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Lawyers Committee for Human Rights


,WARNING SIGNS IN HAITI,



THE MULTINATIONAL FORCE
AND PROSPECTS FOR THE RULE OF LAW










A report of the Latin American and Caribbean program
of the Lawyers Committee for Human Rights

New York, December 1994


For further information contact:
Rob Weiner (212) 629-6170 ext. 127
HA'L
<^.1


330 Seventh Avenue, 10th Floor, New York, New York 10001 TEL. (212) 629-6170 FAX (212) 967-0916






The Lawyers Committee for Human Rights


Since 1978, the Lawyers Committee for Human Rights has worked to protect and promote
fundamental human rights. Its work is impartial, holding each government to the standards
affirmed in the International Bill of Human Rights, including

the right to be free from torture, summary execution, abduction and disappearance;

the right to.be. free from arbitrary arrest, imprisonment without charge or trial, and
indefinite incommunicado detention; and
the right to due process and a fair trial before an independent judiciary.

The Committee conducts fact-finding missions and publishes reports which serve as a starting
point for sustained follow-up work in three areas: with locally-based human rights lawyers and
activists; with policymakers involved in formulating US foreign policy; and with
intergovernmental organizations such as the United Nations, the Organization of American States
and the Organizations of African Unity.

The Committee's Refugee Project seeks to provide legal protection for refugees including the
right to dignified treatment and a permanent home. It provides legal representation, without
charge, to indigent refugees in the United States in flight from political persecution. With the
assistance of hundreds of volunteer attorneys, the Project's staff also undertakes broader efforts -
including participation in lawsuits of potential national significance to protect to right to seek
political asylum as guaranteed by US and international law.

The Chairman of the Lawyers Committee is Marvin E. Frankel; Tom A. Bernstein is its
President; Michael H. Posner is its Executive Director; Stefanie Grant is Director of Program
and Policy; George Black is Research and Editorial Director; Joe Eldridge is Director of its
Washington D.C. office; and Robert 0. Weiner is Coordinator of the Latin American and
Caribbean program.

If you would like more information about our activities, please write to us at:

330 Seventh Avenue, 10th Floor
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or
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PREFACE


This briefing paper summarizes the principal findings of a Lawyers Committee mission
to Haiti. Robert 0. Weiner, coordinator of the Committee's Latin American and Caribbean
program, visited Haiti from November 13-19, 1994 to assess the impact on the human rights
situation of the international effort to restore democracy, and to gauge the prospects for
promoting institutional change in the context of the current intervention of the Multinational
Force (MNF). Additional material was gathered in the course of a follow-up visit between
December 3-10 by pro bono consultant Yves Deniz6, a lawyer in New York City.

During these visits, the Lawyers Committee spoke with Haiti's newly appointed Justice
Minister, Ernst Mallebranche, and other Justice Ministry officials, as well as with the Interior
Minister, the Secretary of State for the Department of Defense of Haiti, a consultant to the
Prime Minister's office, the military commandant of the interim police force of the Port-au-
Prince metropolitan area, a representative of the National Assembly, and a number of private
attorneys. Mr. Weiner and Mr. Deniz6 also met with representatives of several human rights
groups and news organizations. At the US Embassy in Port-au-Prince, Mr. Weiner spoke with
Ambassador William Lacy Swing and with the Embassy's political counselor. At the US AID
mission, he met with judicial reform project personnel. In addition, Mr. Deniz6 met with an
official of the US Justice Department's International Criminal Investigation Training Assistance
Program (ICITAP). During brief trips to the Artibonite and South-East departments, Mr.
Weiner talked to US and Haitian military personnel; independent police monitors, local Haitian
judicial officials (appointed both under the constitutional government and the prior de facto
regime), as well as with several victims of human rights abuses.

This briefing paper concentrates on a number of key areas relating to the work of the
MNF, including: the disarmament of civilians allied with the prior military government; the
detention of individuals alleged to have committed serious human rights violations; the vetting
of the armed forces and the creation of a civilian police force; and MNF policies toward local
Haitian military and civilian authorities. We evaluate the MNF's record not merely by its
impact on the immediate human rights situation, but on the degree to which its presence
contributes to the long-term establishment of the rule of law in Haiti. In each of these areas,
the Lawyers Committee has found serious grounds for concern.

This briefing paper was written by Robert 0. Weiner. We gratefully acknowledge the
helpful editorial comments of Anne Fuller and William O'Neill of the National Coalition for
Haitian Refugees, and of Yves Denize. Warning Signs in Haiti was edited by George Black,
research and editorial director of the Lawyers Committee.




