The gathering was an odd assortment of sorts,
hewing closely to a large life-like Benetton billboard. Because for five
solid days, the Kelas Besar Function Hall of Hotel Wisma PKBI in
Jakarta, Indonesia would feature the same plethora of faces and the
cream of the legal profession - ranging from Latino-Caucasian to South
and Southern Asian - exchanging not only notes and pleasantries, but
even their talents and efficacies (from Seņor Garreton's outpourings of
legal elucidation to Atty. Colmenares' dexterity in both the judicial
bar and the acoustic guitar). In fact, if not for their all-too-serious
pose as they huddle in their seats like UN envoys, the event could have
been mistaken for an ill-timed social gathering or a pre-scheduled
advertising. But when one begins to digest the topic of the various
speakers (punctuated thankfully by light levity and moments of
flippancy), the initial impression would soon fade away.
Officially, the event was dubbed as the Asian and
Latin American Lawyers' Meeting on Involuntary Disappearances,
with emphasis on "lawyers", featuring delegates from Argentina,
Australia, Chile, El Salvador, Indonesia, Kashmir, India, Pakistan, the
Philippines, Sri Lanka, Switzerland, and Thailand. Hosted by the
Indonesian human rights group KontraS (Komisi Untuk Orang Hilang dan
Korban Tindak Kekerasan / Commission for Disappearances and Victims of
Violence) - and made possible through the support og HIVOS, SEAFILD
and USAID - the affair was a brainchild of the Asian Federation Against
Involuntary Disappearances (AFAD) and its biggest undertaking so far
since its Founding congress last May.
For the past four years since 1997, the Federation
has been conducting international solidarity, lobby and campaign work,
most especially with its Latin American counterpart FEDEFAM (Federacion
Latinoamericana de Asociones de Familiares de Detenidos
Desaparecidos/Latin American federation of Associations of Relatives of
the Disappeared Detainees). Through its efforts, AFAD had realized the
need to gain the assistance and expertise of lawyers and other experts,
since even the basic process of case documentation has always been a
pressing concern. Moreover, the campaign in Asia has been marked by the
absence of any legal breakthrough, making this Conference even more
imperative.
Considered as legal luminaries in their own right,
most of the participants have also been activists in their students days
and veterans of the human rights struggle. Not allowing themselves to be
limited within the confines of the courtrooms, they also seen action in
the streets. Yet, for some unknown reason, the holier-than-thou
all-knowing militancy of the Leninist type was notably absent, judging
from the level of synergy, partnership and humor that was exhibited
during the Conference.
Undaunted by pressure or extra load, their
"protracted paper work" produced draft documents and resolutions that
were later presented, adopted and refined. In the of the Meeting, more
than ten input presentations were made and nine resolutions were adopted
and one Conference statement was released, plus meeting with the
Indonesian National Commission on Human Rights, a visit to the families
of the disappeared and a successful audience with the Indonesian
President Abdurrahman Wahid at his presidential abode in the afternoon
of December 1.
A Foretaste of the Indonesian Hospitality
As expected, the affair was graced by members of the
diplomatic corps, leaders from the human rights and NGO community,
family members of the disappeared, government representatives and media
personnel. In that morning of November 27, what initially looked like a
formidable number of 50 or so delegates was reduced to dwarfish
proportions, as the media covering the opening activity far outnumbered
the lawyers, almost to a man.
Reading from a prepared text, KontraS Coordinator
Munarman (perhaps alluding to Deepak Chopra's notion of synchronicity)
pointed to a very uncanny coincidence . For as this meeting of legal
experts from the Third World was being held, the world was entering the
threshold of a new century, "...a century where human values are placed
above all. A century where war has no place in settling our differences.
A century where human relations are based on values, neither based on
repression, nor based on violation." Munarman also added that the
gathering's raison d' etre springs not only from the demand to
address the injustices of the present but also from the need to build
the foundations of a far better and more tolerant future. "War and
violations," he said, "are not our future. Our future is how to raise
our children in peace without war, hate or envy. it is how to develop
our humanity without differentiating between us, without racial
discrimination and also without violations. It is our responsibility to
make it happen."
Taking his cue from his Indonesian colleague, AFAD
Chairperson Edcel Lagman (himself a brother of a desaparecido)
for his part ask his fellow lawyers "to forge an agenda not only to
combat more occurrence of of enforced disappearance but to obtain
justice for the victims and their families." Contrasting the
perpetrators' cloak and dagger methods with the open and aboveground
approaches of human rights defenders, Lagman succinctly encapsulated the
role of lawyers, claiming that, "while involuntary disappearances are
committed in the dead of the night and far flung places, putting an end
to impunity is advocated in the transparency of the courtrooms where the
principal actors are the lawyers of the desaparecidos."
