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Max Planck Encyclopedia of Public International Law [MPEPIL]

Haiti, Conflict

Julia Leininger

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 20 June 2019

Subject(s):
Sovereignty — Islands and artificial islands — Territory, title — Armed conflict, non-international — Peace keeping — Armed forces — Humanitarian intervention — Occupation — Belligerence — States, independence — Jurisdiction of states, territoriality principle

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  History

Haiti is a country with an area of 27.750km2 and 8.6 million inhabitants. It is located on the Caribbean island of Hispaniola, which, in turn, is unusual in that it includes two countries on its territory: Haiti and the Dominican Republic. Internally, Haitian society is marked by a bi-polar political, social and economic structure, which deeply divides State and nation (Nations). The State has been politically and economically dominated by a small mulatto elite (approximately 5%), whereas the nation comprises a politically marginalized majority of black peoples (approximately 95%). Against this background Haiti is characterized by political, economic and ecological instability, authoritarian leadership, as well as a culture of violent conflict resolution in order to solve social disputes.

Throughout its history Haiti has been struggling for international sovereignty for three reasons. First, sharing the territory of one island with another State caused border conflicts (1804–59); second, Haiti was a playing field in global competition for markets and political influence of major powers such as the United States of America (‘US’), Great Britain, France, and Germany (1804–41); third, starting in 1994, Haiti was the object of international military intervention, which stands in the context of the growing recognition of an international responsibility to protect. Overall, Haiti is one of the cases often stressed in academic debates on issues of international sovereignty.

1.  Sovereignty

(a)  Decolonization, Independence, and State-Building (19th Century)

Haiti was under colonial rule from 1492–1804. Discovered by the Spanish in 1492, the island of Hispaniola was named the colony of Santo Domingo in 1496. But soon thereafter European powers—namely France, the Netherlands and England—started to oppose the Spanish-Portuguese division of the world as agreed in the Treaty of Tordesillas of 1494 (Colonialism). Thus, Santo Domingo became subject to claims of tenure by these opposing States. After having captured parts of western Hispaniola, France declared the west of the island unilaterally as a French colony in 1665. From there on conflicts emerged between France and Spain, which were pacified by the Peace of Rijswijk (1697). Hence, Spanish rule over the island as a whole ended, and the French colony of Saint Domingue was created in the western part of Hispaniola. Throughout the following century border conflicts between the colonies erupted, which were temporarily solved by the Treaty of Aranjuez in 1777.

At the end of the 18th century, a complex process of independence from colonial power began, inspired by the French Revolution of 1789. This process started with an uprising of black slaves in 1791 (Slavery), went through internationalization due to the war between France, England and Spain of 1793 and ended in 1804, when black leaders defeated French troops and finally succeeded in obtaining the independence of Saint Domingue from France. Subsequently the State of Haiti was proclaimed. Thus the first independent State in Southern America had been created, known usually as the ‘Slavery Republic’. Nonetheless, State formation had just begun at this point. Due to rivalries amongst the political elite, Haiti was split into a northern and a southern part from 1806–20. Spanish colonial rule ended in Santo Domingo in 1821 and Haiti feared that the great powers could intervene in the eastern part of Hispaniola in order to conquer the whole island. Therefore, Haitian authorities claimed that the whole island must be Haitian. In 1822 Haiti occupied Santo Domingo for 22 years. In 1844 the Dominican Liberation Movement succeeded and brought independence to the western part of Hispaniola. Various Haitian attempts to reconquer Santo Domingo failed and were ended with the Haitian-Dominican Treaty of 1859.

International recognition (at the time being considered a constitutive element of a State by the then prevailing view [constitutive theory], whereas today this no longer applies [declaratory theory]) was given very slowly to Haiti. It took more than 29 years before European States recognized Haiti (eg Great Britain in 1825 and France in 1838). Only in 1862 did the US Congress recognize Haiti by declaration. Recognition had taken so long because US slaveholders feared the example of the Haitian ‘black revolution’ of 1804. Nevertheless, in 1864 US recognition of Haiti was underlined by the Treaty of Amity, Commerce and Navigation and Extradition between Haiti and the US. (Treaties of Friendship, Commerce and Navigation).