Lawyers Committee for Human Rights
New York, New York
December 1994






TABLE OF CONTENTS


I. BACKGROUND ........................................ 1


II. ISSUES OF CONCERN ................................... 5

A.DISARMAMENT ...................................... 6

B.DETENTION AND PROSECUTION OF ALLEGED HUMAN RIGHTS
VIOLATORS ...................................... 7

C.VEITING OF THE FAD'H AND CREATION OF A CIVILIAN POLICE
FORCE ......................................... 11

D.POLICY TOWARD LOCAL MILITARY AND CIVILIAN AUTHORITIES 12








I BACKGROUND


More than 20,000 troops from the United States and other nations have landed in Haiti
since September 19 to secure the return of constitutional government. President Jean-Bertrand
Aristide, who resumed the presidency on October 15, had spent more than three years in exile
after a violent coup d'6tat by leaders of the Haitian armed forces (FAD'H). The landing was
authorized by UN Security Council Resolution 940,1 and ultimately consented to by the Haitian
military after last-minute negotiations with a US delegation led by former President Jimmy
Carter averted a full-scale invasion.

By mid-December 1994, the current multinational force (MNF) had been reduced to a
total strength of about 5,800; this figure includes some 2,000 non-US troops. Under the terms
of Resolution 940, a UN force (UNMIH) will replace the current force as soon as the
environment is deemed "secure and stable."2 US soldiers will constitute half of this force,
which will be led by a US commander. UNMIH is slated to remain in place until early 1996,
after completion of the next presidential election. Meanwhile, 823 lightly armed international
police monitors (IPMs) have been deployed under the separate command of former New York
City Police Commissioner Raymond Kelly.? They are stationed in various parts of Haiti, with
orders to observe members of the FAD'H as the latter undertake their new public security role,
as well as to carry out some on-the-job training.

Prior efforts by the international community to achieve a negotiated return to democracy
failed, largely as a result of the intransigence of the Haitian military. Shortly after the signing
of the ill-fated Governors Island Agreement in July 1993, the military and its allies embarked
on a campaign of terror culminating in the assassination in October 1993 of Justice Minister Guy
Malary, a leading proponent of institutional reform, and the dockside demonstration which
turned back the US Navy vessel Harlan County and its contingent of US military trainers.
Almost immediately, the UN and the Organization of American States ordered the evacuation
of some 200 human rights monitors. Several governments, including the United States and
Canada, withdrew police and military personnel who had been deployed in anticipation of reform
initiatives for the army and police.

The arrival of the MNF has been accompanied by a dramatic reduction in the number
of human rights violations. The UN human rights monitoring mission, which began to deploy
personnel in Haiti for the third time, reported a "significant improvement in the human rights


'Although the current force is UN-authorized it is not, strictly speaking, a UN force but
rather a multinational force organized by a Member State.

2UN Doc. S/RES 940 (1994).

'UN Doc. S/1994/1321.






situation... in particular in the areas where the multinational forces are establishing a climate of
freedom and security."4 Some acts of violence and intimidation continue to be reported. For
example, the non-governmental Justice and Peace Commission reports that in the central plateau,
FRAPH members and Haitian soldiers continue to collaborate in actions against civilians.

The task now confronting Haiti goes far beyond the restoration of the elected government
or a short-term decrease in the incidence of violence. It requires tackling the deep-rooted
institutional problems that have contributed to the historic absence of the rule of law in Haiti.
The solution to these problems does not lie with a long-term foreign presence.

Three years of military control over state institutions, including the judiciary, and a reign
of terror characterized by more than 3,000 violent deaths, exacerbated an already dire situation.
For many years, Haitian institutions have utterly failed to protect the rights of civilians. As the
Lawyers Committee observed in a 1990 report:

theree is no system of justice in Haiti. Even to speak of a "Haitian justice
system" dignifies the brutal use of force by officers and soldiers, the chaos of
Haitian courtrooms and prisons and the corruption of judges and prosecutors.5

The military controlled the police and a vast network of armed civilian deputies
(commonly known as attaches) and therefore enjoyed impunity before the nation's courts. In
addition, the security forces arbitrarily detained thousands of people and killed many others who
had virtually no effective recourse before a cowed, corrupted and often incompetent judiciary.
These patterns must be attacked so that institutions can begin to function properly, and continue
to do so after the last international human rights monitor or peacekeeping soldier has left.

The Lawyers Committee has found widespread consensus about the needs and
deficiencies of the Haitian bench and bar. Central to the problem is a lack of professional
training and education, coupled with pitiful salary levels.' Poorly trained judges and
prosecutors are in dire need of continued education in technical areas, such as the handling of
evidence and courtroom techniques, as well as on substantive matters relating to Haitian law.


'UN Doc. A/49/689.

'Lawyers Committee for Human Rights, Paper Laws and Steel Bayonets: Breakdown of the
Rule of Law in Haiti (1990), at 1. (Hereinafter, Paper Laws.)

'According to one judge, the corruption that results from poor salaries may also fuel
violence. In many instances local officials accept money from both parties to a dispute, and
make clearly contradictory findings in favor of each. In disputes over land, for example, both
parties will be told that they have been awarded rights to the parcel in question. When each
seeks to enforce rights he or she believes to have been officially vindicated, the potential for
violent conflict is increased. Lawyers Committee interview, Port-au-Prince, November 17,
1994.







