CHAPTER V: THE RETURN OF THE DEMOCRATIC REGIME TO HAITI
1. Reinstallation of the Democratic Regime
240. On October 15, President Jean-Bertrand Aristide returned to Haiti and resumed his administration after a three-year exile. Upon his arrival at the National Palace, he gave a speech to a crowd of cheering well wishers in which he thanked the foreign forces for their assistance, and asked that an end be put to violence, saying: "Vengeance, no; Violence, no; Reconciliation, yes."
241. On that same date, the United Nations Security Council confirmed resolution 944/94 of September 29, lifting the economic embargo and other coercive measures imposed by the UN. The OAS likewise lifted the sanctions it had imposed since October 11.
242. A few days after his reinstallation, President Aristide took important steps to rebuild his country: The Haitian Senate approved a draft law to dismantle the paramilitary groups, banning them and any armed forces not provided for in the Constitution.
243. On October 24, President Aristide appointed as Prime Minister Mr. Smarck Michel, a businessman and close supporter, who was minister of trade and industry in the Aristide administration in 1991. In his general policy statement to the Haitian Parliament, Mr. Michel said that the three principles of the government would be "democracy, justice and tolerance."
244. As part of his political program, President Aristide met with leaders of all political parties in the country to discuss the schedule for the legislative elections in December. Although initially President Aristide had favored the establishment of a Provisional Electoral Council, most of the leaders at the meeting supported a Permanent Electoral Council. However, establishing a Permanent Council would require postponing the elections until the laws required by the Constitution had been enacted. In a compromise effort, it was decided to designate a Provisional Electoral Council to organize the legislative elections in 1995.
245. Accordingly, the Provisional Electoral Council was established on December 20, with nine members, three selected by the President, three by the Supreme Court (Tribunal de Cassation) and three by the Parliament.
246. In late December, the OAS Secretary General, Dr. César Gaviria, submitted to the Haitian Government an OAS proposal to provide immediate support to the government, including immediate as well as short and mid-term cooperation measures to provide support in the following areas: governance, human rights, elections; and institutional building, and strengthening of democracy.
2. The Human Rights Situation Under the Regime of President Aristide
247. Once President Jean-Bertrand Aristide had returned, a process of fundamental changes began in Haiti, especially in relation to the human rights situation. Nine days after the democratic government had been reinstated, the Commission carried out an observation visit to Haiti and was able to note an especially significant change, contrasting with the situation observed on the previous visit in May 1994. The departure of the dictatorial regime put an end to the climate of terror and violations that existed in Haiti. In Port-au-Prince and in some of the major urban areas, people now enjoy the freedom to express their support for the constitutional regime. The freedoms of expression, of the press, and of association have been restored. The Commission also observed a resumption of political activity in many areas of the country.
248. Despite the significant changes seen during the Commission's visit, on October 24-27, it was clear that there remained serious problems inherited from the military dictatorship. One of the most difficult tasks of the transition to a civilian society with a constitutional culture is the disarmament of paramilitary groups. During the military dictatorship, paramilitary groups were armed; they were responsible for numerous violations of human rights. In the weeks prior to the arrival of the Multinational Force, the military dictatorship had publicly declared its intention to distribute arms to irregular forces. To date, the Multinational Force has confiscated what seems to be a relatively small quantity of arms, and there are reports of arms caches that have not yet been located.
249. According to information provided to the Commission, the Multinational Force destroyed the Haitian Army's heavy artillery that was used in the 1991 coup d'état. However, the arms and apparatus of the dictatorship remain critical factors in some areas of the country where the Multinational Force had not yet established its presence. During its last visit, october 1994, the Commission obtained evidence of the existence of a state of insecurity in the areas of Artibonite, Jacmel, Petit Goave, and Desdunes, to mention only a few examples. One of the signs of insecurity is "marronage," as well as the continued displacement of persons. In some Départements, section chiefs continue to function although they had been involved in human rights violations.
250. Persons who met with the Commission during the on-site visit, who represented a wide range of positions and opinions, agreed that the disarmament of paramilitary groups was an essential step and a prerequisite for the restoration of a civilian society based on the rule of law.
251. Two of the most serious problems in Haiti are the lack of a legitimate police force and the absence of an adequate and efficient judicial system. The Commission pointed out at the time that: "Public order relies on the presence of the Multinational Force (MNF). Although the moderation and civility demonstrated by the Haitian people thus far have been extraordinary, the MNF, on occasion, has found itself drawn into a police function for serious and urgent situations. There has also been an anomalous situation in which known Attaches and Macoutes have been apprehended by the MNF and turned over to the Haitian police, who have released them. As a result, the system has not yet been able to begin to deal with those who might have been implicated in international crimes and crimes against humanity".
