by Andy Lamey
As Goodwin-Gill pointed out, such an understanding was written into the original Reagan-Duvalier agreement that had called the interdiction program into being. That was why the Coast Guard had begun screening people in the first place: there would have been no need to maintain the charade of on-deck interviews for ten years if the Refugee Convention had never applied to begin with. Goodwin-Gill concluded that the interpretation the government put before the court was a “newly minted” one, devised after the fact to justify its repatriation policy, and the Supreme Court had failed to see through it.
Finally, there is the plain meaning of the phrase “No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever.” On the government’s interpretation, return and refouler both mean “expel.” Not only does this fly in the face of how the French word is normally used but, as Koh pointed out in his Supreme Court brief, it creates an “absurdly redundant” sentence: no contracting state shall expel or expel a refugee. As a lower court judge had pointed out, the English word return “necessarily looks ‘to’ the place ‘to’ which a refugee is returned.” The simplest and most straightforward reading of the Refugee Convention, therefore, takes it to rule out returning refugees to danger, regardless of where they are returned from. The United States government, alone among interpreters, reads the convention to say that a state can return refugees to danger if it catches them on the high seas.
In addition to the many legal arguments it made in the Supreme Court and elsewhere, the government offered a second rationale for its repatriation policy. This argument was not legal but political. It touches on what migration specialists refer to as pull factors, or the inducements that motivate people to leave home and head for a new country. Throughout the litigation, the government frequently argued that forced repatriation was the only way to prevent the United States from becoming a “magnet” for thousands of desperate Haitians. As the government put it in regard to the restraining orders that had temporarily prevented it from returning people to Haiti, “The bar to repatriations was exacerbating the crisis by providing an incentive for Haitians to take to the seas.”
Call this the humanitarian incentive argument. Its force was brought home to Bill Clinton the week before his inauguration, when he and his advisers received members of the Central Intelligence Agency in his living room in Little Rock, Arkansas. The CIA officers presented President-elect Clinton with satellite photos taken in Haiti showing thousands of people cutting down trees to make boats. Word had spread in Haiti about his campaign promise, Clinton was told, and if he followed through on it he would be responsible for a hundred thousand people taking to the seas in all manner of craft, up to ten thousand of whom could be expected to die in the crossing. (After the CIA representatives left Clinton and his transition team pondering what to do, Vice-president-elect Al Gore reportedly cut the tension in the room by quipping, “Well, that’s a worthy problem.”)
One person present at the Little Rock meeting, Deputy National Security Advisor Sandy Berger, would later express doubt about the quality of the CIA’s information. Clinton himself, however, was clearly swayed by it. After his presidency was over, it was the humanitarian incentive argument he would invoke as a defence for his actions. “Some of the criticism on the Haitian issue was justified, given the unqualified statements I had made during the campaign,” Clinton wrote in his memoirs. But other considerations, he argued, needed to be taken into account:
I wanted to make it easier for Haitians to seek and obtain political asylum in the United States, but was concerned that large numbers of them would perish in trying to get here in rickety boats on the high seas, as about four hundred had done just a week earlier. So, on the advice of our security team, I said that, instead of taking in all the Haitians who could survive the voyage to America, we would beef up our official presence in Haiti and speed up asylum claims there. In the meantime, for safety reasons, we would continue to stop the boats and return the passengers.
It was in the Haitians’ own interest, Clinton was saying, for the Coast Guard to pick them up. Despite the appearance otherwise, forcing them to return to Haiti was the most humane thing to do, as it gave people a powerful disincentive to take to the dangerous seas in the first place. According to Clinton, keeping people from leaving Haiti would be a temporary measure until he could restore Aristide to power. (He ultimately did so in the fall of 1994, when, after intense diplomatic efforts and repeated threats of military action, Haitian military leaders resigned just as U.S. forces were airborne en route to Port-au-Prince.)
