8.1 Trends in Migration Movements in Africa and from Africa to Europe, Causes and Perpetrators

The history of migration on the continent of Africa dates back centuries, including the slave trade, trade of commodities and trading routes between East Africa and Middle East and bringing migrants to build infrastructure and work on sugar farms. In the last couple decades, many Africans have left their homeland due to poverty, lack of labour opportunities, war and famine, political insecurity and environmental degradation. At the same time, as the number of migrants on the continent has risen, migration has become much more dangerous, exposing many migrants to serious human rights violations, including enforced disappearances and torture. Migrants are particularly vulnerable, as they move often under precarious situations and rely on criminal networks to take them to the final destination. Further, enforced disappearances are often another reason for migrants leaving the country. Currently, international law does not have a definition of international migrant. In 2014, the United Nations Office of the High Commissioner for Human Rights introduced the term, noting that international migrants are all persons outside of the State of which they are a citizen or national, or in case of a Stateless person, their State of birth or habitual address, and who are not refugees. In this chapter, the term ‘disappeared migrant’ will also encompass people who are refugees as defined under the 1951 Refugee Convention as well migrants whose whereabouts remain unknown.

The phenomenon of enforced disappearances is often underreported in Africa and the statistics on migrants are even more difficult to obtain. The lack of proper data is due to several factors, including lack of understanding what enforced disappearances are, fear to report such crime to avoid retaliation and becoming victims of enforced disappearances themselves, as well as common distrust towards authorities to conduct search and effectively investigate the crime as they are often responsible for the commission of enforced disappearances. The United Nations Working Group on Enforced or Involuntary Disappearances (WGEID), whose mandate is to assist victims and families of enforced disappearances worldwide, has since its establishment in 1980 recorded only 4,873 active cases of forcibly disappeared individuals or slightly over 10% of all cases reported from the African countries.Footnote ¹ While WGEID statistics focus on the reported cases of disappearance, the International Office of Migration (IOM) statistics are focused on migrants and note that since 2014, 11,376 migrants having gone missing on the African continent.Footnote ² These data do not provide the full picture of the migrants suffering, as these statistics only compiled those who are recorded dead, leaving those who die without their deaths being recorded or gone missing. As a result, the available statistics unlikely represent the real number, as the African Union notes a close to 50% increase of migrants on the continent from 13.3 to 25.4 million people between a period of 2008 to 2017.Footnote ³

In the last decade, the migration trends in Africa have changed significantly. Not only has the number of migrants almost doubled but also the routes and the profile of migrants have been changing. The African continent has the youngest populations in the world, with many countries having large segments of population below the age of thirty-five. However, the political strife, weak rule of law, war, poor socio-economic conditions and climate degradation force many young Africans to migrate as a matter of survival in some instances or seeking better opportunities in life.Footnote ⁴ Further, more women and girls are embarking on the migratory journey. The statistics show that nearly half of the migrants are women and girls, according to IOM reporting in 2019, 47.5% of migrants from Sub-Saharan Africa and 35.5% from Northern Africa and Western Asia were female.Footnote ⁵

8.2 Criminalization of Migration as a Risk Factor for Enforced Disappearances

The massive flow of the migrants on the continent, both moving to different African countries or leaving for Europe, has prompted many States to adopt harsh policies towards the migrants. Many African governments have used security and economic concerns to justify closing their borders and passing legislation that criminalizes migration, in particular illegal entry and working without a permit. Further, the Khartoum process, a political cooperation between Europe and States along the route of Horn of Africa with specific focus on addressing trafficking and smuggling of migrants, as well as prevention and fight against irregular migration, shifts the physical management of Europe’s borders to African countries by funding projects that enhance border security, upgrade national legislation and disrupt or dismantle migrant smuggling and human trafficking networks in the Horn of Africa.Footnote ⁶ The negative perception of the migrants as a potential security threat precipitates the treatment and human rights violations migrants endure at the hands of the border patrol agents and other government entities. Further, corruption at the border and opportunities to extort money either at the border or in detention facilities lead to human rights violations, including enforced disappearances.Footnote ⁷

