|
  
IV. DEPORTATIONS AND MASS EXPULSIONS
Over the past decade, the Dominican Republic has deported hundreds of thousands of Haitians to Haiti, as well as an unknown number of Dominicans of Haitian descent.43 On several occasions, most recently in November 1999, the Dominican authorities have conducted mass expulsions of Haitians and Dominico-Haitians, rounding up thousands of people in a period of weeks or months and forcibly expelling them from the country. Snatched off the street, dragged from their homes, or picked up from their workplaces, "Haitian-looking" people are rarely given a reasonable opportunity to challenge their expulsion during these wholesale sweeps. The arbitrary nature of such actions, which myriad international human rights bodies have condemned, is glaringly obvious.
But although they differ in scale and, to some extent, in their mechanics, the deportations that take place in the Dominican Republic on a daily basis are in many ways similar to these reoccurring waves of mass expulsions. Suspected undocumented Haitians are singled out for deportation based on the color of their skin. Once in migration or military custody, they are frequently granted little or no opportunity to prove their legal status. Low-level army or migration officials make the decision to deport them, and that decision is final.
In a typical case, a Haitian immigrant or Dominican of Haitian descent is stopped on the street by a Dominican immigration or army official. The official may ask him or her for documentation or, in occasional instances, demand a bribe. Some deportees report that if they produce documentation, it is confiscated or destroyed. The person believed to be in the Dominican Republic illegally may be detained briefly in an army garrison or other holding facility, but is often transported directly to the border by bus. In a few instances, deportees report having been physically abused by Dominican officials prior to deportation.
As a rule, deportees are given no opportunity to contact their families, retrieve their belongings, collect their paychecks, or in any way prepare for departure. Dropped off at the border and told to walk to the other side, they typically arrive in Haiti with little or no money, indeed, often with nothing more than the clothes on their back. They may have to beg for food and for a place to sleep.
These abusive deportation practices do not only affect the lives of deportees themselves. Family members of deportees, who may have no idea what happened to the deportees except that they did not return home at night, obviously suffer as well. Children separated from their parents are likely to be particularly traumatized. Moreover, if to a lesser extent, all those at risk of deportation are affected, even if they are never actually deported. The threat of deportation causes Haitians and Dominicans of Haitian descent to restrict their travel, avoiding cities and remaining within the bateyes, which migration officials rarely enter. Indeed, many believe that the country's deportation policies - by discouraging Haitian laborers from venturing outside of the bateyes - help to ensure a continued supply of cheap labor for the sugar industry.44
Deportees' Case Histories
Human Rights Watch interviewed a number of Haitians and Dominico-Haitians who had been deported, most of them within the past year. All of our interviewees were picked up in relatively small-scale deportation operations, having been transported to the border and expelled together with fifty to 100 other deportees.
Nearly all of the people we interviewed were outside of the bateyes when they were picked up by the authorities, and the large majority of them were picked up in the cities, including several in Santo Domingo. Although immigration sweeps are occasionally conducted in the bateyes,45 it is clear that Haitians and Dominico-Haitians run a much higher risk of detention and deportation when they enter urban areas. Indeed, Human Rights Watch visited a number of bateyes whose inhabitants told us that the migration authorities never entered there.46 And when questioned on the topic, the subdirector of the migration department freely admitted that his officials did not look for people in the bateyes.47
All of Human Rights Watch's interviewees were black, and they believed that they were stopped because of the color of their skin. "In [the officials'] view, blacks are Haitian," claimed one Dominico-Haitian. "It doesn't matter if you were born here,"48
The following are some representative case histories.
David Pere Martínez
Born in the Dominican Republic, David Pere Martínez grew up in Batey 7, a small community in the sugar cane region near Barahona, in the southwest of the country. Before February 2001, when he was deported, he had never been to Haiti.49
Martínez, age twenty-one, was walking along Máximo Gómez Street in Santo Domingo to work at a construction site when a group of military officials stopped him. Even though Martínez is Dominican - his Haitian roots go back three generations to his great-grandparents - the guards insisted that he was "from Haiti." When he tried to explain that he was born in the Dominican Republic, the officers hit him twice and forced him onto a bus. About twenty other dark-skinned people were already on the bus. The bus transported the group directly to the border at Jimaní, where Dominican officials ordered them to cross into Haiti on foot.
Martínez arrived in Haiti disoriented, alone, and scared. He had never visited the country before and was unable to speak or understand Creole. He had not eaten since he was arrested, but he did not have any money so he was forced to beg for food from vendors. He ended up meeting a family of Spanish-speaking vendors from the mountains who offered to let him live with them if he would work on their farm.
Meanwhile, Martínez's cousin, who had witnessed Martínez's arrest, sent word to his family that he had been deported. Fearing for his young son's safety, Martínez's father went to search for him in Haiti. After two months of tireless searching, his father found him in the market in Malpasse, Haiti. Martínez's father, who was also born in the Dominican Republic, had a valid Dominican identification card, and together with his son he managed to reenter the Dominican Republic and return home.