Clinton’s argument that refugee claims could be processed in Haiti was one George Bush had made before him. In neither case did it meet the concerns of critics, who labelled in-country processing “a complete sham.” It was not just that Haiti became the only country on earth where in-country resettlement became a substitute for individuals being allowed to leave under their own power. In the program’s first year under Bush, of 15,580 people who asked to leave Haiti, 136 were admitted to the United States, an acceptance rate of less than 1 percent. The acceptance rate under Clinton rose to almost 8 percent, but even then critics pointed out that the people most in need of protection would be unlikely to benefit from a process that involved passing roadblocks, presenting and identifying themselves to Haitian security forces before entering U.S. processing centres (in one case located across the street from the national Haitian police headquarters) and then repeating the entire process three times over an eight-month period to obtain all the necessary paperwork. According to Harold Koh, it would be “suicide” for many refugees to go through such a procedure.
There were other problems with the government’s position. Throughout the Haitian refugee crisis, critics noted that similar measures were not employed with Cubans. When Cubans took to the sea in boats to escape their island, although they were interdicted by the Coast Guard, they were not returned to Cuba. Instead they were taken to the United States, where they have long received favourable treatment under immigration law. (Among other benefits, Cubans can file for permanent residency after living in the United States for only a year, whether they have been there legally or not.) In 1994 there was an increase in the number of Cuban arrivals. In response, Clinton reduced, but did not eliminate, the amount of favouritism shown to them. Under the so-called “wet foot, dry foot” policy, Cubans who make it to the United States are allowed to stay, whereas those stopped at sea are returned to Cuba. Cubans interdicted at sea, however, are allowed to make asylum claims. At the time of the Haitian refugee crisis, when favouritism toward Cubans was at its height, critics charged that U.S. policy toward Caribbean migrants and refugees exhibited a glaring double standard.
Joe Tringali, one of the lawyers who worked with Koh and Ratner, points out what may be the biggest problem with Clinton and Bush’s rationale: it ran together the issues of stopping unseaworthy boats and forced repatriation. These are two separate questions. As Tringali puts it:
Many of these boats I’m sure were not capable of making it to Miami, so I have no doubt that taking them off those boats and bringing them onto the Coast Guard cutters was a humanitarian act. The issue isn’t that. The issue is where do they then go? Do they go to Guantánamo or to the United States for screening to see whether or not they are legitimate refugees? Or do they get summarily returned to Haiti? That’s the real issue.… Once they are taken off those boats, should they be given some sort of hearing, or do you just summarily repatriate then and not even hear what [was] their basis for fleeing?
It was a strange form of humanitarianism, Tringali and others pointed out, that involved forcibly returning people to the clutches of a military dictatorship they had fled. More to the point, there were steps Bush and Clinton could have taken to deal with the refugee crisis other than admitting them all to the United States. One possibility was to set up a genuinely humanitarian camp at Guantánamo, run by the United Nations High Commissioner for Refugees or some other non-military organizat
ion, where refugees could be screened and the deserving cases resettled in the United States and elsewhere. “Our complaint was not with Guantánamo per se, but with the United States military’s treatment of refugees there,” Koh noted after the case was over. “With enough jawboning, the United States surely could have persuaded other nations in the region—such as Canada, Venezuela, and Mexico—to take their share of refugees while the political crisis in Haiti was being negotiated.” In the 1950s, the United States had participated in just such an action on behalf of 180,000 Hungarians. Similarly, in the 1960s and 1970s, mass exoduses of boat people from Cuba had been dealt with without forced repatriations. But there was never any similar effort on behalf of Haitians.
In its brief before the Supreme Court, the UNHCR had predicted that a decision by the United States to return refugees to danger “may well influence, for years to come, the behaviour of other countries.” These fears were soon borne out. In November of 1992, six months after George Bush issued his Kennebunkport order, the government of Thailand told the General Assembly of the United Nations that the U.S. policy of repatriating Haitian refugees demonstrated that the principle of first asylum was a “clever ploy” and a “Machiavellian device designed to satisfy and calm the conscience” of Western governments. Shortly after the Sale decision came down, Thailand engaged in mass expulsions of thousands of Burmese and Cambodian refugees.
