In Dialogue with Niger, Experts of the Committee on Enforced Disappearances Ask about Cases Involving Armed Groups, and Cases Overseen by Military Courts
The Committee on Enforced Disappearances today concluded its consideration of the initial report of Niger on how it implements the provisions of the International Convention on the Protection of All Persons from Enforced Disappearance, with Committee Experts asking about disappearances involving armed groups, and about military courts overseeing disappearance cases.
A Committee Expert said that over the past 10 years, armed groups had committed numerous abuses against civilian populations, leading to great internal displacement. Those abuses had also included acts amounting to enforced disappearances, as people were abducted and removed from the protection of the law by armed groups. Did the State party keep an up-to-date list of attacks by armed groups in which enforced disappearances had been committed? Which attacks had been investigated, and what were the outcomes of investigations?
Another Expert asked who appointed military court judges, and were those courts subject to civilian oversight? What processes were in place to assess accountability when State bodies were responsible for enforced disappearance?
Ikta Abdoulaye Mohamed, Minister of Justice of Niger and head of delegation, said in opening remarks that the countries of the Sahel, including Niger, were facing a serious security crisis due to attacks that had become almost daily, from numerous non-State armed groups. Those attacks led to human rights violations and worsened the humanitarian situation. Despite the situation, Niger subscribed to upholding the values established by the Committee. The State had made considerable efforts to improve the human rights situation in general and enforced disappearance in particular.
In the ensuing discussion, the delegation explained that armed groups were responsible for the majority of enforced disappearances. Security forces were working to capture those groups and to bring to justice those responsible for enforced disappearances. If a military official was responsible for enforced disappearance, a military court would oversee the case, and a civilian court would oversee civilian cases. Processes were the same in military and civilian courts. Niger had ensured that its military courts handed down impartial decisions. There were always at least two civilian judges in military courts. The military justice code had been applicable since 2003. All matters not addressed by the military court were returned to civilian courts.
In closing remarks, Mr. Abdoulaye Mohamed thanked the Committee for the constructive dialogue, adding that the Committee could rely on Niger’s good faith and cooperation with implementing concluding observations.
Carmen Rosa Villa Quintana, Committee Chairperson, said the dialogue was an opportunity for cooperation with the State toward a mutual goal of eliminating enforced disappearance.
The delegation of Niger was made up of representatives of the National Deputy; President of the High Authority for the Protection of Personal Data; Chief Counsellor for the Prime Minister; Inter-Ministerial Committee responsible for drafting reports to Treaty and Universal Periodic Review bodies; Ministry of Justice; Attorney General at the Court of Appeals of Niamey; Niamey Police Commander; Director of the Judicial Police; and the Permanent Mission of Niger to the United Nations Office at Geneva.
The Committee will issue its concluding observations and recommendations on the report of Niger at the end of its twenty-second session, which concludes on 8 April. Those, and other documents relating to the Committee’s work, including reports submitted by States parties, will be available on the session’s Web page. The Web cast of the Committee’s public meetings can be accessed at http://webtv.un.org/.
The Committee is next scheduled to meet in public at 5 p.m. on Friday 8 April, to close its twenty-second session.
Report
The Committee has before it the initial periodic report of Niger (CED/C/NER/1).
Presentation of the Report
IKTA ABDOULAYE MOHAMED, Minister of Justice of Niger and head of delegation, said that Niger attached great importance to the remarkable work of the Committee to strengthen the protection of persons from enforced disappearance. The State welcomed cooperation with the Committee and gave its full support to the constructive dialogue. The Niger delegation would endeavour to explain the State’s legal framework and its practices in the fight against enforced disappearances. Niger had ratified the Convention on 24 July 2015. In accordance with article 29, it had submitted its initial report in August 2019. The report had been developed by the Inter-Ministerial Committee responsible for drafting Niger's reports to the human rights treaty bodies and the Universal Periodic Review, following an inclusive participatory process involving ministerial departments, public institutions, civil society organizations and partners. Niger was up-to-date in the submission of its reports to human rights treaty bodies and the Universal Periodic Review.
