Destination: Africa – Is it legal for US to deport foreign criminals to the continent?
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A U.S. Air Force plane prepares for deportation operations amid rising controversy over sending foreign criminals to African nations.
US Deportations to Africa Raise Legal and Ethical Concerns
The United States (US) has begun deporting migrants convicted of crimes to African countries, a move that is drawing sharp criticism from legal experts and human rights advocates. While the US has historically returned such individuals to their home countries or nearby regions in Central and South America, recent deportations included 12 men sent to Eswatini and South Sudan, despite their nationalities ranging from Mexico and Myanmar to Yemen. At least one South Sudanese citizen was also returned to his country.
US immigration authorities say some home countries are refusing to accept deported nationals, prompting the administration to seek alternatives in Africa. However, this decision has triggered international scrutiny, especially regarding whether it violates international law, which restricts deportation to unsafe destinations.
Legal Experts Question Third-Country Deportations
Under international law, third-country deportations are only legal if certain conditions are met. Central to this is the principle of non-refoulement, which prohibits returning an individual to a place where they may face harm or persecution.
According to Prof Ray Brescia of Albany Law School, “A third country can be an option, but only if it offers safety and stability. The legal standard applies not only to a person’s home country but also to any nation where they may be deported.”
Migrants must also be given the opportunity to challenge deportation decisions, especially if the receiving country has a troubling human rights record. Yet, many deportees lack timely access to legal aid.
“Legal intervention often requires immediate access to a lawyer, which isn’t available to everyone,” Brescia notes.
Were the Deportations to Africa Lawful?
Legal scholars argue that the recent deportations to Eswatini and South Sudan likely breached both due process and international protections. Prof David Super of Georgetown University says the US failed on two fronts: “Migrants weren’t given a fair chance to challenge their deportation, and they were sent to countries with serious human rights issues.”
In one instance, as a flight headed to South Sudan in May, lawyers filed an emergency legal challenge. Though a judge initially blocked the deportation, the aircraft had already departed. The plane was rerouted to Djibouti, where the migrants were reportedly detained in a shipping container on a US military base while awaiting the court’s decision.
The case reached the Supreme Court, which permitted the deportation but stopped short of confirming South Sudan as a safe destination. Critics say the ruling sets a worrying precedent and may encourage faster removals that bypass judicial review.
Safety Concerns in Receiving Nations
Both Eswatini and South Sudan face serious internal challenges. The US State Department currently advises against travel to South Sudan, citing armed conflict, kidnapping, and instability. Dr Alice Edwards, UN Special Rapporteur on Torture, says that returning people to such conditions violates legal obligations.
Reports suggest deportees are held in Juba, South Sudan’s capital, under poor detention conditions. Authorities have not disclosed how long they will remain detained or whether they will be released.
In Eswatini, officials confirmed the migrants are being kept in correctional facilities and will eventually be repatriated with assistance from the International Organization for Migration (IOM). However, US assessments highlight prison conditions plagued by overcrowding and poor sanitation.
Eswatini government spokesperson Thabile Mdluli declined to say how long the migrants will remain, but emphasized they will not integrate into local communities.
Backlash and Accusations of Human Trafficking
The deportations have sparked backlash in Eswatini, with opposition leaders accusing the government of making the country a “dumping ground for criminals.” The People’s United Democratic Movement (Pudemo) condemned the deportation deal as “human trafficking disguised as policy.”
Meanwhile, US authorities defended the deportation by citing the migrants’ criminal records, which reportedly include serious offenses like murder and child rape.
Still, Dr Edwards emphasizes that legality and safety must guide any deportation policy. “The human rights community isn’t opposed to deportation in principle only when individuals face risks of torture or persecution.”
What Do Host Countries Gain?
The details of these agreements remain opaque. Eswatini’s government declined to reveal what it received in exchange, citing “classified information.” Both Eswatini and South Sudan pointed to strong diplomatic ties with the US as motivation for their cooperation.
Analysts suggest political pressure may be at play. In April, the US threatened to cancel visas for all South Sudanese nationals after the country initially resisted accepting deportees.
Activist Agel Rich Machar believes South Sudan’s cooperation may be linked to its desire to lift US sanctions against Vice-President Benjamin Bol Mel, imposed in 2021 over alleged corruption.
International law experts like Prof Super warn that without accountability, such practices could expand, eroding legal protections for vulnerable people. “This is about sending a harsh message to deter migration,” he says.
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