(b)  US Control of Haiti (1915–34)

Throughout the second half of the 19th century political and social instability prevailed in Haiti. European States and the US held up their geopolitical and economic interests in the Caribbean country. Bearing on the Monroe Doctrine of 1823 the US claimed prior influence on Haiti (Doctrines [Monroe, Hallstein, Brezhnev, Stimson]). Thereby US-Haitian trade, and private as well as official financial relations, were strengthened. For instance, the US became the largest shareholder in the Haitian National Bank by 1910. Once the Haitian economy threatened to decline, US interests were automatically at stake. Overall, in the period 1857–1900 the US intervened 19 times in Haiti due to various financial crises which had primarily concerned US private business.

In 1914 Haiti reached a tremendous level of financial debt which brought the State near to collapse and ended in deep, violent crisis. In June 1915 France reacted at first to this situation by landing a small armed force in order to protect the French embassy. In the same month US marines landed in Haiti, arrived at the capital on 27 July and disarmed official Haitian soldiers as well as non-State rebels. The US gave three reasons for intervening in Haiti: first, preservation of national order; second, protection of US diplomatic and economic legations, foreign capital and property; third, infringement of the Monroe Doctrine because of French ‘intervention’. The latter must be considered unfounded because France had limited its activities to the grounds of the French embassy.

The US presence in Haiti lasted from 1915 to 1934. It constituted an illegal de facto control of Haitian territory. US control was intended to be legalized by the Treaty between Haiti and the US relative to the Administration, Finances and Economic Development of Haiti of 16 September 1915. It comprised US control of finances and customs, economic development and tranquillity in Haiti. The treaty was to remain in force for 10 years from the date of exchange of ratifications on 3 May 1916. In March 1917 it was extended until 1936. But the legality and legitimacy of the treaty were limited because signature and ratification had only been achieved under use of force by the US. During the US presence in Haiti, martial law was enforced, a client-president of the US was introduced, and the Haitian legislature was dissolved in 1917 and not restored until 1930. Moreover, the US’s broad control of Haiti did not meet the requirements of legal occupation as stipulated in The Hague Regulations of Land Warfare of 1899 and 1907 because the US did not declare an ‘intention and will to act as sovereign’ (Hailbronner 208), although it exercised de facto authority. (Occupation, Belligerent).

US intervention—headed by a military high commissioner—was meant to create an environment conducive to US capital investment by resuming complete financial control of Haiti, including customs. This aim was opposed by various uprisings against US forces and their client-governments, but all of them were defeated. In 1929 violence against the interveners increased greatly, leading to the Massacre of Cayes, where US forces killed Haitians. In the aftermath no new client-president could be installed. In consequence the US decided to withdraw from Haiti. The US Congressional Forbes Commission was sent to Haiti by President Herbert C Hoover in order to plan this withdrawal. It assessed the failure of the occupation. On 7 August 1933 an executive accord was signed between the presidents of Haiti and the US. This accord predefined US financial supervision of Haiti until 1952 and US military withdrawal by October 1934. Indeed, the last US marines left Haiti in August 1934, whereas US fiscal control continued until 1941.

10  In the period 1941–57 five presidents ruled a continuously unstable Haiti. In 1957 François Duvalier, known as ‘Papa Doc’, was elected and established a repressive authoritarian regime which endured until 1979. He was succeeded by his son Jean-Claude Duvalier, also called ‘Baby Doc’ (1979–87). After three decades of dictatorial rule, popular protests and claims of the political and economic elite forced ‘Baby Doc’ to escape the island. Although dictatorship had ended, a new conflict emerged.

2.  Genesis of the Conflict in the 1990s

11  From 1987 onwards a period of coups and countercoups paralysed the country and hindered democratic elections. Finally, the first free and fair elections in Haitian history took place in November 1990, under intense observation from the international community, especially the United Nations (UN) Observer Group for the Verification of the Elections in Haiti (‘ONUVEH’). The winner of these elections was Jean-Bertrand Aristide, who took over presidency in February 1991.