The countries of the Sahel, including Niger, were facing a serious security crisis due to attacks that had become almost daily, from numerous non-State armed groups. Those attacks led to human rights violations and worsened the humanitarian situation. Despite the situation, Niger subscribed to upholding the values established by the Committee. The State had made considerable efforts to improve the human rights situation in general and enforced disappearance in particular. There had been a peaceful transfer of power on 2 April 2021 between two democratically elected Presidents of the Republic, following a free and transparent election. A number of international instruments and legislative human rights measures had also been adopted. A draft law criminalising acts of enforced disappearance had been adopted by the Council of Ministers on 24 February 2022. The law was in conformity with the requirements of the Convention.
Niger was aware that difficulties still remained in the implementation of the Convention, mainly linked to terrorism and transnational organized crime, but the country counted on the support of the international community to overcome those obstacles. The President of the Republic of Niger promoted good governance and respect for human rights for all, and did not tolerate any impunity for the perpetrators of acts of enforced disappearance or any other proven violation of human rights.
Mr Mohamed expressed thanks to the Committee for their interest in the State and assured it that the delegation would cooperatively answer any questions it had.
Questions by Committee Experts
A Committee Expert noted that Niger’s National Human Rights Commission had an “A” ranking, but lacked financial, material and human resources. What actions was the State party taking to solve that problem? The Commission reportedly received logistical and financial support from “partners.” Who were those partners, and did that support compromise the body’s impartiality? Further, the Committee Expert brought up the need to incorporate the prohibition of enforced disappearance into domestic law. What progress had been made toward that goal? The Expert also noted that limitation of rights led to abuses and increased the risk of enforced disappearance. What limitations of rights could be imposed on persons deprived of their liberty in relation to the fight against terrorism?
The Expert also noted that there were provisions related to the responsibility of superiors in Law 2020-05 in relation to torture, but such provisions were not applicable in cases of enforced disappearance. Law 2002-05 stated that no one was obliged to execute a manifestly illegal order, unless the order was made in response to a serious disturbance of public order. Were there efforts to change those laws?
Another Committee Expert noted a lack of statistical data on missing persons. Did the State plan to establish such statistics? Over the past 10 years, armed groups had committed numerous abuses against civilian populations, leading to great internal displacement. Those abuses had also included acts amounting to enforced disappearances, as people were abducted and removed from the protection of the law by armed groups. Two examples of such incidents were the attacks by Boko Haram in Bosso on 6 February 2015 and in Nguelewa on 2 July 2017. Human Rights Watch had deplored that there had been only "a few investigations into the killings of civilians by armed Islamist groups" in Niger. Did the State party keep an up-to-date list of attacks by armed groups in which enforced disappearances had been committed? Which attacks had been investigated, and what were the outcomes of investigations? To what extent did the State use mutual legal assistance in criminal matters with neighbouring States or members of the G5-Sahel force? Could Niger’s national courts exercise extraterritorial jurisdiction over acts of enforced disappearance, regardless of the nationality of the perpetrator or victim of the crime?
The Committee Expert also addressed the “Operation Almahaou” incident carried out from 27 March to 2 April 2020 in the Tillabéri region. Regarding that incident, the National Human Rights Commission had reported that members of the Defence and Security Forces were responsible for the enforced disappearance of 135 people. The National Human Rights Commission’s report had been corroborated by Human Rights Watch reports describing men in uniform arriving in military vehicles, who arbitrarily arrested, detained, and in some cases tortured or executed captives. What was the status of the investigation, and what investigative acts had been carried out? Why was the case referred to a military court? What concrete measures had been taken to ensure the protection of victims and witnesses from all forms of intimidation and reprisals? Had persons suspected of being involved in the incident been excluded from investigations?
The Expert further asked for information on the enforced disappearance of 23 men who were reportedly arrested in Bani Bangou and Garbey between 5 and 10 April 2020, the enforced disappearance of 4 Peuhl men at the Tilwa check-point on the border with Mali on February 20 2020, and the whereabouts of Mr. Marawan Mousa Allan, who went on holiday to Niger from Dubai in August 2019 and had not been heard from since.