An even more dramatic shift occurred in Tanzania. The East African country has traditionally been one of Africa’s most generous refugee-receiving nations: in 1979 it had even extended citizenship to thirty-six thousand Rwandans in an act of mass welcome. But when roughly forty thousand refugees tried to enter Tanzania from Burundi in March of 1995, the Tanzanian government closed its border to prevent half of them from entering, and announced plans to expel all refugees already inside its borders. A key factor that prompted Tanzania to take such a severe step was the example set by the United States. Speaking at a refugee conference six months after the border closure, Tanzania’s then foreign minister, Joseph Rwegasira, singled out the U.S. interdiction program as a precedent that had inspired his government. “Citing the example of the Haitian refugees,” a conference organizer wrote in summarizing the minister’s speech, “[Rwegasira] said that it was a double standard to expect weaker countries to live up to their humanitarian obligations when major powers did not do so whenever their own national rights and interests were at stake.”
If incentives were the issue, the United States had provided one to any country looking for an excuse to turn refugees away.
Haitians sailing for the United States today continue to be turned away in large numbers. In the ten-year period between October 1999 and September 2009, the Coast Guard interdicted 17,254 Haitians, slightly less than the 18,230 Cubans stopped during the same period. Whereas Cubans are read a statement inviting them to express any fear of persecution, Haitians are given no such invitation. Instead, Coast Guard personnel decide whether to ask them about persecution according to a procedure known as the shout test. “Although the shout test purportedly allows a person to be interviewed for a credible fear who ‘indicates’ a fear,” Bill Frelick of Amnesty International has written, “in practice the ‘shout’ nomenclature seems to be closer to the mark. Only those who wave their hands, jump up and down, and shout the loudest—and are recognized as having done such—are even afforded, in theory, a shipboard refugee pre-screening interview.”
The result of this process has been similar to that of the 1980s version of interdiction. In 2005, when 1,850 Haitians were interdicted, nine people shouted loud enough to be deemed worthy of a credible-fear interview. Of these, one eventually passed a full interview at Guantánamo and was granted refugee status. Unlike during the 1980s, the tiny number of Haitians who are recognized as refugees today are not permitted to go to the United States, but are resettled in third countries (as are interdicted Cubans). Compared to the 1980s, in recent years there has been less pretense that the United States is not returning refugees to danger. As George W. Bush remarked in 2004, “I have made it abundantly clear to the Coast Guard that we will turn back any refugee that attempts to reach our shore.”
Years after the Haitian refugee crisis, Guantánamo Bay would again feature in a major human rights controversy. During the so-called War on Terror that followed the September 11 attacks, suspected members of al-Qaeda and the Taliban were taken to the Cuban facility and classified as “enemy combatants.” According to officials in the administration of George W. Bush, they were not subject to Geneva Convention protections regarding prisoners of war. The rationale for bringing War on Terror detainees to Guantánamo was made explicit by Mitt Romney, a 2008 candidate for the Republican presidential nomination, who stated, “I want them on Guantánamo, where they don’t get the access to lawyers they get when they’re on our soil.” Michael Barr says the role Guantánamo played under George W. Bush was foreshadowed by the similar role it played during the Haiti crisis. “The legal and political antecedent of the idea of a law-free zone on Guantánamo today lies in the treatment of Haitian refugees fifteen years ago.”