Justices of the peace, who constitute the system's first line of defense against crime,' may
require a separate curriculum, since most have less formal training than other judges or than
prosecutors.

Legal education must also be vastly improved. According to the Minister of Justice,
Haiti's provincial law schools were largely starved of funds under military rule.' In addition
to being underfinanced, law schools are few in number and are inaccessible to many students.
Some attempt to compensate for this by offering degrees through correspondence courses. Legal
education needs to devote particular resources to developing judicial personnel. Although the
Haitian Constitution mandates the creation-of a judicial.academy,9 no such institution has been
established. Judges and lawyers interviewed by the Lawyers Committee felt unanimously that
long-term improvements in the quality of judging requires specialized training and screening
regimens for those seeking a career in the judiciary.

Filling the institutional vacuum will also entail confronting head-on the question of
accountability for thousands of human rights crimes, particularly those violations committed
since the 1991 coup, for the most part by individuals who still live in Haiti. On December 20,
President Aristide named Haitian Francoise Boucard to head a "truth commission" to investigate
and report publicly on human rights violations.10 However, the pressing concern of whether
to enact an amnesty barring prosecution of some or all of their perpetrators remains to be
resolved.

One early test of Haiti's institutional reform will be whether responsible means can be
found to acknowledge publicly the human rights toll of recent years without deepening divisions
within Haitian society, and to promote the ability of the justice system to respond meaningfully
in the face of such crimes. Haitian non-governmental organizations (NGOs) report privately that
the government has been reluctant to consult with them on the issue of a truth commission, an
issue on which the constitutional authorities have generally been reticent.

Since the return of President Aristide, US police trainers have launched a program
designed to create an interim police force made up of Haitian soldiers, and then to recruit and
train a permanent police force independent of the army. The Haitian armed forces are to be
reduced from approximately 7,000 to under 2,000. Both the new police force and the downsized


7All criminal cases initially come before the local justice of the peace. Paper Laws, at 189.

'Lawyers Committee interview, Port-au-Prince, November 14, 1994.

9Constitution, Article 176.

'"Public radio address, Port-au-Prince, December 20, 1994. A number of Haitian NGOs,
including the Plate-Forme des Organismes Hardtiens de Defense des Droits Humains (Platform
of Haitian Organizations for the Defense of Human Rights) have been active in calling for the
creation of such a commission.







military are to be vetted according to several criteria, including human rights performance. US
AID, resuming an initiative that was curtailed by the murder of Justice Minister Malary, has
already provided $1 million to the Aristide government to subsidize the purchase of materials
for the judicial branch." More assistance will follow. Other nations, including France and
Canada, as well as the UN, have expressed interest in assisting Haiti's efforts to build its legal
institutions.12

There is an urgent need to establish functional legal institutions, as human rights
violations persist and will no doubt continue. Moreover, in light of the announcement by Prime
Minister- Smarck-Michel that he-will "govern-by-decree" if-legislative elections are not held
before the current legislative session expires," the need for future judicial oversight is
particularly acute.14






















"Lawyers Committee interview, US Embassy, Port-au-Prince, November 16, 1994.

'1Lawyers Committee interview, United Nations Development Program office, Port-au-
Prince, November 17, 1994. The French government sent a two-person team to Haiti in mid-
December 1994 to assess the country's needs in this area.

"Haitian Information Bureau, "After Three Weeks: Michel and Rey Report," December 3,
1994.

14Article 183 of the Haitian Constitution gives the Supreme Court the authority to review the
constitutionality of laws.








H ISSUES OF CONCERN


The fundamental obstacles to the rule of law in Haiti are readily apparent: military
domination of all aspects of the justice system; legal personnel who are underfunded, under-
educated and generally unwilling to risk their well-being by pursuing criminal actions against
military personnel." The police function, which would normally include enforcement of
judicial orders, is non-existent against the FAD'H, which has historically controlled the police.
As a result, there is virtually no judicial authority over the military. In addition, many judicial
and quasi-judicial officials installed-after 1991-by the-de facto authorities including section
chiefs, justices of the peace and lower court judges remain in office, and have even been
reinstated by the MNF.

Almost all those interviewed by the Lawyers Committee emphasized the link between
violence and the poor performance of the justice system. Fearing reprisals, witnesses are afraid
to testify; prosecutors and judges are hesitant to investigate allegations thoroughly; an
independent, professional Haitian police force does not yet exist. It comes as no surprise, then,
that both President Aristide and Prime Minister Smarck Michel should have named public
security as their top priority.16 Meanwhile, despite the clear indications that Haiti sorely needs
immediate policing, US officials have maintained their steadfast refusal to become involved,
viewing policing as synonymous with elevated risks for the MNF.

