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19 and Defendant filed a reply (Doc. 128). The Court held oral argument on October 16,
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2018. On November 7, 2018, the Magistrate Judge issued a report and recommendation
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(Doc. 134). Defendant filed an objection on November 21, 2018 (Doc. 136).
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23 It has just come to undersigned counsel’s attention that a coalition of United
24 Nations officials representing various mandates and special procedures issued a letter to
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the United States concerning this case on May 25, 2018. The letter was kept confidential
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to permit the United States an opportunity to reply prior to its publication. No reply
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1 having been received, the United Nations Office of the High Commissioner on Human
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1 CERTIFICATE OF SERVICE
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EXHIBIT 1
PALAIS DES NATIONS • 1211 GENEVA 10, SWITZERLAND
REFERENCE:
AL USA 6/2018
25 May 2018
Mr. Allegra,
related illness. Over the last two decades, the remains of at least 7,000 people
have been recovered in the United States borderlands, taking into consideration
that, due to the remoteness of the area, only a small fraction of those who perish in
the desert are discovered.
The report also denounced the implication of Border Control agents in the
destruction of humanitarian aid supplies - such as food and safe drinking water -
and included video footage of such acts, concluding that the only actors with a
sufficiently large and consistent presence across a sufficiently wide area of the
desert, during periods when hunting is authorised or prohibited, are State
authorities.
It was in this context that Mr. Warren was detained overnight and released on his
own recognisance at a hearing in Tucson, Arizona, the next day.
Mr. Warren is charged with two felony counts of “harbouring”, both of which
carry a maximum penalty of five years, one felony count of “conspiracy to
transport”, which carries a maximum sentence of ten years, and two class B
misdemeanor charges of “operating a motor vehicle in a wilderness area” and
“abandonment of property”, both of which carry maximum penalties of six
months each. Mr. Warren thus faces a maximum sentence of 21 years in prison.
In addition, we have been informed that eight volunteers of No More Deaths have
been charged with Class B misdemeanors.
Serious concern is expressed over the arrest and charges against Mr. Scott Warren
and the charges against eight other volunteers for reasons directly linked to the provision
of humanitarian aid to migrants in their capacity as migrant rights defenders. We express
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additional concern that the arrest of Mr. Warren took place hours after the release of a
report seeking to document the situation of migrants in the US-Mexico borderlands. We
regret that this arrest takes place within the context of an apparent systematic pattern of
targeting migrant rights defenders in the United States for reasons either directly, or
tangentially, connected with their peaceful and legitimate work in the defence of human
rights. We are deeply concerned with the “chilling effect” of the arrest and charges on
legitimate human rights work aimed at saving lives. Serious concerns are also expressed
over the alleged implication of United States Border Control agents in the destruction of
humanitarian aid supplies, and their interference with migrants’ access to medical aid,
which may result in the unlawful deaths of migrants, as well as their disappearance,
including victims or potential victims of trafficking, in the Arizona desert.
While we do not wish to prejudge the accuracy of these allegations, we would like
to draw the attention of your Excellency’s Government to the relevant international
norms and standards that are applicable to the issues brought forth by the situation
described above, in particular articles 6, 13, 19 and 22 of the International Covenant on
Civil and Political Rights (ICCPR), ratified by the United States of America on 8 June
1992, which guarantee the right to life, not to be unlawfully expelled, and to freedom of
opinion and expression, and of association.
In connection with the above alleged facts and concerns, please refer to the Annex
on Reference to international human rights law attached to this letter which cites
international human rights instruments and standards relevant to these allegations.
2. Please provide detailed information on the factual and legal bases for the
charges against Mr. Scott Warren and explain how such charges are
compatible with international human rights law and standards, in particular
the treaty obligations undertaken by the United States under the ICCPR.
3. Please indicate what measures have been taken to ensure that migrant
rights defenders in the United States are able to carry out their legitimate
work in a safe and enabling environment without fear of threats or acts of
intimidation or retaliation directed against them or harassment of any sort.
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While awaiting a reply, we urge that all necessary interim measures be taken to
halt the alleged violations and prevent their re-occurrence and in the event that the
investigations support or suggest the allegations to be correct, to ensure the accountability
of any person(s) responsible for the alleged violations.
We may intend to publicly express our concerns in the near future as, in our view,
the information upon which the press release will be based is sufficiently reliable to
indicate a matter warranting immediate attention. We also believe that the wider public
should be alerted to the potential implications of the above-mentioned allegations. The
press release will indicate that we have been in contact with your Government’s to clarify
the issue/s in question.
