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6 January 2003


First session of the inter-sessional open-ended working group
on a draft legally binding normative instrument
for the protection of all persons
from enforced disappearances



Opening remarks by Bertrand Ramcharan
Deputy High Commissioner for Human Rights

Palais des Nations
Conference room XII




Distinguished delegates,

It is a great pleasure for me to open the first session of the working group on a draft legally binding normative instrument for the protection of all persons from enforced disappearance. I wish to extend a warm welcome to the distinguished delegates and observers of the Commission on Human Rights and to the representatives of inter-governmental and non-governmental organisations who are here with us this morning.

Enforced or involuntary disappearance constitutes a particularly heinous violation of human rights which infringes upon an entire range of human rights. Because of its grave nature the United Nations main human rights organs started to pay attention to it some 25 years ago, when the critical situation in some countries made it imperative that the international community take effective measures. The (then called) Sub-Commission on Prevention of Discrimination and Protection of Minorities started dealing with the issue in the late seventies. Then, in 1979, by resolution 33/173, the General Assembly requested the Commission on Human Rights to consider the question of disappeared persons with a view to making appropriate recommendations. The Commission responded to the concern of the international community by establishing the Working Group on Enforced or Involuntary Disappearances in 1980. The Group was the first mechanism set up within the framework of the United Nations Human Rights Programme to deal with specific violations of human rights in an issue-oriented manner.

From its inception, the Working Group has dealt with some 50,000 individual cases pertaining to more than 70 countries. Despite the Group’s efforts some 42,000 of them remain outstanding. Nevertheless, the Working Group, through its persistent contacts with the Governments concerned, has certainly prevented more cases from occurring, although this preventive action cannot be quantified. In addition to its work related to individual cases, the Group has studied situations of disappearances in particular countries, including preventive and remedial legal or institutional mechanisms at the national level, and has recorded its observations in its general reports as well as in special reports following visits to certain countries. It has also examined, at a general level, some of the most important elements leading to the practice of disappearance and I believe that, thanks to its efforts, we are now in a much better position to understand this phenomenon and take measures against it.

Another landmark in the fight against enforced disappearances was achieved in December 1992, when the General Assembly adopted its Declaration on the Protection of All Persons from Enforced Disappearances. Allow me to recall some of the most relevant principles enshrined in this Declaration. The Declaration states that the systematic practice of disappearance is a crime against humanity. It constitutes a violation of the right to recognition as a person before the law, the right to liberty and security of the person and the right to be protected against torture. It also constitutes a grave threat to the right to life. States are requested to take effective legislative, administrative, judicial or other measures to prevent and terminate acts of enforced disappearance, in particular to make them continuing offences under criminal law and to establish civil liability. The Declaration also refers to the right to a prompt and effective judicial remedy, as well as unhampered access of national authorities to all places of detention, the right to habeas corpus, the maintenance of centralized registers of all places of detention, and the duty to investigate fully all alleged cases of disappearances before ordinary courts. No circumstances whatsoever, whether a threat of war, a state of war, internal political instability or any other public emergency, may be invoked to justify enforced disappearances. Some of the most fundamental principles enshrined in the Declaration have been the object of general comments by the Working Group on Enforced or Involuntary Disappearances.

But the interest initiatives to fight the phenomenon of forced disappearances, at the international level, did not stop with the adoption of the Declaration. Efforts to go beyond what had already been achieved and improve the system of protection continued in the 1990. Like in the 1970s, the work of the Sub-Commission on the Promotion and Protection of Human Rights was of great importance in this regard.

In its report to the Commission on Human Rights in 2002, the Working Group on Enforced or Involuntary Disappearances identified impunity as the major reason for the continuation of the practice of disappearances and stressed the importance of bringing the perpetrators to justice. They should be prosecuted either by domestic courts or, where disappearances are committed as part of a widespread or systematic attack against a civilian population, by international tribunals. In the Group’s experience, enforced disappearance mostly occurs in isolation and not necessarily as part of a systematic attack aimed at removing individuals from the protection of the law for a prolonged period of time. Hence, in the Working Group’s view, efforts have to be made to include enforced disappearance as an offence under all domestic criminal codes with appropriate penalties so as to bring the perpetrators to justice before domestic courts. For this reason, the Working Group expressed its appreciation to the Sub-Commission for its elaboration of a draft convention on disappearance, providing for strict measures to be taken at the national level to combat the phenomenon of forced disappearance. The Sub-Commission submitted its draft to the Commission in 1999. Comments on it have been provided by States, inter-governmental and non-governmental organizations and are included in document E/CN.4/2001/69 and Add.1.

As you know, at its 57th session the Commission on Human Rights adopted resolution 2001/46 by which it decided to establish an inter-sessional open-ended working group with the mandate to elaborate a draft legally binding normative instrument for the protection of all persons from enforced disappearance. On the basis of the same resolution the Chairperson of the Commission appointed Mr. Manfred Novak as independent expert to examine the existing international criminal and human rights framework, with a view to identifying any gaps in order to ensure full protection from enforced or involuntary disappearance. Mr. Novak submitted his report to the last session of the Commission in 2002 and will also report to you on this important issue. I wish to thank Mr. Novak for having responded to the invitation made by the Commission and welcome him in the working group to present his study.

The mandate given by the Commission to this open-ended working group is to prepare a new instrument against forced disappearances on the basis of the Declaration on the Protection of All Persons from Enforced Disappearance adopted by the General Assembly in 1992, in the light of the work of the independent expert and taking into account, inter alia, the draft international convention prepared by the Sub-Commission.

On behalf of the High Commissioner, allow me to assure you of the continued support of the Secretariat in the deliberations to come over the next two weeks and extend to you my best wishes for a stimulating and successful session. This new step in the fight against enforced disappearances will indeed be challenging, probably long and complex, but I have no doubt that the final result will be rewarding.



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