Edited by Robert Kolb and Gloria Gaggioli
Chapter 16: The prohibition of enforced disappearances: a meaningful example of a partial merger between human rights law and international humanitarian law
The phenomenon of enforced disappearances is not new. It is generally claimed that Hitler’s Nacht und Nebel decree, which provided for enforced disappearance of ‘undesirable elements’, was one of its first formulation. Enforced disappearances have been practised on a large scale in Latin America. This phenomenon has not yet been eradicated, as evidenced by the Reports of the Working Group on Enforced or Involuntary Disappearances. The practice of secret detentions by the United States of America in the context of the ‘war on terror’ is just one of many recent examples. The first international treaties addressing the problem of disappearances in a broad sense were the 1949 Geneva Conventions. They include a range of preventive obligations in this regard, without however embracing the concept of ‘enforced disappearance’. This latter concept was developed subsequently by the case law and practice of human rights monitoring bodies as well as by human rights treaties and soft law instruments. Meanwhile, the case law of international criminal tribunals has recognized that this practice, when widespread or systematic, may constitute a crime against humanity. From these various elements, was born the 2006 Convention for the Protection of All Persons against Enforced Disappearance (hereinafter Convention against Enforced Disappearance). It provides the latest (but not necessarily the most complete) definition of this phenomenon, namely: [T]he arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State,
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