REPORT Nº 28/93
DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY(*)
October 13, 1993(*)
BACKGROUND INFORMATION ON WHY HAITIANS FLEE THEIR COUNTRY:
Both prior to and since the 1986 fall of the Duvalier
dictatorship, the Haitian people have suffered from a systematic and
pervasive pattern of gross human rights violations perpetrated by the
military and paramilitary forces under the authority of a series of
military dominated governments.
These governments have ruthlessly repressed dissent and
sabotaged the electoral process on several occasions.
Democratic government and the rule of law are in eclipse.
Under the Duvalier dictatorship, political opponents of the
government were regularly disappeared, tortured, and killed; freedom
of speech and assembly were arbitrarily denied and labor unions and
peasant organizations systematically suppressed.
The Tonton Macoutes, an approximately 50,000 nation-wide armed
paramilitary corps, in the service of the dictatorship, intimidated,
assaulted, tortured, and assassinated real and perceived opponents of
After an on-site visit to Haiti in August 1988, this Commission
issued its findings, which are summarized as follows:
The result of the almost three year old democratization process
has been the entrenchment of the military in power.
Numerous arbitrary killings of a politically motivated nature
have occurred during the period under consideration.
The politically-motivated nature of the violence is evidenced
by the fact that it can be turned on and off by the military
authorities. The failure of the military to investigate and punish anyone
responsible for these death-squad like killings has been a matter of
continuing concern to the Commission, and leads it to conclude that
these death squads function because of the impunity granted to them by
The military regime, by means of the coup d'etat,
attempted to nullify the 1987 Constitution, which was massively
approved by popular referendum on March
29, 1987. The use
of force by the military to thwart the will of the people is condemned
by democratic nations and the respective instruments of international
All fundamental human rights in Haiti are under serious strain,
limited by the Army's monopoly over the use of force.
The Army, functioning as a police force, does not serve to
protect Haiti from external threats to its security, it functions to
repress those persons or groups who attempt to change the deplorable
conditions under which the majority of Haitians live. (Report on the
Situation of Human Rights in Haiti, IACHR, OAS, 1988, OEA/Ser.L/V/II.74,
Doc.9 rev.1, pp.5-6, paragraphs 16(3), 16(5), 16(6), and 16(7).)
This persistent pattern of human rights abuses, and continuing
cycle combined with the extreme poverty attributable to the policies
of the dictatorship, compelled the flight of thousands of Haitian
refugees who risked their lives (many have drowned) to flee Haiti in
small, frail boats, seeking a safe haven in the United States and
ALLEGATIONS IN PETITION DATED OCTOBER 1, 1990:
On October 1, 1990, the petitioners filed a complaint against
the United States Government's Haitian Migrant Interdiction Program.
The petition was filed on behalf of the Petitioning
Organizations: Haitian Centre For Human Rights, Port-Au-Prince, Haiti;
Centre Karl Leveque, Port-Au-Prince, Haiti; the National Coalition For
Haitian Refugees, New York, N.Y., U.S.A.; the Haitian Refugee Center,
Inc., Miami, Florida, U.S.A.; the Haitian Centers Council, New York,
N.Y., U.S.A.; the Haitian-Americans United For Progress, Cambria
Heights, U.S.A., the Washington Office on Haiti, and unnamed Haitian
nationals who have been and are being returned to Haiti against their
will and in violation of international law by agents of the United
States government following "interdiction" of their vessels
on the high seas by the Untied States Coast Guard.
The petition alleges that the Haitian boat people have been and
continue to be interdicted and returned to Haiti pursuant to (a) the
Haitian Migrant Interdiction Program established by Proclamation 4865
and Executive Order 12324 issued by President Ronald Reagan on
September 29, 1981, and (b) a cooperative agreement between the U.S.
Administration and the Duvalier regime entered on September 23, 1981,
through an exchange of diplomatic notes.
It further alleges that many of these boat people had a
reasonable fear that they would be persecuted if returned to Haiti,
but were denied a proper forum and processing procedures for
resolution of their claims. This
denial is in violation of the U.S. Government's obligation not to
return a refugee in any manner whatsoever to the frontiers of a
territory where his or her life or freedom would be threatened on
account of race, religion, nationality, membership in a particular
social group, or political opinion. That
despite promises made by the Haitian government (in diplomatic
exchange of letters) that returnees would not be punished for leaving
Haiti, boat people involuntarily interdicted and returned by the
United States Government have been routinely detained upon their
return to Haiti.
On May 7th, 8th, and 13th, 1990, forty-three (43) returnees,
including some Haitians who had been detained in Immigration and
Naturalization Service's (INS) Krome Detention Center in Miami,
Florida, were immediately arrested by Haitian military authorities
upon their arrival in Port-au-Prince.
They were held in the National Penitentiary, some for longer
than one week, before being released.
On June 5th, 1990, another group of thirty-one (31) Haitians
deported from Krome were arrested upon arrival in Haiti, and they
allege that they were told that their whereabouts would thereafter be
closely monitored by the Government.
Military authorities stated that at least 16 of the group were
boat people. The
Petitioning Organizations are informed and believe that boat people
who departed in whole or in part because their lives or freedom were
threatened almost always face an even greater threat following their
interdiction and forcible return to the military authorities in Haiti.
The affidavit of a
dissident involved in organizing demonstrations against the military
regime in Haiti states that in 1987, after he decided it was too
dangerous to remain in Haiti, he fled but was interdicted and returned
to Haiti by the Coast Guard. He declares that:
"The immigration inspector who interviewed me declared
that since there was a new government, they will return me to Haiti.
They refused to admit that I had good reasons to leave Haiti
and that death threats were still hanging on my head...Since my return
to Haiti I have been forced to move from house to house, never
sleeping in the same place in order to ensure that the Army never
learns of my whereabouts and arrests me."
The petition further alleges that Haitians, still flee their
country in large numbers, just as they did while President-for-Life
Duvalier ruled the country. That
even as the U.S. Department of State and human rights organizations
report that widespread politically motivated killing, torture, and
arbitrary arrests continue in Haiti, the interdiction program
continues unabated. In
the 12-month period following the bloody outcome of the November of
1987, elections, when reportedly 500 civilians died as a result of
political violence perpetrated by the Haitian Army and the Tonton
Macoutes, interdictions continued.
That of the 1,000 Haitian boat people interdicted during that
time, not one was brought to the United States and granted political
That on September 29th, 1981, President Reagan stated that,
"having found that the entry of undocumented aliens, arriving at
the borders of the United States from the high seas, is detrimental to
the interests of the United States," proclaimed that "the
entry of undocumented aliens from the high seas is hereby suspended
and shall be prevented by the interdiction of certain vessels carrying
such aliens." (Presidential Proclamation 4865 of September 29.,
1981, FR 28829, 46 Fed Reg.48,107, reprinted in 8 U.S.C. Sec. 1182
app. at 820 (Supp. V. 1981)(hereinafter "Proclamation
4865"). According to this Proclamation it was alleged by the United
states Government, that the migration of undocumented immigrants
arriving by sea had reached significant proportions by 1981
"which severely strained the law enforcement resources of the
INS" and "threatened the welfare and safety of
communities" in the southeastern United States. (Proclamation
4865.) However, according
to government figures at the inception of the interdiction program,
Haitians made up only 2% of all undocumented migrants in the United
States. (Refugee Refoulement: The Forced Return of Haitians under the
U.S.-Haitian Interdiction Agreement, Report of the Lawyers Committee
for Human Rights, February, 1990, p.17, hereinafter "Refugee
In issuing the Proclamation, the President relied for his
authority on Sections 212(f) and 215(a)(1) of the Immigration and
Nationality Act("INA"). INA Sec. 212(f) provides that:
"Whenever the President finds that the entry of any aliens or of
any class of aliens into the United States would be detrimental to the
interests of the United States, he may by proclamation, and for such
period as he shall deem necessary, suspend the entry of all aliens or
any class of aliens as immigrants or nonimmigrants, or impose on the
entry of aliens any restrictions he may deem to be appropriate.
"Sec. 215(a)(1) provides that: "When the United
States is at war or during the existence of any national emergency
proclaimed by the President...and the President shall find that the
interests of the United States require that restrictions and
prohibitions... be imposed upon the departure of persons from and
their entry into the United States...it shall until otherwise ordered
by the President or the Congress, be unlawful...for any alien to
depart from or enter the United States except under such reasonable
rules, regulations, and orders, and subject to such limitations and
exceptions as the President may prescribe."
On September 29th, 1981, the President also issued
Executive Order 12324, (FR Doc.81-28829, 46 Fed Reg.48,109,
reprinted in 8 U.S.C.Sec.1182 app.at 819-20, Supp.V. 1981,
hereinafter, "Exec.Order 12324.) directing the Secretary of State
to enter into "cooperative arrangements with appropriate foreign
governments for the purpose of preventing illegal migration to the
United States by the sea." On
September 23rd, 1981, the United States and the Duvalier dictatorship
entered into such an arrangement pursuant to an exchange of diplomatic
letters between Ernest Preeg, U.S.Ambassador to Haiti, and Edouard
Francisque, Haitian Secretary of State for Foreign Affairs.
(T.A.I.S.No.10,241, hereinafter "Exchange of Letters.")
The agreement states in part that:
"Having regard to the need for international cooperation
regarding law enforcement measures taken with respect to vessels on
the high seas and the international obligations mandated in the
Protocol Relating to the Status of Refugees done at New York 31st
January 1967, the United States government confirms with the
government of the Republic of Haiti its understanding of the following
points of the agreement."
The Haitian Government agreed to "stop the clandestine
migration of numerous residents of Haiti to the United States" in
return for a promise by the United States to assist the Haitian
Government with the enforcement of its emigration laws.
In addition, Haiti authorized United States authorities to
board Haitian flag vessels on the high seas and make certain inquiries
regarding the condition and destination of such vessels and the status
of those on board. The
petition further alleges that none of the boats which the Haitians use
fly the Haitian flag, in fact, they expressly disclaim Haitian
registry and sovereignty. The
agreement further provided that if the Coast Guard determines that the
vessel is bound for the United States, the vessel and the persons
aboard may be returned to Haiti, and the United States further agreed
to the presence of a representative of the Haitian Navy aboard any
United States vessel engaged in the Haitian interdiction program.
agreement also provided that it is "understood that the United
States, having regard for its international obligations pertaining to
refugees, does not intend to return to Haiti any Haitian migrants the
United States determines qualify for refugee status." The
Government of Haiti assured the United States "that Haitians
returned to their country and who are not traffickers in illegal
migration will not be subject to prosecution for illegal
departure." (Exchange of Letters.)
is further alleged in the petition that until 1986, only a very small
percentage of follow-up interviews were conducted by U.S. Embassy
personnel to ascertain whether the returnees had been punished for
leaving Haiti illegally. Such
interviews were discontinued after President Duvalier's overthrow on
the recommendation of the U.S. Embassy in Port-au-Prince, the Embassy
stating that "any legitimate expectation that persecution might
occur...was removed when the National Governing Council succeeded
President Duvalier and immediately made several key changes in Haiti's
human rights policy, most notably the dissolution of the Tonton
Macoutes militia." (Refugee Refoulement, p.22-23, relating
interview with Michael Bajek, Second Secretary, United States Embassy,
Port au Prince, Haiti, December 14, 1989; see also U.S. Embassy, Port
au Prince telegram, "Terminating of HMIO follow up program,"
June 26, 1986 at p.1.)
