Review of Haitian asylum claims through In-Country Processing (ICP)—closed down since the invasion—was the only procedure available to fleeing Haitians. It was criticized as seriously flawed and incapable of providing consistently fair hearings for asylum applicants. The U.S. mischaracterization of the human rights situation skewed the asylum process at every stage. Human Rights Watch and the National Coalition for Haitian Refugees criticized the program's deficiencies, including its application of a stricter standard than that contemplated in the 1951 Convention Relating to the Status of Refugees and the apparent skepticism by U.S. interviewers regarding the veracity of Haitian claims of political persecution.101
Human Rights Watch and the National Coalition for Haitian Refugees were particularly concerned about the review of asylum claims involving rape. Numerous Haitian women sought political asylum on the grounds that they had been targeted and sexually assaulted as Aristide supporters. In February, the U.S. Embassy's refugee coordinator, Luis Moreno, estimated to Human Rights Watch that 25 percent of the principal applicants102 for asylum were women and that approximately 5 percent of these claimed to have been raped for political reasons.103
In our February 1994 interview, Moreno assured us, "Everything possible is done to steer these cases to women case workers . . . and the case workers are quite sensitized to the problem." But, contrary to Moreno's assurances, the U.S. asylum process not only disregarded rape as a human rights abuse but also failed to understand its function as a tool of political persecution and hence its legitimacy as the basis for an asylum claim. Olen (Sam) Martin, who until June 1994 was the INS officer-in-charge in Port-au-Prince,104 stated:
[The women] mostly blame attachés. I don't know if it is true or not—it must be true in some cases, but women have a tendency to blame the worst person they can think of to justify why it happened. It's hard to sort out imagination and what really happens. . . . They always say armed civilians, but again, it's perception versus whether they are really armed. . . . Attachés live in the same neighborhoods, everyone knows everyone. There have been some [asylum] cases approved based on a rape argument. [There can be] story inconsistencies—if the husband is sitting there you can figure it out. The way the woman acts when she tells the story, etc.105
Martin apparently believed that rape was a basis for asylum only if it was both politically motivated and premeditated:
If people really went after someone and did it, then the victim [of rape] would certainly have a case. But you have the intentionality question, did they set out to do it? We look for why they [the alleged perpetrators] went there [to the house]. If they went with the intent to rape, if it was an attaché, etc. You see the section chiefs or the military disputing with people over property, for example. The cases are very complex.106
To our knowledge, no legal requirement exists that a victim of persecution show that his or her attacker had formulated a premeditated intent to commit assault of any kind. Rather, to make a successful asylum claim under U.S. law, an individual must demonstrate a well-founded fear of persecution based on his or her actual or imputed political opinion, or other recognized status.107 Thus an individual targeted by the military or its civilian allies for actual or perceived support of Aristide should have his/her asylum claim reviewed on the basis of his/her ability to establish these criteria without distinction as to the type of abuse suffered—whether rape, beating orarbitrary detention. This standard should be applied without discrimination and should not be altered in light of the kind of abuse underlying an asylum claim.
As the ICP program was administered, Human Rights Watch and the National Coalition for Haitian Refugees doubted that women victims of political violence could receive a fair asylum hearing. Misconceptions about how rape functions as a form of political or other persecution and the lack of clear guidelines as to how to assess rape for purposes as the basis of an asylum claim only hampered the process. These problems needed to be remedied for those involved in the new screening procedures outside of Haiti, as well as those who processed claims through ICP, so that female asylum-seekers would receive fair asylum hearings.
Overcoming such barriers to women's ability to receive fair asylum hearings requires acknowledging the nature of rape as a tool of political persecution. In a May 1993 decision, the U.S. Board of Immigration Appeals (BIA) granted asylum to a Haitian woman who alleged that she had been gang-raped by three soldiers after they broke into her family home and identified her as an Aristide supporter. BIA found that she had demonstrated a well-founded fear of persecution on the basis of political opinion because she "suffered grievous harm in direct retaliation for her support of and activities on behalf of Aristide." This is the first BIA decision that explicitly recognized rape as a form of grievous harm that could be imposed in retaliation for political activities.108 In May 1995 BIA formally designated the case as a binding precedent for future asylum adjudication and thus officially acknowledged that women may suffer persecution in the form of rape.
