20. U.S. Response to IACHR Petition "Operation Gatekeeper" petition, concerning border controls (February 20, 2004)
Reply of the Government of the United State to the Inter-American Commission on Human Rights
Case No. P65/1999 Operation Gatekeeper
The Government of the United States submits this reply in the case of Operation Gatekeeper, Case No. P65/1999. The United States respectfully requests that the Inter-American Human Rights Commission (“Commission”) declare the petition inadmissible and be dismissed for, inter alia, the following reasons:
1) The petition fails to state facts that tend to establish a violation of the rights set forth in the American Declaration of the Rights and Duties of Man (“American Declaration”) and is manifestly groundless. The petition, while attempting to cloak itself as an individual human rights complaint, is instead a general challenge to the legitimacy of the border control policy of the United States.
2) This case is moot in view of recent developments and changes in the U.S. border control policy.
Although styled as a human rights petition, the logical thrust of Petitioners’ argument is that the United States should somehow be deprived of the sovereign power to control migration of aliens into its territory. The sad reality is that people are willing to take risks to enter the United States illegally. Short of permitting every alien to enter its territory without restriction – a policy taken by no government on earth – it is foreseeable that people may die in an illegal attempt to enter. This unfortunate reality does not constitute a human rights violation, nor could it, as the logical consequences of such a far-reaching decision would be to vanquish all attempts by governments to control entry of foreign nationals into their territory.
I. Failure to state facts that tend to establish a violation
According to Article 34 of the IACHR Rules of Procedure (“Rules”) the petition must state facts that tend to establish a violation of the American Declaration, otherwise the Commission must determine the petition as inadmissible.
In their memorandum of November 29, 2001, Petitioners claim that there are new facts to show that Operation Gatekeeper violates Article I of the Declaration by “deliberately put(ting) migrants in mortal harm’s way.” They claim that illegal migrants die as a direct result of Operation Gatekeeper. Petitioners’ claims are unfounded and inaccurate, and they fail to enumerate specific facts to support their claims.
A. Failure to show state action
Petitioners allege that the rise in the death toll of illegal migrants is attributed to Operation Gatekeeper. Petitioners do not, however, present any evidence, nor can they, that these alleged human rights violations are attributable to State action, and thus there is no showing of a human rights violation. Petitioners do admit that the causes of death for illegal migrants crossing the border are heat exposure, hypothermia, dehydration, or drowning. These deaths, while tragic, are a result of people being ill prepared to cross harsh terrain and are not attributable to any policy or specific actions of the United States.
The petition also fails to articulate specific actions of U.S. actors, such as border control agents or law enforcement officers that resulted in the death of illegal migrants. Petitioners cannot allude to such specifics because they do not have any facts to support such a claim.
B. Failure to show breach of a duty under the American Declaration
Petitioners argue that Operation Gatekeeper violates Article I of the American Declaration. Petitioners’ argument is simply not true, nor have Petitioners offered any facts that demonstrate the veracity of this allegation. Instead, Petitioners are attempting to cloak a political critique of the United States border control policy in the garments of a human rights violation.
In attempting to create a human rights argument, Petitioners erroneously cite to various cases that are clearly distinguishable. For example, in Neira Alegría, the Inter-American Court addressed the direct actions of State actors that threatened the lives of their citizens, unlike the situation at hand.
In Neira, the petitioners were involved in a prison riot during which the Peruvian Navy entered and took control of the prison. As a result, several inmates were killed, and the petitioners’ families declared petitioners missing. This case involved the direct actions of State actors that resulted in harm to the petitioners. Here, on the contrary, there were no direct actions by State actors that resulted in harm to the Petitioners.
Petitioners also improperly cite to McCann and Others v. the United Kingdom, Application No. 17/1994/464/545 (27 August 1995). Apart from the obvious fact that McCann involves the interpretation of the European Convention rather than the American Declaration, in McCann, the European Court of Human Rights determined that the United Kingdom violated Article 2 of the European Convention for the Protection of Human Rights when U.K. military personnel killed three Irish Republican Army terrorists suspected of planning an attack in Gibraltar. McCann involved actions by the State actors that resulted in death.
