Report No. 51 (1996) IACHR. Case No. 10.675 (Estados Unidos de America)

• Year: 1996
• Case Number: 10.675
• Report Number: 51
• Respondent State: United States
• Court: Inter-American Comission of Human Rights
• Case Type: Merits
• Alleged Victim: Haitian Interdiction

REPORT Nº 51/96[1] DECISION OF THE COMMISSION AS TO THE MERITS OF CASE 10.675 UNITED STATES[2] March 13, 1997 I. SUMMARY OF ALLEGATIONS: 1. On October 1, 1990, the Commission received a petition submitted on behalf of the following petitioners: a. The H. Centre for Human Rights, Port-au-Prince, Haiti. b. C.K.L., Port-au-Prince, Haiti. c. The National Coalition for H. Refugees, New York, N.Y., U.S.A. d. The H. Refugee Center, Inc., Miami, Florida, U.S.A. e. The H. Centers Council, New York, N.Y., U.S.A. f. The H.-Americans United for Progress, Cambria Heights, U.S.A. g. The Washington Office of Haiti. h. J.G.. i. D.L..[3] j. F.J..[4] k. Unnamed H. Nationals who have been and are being returned to Haiti against their will.[5] 2. The petition alleged that H. boat people have been and continue to be interdicted and returned to Haiti pursuant to: (a) the H. Migrant Interdiction Program established by Proclamation 4865 and E.O. 12324 issued by then President Ronald Reagan on S. 29, 1981, and (b) a cooperative agreement between the U.S. Administration and the Duvalier regime entered on S. 23, 1981, through an exchange of diplomatic notes. 3. The petition further alleged 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. T. denial was 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. D. promises made by the H. Government (in diplomatic exchange of letters) that returnees would not be punished for leaving Haiti, boat people involuntarily interdicted and returned by the United S.s Government have been routinely detained upon their return to Haiti. 4. On May 7, 8, and 13, 1990, forty-three (43) returnees, including some H. who had been detained in Immigration and Naturalization Service's (INS) Krome Detention Center in Miami, Florida, were immediately arrested by H. 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 J.5., 1990, another group of thirty-one (31) H. deported from Krome were arrested upon arrival in Haiti and they alleged, 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 petitioners alleged that they were informed and believed that boat people who departed in whole or in part because their lives or freedom were threatened almost always faced an even greater threat following their interdiction and forcible return to the military authorities in Haiti. 5. An affidavit of a dissident involved in organizing demonstrations against the military regime in Haiti stated 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." Since the inception of the program over 361 boats carrying 21,461 H. have been intercepted, and only six H. have been allowed to come to the U.S. to file asylum claims. 6. On October 3rd, 1991, the petitioners filed an Emergency Application For Provisional OAS Action to Halt the United S.s' Policy of Interdicting and Deporting H. Refugees. It stated inter alia, that the United S.s Government had continued interdicting H. asylum seekers and expelling those who entered the United S.s. The interdiction policy deprives H. of a fair opportunity to articulate and substantiate claims for political asylum, this was concretely established by the results of the program. An interdicted H.'s likelihood of being considered to possess a legitimate claim was approximately .005%. A H. who avoided interdiction and arrived in the United S.s had at least a 5% chance of being considered to possess a legitimate asylum claim. The strength of the asylum claims did not suddenly change once H. boat people got around the interdiction program, instead, what changed was the opportunity to be heard. 7. On February 6th, 1992, the petitioners filed an Emergency Application for Provisional OAS Action to Halt the United S.s Government's Policy of Returning H. Refugees Interdicted since the Military coup of S., 30, 1991. It stated that the brutal and violent military coup which ousted democratically elected President Jean-Bertrand A. had plunged Haiti into a cycle of political violence which had claimed over 1,500 lives. M. of the interdiction program despite the coup had deprived H. fleeing the military junta of a fair opportunity to articulate and substantiate claims of political asylum. 8. According to information provided to the petitioners' counsel in a telephone conversation with an Immigration and Naturalization Service (INS) Press Officer on February 5th, 1992, the INS estimated that "since N. of 1991, 15,081 H. had been interdicted." H. only 1.8% of those H. permitted to present asylum claims, would actually be given asylum. S. Refugee Reports, Vol. XII, No. 12, Dec. 30, 1991 at 12.) Given the ongoing violence in Haiti, the inability of the interdiction program to fairly identify those with legitimate claims of asylum, and the inability of the United S.s Government to meaningfully ensure that the H. returned would not be harmed, the H. Interdiction Program represented a serious violation of several provisions of international law. (A. allegedly violated are listed in part II of this report.) ; 9. On February 11th, 1992, the petitioners submitted a Supplemental Filing in support of the Emergency Application filed by them on February 6th, 1992. They alleged that the United Nations Officers conducted four interviews at the United S.s Government's Naval base in G., and that the interviews allegedly removed all doubt that H. interdictees forcibly repatriated by the United S.s Government had been, and would be brutalized by the military Government upon their return to Haiti. The interviewees all fled Haiti for political reasons and were afiliated with pro-A. parties.[6] They alleged that Government soldiers were present on the docks when the interdictees were repatriated, and asked for the names and addresses of repatriated interdictees after they had been processed by the H. Red Cross. 10. L. 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 H.. 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 Government.[7] II. IN THIS CONNECTION THE PETITIONERS ALLEGE VIOLATIONS OF: a. A. I, II, XVII, XVIII, XXIV, XXVII, of the American Declaration of the Rights and Duties of Man (American Declaration). b. A. 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. c. A. 55 and 56 of the United Nations Charter (U.N. Charter) d. A. 3, 16(1) and 33 of the United Nations Convention Relating to the Status of Refugees, J. 28, 1951, 189 U.N.T.S. 150 (U.N. Refugee Convention) e. The United Nations Protocol Relating to the Status of Refugees (U.N. Refugee Protocol), opened for signature J. 31, 1967, entered into force for the United S.s N. 1, 1968, 19 U.N.T.S. 6224, T.A.I.S. No. 6577. f. A. 8, 13(2) and 14 of the United Nations' Universal Declaration of Human Rights (Universal Declaration) g. Customary international law which enjoins the United S.s 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. III. THE PETITIONERS REQUEST: 11. D. the pendency of this petition the petitioners made several requests to the Commission. I. in these requests were inter alia,[8] that the Commission should resolve: a. To seek immediate, interim relief from the United S.s Government in the form of temporary suspension of the H. Migrant Interdiction program, and the deportation of interdicted H. to Haiti until the restoration of lawful order in Haiti, and the subsiding of the grave personal danger that now faces H. from random and state-sponsored violence, ("Migrant Program") b. To declare that the Migrant Program constitutes a serious violation of internationally protected human rights, including A. XXVII (the right to asylum,) XXIV (the right to petition,) and XVIII (the right to effective remedy) of the American Declaration of the Rights and Duties of Man. c. In the alternative, if such relief is denied, to insist that the United S.s Government implement policies and procedures which ensure that the program...