20991: Esser: The Illegal Coup in Haiti (fwd)

[Bob Corbett <corbetre@webster.edu>]

From: D. Esser torx@joimail.com

CounterPunch
http://www.counterpunch.org

March 31, 2004

The Illegal Coup in Haiti
The Kidnapping of Aristide Violated US and International Law
By MARJORIE COHN

Beginning in early February 2004, the democratically elected
President of Haiti, Jean-Bertrand Aristide, faced an armed rebellion
starting from the North of his country and moving South. The rebel
leaders, whom U.S. Secretary of State Colin Powell characterized as
"thugs and criminals," include former members of the dissolved
Haitian army, drug dealers, and members of the former paramilitary
organization universally recognized as having operated
terrorist/execution squads during the 1991-1994 military coup.

The driving force behind these rebels was Jean Tatoune, a formerly a
member of the Front Revolutionnaire pour l'Avancement el le Progres
d'Haiti (FRAPH), and Jodel Chamblain, the co-founder of FRAPH. Both
are convicted human rights violators. The nominal rebel leader was
Guy Phillipe, a well-known drug dealer, who had been implicated in
masterminding another coup attempt against the democratically elected
government of Haiti under President Preval.

The movement of the rebel army towards the South was rapid, as it was
armed with M-16s and M-60s of American manufacture, and the national
police had been eviscerated by the financial and arms embargo imposed
on Haiti for the past few years, under the false pretenses of faulty
elections.

President Aristide had accepted the proposals of the international
community, and had entreated the opposition to agree to the proposed
political solution in order to avoid the return to power of the
forces who in the past had terrorized the Haitian people.

On Feburary 26, the rebel army threatened to enter Port-au-Prince,
and threatened President Aristide's government and his life. The
civil opposition that had been calling for President Aristide's
resignation rejected the international proposals. At this point,
Colin Powell stated that the U.S. would not send troops to protect
the democratically elected government until a political solution had
been reached.

Two days later, the Steele Foundation, a U.S. company which had
provided President Aristide with security under contract, informed
him that the U.S. government had forbade the company from bringing in
additional security forces to protect President Aristide. The same
day, U.S. diplomats told the President that if he remained in
Port-au-Prince, the U.S. would not provide any assistance when the
insurgents attacked, and that they expected the President, his wife
and supporters would be killed.

Later that night, the U.S. Depute Charge de Mission (DCM) in Haiti,
Luis Moreno, accompanied by a contingent of U.S. Marines, met with
the President. Moreno told him that only if he left at that moment,
the U.S. would provide aircraft for him to leave, but that assistance
was contingent on the President providing the United States with a
letter of resignation.

In the early morning hours of February 29, the President and some
family members were taken by Moreno and the Marines to an airplane
rented by the U.S. State Department. Moreno told the President that
he must give Moreno a letter of resignation and agree to ask no
questions about where he would be taken, or the President and his
wife would be left at the airport and they would be killed.

Under extreme duress, President Aristide signed a letter of
resignation and boarded the plane. During the flight, despite their
repeated requests, the President and his wife were forbidden from
communicating with anyone in the outside world. They were never asked
whether their destination, the Central African Republic, was
acceptable to them. Because they were prevented from having any
communication, the President and his wife were prevented from seeking
the agreement of other countries to accept their arrival.

Although both George W. Bush and Colin Powell had said they would not
send U.S. troops to Haiti until there was a political solution, U.S.
troops were ordered to Haiti within one hour of President Aristide's
departure. Dick Cheney denied that the United States arrested or
forcibly ousted President Aristide, saying that President Aristide,
who had "worn out his welcome with the Haitian people," had "left of
his own free will."

Shortly after President Aristide's "resignation," Boniface Alexandre
was named acting president of Haiti. All 3,000 people held in the
National Penitentiary were freed on March 14, according to the
Associated Press. Several of these prisoners had been convicted of
massive human rights violations, or were awaiting trial for massive
human rights violations. The UN news wire reported on March 5, that
in Fort Liberte, recently released prisoners were said to be in
charge of security.

