The recent announcement by Judge Carves Jean that former Haitian dictator Jean Claude Duvalier will stand trial for corruption charges related to his embezzling of millions of dollars, but not for his role in the murder, disappearance and torture of thousands during his presidency has sparked outrage throughout Haiti and from human rights advocates across the world.

“Photo Credit: Gaetant Guevara/Let Haiti Live”

Without question the announcement sends the wrong message to a nation looking to rebuild and restore confidence not only in its public institutions, but also to demonstrate that the rule of law does indeed stand for something, signalling that no individual is beyond justice—no matter how powerful. If Haiti is to move forward, and have a chance to overcome the injustices of history, the prosecution of Duvalier for the many horrific human rights abuses against the Haitian people must occur.

Judge Jean’s decision to drop the most serious charges against Duvalier was based upon his reading of the Haitian constitution, which cited that the abuses fell outside of the 10 year period outlined in the statute of limitations. This has led to a situation whereby both parties are appealing the decision of Judge Jean—the dozens of plaintiffs are protesting the exclusion of their testimony, and the defense is calling for the embezzlement charges to be dismissed as well.

Mario Joseph, an attorney with the Bureaux des Advocates Internationaux challenged the decision on behalf of the victims, reminding Judge Jean that he “cannot decide only on the financial crimes committed by Duvalier. He should also be tried and sentenced for rapes, torture, disappearances, assassinations, and crimes against humanity his regime has been responsible for.” Joseph also criticized the professionalism of the investigating judge, saying that he “made so many errors” and also disregarded the testimony of eight people who wanted to file complaints against Duvalier, and made it clear that “We have witnesses now from when my clients were beaten and tortured, witnesses who saw them being beaten and arrested, who saw what happened in the prisons.”

The sharp criticism by Joseph not only highlights the problematic nature of how Judge Jean came to his decision, but also that international law prohibits charges related to human rights abuses from being dropped. In May 2011, the Inter-American Commission on Human Rights (IACHR) released a statement highlighting that “the tor­ture, extra­ju­di­cial exe­cu­tions and forced dis­ap­pear­ances com­mit­ted dur­ing the regime of Jean-Claude Duva­lier are crimes against human­ity that, as such, are sub­ject nei­ther to a statute of lim­i­ta­tions nor to amnesty laws.” According to Amnesty International, what categorizes the crimes committed by Duvalier as crimes against human­ity and not as routine criminal charges, is that “they were com­mit­ted as part of a sys­tem­atic or wide­spread attack against the civil­ian population.” For a partial chronicle of the extensive human rights abuses linked to the Duvaliers see here.

There are also many actors that are arguing that the reasoning for Judge Jean’s decision is politically motivated, and that a more detailed explanation must be given in order to clarify and justify his reasoning to dismiss the most serious charges. On February 1, the IACHR provided the gov­ern­ment of Haiti a request of infor­ma­tion regarding the judi­cial decision. Brian Concannon of the Institute for Justice and Democracy in Haiti also remarked on the role politics played in Judge Jean’s decision, stating that “When you look at the fact that a prosecutor under President [René] Préval instructed the judge to aggressively investigate the case, after which a mountain of evidence showing Jean-Claude Duvalier’s responsibility was introduced, and then a new prosecutor under President [Michel] Martelly ruled without an adequate explanation that there is not a case, it’s a fair assumption that this dismissal was politically motivated.”

A deeper examination of Martelly’s statements reveals that the assumptions of these human rights organizations are well justified, as Martelly has expressed several times his intention to pardon Duvalier. In a pre-inaugural interview with the Montreal daily La Presse on April 18 Martelly proposed a plan of national reconciliation that would include granting amnesty to Duvalier. More recently, when asked about moving forward with the Duvalier case, Martelly told The Washington Post this January that “It is part of the past. We need to learn our lessons and move forward … It is time to unite the country, show tolerance, show compassion, show love for everyone … [we  need] to reconcile the factions that have been at war.”

Martelly would go on to quickly retract both statements, but clearly revealed himself to be in favour of amnesty. Despite Martelly’s intentions, the established norms of international law make it very clear that no statute of lim­i­ta­tions may apply to crimes against human­ity and the alleged per­pe­tra­tors can­not ben­e­fit from amnesties, even in the case of for­mer heads of state. Regardless of Martelly’s belief that reconciliation instead of a trial will help heal the nation, the experiences of nations as varied as South Korea, Peru, Argentina, and Chad show that the trials of former dictators do more to close wounds than to re-open them.