Libya, one of the top transit countries to reach Europe, adopted harsh migration policies to control the migration. The law No. 19 of 2010 criminalizes ‘illegal entry and exit from Libya’ and provides for a basis of automatic detention noting that ‘foreign illegal immigrants shall be penalized by detention with hard labour or by a fine not exceeding 1,000 LYD (approximately 200 USD).’Footnote ⁸

Niger is another destination that migrants cross to reach Libya or Algeria. By 2017, close to 170,000 migrants passed through the town of Agadez, in the middle of the country. These numbers have fallen significantly because of external pressure mainly from the European Union that caused the Niger government to criminalize irregular migration, forcing many migrants to cross at night or use smuggling networks, with many ending up disappearing.Footnote ⁹ The repressive approach of certain provisions of Law No. 2015-36 of 26 May 2015 on the smuggling of migrants encourages migrants to live in hiding in conditions that expose them to numerous abuses, which could include the risk of being a victim of enforced disappearance, as the UN Committee on Enforced Disappearances (CED) stated recently.Footnote ¹⁰

Sudan, another transit country used by East Africans to reach Libya, has been reported to treat migrants with excessive brutality. The Sudanese government and the European Union have concluded a partnership agreement to distribute millions of euros to combat illegal migration and human trafficking with most of the money spent on technical equipment and training capacities of security and law enforcement agencies, including the Rapid Support Forces (RSF).Footnote ¹¹ The RSF, led by General Hamedi, has been accused by the International Criminal Court of carrying out war crimes and crimes against humanity, including torture, enforced disappearances and other violations.

Burkina Faso, a transit country in West Africa that many migrants use to reach Libya through Niger, lacks legal and administrative guidance with regard to migration. A draft bill on migration (supposed to replace the 1984 Ordinance regulating the right of entry and leaving the country) was prepared in 2020 but still has not been introduced to the Council of Ministers. The UN Committee on Migrant Workers called on the government to step up its efforts to draft and enact the new migration bill that must be in line with the provisions of the Convention. A National Migration Strategy has been adopted, but the body that is supposed to monitor and evaluate the implementation of the national migration policy (Commissariat Général à la Migration) has still not been established.Footnote ¹² However, the recent coup that replaced the elected government with a military one may not take up the steps to address migration.

As a result of the adoption of laws that criminalize irregular migration and increased militarization of the borders, many migrants are now using irregular routes to avoid detection and detentions, relying on smugglers and human trafficking networks to reach the destination.Footnote ¹³ No region of the continent provides safe passage for the migrants.Footnote ¹⁴ The migrants from Sub-Saharan Africa must cross the Saharan desert to reach Morocco or Libya. In Western Africa, while the Economic Community of West African States (ECOWAS) allows free movement, the failed or weak governments and securitization of borders in Mali, Niger and Burkina Faso exposes migrants to serious human rights violations.Footnote ¹⁵ Migrants from East Africa trying to reach North Africa often undertake difficult journeys crossing to Sudan and especially on the borders between Libya and Sudan experiencing human rights violations at the hands of criminalized gangs.

The weak rule of law, insecurity and civil strife are not only the push factors for migration but also create an environment for non-State actors to occupy territories, exploit weak government structures and engage in human rights violations, including enforced disappearances and torture. In Libya, following the coup that brought down Muammar Khadafi in 2011, the country descended into a civil war with several factions fighting over political power. As a result, the UN-backed government, the Government of National Accord, controls mainly the western territories in Libya while most of eastern Libya is controlled or swayed by the Commander Khalifa Haftar and the Libyan National Army.Footnote ¹⁶ The law that criminalizes illegal migrations and sets up automatic detention of migrants, a political power vacuum and lack of a proper functional legal system have created an environment in Libya in which the government as well as non-State actors exploit the migrants who often become victims of serious human rights violations. An Amnesty International Report concluded that refugees and migrants in Libya are often victims of enforced disappearances at the hands of State agents or militias affiliated with the State or by non-State actors, including armed groups. The refugees and migrants are deprived of their liberty in unofficial places of detention as well as other undisclosed locations.Footnote ¹⁷

8.3 Enforced Disappearances and Related Human Rights Violations in the Context of Migration

The International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) defines enforced disappearances in Article 2 to be ‘the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by the refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such person outside the protection of the law’.Footnote ¹⁸ Considering that, as illustrated above, non-State actors often are key actors with regard to the enforced disappearance of migrants, it is particularly relevant to note that the ICPPED in Article 3 also recognizes situations where acts tantamount to enforced disappearances can be committed by non-State actors and obliges State Parties ‘to investigate acts defined in article 2 committed by persons or groups of persons acting without the authorization, support or acquiescence of the State and to bring those responsible to justice’.