The Observer reported a security vacuum throughout the country, and
the BBC reported that rioters in Port-au-Prince looted stores,
ransacked police stations, and set fire to gas stations. There have
been many brutal reprisal attacks on political opponents,
extra-judicial arrests and killings, lack of effective civil
authority, and disruption of humanitarian aid efforts. Serious human
rights abuses, political violence, and social turbulence have
escalated to the level of a humanitarian crisis.

There has been a serious attack on the freedom of the press since
February 29. Staff from the Aristide government media continue to be
attacked and beaten, some journalists have been forced into exile,
and the U.S.-supported opposition now controls most of the airwaves.

Human Rights Watch reported on March 2 that the U.S. Coast Guard had
already repatriated at least 867 Haitians. Joanne Mariner, deputy
director of Human Rights Watch's Americas Division, said, "With
people being shot dead in the streets by gangs of criminal thugs, it
was unconscionable for the United States to dump entire families into
this danger zone." According to Mariner, "Haiti remains unstable and
insecure. The international community must take rapid steps to take
the country back from armed criminals and thugs who are now in
control of the country."

Forcible regime change violates international law

Haiti's democratically elected President Aristide was removed from
Haiti by the United States, by threat of force. Forcible regime
change violates the well-established principle that people should be
able to choose their own government. The International Covenant on
Civil and Political Rights recognizes self-determination as a human
right, and specifies that all peoples have the right to "freely
determine their political status and freely pursue their economic,
social and cultural development." The United Nations Charter also
prohibits the use of force "against ... [t]he political independence"
of another state.

The governing charters of the Americas also prohibit forcible regime
change. The Charter of the Organization of American States (OAS)
affirms that "every State has the right to choose, without external
interference, its political, economic, and social system and to
organize itself in the way best suited to it, and has the duty to
abstain from intervening in the affairs of another State."

Likewise, the Inter-American Democratic Charter, signed on September
11, 2001, reiterates the indispensability of representative democracy
and the principle of non-intervention. It provides that when a
government of a member state considers its legitimate exercise of
power at risk, it may request assistance from the Secretary General
or the Permanent Council for the strengthening and preservation of
its democratic system. Jean-Bertrand Aristide, as duly elected
President of Haiti, is entitled to request such assistance. The
Charter further provides, "In the event of an unconstitutional
alteration of the constitutional regime that seriously impairs the
democratic order in a member state, any member state or the Secretary
General may request the immediate convocation of the Permanent
Council to undertake a collective assessment of the situation and to
take such decisions as it deems appropriate."

The Security Council recognized President Aristide's resignation

On February 29, the Security Council adopted Resolution 1529, which
took note of the resignation of President Aristide and the swearing
in of Boniface Alexandre as acting president "in accordance with the
Constitution of Haiti." The Council stated in Resolution 1529 that it
was acting under Chapter VII of the UN Charter, which gives Council
decisions binding effect. In the Libya case, the ICJ deferred to the
Security Council, saying that the Council's imposition of sanctions
on Libya preempted the Court's jurisdiction. However, the Council has
not imposed sanctions in Haiti, but merely taken note of President
Aristide's resignation and the swearing-in of Boniface Alexandre as
acting president. Additionally, when Resolution 1529 was adopted,
President Aristide had not had a full opportunity to present his
allegations that he had been kidnapped and forced to sign a letter of
resignation. Any subsequent attempt to secure a new Security Council
resolution would invariably be vetoed by the United States and
France, which also supported the ouster of President Aristide. Since
President Aristide did not truly resign, as head of state of Haiti he
still has a seat at the United Nations General Assembly, and can
request a resolution condemning the coup.

Resolution 1529 also authorized the immediate deployment of a
Multinational Interim Force to Haiti. If President Aristide returned
to Haiti, the United Nations troops would be compelled to protect him.