252. During its stay in Haiti, the Commission listened with satisfaction to the plans for the creation of a Police Academy as a means of training professional cadres. However, it noted that there was immediate need for a police force and a judicial system operating independently and efficiently. It was therefore essential, apart from the undertakings to build permanent institutions such as the establishment of a neutral police force, to deploy a provisional force immediately. Such a force should have legitimacy and satisfy the needs of the people in regard to public order. The Commission also pointed out that the Haitian Government should apply the strictest criteria when selecting police officers, it being understood that in a constitutional system the police should come under the orders of the civilian authority.
253. By late December, the Interim Public Security Forces trained by the International Criminal Investigation Training Assistance Program (ICITAP), under a bilateral agreement between Haiti and the United States, selected approximately 3,000 men.
254. The personnel was selected from the FADH by a Haitian committee composed of four colonels and headed by the new Commander-in-Chief of the Armed Forces, General Bernardin Poisson. The classification process was questioned by some people's organizations, such as "Justice and Peace" (Justice et Paix) in Gonaives, which claim that known human rights violators have been accepted. On the other hand, there has been criticism that rejected military personnel have not been given the possibility to defend themselves.
255. President Aristide has placed the Public Security Forces under the command of a three-member commission, headed by Major Dany Toussaint, which is under the Ministry of Justice. The Interim Forces have been deployed in ten cities, in addition to Port-au-Prince, and have visited over 120 localities. However, they have not been deployed in some areas of the north and southwest. The Law on the creation of a Civil Police was adopted later on December 23, 1994.
256. Similarly, despite the fact that a start was being made to implement plans for restructuring the judicial branch, there was an urgent need to have training programs for establishing a provisional judicial system, in this way placing emphasis on human rights, the integrity of persons, and support for constitutional government and justice.
257. The Commission considers it necessary to know exactly what happened during the military dictatorship and, in particular, to relate in detail the human rights violations to which the Haitian people were subjected, so that Haiti can reconstruct its society and its government. The Inter-American Commission on Human Rights and the Inter-American Court on Human Rights have argued that in cases of human rights violations, the government has the obligation to investigate, establish liabilities, and publish its conclusions. The absence of juridical procedures to carry out this task not only represents a violation of the American Convention on Human Rights, but is also a serious obstacle to the healing of the society's wounds, through truth and reconciliation. There are many models, both national and international, for complying with this obligation, but the Commission does not suggest any particular one. The Commission reiterates, however, that the investigation of human rights violations is a responsibility that can never be given up.
258. The Commission hopes that the Haitian Government will take steps rapidly to establish, by law, a National Committee on Compensation, made up of eminent Haitian jurists, to receive complaints from Haitians who were subjected to human rights violations. Complaints were received that some subjects involved or closely associated with the army illegally seized items of private property, whereas the right to property is also protected by the American Convention on Human Rights. It is necessary to hear the complaints as soon as possible and establish the compensation to which those acts give rise. Any new committee, like the judicial system that is being established, should use creole as its working language.
259. On November 22, 1994, the OAS/UN International Civilian Mission published a communiqué announcing that it had resumed its activities as of October 26 and pointing out that in less than one month, 800 persons had presented themselves to the Mission to provide their testimonies on human rights violations or to request medical or legal assistance. The Mission indicated that the information received made it clear that the human rights situation had improved considerably, and numerous persons displaced within the country who had been forced by the repression and the climate of insecurity to abandon their homes were gradually returning to them. The sectors that suffered from the coup d'état were appealing for lawsuits to be brought against the perpetrators of human rights violations.
260. The Civilian Mission also indicated that in spite of the presence of the Multinational Force, a certain level of political violence had prevailed until end-October 1994. Without having totally ceased, violent incidents had declined since then. The Mission also collected testimonies on acts of violence committed by partisans of the President of the Republic against members of the Haitian Armed Forces, FRAPH, and auxiliaries, particularly during the week following the President's return. Cases of arson, looting, and destruction of homes and shops were also reported to the Mission. The constitutional authorities reacted rapidly to these acts by denouncing them, taking the measures required by the circumstances, and recommending reconciliation.
261. The IACHR was informed about recent human rights violations, including the murder of four persons in Carrefour Rocher, Chenot, a municipal section of Marchand Dessalines, on October 9, 1994. Human rights groups pointed out that the "section chief" Paul Onondieu opened fire on pro-Aristide demonstrators, wounding several persons, who were then finished off with machetes. The Commission was likewise informed of the subsequent killing of an "attaché" in vengeance for the above incident.
