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


Brian Finucane


Department of State

June 28, 2009

Yale Journal of International Law, Vol. 35, p. 171, 2010

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.

Number of Pages in PDF File: 35

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


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Date posted: July 1, 2009 ; Last revised: December 30, 2009

Suggested Citation

Finucane, Brian, Enforced Disappearance as a Crime Under International Law: A Neglected Origin in the Laws of War (June 28, 2009). Yale Journal of International Law, Vol. 35, p. 171, 2010. Available at SSRN: http://ssrn.com/abstract=1427062

Contact Information

Brian Finucane (Contact Author)
Department of State ( email )
2201 C Street
Washington, DC 20520
United States
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