IACHR Calls on States in the Americas to Adopt Migration and Border Management Policies That Incorporate a Human Rights Approach

April 1, 2021

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Washington, D.C. — The Inter-American Commission on Human Rights (IACHR) expressed its concern over the growing militarization of borders and restrictions on access to territories and protection procedures in the region. In response, it urged States to ensure that the migration policies and measures to manage and restrict cross-border human movement that they adopt are oriented toward respecting and guaranteeing the human rights of migrants, refugees, and those in need of protection.

In recent years, the IACHR has been monitoring the increase in mixed migratory movements and the recent tightening of migration policies in the Americas, a process that has worsened since the start of the COVID-19 pandemic. In this regard, the IACHR wishes to emphasize that there is ongoing use of measures that tend to 1) outsource control of migration; 2) deploy the armed forces, military police, and other security forces with military profiles and training to perform migration management tasks at borders; 3) increase the use of immigration detention and deportation or removal procedures that do not entail due process guarantees; and 4) limit access to States' territories and migratory, asylum, and international protection procedures, especially using the pandemic and response measures as a justification, which also affects the return migration of nationals.

The IACHR has warned that migratory movements in recent years have been made up of migrants, refugees, asylum seekers, and those in need of international protection, including women and others who are particularly at risk, such as children and adolescents, LGBTI people, victims of human trafficking, and people with disabilities. Despite this, there is a shortfall in measures that have been adopted that incorporate a gender perspective and differentiated approaches to protection. In addition, fear of contracting COVID-19 has exacerbated xenophobic discourses by blaming people in movement (especially irregular migrants) for carrying the virus and causing it to spread.

On this point, the IACHR warned that various states in the region have authorized the armed forces, military police, all state security forces with a military profile to take part in initiatives to ensure compliance with the containment measures imposed in response to the health emergency caused by the pandemic. Specifically, the IACHR underlined that against the backdrop of total or partial border closers, the Armed Forces—working alone or in conjunction with police forces—are allegedly participating in migration control operations to strengthen security measures at and surveillance of State borders. The purpose of this is to prevent the entry, exit, and transit of people in movement experiencing different migration and documentation situations. Furthermore, the IACHR noted that the participation of the Armed Forces in migration control tasks allegedly increases reports of excessive use of force against people in movement.

In response, the IACHR noted with concern that the Armed Forces being increasingly used in various countries in the region, including Brazil, Chile, Ecuador, Guatemala, Mexico, Nicaragua, and Peru. On this point, according to the information the IACHR has received, the National Human Rights Council (CNDH) of Brazil allegedly called into question Ordinance No. 62/2021 issued by the Ministry of Justice and Public Security, which was replaced by Ordinance No. 86/2021, which orders the National Public Security Force, which is military in nature, to assist state public security agencies "in activities entailing the exceptional, temporary blocking of foreigners from exiting the country, in a sporadic, planned fashion." In this regard, the IACHR noted that this would contravene the provisions of article 22.1 of the American Convention on Human Rights, which recognizes the right of all people to freely leave any country, including their own.

Likewise, on March 18, 2021, the CNDH issued Recommendation No. 5 on the adoption of measures to manage migration in the municipality of Pacaraima on the border with Venezuela. This was in response to reports of a potential intensification of migration controls to locate irregular migrants and deport them, and to the unauthorized entry of the Federal Police Force, the Civil Police of the State of Roraima, and the Public Prosecutor's Office of the State of Roraima into Casa São José, a humanitarian aid facility managed by the Center of Support and Pastoral Care for Migrants, to evict approximately 55 migrants.

With specific regard to this situation, the CNDH recommended: i) not carrying out house searches to identify irregular migrants; ii) not implementing health inspection measures regardless of whether or not these are associated with the repression of irregular migration; and iii) refraining from evicting people while the pandemic continues. In this regard, the State reported that the norms that have been implemented and the measures taken are exceptional, temporary, and relate to health issues rather than being a reflection of the State's migration policy. Another example of these measures is Interministerial Ordinance No. 652 of January 25, 2021, which allegedly remains in force even though it was not accepted by the CNDH, and allegedly rests on Law 13.979 of February 6, 2020. Brazil also reported that it has not and does not carry out collective deportations.

With regard to the role of the Armed Forces on Chile's northern border, Decree No. 265 of 2019 and the modification to this in January 2021 authorized the Armed Forces to work with civil and police authorities regarding activities that are linked to human trafficking, drug trafficking, and transnational organized crime near borders. The IACHR noted that by order of the President of Chile, the decree in question also granted the Ministry of National Defense the power to sign supreme decrees to deploy air, land, or maritime units to provide logistical, transportation-related, and technological support in border areas, along with the power to appoint the military commanders who will oversee the operations of the units assigned to these tasks.

The Chilean State informed the IACHR that Decree 265 authorizes the Armed Forces to work with civil and police authorities in connection with activities that are linked to human trafficking, drug trafficking, and transnational organized crime near borders but does not enable them to exercise force in migration-related situations or to control this directly. In this context, in 2021, the IACHR became aware of an increase in the entry of irregular migrants at the northern border, the presence of tensions of different sorts in response to these increases in human movement, the deportation of people without consideration of their potential need for international protection or family reunification, and the death of at least three people who allegedly entered the country in an irregular manner.

