Practice Relating to Rule 98. Enforced Disappearance
Germany’s Law Introducing the International Crimes Code (2002), under the heading “Crimes against humanity”, punishes anyone who:
causes a person’s enforced disappearance, with the intention of removing him or her from the protection of the law for a prolonged period of time,
(a) by abducting that person on behalf of or with the approval of a State or political organization, or by otherwise severely depriving such person of his or her physical liberty, followed by a failure to give immediately truthful information, upon inquiry, of that person’s fate and whereabouts, or
(b) by refusing, on behalf of a State or political organization or in contravention of a legal duty, to give information immediately on the fate and whereabouts of the person deprived of his or her physical liberty under the circumstances referred to under letter (a) above, or by giving false information thereon.
In 2005, in its Seventh Human Rights Policy Report submitted to the Bundestag (Lower House of Parliament), Germany’s Federal Government stated:
Involuntary disappearance is a grave violation of human rights, which can be observed worldwide … The UN Commission on Human Rights and General Assembly, in a resolution co-sponsored by Germany, therefore continuously condemn enforced and involuntary disappearance …
Over the past years, the realization has taken hold that in individual cases the existing legal bases and differentiated political pressure are not sufficient, but that a legal instrument applicable worldwide is required in order to effectively fight enforced and involuntary disappearance.
At the 57th Session of the Human Rights Commission in 2001. Germany supported an initiative by France to implement an inter-sessional working group with the mandate to elaborate such an international legal instrument against involuntary disappearance …
Germany, which from the beginning has actively and constructively contributed to the meetings of the working group, is in favour of the elaboration of an independent convention.
3. Priorities of the German human rights policy 2005–2006
3.2. Fighting against torture and enforced disappearance
The Federal Government will commit itself emphatically … against enforced disappearance. It will therefore
- aim for the adoption of a convention against enforced disappearance by the UN General Assembly until 2006 and, to this purpose, continue actively contributing to the negotiations on the text in the working group.
In 2006, in a report in response to a request by the Parliamentary Control Panel (parliamentary body controlling intelligence services) regarding incidents relating to the Iraq war and the fight against international terrorism, Germany’s Federal Government stated:
2. Capture and transport of detainees by foreign authorities outside a formal legal procedure; reports of secret prisons and torture
abb) Assessment of the allegations under international law by the Federal Government
All measures taken to fight international terrorism must be in accordance with international law. Resolution 1566 (2004), unanimously adopted in the UN Security Council on 8 October 2004, in this context reminds States:
“that they must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law” (preambular paragraph 6).
The obligation to adhere to international law also applies when States, fighting off a terrorist attack, an ongoing terrorist attack or an imminent attack, in a legally permissible manner invoke the right to self-defence according to Article 51 of the UN Charter.
If the right to self-defence is exercised in the context of an armed conflict, the rules of international humanitarian law, in particular the law of the 1949 Geneva Red Cross Conventions as well as the minimum human rights standards are to be respected. When fighting international terrorism outside an armed conflict, the rules of peacetime international law, in particular those on the protection of human rights, apply. This can lead to differing international law bases for capture, detention and the treatment of detainees.
With regard to the five following thematic issues, the details of the position of the Federal Government under international law are:
Prohibition on secret prisons
According to the conviction of the Federal Government, international law prohibits the installation of so-called “secret prisons”. It imperatively provides for the information of relatives or of the home State of an arrested or captured person.
“Secret or unacknowledged detention” of persons can fulfil the criteria of the prohibition of “enforced disappearances” of persons. The UN Human Rights Committee noted with regard to the 1966 International Covenant on Civil and Political Rights:
“The prohibitions against the taking of hostages, abductions or unacknowledged detention are not subject to derogation. The absolute nature of these prohibitions, even in times of emergency, is justified by their status as norms of general international law” (General Comment No. 29, 13(b)).
The UN General Assembly, the UN Commission on Human Rights and the ICRC have also condemned “enforced disappearances”. Recently, in the context of the UN Commission on Human Rights, a draft for an instrument against “enforced disappearance” of persons, binding under international law, has been developed. Germany actively contributed to the consultations of the working group established for that purpose and is in favour of an independent convention against the “enforced disappearance” of persons.
The Parliamentary Assembly of the Council of Europe, in its Resolution 1463(2005), also supported the call for an instrument, binding under international law, regarding the question of “enforced disappearances”. This instrument inter alia shall contain an
“unqualified prohibition of any form of incommunicado detention and of any secret places of detention”.