Order 12324 also directed the Secretary of Transportation to order the
Coast Guard to interdict "any defined vessel carrying Haitian
aliens." (Note 13.) The
"defined vessel includes vessels from foreign nations" with
which the United States has arrangements authorizing it to board such
vessels -- i.e. vessels from Haiti.
The Secretary of Transportation was also ordered to direct the
Coast Guard to "return the vessel and its passengers to the
country from which it came, when there is reason to believe that an
offense is being committed against the United States immigration laws,
or appropriate laws of a foreign country with which we have an
arrangement to assist."
Executive Order further provided that "no person who is a refugee
will be returned without his consent" and that "the Attorney
General, in consultation with the secretaries of State and
Transportation shall take appropriate steps to ensure the fair
enforcement of our laws relating to immigration and the strict
observance of our international obligations concerning those who
genuinely flee persecution in their homeland." (Executive Order
is further alleged that to implement the arrangement with Haiti,
agents of the U.S. Immigration and Naturalization Service (INS) were
assigned to the Coast Guard vessels engaged in the interdiction
program. The INS
promulgated unpublished, informal guidelines setting forth the
procedures to be followed during the interdiction operations.
(Immigration and Naturalization Service, INS Role in and Guidelines
for Interdiction at Sea, October 6, 1981.)
The guidelines provide that "if it is deemed safe and
practicable within the opinion of the commanding Coast Guard
officer," each person aboard the interdicted Coast Guard vessel
shall be interviewed to determine his or her name, nationality,
documentation and reason for leaving Haiti.
petition further states that this policy actually places in the
discretion of a Coast Guard officer the initial decision as to whether
the interdictees will be interviewed at all to determine refugee
status. The INS officials
assigned to the vessels have responsibility for ensuring that:
"the United States is in compliance with its obligations
regarding actions towards refugees, including the necessity of being
keenly attuned during any interdiction program to any evidence which
may reflect an individual's well founded fear of persecution by his or
her country of origin for reasons of race, religion, nationality,
membership in a particular social group, or political
Guidelines further provide that "INS officers shall be constantly
watchful for any indication (including bare claims) that a person or
persons on board the interdicted vessel may qualify as refugees under
the United Nations Convention and Protocols."
If there is such indication, INS officials shall conduct a
second interview, "out of hearing of the other person," and
keep "individual records" or all interviews regarding
possible qualification for refugee status. If the interview suggests that a legitimate claim to refugee
status exists, the person involved shall be removed form the
interdicted vessel, and his or her passage to the United States shall
be arranged. (Guidelines p.3.)
petitioners allege that since the inception of the program, over 361
boats carrying 21,461 Haitians have been intercepted, and only six
Haitians have been allowed to come to the U.S. to file asylum claims.
To the best of their knowledge, only one vessel was taken to
Port-au-Prince and turned over to the authorities.
All the others were destroyed as "hazards to health and
navigation" by the U.S. Coast Guard. (Refugee Refoulement, p.32.)
According to interviews with Haitian returnees conducted by the
Lawyers Committee for Human Rights: "the interviews may not be
conducted so as to elicit an indication of refugee status.
The interviews may not be private; the Haitians may be hungry,
are definitely ill-at-ease and have no idea why they are being asked
questions." (Refoulement, p.37.)
is further alleged that the initial interviews last only a few
minutes, during which the examiner asks approximately eight basic
questions concerning sex, name, place of birth, date of birth,
address, reason for leaving, fear of return.
The interviews are not private, but held within eyesight and
sometimes within the hearing of other Haitian passengers.
There are no independent observers from, for example, the
office of the United Nations High Commission on Refugees to witness
the interviews in order to ensure that principles of non-refoulement
(non-return) are followed. When
former U.S. Congressman Claude Pepper, and a group of Miami community
leaders asked the U.S. Justice Department to be allowed to board one
of the Coast Guard cutters and witness the interdiction program to
ensure the refugees were given due process, the group's request was
October 3rd, 1991 the petitioners submitted an "Emergency
Application For Provisional OAS Action To Halt The United States'
Policy Of Interdicting And Deporting Haitian Refugees."(Emergency
Application) The Emergency Application states that both the United
States Government and Petitioners have filed statements regarding the
admissibility of the Petition. It
further states that during the pendency of the petition filed before
the Commission on October 1, 1990, in the above case, the United
States Government has continued interdicting Haitian asylum seekers
and expelling those who entered the United States.
states that the allegation that the interdiction policy deprives
Haitians of a fair opportunity to articulate and substantiate claims
to political asylum is concretely established by the results of the
program. That an
interdicted Haitian's likelihood of being considered to possess a
legitimate claim is approximately .005%.
A Haitian who avoids interdiction and arrives in the United
States has at least a 5% chance of being considered to possess a
legitimate asylum claim. The
strength of the asylum claims does not suddenly change once Haitian
boat people get around the interdiction program -- instead, what
changes is the opportunity to be heard.
further alleges that when the military brutally seized power in Haiti
on September 30, 1991, the democratically elected President
Jean-Bertrand Aristide was forced to leave the country.
Because of these events, the United States Government cannot
possibly now guarantee the physical integrity of Haitians it
interdicts or deports. Given
the complete breakdown of social and political order in Haiti, the
Haitian Migrant Interdiction Program and the deportation of Haitians
from the United States to Haiti now represent a serious violation of The
American Declaration of the Rights and Duties of Man.
February 6th, 1992, the petitioners filed an "Emergency
Application for Provisional OAS Action to Halt the United States
Government's Policy of Returning Haitian Refugees Interdicted since
the Military Coup of September, 30, 1991."
It alleges that during the pendency of the petition, the United
States Government has maintained its policy of interdicting Haitian
asylum seekers and expelling those who enter the United States.
This process has continued despite the brutal and violent
military coup in Haiti on September 30, 1991, which ousted
democratically elected President Jean-Bertrand Aristide and plunged
Haiti into a cycle of political violence which has claimed over 1,500
responding to the escalating violence in Haiti and a previous
Emergency Application filed in this case on October 3, 1991, the
Inter-American Commission on Human Rights of the Organization of
American States (OAS), on October 4, 1991, sent a cablegram to the
United States Secretary of State, James A. Baker III, urging that the
United States immediately cease its policy of interdicting and
deporting Haitian refugees, pending the restoration of lawful order in
Haiti. That the cablegram stated in part: (The IACHR urges that) for
humanitarian reasons (the United States Government) suspend its policy
of interdiction of Haitian nationals who are attempting to seek asylum
in the United States and are being sent back to Haiti, because of the
danger to their lives, until the situation in Haiti has been
normalized. To the best
of the petitioners' knowledge, the United States Government has
ignored this request altogether.
it is concretely established that the maintenance of the interdiction
program despite the coup has deprived Haitians fleeing the military
junta of a fair opportunity to articulate and substantiate claims of
political asylum. According
to information provided to petitioners' counsel in a telephone
conversation with a INS Press Officer on February 5th, 1992, the
Immigration and Naturalization Service (INS) estimates that since
November of 1991, 15,081 Haitians have been interdicted.
That historically only 1.8% of those Haitians permitted to
present asylum claims, will actually be given asylum.
See Refugee Reports, Vo. XII, No. 12, Dec. 30, 1991 at 12.)
this figure appears very low to international human rights groups and
concerned nongovernmental organizations, which have reported over
1,500 deaths, 300 arrests, and a wholesale persecution of the
pro-Aristide movement which has forced over 200,000 people into
hiding. See Haiti, The
Human Rights Tragedy: Human Rights Violations since the Coup,
Amnesty International, January 1992 at 5-6.
Human rights groups estimate that the number of Haitians with
colorable claims to asylum is closer to 60 or 70% of those
interdicted, roughly five times higher than the number of interdicted
Haitians permitted by INS to enter the United States to seek asylum.
See Haitian Refugees: Current Facts and Prevailing Law,
San Francisco Lawyer's Committee for Urban Affairs, Feb. 3, 1992 at 2
the interdiction program's failure to accurately evaluate asylum
claims is easily explained. According
to sworn declarations on file in the case of Haitian Refugee Center
v. Baker, No 91-2635-CIV-Atkins (C.D.Fla. 1991),
INS personnel interview the Haitian interdictees while they are
sick, exhausted and malnourished; the interviews routinely last only a
few minutes, much of which is taken up in translation; the
interviewers are often hostile, fail to identify themselves or their
purpose, and refuse to follow up on explanations of political
persecution; and some interviewers have told the interdictees that no
matter what they say, they will be returned to Haiti.
numerous interdictees, including several of the plaintiffs in Haitian
Refugee Center v. Baker, have been designated for summary return
to Haiti despite their claims that as a result of their political
activities they were targeted for persecution by the police or
military after the coup.
This failure to fairly evaluate Haitian asylum claims is
nothing new. The New York
based Lawyers Committee for Human Rights reported in 1990, that
"the interdiction program is part of a pattern of discrimination
practiced against Haitians by the U.S. Government since the late
1970's. Through improper
screening and arbitrary detention, the Government has consistently
demonstrated its bias against Haitians."
Refugee Refoulement: The Forced Return of Haitians under the
U.S.-Haitian Interdiction agreement, Lawyers' Committee for Human
Rights (March 1990).
despite the entirely inadequate screening of interdicted Haitians, and
the obvious inability of the United States Government to reasonably
ensure the safety of Haitians interdicted and repatriated, the United
States Supreme Court ruled on January 31, 1992, that Haitian
interdictees may be forcibly returned to Haiti.
Since then, over 380 Haitians have been returned, and the
Government plans to return the rest as soon as possible.
See the New York Times, Feb. 2, 1992, at A1 col.3.
Given the ongoing violence in Haiti, the inability of the
interdiction program (or the refusal of those implementing it) to
fairly identify those with legitimate claims of asylum, and the
inability of the United States Government to meaningfully ensure that
the Haitians returned will not be harmed, the Haitian Interdiction
Program represents a serious violation of several provisions of
international law. (Articles
allegedly violated listed in part III of this report).
February 11th, 1992, the Commission received a Supplemental Filing in
support of the Emergency Application filed by the petitioners on
February 6th, 1992. They allege that the United Nations officers
conducted four interviews at the United States Governments' Naval base
in Guantanamo, and that the interviews allegedly removed all doubt
that Haitian interdictees forcibly repatriated by the United States
Government have been, and will be brutalized by the military
government upon their return to Haiti.
The petitioners allege that government soldiers were present at
the docks when the interdictees were repatriated, and asked for the
names and addresses of repatriated interdictees after they had been
processed by the Haitian Red Cross.
later many of the repatriated interdictees were arrested at home.
Some never made it home and were arrested at pre-established
roadblocks. Several of
those arrested were later found shot to death.
Some were beaten in public by the military, which forced
people, at gunpoint, to identify the repatriated Haitians.
Others were taken to the National Penitentiary where they were
beaten daily and not fed, and some were tortured to death in prison.
Detainees were told by at least one prison guard that they were
being tortured for having fled Haiti, and that others would suffer the
same fate. Others were
informed that a local judge had issued arrest warrants for repatriated
interdictees because they had left Haiti and criticized the military
THE PETITIONERS REQUEST THAT:
With regard to the Petition, dated October 1st, 1990, that the
To seek immediate, interim relief from the United States
Government in the form of temporary suspension of the Haitian Migrant
Interdiction Program while the Inter-American Commission on Human
Rights takes the present Petition under advisement;
To declare that the Haitian Migrant Program constitutes a
serious violation of Articles XXVII (the right to asylum,) XXIV(the
right to petition) and XVIII (right to effective remedy) of The
American Declaration of the Rights and Duties of Man;
declare that the Haitian Migrant Interdiction Program constitutes a
violation of the human rights instruments listed herein protecting
human rights in the Inter-American system as well as customary
require that the United States Government terminate the interdiction
program because it constitutes a violation of internationally
recognized human rights binding on the United States, or, if such
relief is denied, in the alternative to insist that the United States
Government implement policies and procedures which ensure that the
program will provide access and equal protection of the laws in the
presentation and consideration of their claim to persecution and
requests for asylum.