In those areas visited by the Lawyers Committee, local residents reported only very
sporadic patrolling by the MNF outside the principal provincial towns. According to local
officials, some sections had not yet received a visit from the MNF and have had no opportunity
to inform the MNF of ongoing problems. Residents, MNF personnel and local human rights
groups all contend that the IPMs have acted very timidly. In several places, they have
reportedly refused to cover the entire area assigned to them, staying close to the major towns
and neglecting more rural areas, as well as limiting their operations during the hours of
darkness. MNF personnel indicated that staffing limitations prevented their units from regularly
patrolling more territory.

Many Haitians believe that armed civilians who have retained their weapons will reassert
their power over the civilian population once the international force is withdrawn. There have
been numerous reports of threats and intimidation by civilians aligned with the former military


'The Haitian Constitution limits military jurisdiction over military personnel to wartime acts
and violations of military discipline, and gives the ordinary courts jurisdiction over human rights
bases. Constitution, Articles 42-2, 42-3 and 267-3. However, civilian courts have not
challenged the military's assertion of jurisdiction over human rights cases, and have only rarely
attempted prosecution of such crimes.

16FBIS, November 16, 1994, at 8-9; November 21, 1994, at 20.







government. A particular focus of concern is the Armed Revolutionary Front of the Haitian
People (FRAPH),17 a violent paramilitary network which burst into prominence in late 1993
with a campaign of violence against pro-democracy activists.


A. DISARMAMENT

Although the MNF says that it has confiscated or purchased some 14,500 weapons,"
it has employed relatively limited means to locate and confiscate arms held by Haitian civilians,
particularly the attacks and others who collaborated with the former military government. This
is particularly unfortunate given the limitations on the MNF's capacity to patrol. Apparently
to minimize the number of searches and hence the exposure of US troops to risk the MNF
awaits confirmation of each tip from several sources before conducting an investigation. The
MNF also brings FAD'H personnel to the scene whenever it carries out a weapons search or
responds to a report of violence. This modus operandi robs MNF searches of the element of
surprise. The high proportion of apparently false leads received by the MNF may reflect the
delay in responding to such information, as well as possible leaks by Haitian military personnel,
who only weeks ago were the allies of the very individuals now under investigation.

Haitian officials and human rights groups agree that if violent sectors are allowed to
retain their weapons they will continue to pose an unacceptable threat to the transition process.
There is substantial evidence to support this view. Although the human rights situation has
improved, the UN reported in mid-November that it remained "disturbing" in rural areas due
to violence by attach, section chiefs, and members of the FAD'H and FRAPH who have kept
their weapons.19 Despite Haitian insistence on the need for a more aggressive disarmament
campaign, government officials have been reluctant to press the MNF hard on the issue, and are
understandably uneasy at the prospect of having members of the FAD'H disarm its own former
cronies. US officials, meanwhile, point to Haitians' constitutional right to bear arms as an
obstacle to a more proactive approach.2 This is a curious scruple, since by the same logic
even the current, relatively passive approach of the MNF would be barred by Haitian law.21


17The organization was founded in the summer of 1993 as the Revolutionary Front for the
Advancement and Progress of Haiti. It changed its name several months later, before the arrival
of the MNF.

"UN Doc. S/1994/1321.

19UN Doc. A/47/689.

ULawyers Committee interview, Port-au-Prince, November 16, 1994.

2A more persuasive objection might be the relatively small deployment outside of Port-au-
Prince, where the vast majority of US troops are stationed. If this makes it more difficult for
troops outside the capital to devote more resources to disarmament, the MNF should consider








Haitian officials, meanwhile, would be well-advised to consider stricter arms registration
programs that could clear the way for more aggressive enforcement." A revised approach by
the MNF might include active development of intelligence on arms possession, and restricting
FAD'H access to such information prior to taking action.


B. DETENTION AND PROSECUTION OF ALLEGED HUMAN RIGHTS
VIOLATORS

On the basis of information received from local inhabitants, the MNF, accompanied by
their Haitian counterparts, have arrested a number of former military personnel and Haitian
civilians accused of committing serious human rights violations. Three types of detainees are
in fact held in a central detention facility operated by the MNF command in Port-au-Prince:

a) those who are considered to constitute a threat to the MNF, who will be detained
indefinitely until the force withdraws from Haiti;

b) those who are detained for offenses within the perimeter of MNF military installations,
including robbery, falsification of identity documents and resisting arrest. Characteristically,
these individuals are detained for 24-72 hours and then released;

c) those suspected of serious criminal offenses, including murder, rape, arson and
robbery, especially if such offenses have been committed in the presence of the MNF, or if there
is strong probable cause to presume guilt. (The determination of what constitutes a "serious"
crime is apparently made by local MNF commanders.) These individuals are held for periods
of up to 72 hours under the procedures described below in footnote 33. While there is
apparently an effort to hand these cases over to Haitian judicial authority, many such individuals
have been released outright or turned over to the Haitian prison authorities in other words,
to the FAD'H and are believed to have been released thereafter.

