Haitian Expulsion Case Backgrounder

Since 1999, the National Coalition for Haitian Rights (NCHR) has been working together with the University of California at Berkeley Law School Human Rights Clinic, the Columbia University Law School Human Rights Clinic¹ and the Center for Justice and International Law (CEJIL) as co-petitioner on a case at the Inter-American Court for Human Rights (IACHR) against the Dominican Republic for their mass expulsions of Haitians and Dominicans of Haitian descent.  This case, numbered 12.271 in the IACHR, is outlined below. 

Case Summary

Framework and Basis for the Case

The twenty-eight petitioners in case 12.271 are Haitians or are Dominicans of Haitian descent, who live and work in the Dominican Republic. All are victims of a long-standing campaign of collective expulsions and deportations carried out by the Dominican Republic.  Petitioners and /or their family members were arbitrarily expelled or deported by Dominican authorities without notice, hearing or opportunity to collect their belongings and to contact their families.  They have all experienced great harm as a result, including extensive material losses and intense personal suffering.

This practice of expulsions is race-based and inherently discriminatory.  Dominican immigration officials have identified and deported persons with black skin and African features, who are presumed to be Haitian; many of whom, in reality, have other nationalities and origins.  The individual violations suffered by petitioners fall within and exemplify the widespread and systematic practice of discrimination and human rights violations committed by the Dominican government in its arbitrary round-ups and summary expulsions of Dominicans of Haitian descent and Haitian workers residing in the Dominican Republic.

Dominicans of Haitian descent and Haitian workers living in the Dominican Republic have consistently been denied legal status under Dominican law.  As a result, the Inter-American Commission (“Commission”) has characterized the legal status of Dominican persons of Haitian descent and Haitian workers in the Dominican Republic as one of “permanent illegality” because, as a general rule, they have no access to legal documents.

The Dominican Constitution confers Dominican nationality on “all persons born in the territory of the Republic.”  Yet, most of the petitioners who were born in the Dominican Republic do not possess Dominican documentation.  The Dominican government treats Dominicans of Haitian descent born in the Dominican Republic according to an interpretation of the Constitution that denies them the right to claim Dominican nationality.  Article 11 of the Dominican Constitution makes an exception to the rule on nationality for those individuals born in the country to persons “in transit.”  Most jurists understand the “in transit” exception to be based on elements of temporality, and on the lack of intent to make the Dominican Republic one’s permanent domicile.  Irrespective of this view, the Dominican authorities define all Haitians and their descendants as being “in transit” no matter how long they have resided in the country, and thus, justify the measures in place to keep them permanently undocumented.

Most Haitian workers are not provided immigration or employment documents and are therefore at constant risk of deportation.  This is the case despite Decree No. 417, which was issued by the Dominican government in 1990 to legalize the status of Haitians and their descendants in the Dominican Republic.  Haitian migrants face similar obstacles in legalizing their status as residents.  Tens of thousands of Haitian-born individuals have lived in the Dominican Republic for long periods of time.  Many of them have developed family and other close personal ties to the Dominican Republic.  Dominican law does not provide clear guidelines or accessible opportunities for Haitian migrants to obtain Dominican nationality based on residence or family ties.  Hence, few Haitian migrants have any documentation whatsoever. 

Domestic Legislation Does Not Afford Due Process of Law to Petitioners

The petitioners in the present case were not afforded due process of law for the protection of their rights violated by the Dominican Republic because domestic remedies were neither effective nor adequate as required by the American Convention on Human Rights (“Convention”) and the Inter-American Court of Human Rights (“Court”).  Dominican law governing the deportation process does not guarantee due process as required by the Convention because it provides neither an effective remedy for arbitrary state action nor an appropriate recourse that guarantees judicial protection of fundamental rights under the circumstances at issue in this case.

There is substantial evidence to suggest that the Dominican Republic, in practice, denies victims access to the remedies provided for by Dominican law because the authorities themselves are either unaware of what the law dictates, or are indifferent to it. 

Since domestic legislation does not afford due process of law to petitioners they bring their case to the Inter-American Court of Human Rights under the American Convention.

Violations of the American Convention

The Dominican Republic ratified the American Convention on Human Rights on April 19, 1978 and accepted the jurisdiction of the Inter-American Court of Human Rights over all matters relating to the interpretation and application of the Convention on March 25, 1999.