Disappearances can occur in the context of detention or deportation or as a consequence of smuggling or trafficking. Further, every deprivation of liberty in the context of expulsions is an enforced disappearance when subsequently denied by authorities. This is relevant, irrespective of the duration and place of deprivation of liberty. A deprivation of liberty can also occur in places, like in vehicles, on boats or in other places not intended for detention.Footnote ¹⁹

Many of the migrants recall horrific violations they experience in all stages of their journey. They speak of being tortured, subjected to electric shocks, engaged in forced labour and extortion. When speaking of the places of detention, they recall having almost no access to food, living in overcrowded cells with no proper sanitary facilities. As many of the migrants are being held in illegal detention or facilities run by non-State actors who are often supported by the States as is the case in Libya or act with the State’s acquiescence, they do not have access to legal remedies and often only get released after their families pay the ransom. Libya is but one example of the significant role of non-State actors, where the standard attribution of acquiescence makes it particularly difficult to differentiate between enforced disappearances (Art. 2) and acts tantamount to enforced disappearances (Art. 3).

The OMCT report on torture interviewed several survivors who spoke of the subhuman treatment they were subjected to with one of the migrants:

Female migrants, in particular, are at risk for sexual violence and rape. The migrants interviewed by Amnesty International recalled ‘witnessing the rape of women by traffickers and smugglers on multiple occasions during their journey and stay in Libya in 2017 and 2018. Two said they were forced to watch their wives being raped or otherwise sexually abused by traffickers while held in camp near Bani Walid’.Footnote ²¹ All this most often happens without anybody knowing the whereabouts of their relatives along their migration routes.

8.4 The Relevance of the ICPPED for the Protection of Migrants from Enforced Disappearances and the Contribution of the Committee on Enforced Disappearances

The United Nations has two bodies whose mandates explicitly include enforced disappearances. In 1980, the United Nations established the UN Working Group on Enforced or Involuntary Disappearances with a humanitarian mandate to assist families of the victims to obtain information on their whereabouts. In 2017, the WGEID issued a report on migration, discussing the phenomena as it relates to enforced disappearances. The report uses the term ‘disappeared migrant’ and notes that migrants in addition to leaving their countries for the fear of becoming victims of enforced disappearances also face enforced disappearances and other human rights violations along migratory routes within Africa and/or from Africa to Europe. The report further describes the migratory routes as often unsafe and less travelled, noting that many migrants end up in the hands of criminal elements patrolling the border areas or rogue States agents.Footnote ²²

The second UN body with a mandate encompassing enforced disappearances is the Committee on Enforced Disappearance, which is a treaty-based body created following the ICPPED coming into force. Since its creation in 2011, the CED has worked closely with the State Parties to ensure effective implementation of the obligations of the Treaty and accept individual complaints from the victims. The CED has, through review of the compliance with the Convention, provided recommendations to African States on their obligations and standards to protect the migrants. The recommendations to Burkina Faso, Niger, Mali and Tunisia will be discussed in more detail further below.

The CED has paid increasing attention to enforced disappearances in the context of migration, as reflected in its regular work vis-à-vis State Parties and in Principle 9 of the ‘Guiding Principles for the Search for Disappeared Persons’Footnote ²³ adopted in 2019 and dedicated to search for the particularly vulnerable population of migrants. Most recently, on 18 September 2023, CED adopted its first General Comment on enforced disappearances in the context of migration. This was preceded by three years of research and broad consultation in writing and online meetings. During the regional consultation with national human rights institutions (NHRIs) and civil society from West and Sub-Saharan Africa as well as the Maghreb region, all participants described and confirmed the political, legal and institutional deficits that lead to the disappearance of migrants and prevent the clarification of their fates on the African continent. The work on the General Comment and its recent adoption was guided by CED’s commitment to proactively respond to present-day realities, to assist State parties to fulfil their respective obligations under the ICPPED and to provide an authoritative and interpretative position on how to prevent and react to enforced disappearance in the context of migration. Key aspects of the General Comment will be elaborated below.

