Annual Report 1991

CHAPTER V

SITUATION OF HAITIANS IN THE DOMINICAN REPUBLIC

1. Background

Thousands of Haitians take part in the Dominican Republic's sugar cane harvest each year, hired by the State Sugar Council (Consejo Estatal del Azúcar-CEA) to cut the cane. The conditions under which the laborers live and their treatment have been the subject of several complaints. The International Labour Organisation (ILO) included this matter in its 1983 annual report. There, it evaluated compliance with the governing international norms and conventions.

But international concern goes beyond labor circles. Human rights organizations, too, have published reports that are exposés of the role that police and military forces play in recruiting laborers and of the abuses committed by CEA officials during harvest time and other times as well.

Those human rights organizations and church organizations have appealed to the international community for solidarity to denounce the CEA's abuses and the Dominican Government's failure to take action.

The Dominican Government has paid more attention to the problem. On October 15, 1990, the Executive Branch of the Dominican Government issued Decree No. 417/90, which contains certain labor and human rights provisions for the Haitian laborers, to address situations that had been reported by various observers some of which contend that the measures that the Dominican Government is taking are superficial and that their true purpose is to silence the international public.

In early June 1991, there was a resurgence of the long-standing problem of the Haitian workers in the Dominican Republic, against a backdrop of national economic crisis.

On June 11, 1991, the nongovernmental organization Americas Watch told the United States House of Representatives of the human right violations that the Haitian cane cutters employed in the Dominican Republic are experiencing. It drew particular attention to what is considered a system of forced labor whose most pathetic victims are the Haitian children working on the plantations belonging to the State Sugar Council. During hearings before the United States Congress, Father Edwin Paraison of the Anglican Church (who had once lived in the "bateye" of San Pedro Macoris) testified that the Government of President Balaguer had issued Decree 417-90 so that the Haitian workers might receive better treatment; however, the measures was never applied in practice and the Haitians continue to live under deplorable conditions. According to his testimony, one can still see Haitian children laboring in the sugar mills. Many of them have been brought from Haiti using the kind of tricks or operations typical of the slave trade, with "buscones" (hunters) being paid 10 to 15 dollars for every young cane cutter they bring in.

A few days after complaints of mistreatment of Haitians started up again and after ABC television network in the United States aired pictures of the deplorable life conditions of the Haitian cane cutters[1], President Balaguer issued Decree 233, of June 13, 1991, whereby any undocumented Haitian in the Dominican Republic, under the age of 16 and over 60, would be repatriated.

Starting on June 18, the Dominican Government started collective expulsions of Haitian cane cutters. Thus far, thousands have been expelled. In these collective expulsions, the Government of the Dominican Republic and its agents were accused of practices that are violations of the American Convention on Human Rights.

2. Measures taken by the Inter-American Commission on Human Rights

a. Request for precautionary measures

Because of the complaints the Commission received as to the irregular way in which the Haitians or persons thought to be Haitians were being deported, even though they may have been born in the Dominican Republic, and in response to public confirmation by the Minister of Foreign Affairs to the effect that the repatriations ordered by President Balaguer would continue, on June 26 the Executive Secretariat of the IACHR sent a cable to the Dominican Government asking that it take the precautionary measures necessary to prevent any irreparable harm. The text of that cable follows:

June 26, 1991

His Excellency Joaquin Ricardo

Secretary of State for Foreign Affairs

Santo Domingo, Dominican Republic

SG.CIDH.022.91. I have the honor to address Your Excellency to inform you that the Inter-American Commission on Human Rights has received information to the effect that the Dominican Government is allegedly conducting collective deportations of Haitians, most of whom work in the private and State-owned sugar industry.

According to the reports received, the Dominican authorities are searching the streets and "bateyes", picking up Haitian laborers who work in the State sugar refineries of the Dominican Republic; because so many have been taken into custody, they have had to be quartered in facilities of the Ministry of Agriculture.

The Commission learned that last week Dominican authorities deported 20 children and more than one hundred adults. Most of the adults deported were 50 years old, even though repatriation decree No. 233-91, issued by President Balaguer on June 13, 1991, provides that the measure would apply to Haitian laborers under the age of 16 and over 60. There are other reports of deportations involving individuals who were born in the Dominican Republic.

This Commission has also been told that many Haitians came in voluntarily, fearful of reprisals, while others were arrested by soldiers who did not even give them the chance to tell their families of their predicament. Most of them complain that they had to abandon their small children in the Dominican Republic.

The Inter-American Commission on Human Rights believes that the collective deportation of Haitians in the Dominican Republic is a violation of the human rights upheld in Article 22.9 of the American Convention on Human Rights, which states that: "The collective expulsion of aliens is prohibited." The Dominican Republic is a State party to that Convention.

Considering the seriousness of the situation, the Commission is asking that the Government of the Dominican Republic kindly provide information as soon as possible concerning the events in question; that it suspend any measure intended to put Repatriation Decree No. 233-91 into practice and take the necessary precautionary measures to prevent irreparable harm from being done to those persons who are about to be deported. This request is being made pursuant to Article 29 of the Commission's Regulations.

I would be most grateful if Your Excellency would kindly provide information on the measures taken to deal with the situation in question. I must also convey to you the Commission's deep concern over this matter and remind Your Excellency's Government of its obligation to guarantee the full and effective exercise of the human rights of its nationals and of any aliens in the country.

The Inter-American Commission on Human Rights is ready to cooperate with the Government of the Dominican Republic on those matters that the latter deems pertinent to the resolution of the situation in question.

Accept, Excellency, the assurances of my highest consideration.

(signed by) Edith Marquez Rodriguez

Executive Secretary

A communication dated July 1, 1991, from the Government of the Dominican Republic to the Inter-American Commission on Human Rights, reads as follows:

Madam

Edith Marquez Rodriguez

Executive Secretary of the IACHR

Washington, D.C.

Dear Madam:

I am pleased to acknowledge receipt of your Note SG/CIDH/022/91, which concerns the measures adopted by the Dominican Government in connection with the repatriation of aliens who were within its territory under irregular circumstances.