The U.S. violated a treaty it ratified by kidnapping President Aristide

In 1976, the United States ratified the multilateral treaty,
Prevention and Punishment of Crimes Against Internationally Protected
Persons, Including Diplomatic Agents. The Republic of Haiti is also a
party to this treaty. It prohibits the intentional kidnapping or
other attack upon the person or liberty of an internationally
protected person. A Head of State and his wife - President Aristide
and Mildred Trouillot Aristide - are considered to be internationally
protected persons under this treaty.

The terms of the treaty require the U.S. to punish those responsible
for an intentional kidnapping. President Aristide could sue the
United States in the name of Haiti, on the basis of a "dispute"
arising from the failure of the U.S. to punish. Haiti could also sue
for the perpetration of the kidnapping by the U.S., based on the
Bosnian precedent. The Genocide Convention, at issue in the Bosnia
case, similarly requires states to prohibit and prevent genocide.
Bosnia argued that this also means a state can be sued for its own
perpetration of genocide. Yugoslavia as respondent objected and said
it could not be sued for perpetration. The International Court of
Justice (ICJ) agreed with Bosnia and said that even though the
Convention requires only that a state prevent and prohibit, that
impliedly includes an obligation not to perpetrate. The ICJ would
likely conclude that Haiti and the U.S. have a "dispute" by virtue of
their disagreement over whether the U.S. perpetrated kidnapping of an
internationally protected person. The ICJ would take oral testimony
and would determine whether a kidnapping occurred.

On March 8, 2004, President Aristide's lawyer, Ira J. Kurzban,
presented a written demand to Colin Powell that the United States
fulfill its international legal obligations to the Republic of Haiti
under this treaty. This letter demanded that the U.S. government
submit, without undue delay, the case to its competent authorities
for the prosecution of the U.S. nationals who organized and
implemented the kidnapping of President Aristide and his wife.

Under the terms of this treaty, any dispute between two or more
States Parties concerning its interpretation or application, which is
not settled by negotiation or arbitration, can be referred to the ICJ
by any one of those parties. Since the U.S. did not file a
declaration relating to the dispute settlement provision, it did not
opt out of ICJ jurisdiction.

The U.S. kidnapping of President Aristide violates U.S. law

United States law makes it a criminal offense for United States
persons to kidnap an internationally protected person. See 18 U.S.C.
sections 112, 878 and 1201. A prima facie case of violation of this
statute has been made out since President Aristide and his wife were
taken against their will on an aircraft registered in the United
States and owned, leased or controlled by U.S. persons.

Ira Kurzban sent a letter to Attorney General John Ashcroft asking
the Justice Department to investigate the circumstances of President
Aristide's departure from Haiti on February 29.

The U.S. repatriation of Haitians violates international law

International law prohibits rendition, or sending people back to
places where they risk being persecuted, tortured or killed. On
February 25, the United Nations High Commissioner for Refugees
recommended that neighboring countries suspend forced returns to
Haiti. Nevertheless, the U.S. Coast Guard repatriated at least 867
Haitians, which puts them in grave danger due to the current
conditions of violence and instability. The United States violated
international law by repatriating these people.

The Inter-American Commission on Human Rights should conduct an
investigation

On February 26, the Inter-American Commission on Human Rights issued
a statement deploring the violence occurring in Haiti and called
attention to the urgent need for a response from the international
community.

On March 8, President Aristides' attorney Ira Kurzban, on behalf of
the Government of the Republic of Haiti, extended a standing
invitation to the Commission to effectuate as many on-site human
rights visits as necessary to document the human rights situation in
the country, and make such recommendations as it deems necessary to
reestablish the rule of law and respect for fundamental rights. The
same day, more than 100 law professors and human rights organizations
wrote to the executive secretary of the Inter-American Commission on
Human Rights, urging that the Commission conduct an on-site visit to
Haiti to investigate the critical human rights situation there.