Since the deportation, Martínez has felt trapped in Batey 7, where the only employer is the Barahona sugar mill. He would like to return to Santo Domingo, where he would be able to find higher-paying work under better conditions, but is afraid that he will be deported again if he returns. Even though he has obtained a special certificate from the local police that attests to his Dominican citizenship and provides his identification card number, he feels at real risk of summary deportation. 50
Johnny La Guerre
Johnny La Guerre has not been able to see or contact his wife and three young children in almost a year - ever since he was deported. La Guerre was born in Jacmel, Haiti, but moved to the Dominican Republic in 1963, when he was twenty years old.51 He came to the Dominican Republic legally during a period when the Haitian government contracted with the Dominican Republic to supply cane workers, although his work authorization has long since expired. Placed with the La Romana sugar mill, he lived in a house near the sugar fields for almost forty years. Although La Guerre's first language is Creole, after so many years in the Dominican Republic his Creole is peppered with Spanish words.
One day in October 2000, when La Guerre was on his way home from work, an immigration official stopped him and barked, "You, I am going to send to Haiti." According to La Guerre, the official never even asked to see any identification. Instead, he put La Guerre on a bus that already held several dozen people. Dominican officials continued to pick up other people from the street for some time. The guards hit those who resisted arrest. Once the bus was full, the guards took them to a army garrison in Monte Plata, an inland town. They spent one night in the garrison and at 8 a.m. the next day they were taken to Jimaní, the Dominican border town, by bus. At the border, "the guards opened the gate and said `go.'" Interviewed the following year in Fonds Parisien, a town just on the Haitian side of the border, La Guerre described his first days in Haiti: "I didn't know a soul here. I had to beg for food and sleep on the floor of a local restaurant." Ultimately, a member of a local nongovernmental association helped him find a place to stay. He has been able to support himself by tending animals just outside of town.
Since the deportation he has not been able to contact his wife, Andrenie Joseph, or his three children - Manuel, André, and Jean - the youngest of whom is only four years old. His family's home has no telephone, nor does it even have a real address; it is simply a shack adjoining a sugar cane field in Batey Cuja, La Romana.
Anxious to inform his wife of his whereabouts, La Guerre told Human Rights Watch: "I can't continue without her." He wants to return to the Dominican Republic to get his family and his belongings, but he can not re-cross the border without documents.
Jorge Rene Méndez
By age twenty-three, Jorge Rene Méndez, a third-generation Dominican of Haitian descent, had been deported from the Dominican Republic to Haiti twice.52 The first time he was deported, on March 1, 1999, Dominican migration agents grabbed Méndez off Máximo Gómez Street in Santo Domingo and forced him onto a bus holding about fifty other detainees. Méndez said that they never asked to see his documents or questioned him about his legal status. The bus cruised the streets of Santo Domingo, picking up more undocumented Haitians and Dominicans of Haitian descent throughout the city until it was full. The guards then took them to a jail in San Cristobal, where they joined hundreds of other detainees who were being held there awaiting deportation.
Jorge spent several nights in jail. Each day, the guards would herd about one hundred people onto a large bus and transport them to the border. When Méndez was finally transported to the border at Jimaní, in the southeastern Dominican Republic, he was ordered off the bus and forced to cross the border on foot. He arrived in Haiti, for the first time in his life, alone, lost, and penniless. For eight days, he begged for food and shelter until a buscón (a cross-border smuggler of people) offered to take him back to the Barahona sugar mill, where his family still works. At the border, the Dominican guards waved the buscón through the border crossing without checking the documents of any of his companions.
Less than a year later, on February 25, 2000, Dominican immigration officials stopped Jorge again while he was walking to work on Calle Duarte in Santo Domingo. When they demanded his identification papers, he showed them a photocopy of his cédula (official identification document). The guards ripped it up and put him onto a bus, already crowded with some eighty other suspected illegals. Without stopping, the bus transported them directly to the border at Jimaní.
For five days, Méndez begged for food and shelter in the nearest Haitian border community. On the fifth night, after the official border crossing had closed, Méndez reentered the Dominican Republic on foot. He then walked more than eighty kilometers to return to his family home in Batey 7. During the day, he subsisted on wild mangoes; at night, he slept in roadside drainage ditches.
Although Méndez was born in the Dominican Republic and has a Dominican cédula, he will not return to Santo Domingo because he is afraid that he will be deported again.53 Méndez was able to earn a respectable salary working in construction in the capital, but there is no demand for construction workers in Batey 7, where he now lives with his family. In Batey 7, the main employer is the Barahona sugar mill, where Méndez's parents and grandparents worked all of their lives. Sugar mills pay much less than construction companies, barely enough to live on. Trapped in Batey 7 by the threat of deportation, however, Méndez may not have another option.
Lucía François
"Every day when I wake up, I'm thinking about my kids."
Dominican immigration officials were deaf to Lucía François's pleas to let her collect her two young children before she was deported. As a result, when Human Rights Watch interviewed her, she had not seen her six- and four-year-old daughters in six months.54
François was born in Haiti in 1969 and came to the Dominican Republic in 1993. Between 1993 and 1999, she had five children, all of whom were born in the maternity ward of the Altagracia Hospital in Santo Domingo.