(a)  Coup d’état against the First Haitian Democratic Government (1991–94)

12  On 29 September 1991 the legitimate government of President Aristide was overthrown by a military coup d’état. Thereafter Haiti was once more governed de facto by a military regime which ruled constantly by means of repressive violence (De facto Regime; Military Government). Aristide went into exile in the US.

13  The Organization of American States (OAS) reacted immediately. It applied Resolution 1080, which calls upon the OAS Secretary-General to convene a meeting of the OAS Permanent Council when facing the:

sudden or irregular interruption of the democratic political institutional process or of the legitimate exercise of power by the democratically elected government in any of the Organization’s member states, in order … to examine the situation, decide on and convene an ad hoc meeting of the Ministers of Foreign Affairs, or a special session of the General Assembly, all of which must take place within a ten-day period. (OAS Res 1080 [5 June 1991] 4)

14  Subsequently, the OAS undertook various efforts to promote and restore democracy in Haiti. Activities ranged from diplomatic to coercive means (Coercion), eg from delegating a fact-finding mission to the implementation of an oil and arms embargo, which was imposed by the UN Security Council (‘UNSC’) upon request of the OAS (see OAS Res 594 [10 November 1992]). United Nations, Security Council [‘UNSC’]).

15  Only in November 1992, when OAS measures were still unsuccessful, did the UN and the US intensify their efforts and foster the closure of two agreements between the conflicting parties: the Governors Island Agreement of 3 July 1993 comprehended, inter alia, the return of President Aristide to Haiti on 30 October 1993; and the New York Pact invited Aristide to appoint a new Prime Minister. Whereas the latter was fulfilled by August 1993, the former failed to be implemented by the parties to the conflict. Finally, the UNSC authorized a military intervention in 1994 which had the mandate to sustain and secure a stable environment in Haiti (UNSC Res 940 [1994] [31 July 1994]; see for further details para. 20 below). The military junta handed over power in October 1994. Consequently, President Aristide returned to the country on 15 October.

(b)  Ousting of President Aristide’s Government (2004)

16  After Aristide’s reinstallation in 1994 Haiti remained a fragile State. Its capacity was limited because it lacked armed forces after army dissolution in 1995 and political decisions were blocked. In 2000 a conflict emerged after the fraudulent election of President Aristide. Hence, polarization between government and opposition increased, ending in armed quarrels. This relapse into conflict was again answered by the OAS, which established an OAS special mission to strengthen democracy in Haiti in order to facilitate dialogue between the conflicting parties (OAS Res 772 [4 August 2000]). Despite OAS negotiation efforts the situation deteriorated further.

17  In 2004 violent opposition against Aristide grew, rebel groups occupied nearly half of the country and fights between Aristide’s paramilitaries and rebels paralysed the State. Finally, on 29 February 2004 Aristide renounced the presidency and fled the country. Before leaving, he had submitted a letter to the US embassy through which he had announced his resignation in order to avoid a bloodbath in Haiti. After he had left the country in a US chartered plane to the Central African Republic, he claimed that he was forced to leave the country by the US and France. His position was backed by the Caribbean Community (CARICOM). CARICOM presumed that the US and France had intervened in Haitian internal affairs by overthrowing President Aristide (Intervention, Prohibition of). But since Aristide had declared verbally and in written form his will to step down from the presidency, there were no signs of a breach of Art. 2 (4) UN Charter by the US and France and their logistic support.

18  Similarly to international engagement during the first Haitian crisis of 1991, the UN, US, and France took a leading role with regard to fostering peace-making and -building in Haiti (Peacebuilding). To this end once again international military intervention was authorized by the UNSC in 2004 by sending the MINUSTAH, the UN Stabilization Mission in Haiti (UNSC Res 1529 [2004] [29 February 2004]; see for further details para. 24 below). Also, UN Secretary-General Kofi Annan appointed a special representative for Haiti in order to observe the situation in the country (UNSC ‘Report of the Secretary-General on Haiti’ [16 April 2004]). From 2004 to 2006 violent fights continued and criminality increased, whereas the MINUSTAH made efforts to contain conflict. On 14 February 2006, democratic elections successfully took place. Since then Haiti’s situation has been gradually improved.