With regard to their Emergency Application for Provisional OAS
Action to Halt the United States' Policy of Interdicting and Deporting
Haitian Refugees, filed October 3rd, 1991, the petitioners
respectfully urge that the Commission, pursuant to its powers under
Article 29.2 of the Regulations of
the Inter-American Commission on Human Rights:
Immediately take provisional measures to seek a temporary halt
to the United States Government's returning interdicted Haitians to
Haiti and deporting Haitians present in the United States. Such action
should remain in effect pending the restoration of lawful order in
Haiti and the subsiding of the grave personal danger that now faces
all Haitians from random and state-sponsored violence.
To communicate to the United States Secretary of State, James
A. Baker III, requesting that the United States Government immediately
suspend the interdiction and return to Haiti of Haitians and the
deportation of Haitians from the United States to Haiti pending the
restoration of circumstances which allow for the Haitians to return
without reasonably fearing for their personal safety.
With regard to the Emergency Application to Halt the United
States' Return of Interdicted Haitian Nationals, filed February 6th,
1992, the petitioners request that the Commission resolve:
To seek interim relief from the United States Government in the
form of an immediate temporary suspension of the forcible repatriation
of Haitian nationals pursuant to the Haitian Migrant Interdiction
Program pending the restoration of lawful order in Haiti.
That if the United States Government refuses to suspend
forcible repatriations of interdicted Haitian nationals, to urge that
it assists the interdictees in the preparation of requests for
if the United States Government refuses to suspend forcible
repatriations of interdicted Haitians, to permit them a reasonable
opportunity to apply for entry into third countries prior to their
forcible return to Haiti.
if the United States Government refuses to suspend forcible
repatriations of interdicted Haitians, to permit them a full and fair
opportunity to present and have recorded their claims for asylum, to
have such claims reviewed and decided in a competent, objective and
non-discriminatory manner, and to receive reasonable explanations of
the basis for the decisions in their cases.
To declare that the forcible repatriation of Haitian nationals
during the current period of widespread Government-sponsored condoned
violence in Haiti violates or may violate internationally recognized
rights. (Articles allegedly violated, listed in part III of this
that the United States Government respond to any requests made by the
Commission, and keep the Commission informed regarding developments in
its interdiction, and repatriation activities.
as soon as possible, a fact-finding visit to Haiti to evaluate the
level of political violence taking place there and the ability of
third-party countries to ensure the safety of Haitians forcibly
With regard to the Supplemental Filing in Support of the
Emergency Application received by the Commission on February 11th,
1992, the petitioners stated that they would be satisfied if the
Commission would resolve to urge the United States Government, if it
refuses to suspend the forcible repatriation on Haitian refugees, to:
Permit legal counsel to consult with the interdictees in the
preparation of their requests for political asylum.
Permit the interdictees a reasonable opportunity to apply for
entry into third countries.
the interdictees a full and fair opportunity to present their claims
to any requests made by the Commission.
With regard to petitioners' reply of December 31st, 1992, they
"an emergency communication be sent from the Commission to
the U.S. Government requesting that interdictions and repatriations be
temporarily suspended under the May 1992 Kennebunkport Order until the
situation in Haiti is normalized or the Commission has had an
opportunity to decide the
admissibility of the petition, and, if it rules the petition
admissible, has had the opportunity to review the merits of
petitioners' claims and the position of the U.S. Government regarding
That such a communication would be entirely appropriate given
that the U.S. Supreme Court, at the urging of the U.S. Government, has
stayed the decision in the case of Haitian Centers Council v.
McNary, brought on behalf of haitian boat people, in thereby
allowing continuation of interdictions followed by repatriations
without any interviews to determine whether the Haitians being
forcibly returned to Haiti possess legitimate claims to refugee
At a hearing held at the petitioners request on February 26th,
1993, before the Commission at its 83rd period of sessions, they
requested that the Commission:
As quickly as possible, send an urgent communication to the
President of the United States.
that summary repatriations to Haiti under the May 1992 Kennebunkport
Order be immediately terminated.
Requesting that until the situation in Haiti is normalized or
the Commission has had an opportunity to decide the matters raised in
this petition, no person should be involuntarily returned to Haiti.
particular concern that people interdicted should not be forcibly
returned to Haiti without individual and fair interviews to determine
whether they face persecution following repatriation, and that
decisions on their claims should be made in conformity with applicable
standards which preclude repatriation of persons to countries where
they face persecution. People
interdicted in international waters should be brought to safe ports
outside of Haiti to be processed and interviewed.
that under no circumstances shall "in country processing be the
sole method for Haitians to seek asylee or refugee status.
Furthermore, "in country" processing of applications
for refugee status filed by Haitians living in Haiti be modified so
that (i) safer and more secure locations are provided, (ii) locations
in rural areas are made available, (iii) local Haitians are not
employed in the offices processing refugee applications, (iv) Haitians
in hiding are not forced to come out of hiding in order to seek
refugee status, and (v) applicants may receive assistance from the
United Nations High Commissioner for Refugees or appropriate voluntary
Urging that humanitarian steps immediately be undertaken to
release from detention the interdicted Haitians who have tested HIV
positive and are presently detained in Guantanamo Bay.
Declare that the return of President Aristide to office in
Haiti is an essential step towards resolving the refugee crisis caused
by human rights practices of the de-facto regime.
Make all possible efforts to monitor observance of human rights
in Haiti by conducting an on-going on-site investigation there until
the restoration of the democratic Government.
IN THIS CONNECTION THE APPLICANT ALLEGES VIOLATIONS OF:
Articles I, XVIII, XXVII, XXIV, XVII, of the American
Declaration of the Rights and Duties of Man (American Declaration).
Articles 22(2)(7)(8); 24 and 25
of the American Convention on Human Rights (American
Convention) as supplemented by Article 18 of the Vienna Convention on
the Law of Treaties.
Articles 55 and 56 of the U.N. Charter.
Articles 3, 16(1) and 33 of the United Nations Convention
Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150
("U.N. Refugee Convention).
The United Nations Protocol Relating to the Status of Refugees
(U.N. Refugee Protocol), opened for signature January 31, 1967,
entered into force for the United States November 1, 1968, 19 U.S.T.
6224, T.A.I.S. No. 6577.
Articles 8, 13(2) and 14 of
the United Nations' Universal Declaration of Human Rights (Universal
Customary international law which enjoins the United States
from preventing the departure of people from their
countries, or returning refugees to persecution or danger to
life or freedom, and guaranteeing the right to an effective remedy.
PROCEEDINGS BEFORE THE COMMISSION
Upon receipt of the petition of October 3rd, 1990, and up to
Friday October 1st, 1993, the Commission acting through its
Secretariat, complied with all the procedural requirements of Articles
30 to 35 of its Regulations. It communicated with the petitioners and
the United States Government, it studied, considered and examined all
information submitted by the parties.
During this period the Commission sent several notes, including
the pertinent parts of the petition, emergency applications for OAS
action, and all supplemental filings to the United States Government
with a request that it supply information which it deemed appropriate
to the allegations of the complaint, and which addressed the issue of
exhaustion of domestic legal remedies.
The Commission qualified the request by stating that "the
request for information did not constitute a decision as to the
admissibility of the communication."
Among the notes transmitted by the Commission to the United
States Government was a telex dated October 4th, 1991, addressed to
the former United States Secretary of State James A. Baker II, during
its 80th period of sessions, which stated that "it has decided
pursuant to paragraph 4 of Resolution 1/91 of the Ad Hoc Meeting of
Ministers of Foreign Affairs, entitled "Support to the Democratic
Government of Haiti, to request for humanitarian reasons that the
United States Government suspend its policy of interdiction of Haitian
nationals who are attempting to seek asylum in the United States and
are being sent back to Haiti, because of the danger to their lives,
until the situation in Haiti has been normalized."
On February 6th, 1992, the Commission sent a note (included in
the notes mentioned above, signed by the Chairman of the Commission,
to the former United States Secretary of State James A. Baker III,
stating that "the Inter-American Commission on Human Rights notes
that the return of the Haitians from the United States recommenced on
February 3, 1992, and that the implementation of the present policy
will result in the transfer of some 12,000 Haitians.
Given the uncertain situation in Haiti, the Members of the
Commission unanimously and respectfully request the United States
Government to suspend, for humanitarian reasons, the return of
On March 12th, 1993, the Commission approved a report in
response to a request for precautionary measures, at a hearing held
before it on February 26th, 1993, wherein it issued the following
it called upon the United States Government to review, as a
matter of urgency, its practice of stopping on the seas vessels
destined for the USA with Haitians and returning them to Haiti without
affording them an opportunity to establish whether they qualify as
refugees under the Protocol Relating to the Status of Refugees, or as
asylum-seekers under the American Declaration of the Rights and Duties
it called upon the United States Government to ensure that
Haitians who are already in the United States are not returned to
Haiti without a determination being made as to whether they qualify
for refugee status, under the Protocol Relating to the Status of
Refugees, or as asylees under the American Declaration of the Rights
and Duties of Man.
it placed itself at the disposal of the parties concerned with
a view to reaching a friendly settlement of this matter on the basis
of respect for the human rights recognized in the American Declaration
of the Rights and Duties of Man.
it stated that this request is without prejudice to the final
decision in this case.
During this period the Commission received several notes from
the United States Government, which included a response to the
original petition filed, stating that the petition was not timely
filed, and that the Commission should find the petition inadmissible
pursuant to Articles 52, and 38 of the Commission's Regulations, and
Article 46 of the Inter-American Convention on Human Rights. The Government added that it "will not address the
interpretations of law and factual assertions presented in the
Another note contained the United States Government's second
submission to the Commission. It argued that the petitioners have failed to exhaust
domestic remedies, that the complaint should be dismissed under
Articles 37 and 41(a) of the Commission's Regulations, and that
Article 37(2) is inapplicable to the petitioners' claim.
The Government further stated that the "United States
reserves the right to address more fully the merits of petitioners'
substantive arguments in the event there is a need to do so, and that
because it believes that the complaint is inadmissible, this
communication does not address in detail the interpretations of law
and factual assertions presented in the petition." A later note contained the Government's argument,
(reiterating the argument contained in note two above) and a request
that the hearing scheduled for February 26th, 1993, be postponed.
The United States Government submitted various documentary
materials containing its position with regard to its Haitian Policy.
The Government's final argument was submitted at a hearing held
at its request on March 5th, 1993, before the Commission, requesting
that the Commission find the petition inadmissible because the
petitioners had not exhausted domestic remedies, because of the then
pending Supreme Court's decision in the case of Sale v. Haitian
Centers Council Inc., ET AL. No.92-344. Argued March 2nd, 1993,
and decided on June 21st, 1993. Included
in its submission were various exhibits supporting the Government's
policy with regard to the Interdiction Program, press releases
containing the efforts made by the Government to expedite the
processing of "in country refugee claims" in Haiti, the
restoration of constitutional government and the return of President
Aristide to Haiti, and two declarations.
