49
the obligation to ensure this fundamental principle to its citizens and to any foreigner who is in its
territory without any discrimination based on regular or irregular residence, nationality, race, gender
230
or any other cause.
208.
On the other hand, although it is true that in the context of the application of migration
laws it has been broadly recognized that “States may establish mechanisms to control the entry and exit
231
of undocumented migrants into their territory,” the IACHR recalls that international human rights laws
require that migration laws be applied in a non-discriminatory manner. On this point, the Inter-American
Court has pointed out:
States must abstain from carrying out any action that, in any way, directly or indirectly, is aimed at
creating situations of de jure or de facto discrimination. This translates, for example, into the
prohibition to enact laws, in the broadest sense, formulate civil, administrative or any other
measures, or encourage acts or practices of their officials, in implementation or interpretation of the
law that discriminate against a specific group of persons because of their race, gender, color or
other reasons.
In addition, States are obliged to take affirmative action to reverse or change discriminatory
situations that exist in their societies to the detriment of a specific group of persons. This implies
the special obligation to protect that the State must exercise with regard to acts and practices of
third parties who, with its tolerance or acquiescence, create, maintain or promote discriminatory
232
situations.
209.
In this regard, the Commission considers that in the context of the application of migration
laws, the fundamental right to equal protection and to non-discrimination obligates the States to ensure
that its policies and enforcement of the law are not unjustifiably aimed at certain individuals based on their
ethnic or racial features such as color of the skin, accent, ethnicity, or particular area of residence know
for having a specific ethnic populating. As previously pointed out, international human rights law not only
prohibits deliberately discriminatory policies and practices, but also those whose impact discriminates
against a certain category of persons even when the discriminatory intent cannot be proven.
210.
Based on the foregoing, the IACHR considers that the use of excessive force by State
agents which resulted in the extra-legal executions and injuries to the Haitian victims and the absolute
impunity of those responsible for the incidents, as well as the expulsion of Haitian victims from the country
without affording them access to judicial guarantees and judicial protection are, themselves, violations of
Articles 24 and 1(1) of the American Convention.
V.
CONCLUSIONS
211.
Based on the considerations of fact and of law, the Inter-American Commission
concludes that the Dominican Republic is responsible for:
a)
The violation of the right to life and the right to personal integrity enshrined in Articles 4.1
and 5.1 and 5.2 of the American Convention in connection to Article 1(1) of the same instrument, to the
detriment of Jacqueline Maxime, Fritz Alce (Gemilord), Roselene Theremeus, Ilfaudia Dorzema, Máximo
Rubén de Jesús Espinal, Pardis Fortilus and Nadege Dorzema.
230
IA Court H.R., Case of the Girls Yean and Bosico vs. Dominican Republic. Preliminary Exceptions, Merits, Reparations
and Costs. Judgment of September 8, 2005. Series C No. 130, par. 155. Legal Status and Rights of Undocumented Migrants, supra
note 95, par. 118
231
IA Court H.R., Legal Status and Rights of Undocumented Migrants, Advisory Opinion OC-18/03, par. 119 (September
17, 2003), available at http://www.corteidh.or.cr/docs/opiniones/seriea_18_esp.pdf.
232
IA Court H.R., Legal Status and Rights of Undocumented Migrants, Advisory Opinion OC-18/03, pars.103-104
(September 17, 2003), available at http://www.corteidh.or.cr/docs/opiniones/seriea_18_esp.pdf.