reports from other NGOs. The visits of delegations of countries which have already ratified the concerned treaties can also be use to pressure the country to ratify the international law instruments (to organize demonstrations or if possible to ask the delegation to raise the issue during its meeting with the national authorities).
- Strengthen AFAD contacts with NGOs or groups/ coalitions of NGOs working on :
- Supporting the establishment of ICC, so that common activities can be organized
- lobbying at the European, Inter-American Courts on Human rights, so that AFAD can benefit from their
experience to prepare its lobbying for the establishment of an Asian Human Rights tribunal. Contacts should be also made with African NGOs which have experience with the functioning of the African Commission on human and people’s rights, in order to gain also from their experience in a less influential institution.
ANNEXES
1- list of participants and contact numbers (?)
2- programme of the meeting
3- the speeches
4- the resolutions
5- the press statement