B.  UN Missions to Haiti

19  Nowhere in the world have as many UN missions been stationed as in Haiti. Altogether five UN peacekeeping and two UN civilian missions have been deployed since 1993 (Peacekeeping Forces). During the two peaks of Haitian conflict, in 1994 and 2004, international intervention followed one and the same scheme. First, a US-led international military intervention took place in direct reaction to a breakdown of democratic order in Haiti (both were provided with a mandate by the UNSC). Subsequently, these unilateral missions were replaced by UN peacekeeping missions, the UN Mission in Haiti (‘UNMIH’) and the MINUSTAH. Nevertheless, in 1994 and in 2004 coercive measures differed decisively with regard to their end. The military intervention of 1994 addressed the restoration of democratic order by ousting a de facto regime, whereas the use of force in 2004 was meant to support democracy by stabilizing the fragile country.

1.  UNMIH (1993–96)

20  The UNMIH was provided for in the Governors Island Agreement and supposed to start its work in October 1993. Deployment was delayed because the Haitian military junta hindered its landing on the island. UNMIH was only deployed in March 1995, succeeding the US Multinational Force. UNMIH’s mandate included the assistance of the democratic government of Haiti to sustain a secure and stable environment (see UNSC Res 944 [1994] [29 September 1994]). It consisted of police and military components. The former were to assist in the establishment of a new police force and to verify that the existing security forces would respect human rights, whereas the latter were to support the Haitian armed forces in non-combat activities. After 15 months on the ground, UNMIH left Haiti in June 1996, its mandate only partly fulfilled. Although it was effective in providing humanitarian aid and electoral assistance, it did not reach its primary goal of establishing a functioning police force. Nevertheless, UNMIH adopted one sustainable innovation, which has continued since then; it integrated the United Nations Development Programme (UNDP) into its work.

2.  UNSMIH (1996–97); UNTMIH (1997); MIPONUH (1997–2000); MICAH (1999)

21  After the departure of UNMIH Haiti remained unstable due to a lack of security forces. Against this background the UN Secretary-General had recommended continuing UN engagement up to 1996 (see UNSC ‘Report of Secretary-General on the United Nations Mission in Haiti’ [5 June 1996]). Subsequently three more UN missions followed UNMIH until the beginning of 2000: the UN Support Mission in Haiti (‘UNSMIH’), the UN Transition Mission in Haiti (‘UNTMIH’) and the UN Civilian Police Mission in Haiti (‘MIPONUH’). They were all requested by the Haitian President, René Préval, in order to support the establishment and training of the Haitian National Police (see UNSC ‘Letter Dated 31 May 1996 from the President of the Republic of Haiti Addressed to the Secretary-General’ [12 June 1996]; UNSC ‘Letter Dated 13 November 1996 from the President of Haiti Addressed to the Secretary-General’ [18 November 1996]; UNSC ‘Letter Dated 29 October 1997 from President Préval to the Secretary-General’ [31 October 1997]). Only UNSMIH’s mandate was broadened to support coordination of the UN system’s efforts to ‘promote institution-building, national reconciliation and economic rehabilitation’ (UNSC Res 1063 [1996] [28 June 1996]). In the case of the other two missions, the mandates were successively reduced to mere police activities, meaning that MIPONUH had no military component. The success of all three missions was restricted due to their narrow mandates and reduced contingents.

22  Once ended, MIPONUH was substituted by a civilian support mission, MICAH, the International Civilian Support Mission in Haiti, which operated for one year (see UNSC Res 1277 [1999] [30 November 1999]; UN General Assembly Res 54/193 [17 December 1999]).

