Human Rights Watch reaffirms call for Duvalier prosecution

Haiti's Rendezvous With History: The Case of Jean-Claude Duvalier

Human Rights Watch report, April 14, 2011, http://www.hrw.org/en/news/2011/04/14/haiti-duvalier-prosecution-rendezvous-history

(Port-au-Prince) - The prosecution of the former dictator Jean-Claude Duvalier represents a landmark opportunity for the Haitian justice system to address some of the worst crimes in Haiti's past, Human Rights Watch said in a report released today.

The 47-page report, "Haiti's Rendezvous With History: The Case of Jean-Claude Duvalier," examines the legal and practical questions surrounding the case and concludes that Haiti has an obligation under international law to investigate and prosecute the grave violations of human rights under Duvalier's rule. The report also addresses Haiti's capacity to carry out the trial, the question of the statute of limitations, and Duvalier's personal involvement in alleged criminal acts.

"The Duvalier trial could be the most important criminal case in Haitian history," said Reed Brody, counsel for Human Rights Watch. "The challenges for Haiti's weak justice system to carry out a fair trial are enormous, but international support can help Haiti meet those challenges."

Duvalier returned to Haiti on January 16, 2011, after nearly 25 years in exile, and was charged with financial and human rights crimes. The investigation is under way.

Duvalier's rule, from 1971 to 1986, was marked by systematic human rights violations. Hundreds of political prisoners held in a network of prisons known as the "triangle of death" died from mistreatment or were victims of extrajudicial killings. Duvalier's government repeatedly closed independent newspapers and radio stations. Journalists were beaten, in some cases tortured, jailed, and forced to leave the country.

Duvalier could potentially be held liable under Haitian law as an "accomplice" to crimes committed by his subordinates or as a superior who failed to prevent or punish crimes under his command, Human Rights Watch said. These forms of liability were applied by Haitian courts in the prosecution of perpetrators of the April 1994 Raboteau massacre and led to the conviction, later overturned, of a number of superiors, including Raoul Cédras, the leader of the military junta that ruled Haiti from 1991 to 1994.

In one case examined by Human Rights Watch, over 100 Haitian journalists and activists were arrested on November 28, 1980. Several were tortured and many were expelled from Haiti. The Port-au-Prince police chief later said that Duvalier told him to "do what you want with these journalists," while Duvalier himself told the New York Times that, "We were obliged to act" to stop a conspiracy against the government.

Human Rights Watch said that the statute of limitations could not be invoked to stop an investigation. It noted that the Inter-American Court of Human Rights, a body by whose judgments Haiti is legally bound, has held repeatedly that in light of states' obligations to investigate and prosecute serious violations under the American Convention on Human Rights, statutes of limitations are inapplicable in connection with gross human rights violations proscribed by international law. In addition, for the many cases of "disappearances" committed under Duvalier, the statute of limitations would not begin to run until the victims' whereabouts were clarified.

The investigation and trial of a former head of state for mass crimes committed between 25 and 40 years ago will be a complex endeavour, further complicated by the weakness of the Haitian judicial system, Human Rights Watch said. The Haitian government should maximize limited resources by targeting key incidents under Duvalier, Human Rights Watch said, and other governments and international organizations should support Haiti's effort with expert technical assistance.

"A fair trial for Duvalier could mark a break with the impunity that has characterized Haiti's past," Brody said. "International assistance can make the difference in whether this trial happens."

See also:
* Miami Herald op-ed: "Duvalier: His victims won't forget” (Enclosed below)
* Interview with Michel Martelly, Montreal daily La Presse, April 18, 2011: "Amnesty for Duvalier"
 

Duvalier's Victims Won't Forget

BY REED BRODY (Reed Brody is counsel and spokesperson for Human Rights Watch)

Miami Herald, Jan 27, 2011
http://www.miamiherald.com/2011/01/27/v-print/2036343/his-victims-wont-forget.html#ixzz1JtpeuaON

The Haitian proverb Bay kou bliye, pote mak sonje, translates as, ``He who gives the blow forgets; he who carries the scar remembers.'' I thought of that proverb, and of my time as a prosecutor in Haiti, when Jean-Claude ``Baby Doc'' Duvalier returned to Haiti this week. Under the presidency of Duvalier and his Tonton Macoutes militia, thousands were killed and tortured, and hundreds of thousands of Haitians fled into exile. A prosecutor has charged Duvalier with embezzlement and former detainees have filed complaints for torture.

Doesn't Haiti have enough to worry about, one might ask, without prosecuting Duvalier?

On the contrary, bringing Duvalier to justice and giving him a fair trial, would show Haitians that the state still functions, that it can still perform the most basic of duties -- punish those who commit the worst crimes. If Baby Doc gets away with everything he did, how can the authorities hope to dissuade street gangs from using a little force?

The question goes to the heart of one of the Haiti's most fundamental problems: throughout its history, repressive rulers and their henchmen have literally gotten away with murder. The law has been used to reinforce the domination of a small elite over the great mass of poor peasants and has almost never functioned to punish even the worst massacres. Even when dictatorial leaders such as Duvalier have been overthrown, they have usually been allowed to leave the country safely to join their bank accounts. As a result, the Haitian poor justifiably have had little faith in the Haitian state in general and the legal system in particular.

In 1995, after a three-year reign of terror -- perhaps Haiti's worst -- I was hired by the government of President Jean-Bertrand Aristide to prosecute those crimes. The military government of Raul Cedras and its paramilitary allies had killed 3,000 to 5,000 people, mostly grass-roots activists and the poor.

The size of our challenge -- to empower the poor by providing official recognition of the importance of their suffering -- was matched by the obstacles arrayed against us, obstacles that largely still exist today. The popular thirst for justice was not reflected in a judiciary and legal profession largely drawn from the small upper strata of Haitian society. There had been a deliberate decision by the United States not to disarm former soldiers and paramilitary agents, and fear of them still stalked the country, inhibiting people from coming forward to denounce perpetrators of abuses.

Even when their class bias did not get in their way, judges had little incentive to order the arrest of armed criminals -- judges regularly snuck out of their offices when they saw us coming. The failure to put known criminals away created a vicious cycle as even brave people saw little benefit in stepping forward.

It took several years of dogged persistence before, in 2000, my successors obtained, in the most significant human rights trial in Haitian history, convictions of 53 officers and soldiers for a massacre in the Raboteau slum of Gonaives city. Five years later, under a new de facto government, a court overturned those convictions in an internationally condemned ruling, and impunity again reigned supreme.

Haiti's earthquake has further diminished the capacity of the state and has almost totally undermined its ability to safeguard fundamental rights. Chronic problems such as violence against women and inhumane prison conditions have been exacerbated. Most of those who escaped from jail during the earthquake (almost none of whom had ever been tried) remain at large. The failures of reconstruction and confused elections have further eroded government legitimacy. In this context, the prosecution of Duvalier could kick-start the system and help to begin building the state institutions that Haitians deserve.

Duvalier may have forgotten the blows he gave to the Haitian people, but the people remember.