Border crackdowns as enforced disappearance

As discussed my last newsletter, immigration law can a means of denying persons protection of the rule of law. There are many aspects to the issue which I will discuss in future instalments, but I would like to begin by considering the increasing acceptance of the idea that border control policies can constitute the grave human rights violation of enforced disappearance.

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The notion of enforced disappearance gained recognition through the horrific practices seen in Latin America notably Argentina and Chile under the Peron and Pinochet dictatorships. Estimates are that hundreds of thousands of people in Latin America have been abducted by governments or groups supporting the regimes and simply vanished without a trace. Authorities have denied any knowledge of the victims’ whereabouts, leaving families without any certainty about their loved ones’ fates. The vast majority of those abducted were killed and their remains hidden or destroyed. While extrajudicial killings are considered unlawful under human rights law, the practice of enforced disappearance is noteworthy for the terror it inflicts.

International law defines enforced disappearance in terms of three elements. These include, first, a deprivation of liberty, second, carried out by agents of the state or persons acting with acquiescence of the state, and third, a refusal to acknowledge the deprivation of liberty or concealment of the fate or location of the person. In 1992, the UN General Assembly adopted the Declaration on the Protection of All Persons from Enforced Disappearance.

Following the Declaration the International Convention for the Protection of All Persons from Enforced Disappearance was adopted by the UN General Assembly in 2006 and came into force only in 2010. Today 77 out of 193 UN member states have ratified the treaty.

The Organization of American States (OAS) has enacted a substantially similar convention which was adopted by 23 state parties. The US is a party to neither treaty.

Despite the still limited numbers of parties to these treaties, it is widely agreed among international lawyers and judges that enforced disappearance violates a jus cogens norm. Although in many areas of international law consent is required to obligate states, the concept of jus cogens pertains to certain norms that are considered binding on all states as a matter of customary international law. Consent is thus not required.

Examples of jus cogens norms include genocide, slavery, crimes against humanity, war crimes, torture, nonrefoulment (return of asylum seekers to country from which they were fleeing persecution), and apartheid.

The fact that enforced disappearances often involve killings is only part of the crime. Another crucial aspect entailed by governments’ unwillingness to acknowledge the disappearances is their implicit violation of the rule of law. Without any knowledge of a persons’ whereabouts or circumstances leading to their disappearance, it is extremely difficult if not impossible to seek justice in the courts.

The legal standard for determining whether an enforced disappearance has occurred has no minimum time requirement. Even short periods can suffice to meet the definition.

A recent article by Diego Leal and Natalie Cadwalader examines US border management practices from the standpoint enforced disappearances. They note that while the US has not ratified the relevant treaties, the State Department has recognized the concept and the three elements that constitute the offense.

There is growing recognition that current US immigration policies are objectionable as enforced disappearances. This recognition predated the Trump Administration and in response the Biden Administration attempted to address this issue, albeit imperfectly, by creating an online system to enable location of migrants in detention.

The Trump Administration’s tactics have made these concerns even more dire. Rendering migrants to third countries is the most glaring example. In March 2025, the Trump administration sent 252 Venezuelan and 36 Salvadoran migrants to the high-security Terrorism Confinement Center (CECOT). According to Human Rights First, once in Immigration and Customs Enforcement (ICE) custody, these persons vanished from the locator system. In practice, the speed and secrecy of the process made it impossible for detainees to contest the deportation. Indeed, some persons rendered were awaiting immigration court hearings scheduled just days after they were whisked out of the US.

The fact that other countries may be de facto carrying out the enforced disappearance does not, under the definition noted above, mitigate responsibility of the US for the result.

The US government has concealed the location of these persons and families and lawyers for those persons identified have been unable to communicate with them. The government claims that these persons were gang members but “did not provide any notice of their designation as gang members, present any evidence supporting the designation, or give the individuals an opportunity to challenge the designation before a judge before rendering them to the CECOT prison.”

This type of treatment has been applied not only to alleged gang members but to migrants claiming asylum. Persons coming from Afghanistan, China, Ghana, Iran, Russia, Türkiye, and Uzbekistan have been rendered to Costa Rica and Panama.

“Immigrants and asylum seekers are regularly held incommunicado, that is untraceable for those searching for them or able to make contact themselves with the outside world….[and] there is no functioning mechanism for the public to track where in Customs and Border Protection (CBP) custody a person is detained”, Human Rights First reports.

In 2024, the United Nations Working Group on Enforced and Involuntary Disappearances has issued General Allegations that the US government was disappearing migrants in CBP custody and interdicted by Coast Guard. Another practice the WG identified was expelling third-country migrants to Mexico where they were subject to enforced disappearance.

The US is not the only country violating norms against enforced disappearance. Similar practices have been observed among other OECD countries. US conduct is illustrative of the modalities and the harms these practices cause.

Enforced disappearances deny people the protection of the rule of law. The basis upon which individuals have been expelled from the US in the first place often violates standards of transparency and due process. By rendering people to regimes to which they have no legal connection and that lack reasonable rule of law and human rights practices, these persons are completely denied rule of law protections. The fact that many of these people were fleeing oppressive rights-abusing governments in the first place only makes the offence more grave.

Enforced disappearance is among the most extreme form of rule of law violations associated with migration. A larger question raised by today’s anti-immigration movements in many countries concerns what moral obligations societies owe to migrants. These are difficult questions that challenge assumed wisdom and preconceptions. I’ll explore this topic in my next newsletter.