The present failure on behalf of the Haitian government and the international community to push for more serious charges sets a dangerous precedent for Michel Martelly and all future Haitian heads of state to avoid consequences for abusing their power. The recent statements by Martelly concerning the reestablishment of the Haitian army raise serious concerns about this, as the Haitian army has always been used as a tool of brutal internal repression. It would be naive to assume that the latest reincarnation would be any different. Concannon goes on to explain this more fully, remarking, “The prosecution of Duvalier is a once in the life time opportunity to establish deterrence for political violence and corruption. Passing up this opportunity confirms the precedence of impunity for large scale killings and theft. This is one of the reasons Martelly wants this, he does not want the precedent of consequences for leaders in Haiti.”

Concannon’s remarks confirm that the outcome of this trial weighs heavily upon Haiti’s near future. If the appeals of Duvalier’s victims are not taken into consideration, the maximum penalty under Haitian law for misappropriation of funds is five years. On the other hand, a conviction for human rights abuses could potentially put him away for life. The third alternative of the case being dismissed altogether is too outrageous to imagine. Despite the outcome, it can be assured that the decision would ripple throughout all strata in Haiti, for better or worse. This long term and far reaching impact is precisely why observers like Reed Brody of Human Rights Watch have remarked that “The Duvalier trial could be the most important criminal case in Haitian history.”

The trial of Jean Claude Duvalier carries both significant concrete and symbolic value for Haiti. Looking at the recent history of Haiti, there have been some significant legal trials (Les Cayes Prison trial this year and the Raboteau trialof 2000) which have helped to restore a level of confidence in the justice system. The most serious problem is that the restoration of confidence has not been a continuous process. It has been interrupted too many times, most notably by two coup d’etats, the 2010 earthquake which destroyed most of the government infrastructure, and also the deeply flawed elections that brought Michel Martelly to power.

While the process of strengthening the rule of law and institutions has been violently interrupted many times and in different ways, the conviction of Duvalier would provide an important psychological boost to the country, and show that reconstruction is not simply a bricks and mortar issue. Yes, buildings can be rebuilt, but what is more important is that the ideals and values housed in these institutions are of great importance as well. This is why it is critical for those concerned with justice in Haiti and abroad to demand that the Haitian justice system regard lives taken by Duvalier during his rule as much more valuable than the money he stole. To do otherwise is to deeply insult the Haitian people by letting Jean Claude Duvalier literally get away with rape and murder.

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Rivye Kano, Haiti — Gathered silently in the shade of a mango tree here, dozens of people patiently wait their turn to tell us about the horror that descended on their community a year ago. Shortly after drinking from the local water source, entire families started to get violently ill with diarrhea and vomiting. It was an outbreak of cholera, the vicious waterborne disease that can kill within hours.

One by one, we hear stories about desperate family members rushing fathers and mothers and children over the rutted mountain roads to the local hospital. An oral rehydration solution developed by the World Health Organization is effective in treating most cases of cholera, if administered quickly enough, but many of the ill in this community did not reach care in time. On the single day of October 20, 2010, one hospital in the region reported 400 emergency admissions and 44 deaths.

Saint Claire Vincent tells how her mother’s body was taken from the hospital in a bag to be thrown into a pit with other koleravictims. Maudena Zalys and her brother survived cholera infection, but her father did not. “I can’t explain the feeling I got when they announced he had died,” she says.

The community’s leader, a man named Esec, had to send his regrets for this meeting. He was burying his father today, another victim of cholera. Beginning with its dramatic outbreak here in October 2010, where almost 2,000 Haitians died within the first month, the cholera epidemic has claimed over 7,000 lives and infected over a half million more people.

Since Haiti had not reported a single instance of cholera in over a century, physicians and public health experts were stunned by the flood of dying patients in the Artibonite region. Cholera is an infection of the small intestine caused by the ingestion of bacterium Vibrio cholera found in water or food contaminated by fecal matter. So, what was the source of the bacteria that was killing the Haitian people? Investigations into the cause of the outbreak pointed to a surprising culprit: the United Nations.

Overwhelming evidence, including studies by the US-based Centers for Disease Control and an investigation commissioned by the UN itself, identifies the likely source of the cholera outbreak as Nepalese troops participating in the United Nations Stabilization Mission in Haiti (MINUSTAH). Writing in the July 2011 volume of The Lancet, epidemiologist Renaud Piarroux noted the exact correlation in time and place between the arrival of a Nepalese battalion from an area experiencing a cholera outbreak and the appearance of the first cases in the Meille region of Haiti a few days after. Other researchers, including the Harvard Cholera Group, found that the Haitian strains of cholera are a genetic match for the cholera found in Nepal.