Ironically, individuals accused of more serious crimes appear to have a greater chance
of being released by the MNF. For example, one US commander in the Artibonite department



the possibility of redeployment as a means of better pursuing the "secure and stable
environment" required by Resolution 940. Lt. Col. Karl K. Warner, Staff Judge Advocate of
the Judge Advocate General's office of the Defense Department offered a further rationale for
the MNF's low-key approach to disarmament: that crime levels in Haiti were not of the same
magnitude as in major US cities such as Detroit, and did not therefore warrant an aggressive
disarmament campaign. Lawyers Committee interview, Port-au-Prince, December 8, 1994.

"Article 268-2 of the Haitian Constitution requires gun owners to inform the police of the
guns they posses, but this is not enforced.







said that local residents had made numerous detailed allegations of multiple murder, rape and
torture against the local army captain. Finding these allegations credible, the US officer in
charge detained the man. In view of the gravity and volume of the allegations, the captain was
transferred to Port-au-Prince, together with the file of statements from victims and witnesses.
According to US military personnel in Artibonite, the witnesses were reluctant to give testimony
in court or sign their statements because they did not think the legal system would protect them
from reprisal. The captain was released shortly afterwards.2

The argument that the inability of the Haitian authorities to apply Haitian law prevents
more aggressive action against human-rights violators is not persuasive. For one thing, other
actions by the MNF, including its arrest procedures, are hardly in accordance with a strict
reading of Haitian law, which lacks any provisions authorizing foreign agents to detain citizens
on Haitian soil. In fact, the MNF's position, if taken to its logical conclusion, would preclude
almost any exercise of MNF authority as a violation of Haitian sovereignty. Moreover, the
Lawyers Committee has learned that the Haitian constitutional government has formally
complained to the MNF about the practice of releasing dangerous individuals. The government
has tried to persuade the MNF to go on holding suspected human rights violators, although it
has not publicly proposed any mechanism for providing judicial oversight over the continued
detention of such individuals.

The MNF's intervention falls under Chapter 7 of the UN Charter.' As such, it
requires neither the consent of the national government nor a formal status of forces agreement.
In addition, Resolution 940 gives the MNF the authority to use "all means necessary" to create
a safe and secure environment for the full transition to democratic institutions within the terms
of the Governors Island Agreement.' There is very little in the text of Resolution 940 to limit
the MNF's ability to arrest and detain Haitian civilians in the course of fulfilling its mandate.

The UN peacekeeping authority in Cambodia (UNTAC) offers an instructive, if





'Lawyers Committee interviews, Artibonite department, November 18, 1994.

"UN Charter Article 42 authorizes "demonstrations, blockade and other action by air, sea
or land forces of Members of the United Nations" where "necessary to maintain or restore
international peace and security."

"In fact, Defense Department lawyers cited this broad authority when initially queried by
the Lawyers Committee in October about dozens of arrests made in the days immediately
following the landing. At that time, the Pentagon represented that it was affording all detainees
the equivalent of prisoner of war treatment as defined in the 1949 Geneva Conventions, even
though such legal requirements did not technically apply to these circumstances. Lawyers
Committee interview, October 6, 1994.







somewhat imperfect, analogy." Pursuant to its mandate of "fostering an environment" that
would ensure respect for human rights," UNTAC created a detention center and a special
prosecutor's office; when it discovered that it was not feasible to bring human rights matters
before the inadequate Cambodian courts, it authorized the detention of prisoners "pending the
identification of a competent court by UNTAC."' Like their counterparts in Cambodia, those
individuals detained by the MNF in Port-au-Prince are in fact under international, not Haitian,
custody.

Any source of authority, whether national or international, is of course subject to the
requirements of international human rights law. .The United States, as the UN Member State
responsible for organizing the MNF, is subject to international norms under one or more legal
bases: as an agent of the Security Council exercising the latter's delegated authority; as the
United States government, party to several international human rights instruments; and/or as a
subject of customary international law, which includes many basic guarantees governing the
treatment of persons in the administration of justice.

Here, too, international practice provides useful guidance. Prisoners under the
jurisdiction of the International War Crimes Tribunal for the former Yugoslavia2 are held
under international rather than national custody. The tribunal drafted its own rules of detention,
taking note of relevant international standards. Among the relevant sources of law are the 1977
UN Standard Minimum Rules for the Treatment of Prisoners; the 1988 Body of Principles for
the Protection of All Persons Under Any Form of Detention or Imprisonment; and the 1990
Basic Principles for the Treatment of Prisoners; as well as the rules adopted by the Tribunal
itself.

Whether the MNF or any other detaining authority adopts its own rules or utilizes an
existing set of principles is not important, as long as the essential guarantees are provided to all
detainees.3" Among the most important of these are access to counsel and international


"Imperfect, given the extraordinary circumstances in Cambodia and the sweeping authority
granted to UNTAC, which was authorized by the parties to the Cambodian conflict to use "all
powers necessary" to ensure the implementation of a political settlement. This mandate included
maintenance of law and order and civil administration, as well as military arrangements.

"UN Transitional Authority in Cambodia, "Human Rights Component Final Report" (1993),
at 8.