In February 2001, she was walking to the bus station on a street in Santo Domingo with her three eldest children, her sister, and two of her sister's children, when uniformed Dominican officials stopped her and requested to see her documents. When she told them that they did not have any documents, the officials ordered the group to board a bus that was parked nearby and took them to a police station on the other side of the capital.
François, her sister, and their children spent the night in the police station with about fifty to 100 other detainees. They slept on mattresses on the floor in an open-air courtyard. They were given water, but no food. They saw guards hit other detainees.
The next morning, they were taken to the border at Dajabón in a bus with a group of other detainees. Although François was originally from Haiti, she grew up in Jacmel, hundreds of kilometers from Ouanaminthe, the town on the Haitian side of the border where she was left. Since she didn't know anyone in the area, she walked through the streets begging for a place to stay. Ultimately, a woman took pity on François and her family and offered to let them stay in her house in Ferié, a neighboring village. That night, François, her sister, and their children, the youngest of whom was only two years old, made the four hour walk to Ferié. François recalled that her children were "very tired."
François and three of her children are still living in Ferié, relying on the generosity of the woman they met in Ouanaminthe. François has not been able to see or contact her other two children, Diela, age six, and Yanne, age four, since being deported. Nor has she been able to contact her husband. François told Human Rights Watch, "I feel like I'm going crazy. I haven't been able to talk to anyone from home. I don't know if they're alive or dead. I want to see my children. . . . Every day when I wake up, I'm thinking about my kids."
François's sister, Delicina François, was also forced to leave behind five young children and has been unable to contact her husband of eleven years since being deported.55
Marlene Mésidor
"You came to the Dominican Republic with nothing and that is how you will leave."
Marlene Mésidor, her husband, and their children were taken from their home at dawn, crowded onto a bus, and dropped off that same day three hundred kilometers away in Haiti.56 Early in the morning of December 1, 2000, immigration officials banged on the door of Mésidor's home in Villa Faro. They yelled, "Immigration!" When she told them that she did not have papers, they ordered her, "Get out!" When her husband tried to put on his shoes, the immigration officials threatened to hit him so he got on the bus barefoot, in his pajamas. When Mésidor asked the officials what would become of her belongings, they told her, "You came to the Dominican Republic with nothing and that is how you will leave."
Mésidor, her husband, and her four children, all under the age of ten, were crowded onto a bus that already held about sixty other people. They traveled all day on the bus, without food, until they reached the border crossing at Jimaní, where they crossed on foot.
Once in Haiti, they begged a ride to the house of Mésidor's mother-in-law in the town of Fonds Parisien, where they still lived when Human Rights Watch visited. Marlene described the deportation, "It was the worst day of my life. I was so worried about my children."
Fayette Baltazar
Although he was born in Fonds Parisien, Haiti, Fayette Baltazar spent nearly his entire working life in the Dominican Republic.57 He entered the country legally in 1958 as a sugar cane cutter, laboring in the fields near San Pedro de Macoris and living in Batey Cecilia. Still working as a cane cutter into his late sixties, he cut his finger one day in December 1999 and had to seek medical attention in a hospital. On his way back from the hospital, far from his home, he was picked up by three members of the military: a sergeant and two soldiers. Without even asking to see his papers, they took him to an army garrison, held him there for an hour, and put him on a bus to Haiti that same day. "I arrived without a penny in my pocket," he told Human Rights Watch.
Now, at age sixty-nine, Baltazar lives with his brother in Fonds Parisien, near the border of the Dominican Republic. To survive, he tends animals.
Barahona Market
Padre Pedro Ruquoy told Human Rights Watch about a February 2001 immigration sweep of the Barahona market in which approximately eighty suspected Haitians were detained every day for eight days.58 According to Padre Ruquoy, Dominican migration officials picked people up from the market and detained them in San Cristobal prison for several hours. When Padre Ruquoy visited the prison, he counted approximately 150 detainees who had been placed in the general prison population and denied food. Detainees who could not present valid Dominican identification documents were loaded onto a bus each day and transported to the border. None of the deportees were permitted to collect their belongings or contact their families prior to deportation.
Mass Expulsions
Mass expulsions of Haitians and Dominico-Haitians, in which many thousands of people are expelled in a matter of weeks or months, are another notable feature of the Dominican Republic's deportation policy. These operations are military-led, as only the military has the resources necessary to carry out such large-scale campaigns. In general, the decision to launch such campaigns appears to be a highly political one, meant to send a political message not just to respond to immediate migration concerns.
The last decade has seen at least three waves of mass expulsions - in 1991, 1997, and 1999 - and, in 1996, a somewhat smaller wave of expulsions. During each of these episodes, bands of soldiers rounded up thousands of "Haitian-looking" people in the communities around sugar cane plantations, loaded them onto buses and trucks, and transported them en masse to the Haitian border. While even under normal deportation procedures deportees are given insufficient opportunity to contest their deportation, during mass deportations the arresting officials make little or no effort to ascertain deportees' legal status. The sole, overriding priority on such occasions is to clear the country of large numbers of Haitians.
