Inter-American Court Receives Case about Military Jurisdiction in Human Rights Cases and Discrimination against Haitians and Dominicans of Haitian Descent

Haitians cross the Dominican border on a bi-national market day. Photo by Kena Betancur/viewpressphoto.com.

In February 2011, the Inter-American Commission on Human Rights (Commission) submitted the case of Nadege Dorzema et al (“Guayubín Massacre”) v. Dominican Republic to the Inter-American Court of Human Rights (Court) for adjudication. The case involves the alleged murder of six Haitian migrants and one Dominican by members of the Dominican Border Intelligence Operations Department, which is part of the Armed Forces. The victims allege they were travelling by truck to Santiago de los Caballeros in the Dominican Republic on the day of the bi-national market when soldiers began firing on them with M16 rifles. The petitioners allege that, although the migrants’ vehicle overturned because the driver had been shot and killed, the soldiers continued to fire at them as they attempted to flee by foot. The State claims that the soldiers shot at the truck’s tires because it ran through a military checkpoint, and the soldiers believed they were transporting drugs.

Although the petitioners requested that the case be tried in the civilian court system, the soldiers were tried in military courts. The petitioners allege that the military court disallowed the presence of victims and their families at court proceedings. After several years, the military court acquitted the soldiers. The petitioners also allege that Dominican authorities arbitrarily detained and then expelled some of the victims from the Dominican Republic without explaining the reason for their detention or investigating their migration status through judicial or administrative means. The petitioners allege that the Dominican Republic violated their rights protected by the American Convention on Human Rights, including the to life (Article 4), humane treatment (Article 5), personal liberty (Article 7), fair trial (Article 8), equal protection (Article 24), and judicial protection (Article 25).

The Commission noted in its admissibility report that it “has repeatedly found that the military courts are not an appropriate forum” for investigating, prosecuting, and punishing potential human rights violations perpetrated by members of the military. The Commission’s concern regarding this issue is further evidenced by the hearing it held during its 140th Period of Sessions on the application of military jurisdiction in cases of human rights violations in Colombia. Moreover, the Court recently ruled in two cases that Mexico improperly used its military courts to investigate and prosecute civilian rape allegations against Mexican military members. In another case against Mexico, the Court similarly found that the use of military jurisdiction in human rights cases is contrary to the American Convention on Human Rights. Furthermore, in cases against Colombia, Peru, and Chile, the Court has repeatedly held that military courts should only have jurisdiction over crimes or offenses impacting the military’s legal interests, specifically the functions the law assigns to the military.

Aside from the recurring theme of the impropriety of military jurisdiction in human rights cases, the submission of this case to the Court additionally makes clear the Inter-American system’s great concern with mistreatment of Haitians and Dominicans of Haitian descent in the Dominican Republic. Of the six petitions against the Dominican Republic submitted to the Commission, the last three involved the forced expulsion of and discrimination towards Haitians or Dominicans of Haitian descent. In its 141st Period of Sessions, the Commission heard from the Dominican Republic on modification of its Civil Register. Though the Civil Register system has received significant criticism for allegedly rendering stateless thousands of children of Haitian ancestry born in the Dominican Republic, the state emphatically stated that it does not have a policy of discrimination based on race or national origin. Moreover, the Commission heard from various civil society organizations at a similar hearing on the Dominican Constitution and right to nationality during its 140th Period of Sessions in October 2010.

Both hearings follow the 2005 ruling on Yean and Bosico v. Dominican Republic. In Yean and Bosico, the Court held that withholding birth certificates from two girls born in the Dominican Republic to Dominican women of Haitian descent, thereby leaving them stateless, was a violation of their rights under the American Convention. It also found that the withholding of birth certificates runs contrary to the Constitution of the Dominican Republic, which affords birthright citizenship to those born in the country, except the children of diplomats or individuals “in transit.” Therefore the Court’s decision on Guayubín Massacre will likely serve as further indication of Inter-American system pressure on the Dominican Republic to address the systemic discrimination towards those of Haitian ancestry.

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