I take the liberty of informing you that the measure in question was adopted in accordance with the Constitution and laws of the Republic, which give the Dominican State, in exercise of its sovereignty, the authority to repatriate any alien who is in the Republic in violation of the Immigration Laws.

In the case of Haitian nationals, steps have been taken to repatriate minors, with all the proper guarantees and considerations. These are minors who have no family in the Dominican Republic, who claim that while in Haitian territory, fellow Haitians duped them into coming to the Dominican Republic by offering them work here. In the case of those over the age of 60, here again we are repatriating those who have agreed to be repatriated and who have no family in the Dominican Republic. All of these repatriations are being done without violating the rights to which they are entitled.

Furthermore, it is obvious from Article 22.1 of the American Convention on Human Rights that an individual enjoys freedom of movement and residence in a territory only if that person is there lawfully. Hence, if an individual is not in the territory lawfully, then the State can repatriate that person.

Accordingly, I feel I should inform you that there is an Agreement between the Dominican Republic and Haiti, dated February 9, 1938, Article Ten of which reads as follows:

Art. X.- To prevent any possibility of a recurrence of new problems, the High Contracting Parties do hereby agree:

1. That each Government will take the measures necessary to prevent their nationals from crossing the borders into the territory of the other State, without the proper permission from the competent authority of the latter.

2. That in keeping with International Law, nationals of either State who are within the territory of the other State in violation of the latter's laws shall be immediately repatriated or declared undesirable aliens by the competent authorities.

The above paragraph is elaborated upon in Article 7 of the Modus Operandi between the Dominican Republic and Haiti, dated November 21, 1939. An analysis of the provisions of the 1938 Agreement and of the 1939 Modus Operandi shows that each State is authorized to take legal action against illegal aliens from the other State or to order their repatriation. Thus, the repatriations recently conducted by the Dominican Government have a basis in law and will continue to be carried out slowly and gradually, so that they do not cause any further problems or difficulties for the Haitian authorities.

We would like to point out that the problem is not merely one of immigration and demographics. It is more serious still, as it has numerous economic, labor, social and health implications.

First, estimates are that there are more than one million Haitians in our country. They represent a very competitive labor force that displaces Dominican workers.

Finally, the problem has enormous political and economic significance, considering the tremendous burden that this vast number of immigrants represents for the Dominican State, especially in the midst of this crisis that grips our country as it does so many others, when we have to restore the health of our economy and, at the same time, tackle the urgent public works program that will benefit those most in need, all for the sake of a brighter future for the Dominican Republic.

I should also like to say again that the Dominican Government has the utmost respect for the human rights defended by the inter-American system and the United Nations system. We believe that we are serving the cause of human rights by repatriating these people, as we are thereby resolving the dilemma of aliens who claim to have come to this country because of false promises and who therefore wish to return to their home country.

The Government of the Dominican Republic is ready to cooperate with the Inter-American Commission on Human Rights by making available any information it may request and complying with its international obligations, as it has been doing and as has been acknowledged in recent years in the Organization of American States, the United Nations, the International Labour Organisation and other international organizations. Accordingly, it accepts the Commission's offer of cooperation and hopes that this materializes into concrete measures that help to correct the serious problem of the illegal aliens in Dominican territory. The Dominican Government is ready to undertake negotiations with the Haitian Government, with a view to instituting mechanisms to regulate the traffic of persons between the two countries.

Allow me to extend assurances of my highest consideration.

(signed by) Joaquin Ricardo

Secretary of Foreign Relations

b. The IACHR's observation visit in the Dominican Republic

In view of the various reports from nongovernmental agencies concerning alleged violations of the human rights of Haitian nationals who were being expelled from the Dominican Republic and because the repatriations announced by the Government were being conducted with greater frequency. Moreover, because the Government had expressed its willingness to cooperate with the Commission, on July 24, 1991, the IACHR asked the Government of the Dominican Republic to authorize a visit to that country for the purpose of observing the situation of the Haitians and to see how the repatriations were being effected. On August 2, 1991, the Government of the Dominican Republic, by way of its Permanent Mission to the OAS, replied to the Commission's request, giving its authorization for the IACHR to make the in situ visit.

The Special Delegation from the IACHR was composed of the First Vice Chairman, Dr. Marco Tulio Bruni Celli, and the lawyer of the Executive Secretariat, Dr. Bertha Santoscoy, with the administrative assistance of Ms. Gloria Sakamoto. The observation visit took place between August 12 and 14, 1991.

During its stay, the Special Delegation from the IACHR met with the following government authorities: Secretary of Foreign Relations, Dr. Joaquín Ricardo García; Deputy Secretary of Foreign Relations, Dr. Fabio Herrera; Labor Secretary, Dr. Rafael Alburquerque and with the Director of the State Sugar Council, Dr. Juan Arturo Biaggi. The Delegation requested a meeting with the President of the Republic, from which they received no reply. The Delegation also met with the Chargé d'Affaires at the Haitian Embassy, Mr. Jean-Marie Joestines; with the Director of the International Organization of Migrations, Dr. Pedro Pimentel, and with the representative of the Haitian Pastoral Church, Father Edwin Paraison.

The Special Delegation also heard individual testimony and met with representatives of human rights groups, among them the following: the Center for the Defense of Human Rights, the Dominican Human Rights Committee, the American Association of Jurists - Dominican Branch, the Socio-Cultural Movement of Haitian Laborers, the Dominican Social Work Center, and the Dominican Ecumenical Labor Commission. It visited the El Mamey "batey", located on the outskirts of Santo Domingo.

c. Statements made by the IACHR Delegation to the press

During the Special Delegation's visit, Dr. Bruni Celli indicated the purpose of the IACHR's visit to the press, stating that "though nothing could be said about the Delegation's impressions, the visit was being made because of the Commission's concern over the effects that the repatriations were having on the unity of the families of those affected by the process." In reference to the Dominican Government's arguments that the repatriations are being conducted under the Dominican State's sovereign law, he commented that "this is not something that can be viewed solely from the angle of sovereignty." "We understand, of course, that every State has the authority to take decisions regarding aliens within its territory, but when doing so consideration must be given to such questions as the length of time those aliens have been in the country; the activity they have engaged in; whether or not they were born there; their social security benefits; what chances there are that their problems might be corrected there, when they had had to leave the country so abruptly, something that after living there so many years had never even occurred to them..." "These people" -he emphasized- "don't even speak the language of Haiti; on the other hand, they are not citizens of the Dominican Republic either." He went on to say the following: "This is not a question of statelessness in the legal sense; it is a de facto situation that has to be looked at carefully."