Not to be outdone, representatives from each
participating country also shared their views and experiences in
combating involuntary disappearances, and their reflection on this
deadly scourge. From a Chilean, fro example, we were reminded that to
defeat impunity, there must be a scrupulous respect for the truth, a
sense of history in the work for human rights and a realization of our
struggle's educative and liberative value while Atty. Isabel Ferreira of
East Timor on the other hand, described how the law, in the hands of the
military, is transformed from a guarantor of people's rights to an
arbitrary tool of the State. Thailand's Nakhon Chompuchat, for his part,
narrated how the lack of sincerity among government agencies has
affected investigations, causing fragmentation and disunity among the
victims' families. From Kashmir's Parvez Imroz, he emphasized NGO
mobilization in different countries while KDC Kumarange of Sri Lanka
re-echoed Nietzsche's remark that "those who battle monsters must never
become monsters themselves."
Experience as the Best Teacher
From the discussions and input presentations, the
seemingly contrasting themes of uniqueness and universality soon
emerged. Arguing that cultural disparities and historical
distinctiveness notwithstanding, the participants share the same body of
experience that creates the common bond among them.
this view was highlighted in the presentation of Sri
Lanka's Wishvatith de Silva, a member and legal consultant of the
Organization of Parents and Family Members of the Disappeared (OPFMD).
In his paper entitled Prosecuting a Criminal Complaint
on Involuntary Disappearances: The Sri Lankan Experience, de Silva
mentioned the unusual procedures in Sri Lankan court and few cases of
abductions involving security personnel. He however also underscored how
Sri Lanka, like its other Asian and Latin American counterparts, is in
need of a specific law criminalizing involuntary disappearance. De Silva
observed that since these cases are classified under ordinary criminal
acts, the investigations are carried out by the police or by other
security personnel - the very persons who are usually accused of
committing the same offense. In these circumstances, the complainants
are often harassed and intimidated, causing "grave prejudice to
the complainants, both at the investigation and trial stages, when they
have given their testimonies to the trial courts."
Former Chilean Ambassador Roberto Garreton also gave
a comprehensive backgrounder on the Allende government and its
subsequent fall. Tracing the birth of the Pinochet Junta to the success
of the Cuban Revolution and how it frightened the military and the
Right, the 1973 coup, he explained, led to the emasculation of Latin
America's longest running democracy and the undermining of its otherwise
stable foundations and institutions. Describing the human rights
violations as systematic, institutional, massive, permanent and
universal (in that all Chileans, one way or the other, were victimized
by the regime), Garreton emphasized how the resistance of the Churches
(particularly the Catholic denomination) and the condemnation of the
international community have effectively deprived Pinochet of the
legitimacy and the moral ascendancy to govern. As he correctly remarked,
"neither the churches nor the international community awarded him the
title 'Liberator of the West ' that he aspired to receive. On the
contrary, he was considered as a sinister character, a man without
scruple."
Depicting the struggle for truth and justice as
inseparable, Garreton differentiated global truth and case-to-case
truth, saying that no detail should be excluded and no aspect
unexamined, no matter how trivial they may seem. "Every desaparecido,
everyone executed or tortured has a Christian name, family name,
father, mother, ID and a residence, and the victims are not mere numbers
either" he said. The former envoy also reiterated the importance of
documenting concrete and specific cases, saying that though the effort
may seem futile at first, it will have long-term positive results such
as undermining official version of the military and getting the support
of the international community. He also claimed that appearing before
government tribunals is also necessary, for even it it may not lead to
the release of the victims, contesting them in court can prevent the
possibility of torture and be an additional factor in any social
protest.
Unable to physically go to Jakarta, Linking
Solidarity Director Martha Meijer sent a copy to her paper which
emphasized "the role of civil society in the struggle against
disappearances." Read by Atty. James de la Vega, Meijer justified the
existence of civil society groups and "non-governmental action as a
counterbalance to government violations." By pressuring governments to
abide by its obligations under national and international laws, civil
society is able to "protect the population against injustice and
violations of human rights." Noting the dominance of lawyers in the
Conference, she cautioned the participants from dismissing the ingrained
expertise of the victims' families.
Claiming that the relatives possess "emotional
expertise" brought about by their very personal encounter with
repression and violence, Meijer concluded that "only the relatives of
disappeared persons know how the violation keeps them in a kind of
blackmail situation. Only they know how paralyzing this can be, and how
much courage it takes to break the blackmail by organizing themselves
into associations." She further added that "these non-legal weapons are
necessary to mobilize public opinion, and via the public influence
policymaking to end the abuse of power by the authorities."
