Committee on Enforced Disappearances

Concluding observations on the report submitted by Mali under article 29 (1) of the Convention *

1.The Committee on Enforced Disappearances considered the report submitted by Mali under article 29 (1) of the Convention at its 403rd and 404th meetings, held on 12 and 13 September 2022. At its 418th meeting, held on 22 September 2022, it adopted the present concluding observations.

A.Introduction

2.The Committee welcomes the report submitted by Mali under article 29 (1) of the Convention, which was prepared in accordance with the Committee’s reporting guidelines. Moreover, it thanks the State party for its written replies to the list of issues.

3.The Committee also appreciates the constructive dialogue with the delegation from the State party on the measures taken to implement the provisions of the Convention and welcomes the openness with which the delegation responded to the questions raised. It thanks the State party for the additional information and clarifications provided in its oral statements.

B.Positive aspects

4.The Committee commends the State party for acceding to almost all international human rights instruments, including several of their optional protocols, and for ratifying the Rome Statute of the International Criminal Court.

5.The Committee welcomes the fact that the State party has recognized its competence to receive and consider individual and inter-State communications under articles 31 and 32 of the Convention, respectively.

6.The Committee also welcomes the progress made by the State party in areas relevant to the Convention, including:

(a)The incorporation into the Criminal Code of the offences set out in the Rome Statute of the International Criminal Court, including enforced disappearance as a crime against humanity (art. 29 of the Criminal Code);

(b)The validation of the draft of the new Criminal Code at a workshop held from 15 to 20 August 2022, which brought together representatives of the National Transitional Council, members of civil society, academics and technical and financial partners;

(c)The adoption of Act No. 2019-072 of 24 December 2019 (the Act organizing and planning the justice system over the period 2020–2024).

C.Principal subjects of concern and recommendations

7.The Committee is aware of the many serious difficulties that the State party is facing and notes the measures it has taken to comply with its obligations under the Convention. However, it considers that, at the time of the adoption of the present concluding observations, the legislation in force in the State party to prevent and punish enforced disappearance and to guarantee and enforce the rights of victims, as well as the conduct of some of the competent authorities, were not fully consistent with its obligations under the Convention. The Committee is particularly concerned about the large number of allegations of acts of enforced disappearance, many of which occurred after the entry into force of the Convention. It therefore encourages the State party to give effect to its recommendations, which have been drawn up in a constructive spirit of cooperation, in order to ensure the full implementation of the Convention in law and in practice. In this regard, the Committee invites the State party to take advantage of the ongoing discussions on various bills in areas relevant to the Convention to follow up on the recommendations made in the present concluding observations.

1.General information

Applicability of the Convention

8.The Committee regrets 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 are hesitant to apply its provisions. In this regard, the Committee notes with satisfaction the information provided during the dialogue on the efforts made to make the Convention known (art. 23).

9. The Committee recommends that the State party intensify its efforts to provide training on the Convention to judges, prosecutors and lawyers so that it is applied and taken into account by the national courts.

Non-derogability of the prohibition of enforced disappearance

10.The Committee notes with concern that domestic law does not specifically provide for the non-derogability of the prohibition of enforced disappearance under any exceptional circumstances and that the State party has not provided information on the laws that have been adopted and the measures that have been taken to ensure that no exceptional circumstances can justify an infringement of the right not to be subjected to enforced disappearance (art. 1).

11. The Committee recommends that the State party take the steps necessary to expressly incorporate the absolute prohibition of enforced disappearance into domestic law, in accordance with article 1 (2) of the Convention, and to ensure that measures taken in the fight against terrorism do not hinder the effective implementation of the Convention and that no exceptional circumstances may be invoked to justify enforced disappearance.

National human rights institution

12.The Committee welcomes the establishment of the National Human Rights Commission under Act No. 2016-036 of 7 July 2016. It also welcomes the fact that the Commission was again granted category A status by the Global Alliance of National Human Rights Institutions in March 2022. However, it notes that the State party has not provided sufficient details on the measures adopted to ensure that the Commission has the financial, technical and human resources necessary for it to carry out its work effectively throughout the territory of the State party. The State party has also failed to describe the measures taken to promote awareness of the Commission among the general public and national and local authorities.

