At the same time, the United States sent a significant quantity of guns to the Dominican Republic, many of which made it into the hands of the Haiti rebels. After installing the illegal IGH, the United States provided it with $1.9 million in weapons donations.
At the same time that it was preventing the elected government from accessing resources and security equipment, the U.S. government generously financed a series of non-governmental organizations in Haiti to undermine the elected government. The program, financed by the U.S. Agency for International Development and implemented by the International Foundation for Electoral Systems (IFES), spent millions of dollars creating and supporting a network of political, professional, business, and legal organizations, for the express purpose of generating public opposition to Haiti’s elected governments. IFES financed activities of the “Group of 184”, led by a U.S. citizen, which organized demonstrations against the government, many of them illegal and provocative. Several participants in IFES programs were named to key places in the interim government, including Prime Minister Gérard Latortue and Minister of Justice Bernard Gousse.
The U.S. government also failed to come to Haiti’s aid when requested to do so. As the insurgency captured more territory in Haiti, the Haitian government requested “a few dozen peacekeepers” to avoid further bloodshed. On February 26, CARICOM requested that the Security Council authorize the urgent deployment of a multinational force to assist in the restoration of law and order. The United States not only failed to provide any assistance to support Haiti’s embattled democracy, but U.S. officials applied pressure to force President Aristide to leave.
Providing a small number of peacekeepers was certainly within the U.S. government’s power; a detachment of 50 U.S. Marines arrived in Port-au-Prince before the coup d’état to protect American interests, and within hours of President Aristide’s departure, the U.S. was able to land a peacekeeping force.
The U.S. Government played an active role in President Aristide’s physical removal from Haiti on February 29, 2004. First, on the afternoon of Saturday, February 28, 2004, the Steele Foundation, a U.S. company that had been providing private security services to the Haitian government, informed President Aristide that the U.S. government had asked it to withdraw all of its personnel from Haiti. The Steele Foundation also told President Aristide that the U.S. government was blocking the Steele Foundation’s efforts to bring to Haiti additional personnel needed to protect the President. The Steele Foundation later informed President Aristide that without the additional personnel, the Foundation would not be able to protect the President or his wife.
Contrary to the official account of the U.S. government, U.S. Congresswoman Maxine Waters and Randall Robinson, the former Executive Director of TransAfrica, have reported that Aristide, calling from a cell phone, told them that he had been compelled to resign against his will by U.S. diplomats and U.S. armed forces, that he was kidnapped by these personnel, and that he was being held by an armed military guard. One of Aristide’s own bodyguards similarly reported seeing Aristide being taken away by an armed U.S. guard. President Aristide reported that he had been conferring with U.S. Ambassador James Foley on February 28 about ways of avoiding further violence in Port-au-Prince and had agreed to go with a U.S. escort to a location where he could appear on television to appeal for calm. Aristide reported that when he went with the escort early the next morning, his U.S. escort instead took him “straight to the plane,” which he described as an unmarked white aircraft with a U.S. flag. Aristide said that unidentified U.S. civilians and Haitians forced him to sign a letter and board the plane leaving Haiti. Aristide himself claims that the statement that he signed was not a resignation letter – that it included a conditional statement, “[i]f I am obliged to leave in order to avoid bloodshed . . . .” He boarded and was followed by uniformed U.S. troops who changed into civilian clothes after boarding. Also on board were his wife and nineteen members of the Steele Foundation, a private security company contracted by the U.S. Two witnesses, an American security guard and Frantz Gabriel, Aristide’s aide, supported this account. D. Both the national police and rebel groups continue to use violence to intimidate their political opponents.
Since February 29, 2004, opponents of President Aristide and paramilitary groups have killed hundreds of political adversaries. The U.S. armed forces, which defended the institutions of the coup government from February 28 through June 1, did little to protect civilians.
According to several human rights reports, members of Aristide’s Lavalas Party fear for their physical safety, and many remain in hiding. Since the coup, the Haitian police have arrested hundreds of Lavalas supporters; however, rebel leaders, as well as members of the opposition to Aristide who have been convicted of past human rights abuses, remain free.