Responses by the Delegation
The delegation stated that Niger had made efforts on the issue of individual communications, and it was only a matter of time before Niger would issue a declaration related to communications with the Committee. From the moment Niger had ratified it, the Convention had stood above domestic laws, and domestic laws needed to be consolidated with it. A new bill being drafted would allow the Convention to be reflected in domestic law. Not all judges and judicial personnel were aware of the Convention, but the Government was making efforts to disseminate information regarding it, and was considering holding training regarding the Convention.
The National Human Rights Commission did not have a large budget, but could receive donations from supporters, which included the European Union and Oxfam. The State planned to provide new headquarters for the institution and increase its budget. It issued reports to the Government, but those reports did not have legal power. Regarding Operation Almahaou, the Government had received the report from the National Human Rights Commission and had commenced independent investigations. A recent bill on enforced disappearances said clearly that nothing could justify resorting to an enforced disappearance. The term of limitation started when the crime ended. The bill would be deliberated in April 2022. If a military official was responsible for enforced disappearance, a military court would oversee the case, and a civilian court would oversee civilian cases. Processes were the same in military and civilian courts. Niger had ensured that its military courts handed down impartial decisions.
A raft of measures regulated the deprivation of liberty. The right to legal assistance was respected, as was the right to reparation and compensation. The provisions of the Convention were used to support victims of enforced disappearance. The new bill on enforced disappearance would allow courts to invoke the Convention. Treaties that had been ratified had superior authority to domestic legislation, and every party within Niger could invoke it. No judge could refuse to invoke the Convention. There were platforms for judicial assistance between States. For example, Niger worked with France and Algeria on judicial cases.
The Operation Almahaou incident had been addressed by the marshal of the military court. The State had been a victim of a terrorist attack, with terrorists using official military vehicles. That had made some think that military officials were carrying out human rights abuses. Jordanian police had reported that Mr. Marawan Mousa Allan had travelled to Niger, obtained a visa, and then travelled to Agadez. That individual had then disappeared without a trace. Villages had been victims of vicious attacks, but the Government was doing whatever it could to protect citizens. Armed groups were responsible for the majority of enforced disappearances. Security forces were working to capture those groups and to bring to justice those responsible for enforced disappearances. There was an intention to review the National Human Rights Commission and increase its budget, but there was a scarcity of resources, and all sections of Government were affected.
Follow-Up Questions by Committee Experts
A Committee Expert noted that not only did the State have an obligation to reflect the Convention in its domestic legislation, it also had an obligation to enforce the Convention through concrete legislative measures. The Expert asked the delegation to share the draft bill related to enforced disappearance. The Expert welcomed that resources would be set aside in support of the National Human Rights Commission. How much support was needed to secure its functions?
Another Committee Expert noted that the Committee had declared that enforced disappearances could not be considered by military courts. That was because military court submissions often led to impunity for persons responsible. The Committee Expert asked for more information regarding the membership of military courts. The Expert repeated calls for information regarding disappearances in the Tillabéri region. The National Human Rights Commission report raised doubts that acts against civilians were attributable to non-State actors in that case, as perpetrators had been allowed to carry out identity checks. What was Niger doing to investigate enforced disappearances committed by terrorists? What protections were provided to witnesses and victims?
Another Committee Expert asked whether the State party was considering making the new law on enforced disappearance retroactive to cover past abuses. Was the State party negotiating with armed groups to achieve peace?
Another Expert asked who appointed military court judges, and were those courts subject to civilian oversight? What processes were in place to assess accountability when State bodies were responsible for enforced disappearance?
Another Committee Expert expressed doubts about the events of Operation Almahaou, asking why a military court was dealing with the case if the actions had been committed by ordinary citizens. When did ordinary courts have jurisdiction in such cases?