The infamous 1991 wave of mass expulsions was triggered by international pressure on the Dominican government to improve its treatment of Haitian cane cutters, and in particular to stop the practice of forced labor.59 In June, not long after a U.S. television network broadcast a special report documenting the Dominican Republic's abusive labor practices, and immediately after the U.S. Congress held hearings on the question, then-President Joaquin Balaguer issued a decree ordering the deportation of various categories of undocumented Haitians.60 Acknowledging that international pressure provoked the decree, Balaguer warned that an "ominous campaign . . . has been unleashed against the [Dominican Republic] from outside."61
A few days later, the army began rounding up and expelling thousands of suspected Haitians, whether or not they fell into the categories covered by the decree. Between June 18 and the end of September, some 35,000 suspected Haitians were deported or had fled the country fearing deportation.62 The massive deportation effort ended not long after the September 1991 coup that overthrew Haitian President Jean-Bertrand Aristide.
Presidential elections held in May 1996 sparked a smaller burst of deportations, as politicians manipulated anti-Haitian sentiment to sway voters.63 Making repeated references to the Haitian ancestry of black Dominican candidate José Francisco Peña Gómez, competing candidates claimed that over 100,000 Haitian nationals were illegally incribed on the voter rolls. In the weeks preceding the election, nearly 5,000 suspected Haitians were deported.
In early 1997, the Dominican Republic again launched a sweeping campaign to expel undocumented Haitians. Mass deportations began in January, apparently in response to an angry public debate that had erupted over government plans to recruit additional Haitian cane cutters.64 In two months, an estimated 25,000 suspected Haitians were expelled from the country.65
The most recent massive deportation campaign took place in November 1999, again in an apparent backlash against international pressure. The large-scale sweeps began just after the Inter-American Commission on Human Rights issued a critical report on human rights conditions in the Dominican Republic that included a chapter on the mistreatment of Haitian migrant workers.66 Although estimates vary, it is thought that 10,000 to 20,000 people were expelled to Haiti during November.67
On November 22, 1999, in response to an emergency petition filed by several human rights groups, the Inter-American Commission issued precautionary measures against the Dominican Republic. The Commission's order called upon the Dominican authorities to cease the mass expulsion of foreigners, and to respect due process norms in conducting future deportations.68
Even aside from mass expulsions, smaller-scale deportation sweeps also respond to political factors, at least on occasion. The most prominent recent example was the collective expulsion in April 2001 of Haitians who were falsely accused of burning a Dominican flag. The incident, described above, resulted in the deportation of 137 people.69 Elena de la Rosa, one of the deportees, was forced to leave behind her five children, the youngest of whom was only six months old and still breast-feeding.70
Numbers of Deportees
Besides the waves of collective expulsions, more routine deportations are conducted on a daily basis. It is difficult, however, to reliably establish an average or ordinary deportation rate, as estimates vary widely, and the rate itself varies greatly over time. The most that can be said with certainty is that well over ten thousand deportations take place each year, with the true figure perhaps reaching thirty thousand.71
According to the Direction General of Migration, Dominican migration officials deported 6,331 Haitians in the first four months of 2001.72 Official statistics indicate that the government returned 14,639 Haitians in 2000, 17,524 in 1999, and 13,733 in 1998.73 Monthly levels reportedly ranged from zero to 4,734.74 The subdirector of Haitian affairs indicated that migration officials only deport an average of eighty to ninety Haitians per week, while the head of the army said that, in conjunction with the Migration Department, his force deports an average of 2,000 Haitians a month.75 But, he cautioned, "it varies a lot each month." The Human Rights Clinic of Columbia University Law School, citing a number of official and non-official sources, similarly estimated that deportations are carried out at the rate of approximately 2,000 per month.76
The Rules Governing Deportations
Law 95 and Regulation 279
Dominican Law 95 and Regulation 279 set out the rules governing domestic deportation procedures.77 In principle, they extend considerable due process protections to potential deportees. These paper protections, however, are largely ignored in practice.
Under Law 95 and Regulation 279, Dominican immigration officials can initiate an investigation into an individual's immigration status if they have reason to believe that the person is deportable.78 If the investigating official determines that the suspect is deportable, the official must request an arrest warrant from the Director General of Migration. The request must state the facts of the case and the specific grounds for deportation. If the suspect does not admit to the charges of deportability, the immigration official must present proof of his or her deportability and the suspect must have an opportunity to rebut that proof. The proof presented by the immigration official and the suspect must be sent to the secretary of state of the Interior and Police, who will render a final decision.
Law 95, like Regulation 279, dates back to the Trujillo era. Unsurprisingly, the Dominican legislature has been debating its revision for some time.79 In 2000, the legislature drafted a migration reform bill, but voted against its adoption. A new migration bill was introduced in the Senate in July 2001.