Finally, Dr. Bruni Celli said that he was interested in finding a solution to the problem. It was not an issue to be viewed from the strictly legal or economic perspective; basically, one had to look at it as a humanitarian issue: "Today, these things can't be settled by invoking the old sovereignty issue." He added that "When a State ratifies international conventions, especially in the area of human rights, it cedes part of its sovereignty; it makes a commitment to the international community to try to resolve its problems according to rules requiring observance of human rights in their broadest sense."

3. Background concerning the sugarcane workers in the Dominican Republic: Living and working conditions in the bateyes

During the meeting that the Special Delegation had with representatives of human rights groups, it was told of the deplorable conditions in which Haitians lived in the CEA "bateyes". According to the information it received, Haitians were deceived by the duplicity of the "buscones", agents in the pay of the CEA who got 50.00 dollars for every Haitian. Haitian children were promised that they would be playing soccer or picking tomatoes and that they would be paid in dollars. Once over the border, they were turned over to the CEA representatives, who then assigned them to work on the State sugar plantations[2]. There was also testimony from Haitians who were "kidnapped" near the Dominican border by Dominican soldiers. These Haitians were then taken to Dominican military facilities nearby, where they spent several days in custody; from there they were sent to the cane fields, often against their will. The 1989 Report of Americas Watch shows the complicity of the Haitian military, who allowed their Dominican counterparts to recruit[3].

According to what the IACHR Delegation was told, the State Sugar Council acted in bad faith when hiring the Haitians. Though the contracts were written in Spanish and Creole, they were sometimes signed beforehand. Furthermore, almost all of the laborers were illiterate.

It was also said that once the Haitians were at the sugar mills, they were not allowed to leave and were kept under armed guard. The guards took the Haitians' clothes at night in order to keep them from escaping. The 1989 Americas Watch Report talks of the physical mistreatment of the Haitian laborers. Frequently, CEA authorities or military men beat Haitians who refuse to follow orders. Other times they are hit with machetes or shots are fired in the air. The Inter-American Commission on Human Rights is examining a case involving two Haitian laborers who were allegedly wounded when the superintendent of the Batey Proy Velasquez de Monte Plata hit them with a machete.

The Delegation from the IACHR was told that in many CEA bateyes, the Haitians live in unhealthy, overcrowded conditions, where potable water and latrines are lacking. These conditions cause diseases such as tuberculosis, diarrhea and malaria, which were reported frequently. The medical clinics were poor and normally quite far away from the bateyes. The Delegation was also told that the cane cutters were paid with vouchers, not with money; those vouchers could only be used at the company store, which discounted 20 percent of their value. The wages of the laborers were barely enough to survive. As noted, the job of cutting cane was likened to the work of farm workers. Since there had been no binational agreement since 1986, their wages had to be at least that of the farm workers, i.e. RD$24.00. The Haitian laborers were paid RD$18.00 per ton of cut cane and the total depended on the laborer's skill. Inexperienced "kongos" earned much less than the older laborers; some didn't manage to earn the minimum wage of RD$24.00 given to the farm workers. Here it was pointed out that the weight of the cut cane determined how much one earned. There were complaints that some scales were rigged against the laborers. It was also said that they were times when they were accused of theft so as not to pay them their wage. Some representatives of human rights groups said that while the term "slavery" might not be the most appropriate, there were conditions within the bateyes that were very akin to slavery, though not slavery in the strict sense.

During the conversations that the Special Delegation had with various government authorities, they said that although conditions in the bateyes were indeed harsh, they were the kind of conditions one found in bateyes in any underdeveloped country. The working conditions were the same for Haitian and Dominican workers alike, and one could not call it slavery. The Secretary of Labor said that there was a great difference between a slave's work and normal work, since the laborers in the Dominican Republic received a wage. He also acknowledged, however, that the salaries continued to be paid in vouchers but that those vouchers could be redeemed at any business establishment. He also added that the Government had made a commitment to pay on a weekly basis and starting with the next harvest the wages would be paid in cash. He said that in general, the Government's policy was to improve the working conditions as follows: 1) hiring directly to eliminate the "buscones;" 2) eliminating payment by means of vouchers, and 3) controlling the weighing of the cane.

4. The collective expulsions

a. Legal background

As previously mentioned, the Decree 233-91, issued by President Joaquín Balaguer on June 13, 1991, orders the repatriation of aliens under the age of 16 and over the age of 60 who entered Dominican territory to work in the sugar industry, in both private and State establishments. In the case of State-owned sugar mills, it was provided that the Secretariat of Labor would check to see that these workers received the job benefits to which they were entitled. In the case of private and State-owned establishments, Article 2 of the Decree guarantees "every possible consideration" in dealing with the persons to be repatriated.

This decree would seem to be at odds with an earlier measure that was distinctly positive. This was Decree 417-90, issued by President Balaguer on October 15, 1990, which ordered the General Immigration Bureau to regularize, "as swiftly as possible," the immigration status of the Haitian cane workers. To date, few Haitians have been able to get their situation regularized.

As for the question of nationality, Article 11, paragraph one of the Dominican Constitution states the following: Dominicans are "any person born in the territory of the Republic, save for the legitimate children of aliens residing in the country as members of diplomatic mission or those who are in transit in the country." Article 9, paragraph one of the Civil Code states: Dominicans are those persons who were born in the territory of the Republic, regardless of the nationality of their parents. Dominican citizenship can be established with a birth certificate. The place of birth can also be established by the appropriate indication on the identity card.

