Law on Paper, Protection in Practice: Non-Refoulement and US Deportations to Eswatini and Ghana
International law bars sending people to places where they face torture, a rule known as non-refoulement, but when the US deports people to third countries, enforcing these protections falls to the receiving country. Between January 2025 and August 2026, the United States sent 536 people to African countries that were not their own. Eswatini, an absolute monarchy, and Ghana, a constitutional democracy, show how much a host country’s courts, press, and legislature matter. Because their courts and press differ sharply, so does the form of harm deportees experience: indefinite detention in Eswatini, fast onward removal in Ghana. The US treats third-country deportation deals as a way to transfer responsibility by contract, but non-refoulement cannot be transferred. Because no court can reach both the US and its hosts, a deportee’s protection depends on whether the host’s courts can act before removal. In Eswatini and Ghana, they often cannot: Eswatini’s courts have struggled to hear challenges to detention, while Ghana’s have not acted quickly enough to stop onward removal.
Two treaties outline this rule: the UN Convention Against Torture, which most countries, including the US have joined, and the 1969 OAU Refugee Convention, an agreement among African states made under the Organization of African Unity, now called the African Union. Each approaches the prohibited conduct differently. Article 3 of the Convention Against Torture bars expulsion to any state where there are substantial grounds to believe a person would be tortured. The Committee Against Torture extends this to chain removals, in which the receiving state passes the person on to danger, and warns against using diplomatic assurances to get around the rule. The OAU Refugee Convention defines the duty by its effect. Article II(3) bars measures that would compel a person to return to, or remain in, a territory of danger, so a removal that is lawful in form but coercive in practice falls within it. Both treaties legally bind the countries that sign them, yet neither establishes a judicial forum able to prevent a removal in time. That gap matters most in third-country removals, because once a person leaves US territory, US courts struggle to reach them, and no treaty names another court that can. In September 2025, a federal district court declined to halt the onward removal of five deportees held in Ghana because they were already in Ghanaian custody. Enforcement therefore falls to the host state, which holds the person.
Eswatini accepted up to 160 deportees for $5.1 million under a non-binding memorandum that surfaced months later. By September 2026, the US had sent 32 people to Eswatini, whose government described them as “in transit.” Those still held were in Matsapha maximum-security prison, and a US lawyer cited by Human Rights Watch, an international rights group, counted at least 19 with US protection against return home. Alternatives are narrow: the High Court dismissed a civil society challenge for lack of standing, the legal right to bring a case, and the Supreme Court's April order gave lawyers access, not release. Assisted return was offered, and at least five men accepted it, since the alternative was indefinite detention. When deportees agree to return home only because the alternative is indefinite detention, that is coerced return, which the OAU Refugee Convention prohibits.
Ghana frames its own deal to accept deportees from the US as a humanitarian gesture of West African solidarity, though its foreign minister acknowledged the deal was tied to the lifting of US visa restrictions. That framing sits uneasily with later reports that deportees were sent onward within days, and sometimes hours. Ghanaian activists and courts have challenged the arrangement. Democracy Hub, a Ghanaian civil society group, petitioned the Supreme Court in October 2025, arguing the arrangement needed parliamentary ratification under Article 75 of the Constitution, and in February 2026, the Court ordered the Attorney-General to produce the agreement for its lawyers. Yet a coalition says many of its 27 clients were removed from Ghana within days, some within hours, despite US court orders barring their removal to their home countries. As of October 2026, the Supreme Court had issued no final ruling.
Side by side, the cases show that a host country’s courts, legislature, and press decide how deportees are harmed and how fast any remedy comes, not whether the law protects them on paper. Eswatini’s standing rules, which limit who can bring a lawsuit, and its secrecy about the deal shut out most legal challenges to the detentions. Ghana's courts have been slower to act than executive, so deportees are sent onward before a court can act. Democratic institutions protect only if a forum can act before the person is moved.
Accountability is thin at every level. In D.V.D. v. DHS, the First Circuit held that people need notice and a chance to claim they would face torture before removal. But on September 29, the Supreme Court paused that ruling 6-3 and scheduled a hearing for December. Even a win would secure only the process, not scrutiny of the host state. D.V.D. would give deportees notice and a chance to claim they face torture, but it would not let a US court assess conditions or practices in the country receiving them. That leaves a gap: the US can be required to listen to a claim, yet no court can examine what the host will do with the person. The UK Supreme Court did that review in R (AAA) v Secretary of State for the Home Department (2023), weighing Rwanda's practice rather than its assurances. US law has no equivalent. Regional bodies reach only hosts. A complaint over Eswatini at the African Commission on Human and Peoples’ Rights, the African Union’s human rights body, was allowed to proceed in March 2026. A June 2026 suit at the ECOWAS Court, the court of the West African regional bloc, seeks to halt transfers to Ghana. The United States is party to neither, and the Commission's findings are not self-enforcing. Its Resolution 645 tells African states not to join migration partnerships when they know, or should know, that those partnerships carry a real risk of serious rights violations, but it is soft law.
The two cases suggest that the harms deportees experience are shaped by the institutions of the receiving country. Two pending rulings, in D.V.D. and in Ghana’s Supreme Court, could change this. For now, the deals assume that responsibility can be moved by contract. Non-refoulement says otherwise, but it works only where someone is listening, and the deals leave that to chance.