Bilateral Agreement
A protocol of understanding signed by Haiti and the Dominican Republic in December 1999 further regulates the treatment of deportees.80 In that document, the Dominican Republic agreed to improve its deportation procedures in several ways. Specifically, the Dominican government promised: a) not to deport Haitians at night or during the afternoon on Sundays or holidays; b) to avoid separating nuclear families (parents and young children); c) to deport Haitians only through the Jimaní, Dajabón, Elías Piña, and Pedernales border crossings, rather than the country's less accessible crossings; d) to allow deportees to collect their personal belongings and retain their identity documents; e) to provide each deportee with a copy of his or her order of deportation and; f) to give the Haitian authorities notice of repatriations.81
Government Claims
High-ranking migration officials insisted to Human Rights Watch that deportations are conducted with strict adherence to the requirements of the law. To begin with, explained Rómulo de los Santos, the Migration Department's subdirector for Haitian affairs, migration agents always have probable cause to suspect that an individual is an undocumented Haitian prior to making a stop. "We receive lots of information," he said.82
He continued:
People call in and complain: "Haitians are around here; they're not working, hanging out, bothering people, selling drugs." When that happens, we send a team out.
When asked how migration officials recognize Haitians, the subdirector first said that they are recognizable "by their way of living." "They're poorer than we are," he explained. "They have terrible homes." Also, he added, Haitians are recognizable by "their way of walking."
Haitians also have "rougher skin," de los Santos stated, "and they're much blacker than we are. They're easy to recognize."
Both the head of the Migration Department, Miguel Vásquez, and his subdirector, de los Santos, insisted that the goal of the department was not to deport all Haitians but only those who cause trouble. "We're trying to crack down on the mafias," said Vásquez. "There are Haitian women who rent their children to beg in the streets."83 Rather than deporting workers, Vásquez claimed, the department goes after those who are "unemployed and in the street begging" or "gambling and drinking rum in the street."84 De los Santos echoed such comments, saying that it was the department's job to stem the "invasion" of young Haitian delinquents: "the ones who act like they're in the Haitian capital, drinking and dancing."85
These officials told Human Rights Watch that potential deportees are always given the opportunity to defend against deportation by showing Dominican documentation. In the event that a suspect lacks documentation, migration officials are said to question the suspect to ensure deportability. If the migration inspector is satisfied that the suspect is deportable, he can detain the individual for a brief period, typically no longer than forty-eight hours. During that period, the migration inspector submits a request for deportation to the subdirector of Haitian affairs, who in turn asks the director general to sign off on the order of deportation. If the suspect is deemed deportable, he or she is said to have the opportunity to contact family and to collect his or her belongings before being transported to the border by bus.86 Yet none of the deportees Human Rights Watch interviewed concurred with this account.
Migration officials claimed that the military never carries out independent deportation operations. The head of the army, however, openly admitted that the army deports Haitians without the Migration Department's involvement.87 Although he described the army as an auxiliary to the Migration Department in this area, he said the army frequently handles deportations when no migration officials are available. His admissions were consistent with the accounts of deportees.
The subdirector of Haitian affairs also stated that Dominican officials abide by the 1999 bilateral agreement by, among other things, always notifying the Haitian Consulate prior to conducting a deportation.88 Human Rights Watch interviewed the Haitian consul in Barahona, however, who told us that the notification requirement was never complied with. He explained:
They're supposed to inform us so that we can make sure the deportee's rights are respected: we can make sure he gets paid, if he's owed money, and we can make sure his family knows about him. But we never hear a thing from them. We have to get our information from the press. The Dominican authorities used to occasionally send a list of deportees via fax, but not very often, and now we haven't received anything for about a year.89
Finally, migration officials stated that deportees are normally not detained, but instead are sent to the border within two to three hours of being picked up. In rare cases, they said, deportees may be held at a small detention center in Santo Domingo called the Vacacional de Jaina. Deportees, in contrast, frequently described being held in military garrisons, jails, and police stations. When asked about the practice, the head of the army freely admitted that military facilities were used to hold Haitian deportees. "We hold them until we collect enough to fill up a bus," he explained. "We have stations all over the country. There's plenty of room for them."90
Both the migration authorities and the head of the army claimed that detained Haitians were provided sufficient food. All of the deportees Human Rights Watch interviewed, however, said that they had nothing to eat while in detention.
The Director General of Migration said that, in his view, international groups exaggerate the negative impact of deportation. He suggested that deportation is not a particularly traumatic experience for most Haitians because they are accustomed to moving back and forth across the border. "The Haitian comes and goes," he explained, usually staying no longer than one or two months in the Dominican Republic.91 The subdirector for Haitian affairs claimed that Haitians routinely tell migration officials, "Send me now. I'll be back tomorrow." But their accounts differed considerably from the views of the deportees that Human Rights Watch interviewed, some of whom clearly felt that their lives were left in tatters.
Evaluation under International Law
The summary deportation procedures typically employed in the Dominican Republic fall far short of the requirements of Law 95 and Regulation 279. They also violate international standards, including those set out in human rights treaties binding on the Dominican Republic.