2UNTAC Directive No. 93/2, February 3, 1993.

2rThe tribunal's formal title is the International Tribunal for the Prosecution of Persons
responsible for Serious Violations of International Humanitarian Law Committed in the Territory
of the Former Yugoslavia.

'See footnote 24 above.







monitors, the right to judicial review of the detention, proper food and health services, and the
ability to communicate with family and friends.

The Lawyers Committee believes, however, that this exercise of international authority
should give way, as circumstances permit, to progressively increased activities by local
institutions, until such time as they can assume these functions entirely. Given the current state
of the Justice Ministry which, like other government entities, has been stripped of many
essentials and is strapped for cash to pay its employees' salaries it is unlikely that the Haitian
civilian authorities will be able to assume custody of significant numbers of detainees in the near
-future. Under-these circumstances, the MNF should continue to hold detainees where there is
evidence that they have committed serious crimes. Meanwhile, Haitian officials must
realistically assess how and when local authorities will be in a position to discharge some or all
of the necessary functions pursuant to Haitian law. The Lawyers Committee readily
acknowledges that such interim arrangements would entail significant risks from a human rights
standpoint. Arresting suspects in the absence of an independently functioning national judicial
authority can easily turn arrest into detention without trial, in violation of basic human rights
law, which guarantees trial within a reasonable time."3

UNTAC's experience in Cambodia makes clear that either the MNF must establish its
own judicial authority to review such cases, or the Haitian government must quickly assign
judges to scrutinize the grounds for the detentions and arrange to hear all triable cases as soon
as is practicable. The latter is greatly preferable. Even acknowledging the resource limitations
of the Justice Ministry, it is neither implausible nor improper to expect that a small number of
judicial personnel be identified and empanelled to carry out this important responsibility.32 The
Haitian government should act to resolve the legal situation of detainees or, at the very least,
negotiate an agreement that allows the MNF to perform this function.

The legal and political situation in Haiti is extraordinary and thus requires extraordinary
approaches. If it is impossible for the Haitian government to perform its judicial function, then
the security requirements of Resolution 940 dictate that the MNF assign properly trained
personnel to do so,33 ensuring that detainees are afforded all the due process guarantees


31See, e.g. International Covenant on Civil and Political Rights, Article 9.3.

"It is important to bear in mind the scale of the problem. Even at the height of the
detentions, the number of those held by the MNF in Port-au-Prince beyond arrest and initial
interrogation, did not exceed 200.

33The MNF has already assigned trained legal officers to review the detention of all
individuals it has arrested, with periodic review of the detentions of those held as a potential
threat to its troops. Lawyers Committee telephone interview, October 6, 1994. According to
Defense Department lawyers, this system enables repeated review of the basis for detention, and
ensures that no one is held arbitrarily. The Lawyers Committee believes that such individuals
should have access to counsel able to present arguments to MNF legal officers in support of their







provided for under international law. While this approach might appear an unsettling extension
of the MNF's extranational authority into a normally sovereign function, the Lawyers Committee
believes that this is preferable to the release of those reasonably suspected of serious human
rights violations, for the sole reason that neither the MNF nor the Haitian government has
identified a competent court.

C. VETTING OF THE FAD'H AND CREATION OF A CIVILIAN POLICE
FORCE

The plan developed by the United States and-Haiti to transform the much feared FAD'H
has several elements. One is a radical reduction of the size of the military, to fewer than 2,000
soldiers, accompanied by the creation of a new police force that will be perhaps five times as
large. Second, the police will be separated from the army and placed under the civilian
jurisdiction of the Justice Ministry. Third, the FAD'H is to be vetted, with corrupt, unqualified
and abusive members screened out and offered job retraining.

The police plan has two phases. Phase I, which is now underway, is the creation of an
interim public security force. This force, 3,000 strong, is to be drawn from FAD'H members
who pass the vetting process. These candidates are given a six-day training course in Haiti by
ICITAP, a US Justice Department agency specializing in training for foreign police.34 To date,
several classes of roughly 350 men each have taken the course and are deployed as interim
police officers. Phase II involves the creation of a police academy to train the permanent force.
Recruits from the interim police, together with other applicants who pass a second screening
process, will be admitted to four-month courses, beginning in January 1995.

Thus far, the vetting process has been disappointing. In early October, US officials
assured the Lawyers Committee that the process would be inclusive, drawing on the expertise
of all available sources." They stated that NGOs would be represented in the process via the
UN human rights monitoring mission (MICIVIH), which would be thoroughly consulted.

This has not happened. Under current procedures, a commission of Haitian military
personnel selects the names of candidates they deem suitable for continued service in the interim
police. These names are reviewed by civilian officials although apparently not by Haitian
civilians with the US review being conducted under the direction of the State Department's


clients. MNF practice establishes that where it considers such action required by military
necessity it is prepared to establish an ad hoc jurisdiction to provide legal oversight of detention
practices.

