Civil and Political Rights, including questions of: Disappearances and Summary Executions

Report submitted by Mr.Manfred Nowak independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearances pursuant to paragraph 11 of commission resolution 2001/46.

It emerges from this study that enforced disappearance is one of the most serious human rights violations, which, if committed as part of a widespread or systematic attack against civilians, constitutes a crime against humanity.  As the annual reports of the Working Group on Enforced or Involuntary Disappearances to the Commission show, enforced disappearance today can be considered a universal phenomenon which continues in a considerable number of countries in a systematic manner.  The crime of enforced disappearance is not only directed against the disappeared persons but equally against their families, friends and the society they live in.  Often, the disappeared persons are killed immediately, but their children, parents or spouses continue to live for many years in a situation of extreme insecurity, anguish and stress, torn between hope and despair.  They must, therefore, also be considered as victims of enforced disappearance.

In view of the extreme seriousness of this human rights violation, various measures have been taken in response by the international community at the universal and regional levels, and certain standards have been developed in the framework of international human rights, humanitarian and criminal law.  At the same time, it must be recognized that protection against enforced disappearance is a slowly developing concept with many gaps, disputed questions and uncertainties.

Executive summary

I. MANDATE AND METHODS OF WORK

II. THE PHENOMENON OF ENFORCED DISAPPEARANCE

III. THE RESPONSE OF THE INTERNATIONAL COMMUNITY TO ENFORCED DISAPPEARANCES

IV. INTERNATIONAL AND REGIONAL HUMAN RIGHTS LAW

A. Case law
1. United Nations Human Rights Committee
2. Inter-American Court of Human Rights
3. European Court of Human Rights
4. Human Rights Chamber for Bosnia and
Herzegovina

B. Development of specific instruments regarding disappearance
1. United Nations Declaration on the Protection of All Persons from Enforced Disappearance, 1992
2. Inter-American Convention on Forced Disappearance of Persons, 1994
3. Draft international convention on the protection of all persons from forced disappearance, 1998

V. INTERNATIONAL HUMANITARIAN LAW

A. In general

B. Protection of the right to life

C. Protection from torture

D. Protection of liberty and the right to a fair trial

E. Protection of family life

F. Protection of children

VI. INTERNATIONAL CRIMINAL LAW

VII. DEFINITION OF ENFORCED DISAPPEARANCE

VIII. IDENTIFICATION OF GAPS IN THE PRESENT LEGAL FRAMEWORK

A. Gaps and “full protection”

B. Definition

C. Concept of victims and human rights violated

D. Safeguards against impunity

E. Prevention

F. Right to reparation

G. Protection of children

IX. CONCLUSIONS AND RECOMMENDATIONS

Bibliography