In addition to the above-mentioned bodies, there are several other special mandate holders and UN human rights bodies working on the issue of the rights of migrants. The Committee on the Protection of All Migrant Workers and Members of their Families (CMW) has been a vocal advocate for the rights of migrants by working with State parties to protect migrants’ rights. Through its General Comment No. 5 on the migrants’ rights to ‘liberty, freedom from arbitrary detention,Footnote ²⁴ the CMW addresses conditions that lead to enforced disappearances and specifically prohibit the use of secret detentions.

8.5 States’ Obligations to Prevent Enforced Disappearances in Migration

All States, under international law, have obligations to prevent human rights violations. However, parties to the ICPPED have additional obligations to search and take action to protect and prevent enforced disappearance. In 2019, with the world paying more attention to the plight of the migrants, the UN General Assembly adopted the biannual resolution on the protection of migrants and this time highlighted the States’ obligations to protect the migrants and specifically referring to the ICPPED and States’ obligations to search.Footnote ²⁵

The duty to prevent within the context of migration and enforced disappearances is fortified in Article 16 of the Convention that states ‘No State Party shall expel, return (“refouler”) surrender or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to enforced disappearances.’Footnote ²⁶ This prohibition of non-refoulement enshrined in all the major human rights treaties, is considered to be a customary international lawFootnote ²⁷ and it offers integral protection against torture and arbitrary deprivation of life.

In emphasizing that the prohibition of refoulement is a jus cogens norm under international law, CED has in concluding observations recommended to the States Parties to ensure, in law and in practice, the strict respect, without exception and not subject to any conditions, the prohibition of refoulement, which entails not to proceed with an expulsion, return, surrender or extradition whenever there are reasonable grounds to believe that a person would be in danger of being subjected to an enforced disappearance. CED has formulated specific recommendations for States Parties to ensure that there are clear and specific criteria and/or procedures for assessing and verifying the risk that a person may be subjected to enforced disappearance in the country of destination prior to expulsion, return or extradition, and that, if such a risk exists, the person is not expelled, extradited or returned. CED has requested strict compliance by the relevant authorities to extradition, expulsion, surrender and return procedures and that a thorough, comprehensive and individual assessment or examination of each case is carried out, impartially and independently, to determine whether there are substantial grounds to believe that the person would be at risk of enforced disappearance before extraditing, expelling, surrendering or returning him or her.Footnote ²⁸ This position has been confirmed and further elaborated in the General Comment, that is, by asking States parties to explicitly incorporate this principle into national legislation.

Besides the specific obligations laid out in Article 16, the General Comment and the previously mentioned Principle 9 of the Guiding Principles for the Search of Disappeared Persons focus on the particular vulnerability and additional risks of enforced disappearances for migrants and persons trafficked. While all families of disappeared persons suffer not knowing whether their loved ones are alive or dead, there are additional obstacles for relatives of disappeared migrants related to the possible undocumented status of the disappeared person, language barriers, being in a country other than the one in which the disappearance presumably occurred and State authorities evading their responsibilities. In some cases, families of the disappeared migrant are reluctant to speak with authorities as the disappeared may not possess the necessary visa or documents to be in the country or because of general distrust of authorities, preventing many relatives from seeking answers. These particular difficulties are directly related – and thus to be considered by State Parties – to the obligations in the ICPPED to search, investigate and cooperate.

8.6 States’ Obligations to Search and Cooperate Relating to Enforced Disappearances in Migration

The Guiding Principles seek to consolidate good practices in searching effectively for disappeared persons, arising from the States’ obligation to search. In the context of migration, Principle 9 particularly highlights the necessity for cooperation between authorities in countries of origin, transit and destination and calls on States to ‘adopt specific search mechanisms that take account of the difficulties associated with migration situations’ and to ‘develop cooperation agreements and establish competent authorities to allow for effective coordination in the search for disappeared persons at each stage of migration’.Footnote ²⁹ The General Comment further underlines that as in migration contexts, cases of disappearance are often not reported, authorities should initiate search and investigation ex officio as soon as they have indications of a disappearance.Footnote ³⁰

Any public search policy adopted by a State party should be designed and implemented with the participation of victims and all persons and civil society organizations with experience and the willingness to cooperate in the design and/or implementation of the policy.Footnote ³¹ While enforced disappearances are prevalent on the continent of Africa, a considerable obstacle to effective search and investigation is the lack of technical capacities, making the search for disappeared migrants quite difficult. For example, the rapid and secure exchange of information and documentation that may help to locate disappeared persons in the country of transit or destination requires not only political will and preparedness – which is a challenge for destination countries in particular – but also administrative and technical provisions and sound knowledge about data protection. To develop and implement comprehensive search strategies, solid assistance from international and national civil society groups and other States in the context of collaboration can help bring the necessary skills to ensure a search is successful.