'ICITAP operates under a waiver of the provisions of Foreign Assistance Act section 660,
which bans such police assistance by the US government.
3SLawyers Committee interview with ICITAP representatives, Washington, DC, October 6,
1994.







International Narcotics Matters Bureau. The names are actually checked against lists supplied
by the Aristide government, UN records, and US law enforcement information.

Neither MICIVIH nor non-governmental human rights groups have been privy to any
aspect of this process. Colin Granderson, head of MICIVIH, told the Lawyers Committee in
mid-November that the mission had had no contact with those responsible for vetting since
turning over its data on FAD'H human rights violators prior to Aristide's return. Responding
to the exclusion of civilian organizations in the vetting process, the Justice and Peace
Commission, a Haitian NGO, has demanded that the names of the members of the interim police
force- be published for public approval.'

According to US officials, fewer than five percent of FAD'H members had been screened
out on human rights grounds." This figure is cause for wonder to those familiar with human
rights in Haiti. William O'Neill, MICIVIH's former legal director, has commented that it would
be hard to imagine any soldiers who, after exposure to the FAD'H's pattern of brutality and
contempt for the rule of law and democratic civilian authority, could merely be "retrained" and
serve in a civilian police force." From the start of the screening process, even ICITAP
officials had expressed concern that the FAD'H commission would soon run out of suitable
candidates. The results of the vetting process so far raise serious doubts about its integrity,
which are only aggravated by its lack of transparency. These doubts might be usefully offset
if, for example, the lists of recruits approved for admission to the new police force were given
widespread publicity.

Anecdotal evidence suggests that these are not idle concerns. Many FAD'H members
have simply been transferred from one area of the country to another. One local MNF
commander expressed the belief this was the case with more than a dozen members of the
FAD'H who had been rejected by his unit on human rights grounds. Other communities are
known to have received transferees who were notorious as human rights violators in their
previous postings.


D. POLICY TOWARD LOCAL MILITARY AND CIVILIAN AUTHORITIES

Individual base commanders appear to exercise a degree of autonomy in interpreting their


"Radio announcement, Port-au-Prince, December 20, 1994.

"The MNF's fifth report to the Security Council noted that as of November 21, 1,487
members of the FAD'H had been admitted into the interim police force, with 150 ruled
ineligible and offered placement in a jobs training program. UN Doc. S/1994/1321. Assuming
that this report refers to the same group, this would suggest a slightly higher rejection rate of
some nine percent.

"Lawyers Committee interview, New York, December 5, 1994.







powers. The MNF generally follows three basic principles: to work with and be seen to work
with the FAD'H in its new policing role; to minimize, wherever possible, the role of the MNF
in favor of action by the FAD'H; and to support the authority of incumbent civilian judicial
officials to perform legal functions which, in many cases, includes officials installed by the
former de facto authorities.

Local MNF commanders gamble with the credibility of their forces if they overlook the
appalling human rights record of the FAD'H and its reputation among the civilian population.
MNF personnel interviewed by the Lawyers Committee acknowledged that local residents
-generally repudiate the-FAD'H and are suspicious of the MNF's collaboration with it. Recent
incidents in the Artibonite and Grand Anse departments, in which the local population angrily
confronted FAD'H units, reflect this deep distrust of the Haitian military.

MNF commanders have also looked to local judicial officials as a source of authority,
apparently without regard to whether these individuals were appointed by the de facto authorities
or the constitutional government. While the motivation for this appears to be laudable -- to
promote the use of the judicial system rather than other means to resolve disputes this
approach may ironically bolster illegitimate judicial authority. Many local judges and
prosecutors were appointed by the military government, and constitutionally chosen officials
often remain in hiding. Some are afraid to return, or are daunted by the practical difficulty of
dislodging an incumbent. In cases where the MNF has acknowledged or promoted the authority
of illegitimate prosecutors and judges, this may have made it more difficult to reestablish rightful
authority.

The MNF's desire to have local civilian officials in place is understandable, since the
forces' task is complicated by the lack of a legitimate alternative to their own authority. Lacking
a dependable local authoritative body, residents come to the MNF for resolution of a bewildering
array of problems and conflicts. The immediate need for such an alternative has been heightened
by a situation where FRAPH members are inciting peasants to take over the land of small
farmers. This action often generates renewed land conflicts, according to the non-governmental
Justice and Peace Commission.3

It is inadvisable for the MNF to adopt a neutral approach to Haitian officials who were
appointed by the coup regime to replace constitutionally appointed officials. To make matters
worse, given the extreme polarization of Haitian politics, it is reasonable to assume that a
significant number of sitting officials were chosen on the basis of their militant allegiance to the
de facto authorities, and that they have been at least tacitly in alliance with a repressive
apparatus that has been responsible for gross violations of human rights.