Now, the folks here at Rivye Kano and some 5,000 other Haitian cholera victims, represented by the partnership of Port-au-Prince-based Bureau des Avocats Internationaux and Boston-based Institute for Justice and Democracy in Haiti, have filed an extraordinary claim against the entity their own petition calls “a unique global leader” — the United Nations.

The factual basis for the claim boils down to three points: First, the UN failed to appropriately screen the troops arriving from Nepal for cholera infection, despite the fact that cholera is endemic there and the country had just reported a surge in infections in the very Kathmandu Valley area where the troops had been training before deployment to Haiti. Second, the UN did not maintain adequate sanitation and water disposal procedures at the MINUSTAH camp where Nepalese troops are stationed, recklessly allowing disposal of the troops’ untreated waste into the Meille Tributary, a tributary of Haiti’s largest river, the Artibonite. And finally, the claim alleges that the UN actively worked to block the discovery of the cholera source, thereby delaying action that would have slowed the outbreak.

If the allegations of UN responsibility are clear enough, the process by which they are to be reviewed is not. The UN peacekeeping mission has maintained a continuous presence in Haiti since 2004, and pursuant to a status of forces agreement with the Haitian government, the peacekeepers have civil and criminal immunity from claims filed in the Haitian courts. In return, the UN pledged to establish a commission to receive and review any claims for injury, illness, or death attributable to peacekeepers’ actions.

The human rights lawyers representing the cholera victims say no such commission has ever been established in Haiti. In November, they filed a 37-page claim with the MINUSTAH office in Haiti and with the UN Office of the Secretary General in New York, asking for compensation for the victims and for the UN to partner with the Haitian government to establish a much-needed countrywide safe water program. On the day the claim was filed, UN spokesman Martin Nesirsky told reporters in New York that the evidence is inconclusive as to who bears responsibility for the cholera outbreak. To date, there has been no formal UN response to the claim. If no tribunal is created to hear the claim, the lawyers for the cholera victims say they will file suit in Haitian courts.

“This case is important because it calls for the United Nations to uphold the principles they promote, especially the most basic human rights of life, health, and justice,” says Bureau des Avocats Internationaux’s directing attorney Mario Joseph. Joseph himself grew up in the rural Artibonite Valley here, drinking from an irrigation ditch that is now contaminated with cholera. He makes no effort to hide his anger at the UN’s response to the outbreak. “There is a lot of hypocrisy going on. People with the UN talk a lot about human rights, but then they turn around and don’t respect the rights of Haitians. The UN needs to stop denying its crime.”

On the 63rd anniversary of the signing of the Universal Declaration of Human Rights in early December, some of the cholera victims staged a demonstration in front of MINUSTAH headquarters in the Saint Marc region, which has been particularly hard hit by the epidemic. Their signs read, “‘Universal’ Means Haitians, Too.”

The UN is the world’s chief source of rhetoric about the rule of law, and knows well this country’s notorious and ongoing history of impunity for the powerful. A brutal former dictator, Jean-Claude Duvalier, returned here last year and walks the streets of Port-au-Prince without yet facing trial or even imprisonment. The current president, Michel Martelly, was elected only after the majority political party was blocked from the polls. The country’s legacy of violent military coups and political assassinations is well documented. Will the United Nations become the latest gwo neg, Creole for big man, to hold itself above the law here? Or will it acknowledge a duty to remedy this latest disaster in a country whose people have already suffered so much?

Here in Rivye Kano, Ylianise Oscar, who watched helplessly as her mother died last winter, knows what she thinks the answer should be. “A mother is something special and precious; the most important thing in my life,” she says. “The UN should take responsibility for having brought the kolera into our community and our lives.”

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By Sue Montgomery, GAZETTE JUSTICE reporter

MONTREAL — This week’s news that former Haitian dictator Jean-Claude (Baby Doc) Duvalier would not be tried for grave human-rights abuses committed under his watch may have been a serious blow to the victims but was met with a disturbing silence in most camps.

Human rights groups, such as Amnesty International and the United Nations, predictably reacted with outrage. But the United States, France and Haiti’s neighbours in the Caribbean stayed mum.

Only Canada, which pledged $1 billion to the nation between 2006 and 2012, came out with a statement, albeit one that could hardly be defined as stinging.