Petitioners additionally cite to K.H.W. v. Germany, Application No. 37201/97 (22 March 2001), in which the Court held that border-policing regimes must comply with the need to preserve human life. The facts in that case involved East Germans who attempted to cross the Berlin wall over to West Germany and died as a result of triggering anti-personnel mines, automatic firing systems, or were shot by East-German border guards. As with the previously mentioned cases, the facts at issue were the direct actions of State actors that resulted in the death of those attempting to cross the Berlin wall. On the contrary, Operation Gatekeeper did not involve the implementation of anti-personnel mines or automatic firing systems. The deaths of illegal migrants are directly attributable to the natural environment and their own unlawful attempts to enter the United States. Operation Gatekeeper, Operation Desert Safeguard, and subsequent policies have included measures that offer humanitarian assistance to illegal migrants and serve to protect and save lives.
At issue in this petition are not the direct actions of U.S. border patrol agents that resulted in a particular harm to a specific migrant, but the overall policy of the United States border control. The facts in the cases cited above center around the actions of State actors that led to injury or death. Here, it is the harsh natural environment and the unlawful actions of the smugglers and migrants crossing the southern border of the United States that result in injury or death at issue in this petition.
Petitioners further attempt to argue that these cases are applicable to Operation Gatekeeper on the ground that states must take “all reasonable efforts” to minimize threats to the right to life. As a preliminary matter, there is no basis under the American Declaration for imposing such a standard to governmental policies of a general nature. Indeed, such a standard would seem to invite the Commission to review virtually all policies of governments and substitute its judgment on issues of a general nature for those of democratically elected governments. That said, it should be noted that the United States is taking reasonable efforts to minimize the threat to the right to life for those illegally crossing the border. As will be discussed further, the United States Border Safety Initiative (“BSI”) has significantly increased its capabilities in addressing the humanitarian needs of migrants. The United States BSI has also targeted smugglers who are responsible for leading illegal migrants through the worst parts of the desert in an attempt to escape detection. The United States, in attempt to help save the lives of illegal migrants who are at the mercy of the smugglers, has established Operation ICE (Immigration and Customs Enforcement) Storm, which targets smugglers’ monetary sources.
Petitioners claim that the result of illegal migrants dying in the harsh desert landscapes of the United States is somehow attributable to Operation Gatekeeper. It is true that much of the land that covers the U.S. southern border is harsh and unforgiving terrain even for the most experienced traveler. The United States, however, cannot be held responsible for the natural landscape of its borders nor for the illegal activity that its law enforcement personnel are acting to prevent. Petitioners’ claim solely rests on the deaths of illegal migrants due to environmental related causes of heat exposure, hypothermia, dehydration, and drowning. As noted earlier, these deaths are attributable to a harsh natural environment and not the direct action of any United States agents. Petitioners would have this Commission believe that there is a duty to protect individuals from all threats to the right to life that arise from natural landscapes.
Petitioners further claim that the deaths result from Operation Gatekeeper “pushing” illegal migrant traffic to certain spots among the United States border. The reality is that Operation Gatekeeper, Operations Desert Safeguard, and other programs operate together to protect the entire southern border of the United States. The result of illegal migrants attempting to traverse tougher terrain is a purposeful choice by illegal migrants and smugglers to escape detection and apprehension by U.S. border control. Regardless of where the illegal migrants chose to try to enter the United States, they are still crossing the borders of the United States “illegally and in violation of our laws.” Despite the illegality of these crossings, Petitioners’ argument implies that there is a duty on behalf of the United States to ease the viability of conducting illegal entry. While the United States does provide humanitarian relief to illegal migrants, it cannot be reasonably argued that the United States has a duty to make the illegal acts easier for individuals nor to indiscriminately forego its sovereign right and duty to control the entry of foreign nationals into its territory.
Article I of the American Declaration enumerates a right to life and security of person. Here, the right to life is a decision that rests in the hands of an individual of whether or not to take the risk of crossing the harsh terrain of the United States southern border. The individual migrant will make many vital decisions, such as to violate immigration laws by entering illegally, to choose a particular route, what preparations they undertake, and what safety precautions prior to such a perilous journey.