One of the declaration was made by Bernard W. Aronson, the
Assistant Secretary of State for Inter-American Affairs, supporting
the Interdiction Program, and the other declaration was made by Dudley
G. Sipprelle Consul General at the United States Embassy in
Port-au-Prince Haiti, who declared that it was determined after
investigation that an interdictee who was returned to Haiti had not
been persecuted upon her return.
During this period the Commission also sent several notes to
the petitioners, including the pertinent parts of the United States
Government's submissions, and received several notes from the
petitioners, which included the original petition, an amendment to
petition to include JEANNETTE GEDEON who had been interdicted and
summarily returned to Haiti without being provided a reasonable
opportunity to apply for political asylum, an emergency application
for OAS action, supplemental filing in support of emergency
application for OAS action, and their two responses to the United
States Government's submission.
a hearing held at the petitioners request on February 26th, 1993,
before the Commission, the petitioners reiterated their arguments
contained in their submissions, that the petition is admissible, made
several requests to the Commission, presented documentary evidence as
to the health conditions of those interdictees held at Guantanamo bay,
and presented two witnesses who testified before the Commission.
One of the witnesses testified as to the persecution he faced
after he was interdicted and returned to Haiti.
He further testified that after leaving Haiti for the second
time and upon being given a reasonable opportunity to present his
claim, he acquired refugee status in the United States.
The other witness testified as to why "in country
processing" was not working in Haiti.
petitioners final submission was a copy of the Supreme Court's
decision in the case of Sale v. Haitian Centers Council decided
on June 21st, 1993.
SUBMISSIONS OF THE PARTIES
Argument in Support of the Original Petition with Regard to
International Human Rights Violated by the United States Government's
Haitian Interdiction Program
As a member state of the Organization of American States (OAS),
the United States is bound by the Charter of the OAS (Bogota, 1948) as
amended by the Protocol of Buenos Aires, ratified by the United States
on April 23, 1968. As a
consequence of this treaty, other instruments and resolutions of the
OAS on human rights acquire binding force on OAS members. Those instruments and resolutions approved with the voice of
the U.S. Government are as follows: (1) the 1948 American Declaration
of the Rights and Duties of Man (ADRMN); and (2) the Statute and
Regulations of the IACHR.
Both Statutes provide that, for the purpose of such
instruments, the IACHR is the organ of the OAS entrusted to effectuate
the observance of, and respect for human rights.
For the purpose of the Statute, human rights are understood to
be the rights set forth in the American Declaration in relation to
states (such as the United States) which are not parties to the
American Convention. (See articles I & II of the 1960 Statute and
Article II of the 1979 Statute.)
That the Commission should also consider other multilateral
human rights treaties in the determination of the violations alleged
in this Petition. As the
Inter-American Court of Human Rights has declared in its Advisory
Opinion addressing the jurisdiction of the Court and/or this
The need of the regional system to be complemented by the
Universal Declaration finds expression in the practice of the
Inter-American Commission on Human Rights and is entirely consistent
with the object and purpose of the Convention, the American
Declaration, and the Statute of the Commission.
The Commission has properly invoked in some of its Reports and
Resolutions other treaties concerning the protection of human rights
in the American States regardless of their bilateral or multilateral
character, or whether they have been adopted within the framework or
under the auspices of the Inter-American System. (Advisory Opinion No.
OC-1/82 of September 24, 1982,"Other treaties" Subject to
the Consultative Jurisdiction of the Court, requested by Peru, p.12.)
Petitioners allege that the challenged Haitian Interdiction
program violates Articles XVIII (the right to an effective remedy),
XXXVII (the right to asylum) and XXIV (the right to petition) of the
American Declaration of the Rights and Duties of Man, to which the
United States is bound by virtue of its membership in the Organization
of American States (OAS) and its ratification of the Charter of the
That while being interdicted on the high seas, there is no
effective right to seek political asylum, nor is there any right to
petition or to seek an effective remedy. The claims of boat people cannot be effectively made or
evaluated while they are handcuffed, exhausted, tired, hungry, and
afraid on a foreign law enforcement vessel on the high seas.
The declarations filed herewith, and Congressional testimony
indicate that Haitian boat people are often not questioned at all
about their political asylum claims, or are questioned "en
That while they do not know that statistically their chances of
not being forcibly returned to Haiti are about .003%, or, stated
another way, their chances of being involuntarily returned to Haiti
are about 99.997%, boat people obviously know that their chances of
being believed, or of having their claims seriously considered, are
very small. Under these
circumstances, it would take an extremely brave -- perhaps foolish --
person to articulate all the reasons why he or she fled Haiti.
That the boat people have little reason to believe that what
they say will be held confidential by the U.S. Government since the
entire interdiction program is carried out as a cooperative and joint
project of the U.S. and Haitian Governments. (The U.S.-Haiti agreement
specifically allows for Haitian officers to board interdicted
The U.S. Government's interdiction program violates Articles
22(2),(7),(8), 24 and 25 of the American Convention on Human Rights,
O.A.S. Treaty No. 36, singed by the United States but not ratified, as
supplemented by the customary obligation recognized in Article 18 1155
U.N.T.S. 331. The
signature of the United States on the American Convention obliges it
"to refrain from acts that would defeat the object and purpose of
the treaty." Article 18. Vienna Convention on the Law of
That the Convention provides that "every person has the
right to leave any country freely, including his own." Article
22(2). The interdiction
program clearly violates this fundamental right, one that the United
States Government has loudly defended in support of nationals of
countries with communist-dominated governments attempting to leave
the interdiction program also violates Article 22(7) of the Convention
in that it does not provide the interdicted boat people the
"right to seek" asylum in a foreign territory.
The interdiction program results in the mass and forcible
detention of boat people and their involuntary return to Haiti before
any reasonable proceedings are conducted to determine whether
protection from return (non-refoulement) is required under
interdiction program violates Articles 24 and 25 of the Convention in
that it denies the Haitian boat people "equality before the
law," and "the right to simple and prompt recourse, or any
other effective recourse to a competent court or tribunal for
protection against acts that violate their fundamental rights..."
The determination of whether the Haitian boat people
possess legitimate claims to asylum is made in a highly discriminatory
manner, and, while on the high seas, there is no recourse at all to a
competent tribunal for protection against violations of their rights.
interdiction program violates Articles 8, 13(2) and 14 of the United
Nations Universal Declaration on Human Rights.
Article 13 of the UDHR provides that: (1) everyone has the
right to seek and enjoy in other countries asylum from persecution,
and (2) This right may not be invoked in the case of prosecutions
genuinely arising from non-political crimes or from acts contrary to
the principles of the United Nations.
interdiction program does not provide Haitian boat people with an
effective remedy, nor does it reasonably permit them to seek asylum in
the United States or a third country.
Article 13(2) of the UDHR provides that "everyone has the
right to leave any country, including his own..."
The interdiction program violates the right of Haitians to
depart their country without forcible interference.
a member state of the United Nations, the United States, in accordance
with Articles 55 and 56 of the U.N. Charter (ratified by the United
States), expressly pledged itself to take action to achieve universal
respect for and observance of human rights and fundamental freedoms as
enumerated in the Universal Declaration of Human Rights.
The interdiction program, not only violates fundamental
principles of international law regarding refugee protection, but also
the right of Haitian people to leave their devastated country, is not
"action" aimed at achieving "universal respect for and
observance of human rights and fundamental freedoms" as
enumerated in the Universal Declaration of Human Rights, and therefore
is in violation of Articles 55 and 56 of the U.N. Charter.
Haitian interdiction program violates Articles 3, 16(1) and 33 of the
United Nations Convention Relating to the Status of Refugees.
Article 3 states that: "the Contracting States shall apply
the provisions of this Convention to refugees without discrimination
as to race, religion or country of origin." Article 16 of the
Convention requires that refugees have free access to the courts of
law in the territories of all contracting states.
Article 33 sec. 1 of the Convention states that: "No
Contracting State shall expel or return ("refouler") a
refugee in any manner whatsoever to the frontiers of territory where
his life or freedom would be threatened on account of his race,
religion, nationality, membership in a particular social group, or
the interdiction program clearly violates the above provisions.
It blatantly discriminates against Haitian people who make up a
small percentage of those seeking asylum in the United States
but are the only group subject to an interdiction program.
It further discriminates by failing to provide Haitians with
anything close to a fair opportunity to present their claims of
persecution. That while
Haiti is a land steeped in political violence, the United States
Government has found only six (6) out of 21,000 Haitian boat people
who it did not forcibly return to Haiti, and allowed to claim
political asylum in the U.S. At
the same time the United States Government determined that over 50% of
all Nicaraguans had a legitimate claim to political asylum.
at the same time, the United States Government has also determined
that the vast majority of asylum seekers from Communist countries
possess a legitimate claim to asylum.
There can be no doubt that petitioners will be able to
establish in these proceedings that the United States Government has
persistently engaged in massive discrimination against Haitian boat
people in violation of Article 3 of the United Nations Convention
Relating to the Status of Refugees.
the Miami Herald reported that the U.S. Government picked up 16 Cubans
from waters off the Florida coast. "All the Cubans were reported
to be in good health and were brought to the United States and turned
over to the Immigration and Naturalization Service," Their names
were even listed in the Herald. At
the same time, the report states, "a fishing vessel with 136
Haitians was turned back to Haiti by a coast Guard cutter that
encountered the vessel 500 miles southeast of Miami..."(Miami
Herald,p.e.B, Sept.28, 1990.) The
petitioners further argue that the racial and national origin
discrimination practiced by the United States Government is plain.
the interdiction program equally clearly violates the Haitian boat
people right of access to the courts under Article 16 of the United
Nations Convention. There
are no courts on the high seas to which the boat people can
turn for a review of the decision that they lack meritorious claims
for protection from return to Haiti.
The interdiction program violates Article 33 sec.1 in that it
has permitted and continues to permit agents of the United States
Government to expel or return ("refouler") Haitian refugees
or potential refugees to Haiti where their lives or freedom are
threatened on account of, among other things, their political
petitioners further argue that the United States accepted special
obligations toward refugees, or persons claiming to be such, when it
became a party to the United Nations Protocol Relating to the Status
of Refugee, 19 U.S.T. 6224, T.A.I.S. No. 6577, (Refugee Protocol),
opened for signature January 31, 1967, entered into force for the
United States November 1, 1968. The
Refugee Protocol obligates parties to give effect to the substantive
provisions of the United Nations Convention Relating to the Status of
the methods utilized by the U.S. Government to establish refugee
status also fall far short of the standards recommended by the Office
of the United Nations High Commissioner on Refugees in its
authoritative "Handbook On Procedures and Criteria for
Determining Refugee Status."
The Handbook states that:
It may be mentioned that basic information is frequently given
to determine refugee status in the first instance, by completing a
standard questionnaire. Such
basic information will normally not be sufficient to enable the
examiner to reach a decision, and one or more personal interviews will
be required. It will be
necessary for the examiner to gain the confidence of the applicant in
order to assist the latter in putting forward his case and in fully
explaining his opinions and feelings.
In creating such a climate of confidence it is of course of the
utmost importance that the applicants' statements will be treated as
confidential and that he be so informed.
(Geneva, September 1979, the "U.N. Handbook," at pp
46, 198 & 200.)
the Handbook additionally provides that the asylum applicant
"should be permitted to remain in the country pending a decision
on his initial request by a competent authority..."(U.N. Handbook
page 192.) The normative
character as well as the extensive state practice of the principle of
non-refoulement authoritatively evidences its status as a customary
norm of international law. The
United States Supreme Court has ruled that the United States
government is bound by the principles of customary international law.
(See The Paquete Habana, 175 U.S. 677, 700 (1900.)
