First General Comment on enforced disappearances in the context of migration: a relevant step in the protection of migrants’ human rights
Within the framework of the 25th session of the Committee on Enforced Disappearances, the first General Comment on enforced disappearances of persons during migration processes was adopted and launched, which analyzes the importance of States in protecting the human rights of migrants, especially those in a situation of special vulnerability.
The chairman of the Committee, Oliver de Frouville, warned that “Rigid migration policies involving refoulement, expulsions and detention increase the risks of enforced disappearances. Specific measures need to be taken to address the phenomenon.”
For this reason, the General Comment is an important step for States in all regions of the world to adopt measures to protect the human rights of migrants, prevent enforced disappearances and combat impunity.
With regard to the content of the GC, it is important to highlight that it defines the term “migrant” as “a person who moves away from his or her place of habitual residence, either within a country or across an international border, temporarily or permanently, and for various reasons”, and that, with respect to the context or reason for the move, it notes the existence of various situations such as family reunification, national or international armed conflicts, persecution, discrimination, natural disasters, environmental degradation, effects of climate change, difficult economic situations or high crime rates.
In turn, it emphasizes that States, to comply with their obligations under the Convention against Enforced Disappearances, must manage their borders and regulate immigration with full respect for and protection of the human rights of migrants, especially those who are in a particularly vulnerable situation.
The GC emphasizes that the issue of discrimination is of particular concern, as it is a factor that increases the situation of vulnerability and contributes to the forced disappearance of migrants. It also expressly states that the principle of “non-discrimination” is fundamental to international human rights instruments and is considered a norm of ius cogens that must be always respected.
The GC then develops four preventive mechanisms addressed to States to avoid the forced disappearance of migrants:
Firstly, it establishes the prohibition of secret detention of migrants, which includes the obligation to ensure communication with family members, consular authorities or legal representatives. It also provides for the obligation to inform the detained person of his or her rights in an understandable language and the possibility of appealing to a court of law, as well as ensuring immediate contact with national and international refugee agencies.
Secondly, it is recommended that States collect reliable data, not only on missing migrants, but also on persons crossing borders irregularly. These statistics are crucial for understanding the magnitude of the problem of missing migrants and, in turn, contribute to the design of prevention, search, investigation and sanction policies.
In addition, given the cross-border nature of this phenomenon, cooperation among States is essential to develop joint databases and comprehensive migration policies to identify possible patterns in the disappearance of migrants.
Third, it recommends avoiding policies that criminalize migrants and, in turn, suggests promoting access to regular and safe migration to prevent migrants from becoming victims of human rights violations, including disappearances.
Finally, it is recommended that States avoid refoulement or expulsion of migrants, especially collective ones, as they prevent an individual assessment of their human rights protection needs, place them outside the law, and consequently deepen their vulnerability.
In this regard, the Committee considered that returns involving the deprivation of liberty of migrants and the concealment of their fate or whereabouts amount to enforced disappearance within the meaning of Article 2 of the Convention and may also constitute a violation of Articles 17 and 18, which prohibit secret detention.
On the other hand, with respect to investigations and searches for missing persons in migratory contexts, the GC expressly establishes that, in addition to adopting the Committee’s Guiding Principles, States have the obligation to take into account the particular situation of vulnerability of migrants in order to facilitate the filing of complaints and ensure an effective investigation.
Finally, the rights of victims and their families in migratory contexts are listed, highlighting the duty to guarantee access to justice, reparation and guarantees of non-repetition.
In conclusion, the General Comment, on the one hand, makes visible the growing concern about the irregular and insecure conditions suffered by migrants, and warns how this situation increases the possibility of death or disappearance, but also provides tools for action, and specifies how the Convention should be implemented in cases of enforced disappearance of migrants.
The first step has been taken; it is now up to the States Parties to assume the commitment to urgently and proactively implement the recommendations of the GC, both at the national and international levels, to reduce the serious phenomenon of forced disappearances of migrants and thus comply with their obligations under the Convention.
Belen Ravarini, FIBGAR collaborator