262. Later, three civilians and two Haitian soldiers were killed in a confrontation on October 12 in Montagne Terrible, a municipal section of Saut d'Eau. It was reported that the two soldiers, who were from Saut d'Eau, Semelis Louisant and Jean-Colin Antenor, arrested several Aristide supporters when a hostile crowd confronted them. The soldiers were killed by the crowd after they opened fire and wounded two persons, known as Ti Bien and San Fanmi.
263. On October 15, some Haitian soldiers in Anse d'Hainault under the orders of Lieutenant Lom fired on pro-Aristide demonstrators, killing Brunache Klarenase, a 15-year-old. Likewise, Lieutenant Pierre Joseph Mesadieu, the army post commander in Cabaret, opened fire on a crowd of pro-Aristide demonstrators on October 15, killing Jean Smith, 22, and wounding a 15-year-old youth.
264. The Second Deputy Mayor of Mirebalais, Cadet Damzal, was killed during the night of November 4. His decapitated body was found the following day in a river on the outskirts of the town. To date, despite investigations by the Multinational Force, responsibility for this murder has not been determined. Cadet Damzal represented the FNCD, a pro-Aristide electoral coalition, and he recently had been helping victims of abuse to bring suit and obtain compensation.
265. Recent information shows that in Port-au-Prince, there is one murder almost daily. Unidentified groups are obtaining goods and money by extortion from local merchants, while other criminal groups erect roadblocks to stop vehicles and rob the passengers.
266. In the interior of the country, there are one or two victims of common violence daily. In some departments, continuous abuses by the section chiefs are reported, and there are bands of former "attachés" or FRAPH members, which are particularly active in the Artibonite region. Old land disputes are also the cause of violence.
267. Until the January 12, 1955 incident in which two members of the United States Special Forces were attacked at a roadblock in Gonaives, with one of them and one of aggressors killed, there have been virtually no incidents against international personnel since September 24, 1994, the date of the confrontation between the Multinational Force and the FADH in Cap Haitien.
268. The Report of United Nations Secretary General Boutros Ghali of January 17, 1995 points out that "the relative security now enjoyed by the Haitian people is very fragile," and regarding the acts of violence recorded in Haiti, he states the following:
"Although there is no evidence that these criminal acts are politically motivated, they are often committed by groups armed with high caliber weapons, including automatic weapons, which indicates a probable link with the old paramilitary networks. Whatever their motivation, these acts of violence affect security and might have a destabilizing effect if they are not controlled."
3. The Justicial System
269. One of the most serious problems inherited by the constitutional government of Haiti from the military dictatorship is the judiciary. The chronic incapacity and ineffectiveness of the administration of justice worsened during the three years of the illegal government of military leaders who overthrew President Jean-Bertrand Aristide in 1991. This period was characterized by systematic repression and domination of the members of the judiciary.
270. Among the priority objectives of the democratic government, supported by the international community, is reestablishment of social and public order; and in order to achieve genuine protection of the rights of citizens, the judiciary must be overhauled as soon as possible, to ensure that those guilty of criminal acts are brought to justice.
271. The Commission has continuously monitored the human rights situation in Haiti and has found that among the rights violated in the country, the right to a fair trial and due process are of primary importance, since the victims of the violations described in the previous chapter could not find a judicial organ that would protect their rights. In this way, the military and their auxiliaries violently oppressed the people with complete impunity.
272. While the Haitian Constitution and some laws provided for respect for individual rights, actual practice has been another matter. A number of obstacles, both economic and political, prevented the judicial system from meting out impartial and equal justice. The lack of independence of the judiciary and the military's control over judges, their presence in the courts, and their constant intervention in judicial processes constituted continuous pressure, preventing any initiative of the courts against members of the armed forces, paramilitary groups or other supporters of the illegal de facto regime.
273. Often judges refused to initiate preliminary investigations into cases out of fear of reprisals by the military, who threatened them and their families with death or with removal from their posts. Some judges were murdered, and others were detained or beaten, which caused members of the judiciary to go into hiding ("marronage"). In the rare cases where judges ordered an investigation or the arrest of a suspect, the military or the police simply took no action. Instead, they threatened the victims's families to discourage them from having recourse to law.