The United States has a right to secure its borders and enforce its immigration laws. Therefore, in order to protect the security of its citizens, the United States has a right and indeed a duty to its citizens to employ border agents to secure its borders and protect its citizens. Especially since the attacks on the United States of September 11, 2001, in order to ensure the security of its citizens, the United States has an urgent and compelling need to ensure that its borders are secure. The United States border control policies of Operation Gatekeeper, Operation Desert Safeguard, and others operate together to keep the U.S. borders free of illegal migrants and potential terrorists. According to U.S. Customs and Border Protection Commissioner Robert C. Bonner, the addition of Operation Desert Safeguard and the increase of agents “was a matter of national security.”
Contrary to Petitioners’ claim, the United States is acting in good faith in implementing its border control policy. The principle of good faith and the abuse of rights doctrine preclude a State from actions that cause unnecessary injury. As previously stated, at issue in the Petition is not any particular actions of U.S. border agents that have resulted in the deaths of illegal migrants, but a critique of U.S. border control policy.
The right to life does not impose an affirmative obligation by the state to somehow prevent all loss of life, especially where such deaths are directly attributable to the unlawful acts of the victims themselves. Rather, it provides protection against the arbitrary loss of life. Our policies are reasonable, and they comport with our right to secure our borders, while at the same time taking action to specifically prevent the loss of life among migrants.
Therefore, the Commission should declare petition as inadmissible, because it fails to state facts that tend to establish a violation of the rights set forth in the Declaration and is wholly groundless.
II. Petition is moot in view of recent developments and
changes in the U.S. border control policy.
According to Article 34(c), a petition is inadmissible when “supervening information or evidence presented . . . reveals that a matter is inadmissible or out of order.” Recent developments and changes in the United States border policy demonstrate that petition is inadmissible.
The policy Petitioners cite in their petition is Operation Gatekeeper, which was implemented in 1994. Since 1994, there have been numerous developments to Operation Gatekeeper, including the establishment of other border control policies.
In June 1998, the then Immigration and Naturalization Service announced the Border Safety Initiative. The goal of the BSI is to reduce injuries and fatalities along the Southwest border. On June 22, 2001, the United States and Mexico issued a formal joint communiqué in which they agreed to conduct joint training in search-and-rescue techniques, exchange intelligence related to migrant smuggling, and enhance the effectiveness of their joint outreach efforts to would-be migrants on the dangers of unauthorized border crossings, especially in remote areas during hot summer and cold winter months. From the inception of the BSI in June 1998 to February 2003, Border Patrol Agents rescued over 5,000 aliens.
One of the more recent developments occurred in June 2003 with the introduction of Operation Desert Safeguard. This program is a multi-agency operation, performed in conjunction with the Mexican government, that is designed to “dramatically reduce the number of people attempting to illegally enter the United States through the West Desert corridor of the Sonoran Desert from Mexico, and by so doing, to dramatically reduce the number of people who die attempting to cross that desert.” Operation Desert Safeguard includes increasing the number of agents, helicopters, surveillance flight hours, interior checkpoints, and the involvement of the Shadow Wolves from Tohono O’Oodham reservation.
Additionally, the U.S. Border Control has created the Border Patrol Search, Trauma and Rescue Team (“BORSTAR”) which is a highly- specialized team of individuals that are trained to conduct search and rescue missions in difficult terrain and to provide the best medical care possible to stabilize patients and transport them to areas accessible to more advanced emergency medical facilities. BORSTAR is credited with saving lives not only of civilians and Border Patrol agents but also of illegal immigrants. In fact, BORSTAR has stepped up their rescue capabilities with the result that, for every border death as of July 2003, BORSTAR reported saving at least four lives. The increased rescue capacities of BORSTAR includes having each team member medically trained and prepared to switch from law enforcement to humanitarian mode should they encounter a migrant in distress.
In addition, the U.S. and Mexico have agreed upon an updated Action Plan for Cooperation and Border Safety and a Memorandum of Understanding on the Safe, Orderly, Dignified and Humane Repatriation of Mexican Nationals. These two documents enhance efforts to ensure a safe, orderly, and humane border and signal continued, deepened binational coordination and cooperation to address a common problem. The programs outlined above display the good faith commitment of the United States to provide humanitarian relief to those attempting to illegally cross our borders.