Further, the interim government has launched a systematic effort to suppress or destroy grass-roots political organizations. Anthony Fenton, a Canadian journalist and a member of an observation mission to Haiti, wrote:
Right now there is a political climate in Haiti where anyone can get on the radio stations and accuse anyone else of a crime or with being associated with violent Lavalas gangs. It means that without proof they can say this about you and immediately you have to go into hiding, and immediately you have to be concerned with your own welfare; and immediately the death threats begin. That’s the political climate that you have in Haiti today.
. . . Daily around 4:00 P.M, lists of names are read over the elite-controlled radio stations.
By sundown those whose names are read on these lists (and others) are quick to find a suitable place to hide.
According to the report of the National Lawyers Guild delegation, politically motivated killings were widespread in the immediate aftermath of the coup. The delegation reported that the Director of the State Morgue “admitted that ‘many’ bodies have come into the morgue since March 1, 2004, that are young men with their hands tied behind their backs, plastic bags over their heads, that have been shot,” and that “morgue workers . . . confirmed that many bodies continue to come in that have hands tied behind their backs.” The Morgue’s Director also told the NLG delegation “that 800 bodies were ‘dumped and buried’ by the morgue on Sunday, March 7, 2004, and another 200 bodies dumped on Sunday, March 28, 2004. The ‘usual’ amount dumped is less than 100 per month.”
According to the International Crisis Group (ICG) which released a report in November 2004 on the political situation in Haiti, most of these individuals were shot in the heavily populated slums of Port-au-Prince, where armed groups battled with the Haitian National Police. Further, the report notes that the Haitian National Police have been accused of summarily executing young men in the capital’s pro-Aristide neighborhoods.
According to an Amnesty International fact-finding mission, two people with Lavalas connections were murdered in separate incidents on April 3 and 4, 2004 in the Port-au-Prince slum Martissant. Two members of KOMIREP, a grassroots organization that includes victims of the 1991 coup d’état that removed President Aristide from power during his first term, were kidnapped on April 4, 2004. Further, there have been widespread reports of other unlawful killings and kidnappings in Port-au-Prince of persons belonging to pro-Aristide organizations.
According to a report by the Harvard Law Student Advocates for Human Rights and Brazil’s Centro de Justiça Global:
civilian casualties remain common in Port-au-Prince’s slums, where gangs wage daily, low-level urban warfare. Large swaths of the poor countryside remain under the control of the former military, historically the major domestic force behind coups d’états and among the foremost violators of human rights . . . . Numerous allegations of severe human rights abuses by the Haitian National Police (“HNP”) remain uninvestigated. These violations span a gory spectrum, from arbitrary arrest and detention, to disappearances and summary executions, to killing of scores of hospitalized patients and the subsequent disposal of their bodies in mass graves.
The IGH has also detained an undetermined number of political prisoners in the Haitian National Penitentiary (“Penitencier National”) in Port-au-Prince. The Inter-American Commission reported in April 2005 that, “according to a November 2004 report by the Office of the Ombudsman, an average of approximately 90% of individuals held in detention centers in Haiti’s 10 geographic departments have not been tried or convicted. For instance, the Commission visited the National Penitentiary and discovered that of the 1,054 inmates in the prison only 9 were convicted of any crime.”
Prisoners are routinely held in cement cells without toilets, water or electricity. A United Nations Development Program official warned the Haitian government that the conditions were so inhuman that violence by prisoners is inevitable. Pre-trial detainees are not separated from convicted prisoners in the Penitencier. Further, according to Professor William Quigley, “this lack of due process creates an environment of increased frustration, tension and violence.”
On December 1, 2004, police and prison officials fired automatic weapons at prisoners in response to a non-lethal protest. Journalists, human rights groups, and witnesses claim that several dozen people were killed. Although both MINUSTAH and the PNH have announced investigations into the case, neither has released a report on the killings.