Another Committee Expert underscored that the Committee had made a declaration that military courts should never try cases of enforced disappearances. The most important point was that courts be competent, independent and impartial. Military personnel had in certain States steered the purposes of dictatorships. Military crimes such as desertion should be judged in a military court, but enforced disappearance should not. Cases of theft of military transport vehicles could be competently investigated by civilian courts.
Another Committee Expert asked whether there was a military justice code. If civilians were involved in enforced disappearance of military personnel, and in the reverse situation, which court would try the case?
Responses from the Delegation
The delegation stated that the bill on enforced disappearance had fully taken into account the provisions of the Convention. It defined enforced disappearance using the definition of the Convention. Those convicted would face 10 to 20 years imprisonment. Enforced disappearance leading to death would be punished by life imprisonment. There was also a provision to punish accomplices to enforced disappearance. The crime was considered to be aggravated when the victim was under age 18, over 65, or pregnant. There were no exceptional circumstances in which the crime of enforced disappearance would be permitted.
The State party called upon Niger’s National Assembly to increase the budget for the National Human Rights Commission. It was not normal for donors to give more than the State, and so the State planned to devote more funds to it.
In 2006, the marshal of the military court became functional. The court operated in the same manner as a civilian court. There were military justices, but civilian judges were always used in investigations. Military staff helped to understand the military context. There were always at least two civilian judges in military courts. The military justice code had been applicable since 2003. All matters not addressed by the military court were returned to civilian courts.
Regarding cases of disappearances in the Tillabéri region, investigations were ongoing and the State could not comment on the National Human Rights Commission report. Although the people responsible wore military uniforms and drove military vehicles, they were not necessarily military officials. The State had no power over armed groups. The law on enforced disappearance could not be applied retroactively, but would apply in all cases of enforced disappearance once it was enacted. As the State was at war, all offenses against the security of the State could be tried by military courts.
Questions by Committee Experts
A Committee Expert said that non-governmental organizations and the Committee against Torture had reported that there were extrajudicial detention centres in Niger. The National Human Rights Commission also carried out an investigation of the Niamey Anti-Terrorist Unit, finding defendants locked up at the Directorate General of Documentation and State Security in dark cells without ventilation for more than a month. Were those reports accurate? What measures had been adopted to improve detention conditions and prevent the use of extrajudicial detention centres?
The Expert also cited reports from the Committee against Torture noting detainees’ difficulties in accessing a doctor and a lawyer. Legislation did not recognise the right of detained persons to have access to a lawyer, but rather the notification of that right, within twenty-four to forty-eight hours of police custody. Geographical and economic barriers impeded access to legal aid in Niger, and the State reportedly did not guarantee the right to inform a family member of their deprivation of liberty. Further, detainees from other States were not informed of their right to contact consular authorities. The Expert also noted arbitrary arrests of civil society leaders and journalists in the context of the application of the state of emergency. What was the reasoning for that?
Further, the Expert noted that records of persons deprived of liberty were incomplete, according to the Committee against Torture. In particular, the Anti-Terrorist Brigade did not record times of detainments. Detainees did not have the right to challenge the lawfulness of their detention before a judicial authority. What measures had been adopted to correct that and to impose a penalty for non-compliance? The Committee Expert also asked for more information regarding information that could and could not be disclosed due to the secrecy of investigations. Did the restriction extend to lawyers, and was it temporary? The Expert also called for more information on restrictions on the right to communicate.
Another Committee Expert said that migrants and refugees were at risk of being subjected to enforced disappearance in the territory of Niger. The Committee against Torture had recommended in 2019 that “all allegations of violence or excessive use of force against migrants and asylum-seekers were promptly, thoroughly and impartially investigated, and that those responsible were prosecuted and punished.” What measures had been taken by the State party to implement those recommendations?
The Expert also noted that refugees and migrants were also at risk of being victims of enforced disappearances in the territory of other States through refoulement at the border, extradition or expulsion. However, Niger had stated that the law prohibiting the removal of a person to a country where he or she would be at risk of torture would also apply to the risk of being subjected to enforced disappearance. Were there examples of decisions where that law had been applied to a person at risk of being subjected to enforced disappearance? Had the State party implemented the Committee against Torture’s recommendations regarding non-refoulement? Did appeals against removal orders suspend the removal?