Both during the Haiti crisis and after, a key question about Guantánamo was the issue of its sovereignty. According to the 1903 lease of the base, Cuba retains “ultimate sovereignty” over the facility while the United States enjoys “complete jurisdiction and control.” The reference to Cuban sovereignty was used by Clinton and both Bush administrations, father and son, to argue that the U.S. constitution and the rights it upholds do not have legal force at Guantánamo. Critics of this view, however, have noted that the wording of the lease is confusing: the term sovereignty is somehow detached from its common meaning, which is “jurisdiction and control.” As one observer has put it, it is as if Cuba’s sovereignty has somehow become purely “metaphysical.”
The ambiguous nature of Guantánamo’s sovereignty complicates Hannah Arendt’s analysis of the relationship between sovereignty and human rights. Arendt, as we saw, argued that the special vulnerability of refugees was rooted in the division of the globe into sovereign states. Yet in the Haitian refugee crisis, asylum-seekers received better treatment on the U.S. mainland, where U.S. sovereignty is unambiguous, than they did at Guantánamo, where it is not. This possibility is not really allowed for under Arendt’s view of sovereignty, which portrays sovereignty not only as something absolute and not given to degrees but also as more of a threat to the rights of refugees the starker and less ambiguous it is.
Arendt, however, was writing in the 1950s, long before Guantánamo ever became a “rights-free zone.” An explanation of how the base came to perform this role can be gleaned from the writings of contemporary political scientists, who reject Arendt’s monolithic view of sovereignty and prefer to distinguish between its different aspects. It has become common, for example, to distinguish between sovereignty understood as recognition by other states and sovereignty as effective control. The difference between these two aspects of sovereignty can be seen by contrasting Taiwan and Somalia. Because of pressure from China, which claims Taiwan for itself, many states today do not officially recognize Taiwan, which has no seat at the United Nations. The Taiwanese government nevertheless manages to govern its own territory. It thus enjoys sovereignty in the sense of control but not in the form of recognition. Somalia, by contrast, descended into anarchy and civil war in the early 1990s, to the point that many parts of the country came under the control of armed warlords. In 2000, a government in exile was formed, which has spent much of its time in Kenya, and which holds Somalia’s seat at the UN. It is a regime that enjoys sovereignty in the form of recognition but not at the level of control.
What is unusual about Guantánamo’s lease is that it formally separates sovereign recognition from sovereign control, granting recognition to Cuba and control to the United States. The result has been the creation of a territory where the U.S. government enjoys great power with little accountability; an arrangement that has proven disastrous from th
e point of view of human rights.
If Arendt’s analysis cannot explain everything about the Haitian refugee crisis and its aftermath, much of what she said nevertheless remains prophetic. In one instance this was literal. “We became aware of a right to have rights,” Arendt wrote of refugees in 1951, “only when millions of people emerged who had lost and could not regain these rights.” Nizar Sassi, a French Guantánamo detainee, could not have made the parallel between Guantánamo prisoners and refugees more explicit when in 2002 he wrote a postcard to his family that contained the only political statement known to evade Guantánamo’s mail censors: “If you want a definition of this place, you don’t have the right to have rights.”
On a broader level, the Haitian refugee crisis illustrates Arendt’s claim that universal human rights will not necessarily be enforced by particular sovereign states. It is not just that throughout the case lawyers for the American government argued that the forced-return policy was undertaken “for the purposes of protecting the sovereignty” of the United States. In their decision, the Supreme Court justices who decided the non-return case gave the last word to a lower court judge whose sentiments they felt expressed their own: “This case presents a painfully common situation in which desperate people, convinced that they can no longer remain in their homeland, take desperate measures to escape. Although the human crisis is compelling, there is no solution to be found in a judicial remedy.”
Writing about refugees forty years earlier, Arendt had stated that “their plight is not that they are not equal before the law, but that no law exists for them.” It was as if the court deliberately set out to confirm Arendt’s most bitter and pessimistic claim. Arendt had written that so far as Europe’s liberal democracies were concerned, refugees were “the scum of the earth.” So far as the law of the United States is concerned, refugees interdicted at sea have the same status. They are human insofar as they are members of our species, but less than human insofar as there is no law to protect them.
