Foreign Head of State Immunity: Lafontant v. Aristide (1994)
In 1994, Haitian president Jean-Bertrand Aristide, while he was in exile in the US after being overthrown in 1991, was dragged into court by Roger Lafontant’s widow, Gladys. She had accused the then deposed president of killing her husband on the night of September 29, 1991.
Immunity granted to foreign heads of state in the United States
The case of:
Lafontant v. Aristide (1994)
The Aristide v Lafontant case concerns the immunity granted to foreign heads of state in the United States, preventing them from being prosecuted on American soil for a crime they are accused of having committed. “A concept of immunity for foreign heads of state has existed since ancient times”, writes Christopher D. Totten[1]. Such immunity, he continues, constitutes customary international law (“CIL”) and, when applicable, frees such individuals from the criminal jurisdiction of foreign nations while carrying out their duties.”
In the United States, since October 1976, President Gerald Ford has signed into law The Foreign Sovereign Immunities Act (FSIA). This federal law establishes the limitations as to whether a foreign sovereign nation (or its political subdivisions, agencies, or instrumentalities) may be sued in U.S. courts — federal or state. The FSIA provides the exclusive basis and means to bring a lawsuit against a foreign sovereign in the United States. These heads of states have complete immunity from suit or judicial process in the territory of another state. They cannot be named as a party or defendant to a suit brought against them in their official capacity as the representative of their state[2].
Some cases involving heads of states were heard since then and former Haitian president Jean Bertrand Aristide (1991, 1994, 2000) was one of them. While he was seeking refuge in the United States after a military coup in 1991, he was sued by the widow of Roger Lafontant, a political opponent who was killed in prison the same night president Aristide was overthrown by a military putsch. The circumstances under which Lafontant was murdered in his cell are unclear until today.
The ruling in Lafontant v. Aristide (1994) case[3] suggested that foreign heads of state are protected by absolute immunity, thus clearly separating any personal liability due to their position from any liability incurred by the state.
A zealous Tonton Macoute
The years 1990 and 1991 were very critical for democracy in Haiti. It was the first time a president was going to be elected in a free democratic process. A previous election was held in 1987 but it ended in a bloodbath. Some elements of the Haitian army assassinated a group of voters in what is infamously called today “Le Massacre de la Ruelle Vaillant” (The Massacre at the Valiant Street). While voters were patiently waiting in line to cast their ballots, twenty of them were gunned down in a drive-by shooting by the soldiers who wanted to keep a certain candidate from being elected. His name was Gerard Gourgue, he was popular among the masses but not the favorite of the military regime that was ruling the country at this time. Roger Lafontant was not part of the massacre but he would have supported the soldiers and the militia members who planned this mass murder. Lafontant began his political career as an activist in the militia of Haiti’s infamous dictator, François Duvalier. He was a “Tonton Macoute”. He started at the Haiti’s State university where he created a student chapter of the militia. He was so zealous that he later became the Minister of Interior of Jean-Claude Duvalier, the son of Francois Duvalier. However, Lafontant was so ambitious that was sent away from the center of power; he was appointed as a consul in Canada. Lafontant went into exile after the Duvalier’s regime abruptly came to an end, overthrown by a popular revolt in 1986. He went back to Haiti a couple of years later and, in 1990, ran for president during the first democratic elections in Haiti. However, having been accused of masterminding numerous political crimes under the Duvalier regime, he was disqualified by the Provisional Electoral Council (CEP). So he thought the only way to get the power was by attempting a coup, which he did.
The aborted coup
In 1990, Haiti was governed by a woman; her name was Ertha-Pascal Trouillot; she had the specific mandate to organize new elections after the massacre of 1987. A candidate named Jean-Bertrand Aristide, a former priest who came to politics through the Liberation Theology movement, was very popular at that time. He was poised to win the elections, and he effectively did on December 16th by a landslide (67,48 %). Roger Lafontant, seeing that he had no chance of becoming president after those historic democratic elections, attempted a coup during the night of 6 to 7 January of 1991, just a month before the transfer of power to Aristide, the president-elect. With a group of henchmen, he stormed the national palace, forced the provisional president Ertha Pascal-Trouillot to resign and proclaimed himself president. However, this putsch was quickly crushed by the Haitian army that did not support it[4]. The General Herard Abraham called the coup a mutiny, Lafontant and his men were arrested and thrown in prison. Aristide was sworn in on February 7th, 1991, and Lafontant was later judged and sentenced to life[5].