The Court held in that case that: "international Law is
part of our law, and must be ascertained and administered by the
Courts of Justice of appropriate jurisdiction... For this purpose,
where there is no treaty, and no controlling legislative act or
judicial decision, resort must be had to the customs and usages of
petitioners argue further that the requirements of Article 37 of the
Commission's Regulations are met by them, because they are without
further redress under United States Law to protect their rights which
they allege are being violated. They contend that the issues raised in this petition have
been raised, and rejected in the United States Federal Courts.
That the petitioner the Haitian Refugee Center, and two of its
members filed suit in the United States District Court for the
District of Columbia challenging the legality of the Haitian
interdiction program under United States Law (the Refugee Act of
1980), the Due Process Clause of the Fifth Amendment of the United
States Constitution, and international law.
That the international law claim alleged, as do petitioners
here, that the Interdiction Program violated Article 33 of the 1967
Protocol Relating to the Status of Refugees and the United Nations
Universal Declaration of Human Rights.
in Haitian Refugee Center v. Gracey, 600 F.Supp.1396(D.D.C.
1985), the United States District Court rejected all of the plaintiffs
claims, ruling that the U.S. Refugee Act did not protect persons, who
like plaintiffs, were outside the territorial waters of the United
States; the Due Process clause of the U.S. Constitution provided no
Fifth Amendment rights to interdicted Haitians classified as
excludable aliens; the Protocol was not a self executing treaty, and
thus had no force as domestic law; and, the Declaration is merely a
non-binding resolution. See
HRC v. Gracey, 600 F.Supp at 1404-1406.
On appeal, the United States Court of Appeals for the District
of Columbia was even less receptive to the plaintiffs' claims.
The Court affirmed the dismissal of the case, ruling further
that the plaintiffs lacked standing to bring the lawsuit.
Haitian Refugee Center v. Gracey, 809 F.2d 794 (D.C.
Cir. 1987). That it is
clear that domestic remedies cannot vindicate the rights under
international law that the petitioners raise in this petition.
United States Government's Reply to Petition of
October 1, 1990, Concerning the Haitian Migrant Interdiction
Program and Cooperative Agreement between the United States and the
Government of Haiti Submitted on January 25th, 1991.
That the petitioners assert that their remedies under United
States law were exhausted with the 1987 decision of the U.S. Federal
Court of Appeals in the case of Haitian Refugee Center v. Gracey,
809 F.2d 794 (D.C. Cir. 1987).
That assuming, without conceding, the alleged exhaustion of
domestic remedies, petitioners had notice of the final judgment of
their claim under domestic law over three years ago. The petitioners
thus failed to lodge their petition within six months from the date
they were notified of the final judgment of their claim under domestic
law, as required by Articles 52 and 38 of the Regulations of the
Commission. (Article 46
of the Inter-American Human Rights Convention, which the United States
has signed but not ratified, contains an identical six-month time
period for the submission of a petition.)
That the United States therefore requests that the Commission
find the petition inadmissible, and, as a result, will not address the
interpretations of law and factual assertions presented in the
Petitioners' Reply To Government's Argument
Regarding Admissibility submitted April 29, 1991.
The petitioners reiterated their arguments contained in their
Original petition, Emergency Application for OAS Action, and
Supplementary Application in support of their emergency application
for OAS action with regard to the interdiction program, its
implementation, (which is still being continued), and the various
international instruments allegedly violated by the United States
Government. (Argument omitted.)
Petitioners stated that neither Article 38 nor 52 precludes the
admissibility of the petition in this case.
That only one of the seven petitioning parties, the Haitian
Refugee Center, attempted to exhaust domestic remedies, and by doing
so it firmly established the uselessness of such remedies.
Without conceding its correctness or legality, United States
law by its own terms precludes domestic judicial review of the Haitian
interdiction program. The
key applicable regulation, Article 38 of the ICHR, states: "The
Commission shall refrain from taking up those petitions that are
lodged after the six-month period following the date on which the
party whose rights have been violated has been notified of the final
ruling in cases where the remedies under domestic law have been
Petitioners argued that Article 38 is not a bar to the
admissibility of this petition because this is not a case "Where
Remedies Under Domestic Law Have been Exhausted" and petitioners
have not received final decisions. The petitioning parties do not, as claimed by the United
States Government, "assert that their remedies under United
States law were exhausted with the 1987 decision of the U.S. Federal
Court of Appeals in the case of Haitian Refugee Center v. Gracey,
809 F.2d 794 (D.C. Cir. 1987)." What petitioners do claim is that
the Gracey case firmly established that there are no
effective domestic remedies to be exhausted.
Only one of the seven petitioning parties in this case, the
Haitian Refugee Center, filed suit in the United States District Court
for the District of Columbia challenging the legality of the Haitian
interdiction program under United States law (the Refugee Act of
1980), the Due Process Clause of the Fifth Amendment of the United
States Constitution, and international law.
That in Haiti Refugee Center v. Gracey, 600 F. Supp.1396
(D.D.C. 1985), the United States District Court refused to reach the
merits of the plaintiffs'claims, ruling that (1) the U.S. Refugee Act
did not protect persons who were outside the territorial waters of the
United States (i.e. people who had not made an "entry"); (2)
the Due Process clause of the U.S. Constitution provided no Fifth
Amendment rights to interdicted Haitians who had not yet completed an
"entry" into the United States; and (3) the Protocol was not
a self-executing treaty and thus had no force as domestic law. See HRC
V. Gracey, 600 F. Supp at 1404-1406.
That on appeal, the United States Court of Appeals for the
District of Columbia was even less receptive to plaintiffs' claims.
The Court affirmed the dismissal of the case, ruling further
that the plaintiffs lacked standing to bring the lawsuit.
Haitian Refugee Center v. Gracey, 809 F.2d 794 (D.C.
Cir. 1987). The Court of Appeal's decision was based upon
well-established and deeply entrenched law in the United States,
including federal statutes enacted by Congress and judicial doctrines.
Just as the United States Government successfully argued in Gracey,
it is clear that domestic remedies cannot vindicate, indeed will not
even address, the claims that petitioners raise in this petition.
The Haitian Refugee Center is the only party in this petition
which even attempted to exhaust its domestic remedies.
However, as stated in the petition, the plaintiffs' claims in Gracey
were denied without an examination of the merits.
That the Haitian Refugee Center, recognizing that under United
States law no domestic remedy was available to address the legality of
the interdiction program, did not appeal the adverse decision in the Gracey
case to the United States Supreme Court.
It would have been futile to have done so.
The Haitian Refugee Center did not, therefore, fully exhaust
its domestic remedies because such exhaustion would have accomplished
nothing. The Haitian
Refugee Center neither sought nor obtained a "final"
decision on its claims.
None of the other six petitioning parties attempted to exhaust
their domestic remedies in the United States because to do so would
have been completely futile. Furthermore,
none received notification of a "final ruling."
Article 38 of the ICHR therefore has no application to them at
That the petitioning parties were not required to exhaust
the domestic remedies. Article
37 of the Regulations present petitioners with two alternatives
in order to avoid a finding of inadmissibility on ground of failure to
exhaust domestic remedies: (1) petitioners "remedies under
domestic jurisdiction must have been invoked and exhausted in
accordance with general principles of international law," Article
37(1), or, (2) petitioners may claim an exemption to
exhaustion requirements if they can demonstrate that domestic
remedies cannot be exhausted because they are not available as a
matter of law or as a matter of fact as specified in 37(2). (See IA
Court HR, Advisory Opinion of August 10, 1990, Exceptions to the
Exhaustion of Domestic Remedies.)
Article 37(2)(a) states that exhaustion requirements shall not
be applicable when: the domestic legislation of the state concerned
does not afford due process of law for protection of the right or
rights that have allegedly been violated.
Under Article 37(2)(b) the party alleging violation of his
rights has been denied access to the remedies under domestic law or
has been prevented from exhausting them. In this case United States
law "does not afford due process of law for protection of the
right or rights that have allegedly been violated," and
"the parties alleging violation of their rights have been denied
access to the remedies under domestic law..." See Haitian
Refugee Center v. Gracey, 809 F.2d 794 (D.C. Cir. 1987) (The
Haitian Refugee Center is the only party in this petition which even
attempted to exhaust its domestic remedies.
That no Haitian boat person can make a claim for protection
under U.S. asylum legislation until that person has made an
"entry" under the U.S. immigration laws or unless there is a
specific statutory grant of a right independent of the Fifth Amendment
to the United States Constitution.
See Jean v. Nelson, 727 F.2d 957, 968 (11th Cir.1984). That as non-U.S. citizens seeking admission to the United
States, the Haitian boat people on behalf of whom this petition is
filed are presently considered as having no Constitutional rights.
Jean Nelson, 727 F.2d 957, 968 (11th Cir. 1984), aff.
on other grounds, Jean Nelson 472 U.S. 846; see also Landon v.
Plascencia, 459 U.S. 21, 32 (1982) ("This Court has long held
that an alien seeking admission to the United States requests a
privilege and has no constitutional rights regarding his
application, for the power to admit or exclude aliens is a sovereign
prerogative" (emphasis added); Knauff v. Shaughnessy, 338
U.S. 537, 544, 70 S.Ct. 309, 313 (1950) ("Whatever the procedure
authorized by Congress is, it is due process as far as an alien denied
entry is concerned ...Petitioner had no vested right of
the unnamed Haitian interdictees whom the petitioners in this case
seek to represent and assist are afforded no standing in the United
States courts -- they are deemed "excludable aliens" not
within the protection of the federal statutes or the Fifth Amendment
to the United States Constitution. See Kwong Hai Chew v. Colding,
344 U.S. 590-600 (1953). Of
course, the inability of the interdictees to assert due process rights
to gain consideration as asylees under U.S. law is not surprising.
Documents describing the Haitian interdiction program
demonstrate that its essential purpose is precisely to prevent Haitian
refugees from entering the United States so that they may have their
applications for political asylum considered.
For this reason the program is conducted on the high seas
rather than in U.S. territorial waters where interdictees could enter
the political asylum process.
the Haitian interdiction program is intended to and does constitute a
cordon around INS's asylum procedures and the U.S. courthouses
precisely to prevent Haitian refugees from gaining access to domestic
remedies. One would
literally have to fight off a Coast Guard Cutter to access domestic
remedies. Under these
circumstances exhaustion of such remedies clearly cannot be demanded.
It should also be pointed out that no person or organization in
the United States has third-party standing to assert the rights of
those Haitian refugees who have been interdicted.
As the court held in Gracey, the plaintiffs could not
make the independent showing required for recognition of third-party
standing to raise the non-constitutional rights of third parties,
because none of the laws that the interdiction program is alleged to
violate are substantive protections of a relationship between Haitian
aliens and appellants (or anyone else).
The program is alleged primarily to violate such Haitians'
procedural rights. Gracey,
the U.S. legislation does not afford due process of law for
protection of the rights of Haitians having claims to refugee or
asylee status who are interdicted by the U.S. Coast Guard on the high
"domestic legislation" which constitutes a denial of due
process is the interdiction program itself, which acts to cut off from
the legal system Haitians with genuine refugee claims who would
otherwise be eligible to apply for asylum and have their applications
considered under the terms of applicable domestic law.