For Montrealers Nadine and Jan Dominique, who have been working tirelessly to have the former dictator answer for his crimes, the decision – and the silence that followed – has ignited their anger.

And it feeds into their fears that whoever gunned down their father, Jean Dominique – a revered Haitian journalist and outspoken critic of Duvalier – will never be caught, let alone prosecuted.

“If a criminal like Duvalier, where there is so much evidence that there were human-rights abuses, massacres, and torture under his regime, can’t be brought before justice to answer for these crimes … who can be accused of anything in Haiti?” said Jan Dominique, spokesperson for the Committee Against Impunity and for Justice in Haiti.

Her father, whose life was captured in the movie The Agronomist, was forced into exile twice during his 40-year career and returned to Haiti in 1994.

He survived years of beatings and threats at the hands of Duvalier’s brutal Tonton Macoutes, only to be gunned down in 2000 at the age of 69 outside his radio station.

The latest judicial decision regarding Duvalier has been met with quiet resignation by the diaspora in Montreal, who feel nothing will ever change in their native country.

“But if we do nothing, nothing will ever change,” said Dominique, with an air of frustration.

In Haiti, young people are never taught about what it was like under Duvalier and those old enough to remember fear speaking out, Dominique said.

“A friend of mine (in Haiti) said to me, ‘I think the earthquake has done more damage than we imagined. People can no longer react to something like this; they are completely lost.’

“I don’t know if that’s true or if it’s fear.”

Still, the Dominiques are unwilling to give up. On Tuesday, a date on which the fall of the Duvalier regime is traditionally celebrated, the Committee Against Impunity will gather to brainstorm how to tackle this latest setback to their long struggle for justice.

Duvalier lived a lavish lifestyle and ruled Haiti with an iron fist from 1971 to 1986 after the death of this father, known as Papa Doc.

He’s alleged to have embezzled between $300 million and $800 million of assets during his rule, stashing some of it in Swiss banks before fleeing into exile in neighbouring France in 1986.

A year ago, he returned to Haiti, where he is supposed to be under house arrest, but moves freely around the country.

Some of his cronies – and his son – are now among those serving under the new Haitian president, Michel Martelly, a fact observers say influenced the prosecutor’s decision to drop all human-rights-abuse and corruption charges against Duvalier.

But in a move one observer called “gutsy,” a Haitian judge ruled this week that Duvalier would at least stand trial on the lesser charges of corruption, saying he didn’t have enough legal grounds for the more serious charges.

Duvalier’s lawyer is appealing the decision.

Brian Concannon, from the Boston-based Institute for Justice and Democracy in Haiti, said the victims will appeal and “if the system works as it should,” Duvalier will go to trial.

But much of that depends on whether the international community is willing to do more than put faith in the Haitian justice system, he said.

“Obviously, leaving something up to a corrupt, elitist, right-wing justice system is not going to bring justice for the Duvalier’s victims,” he said.

“If the international community tells the government that continued funding is contingent on the government showing they care enough about good governance to prosecute this case, then the case will be prosecuted.

“If not, there’s very little reason to believe it will be.”

When asked if Canada would send such a message to Haiti’s government, the office of Foreign Affairs Minister John Baird reiterated its stance.

“Mr. Duvalier should face justice for the numerous documented alleged abuses during his time in office, including human rights abuses,” Rick Roth wrote in an email from Baird’s office.

“It is the Haitian government’s responsibility to provide justice to its people and due process, including fair trials, for those accused of crimes.”

Dominique’s group has been working closely with Concannon’s group as well as the Bureau des Avocats Internationaux in Haiti and the Canadian Centre for International Justice to gather victims’ testimonies here and in Haiti.

Jo-Anne Wemmers, who was helping collect testimony in Quebec, said the victims were stonewalled once they tried to file complaints with the Haitian Embassy in Canada.

“First, they were on vacation, then it was they had Canadian passports that had to be notarized, which cost money, and it was just hassle after hassle, so the victims have just given up,” she said.

There has been slightly more success in Haiti, where eight complaints have been filed.

If Duvalier isn’t eventually prosecuted, Dominique worries that all the hopes for a new Haiti after the devastating earthquake two years ago will vanish in a sea of corruption and impunity.

“All that wasn’t cleaned up in the last 25 years unfortunately will come back even stronger.”

Photo is taken By Peter McCabe, THE GAZETTE
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Human rights groups have condemned a decision not to try Jean-Claude Duvalier, Haiti’s former ruler, on crimes against humanity.