13. The Committee recommends that the State party ensure that the National Human Rights Commission has the financial, technical and human resources necessary for it to adequately carry out its work throughout the national territory. It also recommends that the State party promote awareness of the Commission and its competencies among the general public and national and local authorities.

National mechanism for the prevention of torture

14.The Committee notes the existence of a national mechanism for the prevention of torture within the National Human Rights Commission and recognizes the important role that this mechanism can play in preventing enforced disappearance. However, it notes that the State party has not provided sufficient information on the membership of the mechanism and its relationship with the Commission, how it fulfils its mandate, the places of detention it visits, how its visits are organized, the number of visits it conducts per year and their outcomes, and how the competent authorities cooperate in carrying out these visits.

15. The Committee recommends that the State party provide information on the structure of the national mechanism for the prevention of torture, its relationship with the National Human Rights Commission from an independence standpoint and how it carries out its mandate. It further recommends that the State party provide the mechanism with the material and human resources necessary for it to carry out its preventive mandate effectively.

2.Definition and criminalization of enforced disappearance (arts. 1–7)

Statistical information and databases

16.The Committee notes the State party’s assertion that it has no statistics or databases on disappeared persons (arts. 1, 2, 3, 12 and 24).

17. The State party should establish a database without delay and generate accurate and up-to-date statistical information on disappeared persons, disaggregated by sex, sexual orientation, gender identity, age, nationality, place of origin and racial or ethnic origin. This information should include the date of disappearance, the number of disappeared persons who have been located, whether alive or deceased, and the number of cases in which the State is alleged to have participated, somehow or other, within the meaning of article 2 of the Convention.

Enforced disappearance as a separate crime and appropriate penalties

18.The Committee is concerned that enforced disappearance does not yet constitute a separate offence under domestic law. It notes, however, that article 324-55 of the draft of the new Criminal Code establishes enforced disappearance as a separate crime and finds that the definition contained in that provision is consistent with article 2 of the Convention (arts. 2, 4 and 8).

19. The Committee invites the State party to conclude without delay the procedure for the adoption of the new Criminal Code, ensuring that it contains a provision establishing a separate offence of enforced disappearance that is in line with the definition contained in article 2 of the Convention, and provides, inter alia, for a term of limitation that is of long duration and is commensurate with the extreme seriousness of the crime, which, taking into account the continuous nature of enforced disappearance, commences from the moment when the offence ceases.

Criminal responsibility of superiors and due obedience

20.The Committee notes with concern that the State party’s criminal legislation: (a) does not provide for the responsibility of superiors under the conditions set out in article 6 (1) (b) of the Convention; and (b) does not expressly provide that due obedience may not be invoked to justify enforced disappearance (arts. 6 and 23).

21. The Committee recommends that the State party hold criminally responsible and duly punish any person who commits, orders, solicits or induces the commission of, attempts to commit, is an accomplice to or participates in an offence of enforced disappearance, in accordance with article 6 (1) (a) of the Convention. It also invites the State party to ensure that its domestic legislation specifically establishes the criminal responsibility of superiors and provides that orders or instructions from superiors may not be invoked to justify an offence of enforced disappearance, in accordance with article 6 (1) (b) and (2) of the Convention.

Aggravating and mitigating circumstances

22.The Committee notes that articles 18 and 19 of the Criminal Code do not take into account aggravating and mitigating circumstances in cases of enforced disappearance, and that the mitigating circumstances provided for in article 6.5 of the draft of the new Criminal Code do not expressly include having effectively contributed to “bringing the disappeared person forward alive”, in accordance with article 7 (2) of the Convention.

23. The Committee recommends that the State party ensure that the offence of enforced disappearance included in the draft of the new Criminal Code is punishable by appropriate penalties which take into account its extreme seriousness, but which exclude the death penalty. It also invites the State party to consider establishing for the offence of enforced disappearance all the specific mitigating and aggravating circumstances provided for in article 7 (2) of the Convention.