The Inter-American Court has stated that: "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." Velásquez
Rodríguez Case, Judgment of January 20, 1989 IA Court HR, Series
C No,.4, para. 64, 66 9 HRLJ 222 (1988).
in its recent Advisory Opinion on the subject of exhaustion of
domestic remedies, the Inter-American Court, quoting the landmark Velásquez
Rodríguez case, declared that: "when it is shown that
remedies are denied . . . without an examination of the merits;
or if there is proof of the existence of a practice or a policy
ordered or tolerated by the government the effect of which is to
impede certain persons from invoking internal remedies that would
normally be available to others . . . resort to those remedies becomes
a senseless formality." That the exceptions of Article 46(2) of
the American Convention containing the exact language of 37(2)
applying to States such as the United States which have not
ratified the Convention would be fully applicable in those situations
and would discharge the obligation to exhaust domestic remedies since
they cannot fulfill their objective in that case. IA Court HR, Advisory
Opinion of August 10, 1990, (Exceptions to Exhaustion of Domestic
Remedies, para 34, quoting Velasquez Rodriguez, Judgement of
January 20, 1989, IA Court HR, Series C No.4, para. 68; 9 HRLJ 223
in recent cases in El Salvador, Peru, and Suriname the Commission
found that the remedies were not effective and that petitioners need
not exhaust them. (All resolutions reported in 1989-90 Annual Report,
Inter American Commission on Human Rights (IACHR Report).
Given the Gracey court's position that no one has
standing to challenge the interdiction program, and, that even if
someone did, the courts do not possess jurisdiction over such a
challenge, the Haitian Refugee Center did not seek further review in
the United States Supreme Court and the six other petitioning parties
did not seek to exhaust domestic remedies at all because to do so
would have been a "senseless formality."
petitioners further stated that "it is clear that domestic
remedies cannot vindicate the rights under international law
that petitioners raise in this petition."
The United States Government cannot disagree with this
statement because this is precisely what it argued in the Gracey
case. Conclusion: from
the plain language of Article 38, the six-month deadline for the
presentation of petitions only applies "in cases where the
remedies under domestic law have been exhausted."
Article 38, Regulations of the Inter-American Commission on
Human Rights. In this case the petitioning parties have not exhausted
domestic remedies in the United States because under U.S. law they
have no standing and the courts have no jurisdiction.
HRC v. Gracey, 809 F.2d 794 (D.C. Cir. 1987). Further resort to the U.S. courts would clearly be a
Argument in Support of Emergency Application Filed by
Petitioners on October 3rd, 1991, For Provisional
OAS Action to Halt United States' Policy of Interdicting And
Deporting Haitian Refugees
Petitioners argue that pursuant to Title II, Chapter I, of the
Regulations of the Inter-American Commission on Human Rights that:
"in urgent cases, when it becomes necessary to avoid irreparable
damage to persons, the Commission may request that provisional
measures be taken to avoid irreparable damage in cases where the
denounced facts are true." That Article 29.2 authorizes the
Commission to take the action petitioned for: "to request that
the United States Government take provisional measures in the form of
a suspension of the interdiction and deportation of Haitians to avoid
irreparable harm they may face if returned to Haiti under the present
circumstances of violence which prevail in that country."
That measures almost identical to those requested here were
taken in another Haitian interdiction case No. 3228.
In that case, in which petitioners were also represented by the
same counsel, then OAS Executive Secretary Edmundo Vargas Carreño
sent a cablegram to former Secretary of State Cyrus Vance requesting
that "for humanitarian reasons the United States refrain from any
action which would result in the deportation of the Haitian
citizens." (See cablegram from Edmundo Vargas Carreño to Cyrus
Vance, dated April 7, 1980.) The
situation presented now even more urgently calls for efforts by the
Inter-American Commission to protect the fundamental human rights of
Haitians who face interdiction and deportation to Haiti.
Action by the OAS pursuant to Article 29.2 is necessary to
avoid irreparable if not fatal injuries to persons facing return to
Haiti by the United States Government authorities.
Argument in Support Of Petitioners' Emergency Application for
Provisional OAS ACTION to Halt the United States Policy of Returning
Interdicted Of Submitted February 6th, 1992
The petitioners reiterated their argument regarding the various
international human rights instruments allegedly violated by the
United States Government, in particular Articles of the American
omitted, same as in part A of "Submission before
further argued that the Commission has the authority to take
precautionary measures under Article 29.2 of the American Convention,
(Argument omitted contained in part C of submission before the
The petitioners further argue that it is clear that the
interdiction program is failing to identify those Haitians with
legitimate claims to asylum. They
argue that the most recent detailed and compelling record of this has
been made in the lawsuit of Haitian Refugee Center v. Baker,
No. 91-2635-CIV-Atkins (C.D.Fla. 1991).
In that case the United Supreme Court recently ruled that the
United States Government could commence expulsions to Haiti.
The Second Amended Complaint in Haitian Refugee Center v.
Baker details at length the circumstances leading to the flight of
fifteen Haitians who are the named plaintiffs, and summarizes their
INS interviews upon interdiction.
All of the interdictees were politically active.
All were sought by the military government following the coup.
Many had family members killed by the government.
Almost all were sick and malnourished during their asylum
interviews. Many were not
told why they were being interviewed by the INS, and were afraid to
answer fully. Most of the
interviews lasted five minutes or less, which included time for
translation. Many of the
interviewers were hostile, and told the interdictees that they would
be returned regardless of what they said. Almost all of the interviewers failed to follow up on
indications of political persecution.
That none of the fifteen individuals was determined to have a
plausible claim for asylum. All were subject to immediate forced repatriation.
So compelling was the testimony of these Haitians that the
federal district court judge hearing the case concluded that the INS
"procedures presently in place appear substantially
inadequate" to ensure the fair presentation of the Haitian's
asylum claims. The court
concluded that the "INS screeners are failing to follow the INS's
own guidelines" -- specifically, that interviews shall be
conducted to ensure a full presentation of asylum claims.
No appellate court contradicted these factual findings.
The testimony of numerous human rights group confirms them.
See "Haiti, The Human Rights Tragedy: Human Rights
Violations Since the Coup," Amnesty International, January
1992 at 2 ("Amnesty International believes that the U.S. refugee
screening procedure lacks certain essential safeguards which must be
allowed to asylum-seekers and which are required by international
also "Refugee Refoulement: The Forced Return of Haitians under
the U.S.-Haitian Interdiction Agreement," Lawyers Committee
for Human Rights, Mar. 1990 at 20-23, 49-53. There is thus a great
likelihood that the interdiction program has failed to identify those
Haitians with legitimate claims to asylum, and that Haitians who
legitimately fear political persecution will be forcibly returned to a
hostile military junta.
The petitioners argue that it is clear that the safety of
persons deported to Haiti cannot be reasonably ensured.
Following the violent ouster and exile of President Aristide,
the chaos restrained during seven months of democratic rule has
returned to Haiti. This violence has not subsided in the five months
since the coup. To the contrary, the following picture of death and
disorder now rampant in Haiti is being painted by the media, human
rights observers, and the Haitian Consulate in New York:
Extrajudicial executions remain commonplace. At least 1,500
people have been killed since the coup.
The removal of bodies from morgues by the Haitian Government
indicates that more may have been killed and buried in secret mass
The military has systematically targeted President Aristide's
political supporters, grassroots organizations, women's groups,
peasant development groups, trade unions, church groups, and youth
movements. On the
anniversary of the December 16, 1990 elections, police killings and
arrests of Aristide supporters were reported throughout the country.
A meeting held by Aristide's prime minister designate was
stormed by plainclothes policemen.
The continuing nature of the threat is evident in that arrests
for pro-Aristide activities have been reported as recently as February
2, two days after the United States began forcibly repatriating
Haitian interdictees. As
a result of these persecutions, an estimated 200,000 people have been
forced into hiding.
Detention without warrant is common, along with torture, denial
of medical care, and the failure to provide food to prisoners.
The fate of those detained is often not clarified by the
government. Families who
go to prisons and detention centers to search for their relatives are
often intimidated by soldiers. Over
300 people have been arrested since the coup.
Among those arrested have been the mayor of Port-au-Prince, the
wife of President Aristide's Prime Minister, and numerous financial
and political supporters of the exiled President.
One interdictee said, "we can't even stand around talking
without the soldiers coming and beating the crap out of you."
Brutal and corrupt rural chiefs known as "chefs de
section" have been re-armed and reinstated by the military
regime. They have been reported to perpetrate killings and beatings of
Aristide supporters who had disempowered them.
The military regime has issued decrees granting amnesty to
anti-Aristide militants. The
ruling junta has freed those who participated in earlier coups
designed to prevent President Aristide from taking power after he won
Restrictions on the press and freedom of speech and assembly in
place in Haiti since the coup have made it extremely difficult and
dangerous to fully investigate reported human rights violations.
Members of the Catholic Church, journalists, human rights
monitors and others have been threatened and intimidated by members of
the security forces. As
Amnesty International reports, even its own figures "could
substantially underestimate the extent of the human rights crisis in
Haiti: problems in communications and the climate of fear and
repression have meant that many human rights violations remain
unreported." The result is that the true state of affairs in
Haiti may be much worse than what is reported.
So bad are conditions in Haiti that the United States
Government has recalled its ambassador to Haiti, Alvin P. Adams, for a
policy review, has made efforts to evacuate all non-essential United
States personnel, has issued a travel advisory to Americans planning
visits there, and continues to refuse to recognize Haiti's ruling
military junta. (Reference made to Amnesty International, 1992 Report
discussed above, the case of Haitian Refugee Center v. Baker
discussed above, telephone interview with Public Affairs Officer of
Haitian Consulate in New York, and newspaper reports of the Haitian
situation, citations omitted.)
United States Government started deporting Haitians only hours after
the Supreme Court lifted the injunction preventing their forced
repatriation. It did this
despite the fact that the safety and well-being of those Haitians
returned cannot be guaranteed. In
one widely publicized incident, Haitians who voluntarily returned from
Venezuela on December 3, 1991, were thoroughly questioned, searched
and taken to police headquarters, where they were finger-printed and
photographed. That others
may be placed under the care of the Haitian Red Cross cannot be
organization is not a member of the International Red Cross, and it is
not independent of government pressure.
The petitioners further argue that arrests of Aristide
supporters have been reported as occurring after the United States
began forcibly repatriating Haitian refugees on February 1st.
That there is no evidence to indicate that returned Haitians
will be treated any better than those who never left.
They state that to the contrary there is every reason to
believe they will be treated worse, and that the intervention of the
OAS is urgently needed.
The petitioners submitted copies of interviews from Haitian
interdictees forcibly repatriated by the United States Government upon
their return, in support of their emergency application for OAS action
filed on February 6th, 1992.
The United States' Second Submission of August 28th,
1992, Regarding the Inadmissibility of Petition
The United States Government argues that the petitioners'
complaint should be dismissed under Articles 37 and 41(a) of the
Commission's Regulations because they have not exhausted available
remedies under domestic law.
That the policies and practices of the United States Government
which form the basis of petitioners' complaint before the Commission
are the subject of ongoing litigation in the domestic courts of the
That the action currently pending, Haitian Centers Council,
Inc. v. McNary, was filed in the Eastern District of New York on
March 18, 1992. Two of
the petitioners before the Commission, Haitian Centers Council, Inc.,
and the National Coalition for Haitian Refugees, Inc., are also
plaintiffs to this lawsuit. The
events and the United States Government policies described in the
original petition and subsequent filings with this Commission are
similar or identical to those which give rise to the pending lawsuit.
That the original focus of the lawsuit was a claim based in
part on the First Amendment of the United States Constitution.
Plaintiffs challenged, inter alia, the absence of legal
counsel during the Administrative screening of interdicted Haitians
who had been diagnosed as carrying the AIDS virus.
On March 27, 1992, the District Court granted plaintiffs'
temporary restraining order, which was upheld in part by the Federal
Court of Appeals for the Second Circuit on June 10, 1992.