Unfortunately, most people whose parents are Haitian but who were born in the Dominican Republic do not have a birth certificate or do not have their documents with them at the time of the round-ups. As for the identification cards that some persons of Haitian origin have, the competent authorities do not recognize them as legally valid documents because, they say, many of them have been forged, especially at election time. Often, parents who are in the country illegally are afraid that because of their own situation, their children, even if they were born in Dominican territory, cannot claim Dominican citizenship. Here the authorities told the IACHR Delegation that they were not entitled to Dominican citizenship simply because they were born in Dominican territory; by virtue of the exceptions cited in the Constitution as regards jus-soli, aliens in transit were excluded. They said also that: "If the parents are illegal, so also is the child, even if said child is born here."

The Commission was also told that with the application of decree 233, constitutional principles were violated like the one contained in article 8, paragraph 15, letters a and c of the Dominican Constitution which states that: In order to strengthen its stability and well-being, its moral, religious and cultural life, the family shall receive from the State every possible protection. a) Motherhood, regardless of the woman's condition or status, shall be protected by the public powers... and c) Matrimony is recognized as the legal foundation of the family.

The authorities said that the repatriations of Haitians were acts emanating from the sovereign right of the State to issue decrees to determine whether or not aliens could remain in the country. The Delegation was also told that there was a difference between repatriation and deportation. Repatriations were directed at illegal aliens below the age of 16 and over the age of 60, as set forth in Decree 233-91. Deportations were for undocumented aliens of all ages (some of whom are indigent), based on Immigration Law No. 95 of 1939 with respect to persons not covered under that Decree. However, Article 13, paragraph e, of that law (amended by Law No. 1559 of 1947) provides that "No alien shall be deported without being informed of the specific charges prompting his deportation and without being given a fair chance to refute those charges."

b. Characteristics of the deportations

During the conversations that the Delegation had, many opinions were expressed. All agreed on one point: concern over the irregular way in which the repatriations of Haitians were being conducted.

According to information received, in putting Decree 233 into practice, numerous arbitrary acts were committed against Haitian citizens and even against Dominican citizens of Haitian ancestry. On June 17, 1991, the Government appointed General José Ramón Mota Paulino, previously chief of the National Police, as the new Director General of Immigration. The first repatriation, involving 29 minors, occurred the next day. According to information received, these were minors who had been recruited under false pretenses and all wanted to return to Haiti. This repatriation was conducted in orderly fashion. Later, however, police and army soldiers were involved in indiscriminate and arbitrary arrests of individuals of Haitian origin. The round-ups targeted the "bateyes" as well as poor neighborhoods in the cities, especially the neighborhood known as "Petit Haiti" in Santo Domingo, which is where many people of Haitian origin live.

The Special Delegation from the IACHR was repeatedly told that the round-ups were not confined to minors and the elderly, as Decree 233 provides; instead, persons of all ages were targeted. Moreover, those rounded up were just not sugar cane workers, but also individuals who harvest rice, cacao and work in the construction business. On this point, Government authorities told the IACHR Special Delegation that the repatriations were targeted at anyone who was in the country illegally, so that it was not just Decree 233 that was being followed.

The IACHR Special Delegation also received reports of families being forcibly separated when the individuals rounded up were not given the chance to take their wives and children. It was also reported that in some cases, they were not allowed to gather together their few belongings to take to Haiti, since they had to obey the order to remain on the bus or "suffer the consequences"; in a show of "generosity," however, the soldiers bought some of the Haitians' possessions from them, paying ridiculously low prices. The Haitians had only two alternatives, either to accept the price offered or leave their effects behind. In other cases, the repatriations were done so hastily that those concerned were unable to get the wages and other job benefits that they had coming to them. These repatriations were repeatedly denounced as being actual "collective expulsions."

During the talks with representatives of human rights groups, the latter said that issuance of Decree 233-91 had been a negative development, since it was fundamentally unjust and tended to exacerbate the situation rather than correct it. They mentioned that there was really no need for the Decree, since Immigration Law No. 95, of April 14, 1939, and Immigration Regulations No. 279, of May 12, 1939, regulated all matters related to immigration in the country. Specifically, Article 3 of Law 95 set forth the formalities and conditions required for an alien to be declared an immigrant; if declared an alien he could remain in the country indefinitely. On the other hand, they noted that Decree 233 was an executive order fraught with emotional issues and positions that had not been carefully analyzed; the result was an extremely complex situation that discriminated against and was harmful to the Haitian population in the country, since by ordering repatriation of those under 16, various constitutional principles were breached, among the one contained in Article 8, paragraph 15, concerning the protection of the family.

It is obvious that repatriation causes disruption in established families, since they are obliged to follow their repatriated child. They cannot leave the child to his own fate in a country that, even though it is the country of origin, is alien to them.

Also, the IACHR Delegation was told that Decree 417-90 seemed to lay the groundwork for Decree 233-91: when Haitians attempted to have their status regularized, they had to turn their documents over to the competent authorities; the authorities never returned those documents and as a result, when the round-ups were conducted, the Haitians were left without the documents to prove that they were trying to legalize their status.

Furthermore, the IACHR special delegation was told that it was unjust to repatriate individuals over the age of sixty because they were no longer able to engage in the hard work of cutting sugar cane; after having worked 20, 30 or 40 consecutive years in the cane fields, they had spent the better part of their lives there. It was also unfair to take these elderly people to Haiti only to join the ranks of an army of beggars, which is what would happen since they would not be receiving the job benefits for the number of years they had worked for the CEA. We believe, they added, that "above all else, this is a human problem of conscience that has to be resolved with the minimum guarantees and respect for human rights."