In order to ensure that women's asylum claims are fairly interpreted and processed, Human Rights Watch and the National Coalition for Haitian Refugees also urged the INS to adopt guidelines to ensure that women's asylum claims received a full and fair hearing.109 On May 26, 1995, the INS issued revised instructive guidelines for adjudication of asylum cases based wholly or in part on gender. These guidelines are intended to make theasylum process more responsive to the particular circumstances female claimants have encountered. The guidelines also explain how an asylum applicant's gender may determine the nature of her claim. In other words, the guidelines recognize that certain kinds of harm, such as rape, may be gender-specific and that, in other instances, women may be targeted for persecution because they are women. These guidelines represent an important step toward recognizing that abuses of women's human rights that drive them into flight from their home countries often are political in nature and may constitute a form of persecution.
Haiti's military regime presided over a campaign of human rights violations aimed at destroying all forms of opposition to its rule. As part of this campaign of terror, the military and its auxiliaries targeted women known or perceived to be Aristide supporters with sexual assault. Soldiers, police and attachés also attacked women activists working with women's rights organizations and other social or political groups. The military regime failed both to denounce rape committed by its agents and to punish those responsible. In this environment—where no one was held accountable for gross human rights abuses—women had no protection against rape and no way of seeking redress after they were assaulted.
Haiti's military regime compromised the integrity and autonomy of the entire criminal justice system. The police operated as part of the military, and both lawyers and judges were constantly harassed and intimidated by soldiers and police. Thus all aspects of law enforcement in Haiti—from investigation of reported crimes to trying alleged criminals—were controlled by the military, which was itself responsible for perpetuating and sanctioning abuse. As a consequence, rape victims knew that they could not expect full and fair investigation of crimes committed against them. Moreover, women feared retaliation at the hands of police should they attempt to report rape. These factors, and the fact that women are stigmatized as rape victims, made women extremely reluctant to report rape either to authorities or to those monitoring the human rights crisis in Haiti.
Nonetheless, reports of rape in Haiti under the Cédras regime pushed the international community and U.S. policy makers to recognize the function of rape and sexual assault as weapons of political persecution. We commend the efforts of the UN/OAS civilian mission and the Inter-American Commission on Human Rights to document and denounce rape as an instrument of repression. Their documentation was crucial to establishing the extent of the human rights crisis in Haiti and to identifying those responsible for abuse.
In the end, the U.S. government acknowledged the use of rape as a tool of political repression and apologized for casting doubt on the credibility of the reporting of U.S. human rights organizations. However, it first failed both to denounce rape adequately as a human rights abuse and to create conditions for the fair review of asylum claims based on sexual assault.
We urge that while the Haitian Truth Commission has dedicated itself to documenting and exposing human rights violations that took place in Aristide's absence, and while Aristide has created a Ministry on the Status and Rights of Women to address women's concerns and coordinate women's issues throughout the country, these efforts be supplemented by substantive changes to the criminal code and reform of the judicial system in Haiti to afford women victims of political, other persecution and crimes such as rape and sexual assault, legal redress. What is required is a mandate from Aristide's government reiterating the absolute necessity of implementing such changes.
102 The "principal applicant" is the person whose name is on the asylum application, as opposed to dependent family members who, if the principal applicant were granted asylum, would also gain asylum.
103 Interview, Port-au-Prince, February 8, 1994.
104 He was replaced in June 1994 by Jean Christianson.
105 Interview, Port-au-Prince, February 11, 1994.
107 Also eligible for asylum are those who fear persecution on the grounds of race, religion, nationality or membership in a particular social group.
108 Deborah Anker, Law of Asylum in the United States (American Immigration Law Foundation, forthcoming winter 1996), p. 117. We are grateful to Ms. Anker for her assistance in locating and analyzing this case.
109 See Nancy Kelly (Women Refugees Project), Deborah Anker (Women Refugees Project) and Michele Beasley (Women's Commission for Refugee Women and Children), "Proposed Guidelines for Women's Asylum Claims," presented to the Immigration and Naturalization Service on April 19, 1994. Human Rights Watch Women's Rights Project participated in the preparation of the proposed guidelines.
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