3.  MICIVIH (1993–2000)

23  The International Civilian Mission in Haiti (‘MICIVIH’) was established in December 1993. It was unique in two aspects. First, MICIVIH was the first joint mission between the UN and a regional organization, namely the OAS. It reported to the UN Special Representative to Haiti instead of the UN General-Secretary. Second, no other mission ever spent more time in Haiti. MICIVIH was given the mandate to monitor and report on the Haitian human rights situation, conduct human rights education and support police and prison reform. In carrying out this task, particularly in human rights education, MICIVIH was successful. Twice during its mission, MICIVIH was evacuated: the first time by the UN when the Haitian military junta hindered UNMIH’s deployment in December 1993; the second time, MICIVIH was expelled by the junta when tensions increased before Aristide’s return in July 1994. Both occasions influenced the UNSC decision-making with regard to intensifying coercive measures, according to Resolution 940 (see para. 25 below).

4.  MINUSTAH (2004–)

24  MINUSTAH constitutes the international reaction to the ousting of President Aristide on 29 February 2004. In Resolution 1529 (2004) of 29 February 2004 the UNSC stated that ‘the situation in Haiti constitutes a threat to international peace and security, and to stability in the Caribbean’ (at 204). Against this background MINUSTAH was granted an invitation by the Haitian interim President Boniface Alexandre. MINUSTAH was given the mandate to ensure a stable and secure environment (police reform, rule of law, military activities), support the political process (democratic elections, decentralization), and monitor as well as report on the human rights situation (see UNSC Res 1576 [2004] [29 November 2004]). On the operative level this comprehensive approach to peacekeeping is reflected in an innovative full integration of other UN agencies into MINUSTAH. Initially, MINUSTAH had difficulties in contributing to the stabilization of Haiti. Only when it adopted a more robust approach in 2005 did the security situation, especially in the slum areas of Port-au-Prince, improve. MINUSTAH’s efforts helped to make the holding of democratic elections possible in February 2006. Since then, the situation has been improving. Nevertheless, the security situation remains fragile. Crucial tasks to ensure sustainable stability are still to be tackled, eg disarming former militia members and criminals, implementation of the rule of law, and the formation of a functioning police force. Correspondingly, the UNSC recognizes that peacekeeping in Haiti has to be a long-term effort (see UNSC Res 1840 [2008] [14 October 2008]).

C.  Legal Impact of UNSC Resolution 940: An ‘Emerging Right to Democracy’?

25  The unilateral intervention ‘Uphold Democracy’ in Haiti on 19 September 1994 as well as the following UN peacekeeping mission was authorized by UNSC Resolution 940 (1994) of 31 July 1994 in order to support the ‘restoration of democracy in Haiti and the prompt return of the legitimately elected President Jean-Bertrand Aristide’ (at 52). This authorization of coercive measures for the sake of democracy under Chapter VII UN Charter has caused an ongoing debate on the status of democracy in international law.

26  From one point of view UNSC Resolution 940 is considered to be illegal because a break with a democratic order as such cannot be considered a threat to international peace and security as provided in Art. 39 UN Charter. Furthermore, democracy is an internal matter of State. Thus, the UNSC lacks authority to apply coercive measures in order to restore democracy in a State (see Falk). Consequently, UN military action against the Haitian military junta in 1994 violates Haiti’s sovereignty pursuant to Art. 2 (1) UN Charter. (States, Sovereign Equality).

27  In contrast, a second point of view considers that the UNSC’s authorization of use of force in the case of Haiti in 1994 was legitimate because of the specific circumstances, which lead to the UNSC’s decision-making as well as the invitation to intervene from President Aristide (see Corten) (Intervention by Invitation).

28  A third point of view holds that UNSC Resolution 940 is a precedent for the use of force in order to restore democracy. Against this background UNSC Resolution 940 is furthermore regarded as one foundation for an emerging right to democracy (see Franck [2000] 35–36).