Amnesty

24.The Committee is concerned about Act No. 2012-020 of 18 May 2012, on amnesty for acts committed during the riots that led to the resignation of the President of the Republic, and Act No. 2019-042 of 24 July 2019 (the Act on National Understanding), as they could be interpreted as applying to offences of enforced disappearance. The Committee is particularly concerned that, in the case of Amadou Haya Sanogo, the defendants were released under the Act on National Understanding (arts. 7, 11, and 24).

25. The Committee recommends that the State party repeal any provision that could have the effect of exempting perpetrators of acts of enforced disappearance from prosecution or criminal penalties. In particular, it recommends that the State party take the legislative measures necessary to rule out the possibility of granting amnesty in cases of international crimes, including enforced disappearance.

Acts committed by non-State actors without State participation

26.The Committee is aware of the many challenges that the State party is facing as a result of serious abuses, including disappearances, committed by non-State armed groups. Nevertheless, it regrets that it has not received information on the investigations conducted into these disappearances and their results, including the sanctions imposed on the perpetrators, and on the assistance provided to the victims and the search for and location of disappeared persons (art. 3).

27. The Committee recommends that the State party increase its efforts to ensure that allegations of acts defined in article 2 of the Convention committed by armed groups without the authorization, support or acquiescence of the State are immediately, thoroughly and impartially investigated and that the alleged perpetrators are brought to justice and, if found guilty, given sentences commensurate with the seriousness of their acts. The Committee also recommends that the State party take all measures necessary to assist the victims and to search for and locate persons disappeared as a result of the actions of these armed groups and to prevent such acts.

3.Criminal responsibility and judicial cooperation in relation to enforced disappearance (arts. 8–15)

Allegations of acts of enforced disappearance, investigations and searches

28.The Committee is concerned about the many allegations of acts of enforced disappearance committed by the Malian armed forces, the General Directorate of State Security or armed groups acting under the control and with the authorization or acquiescence of the State, and about the fact that none of the investigations opened into these allegations has so far resulted in convictions, which has the effect of maintaining a climate of impunity. The Committee is concerned about reports that the military police system does not ensure effective reporting of crimes and that investigators face difficulties in arranging a security escort for their journeys to crime scenes in conflict areas. The Committee is also concerned about allegations that judicial officials are sometimes complicit in acts of enforced disappearance attributable to the General Directorate of State Security. Furthermore, it notes with regret that it has not received specific information on the mechanisms for excluding from the investigation of an act of enforced disappearance any person who is suspected of having participated in such an act (arts. 1, 11, 12 and 24).

29. The Committee recommends that the State party increase its efforts to guarantee the right of all victims of enforced disappearance to justice, truth and reparation and ensure that measures taken to combat terrorism are fully in line with the Convention. In this regard, the State party must:

(a) Ensure that all allegations of enforced disappearance are investigated immediately, thoroughly and impartially, even if there has been no formal complaint, and that the perpetrators are prosecuted and given a sentence commensurate with the seriousness of their acts;

(b) Ensure that public officials suspected of involvement in the commission of an offence of enforced disappearance are suspended from their duties from the outset and for the duration of the investigation, without prejudice to respect for the principle of the presumption of innocence, and that the law enforcement or security forces whose members are suspected of having participated in an act of enforced disappearance may not take part in the investigation;

(c) Encourage and facilitate the safe filing of complaints and the active and full participation in investigations by victims, including relatives of the disappeared person who so wish;

(d) Ensure that judicial officials do not condone or in any way participate in acts of enforced disappearance;

(e) Ensure that the right of victims to the truth is fully respected at all stages of the proceedings, in particular by ensuring that they are regularly informed of the progress and results of investigations, even when they have not filed a civil suit;

(f) Take all measures necessary to find, release and, in the event of death, identify all persons subjected to enforced disappearance whose fate has not yet been clarified, and ensure that the search procedures followed are consistent with the Committee ’ s Guiding Principles for the Search for Disappeared Persons;

(g) Ensure that there is effective coordination and cooperation between all bodies involved in investigations and searches, and ensure that they have the financial, technical and human resources and structures, and the expertise, necessary to carry out their duties expeditiously and effectively;

(h) Consider establishing a specialized unit for the investigation of war crimes and crimes against humanity and, within this unit, a specialized team for investigating cases of enforced disappearance.