In Petite Rivibre de l'Artibonite, for example, a small town in central Haiti, the current


3"Inter-Press Service, "Haiti-Politics: Attack Lays Bare Limits of Disarmament Drive,"
November 12, 1994.







justice of the peace is Baptiste Jean-Charles. He was appointed during the military coup after
the Aristide-appointed justice was forced into hiding by violent attacks. Mr. Jean-Charles
refuses to step down, denying that there is any legal reason for him to do so. He told the
Lawyers Committee that the greatest threat to justice in Haiti are the poor, who are far more
dangerous to judges than either attaches or the military. According to some local residents, the
MNF has acknowledged Mr. Jean-Charles' authority. The constitutionally appointed justice of
the peace, Mereus Dorlism6, has been reluctant to confront his rival, who remains in office.

Cases like this illustrate the connections between the actions of the MNF and the
difficulty of -reconstituting legitimate judicial authority. Justice Dorlism6 says that the local
section chief is still active, and that it is impossible for him to return to his post without
improved security. Several residents claim that this section chief continues to threaten the lives
of members of popular organizations, and allege that he maintains an arms cache and has been
involved in recent violent incidents against local residents. When questioned by the Lawyers
Committee, the section chief denied that he had retained any weapons, but said that the MNF
should carry out a more sweeping disarmament campaign to protect landowners against the
peasants.

According to Mr. Dorlism6, the situation is at its worst in rural areas, where many
Aristide-appointed officials were forced into hiding. After the MNF arrived, many attaches and
other violent elements went to outlying areas to hide out and conceal their weapons. Given the
MNF's deployment bias toward Port-au-Prince, the likelihood is that the more aggressive pursuit
of arms will push dangerous elements further into largely unprotected outlying areas, where local
residents will be even more vulnerable to abuse. Compounding this problem, says Mr.
Dorlisme, is the MNF's decision to work with local judicial authorities who were appointed by
the military. This adds to the already intense feelings of local insecurity.

In some jurisdictions, the de facto authorities have been quick to exploit the MNF's
enthusiastic approach to any use of the legal process. According to local human rights groups,
one local prosecutor in Jdrdmie, said to be a FRAPH leader, has issued baseless warrants for
democracy activists, leading to the arrest of at least 17 pro-Aristide activists in one two-week
period. In another incident, reported in the local press and confirmed by the National Coalition
for Haitian Refugees, a court clerk forged the signature of the local justice of the peace on arrest
warrants against three pro-democracy activists. Only after a representative of President
Aristide's US-based liaison office convinced the local magistrate that the warrant was false did
the MNF agreed to abandon its efforts to arrest the men. By that time, local residents had
begun to conclude that the MNF was allied with the prosecutor, whom they feared because of
his FRAPH activities.

The Aristide government has reportedly issued one communique ordering all judicial
officials appointed after May 11, 1994 to leave their posts. However, this does not cover
officials appointed during the two years after the coup, when many constitutional officials fled
and were replaced. The Haitian government should act quickly to rectify this situation. Failure
to do so will create the potential for conflict between two candidates for the same post. At a







minimum, the government should publicly announce which are the legitimate authorities, what
steps it will take to restore them to their posts, and what arrangements if any will be made
for those who are forced to vacate their posts. The government must also clarify how it
proposes to deal with seats left vacant, as well as the validity (or otherwise) of orders issued by
de facto authorities. The MNF should be fully apprised of these steps and should publicly
commit itself to ensuring the safety of returning officials. This will minimize the risk of the
MNF being seen as an ally of illegitimate officials who are viewed as symbols of the coup, and
who may abuse their positions to exact revenge against Aristide supporters by means of the legal
system.'4

MNF practice should reflect greater awareness of local political and legal realities.
According to Anne Fuller, Port-au-Prince representative of the National Coalition of Haitian
Refugees, some MNF personnel were never briefed about FRAPH, and learned of its existence
only after they arrived on site in Haiti.4' There are indications that some local MNF
commanders view FRAPH and the pro-Aristide Lavalas movement as essentially equivalents and
rivals. One US major, according to Fuller, was quoted as saying that it was "unclear whether
it was FRAPH or Lavalas who were the problem." In Grand Goave, local members of a
popular organization reported being told by the MNF that FRAPH was simply another NGO,
akin to the pro-democracy groups.

The Lawyers Committee is concerned that comments such as these may reflect a
dangerously cavalier attitude to the threats to Haiti's future security. It should be recognized
that many US troops, including unit commanders, appear to be well aware of the significant role
that FRAPH and its allies have played in Haiti's human rights crisis. They have expressed
concern over the potential for increased violence if such elements believe they will not be
vigorously pursued by the MNF. The Lawyers Committee shares this concern and urges the
Haitian government, the UN and the United States to agree on a more pro-active joint strategy
for minimizing the risk of renewed high levels of violence.











4One local MNF commander had to make repeated efforts to contact the Ministry of Justice
before he could determine which of the two judges in town was the legitimate authority. Lawyers
Committee interview with Anne Fuller, National Coalition for Haitian Refugees, New York,
December 2, 1994.

4'Lawyers Committee interview, New York, December 2, 1994.