The ICPPED and the Guiding Principles outline obligations and recommendations for States to prevent, investigate, search and prosecute enforced disappearances and provide reparations to victims of enforced disappearances. However, both documents do not fully clarify situations of enforced disappearances in the specific migration context. A study on ‘Disappeared Migrants and Refugees. The Relevance of the International Convention on Enforced Disappearances’,Footnote ³² published by the German Institute for Human Rights in 2020 identified a number of uncertainties arising from the ICPPED on the protection and search of forcibly disappeared migrants that warranted the attention of the CED. These relate to legal issues that merit the Committee’s interpretation, for example, on the obligation to undertake ex officio investigations or to ensure the right to report in transnational situations. This study as well as the growing trends of enforced disappearance in the context of migration initiated the CED’s intensified work on these issues, which eventually brought about the adoption of its first General Comment.

In this authoritative document, CED elaborates in detail that, as disappeared migrants may cross many countries to reach their final destination, the cooperation and collaboration between States to prevent disappearances is essential. Article 15 of ICPPED outlines the principles of collaboration noting that, ‘States Parties shall cooperate with each other and shall afford one another the greatest measure of mutual assistance with a view to assisting victims of enforced disappearance, and in searching for, locating and releasing disappeared persons and, in the event of death, in exhuming and identifying them and returning their remains.’Footnote ³³ The General Comment translates this into migrations contexts by calling for ‘effective interinstitutional cooperation and coordination … among institutions from countries of origin, transit, destination or return’.Footnote ³⁴ The Guiding Principles transform these cooperation obligations into practical measures on the ground. Both the Principles and the General Comment emphasize the importance of mutual assistance and cooperation and the right of victims to report the disappearance irrespective of their migratory status.

In its ongoing work, CED has dealt with several individual cases related to migration and trafficking, in particular addressing the need for cooperation of States when searching and investigating cases of disappeared migrants in multiple circumstances. Among recent examples are confidential requests for urgent actions on behalf of domestic workers from country A who disappeared in country B and their relatives caught between authorities of both countries shifting the blame onto each other. There is also the huge dimension of disappeared migrants in Mexico that CED had to deal with on site during its visit to the country in November 2021. CED was confronted with multiple allegations of disappearances that occurred in prisons and migration centres and of migrants illegally detained at unknown locations, and it found this development facilitated by an almost absolute impunity.Footnote ³⁵ The specific challenges related to trafficking of persons were taken up in preparation of the List of Issues for the review of Nigeria, a country with high levels of trafficking. To enable and facilitate the dialogue with the Nigerian government on this issue, CED asked for information on measures to improve the lack of official data of trafficking cases and identification of trafficking cases among the internally displaced population to ensure that all victims of trafficking are also protected from enforced disappearance.Footnote ³⁶

The common recommendation CED has issued to State Parties in the above-mentioned situations is very clear but far from implemented: to take measures in conjunction or in cooperation with countries of origin, transit and destination of migrants and of persons subjected to trafficking in persons, ensuring the participation of victims and civil society.

8.7 CED’s Recommendations to African State Parties

One of CED’s main tasks is to monitor State Parties’ compliance with the ICPPED by reviewing the reports submitted by States Parties and adopt the Concluding Observations to provide guidance on meeting their obligations under the Convention. With regard to the migration context, the Concluding Observations on African State Parties that have been adopted so far mainly refer to the prohibition of non-refoulement pursuant to Article 16. Such specific recommendations were addressed to Tunisia and Burkina Faso in 2016, to Gabon and Senegal in 2017 and to Niger in 2022.