Mass graves

30.While noting the State party’s assertion that the discovery of a mass grave leads to the opening of an investigation, the Committee is concerned about allegations of the discovery of numerous mass graves in the national territory and about the lack of specific information on efforts to ensure the identification, forensic analysis, respectful treatment and return of the remains of disappeared persons. The Committee welcomes the creation of the General Directorate of the Forensic Police and the initiative to put into operation a DNA processing centre, but regrets that it has not received sufficient information on how these institutions will assist in the search for victims of enforced disappearance.

31. The Committee urges the State party to take into consideration, in the development and implementation of a search strategy, the Guiding Principles for the Search for Disappeared Persons and recommends that the State party ensure that each reported mass grave is protected and dealt with using the appropriate forensic methods. It also recommends that the State party ensure that the identification of disappeared persons is specifically and effectively incorporated into the mandate and aims of the General Directorate of the Forensic Police and the DNA processing centre.

Universal jurisdiction

32.The Committee is concerned that the State party’s courts cannot exercise jurisdiction over the crime of enforced disappearance in all the scenarios provided for by the Convention, including under the principle of universal jurisdiction (art. 9).

33.The Committee urges the State party to ensure that the national courts can exercise jurisdiction over offences of enforced disappearance, in accordance with the obligations arising from article 9 of the Convention and , in particular, the principle of aut dedere aut judicare set out therein.

Military jurisdiction

34.The Committee is concerned that domestic legislation provides that military courts have jurisdiction to investigate allegations of acts of enforced disappearance committed by military personnel (art. 11).

35. Recalling its statement on enforced disappearances and military jurisdiction, the Committee recommends that the State party take the legislative measures necessary to exclude the investigation and prosecution of acts of enforced disappearance from the competence of the military courts in all cases.

Protection of persons participating in an investigation

36.The Committee regrets that it has not received more specific information on the bill on the protection of victims and witnesses (art. 12).

37. The Committee recommends that the State party establish mechanisms, including a structured programme, to ensure that all persons referred to in article 12 (1) of the Convention are effectively protected against all ill-treatment or intimidation as a consequence of complaints made or any evidence given.

4.Measures to prevent enforced disappearances (arts. 16–23)

Non-refoulement

38.The Committee notes the information provided by the delegation of the State party about measures taken to ensure respect for the principle of non-refoulement. It regrets, however, the lack of specific information on the criteria and procedures used to verify the risk of a person being subjected to enforced disappearance in the country of destination before their expulsion, return, surrender or extradition takes place (art. 16).

39. The Committee recommends that the State party ensure that the principle of non-refoulement enshrined in article 16 (1) of the Convention is strictly observed in all circumstances. In particular, the State party should:

(a) Consider expressly incorporating into its domestic law a prohibition on expelling, returning, surrendering or extraditing a person where there are substantial grounds for believing that he or she would be in danger of being subjected to enforced disappearance;

(b) Guarantee that, before proceeding to carry out an expulsion, return, surrender or extradition, all relevant procedures have been exhausted and a thorough individual examination has been conducted to determine whether there are substantial grounds for believing that the person concerned would be in danger of being subjected to enforced disappearance and that, if there are such grounds, the person concerned is not expelled, extradited, surrendered or returned;

(c) Guarantee that, in law and in practice, appeals against a decision to expel, return, surrender or extradite have a suspensive effect.

Secret detention and fundamental legal safeguards

40.The Committee is concerned about allegations that certain persons are being held illegally in unofficial places of deprivation of liberty by the Malian armed forces or the General Directorate of State Security and that these persons have no contact with the outside world and are unable to consult a lawyer or communicate with their family. It also regrets the lack of clear information on the domestic law provisions establishing a specific remedy in accordance with article 17 (2) (f) of the Convention. While taking note of the information provided on detention registers, the Committee is concerned about reports of shortcomings in the maintenance of registers of persons deprived of their liberty (arts. 17, 18, 19 and 20).