However, with respect to people of Haitian descent, the Dominican government has violated the rights of the petitioners under Articles 1, 1(1), 2,3,5,7,8,11,17,19,20,21,22,24 and 25 of the American Convention on Human Rights.  The deportation and expulsion of the petitioners by the Dominican authorities constitute direct denial of their rights and freedom of movement and residence under Article 22, to juridical personality and nationality under Articles 3 and 20, and to freedom from discrimination and to equal protection under Articles 1 and 24.

The manner and circumstances of their expulsion by the Dominican Republic violated petitioners’ rights to humane treatment under Article 5, to privacy under Article 11, to personal liberty under Article 7, to a fair trial under Article 8, to have the Convention’s rights enforced by domestic legal effects, and judicial protection under Articles 2 and 25, and to property under Article 21.  The Dominican government’s deportation and expulsion of petitioners has resulted in serious violations of the rights of family, as well as the special protection of children guaranteed by Articles 17 and 19, respectively.  In addition, the actions of the Dominican Republic constitute a violation of its duty under Article 1(1) to respect the rights and freedoms recognized in the Convention, and to ensure the full and free exercise of those rights.

Relief Sought By Petitioners

The petitioners have sought reparations including restitution and compensation for material and emotional damages.  Additionally, through their representatives (NCHR et al), they are calling for changes in the Dominican political and legal structures that have given rise to both the illegal activities they challenge and the violations they suffered.

They are asking to be restored to their status before they were illegally expelled.  They are also asking for satisfaction, which should begin with the Dominican Republic adopting measures necessary to modify the legal and institutional regime governing the existing policy of collective and arbitrary expulsions to which petitioners fell victim so as to prevent such violations from recurring in the future.

Litigation Team and Procedures 

On November 19, 1999, co-counsel in the case, Berkeley, CEJIL and NCHR requested precautionary measures from the Inter-American Commission to protect Dominicans of Haitian descent and Haitians that reside and work in the Dominican Republic, from arbitrary expulsion and deportation by the Dominican government.  On November 22, 1999, the Commission issued precautionary measures asking the Dominican government to end massive expulsions and if such activity were to carried out that it be done in accordance with due process norms. 

The Inter-American Commission officially opened the case on May 8, 2000, called: Expulsions of Haitians and Dominicans of Haitian Descent in the Dominican Republic.  Shortly thereafter, the Commission petitioned the IACHR for provisional measures including a cessation of the massive expulsions in cases where such activity endangers the life and physical integrity of those deported and their families.  In addition, the Commission requested that the requirements of due process be followed in all deportations.  In its brief, the Commission noted that the rate of deportations declined after November 1999.  However, on March 10 and May 5, 2000, petitioners claimed that on average, 2000 deportations per month had occurred since November 1999 and that in April there was an increase in this rate.

In August 2000, representatives of the Commission and the petitioners as well as those of the Dominican government presented oral arguments at a hearing before the IACHR in San Jose, Costa Rica.  In its first resolution given on August 18, 2000, the Court granted provisional measures covering five of the original seven petitioners.  The Court’s second resolution on September 14, 2000 ordered specific measures for the remaining two petitioners.

Following the Court’s orders, the Dominican government issued its first report on November 3, 2000 on the status of the provisional measures.  The Commission’s reply to the Dominican Republic’s first status report was filed with the court on December 14, 2000. 

In March 2001, in accordance with its international obligations, the government of the Dominican Republic signed an agreement with the Inter-American Commission on Human Rights and human rights organizations representing 7 Dominico-Haitians and Haitians and their families unjustly expelled by Dominican authorities.

The agreement formalized a Supervisory Committee mandated by the Inter-American Court to coordinate and supervise the implementation of provisional measures ordered in favor of 28 Haitians and Dominicans of Haitian origin improperly expelled from the Dominican Republic as well as two witnesses who have been the object of intimidation and attacks since they provided testimony to the Court on August 8, 2000.

Also in early 2002, a brief was submitted to the Court on the merits of the case. 

For additional information on this case and other work in NCHR’s campaign on behalf of people of Haitian descent in the Dominican Republic, please contact Merrie Archer, Senior Policy Associate, at jmccalla@nchr.org or at (954) 462-8231.

1  Columbia joined the team in March 2000.

Thanks to volunteer Ayanna Carney for her assistance in compiling this summary.