Vis-à-vis two of the reviewed African countries (Gabon and Senegal), CED regretted that it had received inadequate information on the prohibition of refoulement, lacking details on the mechanisms in place and the criteria applied as part of expulsion, return, surrender or extradition procedures to assess and verify the risk that the person concerned runs of becoming a victim of enforced disappearance.Footnote ³⁷ As CED carefully monitors developments in national legislations, it noted in regard to the Convention’s implementation in Gabon, Tunisia and Burkina Faso that the States have no explicit prohibition of the expulsion, return, surrender or extradition of a person where there are substantial grounds to believe that he or she is at risk of becoming a victim of enforced disappearance as required pursuant to the Article 16 of the ICPPED.

On Burkina Faso, CED found that the principle of non-refoulement is not expressly provided for in legislation and, therefore, there is no guarantee of legal protection for persons who are at risk of enforced disappearance in the event of their return to another State. The Committee recommended taking the necessary steps to incorporate the principle of non-refoulement explicitly into its legislation, in order to ensure that individuals are not at risk of enforced disappearance in the event of their return to another State. Further, the Committee took note of the information concerning the various procedures for expulsion and extradition and the remedies available.Footnote ³⁸

To Gabon and Tunisia, CED recommended to consider introducing into domestic law an explicit ban on the expulsion, return, surrender or extradition of persons where there are substantial grounds to believe that they are at risk of becoming victims of enforced disappearance. It also recommended that the State Parties take the necessary steps to ensure that the principle of non-refoulement is respected in practice, including by carrying out an individualized assessment prior to expulsion, return, surrender or extradition in order to determine whether there are substantial grounds to believe that the person concerned is at risk of becoming a victim of enforced disappearance.Footnote ³⁹ As Tunisia lacks a legal framework on asylum, the Committee recommended to expedite the adoption of such on asylum and ensure that it provides for the guarantees necessary to prevent any risk of refoulement.Footnote ⁴⁰

In the recommendations to Senegal, CED again underlined that the principle of non-refoulement must be strictly observed in all circumstances. The Committee took note that it is possible to appeal with suspensive effect against an expulsion decision before the Administrative Division of the Supreme Court. It noted with interest the intention to include in the reformed Criminal Code an explicit prohibition against the expulsion, return, surrender or extradition of a person where there are substantial grounds for believing that he or she would be in danger of being subjected to enforced disappearance.Footnote ⁴¹ Unfortunately, until today this has not been implemented.

In addition to the issue of refoulement, in its Concluding Observations to Gabon, CED also raised concerns on reports of the scale of trafficking in persons, both foreign and Gabonese nationals, especially women and children who are particularly vulnerable to being placed outside the protection of the law and subjected to enforced disappearance, in particular when they are under the control of non-State actors. CED remained concerned at the current inadequacy of the legal framework to address this extremely serious situation and recommended the amendment of this legal framework in order to ensure that all forms of trafficking in persons are actually punished. Due to the high risk of migrants becoming victims of human trafficking, it is particularly noteworthy that CED raised this concern and recommended that Gabon, in cooperation with countries of origin and destination and victims of trafficking, redouble its efforts to prevent trafficking in persons and disappearances.

The most recent review took place in March 2022 when CED discussed the report of Niger with the State Parties’ delegation. With regard to Article 16, Niger explained that extradition, return, expulsion or surrender may not be granted to the requesting State when the person is at risk of torture or other cruel, inhuman or degrading treatment or would be in danger of being subjected to enforced disappearance. The delegation further underlined that Act No. 97-016 of 20 June 1997 on the Status of Refugees governs the expulsion and return of refugees and asylum seekers and an accompanying decree lays down the procedures. All decisions are subject to appeal. The State Party delegation assured that all officials involved in making decisions on expulsion, return and extradition (public prosecutors, police officers, gendarmes, national guards and administrative officials) are trained on criminal procedure, law enforcement rules and compliance with international conventions on the promotion and protection of human rights.Footnote ⁴²

In its Concluding Observations, however, CED stressed its concern about allegations that individuals ‘have been removed from Niger in the context of administrative or extradition procedures, despite proven risks that they would be exposed to torture or ill-treatment in the country of return’.Footnote ⁴³ Due to the repressive approach of certain provisions of Law No. 2015-36 of 26 May 2015 on the smuggling of migrants, CED raised concerns that this may encourage migrants to live in hiding in conditions that expose them to numerous abuses, which could include the risk of becoming a victim of enforced disappearance and called on the State Party to revise this law in the light of relevant international standards. CED strongly referred to Article 16 of the ICPPED to strictly respect it under all circumstances and fully implement it into national legislation.Footnote ⁴⁴