The Committee Expert also stated that in court cases around enforced disappearance, the plaintiffs, the witnesses, the lawyers, and the families of the disappeared were at risk of being identified by the perpetrators and subject to reprisals. What measures had the State party taken to protect the identity of those groups?
The Committee Expert further raised the issue of the military court’s investigations of disappearances in the Tillabéri region, stating that investigative secrecy could not be invoked to reject requests for information on the progress of investigations. Did the State party intend to guarantee the public’s right to information in cases such as that, as well as the right of victims to know the truth in cases of enforced disappearances? Next, the Expert stated that there was no specific organization that conducted searches in cases of enforced disappearance, no protocols in place for the treatment of the remains of missing persons, no mechanisms for conducting DNA tests on remains, and no facilities for storing the genetic material of missing persons and their relatives. What initiatives were underway to establish such mechanisms?
Further, the Expert noted that there was no specific mechanism in place for providing reparation to the victims of enforced disappearance, and asked if one would be established in future. In relation to the Tillabéri case, the National Human Rights Commission had recommended that a high-level mission should travel to the region and meet with the victims, provide compensation to victims, create a national day of remembrance and educate future generations to ensure that such incidents were not repeated. Did the State intend to follow up on those recommendations?
Responses by the Delegation
The delegation stated that Niger was subject to regular attacks from terrorist groups coming from surrounding States. However, Niger was striving to ensure security using the State of Emergency measure. Two laws set rules governing the State of Emergency, and it must be assessed and renewed as necessary every 15 months. States of Emergency did not grant absolute power to the State, and were necessary measures in emergency situations.
The Committee against Torture had given numerous recommendations, and the Government had responded by allowing the National Human Rights Commission to investigate all detention centres. It had also created a law prohibiting torture. Legal provisions guaranteed access to a lawyer from the moment of arrest, however there was a shortage of lawyers in many regions, and only 140 registered lawyers in Niger. In response, the Government had established an agency for providing free legal assistance in all areas of the country. The agency had provided support to thousands of individuals. To resolve the lawyer shortage, the Bar Association had made caravans raising awareness about the problem. There were also judicial officials who explained proceedings and rights to detainees.
When foreign citizens were detained, the judge would notify consular authorities, and notify them again when proceedings began. Ambassadors made regular visits to detention facilities.
When an individual had an arrest warrant, their detention was not “arbitrary.” The Ministry of Justice had adopted a law on the protection of human rights defenders that would be submitted to the National Assembly in its next session. An amendment to legislation prohibiting the arrest of journalists for slander or libel was also pending. Persons convicted of terrorism could be held for 15 days without trial because there was only one court that could assess such cases, and a long period of time was needed to transport persons to that court. There were plans to establish courts in other regions to reduce holding times. Parole could be requested, and was assessed by the investigating judge. The prosecutor could appeal parole decisions. Family members and lawyers had the right to visit detainees within the visiting hours of the detention facility. At all times after arrest, the individual detained could request release, and the decision on parole was not made by the prosecutor. All parties were notified regarding the process of court proceedings, and victims could access case files. Legislation set forth the need for the State to provide a medical clinic in each detention centre. When medical needs could not be covered by those medical clinics, the detainee was transferred to a hospital at the expense of the State.
Police often had problems with capacity in detention centres. In some cases, police training schools were used as detention centres. However, in such cases detainees were still in police custody. Lawyers were always checking that detainees had been provided with their entitlements. Police thus were sure to provide detainees with their entitlements and protect their rights.
The Directorate General of Documentation and State Security addressed concerns when the security of the State was at stake. It was staffed by criminal investigation officers from police and justice bodies. Judges were the only people who could decide the fate of detainees, not that organization.
Victims’ associations did not exist, but were not prohibited. However, there was a lack of initiative from the relatives of victims. The only associations that were banned were those that were racist or regionalist in nature. If a journalist encouraged the public to engage in vandalism, they should be punished for that act. Journalists were punished for the crimes that they had committed, not for being journalists.