The Director of Human Rights Institute-University of
Central America Atty. Benjamin Cuellar also contributed to the
discussion, narrating the extent of human rights violations and enforced
disappearances in El Salvador. Confronted with a popular insurgency in
the countryside, the military begun abducting the children of suspected
guerilla fighters and sympathizers, in order to terrorize the population
and prevent their offspring from following their parents' footsteps.
Since majority of the victims were rural folk who did not know of any
human rights groups working in the capital, documenting the cases and
filing criminal complaints against the perpetrators became tremendously
difficult. And even if, by chance, they knew of their existence, the
victims and their kin either had no adequate resources or were afraid to
come out to pursue their case.
To address this phenomenon, the Catholic Church and
other concerned citizens formed organization called Christian Legal Aid
in 1975. Headed by the much admired martyr Msgr. Oscar Arnulfo Romero,
the organization was able to gather more than 500 cases documenting 188
of them. In the process, the Asociacion Pro Busqueda de Niņas
Desaparecidos facilitated the location of 180 children and their
reunification with their families. Lamentably, another 16 were found
dead. The rest, however, are still being studied and investigated.
Through their efforts, several cases were filed in court. They were also
pivotal in the creation and conceptualization of a National Commission
for the Search of Disappeared Persons.
Regional and International Mechanisms
Likening the struggle against impunity to the
multifaceted ways of winning a was as described by SunTzu, Atty. Rene
Sarmiento of the Philippines reminded the delegates of the many
approaches in combating involuntary disappearance. He also stressed that
the campaign for justice does not end by sharing each others' experience
but also by creating regional and international mechanisms that protect
human rights and fundamental freedoms, among which, he said, is Amnesty
International's 14 Point program for the Prevention of
"Disappearances." Adopted on 18 December 1992, the Program contains
the following provisions:
1. Official Condemnation
2. Chain-of-command control
3. Information on detention and releases
4. Mechanisms for locating and protecting prisoners
5. No secrete detention
6. Authorization of arrest and detention
7. Access to prisoners
8. Prohibition in Law
9. Individual responsibility
10. Investigation
11. Prosecution
12. Compensation or rehabilitation
13. Ratification of human rights treaties and implementation of
international standards
14. International responsibility
Perhaps in reference to Atty. Sarmiento's
remark, Atty. Cecilia Jimenez of the Geneva-based Association for the
Prevention of Torture (APT) underscored the importance of international
standards "as an expression of common and universal values, as a tool
for international work, and as a means to help achieve the resolution of
human rights violations." In line with this principle, Jimenez stated
the need for a new treaty that deals exclusively with disappearances.
though conceding that the majority of the rights being violated by an
abduction or an enforced disappearance are already protected by other
international instruments, there is still an absence of a "universally
applicable treaty clearly establishing State obligations with regard to
prevention, investigation, suppression, international cooperation, and
guaranteeing the right to redress."
Though a draft UN Convention on the Protection of All
Persons form Enforced or Involuntary Disappearances already exist, it
still remains a draft and further awaits implementation. The reason for
this is the opposition to several provisions in the draft which provide
good and innovative ideas in addressing involuntary disappearances. The
process is further stymied by the growing polarization among the State
parties, one group invoking the concept of sovereignty in all
negotiations and another which is less organized and more willing
to compromise their position. This, however, Jimenez remarked, should
not be a ground to abandon the draft Convention. For "like any creation
of humankind, it is never perfect," but it is nonetheless geared towards
liberation and restorative justice.
On a regional level, Atty. Diego Morales of Argentina
had a discussion on the Intern-American Convention on Enforced
Disappearances of Persons. initiated in order to forge a common
response and agenda among members of the Organizations of American
States (OAS) against the phenomena of enforced disappearance, the
Convention was first conceptualized in 1990 and put into effect six
years after with the ratification of Panama and Argentina.
Defining involuntary disappearance as "as the act of
depriving a person or persons of his or their freedom, in whatever way,
perpetrated by agents of the State or by persons or group of persons
acting with the authorization, support, or acquiescence of the state,
followed by an absence of information or a refusal to acknowledge that
deprivation of freedom or to give information on the whereabouts of that
person, thereby impeding his or her recourse to the applicable legal
remedies and procedural guarantees", the said document prohibits the use
of enforced disappearance even in periods of emergency, internal
instability or state of war. The Convention further maintains that the
principle of "due obedience to superiors" cannot be invoked in defending
an act of enforced disappearance and persons receiving such orders have
the right and duty not to obey them.