Furthermore, as the Haitian citizens said during the IACHR special delegation's visit to Batey El Mamey, the CEA kept a record of the Haitians it hired. At times, it gave them an identification document that was valid within the Batey for the duration of the harvest. However, this was not done every year and the list was not sent to Immigration. These facts were brought to the special delegation's attention as an example of the bad faith on the part of the State Sugar Council, since on the one hand the CEA sent out people to find Haitian workers, but then did nothing to obtain the means to legalize their presence.

As pointed out, the "repatriation" method was done in two stages: the first was the round-up, which targeted individuals who physically resembled Haitians, though no documents to establish whether in fact they were Haitians or Dominicans were requested. In some cases, the method used to determine whether an individual who had been detained was Haitian was to tell them to say the word "perejil" or "colorado" since Haitians were unable to pronounce those words correctly.

The second stage in the repatriation process was to take the detainees to the Agricultural Studies Center (CESDA), which is located in San Cristóbal and is outfitted as a detention facility. The individuals were kept there until they were taken to the Haitian border. Immigration authorities alleged that a screening was done at that point and humanitarian or personal considerations were taken into account in those cases in which immediate repatriation could cause a family serious problems. However, non- governmental institutions have stated that in conversations with Immigration authorities, the latter have admitted that at no point in this process are the affected parties given a formal hearing with minimum guarantees to claim their right to remain in the country, either because they are entitled to citizenship or because they qualify for a temporary or permanent residence permit, or because they have a right, somehow, to have their presence in the country regularized.

A number of denunciations confirmed these allegations: Haitian diplomatic sources in Santo Domingo said that on one occasion a Haitian woman had been beaten by a camp guard and had not been allowed to go back to her house for her infant child. On another occasion, a Haitian woman was detained and not allowed to take her little boy with her; later, the child was taken to the Southern Agricultural Development Center (CESDA), in the city of San Cristóbal, where Haitian nationals kept him up until the time they were taken to the border. It was also reported that at that time the Haitian Embassy was trying to locate in Haiti the parents of two little girls who had been left behind alone in the Dominican Republic as a result of the repatriations. It was also reported that on August 2, in Villa Altagracia in Cibao, a group of Haitians were beaten by Dominican Government authorities. Another case was reported involving a Haitian woman who had been exposed to the sun for one day, staked out with her arms and legs spread apart. There was also the case of Mr. Jacques Bien Aimé, a tourist of Haitian origin and Canadian citizenship, who was beaten and arbitrarily detained for two days by members of the police, who argued that his passport was false. The special delegation spoke personally with Mr. Bien Aimé, who was at the Canadian Embassy and confirmed the abuses he had suffered.

A Haitian diplomat told the special delegation from the Commission that he had witnessed a round-up conducted in "Petite Haiti" (the area of Santo Domingo where a large number of Haitians live) and had watched as an Army Colonel and other agents burst into the homes of the Haitians and took away their belongings, which were then distributed among those who had taken part in the operation. He told the special delegation that he spoke with the Colonel who led the operation and the Colonel told him that "he was the law" and that "he did what he damned well pleased". He kept the Haitians' documents. Later, when the Embassy protested these arbitrary acts, the documents were returned.

The delegation was repeatedly told that the round-ups conducted by Government agents were done according to the color of the person's skin; several times they detained and expelled Dominicans, since the documents did not matter to them. Often, when people showed their documents, the agents tore them up immediately.

The special delegation traveled to the slum "Petit Haïti" and had the opportunity to hear the testimony given by many persons in this locality who corroborated how the violent acts were carried out during the riots.

The Representative of the Haitian Embassy in the Dominican Republic told the IACHR's delegation that by his estimate the Haitian population in the Dominican Republic was 350,000 (although the figure given by the Government was one million, even though there was no census) and that the number of "forced repatriations" since the start of the process totaled 4,500 and the number of voluntary repatriations were 15,000. The Haitian Embassy had granted these people a "transit card" to enter the country. (As of September, 1991, the figure was calculated at 60,000). He also added that 90 percent of the people who came to the Embassy voluntarily did so out of fear of being mistreated and losing their belongings.

The Special Delegation told the competent authorities that the Inter-American Commission on Human Rights had received complaints concerning the haste with which the repatriations were being conducted. Everything happened so swiftly that the Haitians did not have a chance to claim their wages or any other benefits to which they were entitled. The Secretary of Labor told the special delegation that indeed in some cases they had not been paid their wages, but that CEA agents were now going to the CESDA detention facility to deliver any wages that were due.

On August 13, the Commission's special delegation went to Batey El Mamey, located in Boca Chica. It had an opportunity to observe the departure of several dozen Haitians, who had to pay their own trip back to Haiti. Each one of them had to pay RD$150.00 for the bus fare and RD$200.00 for every mattress he took back. The people of Batey Mamey told the special delegation that they had to leave because of the Presidential decree, "that if the President did not want them here, they had to go" and "they could not live in constant fear." Others said that they preferred to leave voluntarily out of fear of mistreatment from the authorities, as had happened some days earlier, when a round-up was conducted and the soldiers fired into the air to keep the people from running away. They also told the delegation that some people had to leave, even though they had their documents that proved that they were Dominicans, but they preferred to go with the rest of their families. According to statements made, many of those who had left, even though they had worked 20 or 30 years for the CEA, had not been paid.

Cases of violations

What follows is a list of cases that the Special Delegation from the IACHR received from non-governmental organizations. This is a list of representative cases. Though not an exhaustive list, it does illustrate the effects that the repatriations being conducted by the Dominican Government have had: Many of these cases were confirmed before the special delegation by those people living in the bateyes.

Children have been the most affected. A partial list of 124 Dominican children was kept at the "Bon Repos" center in Haiti, where the repatriates were being received. They range in age from 19 days to 16 years. Many women with babies were detained and repatriated, and often their families were separated. In some cases the children or adolescents were sent to Haiti; in other cases the parents were repatriated leaving the little ones behind in the Dominican Republic.

Manuel Diaz de la Cruz, 35, was born in La Romana. He was detained by the National Guard in Batey Monte Coca. His wife, Maria Jean, who was born in Tamayo of Haitian parents, was also arrested. They forced them to leave the Dominican Republic and they had to abandon their three children and all their belongings.