International Covenant on Civil and Political Rights
Although suspects held for deportation are not guaranteed the full panoply of due process rights afforded criminal defendants, international human rights standards applicable to deportation proceedings do nonetheless impose basic due process requirements. Article 13 of the International Covenant on Civil and Political Rights (ICCPR), in particular, includes a package of requirements applicable to deportation proceedings. Furthermore, Articles 2 and 26 of the ICCPR prohibit Dominican authorities from carrying out deportations in a discriminatory manner.92
Article 13 provides:
An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.93
Article 13 applies to "all procedures aimed at the obligatory departure of an alien, whether described in national law as expulsion or otherwise," including repatriation and deportation proceedings.94 Although the precise contours of each of the due process rights protected by Article 13 are not entirely settled, the provision clearly prohibits "collective or mass expulsions," and requires more than summary proceedings.95
Where there is any doubt whether a suspect in a deportation proceeding is "lawfully in the territory," the person's legal status must be determined according to procedures that comply with the requirements of Article 13.96 As a result, Article 13's due process protections apply whenever the suspect's status in dispute. If a credible claim of Dominican citizenship is made, moreover, the appropriate level of procedural protection rises even further, since no country is permitted to deport its own citizens.97
Arrest or detention prior to deportation trigger the protections of Article 9 and 10 of the ICCPR.98 Article 9 protects against arbitrary arrest and detention by guaranteeing the right to be informed on the charges promptly, to challenge unlawful detention before a court, and to compensation in the event of illegal detention.99 Article 10 mandates humane conditions of detention, including separate accommodations for suspects and convicts, children and adults.
American Convention on Human Rights
The American Convention on Human Rights bars states from deporting their own citizens, prohibits the collective expulsion of aliens, and specifies that aliens who have entered a country lawfully may only be expelled pursuant to a decision reached "in accordance with law."100 It also include a general provision, Article 8(1), which sets out the due process protections covering determinations of a person's rights.
Article 8(1) provides:
Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.
In the Riebe Star Case, which involved Mexico's summary expulsion of foreign priests, the Inter-American Commission on Human Rights held that the protections set out in Article 8(1) apply to deportation proceedings.101 Using a balancing test that weighs the seriousness of the deprivation at issue, the Commission also concluded that some, but not all, of the due process safeguards afforded criminal defendants under Article 8(2) of the Convention should also be guaranteed in deportation proceedings.102 From the array of Article 8(2) protections, the Commission singled out "the right to be assisted . . .; to practice their right to defense, with enough time to ascertain the charges against them and hence to refute them; to have a reasonable time in which to prepare and formalize their statements; and to seek and adduce the corresponding evidence."103
In oral argument before the Inter-American Court of Human Rights, in August 2000, the Commission further elaborated on its views regarding the requirements of due process in deportation proceedings.104 The Commission specified that potential deportees should be granted the following rights: legal assistance, written notice of the charges, investigation prior to detention, a reasoned decision, the right to appeal, an opportunity to resolve family and labor problems prior to deportation, and judicial authority for a discretionary grant of a suspension of deportation for humanitarian or equitable reasons. The Court has yet to rule on the Commission's interpretation of the Convention's requirements, however.
Besides its due process requirements, the American Convention also includes, in Article 24, a general prohibition on discrimination. Finally, Articles 5 and 7 guarantee the rights to humane treatment and personal liberty, respectively.
Specific Failures of Dominican Practice
The deportation proceedings typically employed in the Dominican Republic, because of their summary nature, violate the procedural requirements of both the ICCPR and the American Convention. Because the proceedings do not comply with the requirements of Dominican law, deportation decisions are not "reached in accordance with law." Deportees currently have little opportunity to contest their deportation; nor are their cases reviewed in any sort of individualized manner; nor do they have the opportunity to be represented before the decision-maker.
The forced separation of families also inflicts severe hardship, particularly on children who are cut off from their parents.
Moreover, in instances when deportees are arrested and detained prior to deportation, the Dominican government also violates its treaty obligations by detaining deportees in inhumane conditions.105 Deportees are often denied food, sometimes for days. They may be forced to sleep on the floor or exposed to the elements in open-air courtyards. Men, women, and children are frequently quartered with each other or together with common criminals.
43 See discussion below of the annual numbers of deportees.
44 Human Rights Watch interview, Padre Pedro Ruquoy, Centro Puente, Batey 5, Dominican Republic, June 5, 2001. Padre Ruquoy has worked in Dominican batey communities for nearly thirty years.
45 In January 2001, for example, police, army and migration officials conducted a joint raid on Batey Bella Vista, in Sosua, Puerta Plata. Between forty to sixty families were evicted in the raid, and the majority of those evicted were deported to Haiti. According to a detailed report on the incident compiled by MUDHA, the government team arrived in the middle of the night, dragging people from their beds and terrifying their children. The victims, many of whom were born in the Dominican Republic, lost all their belongings, and many were separated from members of their family. MUDHA, "Memoria correspondiente a la investigación realizada en Batey Bella Vista, Sosua, Puerto Plata, los días 20 al 23 de enero 2001," February 2, 2001.
46 For example, Human Rights Watch interview, Batey Mata Mamón, June 2, 2001; Human Rights Watch interview, Padre Pedro Ruquoy, June 5, 2001.
47 Human Rights Watch interview, Rómulo de los Santos, Santo Domingo, June 4, 2001.
48 Human Rights Watch interview, Aniseto Bria, Batey Mata Mamón, June 2, 2001.
49 Human Rights Watch interview, David Pere Martínez, Batey 7, Dominican Republic, June 5, 2001.
50 Leoncio Moto, Segundo Lieuteniente, Oficial Comandante del Districto, Policía Nacional, Acta de Sertificación [sic], May 24, 2001 (certifying that David Pere Mendez is Dominican).