Under the Court's order, the United States Government is
prevented from interviewing, processing, or repatriating the affected
Haitians without providing access to legal counsel.
That as these issues were being decided, separate litigation
began on a different issue in reaction to President Bush's revocation
of Executive Order 12324, and issuance of new direct return of
interdictees to Haiti, and instituted a policy of
"in-country" refugee processing.
Plaintiffs sought a temporary restraining order on May 28,
1992, barring implementation of the direct return policy.
That request was denied by the District Court on June 5, 1992.
On July 29, 1992, this decision was reversed by the Federal
Court of Appeals for the Second Circuit, which remanded the case to
the District Court to issue an immediate injunction barring the return
of any interdicted Haitian whose life of freedom would be threatened
on account of his or her race, religion, nationality, membership in a
particular social group or political opinion.
The District Court issued such an injunction the next day.
On July 30, 1992, the Second Circuit stayed the injunction in
order to allow the Government to pursue an orderly appeal to the
Supreme Court. The Supreme Court stayed the injunction on August 1, 1992,
pending a filing of a petition for a writ of certiorari.
Such a petition was filed on August 24, 1992, and is currently
pending before the Court. If the Court grants the writ, it will hear the case and make a
decision on the merits during its next term.
That if the Supreme Court were to rule against the U.S.
Government and uphold the Second Circuit's decision, the Government
would be barred from
continuing to implement the President's Executive Order.
While it is the view of the United States Government that the
1951 Refugee Convention does not apply extraterritorially, this issue
is currently before the Courts. Furthermore,
the Government is already barred by the court order from screening or
returning to Haiti those relatively few Haitians who currently remain
at the Guantanamo Naval Station without first providing them access to
legal counsel. In other
words, those remedies which petitioners are seeking before the
Commission have already been granted or are within their reach in
litigation currently pending before the United States judiciary.
Domestic remedies are far from "useless" as alleged
by petitioners. At this
critical juncture of these complicated proceedings, it would be highly
intrusive and inappropriate for the Commission to fail to dismiss this
petition. Such action
would not accord with the requirements of Article 41(a) of the
That the exceptions to the exhaustion requirement contained
in Article 37(2) are inapplicable to petitioners'claim. That
petitioners' original complaint, and their response dated May 6, 1991,
were both filed prior to the initiation of the current lawsuit.
Since that time, the fallacies of petitioners' arguments have
become clear. Petitioners'
assertions that "there are no effective remedies to be
exhausted" and that the parties involved "have been denied
access to the remedies under domestic law" are clearly inaccurate
in light of the litigation pending today in the Supreme Court of the
United States on the merits of petitioners' claims.
Petitioners' efforts to exhaust domestic remedies are far more
than a "senseless formality."
Furthermore, petitioners have not been denied access to
remedies under domestic law. No
less than four separate cases, challenging various United States
policies toward Haitian migrants and involving countless judicial
proceedings, have been filed in the past twelve years.
Clearly, there is access to domestic remedies.
The exceptions of Article 37(2) and (b) are thus inapplicable.
That there has been no unwarranted delay in these proceedings
within the meaning of Article 37(2)(c).
Although several cases regarding the Government's policy toward
Haitian migrants have been filed by numerous plaintiffs over the last
few years, each has revolved around distinct and complex issues of
domestic and international law. Furthermore, both phases of the present litigation have
proceeded through the United States judicial system in an expeditious
manner. The second phase
of the present case - plaintiffs' challenge to Executive Order 12807 -
has progressed to the very highest level of the United States judicial
system within a mere two months.
That since the petitioners' claims are currently being
adjudicated in the domestic courts of the United States, they clearly
have failed to fully exhaust judicial remedies available in this
country. Therefore, the
petition fails to satisfy the exhaustion requirement of Article 37,
and the United States respectfully requests the Commission to declare
the petition inadmissible, in accordance with Article 41(a).
The United States Government qualified their submission by
stating that notwithstanding any reference to the merits of
petitioners' complaint mentioned in this communication, the United
States reserves the right to address more fully the merits of
petitioners' substantive arguments in the event there is a need to do
Because the United States believes that the complaint is
inadmissible, this communication does not address in detail the
interpretations of law and factual assertions presented in the
Petitioners' Response to United States Government's Request
That The Commission Dismiss the Complaint under Articles 37 and 41(a)
Of The Commission's Regulations Submitted December 31, 1992
The petitioners argue that in stark contrast to the U.S.
Government's suggestion before the Commission that there are
"available remedies" under domestic law, in the domestic
courts the U.S. Government has repeatedly and successfully argued that
there are no available domestic remedies because the courts may not
"intrude into this delicate area of the Nation's foreign
policy." Petition for Writ of certiorari, McNary v. Haitian
Centers Council, No. 92-344 (Aug. 1992), p.3.
That never before has a Government of the Western world
"interdicted" fleeing refugees on the high seas and returned
them to a country where they face persecution.
While the U.S. Government has called upon the dictatorship in
Haiti to comply with resolutions of the OAS, it has ignored the
communication from this Commission dated October 4, 1991, requesting
that the return of Haitians be temporarily suspended until the
situation in Haiti is normalized.
While the U.S. Government has condemned "in principle and
in practice" the British policy of forcibly repatriating
Vietnamese boat people fleeing to Hong Kong, N.Y. Times, Jan. 25,
1990, at p. A6, it continues to this day to involuntarily repatriate
Haitian boat people fleeing widespread political violence, bloodshed,
hunger, death, and disappearances.
That as required by Article 37, petitioners have exhausted
their domestic remedies. The U.S. Government incorrectly concludes that the issues
presented in this petition are "similar or identical" to
those which the U.S. Supreme Court will shortly consider in McNary
v. Haitian Centers Council, No. 92-444, and that the
"remedies which petitioners are seeking before the Commission
have already been granted or are within their reach in the McNary
v. Haitian Centers Council litigation ..."
U.S. Reply. Neither
of these assertions is accurate.
The petitioners state that the challenged interdiction program
was initiated in 1981 pursuant to a September 23, 1980, bilateral
executive agreement signed with the Haitian Government of dictator
Jean Claude Duvalier. Agreement
effected by Exchange of Notes, U.S.-Republic of Haiti, Sept. 23, 1981,
33 U.S.T. 3559, T.I.A.S. No. 10,241.
The agreement purports to authorize the U.S. to return
"detained vessels and persons to a Haitian port," while
exempting from return Haitians "determined to qualify for refugee
status." To implement the agreement in domestic law, President Reagan
issued Executive Order 12324. 46 Fed. Reg. 48,109 (1981).
That over the next ten years U.S. Coast Guard cutters
interdicted more than 25, 000 Haitians fleeing their country.
That to implement Executive Order 12324, Immigration and
Naturalization Service (INS) agents conducted brief
"screening" interviews to determine whether interdictees
made a credible showing of refugee status.
That, as was described in detail in petition, interviews took
place while the Haitians were handcuffed on the decks of the cutters,
cold, hungry, afraid and completely without access to legal assistance
or review of a decision to repatriate.
That not surprisingly, all but 20 of the 20,000 interdicted
Haitians were forcibly and involuntarily returned to Haiti.
(The petitioners restated some of the international human
rights articles violated, by the interdiction program, and the various
emergency applications filed due to the escalation of violence during
the filing of the petition up to the present time, and the
Commission's actions, argument omitted.)
That to the best of the petitioners' knowledge, the United
States Government ignored the Commission's request to suspend its
interdiction policy for humanitarian reasons, that because of the
danger to their lives, the Haitians should not be repatriated until
the situation in Haiti has been normalized.
That on November 19, 1991, the Haitian Refugee Center, Inc. (HRC),
and others filed an action (HRC v. Baker) in the U.S.
District Court for the Southern District of Florida
contending that the interdiction program violated domestic and
international law. HRC
v. Baker challenged the procedural sufficiency of the
"screening interviews" conducted by INS agents on Coast
Guard cutters. See
Haitian Refugee Center v. Baker, 953 F.2d 1498, 1502-03(11th Cir.) per
curiam), cert. denied, 112 S.Ct. 1245 (1992).
Plaintiffs alleged that: (1) the rights of HRC attorneys under
the First Amendment to the U.S. Constitution to meet with Haitians
held at Guantanamo were violated, (2) both international and U.S. law
prohibited the forced repatriation of Haitians, and (3) the screening
procedures to determine refugee status violated the interdiction
agreement, were arbitrary, and constituted an abuse of discretion
under domestic law (the Administrative Procedures Act).
That the United States District Court issued several
injunctions temporarily halting repatriations to Haiti.
That the U.S. Government successfully appealed each injunction
to the Eleventh Circuit Court of Appeals; all court orders temporarily
halting repatriations were dissolved.
See HRC v. Baker, 953 F.2d 1498, (11th Cir.)(per curiam),
cert. denied 112 S.Ct. 1245 (1992).
That on February 24, 1992, the U.S. Supreme Court denied
plaintiffs' applications for a stay of the mandates, and denied
plaintiffs' petition for a writ of certiorari.
That at that point the plaintiffs had fully and unsuccessfully
exhausted their domestic remedies.
That the Miami-based Haitian Refugee Center, Inc., a plaintiff
in HRC v. Baker, and one of the petitioning parties in this
case, has fully exhausted its domestic remedies.
It took its case to the U.S. Supreme Court which, at the urging
of the U.S. Government, refused to hear the matter.
The Haiti-based petitioning human rights groups clearly would
have even less standing than the U.S.-based Haitian Refugee Center to
challenge the interdiction program in the U.S. courts.
That petitioner JEANNETTE GEDEON, a Haitian interdicted and
summarily returned to Haiti in October 1991, has no standing to
somehow magically pursue domestic remedies in the U.S.
The petitioners have either exhausted or further exhaustion
would be utterly futile.
That on March 17, 1992, several Haitian advocacy groups,
including Haitian Centers Council, and the National Coalition for
Haitian Refugees, two of the petitioning parties in this case, filed a
new action in the United States District Court for the Eastern
district of New York, focusing on the rights of Haitian interdictees
who had been "screened in"(i.e., determined to meet the
threshold test of credible fear of return), and were being subjected
to second interviews at the Guantanamo facility without benefit of
counsel. Their second interviews were to determine whether to grant
waivers of grounds of exclusion relating to positive tests for the HIV
virus. See Haitian
Centers Council v. McNary, 969 F.2d 1326, 1331 (2nd Cir. 1992).
on March 27, the Federal District Court granted plaintiffs a temporary
restraining order blocking the forcible repatriation of 3, 446
Haitians remaining at Guantanamo who, the District Court judge
declared, "may face torture or death if repatriated to
Centers Council v. McNary, 92-CV-1258, pp. 28-29 (E.D.N.Y. apr 6,
1992). Relying on the
First Amendment and the Due Process Clause of the U.S. Constitution,
the District Court granted plaintiffs a preliminary injunction which
(1) required the INS to grant the plaintiff organizations
"access" to individual interdictees who previously had been
"screened in," and (2) enjoined the INS from re-interviewing
or repatriating interdictees who previously had been "screened
in," without first allowing them to communicate with counsel.
The Court certified a class of "screened in
plaintiffs" entitled to that relief.
That about two weeks later, on April 22, 1992, at the request
of the U.S. Government, the U.S. Supreme Court stayed the District
Court's order pending review of that order by the Second Circuit Court
of Appeals. That on June
10, 1992, the Court of Appeals issued its decision.