29  UNSC Resolution 940 can be considered to be legal and legitimate for the following reasons: humanitarian reasons and uniqueness. By stating ‘that the situation in Haiti continues to constitute a threat to peace and security in the region’ (UNSC Res 940 [1994] [31 July 1994]) and by reaffirming that restoration of democracy in Haiti remains the goal of the international community, the UNSC affirmed that the break with democratic order in Haiti was the source of humanitarian deterioration, which, in turn, constituted a threat to peace. The UNSC reverted to an argument known from the Somalian case of the same year (see UNSC Res 897 [1994] [4 February 1994]), which meanwhile has evolved into a recognized practice in international law. Since the concept of security was broadened throughout the 1990s, humanitarian aspects such as the gross abuse of human rights became more important when identifying a threat to peace. In the case of Haiti the UNSC highlighted in Resolution 940 that a ‘deterioration of the humanitarian situation’ could be observed in Haiti. It was a fact that human rights abuses were systematically carried out and socio-economic conditions declined greatly under the rule of the military junta. As a result of these facts thousands of Haitians fled to the Dominican Republic or to the US. In consequence, humanitarian distress was being caused. Moreover, although this humanitarian situation has to be evaluated in the light of an international consensus on the need for humanitarian intervention, it must not lose sight of the special circumstances in the Haitian case, which must not be interpreted as a general affirmation applicable to any other case. The UNSC had signalled its reservation to the Haitian case by emphasizing the ‘unique character of the present situation in Haiti’.

30  The UNSC constantly emphasized the role of the OAS (see eg UNSC Res 917 [1994] [6 May 1994]; UNSC Res 940 [1994] [31 July 1994]). Pursuant to the preamble of the OAS Charter (of which Haiti has been a member) and OAS Resolution 1080, ‘representative democracy is an indispensable condition for the stability, peace, and development of the region’ (OAS Res 1080 [5 June 1991] 4). From the beginning of the 1990s OAS Member States have been underpinning their commitment to democracy with their respective international State practice, such as actively making use of OAS Resolution 1080. Thus, from the OAS perspective a break with democratic order within this particular region must be interpreted as a threat to international peace.

31  Besides the specific regional circumstances of the Haitian case, the UNSC’s decision of 31 July 1994 to authorize military intervention in Haiti came at the end of a series of resolutions and measures, including economic sanctions, which had proved inadequate. At the same time the military junta continued to abuse human rights systematically and refused co-operation with the UN by expelling the UN’s civil mission MICIVIH. Considering this situation and the failure of non-military measures, UNSC Resolution 940 was an ultima ratio and an adequate means to rectify the specific Haitian situation.

32  President Aristide had come to power after internationally observed (ONUVEH) democratic elections in 1991. He was internally and internationally recognized as the legitimate president of Haiti. This international recognition continued explicitly after the coup d’état, whereas the military junta was explicitly called an ‘illegal de facto regime’ (UNSC Res 940 [1994] [31 July 1994]). In July 1994 Aristide asked for the support of the UN in order to implement the Governors Island Agreement, including the use of force, if necessary (see UNSC ‘Letter Dated 29 July 1994 from the President of the Republic of Haiti Addressed to the Secretary-General’ [29 July 1994]). Thus, this request must be considered as a request from a UN member for international support. Consequently, UNSC Resolution 940 authorized a military intervention by invitation. UNSC continued this practice in the case of Sierra Leone in 1998 (see UNSC Res 1181 [1998] [13 July 1998]; UNSC Res 1270 [1999] [22 October 1999]).

D.  Conclusion

33  Although the political and democratic situation improved after national elections in 2006, Haiti remains a fragile State due to a lack of monopoly of state authority. While armed groups challenge the State frequently, human rights are continuously violated and cannot be guaranteed. A notorious lack of rule of law and functioning police forces aggravates this further. Consequently, Haitian society faces persistent impunity of human rights violations, constant imprisonments without due process and trafficking in people. Also political, social and economic rights are at stake, in particular the freedom of the press cannot be guaranteed, child labour exists permanently, and people lack economic security. Hunger and poverty—reinforced by a global increase in food prices—caused major social protests in 2008 and led to a setback in the already weak security situation. Against this background international peacekeeping and peace-building efforts in Haiti may only be successful in the long term.

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