Bernard Duhaime
Chair-Rapporteur of the Working Group on Enforced or Involuntary Disappearances
Agnes Callamard
Special Rapporteur on extrajudicial, summary or arbitrary executions
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Dainius Puras
Special Rapporteur on the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health
Michel Forst
Special Rapporteur on the situation of human rights defenders
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Annex
Reference to international human rights law
In connection with above alleged facts and concerns, we would like to draw your
attention to the relevant international norms and standards that are applicable to the issues
brought forth by the situation described above.
We would further like to reprise the recommendations made in the Report of the
Special Rapporteur on the situation of human rights defenders in 2018, (A/HRC/37/51)
which underline, inter alia, that States should ensure that migrant rights defenders are not
threatened with and subject to arrest, detention or deportation when reporting crimes,
labour rights violations, and other forms of human rights violations and that States must
ensure that domestic law and administrative provisions facilitate the work of all actors
providing humanitarian assistance to, and defending the rights of, people on the move,
including by avoiding criminalisation.
Article 6(1) of the ICCPR provides that every human being has the inherent right
to life and that no one shall be arbitrarily deprived of one’s life. The Human Rights
Committee, in its General Comments no. 6 and 31, confirmed that this right is not to be
narrowly interpreted and that its protection requires that the State adopt positive measures
(General Comment no. 6, para. 5 and CCPR/C/21/Rev.1/Add.13 para. 8). These positive
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obligations are only discharged if individuals are protected by the State against violations
of its own agents, and private persons and entities alike. Permitting or failing to take
appropriate action to exercise due diligence to prevent the death of any individual on its
territory or under its jurisdiction will result in a violation by the State party of the ICCPR
and give rise to State responsibility. If found true, the destruction by State agents of life-
saving humanitarian aid, i.e. food and safe drinking water, resulting in an increased risk
and death of migrants at the United States – Mexico borderlands, will give rise to such a
violation and consequent State responsibility for these deaths.
In this regard we would like to highlight that the enjoyment of the rights
guaranteed in the ICCPR ratified by your Excellency’s Government are not limited to
citizens of States parties but “must also be available to all individuals, regardless of their
nationality or statelessness, such as asylum seekers, refugees, migrant workers and other
persons, who may find themselves in the territory or subject to the jurisdiction of the
State Party” (ICCPR/C/21/Rev.1/Add. 13 (2004), Para. 10).
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In her country visit to the United States, the Special Rapporteur on trafficking in
persons, especially women and children noted that “the routine detention of migrants,
including possible victims of human trafficking who have been classified as smuggled
and processed for removal in the absence of accurate identification of trafficking grounds,
may amount to “penali[sing victims] solely for unlawful acts committed as a direct result
of being trafficked, such as using false documents, entering the country without
documentation or working without documentation” (A/HRC/35/37/Add.2).
The increased number of deaths along the Mexico/United States migratory route,
mentioned in Mr. Warren’s report, was also confirmed by the International Organisation
for Migration (IOM), which found that, due to increased criminalisation of migration,
migrants are forced to look for more remote paths to avoid detention. In addition,
similarly to the findings included in the No More Deaths report, according to IOM,
prolonged exposure to extreme environmental conditions at the borderlands, with
temperatures reaching up to 104°F (40°C) and lack of access to humanitarian assistance
are cited as the most frequent causes of death. Indeed, destruction of supplies, such as
safe drinking water, de facto hinders migrants’ access to that type of life-saving
humanitarian assistance that is essential to alleviate their suffering and prevent more
deaths.
In this regard, we would like to refer to article 25 of the UDHR which guarantees
the right of everyone to a standard of living adequate for the health and well-being of
himself and of his family, including food, clothing, housing and medical care. Similarly,
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we would like to bring the attention of your Excellency’s Government to article 12 of the
International Covenant on Economic, Social and Cultural Rights, signed by the United
States of America on 5 October 1977. While the United States of America has not ratified
ICESCR, it has agreed to bind itself in good faith to ensure that nothing is done that
would defeat the object and purpose of the international instrument, pending a decision
on ratification. This includes protecting and promoting the right to health, which extends
not only to timely and appropriate health care but also to the underlying determinants of
health, such as access to safe and potable water and adequate sanitation, an adequate
supply of safe food, nutrition and housing, amongst others (General Comment No. 14,
Committee on Economic Social and Cultural Rights, para 11).