274. The problem of the lack of an effective judicial system is closely related to the lack of an independent police system that inspires confidence in the people and enforces the decisions of the judiciary. Since the 1991 coup d'état, the judiciary was directed by the military, who installed most of the justices of the peace, judicial officers, including administrative staff, and quasi-judicial personnel such as the section chiefs. More specificially, the section chiefs, who operated at the community level in rural areas (where 75% of the Haitian people live), took upon themselves powers far beyond their mandates and virtually established their own local government system, performing the functions of the police, the public prosecutor's office, and the courts, and collecting illegal taxes from the people.
275. Another factor adding to the malfunction of the justice system is the economic problem. The lack of material and financial resources helped to impede the exercise of justice since most of the courts do not have basic supplies for their work, such as legal texts, file paper, telephones, etc. Moreover, the low salaries of judges and justice officials explains the magnitude of the corruption problem in the judicial system.
276. Another problem in the judiciary is that justice is not administered in a juridical manner. This is due to the fact that most of the judges and judicial officials have not received legal training, and have been appointed on the basis of political or social standing. This explains why the Haitian judicial system is compared to a market where everything is for sale and everything can be bought. People must pay to avoid being sent to or to get out of prison, and even to send someone to prison and make sure he stays there.
277. The absence of professionalism in selecting and training members of the judiciary, together with the corruption prevailing in the system causes both improper enforcement of the law and application of the law in violation of the Haitian constitution. The number of judges who still respect professional ethics do so at the risk of the consequences they must face.
278. In the present situation, there is no court that inspires confidence in the Haitian people that their civil or penal disputes can be settled. The judiciary's lack of credibility sometimes caused the Haitian people to take justice into their own hands. However, such actions were violently repressed by the armed forces.
279. With the return of the democratic government, plans and programs have been initiated to reorganize the judiciary. However, there is an urgent need for training programs to set up a provisional judiciary to deal with the people's current problems while the judiciary is being reformed and a new police force in the service of the law is being established.
280. The Inter-American Commission on Human Rights considers that genuine reform of the judicial system requires emphasizing the legal and moral character of the members of the judiciary, their commitment to human rights and their support of the democratic regime. Financial support from the international community is essential to achieve this important task, and the United States, France and Canada, as well as the UN and the OAS have expressed interest in helping to rebuild Haiti's legal institutions.
4. The situation in the prisons
281. One of the activities for the defense and promotion of human rights carried out by the Commission is the observation of such rights in penitentiary centers. During all of the visits made by the Commission in Haiti following the coup d'état, it inspected the situation in the prisons and the legal status of prisoners, except for during the visit of May 1994, when the military leaders did not authorize entry into any detention center.
282. During these visits, the Commission observed that the procedures and conditions of detention violated the norms stipulated in both domestic and international law. Although there are 15 prisons in Haiti, many detainees were held at military barracks or posts throughout their incarceration. In its report covering 1993, the Commission indicated: "Numerous persons are illegally detained and held for long periods of time, in some cases up to two years. Conditions of imprisonment in the prisons, which are administered by the Armed Forces of Haiti, remain bad. Commission members who visited some of the prisons observed overcrowding and signs of malnutrition among some of the prisoners. They also heard of prisoners being subjected to mistreatment and beatings by prison guards."
283. During its on-site visit in October 1994, the Commission visited the National Penitentiary Center in Port-au-Prince and traveled to the prisons in the towns of Saint Marc and Gonaïves, where they met with officials in charge of the detention centers in question and spoke privately with prisoners. It requested direct information on the juridical situation and the hygiene and nutrition conditions for detainees, as well as on prison conditions in general.
284. In the three detention centers inspected on October 25, 1994, the Commission observed that the Multinational Force was in control of the prisons. However, Haitian Army officials were in charge of the prisoners.
A. National Penitentiary Center
285. The IACHR delegation which visited the National Penitentiary Center in Port-au-Prince met with Major Serge Justafort, an official of that prison, who stated that about 186 prisoners were there at the time, only 28 percent of whom had been sentenced. He indicated that on October 15, with President Aristide's arrival, there was a mass escape from the Central Penitentiary, when about 300 prisoners managed to flee. Justafort pointed out that most of the offenders were sent by the Anti-Gang (Investigation Service) [Brigade] and that prisons came under the authority of the "Grand Quartier Général" [Military Headquarters].
286. The Commission was able to verify that there was no separation between prisoners who had been sentenced and those who were in preventive detention. As for prisoners who were minors, Major Justafort stated they were picked up by the social system. However, during the visit, the Commission met a boy who said he was 14 years old and had been imprisoned since the age of 12.