51 Human Rights Watch interview, Johnny La Guerre, Fonds Parisien, Haiti, June 11, 2001.
52 Human Rights Watch interview, Jorge Rene Méndez, Batey 7, Dominican Republic, June 5, 2001.
53 Human Rights Watch representatives saw the cédula during our interview.
54 Human Rights Watch interview, Lucía François, Oumaninthe, Haiti, June 9, 2001.
55 Elencio, nine years old; Ouelio, five years old; Ramón, three years old, Maribel, three years old, Santo, three years old.
56 Human Rights Watch interview, Marlene Mesidor, Fonds Parisien, Haiti, June 11, 2001.
57 Human Rights Watch interview, Fayette Baltazar, Fonds Parisien, Haiti, June 11, 2001.
58 Human Rights Watch interview, Padre Pedro Ruquoy, Centro Puente, Batey 5, Dominican Republic, June 5, 2001; see also GARR Press Bulletin, "Crackdown by the Dominican Army on Haitians and Dominicans of Haitian Descent," February 21, 2001 (describing the "violent and brutal" immigration round-up of some 150 people at Barahona market on February 15).
59 See generally Americas Watch (now the Americas Division of Human Rights Watch) and the National Coalition for Haitian Refugees, "A Troubled Year: Haitians in the Dominican Republic," A Human Rights Watch Short Report, October 1992.
60 Decree 233-91 of June 13, 1991 (ordering the repatriation of foreigners under age sixteen and over age sixty who work or live on sugarcane plantations). This decree remained formally in effect until 1996, when President Leonel Fernández issued decree 560-96, repealing it. Human Rights Committee, "Consideration of Reports Submitted by States Parties under Article 40 of the Convenant, Addendum, Dominican Republic," U.N. Doc. No. CCPR/C/DOM/99/3 (September 29, 1999), p. 12.
61 Ibid., p. 6.
62 Inter-American Commission on Human Rights, Report on the Situation of Human Rights in the Dominican Republic, OEA/Ser.L/V/II.104 (1999) (hereinafter IACHR, 1999 Dominican Republic report), para. 332. On June 26, the Inter-American Commission issued precautionary measures against the Dominican authorities, demanding that the country suspend the implementation of Decree 233. The following month, the Commission conducted an on-site visit to the country. Inter-American Commission on Human Rights, Informe Anual 1991, Chapter V (1991).
63 See International Women's Rights Action Watch, "Country Report: The Dominican Republic," September 1996, p. 5.
64 See National Coalition for Haitian Rights, "Dominican Republic Launches Massive Deportation of Haitian Residents," February 12, 1997; NCHR, "Dominican Republic Continues Haitian Deportations," February 20, 1997; NCHR, "Fernández: We Deported Haitians after Breaking up Network of Beggars," Haiti Insight Online, Vol. 7, No. 3 (March 1997) (quoting the Dominican president as saying that "tension" was generated by a misunderstanding over the contracting of sugar cane cutters).
65 IACHR, 1999 Dominican Republic report, para. 325.
66 See ibid., chapter IX (Situation of Haitian Migrant Workers and their Families in the Dominican Republic).
67 See Juan O. Tamayo, "A Dominican crackdown on illegal immigration keeps desperate Haitians out, expels thousands already in, Miami Herald, January 6, 2000; NCHR, "Haitian Rights Group Argues for Regional Approach in Response to New Round of Dominican Expulsions of Haitian Immigrants," Haiti Insight Online, November 1999.
68 Letter from Hernando Valencia-Villa, Adjunct Executive Secretary of the Inter-American Commission on Human Rights, to Eduardo Latorre, Secretary of State for Foreign Relations, Dominican Republic, November 22, 1999. For further discussion of this litigation, see the section on the International Response, below.
69 MUDHA, "Resultado de la Investigación Realizada en Bateyes de La Romana Respecto de la Supuesta Incineración de la Bandera Dominicana, por Inmigrantes Haitianos" (undated), p. 6.
70 Ibid., p. 5.
71 See generally Columbia Human Rights Clinic, "The Situation of Haitians and Dominicans of Haitian Descent in the Dominican Republic," March 20, 2001, p. 32 (estimating 24,000 to 30,000 deportations per year).
72 Human Rights Watch interview, Sonia Vidal, Director of the Statistics Division, Direction General of Migration, Santo Domingo, June 4, 2001. The Subdirector of Haitian Affairs provided much lower figures, however. He claimed that migration officials only deported 7,250 people from September 2000 through May 2001. Human Rights Watch interview, Rómulo de los Santos, Santo Domingo, June 4, 2001.
73 Dominican Republic, Dirección General de Migración, Anuario de Migraciones 1998-2000 (July 28, 2000), p. 30; Human Rights Watch interview, Sonia Vidal, Santo Domingo, June 4, 2001.
74 Ibid.
75 Human Rights Watch interview, Rómulo de los Santos, Santo Domingo, June 4, 2001; Human Rights Watch interview, Manuel E. Polanco Salvador, Santo Domingo, June 13, 2001.