As the ICPPED does not include an explicit provision on transnational disappearances, Article 16 is the most obvious relevant provision of the ICPPED with regard to migration. This can explain the almost exclusive focus of the CED’s Concluding Observations on the implementation of Article 16 when reviewing enforced disappearances in the context of migration. However, this neglects the relevance of other ICPPED provisions for the prevention of enforced disappearances of migrants, which has now been elaborated in detail in the General Comment. For example, as shown above, secret or illegal detention centres entail great risks for migrants to become victims of enforced disappearances. The prohibition of secret detention, the guarantee of fundamental safeguards in all cases of deprivation of liberty and the proper maintenance of registers according to Article 17 is an issue in all Concluding Observations cited above but without reference to the particular risks for migrants. The obligations to ensure the right to report, to provide mutual assistances and to cooperate have also been identified as most relevant in migration contexts. Thus, when reviewing State Parties’ reports, CED will hopefully integrate the findings of the General Comment in future reviews and Concluding Observations to raise awareness on the growing phenomenon of enforced disappearances in the context of migration. Following the most recent review of Greece, with a reportedly high number of migrants who have disappeared in Greek waters of the Mediterranean and the Evros river, CED adopted Concluding Observations that comprehensively reflect the various aspects of obligationsFootnote ⁴⁵ and thus could serve as good practice for other reviews ahead.

8.8 African Human Rights System and Enforced Disappearances

The African Human Rights system provides for the protection of migrants. The Banjul Charter, the basic human rights document for the continent, protects the right to life, prohibition of torture and cruel, inhuman and degrading treatment, right to personal liberty and protection from arbitrary arrest and freedom of movement.Footnote ⁴⁶ While currently there is no single human rights instrument banning enforced disappearances, the scrouge of this horrific violation has not escaped the attention of the African Commission and the African Court. In 2018, the African Commission extended the mandate of the Working Group on Death Penalty, Extra-Judicial, Summary or Arbitrary Killings to include enforced disappearances.Footnote ⁴⁷ In 2020, the Commission adopted another resolution paving the way for the Working Group to draft guidelines for the Protection of All Persons from Enforced Disappearances in Africa.Footnote ⁴⁸ The Commission has adopted the guidelines in spring 2022 and a specific section is dedicated to the context of migration and disappearances on the continent. The Malabo Protocol and the African Union Convention for the Protection and Assistance of Internally Displaced Persons (the Kampala Convention) prohibit the use of enforced disappearances.

The African Commission also has a specifically dedicated office of the Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in Africa. In 2006, the Rapporteur’s mandate was expanded to include migrants with a focus on monitoring of human rights violations, to undertake studies and fact-finding missions and assist member States in developing appropriate policies, regulations and law for the effective protection of migrants.Footnote ⁴⁹

In 2021, the Commission adopted a specific resolution highlighting the problem of missing migrants in Africa and the impact on their families. The Commission recalled that many refugees and migrants go missing during their journeys and are at risk of enforced disappearances, in detention in transit or destination countries or even in their country of origin when they are deported, including detention of a person in a secret/unofficial place, which has consequences for the missing persons and their families, in particular women and children, and communities in the short and long term. Further, the resolution highlighted the obligations States have to prevent migrants from going missing in the first place, to facilitate search and identification as well as to support families so that they can know the fate of their missing relatives.Footnote ⁵⁰ The Commission called on States to be more proactive in addressing migrants’ situation and emphasized the obligations States have to protect human rights. In particular, the Commission called on the States to adopt measures to prevent migrants from going missing, respect the principle of non-refoulement regardless of the migrant status and to avoid enforced disappearances, the States should use detention as last resort.Footnote ⁵¹

Finally, the African Union in 1969 adopted a Convention Governing Specific Aspects of Refugee Problems in Africa acknowledging the right to asylum and also codifying the principles of non-refoulment through article 2, which specifies that ‘No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened for the reasons of race, religion, nationality, membership of a particular social group or political opinion.’Footnote ⁵²

