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March 26, 2002


Oral Presentation of the Report submitted by
Mr. Manfred Nowak,
Independent Expert, on the international legal framework
for the protection of persons from enforced disappearance,
pursuant to paragraph 11 of Commission Resolution 2001/46



Mr. Chairman,

Last year this Commission decided to go ahead with the drafting of a binding normative instrument for the protection of all persons from enforced disappearance. After the present session of the Commission, an inter-sessional working group will start to draft such a binding instrument on the basis of the 1992 UN Declaration on Enforced Disappearance and the draft convention on disappearances which the Sub-Commission had adopted in 1998. In the meantime, the Commission has also requested an Independent Expert to “examine the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearance” and to identify gaps “in order to ensure full protection from enforced or involuntary disappearance”.

I interpreted this mandate, which was entrusted to me on 22 June 2001, to be of an exclusively legal nature. After an in-depth analysis of the present international legal framework relating to humanitarian law, criminal law and human rights law, including the extensive case-law by regional human rights courts and the UN Human Rights Committee, I considered it as the main task of my mandate to identify those gaps and ambiguities in the present legal framework which need to be addressed and clarified by a future binding instrument.

Mr. Chairman,

Let me state at the outset that there do exist plenty gaps and ambiguities in the present legal framework which clearly underscore the urgent need for a binding universal instrument in order to prevent the widespread practice of enforced disappearances, one of the most serious human rights violations which is directed at the core of the dignity of both the disappeared person and his or her family.


The most important gap is the lack of a binding obligation to make sure that enforced disappearance is a crime under domestic law with appropriate penalties, and that the principle of universal jurisdiction applies to this crime. It is important that article 7 of the Rome Statute of the International Criminal Court (ICC) recognizes enforced disappearance as a crime against humanity but perpetrators will only in very exceptional circumstances of a widespread and systematic practice be held accountable before the ICC. Effective domestic criminal justice must, therefore, be regarded as the most important mechanism in order to deter and prevent disappearances.

Another gap concerns the definition of disappearance which constitutes a multiple human rights violation of a much more serious nature than just arbitrary deprivation of personal liberty. In addition, the definition of enforced disappearance should go beyond the traditional human rights concept of referring exclusively to State agents. If the focus of a future binding instrument will be on domestic criminal jurisdiction as in the case of the UN Convention against Torture and the UN Declaration on Disappearance, the definition should also encompass non-State actors, similar to the one in the ICC Statute.

Mr. Chairman,

Every act of enforced disappearance is not only a serious human rights violation of the disappeared person, but it also subjects close relatives and friends to a situation of extreme anguish and stress, which is usually intended by the perpetrators and which may last for many years. It is, therefore, of utmost importance that a future binding instrument also explicitly recognizes family members as victims of enforced disappearance and provides them with independent remedies. The most important remedy is the recognition of an explicit right of family members to know the truth about the fate and whereabouts of their loved ones, a right which presently is only explicitly recognized in international humanitarian law in cases of international armed conflict.

There are many other gaps of a more preventive nature (such as the lack of a legal obligation to maintain centralized registers of all places of detention and detainees) and gaps in relation to the right to reparation for victims of enforced disappearance and their relatives which I have pointed out in my written report and which show the need for a binding legal instrument.

I wish to conclude my short oral presentation by pointing out that I identified three different options for such a binding instrument: a separate human rights treaty, such as the draft convention submitted by the Sub-Commission, an optional protocol to the Convention against Torture, and an optional protocol to the International Covenant on Civil and Political Rights. All these options seem to have certain advantages and disadvantages. Under the assumption that Governments wish to avoid a further proliferation of treaty monitoring bodies, I am of the opinion that the Human Rights Committee might be in the best position to undertake the additional task of monitoring States’ compliance with their obligations to prevent disappearances, to investigate cases of disappearance and to bring the perpetrators to justice, and to provide effective remedies and reparation to the victims of disappearance. Let me conclude by expressing my sincere hope that the inter-sessional working group of the Commission, on the basis of all the preliminary work that has been undertaken for many years in this important field of human rights law, will be in a position to finalize the drafting of a binding legal instrument on enforced disappearance within a short period of time for approval by the Commission and the General Assembly. The victims of enforced disappearance deserve it.

Thank you Mr. Chairman.