Almost a year later, on September 30 1991, President Aristide was overthrown by the Haitian army at the behest of Lieutenant-General Raoul Cedras. During the night of the coup, Roger Lafontant was killed in his jail cell. Aristide went into exile in the United States and Lafontant went to the cemetery.
This could be the end of the story if Gladys Lafontant, the widow who survived her husband, did not accuse Aristide of the crime. She brought this accusation at a very critical time when the US government, which condemned the overthrow of a democratically elected president, was working towards “restoring democracy in Haiti” as they said at that time. To some observers, this attempt seemed a very calculated move by the wife of Aristide’s former political opponent. The US was embarrassed by the case, and that’s where the The Foreign Sovereign Immunities Act (FSIA) came into play.
Gladys Lafontant accuses
The accusation brought by Gladys Lafontant was that president Jean Bertrand Aristide ordered the assassination of her husband the night of the putsch. She alleged[6] the former priest turned president instructed Captain Doura, a member of the Armed Forces of Haiti, to execute Lafontant. According to her, these orders were carried out by a private who shot and killed Lafontant in a Haitian prison at midnight September 29, 1991. The plaintiff, who resided in Queens, New York, at that time, was seeking for compensation in money damages for the killing of her husband, but in fact her real motive, as we will see later, was to prevent Aristide from going back to his palace in Haiti, the same way her husband tried to prevent the former priest from taking office in 1991.
To build her case, plaintiff Gladys Lafontant pleaded the Alien Tort Statute[7], the Torture Victim Protection Act, and several other federal statutes and international legal documents (“the wrongful death statutes”; the United Nations Charter; the Universal Declaration of the Rights and Duties of Man; and customary international law). The plaintiff has also submitted a copy of an arrest warrant dated November 6, 1991, issued for President Aristide’s arrest by a criminal court in Haiti[8]. This warrant charges President Aristide with the assassination of Dr. Lafontant.
Aristide had immunity
However, the only problem is that Aristide was still recognized as the legitimate Haitian president at this time by the United States (At first, the US, led by George Bush Sr. has supported the coup in 1991 for ideological reasons; but when Bill Clinton became president, the tide had turned for the same ideological reasons). Aristide was then acting as a head of state during his time in the US and could not be prosecuted for a crime he allegedly committed (or ordered) in Haiti. He was covered by the Foreign Sovereign Immunities Act (FSIA).
The US has always been enforcing heads of states immunity laws. As early as 1812 the Supreme Court embraced the notion, grounded in customary international law, that a head-of-state is absolutely “exempted” from the jurisdiction of the receiving state’s courts[9]. Until 1952, courts adhered to the theory of absolute immunity, granting foreign states immunity for both public and private acts. In 1952, the State Department published the Tate letter adopting a restrictive theory of immunity which gave foreign states immunity for official public acts, but not for private or commercial acts. Even after 1952, however, the State Department continued to decide immunity issues and submit suggestions of immunity letters distinguishing public and other kinds of acts.
As the defendant, Aristide was looking towards dismissing the case. He pleaded that as the recognized head of state of the Republic of Haiti, he was personally immune from suit in the courts of the United States. Aristide’s legal team submitted a suggestion of immunity under 22 U.S.C. § 254d claiming that President Aristide is immune from suit because of his status as the head-of-state of the Republic of Haiti. They asked the court to quash service of process and dismiss the action. The Court requested the view of the United States government. The State Department then submitted a suggestion of immunity letter, filed with the Court by the Justice Department pursuant to 28 U.S.C. § 517. Section 517 provides, in pertinent part:
“The United States has interest and concern in this action against president Aristide insofar as the action involves the question of immunity from the Court’s jurisdiction of the head of state of a friendly foreign state. The United States interest arises from the determination by the Executive Branch of the Government of the United States, in the implementation of its foreign policy and in the conduct of its international relations, that permitting this action to proceed against president Aristide would be incompatible with the United States foreign policy interests”.[10]
What was at stake in this case was the United States foreign policy interests. The United States foreign policy goal, which is encouraging democratic elections, was strengthened by recognizing President Aristide as the democratically elected head of Haiti. Besides, numerous Executive Orders supporting President Aristide establish that the Republic of Haiti is a “friendly foreign state.”
