United States of America v. Altstoetter and Others (also known as Justice Case No. 3)

Key Judgment

Legal Relevance

Keywords: Systemic Practice | Refusal to Disclose Fate | Relatives as Victims | Crimes Against Humanity

Themes: Characteristics of the Crime | Persons and Groups Affected

The Tribunal found that the offenses carried out pursuant to the Night and Fog program were crimes against humanity, arguing that "systematic terrorism" against a civilian population was a criminal violation of the laws of humanity; internationally recognized human rights and; Control Council Law No. 10. Observing that the laws of war protect the civilian population of any territory occupied by an enemy force, the Tribunal also found that the implementation of the "Night and Fog" programme resulted in war crimes violating customary international law as articulated the 1907 Hague Regulations. In particular, the programme violated the prohibition to confine prisoners of war; the prohibition to suspended the rights of the nationals of the hostile party in a court of law; the occupant's duty to take all the measures in its power to restore and ensure public order and safety while respecting the laws in force in the country; and the duty to respect family honour and rights.

The Tribunal emphasized the effect of the programme upon the families of the disappeared, noting that it was instituted for the purpose of making people disappear without trace, so that their subsequent fate remains secret - creating an atmosphere of constant fear and anxiety among their relatives, friends, and the population of the occupied countries. It also held that the secret arrest and incommunicado detention of the "Night and Fog" prisoners amounted to severe inhumane treatment with respect to the prisoners themselves but also their friends and relatives, emphasising the mental cruelty of such acts. The Tribunal concluded that the secrecy of the proceedings was a particularly serious terroristic measure, since relatives and friends of the disappeared were given no information about the offense for which they had been arrested and this caused fear that a similar fate awaited them.