CARICOM, U.S. representatives, and human rights organizations call for
probe

Fourteen Caribbean nations that comprise the Caribbean Community
(CARICOM) were reportedly "extremely disappointed" at the involvement
of "Western partners" in the departure of President Aristide from
Haiti, and called for a probe into the President's charge that the
United States forced him out of office.

Several members of Congress, including Maxine Waters, called for an
investigation into the United States' role in the ouster of President
Aristide.

An international team of lawyers filed a petition in a Paris court
alleging that officials from the French and United Stats governments
kidnapped President Aristide and led a coup in Haiti.

The American Association of Jurists (AAJ), while recognizing that
during the government of President Aristide, violations of the
political and human rights of the Haitian people were committed,
declared that jurists have a duty to condemn the U.S. participation
in the planning and execution of a modern day coup d'etat which is
part of the U.S. policy of imperial conquest of the American
continent. The AAJ condemns the Haitian intervention directed by the
U.S., with France's collaboration; calls for the formation of an
independent commission of Latin American and Caribbean parliaments to
investigate the conditions under which Aristide left the Presidency
and the country, including the possible role played by the government
of the Dominican Republic in the training of armed militias and
invasion from Dominican soil; invites Latin America to demand the
immediate pullout of U.S. and French occupation troops from Haiti,
and replacement with a Latin American contingent according to the
procedures in the Interamerican Democratic Charter, in consultation
with legitimate Haitian authorities; and invites the OAS to conduct
an investigation to establish the circumstances which put Aristide
out of the office of the Presidency of Haiti.

The National Conference of Black Lawyers (NCBL) expressed "its
maximum outrage and disgust with the imperialist, lawless and brutal
campaign of terrorism that has been inflicted on the people of Haiti
by the Bush administration." The organization demanded immediate
answers to questions about "U.S. involvement with armed terrorists
who have destabilized the island nation," and called for "the
formation of a global Pan-African alliance of organizations that will
be prepared to counter future imperialist intervention through
coordinated economic warfare."

On March 27, NCBL filed a complaint with the International Criminal
Court's (ICC) prosecutor, requesting investigation of whether charges
may be brought against the Bush administration for war crimes in the
kidnapping of President Aristide from Haiti. The complaint noted that
even though neither the U.S. nor Haiti is a party to the ICC's
statute, the Central African Republic, to which President Aristide
was forcibly removed and detained, is a party to the ICC, and thus
jurisdiction would lie. It further noted that unlawful deportation or
transfer or unlawful confinement constitutes a grave breach of the
Geneva Convention, which, in turn, constitutes a war crime.

The National Lawyers Guild and several organizations and institutions
working for global justice denounced the U.S. government for its role
in the coup overthrowing the democratically elected government of
Haiti and the forced removal of President Aristide by the U.S.
military. They demanded a Congressional investigation into the role
of the U.S. government in the deliberate destabilization of the
Haitian government and the implementation of the coup; an immediate
end to the repression and daily attacks on those demanding the return
of President Aristide; and support for Haitian refugees.

The National Lawyers Guild will send a delegation to Haiti to meet
with victims, witnesses and their families and with grassroots
leaders. The delegation will investigate detention conditions for
those held in Haitian prisons and by the international occupation
troops.

The United States has rejected calls for an inquiry into President
Aristide's removal from Haiti. State Department spokesman Richard
Boucher said, "There is nothing to investigate, we do not encourage
nor believe there is any need for an investigation. There was no
kidnapping, there was no coup, there were no threats." As with the
Cheney energy task force, the 9/11 commission, and the inquiry into
the intelligence leading to the war on Iraq, the Bush administration
is resisting an independent investigation.

Marjorie Cohn, a professor at Thomas Jefferson School in San Diego,
is executive vice president of the National Lawyers Guild, and the
U.S. representative to the executive committee of the American
Association of Jurists. She can be reached at: cohn@counterpunch.org.
.