Antonio Luis Rodriguez, 48 years of age, was born in El Seibo. He was detained on July 3, 1991, near Lome Melles. He showed his papers to the Dominican police. They took the papers, destroyed them and then put him in handcuffs. He left his wife and six children behind in the Dominican Republic.

Rene Hipolito, 38 years of age, was born in Santo Domingo. Dominican military detained him and confiscated his birth certificate and his identification card. Mr. Hipolito told the soldiers that he had been born in the Dominican Republic. They sent him to a military detention center in San Cristobal. Military guards stole his watch and a gold chain and they expelled him to Haiti. He left a wife and two small children behind in the Dominican Republic.

On July 21, 1991, Mrs. Arlette Marceline was arrested on the street and sent to Haiti. Her sons Franky and Zunilda (Dominicans by birth, having been born in the Batey San Luis) remained abandoned in the Dominican Republic. The "Service Chrétien d'Haiti" (World Church Service) asked, through the Haitian Mission in Santo Domingo, that the children be located. The children are about to be reunited with their mother.

On August 7, the father of 10 year old Jean Racine was taken away from Batey El Mamey. Personnel from CEDAIL and the Haitian Mission tried to locate the father at the San Cristóbal Center for Repatriates, but he had already been sent to Haiti. Neighbors located the mother in Bayaguana. She now has the child, but is afraid to even go to the market for fear of being arrested and having to leave her child.

During the repatriation in Batey 43 of Villa Altagracia, according to the testimony given before the IACHR special delegation, children were taken into military custody and made to walk through the community so that parents who were in hiding would be forced to show themselves so that the children would not be hurt.

Mrs. Delicia Pierre-Louis, 34, born in Haiti, was detained and deported with four of her children. A ten-month-old infant remained in Santo Domingo with his father. The last two mentioned were not repatriated because they happened to be at the hospital that day.

Mr. Telot Andre, 37, born in Santo Domingo, was deported and his birth certificate destroyed by the police at the time of his arrest. His daughter stayed in Santo Domingo with her mother.

Mr. Palus Ceristil was detained by Immigration and was sent immediately to Haiti where he was prevented from picking up his 8 year old son Rasin Ceristil.

Mrs. Chamat Jean had to pay $50.00 to get them to leave her son Luis Fernando in Batey El Mamey, Boca Chica.

Monica Jeudy was detained by Immigration and taken to San Cristóbal (CESDA), leaving behind her 12 year old daughter. She had to pay money to return home (Batey Palamara).

Louis Pierre, who worked for 19 years in the country, and for a time was a "buscón" for the CEA, was threatened for having provided information on the activities of "buscones". The Haitian Pastoral Mission assured his return to Haiti together with his wife and children who are Dominican by birth.

Manuel Francois, 22, born in Sabana Grande in Boya. Dominican national police detained him on June 29, 1991, in Villa Juana. Police destroyed his Dominican birth certificate and his identification card, and he was expelled to Haiti.

Cesar Louis, 47, born in Batey Consuelo. The national police arrested him in Santo Domingo in late June, and then expelled him to Haiti. Mr. Cesar Louis was an official pensioner of the State Sugar Council. The police confiscated all his papers.

Eduardo Felix, 26, born in the Batey Central in the region of Barahona, was detained by a military unit called the "Black Helmets" on July 4, 1991, in the Cristo Rey neighborhood of Santo Domingo. The soldiers beat him and confiscated his identification card. None of his relatives who remained in the Dominican Republic knows where he is.

Mr. Benito Rodriguez, who said he was born in the Dominican Republic and that in his 24 years he never even visited Haiti, was nonetheless among the group repatriated on June 22.

Mr. Bruni Fercini, 20, was arrested and deported and his identification papers destroyed.

Gabriel Pierre was detained by Immigration, and was not allowed to pick up his belongings in the Batey Mamey, Boca Chica.

Because she had a Haitian surname, María Luz Joseph was denied the right to obtain a personal identification card. Maria Luz was born on January 3, 1968, in Batey los Jovillos in Yamasá. Her birth appears under number 557, in the year 1989, of record of births number 55 T, page No. 3. This declaration was confirmed late by a ruling from the Court of First Instance of Monte Plata, dated January 9, 1990.

Saint Jean Ostan of Batey Escadruna, at the Santa Fe Sugar Refinery, was the victim of the chief camp guard, who tore up his identification card 76579-26. The guard had taken photographs of the residents of the Batey, including Ostan and his family, for purposes of Decree 417-90. Ostán has been in the country for 30 years.

In the bateyes Cachera and Alejandro Bass, Mr. Edmond Desimond and Mr. Samuel Charles, catechists with Santa Ana Parish (Roman Catholic) were threatened for having taken (white) foreigners through the bateyes to see the sad situation there.

When the Special Delegation from the IACHR asked authorities why the repatriations and deportations were on such an enormous scale, precisely at that time, since the problem of Haitian immigration was a long-standing issue, they replied that the political situation in Haiti has now changed and the popularly elected Government there did not threaten their lives when the repatriates returned. They also said that the Dominican Republic could not continue to withstand an immigration of almost one million Haitians and that the international community had to understand this, since the Dominican Republic could not carry that entire burden at the expense of its own people. They added that the repatriations would continue to be conducted as they had thus far; in other words, sending 250 or 300 hundred people per week, gradually.

5. Relations between the Dominican Republic and Haiti

According to information received by the Commission, on June 17, 1991, the Ministry of Foreign Affairs of Haiti received an official note concerning the repatriation of 30 children and adolescents, scheduled for June 18. This measure drew a note of protest from the Haitian Government, which referred to the events as "selective deportations." Even though the Haitian Government had said that the problem had to be analyzed jointly, the Government of the Dominican Republic said that repatriation was an act that followed from its sovereign right to decide whether or not aliens could remain in the country; however, it would be willing to discuss, in this context, other matters of mutual interest, such as visa regulations and activities in the border zone.