Therefore, the Commission should also declare the petition as inadmissible in light of the recent developments and changes in the United States border policy that promote humanitarian assistance while protecting national borders.
For the reasons set forth above, the petition in this case should be declared inadmissible and dismissed without delay.
 Nov. 29, 2001 Memorandum at 1; see also Petitioners’ Second Supplemental Memorandum at 16, “The principal goal of Operation Gatekeeper has been to channel migrants towards inhospitable and remote areas that provide a mortal threat.”
 Nov. 29, 2001 Memorandum at 1.
 Exhibit G, Petitioners’ Supplemental Memorandum; Petitioners’ Second Supplemental Memorandum at 3.
 Petition at 40-41; Second Supplemental Petition at 15-17. Article 1 of the American Declaration is, in its entirety, “Every human being has the right to life, liberty and the security of his person.”
 Neira Alegría, Inter-Am. Ct. H.R. (ser. C) No. 20 (1995).
 Second Supplemental Memorandum at 8.
 McCann at para. 213.
 Petitioners’ other ECHR case, Andronicou and Constantinou v. Cyprus, 25 Eur. H.R. Rep. 491 (1998), is also clearly distinguishable, as the State actors’ use of force in that case was in self defense and to protect the life of a young woman.
 U.S. to Hunt Down Arizona Brokers of Immigrant Smuggling, The Arizona Daily Star, November 11, 2003. According to ICE assistant secretary Michael Garcia, “Take away profit, take away the money and you’re putting up an incredible deterrent for alien smugglers. If the money’s not there, they’re not going to be there.” See also, Border Safety Initiative, available at http://www.cbp.gov/xp.cgov/enforcement/border_patrol/safety_initiative.xml (visited Feb. 3, 2004).
 Robert C. Bonner, Commissioner, U.S. Customs and Border Protection, Announcement of Operation Desert Safeguard (June 3, 2003) (transcript available at http://www.customs.ustreas.gov).
 Additionally, the choice of illegal migrants to risk crossing harsh terrain is not a violation of the principles of good faith and abuse of rights doctrine. While Petitioners’ assert, “Operation Gatekeeper violates Article I of the American Declaration as well as the Principle of Good Faith and the Abuse of Rights doctrine”, Petitioners cite no evidence to support their argument. Second Supplemental Memorandum at 15-17.
 BORTAC, Border Patrol’s mobile tactical unit, working our desert, Tucson Citizen, September 8, 2003.
 Additionally, according to Article 31 of the Rules, the Commission must verify whether Petitioners have pursued and exhausted all remedies available within the domestic system. Petitioners have failed to meet this requirement. There are available domestic remedies that would address specific human rights violations, if such violations existed. There are civil remedies and criminal penalties. The Petitioners have not cited any U.S. federal or state court cases that they filed. Also, Petitioners have not mentioned any lobbying efforts they undertook of Congress. The proper remedy for a critique of U.S. border control policy is in the forum of the domestic legislature, not an international human rights commission. Finally, Petitioners cannot avail themselves of their duty to pursue domestic remedies by any of the exceptions in Article 31.
 Border Safety Initiative, Feb. 2, 2003, available at http://www.cbp.gov/xp/cgov/enforcement/border_patrol/safety_initiative.xml (visited Feb. 3, 2004).
 Id. This success belies Petitioners’ baseless assertion that “Even the modest goals of its Border Safety Initiative have not been met.” Second Supplemental Memorandum at 16.
 Robert C. Bonner, Commissioner, U.S. Customs and Border Protection, Announcement of Operation Desert Safeguard (June 3, 2003), available at http://www.cbp.gov/xp/cgov/newsroom/commissioner/speeches_statements/jun032003.xml (visited January 21, 2004).
 July Cruelest Month for Migrants, Arizona Republic, July 30, 2003 at 1B.
 BORTAC, Border Patrol’s mobile tactical unit, working our desert, Tucson Citizen, September 8, 2003.