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; 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.

This chapter will present successively how IHL, HRL and international criminal law contributed, in their own way, to the prohibition and criminalization of enforced disappearances. It will show that these bodies of law are complementary and that their mutual influence allowed a progressive enhancement of the legal protection of persons against enforced disappearances. Finally, it will show how the merger of the rules belonging to these different bodies of law into the Convention against Enforced Disappearances contributed to strengthen the prohibition of enforced disappearances in international law.