41. The Committee recommends that the State party guarantee that no one is held in secret detention, including by ensuring that all persons deprived of their liberty are afforded all the fundamental safeguards set out in article 17 of the Convention. In this regard, the State party must:

(a) Ensure that persons deprived of their liberty are held solely in officially recognized and supervised places of deprivation of liberty at all stages of the proceedings;

(b) Guarantee, from the outset of the deprivation of liberty, that all persons, regardless of the offence with which they are charged, have effective access to a lawyer and that their relatives, any other person of their choice and, in the case of a foreign national, the consular authorities of their country, are effectively informed of their deprivation of liberty and their place of detention;

(c) Guarantee that any person deprived of their liberty, including in police custody, and, in the case of a suspected act of enforced disappearance, since the person deprived of their liberty is not able to exercise this right, any person with a legitimate interest, will be entitled to take proceedings before a court in order for it to rule without delay on the lawfulness of the deprivation of liberty and to order the person ’ s release if the deprivation of liberty is not lawful;

(d) Enter all cases of deprivation of liberty, without exception, in up-to-date official registers and/or records that include, as a minimum, the information required under article 17 (3) of the Convention;

(e) Punish any failure to comply with the obligation to record all deprivations of liberty, the registration of inaccurate or incorrect information, any refusal to provide information on a deprivation of liberty and the provision of inaccurate information.

Inspection of places of deprivation of liberty

42.The Committee notes the information provided by the State party on the State and non-State actors authorized to visit places where persons are deprived of their liberty. However, it regrets the lack of information on the number of visits conducted to official detention facilities and their frequency. It is also concerned about reports that the National Human Rights Commission, in carrying out its mandate as the national mechanism for the prevention of torture, is not always granted access to all places of deprivation of liberty (art. 17).

43. The Committee recommends that the State party ensure that all authorized actors have effective access to all places of deprivation of liberty, whether official or unofficial. In particular, it recommends that the State party ensure that the National Human Rights Commission, in its capacity as the national torture prevention mechanism, is able to fulfil its inspection mandate freely and without hindrance.

Training in human rights, in particular the provisions of the Convention

44.The Committee notes the information provided concerning the training in human rights and standards governing deprivation of liberty given to members of the police and the prison service. It notes, however, that this training does not specifically cover the Convention (art. 23).

45. The Committee encourages the State party to ensure that the training for military and civilian law enforcement personnel, medical personnel, public officials, and others who may be involved in the custody or treatment of any person deprived of their liberty, including judges, prosecutors and other legal practitioners of all ranks, includes teaching on the Convention, in accordance with article 23.

5.Measures to provide reparation (art. 24)

Right to the truth and to reparation

46.While welcoming the holding by the Truth, Justice and Reconciliation Commission of a hearing on cases of enforced disappearance, the Committee regrets that it was not informed of the outcome of this hearing, or the conclusions reached by the Commission at the end of its mandate. The Committee is concerned that domestic law does not provide for a comprehensive system of reparation and does not recognize the right of victims to know the truth. It regrets that it does not have more specific information on the application of the measures provided for under articles 28–32 of the Act on National Understanding of 2019 (art. 24).

47. The Committee recommends that the State party recognize in domestic law the right of victims of enforced disappearance to know the truth and introduce in it a comprehensive reparation system that is fully in line with article 24 (4) and (5) of the Convention and other relevant international standards, thereby providing for guarantees of non-repetition. It also recommends that the State party ensure that this system is applicable even when no judicial proceedings have been initiated and that it is based on a differential approach that takes into account the specific situation of each victim, including sex, sexual orientation, gender identity, age, ethnicity, social status and disability.

Situation of women members of the family of a disappeared person

48.The Committee recalls the limitations faced by Malian women with respect to inheritance and access to social benefits that were reported by the Committee on the Elimination of Discrimination against Women and is concerned about the potential negative impact of these limitations on women’s full enjoyment of the rights enshrined in article 24 of the Convention (art. 24).

49. The Committee recommends that the State party ensure that all women and girls who are members of the families of disappeared persons are able to exercise all the rights enshrined in the Convention without restriction, including those contained in article 24.