While the African Human Rights system is independent from the United Nations, the African Commission has consistently applied the same standards to protect migrants and refugee seekers as the UN. Further, the collaboration between the bodies has been strengthened since the introduction of the Addis Ababa Road map in 2012 that creates synergies between the African Commission and the UN Special mandate holders to identify synergies, develop joint actions and ensure systematic information sharing on human rights on the continent.Footnote ⁵³

8.9 How to Fight the Enforced Disappearances in the Context of Migration in Africa

The international and the African human rights systems in principle provide good legal provisions and instruments to protect migrants from becoming victims of enforced disappearances and search and investigate the cases of this heinous human rights violation. The ICPPED clearly outlines the States’ obligation on enforced disappearances. It is at the crossroads of international human rights law and international criminal law and can become a strong tool for the global prevention of enforced disappearance also in the context of migration. CED offers important guidance for State Parties and its work should also signal to the victims that their fate is being taken into account. The particularly vulnerable situation in which migrants and refugees find themselves, on the one hand, and the increasing defensive reflex of States when it comes to migration, on the other, do not make it an easy task for CED. However, dedicating its first ever General Comment to enforced disappearances in the context of migration clearly reflects its commitment to take on the challenge and to contribute to translating important questions of international law into political action.

This legal and institutional basis is undoubtedly an important but not the only part of an overall situation that needs more efforts from all States and the international community. The efforts should focus on the ratification and implementation of international and regional instruments, the necessary training of law enforcement personnel and relevant personnel in the countries and the need to increase awareness among civil society on the ground on enforced disappearance and migration.

As illustrated above, the implementation of the ICPPED by its State Parties is still far from perfect, which does not only apply for African States. Besides that, ratification in Africa lags behind other regions, with only nineteen out of fifty-four African States having ratified the ICPPED. Mali is the only one that has recognized the competence of the CED to receive communications from individuals or any other State Party in accordance with Articles 31 and 32 of the ICPPED. Despite the low numbers of States ratifying the ICPPED and having no regional treaty with specific focus on enforced disappearances, many African States are parties to other regional and international treaties that specifically address the rights violated by the crime of enforced disappearances. The ratification would provide the African States with a road map to protect their own citizens against enforced disappearance and to increase cross-border cooperation amongst them. The most recent ratification from Africa came from Sudan in 2021. This was a particularly welcome ratification, given the country’s decades of dictatorship and its relevance as a transit country. But as with almost every State Party, ratification is only the first step. It will take a lot of work and political will until no more people – residents as well as migrants – forcibly disappear there. The ongoing violent conflict has significantly increased the challenges once more.

A recent illustrative example for the need for training of law enforcement personnel has been formulated by CED when it regretted in its Concluding Observations following the review of Niger that ‘no court decisions relating to cases of enforced disappearance have been registered and that, according to the State party, the non-application of the Convention is due in particular to the fact that judges and other judicial actors are unaware that the Convention exists’.Footnote ⁵⁴ This is but one example of the recommendations to provide training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody or treatment of any person deprived of liberty according to Article 23 that CED directs to State Parties in most Concluding Observations.Footnote ⁵⁵ With regard to the specifics of enforced disappearances in the context of migration, training for all authorities and State officials dealing with migration is even more relevant and should include topics like the particular vulnerability of migrants and especially migrant children and the interconnection of migration, trafficking and disappearances.

The phenomenon of enforced disappearances is quite unknown despite the high occurrence of this crime on the continent. This is due to the lack of understanding of what an enforced disappearance is, reluctance of the families to report disappearance for fears of being harassed or becoming victims of human rights violations themselves, distrust in the authorities to carry out effective investigations and lack of laws and political will to eradicate this crime. While men are predominantly victims of enforced disappearances, they leave behind wives and children who often bear the brunt of the disappearance. The culture in Africa is no different, and women, who are often reliant on men to be breadwinners, find themselves without any financial support, unable to obtain jobs and support their families. Sometimes, the wives are blamed for the disappearance and ostracized, unable to move on, and continue to suffer for long periods.

Within the context of migration on the continent that has many porous borders and migrants have to cross several countries to reach their final destination, the awareness raising on the issues among the population and capacity building for the government entities interacting with migrants remains one of the challenges ahead.