In late June, President Balaguer announced to the press that he would ask the Organization of American States to mediate to help revitalize the "stagnant relations" between the two countries; thus far, however, no formal request had been made. For its part, the Government of Haiti asked the OAS to send a delegation to Haiti to see firsthand the situation of the repatriated labors and to obtain humanitarian aid. This delegation was sent by the Secretary General of the OAS at the end of June 1991.

6. Those events following the IACHR visit in the Dominican Republic

On Monday, August 19, an official delegation from the Haitian Government, headed by the Minister of Social Affairs and Labor, Mirtho Celestin, and a Dominican delegation headed by the Minister of Labor Dr. Alburquerque and the Deputy Foreign Minister Dr. Fabio Herrera, examined, with the ILO mediating, the problem of the repatriations and various aspects of the working conditions of Haitians in various areas of the island.

Both delegations concurred that to guarantee respect for human rights, the repatriations should be temporarily suspended until the governments set up, within no more than 30 days, a technical commission to examine how the repatriation was being effected. At the request of the ILO, it was also agreed that talks would resume in Port-au-Prince in the not-too-distant future.

The next day, the General Bureau of Immigration of the Dominican Republic denied the information circulated in the Haitian press, to the effect that repatriation was going to be suspended for one month. The Secretary of Labor, Dr. Alburquerque, said that the meeting had discussed the question of the repatriations, but there was never any talk of suspending them as long as the presidential decree remained in effect. Furthermore, President Balaguer admitted to the press that he had received complaints concerning alleged excesses on the part of officers charged with conducting the repatriation of undocumented Haitians and he gave assurances that the expulsions would continue "although they would be more moderate, in order to avoid any problems that might be caused for the neighboring country."

By a communication dated November 20, 1991, the Inter-American Commission on Human Rights informed the Government of the Dominican Republic that at the Commission's 80th session (September 23 through October 4, 1991), it had analyzed the information provided by the IACHR's Special Delegation that had visited the Dominican Republic from August 12 through 14, 1991, to observe the situation of Haitian citizens who were being repatriated. The Commission further informed the Government that as a result of its analysis, it had decided to continue to monitor the situation of the Haitians in the Dominican Republic.

In the same communication, the Commission asked the Government of the Dominican Republic to inform it regarding the current process of repatriations being carried out in the country. The Commission also noted that this information would be considered during its next session.

On December 18 of this year, the Government of the Dominican Republic answered the request made by the Inter-American Commission on Human Rights and stated the following: "Given the events that took place in Haiti starting on September 30, 1991, the President suspended all deportations".

7. Human rights standards

Based on the complaints received by the Inter-American Commission on Human Rights and the information compiled during the visit made by the Special Delegation of the IACHR in Santo Domingo, there is clear and reliable evidence that the measures being taken by the Dominican Government to implement Decree 233 and Immigration Law No. 95, are violating human rights protected by the American Convention on Human Rights. Article 22, paragraph 9 of the Convention prohibits the collective expulsion of aliens. Estimates are that since June, 35,000 people have been repatriated; of these, 30,000 have done so voluntarily, for fear of losing their families and belongings, while the remaining 5,000 have been taken to the border by the Dominican authorities (by now the figure has increased to 60,000).

Decree 233 of June 13, 1991, of the Office of the President of the Dominican Republic imposed a mass expulsion when it ordered "repatriation" of all foreign workers under 16 and over 60 years of age who were working as farm hands in the sowing, cultivation, cutting and transport of cane at sugar mill camps belonging to the state and private enterprises. By using this decree the Dominican authorities unleashed an indiscriminate persecution against the Haitians and their descendants, whether or not born in the Dominican Republic, to remove them from the country.

It appears from the information obtained by the Commission that many of those who have left the Dominican Republic have done so for fear of being identified as Haitians and suffering the previously described consequences. Some were Haitians hired for the sugar harvest, others were Haitians who had been residents for years, and others were Dominican children of Haitians.

In its communication answering the request for precautionary measures by the Inter-American Commission on Human Rights, the Dominican Government states the following: "I wish to inform you that the measure mentioned above has been adopted in accordance with the Constitution and laws of the Republic, which authorize the Dominican State, in exercise of its sovereignty, to repatriate any foreigner who remains in the Republic in violation of the Migration Laws..."

Indeed sovereignty is the state's supreme and legal power. States have the right to organize and govern themselves free from any foreign political interference. However, in modern international law, sovereignty has its limitations, one of them consisting of the instruments for protection of human rights. Thus the individual, regardless of nationality, has become subject to international law and receives direct protection of his rights and freedoms through legally enforceable international provisions.[4] International law recognizes the foreigner's legal personality and gives him its protection. Foreigners are considered the same as nationals in all things related to individual guarantees. Generally political rights are denied them[5].

The states recognize in the preamble to the American Convention on Human Rights "that the essential rights of man are not derived from one's being a national of a certain state, but are based upon attributes of the human personality, and that they therefore justify international protection in the form of a convention..." The principles upheld by the signatory states are established in the American Declaration of the Rights and Duties of Man and in the Universal Declaration of Human Rights.

Moreover, the Dominican Government has also based justification of the expulsions on the Haitians' noncompliance with the Migration Laws. Prior to Decree 417 of October 15, 1990, the agricultural enterprises were to provide migrant workers and their families with the corresponding temporary permits in accordance with Law 95 of 1939 and its Immigration Regulations. The Dominican Government did not enforce this, thus tolerating an illegal position that was taken advantage of by the State Sugar Council (CEA), which is one of the enterprises having employed the most Haitian workers. Decree No. 417, issued on October 15, 1990, which sought to adjust the status of the Haitian migrant workers, was not adequately fulfilled, since few Haitians were able to normalize their status.