Legal situation of disappeared persons whose fate has not been clarified

50.The Committee considers that a system for determining the legal situation of disappeared persons whose fate has not been established, such as the one provided for in articles 67, 68 and 76–83 of the Personal and Family Code, which requires a declaration of the absence and, in some cases, the death of the disappeared person, does not take sufficient account of the situation of social and economic vulnerability in which enforced disappearance places the families of disappeared persons (art. 24). The Committee is concerned that a very long time must have elapsed before relatives can assert their family and property rights.

51. The Committee recommends that the State party adopt the legislative measures necessary to ensure that, in accordance with article 24 (6) of the Convention, the legal situation of disappeared persons whose fate or whereabouts have not been clarified and that of their relatives are regularized in fields such as social welfare, family law and property rights within a reasonable time, without the need to declare that the disappeared person is presumed dead. In this connection, the Committee encourages the State party to provide, by law, for the issuance of declarations of absence by reason of enforced disappearance that are in line with the Convention.

Right to form organizations and associations

52.The Committee is concerned about the information provided by the State party that there are no associations of victims of enforced disappearance in the country. It also notes the concerns expressed by the Independent Expert on the situation of human rights in Mali regarding the “continued shrinking of civic space” and reports that members of civil society have been subjected to enforced disappearance (art. 24).

53. The Committee recommends that the State party respect and promote the right to form organizations and associations concerned with attempting to establish the circumstances of acts of enforced disappearance and the fate of disappeared persons, and to assist victims of enforced disappearance, and that it respect and guarantee the right of everyone to participate freely in such organizations or associations.

6.Measures to protect children from disappearance (art. 25)

Wrongful removal of children

54.The Committee regrets that it has not received information on the measures provided for under domestic law to prevent and punish the acts referred to in article 25 (1) of the Convention and to return the children concerned to their families of origin (art. 25).

55. The Committee recommends that the State party:

(a) Review its criminal legislation with the aim of incorporating as separate offences the acts described in article 25 (1) of the Convention and of providing for appropriate penalties that take into account the extreme seriousness of the offences;

(b) Establish specific procedures for returning the children referred to in article 25 (1) (a) of the Convention to their families of origin;

(c) Provide the persons concerned with the support they need to establish their identity and parentage and to clarify in full the circumstances in which they were adopted and guarantee their right to reparation.

D.Dissemination and follow-up

56. The Committee wishes to recall the obligations undertaken by States when becoming parties to the Convention and, in this connection, urges the State party to ensure that all the measures it adopts, irrespective of their nature or the authority from which they emanate, are in full accordance with the obligations it assumed when becoming party to the Convention and other relevant international instruments.

57. The Committee also wishes to emphasize the particularly cruel effect of enforced disappearance on the human rights of women and children. Women who are subjected to enforced disappearance are particularly vulnerable to sexual and other forms of gender-based violence. Women who are relatives of a disappeared person are particularly likely to suffer serious social and economic disadvantages and to be subjected to violence, persecution and reprisals as a result of their efforts to locate their loved ones. Children who are victims of enforced disappearance, either because they themselves were subjected to disappearance or because they suffer the consequences of the disappearance of their relatives, are especially vulnerable to numerous human rights violations, including identity substitution. In this context, the Committee places special emphasis on the need for the State party to ensure that gender perspectives and child-sensitive approaches are used in implementing the rights and obligations set out in the Convention.

58. The State party is encouraged to disseminate widely the Convention, its report submitted under article 29 (1) of the Convention, the written replies to the list of issues drawn up by the Committee and the present concluding observations, in order to raise awareness among the judicial, legislative and administrative authorities, civil society and non-governmental organizations operating in the State party and the general public. The Committee also encourages the State party to promote the participation of civil society, in particular organizations of relatives of victims, in the actions taken in line with the present concluding observations.

59. Under article 29 (4) of the Convention, the Committee requests the State party to submit, by no later than 23 September 2025, specific and updated information on the implementation of all its recommendations and any other new information on the fulfilment of the obligations contained in the Convention, in a document prepared in accordance with the guidelines on the form and content of reports to be submitted by States parties under article 29 of the Convention. The Committee informs the State party that it wishes to consider this report in 2026 and encourages the State party, when preparing this information, to continue to consult civil society, in particular organizations of relatives of victims.