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

35 Pages Posted: 1 Jul 2009 Last revised: 30 Dec 2009

Brian Finucane

Yale University - Department of State

Date Written: June 28, 2009

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

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: https://ssrn.com/abstract=1427062

Brian Finucane (Contact Author)

Yale University - Department of State ( email )

2201 C Street
Washington, DC 20520
United States

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