More accusations
However, Gladys Lafontant was not willing to concede defeat, she tried to find other arguments to undermine president Aristide’s immunity. She claimed that Aristide himself had renounced his title by submitting what purports to be a letter signed by President Aristide on September 30, 1991, relinquishing his title as President of the Republic of Haiti. She also argued that the Republic of Haiti has waived President Aristide’s immunity since he was replaced by another president. Mrs. Lafontant relied on the fact that on October 6, 1991, the parliament of Haiti applied Article 149 of the Constitution of Haiti which governs succession in the event of a presidential vacancy. On October 8, 1991, a Haitian Supreme Court judge, Joseph Nerette, was sworn in as provisional president of Haiti[11].
The only problem with this argument was that the United States government never recognized what was called at that time the “de facto regime” of Haiti. It has repeatedly condemned it. The United Nations has also severely criticized their illegal seizure of power[12]. Since the de facto government was never recognized by the US and the UN, it did not have the power to waive President Aristide’s immunity.
As said earlier, this criminal case that Gladys Lafontant was trying to build against President Jean Bertrand Aristide was not just a question of international law or of justice for her husband, it was also highly political. The people that Mrs. Lafontant represented were those who conducted the coup in Haiti. So this case was a strategy to keep Aristide away from power or even get him thrown in prison if that was possible. If she had her way, she would have used the judicial system of the United States for her personal interests. But she had not.
Aristide won
On the basis of the suggestion by the Department of State, Senior Judge Weinstein, who was on the case, promptly entered a final judgment dismissing Mrs. Lafontant’s action. Judge Weinstein concluded that the defendant qualified for immunity as a head of state, and that was the end of it. Aristide went back to power in Haiti in 1994. He was elected president in 2001, and he was overthrown once again in 2004. He went to exile in South Africa (not in the US that was then led by Georges Bush Jr.), and came back to Haiti in 2011. He’s still living there as the head of his new political party Fanmi Lavalas. He never left Haiti since then.
Footnotes
[1] Christopher D. Totten. Head-of-State and Foreign Official Immunity in the United States After Samantar: A Suggested Approach.
[2] Gerhard von Glahn and James Larry Taulbee. Law Among Nations: Introduction to Public International Law.
[3] No. CV 93–4268. Lafontant v. Aristide.
[4] The New York Times. Coup Attempt Fails in Haiti; 40 Die in Riots
[5] The New York Times. Haiti Coup Leader Sentenced to Life
[6] No. CV 93–4268. Lafontant v. Aristide.
[7] Head-of-state immunity — Foreign Sovereign Immunities Act — suggestion by the Department of State
[8] No. CV 93–4268. Lafontant v. Aristide.
[9] No. CV 93–4268. Lafontant v. Aristide.
[10] Head-of-state immunity — Foreign Sovereign Immunities Act — suggestion by the Department of State
[11] No. CV 93–4268. Lafontant v. Aristide.
[12] The Situation of Democracy and Human Rights in Haiti: Report of the Secretary General, U.N. GAOR, 47th Sess., Agenda Item 22, U.N. Doc. A/47/975 (July 12, 1993).\
Works Cited
Case No. CV 93–4268. Gladys M. LAFONTANT, Plaintiff, v. Jean-Bertrand ARISTIDE, Defendant. United States District Court, E.D. New York. January 27, 1994. Web Dec. 2017.
Totten, Christopher D. Head-of-State and Foreign Official Immunity in the United States After Samantar: A Suggested Approach. Fordham International Law Journal. Online. 2011. Web Dec. 2017.
Von Glahn G., & Taulbee, J.L. Law Among Nations: Introduction to Public International Law by Gerhard and James Larry, p. 180–181. New-York: Routledge, 2017. Print.
Dellapenna, Joseph W. Head-of-state immunity — Foreign Sovereign Immunities Act — suggestion by the Department of State. Cambridge Core. Online: Feb 2017. Retrieved: Dec 2017.
Haiti Coup Leader Sentenced to Life (1991, July 31). Retrieved from the New York Times (http://www.nytimes.com/1991/07/31/world/haiti-coup-leader-sentenced-to-life.html) on Dec. 14, 2017.
Schanche Don A. (1991, January 08) Coup Attempt Fails in Haiti; 40 Die in Riots. Retrieved from The New York Times (http://articles.latimes.com/1991-01-08/news/mn-7935_1_coup-attempt)