Along the same lines, the IACHR learned of tensions on the borders of Peru, Brazil, and Ecuador as these countries attempted to prevent migrants from entering as part of measures to respond to the pandemic. According to the information received by the IACHR, strategies were allegedly implemented on the border between Peru and Ecuador in January 2021 to exercise military control and surveillance of the border area. These initiatives aimed to prevent people from entering the country in an irregular manner. In response, Ecuador stated that its objective in implementing these strategies was to ensure orderly, safe, regular migration, in accordance with the Global Compact for Safe, Orderly, and Regular Migration. With regard to Guatemala, it was noted that on January 11, 2021, days before the entry of a migrant caravan from Honduras, the Office of the President published Government Decree No. 1-2021, through which it authorized the use of force to break up any unauthorized meetings, gatherings of people, or demonstrations in municipalities near the border with Honduras. The IACHR responded at the time through a press release dated January 28, 2021, in which it condemned the excessive use of force on the part of the National Civil Police Force and the Guatemalan Army, and called on States in the region to coordinate with one another to effectively guarantee the human rights of the people who made up the migrant caravan, especially the right to health and humane treatment, to seek and receive asylum, and to nonrefoulement.

The IACHR was also informed that the Army had been deployed to carry out border control operations in Nicaragua. The aim of these was to prevent people from entering the country in response to the spread of the COVID-19 pandemic. On this point, the IACHR observed that these measures mainly affected the movement of Nicaraguans, who were unable to return to their country.

The IACHR responded through a press release issued on July 31, 2020, in which it urged the State to allow the entry of nationals seeking to return to its territory by applying the appropriate health protocols. Similarly, on May 11, 2020, Mexico authorized the Armed Forces to carry out public security tasks in an extraordinary, regulated, monitored fashion that was subordinated to and complemented the work of the National Guard. The tasks in question include guaranteeing, maintaining, and reestablishing social order and peace and preventing crimes in border areas and at border crossings, transnational bridges, and immigration surveillance and control centers.

Civil society organizations argued that the involvement of the National Guard in conjunction with the Armed Forces constitutes a possible militarization of the State's response to irregular migration and is allegedly accompanied by the excessive use of force against people in movement, limitations on access to State territory, and basic guarantees concerning asylum or protection procedures in Mexico. In this regard, in the Preliminary Observations from its virtual visit to Mexico, the IACHR recommended that the State guarantee that functions relating to migration control, and assistance and care for the migrant population be carried out exclusively by civilian security forces and agencies.

The implementation of migration policies that authorize the cooperation and participation of the Armed Forces or other security forces of a military nature to carry out migration controls, monitor or control borders, or exercise force in relation to migrants could run counter to states' obligations to protect and guarantee the human rights of people in movement, while also running counter to inter-American standards and principles. In addition, the permanent presence of the Armed Forces along State borders is allegedly causing the militarization of these borders. 

In this regard, the IACHR reiterated that also States have the power to enter, leave, and remain in State territory, these policies should ensure protection for the human rights of this population. In the context of the COVID-19 pandemic, Resolution No. 01/20 on Pandemics and Human Rights highlighted the need to reconcile health measures to contain the spread of the virus with the obligation to protect people who are fleeing persecution, widespread violence, serious humanitarian crises, and other threats to their life and physical integrity.

Specifically, States must implement measures to guarantee entry to their territories, apply alternative measures to immigration detention, and guarantee access to migration, asylum, or international protection procedures while applying the necessary health protocols. They should do so by incorporating a gender perspective and differentiated approaches to care for groups such as children and adolescents, older people, and LGBTI people, while providing specific protection mechanisms to prevent the violation of rights, protect family unity, and respect the principle of nonrefoulement.

It should be noted that imposing restrictive measures that do not contemplate the need for international protection has forced people who need this to return to the territories of States where their lives, personal freedom, or personal integrity are at risk, while also hindering family reunification in some cases.

Furthermore, regarding the interconnection between migration policies and citizen security, the IACHR has pointed out that the latter should be the exclusive domain of appropriately organized and trained nonmilitarized, specialist professional bodies that are subject to parliamentary oversight and the ordinary judicial system, where appropriate. In addition, it deemed that personnel with a military profile and training do not have the skills to respond appropriately to people in need of international protection. As a consequence, it has reiterated the need to distinguish between security functions and direct humanitarian assistance for migrants, refugees, and people in need of protection by assigning care and assistance functions strictly to specialized civilian personnel.

Furthermore, the IACHR warned that the militarization of borders and the use of repressive mechanisms to contain mixed migratory movements lend themselves to being used strictly to discourage human movement but are largely ineffective at achieving this, while having a negative effect on migrants' human rights. Regardless of what the adoption of these measures seeks to achieve, the IACHR warned that policies of this sort are forcing people in movement to seek even more distant and insecure routes to access other States' territories. This would expose these people to greater violations of their rights and further vulnerabilities, such as being susceptible to becoming victims of trafficking. As long as measures are not adopted to overcome the structural causes of forcible migration, international migratory movements will continue to occur.

Finally, based on Resolution No. 04/19 on the Inter-American Principles on the Human Rights of All Migrants, the IACHR reiterated the need to articulate regional efforts to address the structural causes that lead to the forced displacement of people. It also highlighted the importance of coordinating initiatives and implementing regional strategies to create or expand channels that allow people to migrate safely and in a regular manner, allow them entry into state territory, and ensure they have effective access to asylum, protection, or migratory regularization procedures.

The IACHR is a principal and autonomous body of the Organization of American States (OAS), whose mandate derives from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote the observance and defense of human rights in the region and acts as a consultative body to the OAS in this area. The IACHR is composed of seven independent members who are elected by the OAS General Assembly in their personal capacity, and do not represent their countries of origin or residence.

No. 082/21