In many cases for which complaints have been made to the Commission, individuals expelled were born in the Dominican Republic and had the constitutional right to nationality. The government pointed out in this regard that they were not nationals, even though they might have been born on Dominican soil, because they were the offspring of illegal foreigners. Nevertheless, the prevailing law in the Dominican Republic is that of jus soli, and the exceptions established by the Dominican Constitution in its Article 11 refer to "the legitimate children of foreign residents in the country as diplomatic representatives or individuals in transit in the country." With regard to the second exception, we cannot say that the persons who have been expelled were "in transit," since many of them have lived 20, 30, and even 40 years in the Dominican Republic.

In some cases it was pointed out that the Dominican authorities destroyed their documents and forced them to return to Haiti. This arbitrary denial of Dominican nationality is a violation of Article 20, paragraph 3, of the Convention. Moreover, Article 22, paragraph 5, of the Convention provides that "no one can be expelled from the territory of the state of which he is a national..." Therefore the facts denounced violate its paragraph 5 to the extent that the indiscriminate roundups and deportations in many instances cause the expulsion of persons born in the Dominican Republic and that, for the same reason, they have the rights and attributes of citizenship, even though they are not given the opportunity to prove it. They also violate paragraph 6 of Article 22 to the extent that Haitians who could prove their status as residents are also deported without due legal process that would enable them to prove that they are not in violation of Immigration Law No. 95 of 1939.

The Dominican laws provide that a person to be deported must have an opportunity to be heard and to present answers in his favor. In fact, the Immigration Law and its Regulations set forth a procedure for deportations which establishes that no foreigner may be deported without having been given an opportunity to refute the charges (Article 13.11.e of Law 95 of April 14, 1939, amended by Law 1559 of October 31, 1947). The deportees are taken to the border without being heard or given the opportunity to become familiar with and therefore to dispute the charges on whose basis they are repatriated or deported.

The way in which the expulsions were being carried out violates Article 8, paragraph 1 of the Convention, which establishes the basic principle of the right to due process of law in determining the individual's rights. Article 8, paragraph 1 clearly establishes that the juridical guarantees apply not only to accusations of a criminal nature, but also to the determination of rights and obligations of "any other nature." This provision obliges the Government of the Dominican Republic to consider the individual situation of persons accused of violating the Immigration Law and to grant them the right to present their defense in the framework of a formal hearing.

Article 25 of the Convention is also violated due to the hasty way in which the repatriations were carried out, which completely deprived those involved from any access to a judicial recourse to determine whether they had the right to remain in the country.

The mass expulsions have brought about the forced separation of families. Some children have been expelled without their parents, and parents have been expelled without their children. Some of the women deported were not allowed to go for their children even though they had been recently born. The state's obligation to protect the family, contained in Article 17.1, has not been respected by the Dominican State. Article 17 provides as follows: "The family is the natural and fundamental group unit of society and is entitled to protection by society and the state."

The sector most affected by the expulsion is that of the children, since many of them were expelled while separating them from their parents, or they were used by the migration authorities to capture their parents. Thus is added here the Dominican Government's failure to protect the rights of childhood set forth in Article 19 of the Convention, which establishes that "every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state."

The obligation to guarantee free and full exercise of human rights is not exhausted by adopting provisions under domestic law in accordance with Article 2 of the Convention, but rather it demands governmental conduct that will ensure the actual existence of an effective guarantee of free and full exercise of human rights. In the Dominican Republic there is general legislation aimed at protecting persons subject to its jurisdiction, but in the specific case of the "repatriation" of Haitians there has been no governmental conduct truly ensuring the protection of human rights. Thousands of persons have been expelled from the Dominican Republic and on such occasions several provisions of the Convention on Human Rights have been violated by failing to fulfill the obligation established in Article 1.1 of the Convention, which provides as follows: "The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition."

The Inter-American Commission on Human Rights has considered with special concern the serious nature of the massive expulsions to which Haitian nationals and Dominicans of Haitian origin were subjected in the Dominican Republic and the serious repercussions caused by such expulsions due to the irregular manner in which they were carried out.

It has also considered the Dominican Government's decision to suspend such expulsions beginning September 30, 1991.

In the light of the observations made during the on-site visit and the information provided by the Government, the Commission has considered that the Government of the Dominican Republic should take measures aimed at regularizing the status of Haitians who have not yet been able to take advantage of the provisions of Decree 417-90 of October 15, 1990. It would also be necessary to revoke any legislative or administrative measure aimed at impairing the rights of the foreigners or Dominicans of Haitian origin and to suspend definitively the mass expulsions of Haitian nationals.

The Commission also recommends that the Government provide the necessary facilities to Haitian nationals who voluntarily request their return to Haiti, with all the guarantees and considerations, without harming their basic rights, and granting the corresponding work benefits. Likewise, the Haitian nationals who were expelled from the Dominican Republic without granting them their corresponding work benefits, as indicated by Decree 233-91, should be compensated.

Finally, the Commission recommends to the Government that it grant facilities aimed at allowing persons who allege that they are Dominicans to return to the country so that they may exercise their right to prove Dominican nationality.

The Inter-American Commission on Human Rights hopes the Government of the Dominican Republic will take concrete measures to help settle the serious problem of Haitian foreigners and Dominicans of Haitian origin so that there will be no further expulsions.

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[1] Cf. Prime Time Live, ABC, May 2, 1991.

[2] In conversations with children in the "bateyes," representatives from the Lawyers Committee for Human Rights several times heard the story of the false promises made to the children and the tricks that had been played to deceive them. The children, who were not afraid to give their names, are identified in A Childhood Abducted, Children Cutting Sugar Cane in the Dominican Republic, Lawyers Committee for Human Rights, New York, May 1991, pp. 5-12.

[3] Cf. Half Measures, Reform, Forced Labor and the Dominican Sugar Industry, Americas Watch, National Coalition for Haitian Refugees and Caribbean Rights, Washington, D.C., March 1991, pp. 8-12.

[4] Lauterpacht, Hersh, International Law and Human Rights, London, Steven, 1968, p. 27.

[5] Sorensen, Max, Manual de Derechos Internacional Público, (editado por Sorensen, M.), Fondo de Cultura Económica, México, 1973, pp. 461-463.