A-HRC-13-42

A/HRC/13/42
page 28
prohibition of enforced disappearance is a rule of customary international humanitarian law
applicable in all situations of armed conflict. 64
56. As incommunicado detention is also prohibited under international humanitarian law
applicable to all armed conflicts 65 and to all persons who no longer take direct part in
hostilities, 66 detainees must be registered, provided an effective opportunity to immediately
inform their family and a centralized information bureau of their detention and any subsequent
transfer, and must be permitted ongoing contact with family members and others outside the
place of detention. 67 Article 5 of the Fourth Geneva Convention permits the detaining power to
deny to persons these rights and privileges “where absolute military security so requires” when
an individual found physically in the State’s own territory is “definitely suspected of or engaged
in activities hostile to the security of the State”, or when an individual in occupied territory is
“detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the
security of the Occupying Power”. While the article states that these persons “shall also be
granted the full rights and privileges of a protected person under the present Convention at the
earliest date consistent with the security of the State or Occupying Power”, ICRC stresses that
article 5 may only be applied in individual cases of an exceptional nature, when the existence of
specific charges makes it almost certain that penal proceedings will follow. Bare suspicion of
hostile activities would not suffice; it would have to be a definite suspicion of such
activities. The burden of definite suspicion is a high burden that must be individualized and must
not be of a general nature. 68
III. SECRET DETENTION PRACTICES IN PAST CONTEXTS
A. The emergence of the recent practice of secret detention
57. The phenomenon of secret detention, closely intertwined with enforced disappearances,
can be traced at least to the Nacht und Nebel Erlaß of the Nazi Germany, the “night and fog
decree”, according to which suspected resistance movement members could be arrested in
occupied Europe and secretly transferred to Germany “under cover of night”. 69 These measures
64 Henckaerts and Doswald-Beck, op.cit., pp. 340-343.
65 Ibid., pp. 344-352.
66 Ibid., p. 299.
67 Third Geneva Convention, art. 48, 70 and 122; and Fourth Geneva Convention, art. 25, 26,
41, 78, 79, 106, 107, 116, 128 and 136.
68 Commentary to Convention (IV) Relative to the Protection of Civilian Persons in Time of
War, Geneva, 12 August 1949, art. 5, available at www.icrc.org.
69 Christopher K. Hall, “Enforced disappearance of persons”, in Otto Triffterer (ed.),
Commentary on the Rome Statute of the International Criminal Court, Baden-Baden 1999,
p. 151, with further related references.