76 Columbia Human Rights Clinic, "The Situation of Haitians," p. 32.
77 Ley de Migración No. 95, del 14 de abril de 1939; Reglamento de Migración No. 279, del 12 de mayo de 1939.
78 See Reglamento de Migración No. 279, Sección XIII (Deportación).
79 See, for example, NCHR, Beyond the Bateyes, p. 29 (discussing draft immigration law that was originally prepared in 1991).
80 Protocol of Understanding Between the Dominican Republic and the Republic of Haiti on the Procedures for Repatriation, December 2, 1999, in Santo Domingo, Dominican Republic.
81 The Haitian government, in return, fully acknowledged the Dominican government's right to repatriate Haitians who had entered the Dominican Republic illegally. It also agreed to establish permanent delegations in Jimaní, Dajabón, Elías Piña, and Pedernales to receive deportees, to redouble its efforts to prevent illegal border crossings, and to ensure that its nationals were provided Haitian identity documents. Numerous sources told Human Rights Watch that the Haitian government had done very little to uphold its responsibilities under the agreement.
82 Human Rights Watch interview, Rómulo de los Santos, Santo Domingo, June 4, 2001.
83 Human Rights Watch interview, Miguel Vásquez, Director General de Migración, Santo Domingo, June 4, 2001.
84 Ibid.
85 Human Rights Watch interview, Rómulo de los Santos, Santo Domingo, June 4, 2001.
86 Human Rights Watch interviews, Miguel Vásquez and Rómulo de los Santos, Santo Domingo, June 4, 2001.
87 Human Rights Watch interview, Manuel E. Polanco Salvador, Jefe de Estado Mayor del Ejército, Santo Domingo, June 13, 2001; Human Rights Watch interview, Bernaldo Fulcar, Army Legal Advisor, Santo Domingo, June 14, 2001. Past reports have similarly documented the army's independent role with regard to deportations. See, for example, NCHR, Beyond the Bateyes, p. 27 (stating that the army conducts round-ups of Haitians on its own initiative).
88 Human Rights Watch interview, Rómulo de los Santos, Santo Domingo, June 4, 2001.
89 Human Rights Watch interview, Edwin Paraison, Haitian Consul in Barahona, Santo Domingo, June 2, 2001.
90 Human Rights Watch interview, Manuel E. Polanco Salvador, Santo Domingo, June 13, 2001
91 Human Rights Watch interviews, Miguel Vásquez and Rómulo de los Santos, Santo Domingo, June 4, 2001.
92 U.N. Human Rights Committee,General Comment 15: The Position of Aliens under the Covenant, U.N. Doc. HRI\GEN\1\Rev.1, p. 18 (1994) (hereinafter U.N. Human Rights Committee, General Comment 15), paras. 9-10.
93 The Committee has not yet issued a General Comment to delineate the precise scope and requirements of Article 13. The provision is nearly identical to Article 1 of Protocol 7 to the European Convention of Human Rights, however, so that European jurisprudence can be another source of interpretative guidance.
94 U.N. Human Rights Committee, General Comment 15, para. 9.
95 U.N. Human Rights Committee, General Comment 15, para. 10.
96 U.N. Human Rights Committee, General Comment 15, para. 9; U.N. Human Rights Committee, Observaciones del Comité de Derechos Humanos: Dominican Republic, U.N. Doc. CCPR/CO/71/DOM (2001), para. 16.
97 See ICCPR, art. 12.
98 See U.N. Human Rights Committee, General Comment 15, para. 9; U.N. Human Rights Committee, General Comment 8: Right to Liberty and Security of Persons (Article 9), para. 1; U.N. Human Rights Committee, General Comment 21, Article 10, para. 2.
99 See also U.N. Human Rights Committee, General Comment 8, para. 4.
100 American Convention on Human Rights, arts. 22(5), 22 (6), and 22(9).
101 Loren Laroye Riebe Star, Jorge Alberto Barón Guttlein and Rodolfo Izal Elorz v. Mexico, No. 11.610 (Inter-Am. Comm. H.R. April 13, 1999) (hereinafter Riebe Star Case). The Commission's ruling in the Reibe Star Case appears to conflict with a more recent decision of the European Court of Human Rights. In Maaouia v. France, the Court found that Article 6 of the European Convention, which parallels the American Convention's Article 8, does not apply to deportation proceedings. In contrast to the Inter-American Commission, the European Court held specifically that a deportation proceeding does not constitute a "determination of . . . civil rights and obligations." Maaouia v. France, No. 39652/98 (Eur. Ct. H.R. Oct. 5, 2000), para. 35.
102 In making this determination, the Commission did not rely directly on Article 8(2), but instead looked to national laws and the pronouncements of scholars to give specific content to the general idea of due process.
103 Riebe Star Case, para. 71.
104 The Commission was acting as advocate for the petitioner in case 12.271, involving deportations from the Dominican Republic.
105 In addition to the relevant provisions of the ICCPR and the American Convention on Human Rights, these conditions should be assessed according to the U.N. Standard Minimum Rules for the Treatment of Prisoners and the U.N. Body of Principles for the Protection of All Persons Under Any Form of Detention.
|