Among the most notable political prisoners being held by the IGH is the former Prime Minister Yvon Neptune. On March 25, 2004, Judge Clunie Pierre Jules, a magistrate investigating the violent clash between government forces and rebels on February 2004 in St. Marc’s La Scierie neighborhood, issued an arrest warrant against Neptune. Mr. Neptune was not aware of the warrant until it was announced on the radio on June 27, 2004, and, that day, he promptly turned himself in to the Haitian police. The police detained Mr. Neptune, and he spent almost a year in prison before being brought before a judge. Formal judicial charges were not brought against Mr. Neptune until September 2005. Thierry Fagart, the top UN human rights official in Haiti called the charging document that was eventually issued “a flagrant violation of the Constitution.”
On August 20, 2005, police accompanied by civilians with machetes attacked a crowd at a soccer stadium in broad daylight, killing between 15 and 30 civilians. This attack was the latest in a series of police/paramilitary attacks throughout the month of August.
On October 14, 2005, Mr. Fagart called the human rights situation “catastrophic.” He cited summary executions, mob violence, torture and arbitrary arrests, and urged the IGH to end human rights abuses immediately. On November 29, 2005, Louis Joinet, the UN Human Rights Commission Independent Expert on Haiti, called a press conference to denounce the IGH’s illegal imprisonment of political dissidents.
The press in Haiti has been persecuted as well. On October 5, 2005, the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission issued a press release deploring the recent attacks against the exercise of the right to freedom of expression in Haiti, as well as the acts of intimidation and aggression against journalists and the media in the country.
Amidst this climate of fear, armed groups remain unchecked by the transitional government, the Haitian police, or the multinational peacekeeping force and continue to engage in a systematic repression of political opponents. This has made meaningful political participation in Haiti impossible.
III. Exhaustion of Domestic Remedies
Petitioners beg the Commission to review this petition. Pursuing domestic remedies has been impossible in Haiti, the United States, and the Dominican Republic, and is likely to be impossible in the foreseeable future. Generally, the Commission requires that domestic remedies be exhausted before granting review. Petitioners would attempt to meet this requirement if it were at all possible. Since no domestic remedies are possible, Petitioners plead that the Commission grant review.
A. The inter-American legal system permits exceptions to the domestic exhaustion requirement.
The inter-American human rights system has recognized that the exhaustion requirement cannot always be met. “It is generally accepted that the procedural system is a means of attaining justice and that the latter cannot be sacrificed for the sake of mere formalities.” Exceptions to the exhaustion requirement stem from the requirement in Article 46(1)(a) of the American Convention on Human Rights (“Convention”) that remedies be pursued and exhausted “in accordance with generally recognized principles of international law.” The Court has held, “Those principles refer not only to the formal existence of such remedies, but also to their adequacy and effectiveness.”
The Court has declared:
Adequate domestic remedies are those which are suitable to address an infringement of a legal right. A number of remedies exist in the legal system of every country, but not all are applicable in every circumstance. If a remedy is not adequate in a specific case, it obviously need not be exhausted. A norm is meant to have an effect and should not be interpreted in such a way as to negate its effect or lead to a result that is manifestly absurd or unreasonable.
. . . .
A remedy must also be effective—that is, capable of producing the result for which it was designed. Procedural requirements can make [a particular remedy] ineffective: if it is powerless to compel the authorities; if it presents a danger to those who invoke it; or if it is not impartially applied.
Where domestic remedies are “inadequate” or “ineffective,” resort to them becomes a “senseless formality,” and Petitioners are not required to exhaust them. Pursuant to Article 37.3, when the Petitioner asserts an inability to prove exhaustion, the Government bears the burden of showing that domestic remedies remain to be exhausted.
B. Exhausting domestic remedies is impossible in Haiti.
Petitioners are unable to pursue any domestic remedy in Haiti. The current state of the
Haitian legal system and the nature of violations for which Petitioners seek a remedy make due process unavailable to Petitioners in Haiti. The transitional government in Haiti ignores the rule of law by denying political prisoners access to the courts, disregarding prisoner-release orders, and removing judges who obey the rule of law. The climate of violence and the intimidation in Haiti has created fear throughout Haitian society and, in particular, in the Haitian legal community, making it impossible for Petitioners to effectively pursue any domestic legal claims. Under these exigent circumstances, Petitioners invoke exceptions to the exhaustion requirement under the American Convention, Article 46(2)(a).