A Haitian judge decided this week that Duvalier, known as Baby Doc, should not stand trial for crimes against humanity.

He is accused of the torture and murder of thousands of his own people during his 15 year rule in the seventies and eighties.

A year ago, Duvalier made a surprise return to the country after 25 years in exile.

The judge ruled that his alleged crimes fell outside Haiti’s statute of limitations. The judge, however, did say that Duvalier should stand trial on corruption charges. He is accused of embezzling hundreds of millions of dollars during his rule.

In heavily criticising the decision, human rights groups say they gave prosecutors hundreds of documents detailing cases of abuse.

Human Rights Watch called it the most important criminal case in Haitian history.

Duvalier was only 19 when he was named Haiti’s president for life in 1971 after the death of his father Francois – known as Papa Doc.

Human rights groups say the Duvaliers used paramilitary group Tonton Macoutes to torture opponents and kill 30,000 people during their combined 29-year rule.

During Baby Doc’s 15 years in power, hundreds of political prisoners were allegedly tortured or disappeared in prisons collectively known as the triangle of death.

Duvalier is also accused of embezzling between $300m-$800m of government assets. His upcoming trial is only on corruption allegations.

Meanwhile, the United Nations – which has its own troubled history in Haiti – has also condemned the ruling.

But it is likely to please Michel Martelly, Haiti’s current president, who has close connections with Duvalier and has supported him since his return.

So, is reconciliation better than justice in Haiti? Will Duvalier’s victims ever see justice served?

Inside Story Americas, with presenter Shihab Rattansi, discusses with guests: Kim Ives, a journalist with Haiti Liberte; Jean-Yves Point-du-Jour, a Haitian American radio host; and Brian Concannon, of the Institute for Justice and Democracy in Haiti.

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http://www.aljazeera.com/programmes/insidestoryamericas/2012/02/2012239158161701.html
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HAITI’S JUSTICE SYSTEM, long an instrument of official impunity for the rich, powerful and well-connected, is busy whitewashing the human rights crimes committed under the country’s former dictator and “president for life,” Jean-Claude Duvalier.

On Monday, a Haitian magistrate cleared Mr. Duvalier, known as Baby Doc, of well-documented violations, including extra-judicial killings, torture and disappearances, during his bloody reign from 1971 to 1986. The magistrate, Carves Jean, said the statute of limitations blocked prosecution of the human rights crimes, and he ruled that Mr. Duvalier should face trial only on corruption charges.

The decision is a judicial travesty. It is a fist in the face of thousands of Haitian victims and a statement of contempt for international standards of justice, under which the country had a clear obligation to hold Mr. Duvalier to account. It makes clear that Haitian justice remains what it has been for decades: an oxymoron.

The ruling was made with the apparent blessing of President Michel Martelly, the former pop star who has traded his raunchy carnival act for dark suits and the formal bearing of public office.

A number of Mr. Martelly’s allies and ministers have close ties to the Duvalier dictatorship, and the president has devoted himself to airbrushing the old tyrant’s misdeeds since Mr. Duvalier, 60, surprised the world by returning to Haiti a year ago, after a 25-year exile in France. Mr. Martelly has included Mr. Duvalier at official functions, allowed him to ignore an order of house arrest and minimized the horrific crimes of the past. “It is part of the past,” Mr. Martelly told The Post’s William Booth last month. “We need to learn our lessons and move forward.”

In fact, by sweeping the Duvalier-era crimes under the rug, Haiti is assuring that they will fester, further polarizing a country profoundly, and often violently, divided by class, wealth and race.

It also blatantly ignores decisions of the Inter-American Court of Human Rights, to which Haiti is bound, which has repeatedly held that gross human rights violations are not covered by any statute of limitations or amnesty. As Reed Brody of Human Rights Watch has pointed out, Argentina, Chile, Peru and other countries continue to pursue equally old human rights cases — and in cases involving disappearances, the crime is ongoing since the victims’ fates are unknown.

The victims include hundreds of political prisoners tortured and sometimes lost in Fort Dimanche and two other notorious prisons collectively known as “the triangle of death.” They include those beaten and exiled for crossing Mr. Duvalier and his henchmen. And they include countless others subjected to arbitrary arrests, prolonged jailings and murders at the hands of security forces and shadowy militias loyal to Mr. Duvalier.

To excuse all that is to desecrate Haiti’s history and its people. Other governments — starting with the Obama administration, which has spoken meekly on Mr. Duvalier’s case — should demand justice.

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