Enforced Disappearance as a Crime Under International Law: A Neglected Origin in the Laws of War

Abstract

Enforced disappearance as a crime under international law has a long and neglected history. In this Note I argue that the criminal prohibition of disappearance is rooted in the laws of war, rather than in late-twentieth-century human rights law. By analyzing the judgments of the Nuremberg Tribunals, I show that the conduct underlying enforced disappearance carried individual criminal liability at the time of the Second World War, both as a war crime and as a crime against humanity. I trace the origins of the prohibition to the protection of the family by the nineteenth-century laws of war. By using the prosecution of enforced disappearance in Bosnia and Herzegovina as a case study, I show the practical relevance of enforced disappearance’s grounding in the laws of war.

Keywords: law of war, international humanitarian law, international criminal law, enforced disappearance, forced disappearance, Nuremberg, war crimes, Bosnia and Herzegovina, IMT, NMT, Night and Fog