ENFORCED the criminal and is transferred to Germany.”(Nuremberg

ENFORCED DISAPPEARANCES
FOR THE INTERNATIONAL LEGAL PERSPECTIVE

Introduction

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            This phrase “enforced disappearances” was firstly used in
1960 to refer action that unexpectedly disappear people against their volition.1 As
a consequence of this action ten of thousands people are disappearing all
around the world which is done by government. It urges us to think how it is
happening and how the human being suddenly disappears?  Individuals are disappearing through arresting
and abducting by members of a repressive State, often in order to get rid of
these people which can be reckoned a “nuisance”. It is at variance with
protection of the law, thus there is no any conduct of legal proceedings
against a defendant for criminal behavior and writ from court commanding police
to perform arrests. In this incident victims find themselves in an occasion of
completely unprotected and in particular, there is dangers of being executed
and exposed to corporal punishment with utterly go unpunished. Indeterminacy of
this people who are exposed to enforced disappearance makes its crime
differently from imprisonment or execution without due process.

Enforced
Disappearance is not newly come into existence in human rights violation. It
has a long and invaluable history, obtaining laws from war. This crime was
firstly became known when Adolf Hitler issued “Nacht und Nebel Erlass” (The
Night and Fog Decree) in 1941.2 Stalin’s
reign of terror and secret arrest was the key incentive to Hitler for the
Decree, in the interest of grasping people who pose a threat to German security
in territories which was occupied by Nazi. Relatives were not informed, for the
purpose of creating uneasiness in their minds of the family of disappeared
person. Hitler’s intention in issuing Decree was stated by the Defendant Keitel
in 12 December 1941 in letter:

“Efficient and enduring
intimidation can only be achieved either by capital punishment or by measures
by which the relatives of the criminal and the population do not know the fate
of the criminal. The aim is achieved when the criminal and is transferred to
Germany.”(Nuremberg Judgement, IMT Serie, vol. 1, 232-233).3

 It is a violation of the rights for both individual
and relatives. Therefore, international law considers that both of them are
victims. Not giving information, indeterminacy and of disappeared individuals
are also physiologically torture for their family.

This
phenomenon also occurred during the 1970s and was the main characteristic in
many countries in Latin America such as Brazil and Guatemala. The practice of
enforced disappearances has also occurred nowadays. For instance, in Turkey
after the 15th July attempted coup government has started to grasp
people who have a relationship with Hizmet Movement not only in territories of
Turkey but also outside of country that happened in Pakistan and Malaysia.

Article
was divided into two parts that concentrates the approach of international law
towards enforced disappearance introduced by International Convention for the
Protection of All Persons and Enforced disappearance is a crime against
humanity under the Rome Statute of the International Criminal Court.

1 Claudio M Grossman, Disappearances, 2008

2 Boot, M. ; Hall, C. K. Crimes against Humanity 2008

3 Gabriele Kirk McDonald, Olivia
Swaak-Goldman, Substantive and Procedural
Aspects of International Criminal Law