The upcoming elections in Haiti do not offer Petitioners a domestic remedy. The Haitian people voted in 1990, but the military organized a coup d’état that ousted the elected government. The Haitian people voted in 2000, but their elected government was overthrown, this time with the help of the governments of the United States and the Dominican Republic. Although elections are expected to be held sometime in early 2006, the date has been postponed four times. Haiti’s Constitution required the elections to have been held on November 27, 2005 and for the inauguration of a new President on February 7, 2006.
The elections are being organized under an unconstitutional government by an unconstitutional electoral council. Preparations to date have been deeply flawed and discriminatory, and the persecution of political dissidents makes it impossible for Haitian voters and potential candidates to participate freely in the elections.
Haiti’s voter registration process was extended for two months because the IGH refused to install sufficient voter registration offices in poor urban and rural neighborhoods. The current plans for election day include a similarly inadequate
Thomas M. Griffin, Haiti: Human Rights Investigation November 11-21, 2004, in Center for the Study of Human Rights 20-22 (2004), available at http://www.law.miami.edu/cshr/CSHR_Report_02082005_v2.pdf.
K.D. Knight, Minister of Foreign Affairs and Foreign Trade, Jamaica, Address to the U.N. Security Council on Haitian Situation, Feb. 26, 2004, available at http://www.un.org/News/Press/docs/2004/sc8011.doc.htm.
The U.N. Stabilization Mission in Haiti (MINUSTAH) assumed responsibility from the U.S.-led multinational interim force on June 1, 2004. Eric Green, New U.N. Stabilization Mission Begins in Haiti, Washington File, June 2, 2004, available at http://usinfo.state.gov/xarchives/display.html?p=washfile-english&y=2004&m=June&x=20040602160522AEneerG0.9652674&t=livefeeds/wf-latest.html.
See, e.g.,Griffin, supra note 35; Amnesty International, supra note 29; Laura Flynn et al., Report of the Haiti Accompaniment Project June 29-July 9, 2004, Haiti Accompaniment Project, 2004, available at http://www.haitiaction.net/News/hap6_29_4.html (last visited Mar. 27, 2005).
Thomas Griffen, Summary Report of Haiti Human Rights Delegation (National Lawyers Guild, New York, N.Y.), Mar. 29 – Apr. 5, 2004, available at http://www.nlg.org/programs/international/Haiti_delegation_report1.pdf.
See, e.g., Public Statement, Amnesty International, Haiti: Illegal and arbitrary arrests continue – Human rights hampered amid political violence (Oct. 19, 2004), available at http://web.amnesty.org/library/Index/ENGAMR360562004?open&of=ENG-HTI; Amnesty International, supra note 29; Public Statement, Amnesty International, Haiti: Unbridled Violence Must End (AMR 36/054/2004) (Oct. 8, 2004), available at http://web.amnesty.org/library/Index/ENGAMR360542004?open&of=ENG-HTI.
Harvard Law Student Advocates for Human Rights and Brazil’s Centro de Justiça Global, Keeping the Peace in Haiti? 1 (2005), available at http://www.law.harvard.edu/programs/hrp/CAP/current/americas/haiti.html.
Amnesty International, supra note 56; Human Rights First, What’s At Stake, Your Help Needed for Priest and Activist, available at http://action.humanrightsfirst.org/campaign/Jean_Juste/explanation; Amnesty International, Release Political Prisoner Annette Auguste, 20 Months of Arbitrary Detention (Jan. 10, 2006); Brian Concannon, Human Rights in Haiti (2004), available at http://www.ijdh.org/articles/article_ijdh-human-rights_update-july-26-04_outline.html.
Reed Lindsay, Haiti Inmates Call Prison Riot a Massacre, San Francisco Chronicle, Jan. 2, 2005, available at http://www.ijdh.org/articles/article_ijdh-human-rights_alert_january-4.html; Harvard Law Student Advocates for Human Rights, supra note 55, at 41.