It reversed and vacated the preliminary injunction requiring
"access" to interdictees for the plaintiff organizations,
but affirmed the injunction that the several hundred remaining
interdictees in Guantanamo who had communicable diseases could not be
repatriated without being provided access to counsel.
Haitian Centers Council v. McNary, 969 F.2d 1326 (2d
Cir. 1992). The U.S.
Government did not did not appeal that limited order.
in May 1992, while the appeal of the first preliminary injunction was
still pending before the Court of Appeals, the U.S. Government claimed
that the number of people leaving Haiti by boat "surged
dramatically." See McNary
v. Haitian Centers Council, petition for a Writ of Certiorari,
etc., supra. The U.S.
Government stated that nearly 10,500 Haitians were intercepted by the
Coast Guard in the first 20 days of the month. Id. The temporary tent
camp at Guantanamo was "nearing capacity." Id. The U.S.
Government explained to the U.S. Supreme Court that: "At this
juncture the President had limited options.
In light of the saturation of Guantanamo and the Coast Guard
cutters, the unwillingness of third countries to accept any
significant numbers of Haitian migrants, and the continuing massive
outflow and attendant result of loss of life, the only practical
alternatives were either to bring all Haitian migrants directly to the
United States for screening or repatriate them all to Haiti
immediately upon interdiction without an interview."
the Bush Administration opted for the latter approach.
Executive Order No. 12807 was issued from President Bush's home
on May 24, 1992 (known as the "Kennebunkport Order"). It
permits the summary return of Haitian refugees, entirely eliminating
the interview previously conducted to determine whether Haitians would
be "screened in" for further consideration of their asylum
claims. The Executive Order also provides for processing of
applications for refugee admission to the U.S. at the U.S. Embassy in
Port-au-Prince. Over 10,000 Haitians have applied for refugee visas.
Only a handful have been granted.
while the Executive Order does not require screening interviews, it
states that "the Attorney General, in his unreviewable
discretion, may decide that a person who is a refugee will not be
returned without his consent."
Section 2(c)(3), 57 Fed. Reg. 23,134, 57 fed. Reg. 23,133
(1992). Under Coast Guard
instructions, an interdictee will not be repatriated immediately to
Haiti if the commanding officer believes that repatriation "would
place the interdictee in an immediate and exceptionally grave physical
danger, based on either the officer's observation or compelling
statements by the individual."
McNary v. Haitian Centers Council, Petition for a Writ
of Certiorari, supra. The petitioning parties in this case and their
counsel do not know any cases in which this exception has been
invoked. That it is
therefore clear that Coast Guard captains are granted autocratic,
boundless and unreviewable power over life-and-death decisions
affecting Haitian interdictees. Yet,
the Haitian interdictee is not granted any participation in the
process of that decision, nor is the decision subject to review by
anyone. Thousands of
Haitian boat people have been interdicted and summarily repatriated to
Haiti under the Kennebunkport Order.
on May 28, 1992, the plaintiffs in Haitian Centers Council v.
McNary applied for a temporary restraining order to bar
implementation of the President's May 24 Executive Order.
The District Court reluctantly denied the request, but
condemned the change in the U.S. policy in the harshest possible
terms, holding that "plaintiffs undeniably make a substantial
showing of irreparable harm..."
The court also wrote that:
It is unconscionable that the United States should accede to
the United Nations Protocol and later claim that it is not bound by
it. This court is astonished that the United States would return
Haitian refugees to the jaws of political persecution, terror, death
and uncertainty when it has contracted not to do so.
while outraged at the result, the District Court felt it was powerless
to order a remedy precisely because of the success the U.S. Government
had in HRC v. Baker case in convincing the Court of Appeals and
the U.S. Supreme Court that Haitians injured by the interdiction program
possess no remedies in the domestic courts (the opposite of the position
that the U.S. Government suggests in this case).
the plaintiffs appealed, and two months later the U.S. Court of Appeals
for the Second Circuit reversed and ordered the District Court to enter
a preliminary injunction stopping implementation of the Kennebunkport
Order. The Court of Appeals
stated that Title 8, United States Code, section 1253(h), and the
ratified Protocol Relating to the Status of Refugees, create parallel
rights of non-repatriation -- they bar the U.S. Government from
returning any migrant, wherever located, to the conditions of
persecution. That people
cannot be summarily repatriated without a determination regarding their
asylum claims. The Coast
Guard was essentially told to return to its ten-year-old practice under
Executive Order 12324 of providing a "screening" interview
prior to repatriation.
on July 29, 1992, the District Court entered a preliminary injunction in
accordance with the Second Circuit's decision, barring repatriation to
Haiti of "any interdicted Haitian" whose life or freedom would
be threatened on account of his or her political opinion.
See McNary v. Haitian Centers Council, petition for a Writ
of Certiorari, supra. However,
at the request of the U.S. Government, the U.S. Supreme Court, on August
1, 1992, granted a stay, allowing interdictions and returns to continue
pending the U.S. Supreme Court's review of the injunction.
for Haitians interdicted today there are no domestic remedies to
exhaust. Haitians are
seized on the high seas and immediately are returned to Haiti. They
cannot stop the repatriation by requesting transportation to Miami so
they may exhaust some domestic remedies.
That members and clients of the petitioning organizations are
today suffering forcible return to Haiti because of the stay order
issued by the U.S. Supreme Court in McNary v. Haitian Centers Council.
They have no further domestic remedies to exhaust in order to
stop the irreparable injury suffered through involuntary repatriation.
the issue the Supreme Court will decide in McNary v. Haitian Centers
Council focuses on the narrow question of the legality of
repatriation without an interview.
That is not the issue presented in this petition.
That here, as in HRC v. Baker, petitioners are challenging
the entire interdiction program, including the manner in which
interviews are conducted and the rights of interdictees during
interviews. That the
remedies which petitioners seek in this case are not, as stated by the
U.S. Government, "within their reach" in the Haitian Centers
Council case now pending before the U.S. Supreme Court.
U.S. reply at 3. Furthermore,
because the U.S. Supreme Court granted the U.S. Government a stay in
Haitian Centers Council, Haitians now being interdicted and repatriated
will receive no benefit from a decision in Haitian Centers Council even
if the decision finally goes in favor of the plaintiffs and against the
U.S. Government. As the
District Court stated in Haitian Centers Council, that some Haitian
forcibly returned "face political persecution and even death upon
their return." Haitian Centers Council v. McNary, 969 F.2d 1326,
1332-33 (2nd Cir. 1992).
the petition satisfies the exhaustion requirement of Article 37, and the
petitioning parties respectfully request the Commission to declare the
petition admissible. The
U.S. Government should be requested to address in detail the
interpretations of law and factual assertions presented in the petition.
The Response of the United States Government to Petitioners'
Argument submitted Feb. 10th, 1993
The United States Government reiterated its argument as contained
in its second submission above. It
argued that the petition should be dismissed because it is inadmissible
under Article 37 of the Commission's Regulations, that the case of Haitian
Centers Council, Inc., et al. v. McNary is scheduled for oral
argument in the Supreme Court on March 2nd, 1993, which is the substance
of the petitioners' argument, and therefore the petitioners have not
exhausted domestic remedies. (Full argument omitted.)
The Government also requested that the hearing scheduled before
the Commissioner's on February 26th, 1993, be postponed.
Two threshold issues are raised in this petition:
Have domestic remedies been exhausted, pursuant to Article 37 of
the Commissions Regulations?.
Was the petition timely filed pursuant to Article 38 of the
DOMESTIC REMEDIES HAVE BEEN EXHAUSTED PURSUANT TO
ARTICLE 37 OF THE COMMISSION'S REGULATIONS
There are several petitioning parties in this case.
Based on the alleged facts these are:
The Haitian Centre for Human Rights, Port-au-Prince, Haiti.
Centre Karl Leveque, Port-au-Prince, Haiti.
The National Coalition for Haitian Refugees, New York, N.Y.,
The Haitian Refugee Center, Inc., Miami, Florida, U.S.A.
The Haitian Centers Council, New York, N.Y., U.S.A.,
The Haitian-Americans United for Progress, Cambria Heights,
The Washington Office of Haiti.
Unnamed Haitian nationals who have been and are being returned to
Haiti against their will.
Article 37 provides that:
37(1) "for a
petition to be admitted by the Commission, the remedies under domestic
jurisdiction must have been invoked and exhausted in accordance with the
general principles of international law."
provisions of the preceding paragraph shall not be applicable when:
the domestic legislation of the State concerned does not afford
due process of law for the protection of the right or rights that have
allegedly been violated;
the party alleging violation of his rights has been denied access
to the remedies under domestic law or has been prevented from exhausting
there has been unwarranted delay in rendering a final judgment
under the aforementioned remedies."
37(3) "when the
petitioner contends that he is unable to prove exhaustion as indicated
in this Article, it shall be up to the government against which this
petition has been lodged to demonstrate to the Commission that the
remedies under domestic law have not previously been exhausted, unless
it is clearly evident from the background information contained in the
In this case the petitioners contend that the following rights
which are protected by the American Declaration of the Rights and Duties
of Man have been breached by the United States of America:
Article I, which provides that "every human being has the
right to life, liberty and the security of the person."
Article II provides that, "all persons are equal before the
law and have the rights and duties established in this Declaration,
without distinction as to race, sex, language, creed or any other
Article XVII provides that, "every person has the right to
be recognized everywhere as a person having rights and obligations, and
to enjoy the basic civil rights."
Article XVIII provides that, "every person may resort to the
courts to ensure respect for his legal rights.
There should likewise be available to him a simple, brief
procedure whereby the courts will protect him from acts of authority
that, to his prejudice, violate any fundamental constitutional
Article XXIV provides that, "every person has the right to
submit respectful petitions to any competent authority, for reasons of
either general or private interest, and the right to obtain a prompt
Article XXVII provides that, "every person has the right, in
case of pursuit not resulting from ordinary crimes, to seek and receive
asylum in foreign territory, in accordance with the laws of each country
and with international agreements."
It is quite clear that in light of the decision of the Supreme
Court on June 21st, 1993, in the case of Sale, Acting Commissioner,
Immigration And Naturalization Service, ET AL. v. Haitian Centers
Council, INC., ET AL, N0. 92-344, (this case was formally under the
nomenclature of Haitian Centers Council, Inc., et al. b. McNary, 969
F.2d 1326, 1332-33 (2nd Cir. 1992), in the appellate proceedings.) that
domestic remedies have been exhausted.
In summary, the Supreme Court held in that case that there was no
limitation on the President's power to repatriate undocumented aliens
intercepted on the high seas and, and that the right to non-refoulement
applies only to aliens who are physically present in the host country.
The effect of this decision from the highest court in the United
States of America, is that the petitioners have no remedy.
THE PETITION IS TIMELY FILED PURSUANT TO ARTICLE 38 OF THE
This argument is now moot in light of the fact that the most
recent decision in this matter, is the Supreme Court's decision in Sale
v. Haitian Centers Council, No. 92-344, which was decided on June
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
That the petition is admissible in relation to the petitioners
listed on page 40, Section VI, paragraph 1.
That the merits of the petition will be considered at the 85th,
period of sessions, together with any additional submissions by the
That the Commission places itself at the disposal of the parties
with a view to arriving at a friendly settlement in this case, on the
basis of respect for the human rights recognized in the American
Declaration of the Rights and Duties of Man.
That the Precautionary Measures issued by the Commission on March
12th, 1993, and referred to on pages 15 & 16, Section IV, paragraph
5, of this report, remain in force.
To order publication of this report.
(*) Commission member Prof. Michael Reisman abstained from participating in the consideration and voting on this report.