Follow-Up Questions by Committee Experts
A Committee Expert asked when a person was detained on remand, what remedies were available to rule on detention? Who did detainees turn to in such situations?
How was information such as the location of detention communicated to family members of detainees? What made a case file “complex” or “sensitive”? Could a person deprived of liberty receive visits? In what conditions and by what means could detainees communicate with their families?
Another Committee Expert said that the Committee was aware of the difficult situation that Niger faced, but said that the State had a duty to provide basic human rights regardless. The Expert acknowledged that Niger had respected its reporting obligations and commended the State for establishing a Country Office of the High Commissioner for Human Rights. What was being done to support searches for deceased persons? Were relatives of victims of enforced disappearance able to obtain an “absence certificate” rather than a death certificate allowing them to access social benefits?
The Expert called on the State party to criminalise the destruction of children’s identification papers. Did Niger allow for international adoption? What measures had been taken to return child victims of abduction to their families of origin? What concrete measures had been taken to register the births of all children to prevent trafficking and enforced disappearance?
Another Committee Expert asked whether there was an educational plan to train lawyers and increase their numbers. In terrorism cases, were family members of the accused informed of their detainment? Were visits allowed in terrorism cases?
Were there guarantees that civil society organizations could carry out their operations without reprisal or threats to their security?
Another Committee Expert asked whether women had the right to be a part of civil investigations, and whether they were able to access social services. Women were also victims when their husbands were disappeared. The Expert called on the State party to consider women when drafting legislation on enforced disappearance.
Responses by the Delegation
The delegation said the law in Niger did not address the trafficking or sale of babies. Niger did not allow baby trafficking. Victims of enforced disappearance were numerous, with thousands of disappeared persons being taken by terrorists. Niger was fighting a war for its very existence. To transport detainees, a military convoy was necessary, and that was another reason for the long period detainees were held without trial. Visits to prisons had been suspended due to three terrorist attacks on prisons, but prison visits had recommenced.
Police custody occurred within the authority of the prosecutor or the examining magistrate. Detainees could file complaints regarding detainment, and in some cases complaints had been upheld and detainees released. The International Committee of the Red Cross contacted family members of detainees. Other non-governmental organizations also played a role in finding detainees’ family members. The investigating officers determined whether cases should be open or closed, and whether visits should be allowed. The use of mobile phones was prohibited, but facility telephones could be used to contact family members in the presence of a guard.
The number of lawyers was very small. The Ministry of Justice had created a lawyer training school that would train any person with a law degree to become a lawyer. Investigations would be jeopardised if information on proceedings was made public. However, parties involved in proceedings had the right to access information about it. Independent judges had judicial oversight of police custody. Cases were required to be registered with the oversight body. The notes of the registrar only were authoritative. Even if cases were closed, searches for missing persons could be resumed at any point. A civil judge could issue absence certificates in lieu of a death certificate. Claims for criminal indemnification could be filed at any stage in proceedings.
Closing Remarks
IKTA ABDOULAYE MOHAMED, Minister of Justice of Niger and head of delegation, thanked the Committee for the constructive dialogue. The delegation had strived to describe the situation in Niger. The State party had a huge challenge before it to tackle human rights violations. The delegation was delighted that the Committee had acknowledged the State’s progress in tackling enforced disappearance. Niger’s army had been ranked as one of the best in the region in respecting human rights, due to the State’s training. The delegation thanked the Committee for its questions, which aimed to improve the situation in the State. The Committee could rely on Niger’s good faith and cooperation with implementing concluding observations. Those would be communicated to all stakeholders and the State Cabinet.
CARMEN ROSA VILLA QUINTANA, Chair of the Committee, thanked the delegation for its cooperation, and the Committee for its efforts. The dialogue was an opportunity for cooperation with the State toward a mutual goal of eliminating enforced disappearance. Thanking Niger for its commitment, she pledged the Committee’s support regarding implementation of the Convention, and called for continued cooperation between the State party and the Committee.
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