287. Major Justafort explained that the budget was not adequate to feed the prisoners, nor did it manage to cover health expenses, which was why the prisoners did not receive medical assistance. He added that staff in charge of the prison changed constantly, and this caused instability in prison administration.
288. The Commission asked about disciplinary measures in the prison and was told that the measure most widely used was that of keeping the prisoners in their cells for the whole day and suspending visits. In extreme cases, they were taken to an isolated cell.
289. The Commission met with three groups of prisoners: women, soldiers, and common offenders. The three groups were accommodated in an old building in insanitary conditions and separated in different sections. The offenders in the three groups all complained about the following: 1) the lack of food, since they were fed only once a day, and they pointed out that the guards often stole the food that family members brought for the prisoners; 2) the lack of hygiene, since the only source of water was a tank located on the patio, which was used for drinking, bathing, and washing clothes; 3) the lack of medical assistance was also a motive for general complaint; and 4) everyone complained about the fact that they could not see their family members since, because of the breakout that occurred on October 15, 1994, visits had been suspended.
290. About 90 percent of the prisoners stated they had not been sentenced. Many of them had been arrested six months earlier and some had done up to 22 months without a judicial decision having been taken. The military prisoners stated they had been accused of desertion, indiscipline, or political crimes and were requesting a presidential pardon for all of them.
B. Prisons at Gonaïves and Saint Marc
291. With respect to the prisons at Gonaïves and Saint Marc, the Commission noted the prisoners' overcrowded situation in insanitary, poorly ventilated cells and a total lack of hygienic services. The prisoners' ages ranged from 16 to 63, and there were generally more than 25 prisoners to a tiny cell.
292. The Commission was informed by the offenders themselves that they received no food whatever from the prison authorities. Some complained they had not eaten for several days. A number of them showed their emaciated bodies, while others stated that their family members brought them food, which they sometimes shared with others who had nothing to eat. Drinking water was a scarce resource.
293. The prisoners did not have access to any medical service. The Commission spoke with a young man who showed his infected hand and with two others lying on the ground, who affirmed they had been sick for three days and had not received any medical treatment. The IACHR President asked the commander of the prison to ensure that the sick persons were examined and taken to hospital. A request was also made to remedy the lack of food for the prisoners.
294. On the other hand, the Commission noted that family members were permitted to visit, and there was no evidence that women and men were detained in the same prison quarters.
295. Upon the Commission's arrival in Haiti, it was informed that various prisons in the country had been opened or that prisoners had escaped a week before the restoration of the democratic regime. At the time of its visit to the detention centers, the Commission verified that prisoners had been arrested October 15-25 for common-law offenses. Up to that date, they had not been taken before a judge.
C. Prisoners detained by the Multinational Force
296. During the on-site visit in October, the Commission was informed of the existence of numerous prisoners detained by the Multinational Force in the days preceding the occupation in Haiti. The Commission met with military officials of this institution, who indicated that, at the beginning, 150 persons had been arrested; many of them had been freed after their cases were investigated, and others had been handed over to the local authorities. At that time, there were only 37 prisoners at a Center of detention situated near the airport.
297. The Commission was informed that the policy of the Multinational Force was not to intervene as a police force in internal Haitian affairs, except in those cases that represented a threat to the Multinational Force, or when a serious crime had been committed under Haitian law. To that end, the peacetime rules of engagement (ROE), which went into force on September 21, 1994, during the civilian-military operation in Haiti, stipulate the following, among others:
- Use all necessary force, up to and including deadly force, to defend us forces, us citizens, or designated foreign nationals against an attack or threat of imminent attack. When deadly force is employed, engage targets with observed, deliberately aimed fire.
- Civilians may be stopped if they appear to be a threat to us forces, protected persons, key facilities, or property designated mission-essential by CJTF 180. If determined to be a threat, they may be further detained, if not, they will be released.
- Persons observed committing serious criminal acts will be detained using minimal force necessary up to and including deadly force. Serious criminal acts include homicide, aggravated assault, rape, arson and robbery. Non-lethal force is authorized to detain persons observed committing burglary or larceny. Release persons suspected of serious criminal acts to haitian law enforcement officials/other appropriate authorities as soon as possible.
298. Regarding the conditions of inmates, attorneys of the Multinational Force told the Commission that, in such cases, the international principles of humanitarian law in the Geneva Conventions apply. Visits of families and attorneys are allowed, as are visits of the International Committee of the Red Cross. This was corroborated by various sources, including families of some inmates.
299. Finally, the Commission was informed that detainees would be handed over to the Haitian judicial authorities, once the justice system was in a position to take adequate and efficient action.