Further elaborating on the discussion on
international instruments is Atty. Neri Jabier Colmenares' paper on the
International Criminal Court (ICC) Introduced through the signing of the
Rome Statute on 17 1998, the ICC is intended to be a permanent
international body that can "immediately react to breaches of
international human rights and humanitarian law and also formulate
consistent rules and decisions that would provide not only speedier but
also fairer resolution of issues." Unlike International Court of Justice
(ICJ) which deals only with States, the ICC, once ratified, shall
exercise universal jurisdiction and shall have the power to investigate,
prosecute and convict individual offenders. However, once operational,
the Court cannot deal with just any case lest it be swamped by cases
that can best be resolved in the domestic courts. For it will deal only
with four human rights-related crimes that can be committed by
individuals: (1) genocide (which refers to any one or a number of acts
aimed at the destruction of all or part of a certain groups of people:;
(2) crimes against humanity wherein murder is committed as part of a
widespread and systematic attack against a civilian population); (3) war
crimes; and (4) aggression.
Colmebares also cited Article 1 of the Rome Statute
which stipulates that the Court "shall be complementary to any national
criminal jurisdiction." This, he explained, means that the ICC will be
able to act only when States are unable or unwilling to prosecute the
above-mentioned crimes. "Only when the State are unable or unwilling to
prosecute offenders will the ICC be able to have jurisdiction over the
accused." Within this context of "complementarity", the Rome Statute
proposed three ways by which a case be initiated: first, when a State
party refers a "situation" to the Prosecutor; second, when the UN
Security Council refers a situation to the same; or third, when the
Prosecutor initiates an investigation on the basis of information
received from any reliable source whether they are individuals or NGOs.
Finishing Touches
To cap off the five-day activity, nine resolutions
were presented on the last day - a collective effort no doubt and
a fruit of the lawyers' very own labor of love. As a reflection of the
unities that were forged during the week, Resolution 2000-1 calls for
the enactment of "a domestic legislation that will criminalize enforced
or involuntary disappearance as a separate, distinct and continuing
offense" and that "provisions of the domestic law include, among others,
the civil liability of the perpetrators and the State that organized,
acquiesced in, or tolerated the act of disappearance and the exclusion
of those found responsible from the benefit of any amnesty law".
Resolution 2000-2, on the other hand, demands the
creation of an Asian Regional Tribunal that can "try and decide cases of
human rights violations irrespective of the country where such
violations were committed in the Asian region" and that the
"establishment of the Asian Regional Tribunal be contained in an
international convention to be ratified by the countries concerned,"
while Resolution 2000-3 urges the establishment of the International
Criminal Court and Conduct various pressure tactics for the ratification
of the Rome Statute.
Resolution 2000-4, for its part, recognized the
"right to reparation from the harm caused to the victims of forced
disappearance and their families."
Resolution 2000-5 indicates a focal-point to
facilitate the coordination and implementation of the resolutions with
Resolution 2000-6 expressing AFAD's appreciation of the work done by
KONTRAS for the Conference.
call on the Indian government to end the practice of
disappearance and impunity in the State of Jammu and Kashmir was stated
in Resolution 2000-7 while a similar appeal to the Sri Lankan government
was expressed in Resolution 2000-8.
As a final salvo, AFAD and the rest of the Conference
participants, through Resolution 2000-9, made a collective petition to
all national governments, especially the Indonesian government, to
approved the UN Draft Convention on the Protection of All Persons from
Enforced or Involuntary Disappearances and create measures that would
further enhance human rights protection and promotion in Indonesia.
At the onset, it seems that the gradual fulfillment
of this last Resolution is already in the offing, with the positive
response made by the various officials from the government. The
Executive Director of the Indonesian National Commission on Human
Rights, for example, in a meeting with the Conference delegates
recognized the demands of KontraS to invite the UN Working Group on
Enforced or Involuntary Disappearances (UNWGEID) to Indonesia and for
the latter to ratify the Rome Statute establishing the ICC. He advised
the delegates to coordinate with the Indonesian Foreign Ministry to
further bolster its lobbying campaign.
President Wahid, in a 35-minute audience with the
group, also promised to take action on the ICC and re-echo it to the
various line-agencies. He also encourage the delegates, especially
KontraS, to submit specific cases of disappearances to him so that he
may look them personally.
Though totally aware that the full realization of
these Resolutions would take some time, the Meeting has nonetheless
inspired the participants to take action now. through its follow-up
activities and its continuing cooperation with friends from Latin
America, AFAD hopes to further consolidate its gains and develop
campaign initiatives at the national level.
All in all, the Conference proved one thing: that
lawyering does not only entail a detailed knowledge of the law, it also
entails a profound appreciation of the human soul. It is not only about
money and a handsome service fee or the heightened social prestige that
goes with it; but the heights of achievement and the sense of
fulfillment for a job done in earnest. Nor it is solely about protecting
a client in court but of sympathizing with a fellow human being, with
all the worth and fullness one's character intact.
"First, let's kill all lawyers," so wrote William
Shakespeare. Even literary geniuses have their own moments of foibles.