Declaration of Professor William P. Quigley Regarding Threats to Petitioner’s Life, Integrity and Health, Attached to Petition of Yvon Neptune to the Inter-American Commission on Human Rights (Apr. 4, 2005).
Institute for Justice & Democracy in Haiti, Report on December 1 Massacre in the Haitian National Penitentiary (2004), available at http://www.ijdh.org/articles/article_ijdh-human-rights_alert_december-20.html.
La décision de la juge Cluny Pierre Jules, de renvoyer l’affaire Neptune par devant un tribunal criminel sans assistance de jury, est une violation flagrante de la constitution de 1987, Agence Haïtienne de Presse, Oct. 14, 2005, available at http://www.ahphaiti.org/ndujour.html.
Institute for Justice & Democracy in Haiti, Preliminary Report on Police/Civilian Attacks on August 20 and 21 in Grande Ravine (2005), available at http://www.ijdh.org/articles/article_recent_news_8-24-05.htm.
Press Release 129/05, Organization of American States, Office of the Special Rapporteur for Freedom of Expression Deplores Attacks Against the Haitian Press (Oct. 5, 2005), available at http://www.cidh.org/relatoria/showarticle.asp?artID=646&lID=1.
Inter-Am. Ct. H.R., Cayara Case Preliminary Objections (ser. C) No. 14, ¶42 (Feb. 3, 1993); see also Inter-Am. Ct. H.R., Certain Attributes of the Inter-American Commission on Human Rights (Arts. 41, 42, 44, 46, 47, 50, and 51 of the American Convention on Human Rights), Advisory Opinion OC-13/93 (ser. A) No.13, ¶43 (July 16, 1993).
Inter-Am. Ct. H.R., Velásquez Rodríguez Case (ser. C) No. 4, ¶63 (July 29, 1988) (emphasis added); see also Inter-Am. Ct. H.R., Godínez Cruz Case (ser. C) No. 5, ¶66 (Jan. 20, 1989); Inter-Am. Ct. H.R., Fairén Garbi and Solis Corrales Case (ser. C) No. 6, ¶87 (Mar. 15, 1989); Inter-Am. Ct. H.R., Caballero Delgado and Santana Preliminary Objections (ser. C) No. 17, ¶63 (Jan. 21, 1994); cf. Inter-Am. Ct. H.R., Exceptions to the Exhaustion of Internal Remedies (Art. 46(1), 46(2)(a) and 46(2)(b) American Convention on Human Rights), Advisory Opinion OC-11/90 (ser. A) No. 11, ¶36 (Aug. 10, 1990).
Inter-Am. Ct. H.R., Velásquez Rodríguez Case ¶¶64, 66; see also Inter-Am. Ct. H.R., Godínez Cruz Case ¶¶67, 69; Inter-Am. Ct. H.R., Fairén Garbi and Solis Corrales Case ¶¶88, 91; Inter-Am. Ct. H.R., Caballero Delgado and Santana Preliminary Objections ¶63; cf. Inter-Am. Ct. H.R., Advisory Opinion OC-11/90 ¶36.
Inter-Am. Ct. H.R., Velásquez Rodríguez Case ¶68; Inter-Am. Ct. H.R., Godínez Cruz Case ¶66; Inter-Am. Ct. H.R., Fairén Garbi and Solis Corrales Case ¶87; Inter-Am. Ct. H.R., Caballero Delgado and Santana Preliminary Objections ¶63; cf. Advisory Opinion OC-11/90 ¶36.
Id. para. 5. For example, Jean Senat Fleury resigned as a Judge on January 10, 2005, to protest the Minister of Justice’s illegal decision to remove cases from his docket, a decision implemented a few weeks after Judge Fleury released a political prisoner for lack of evidence. Judge Fleury describes the removal of cases as “a grave insult to my honor and to my integrity as a judge; a flagrant violation of the Constitution and laws of this country, particularly the principle of separation of powers.” See Judge Fleury’s Letter of Resignation, Jan. 10, 2005, translated by Brian Concannon. The Minister of Justice’s interference in Judge Fleury’s docket is one example of many interferences by the transitional government in the rule of law.