Institute for Justice and Democracy in Haiti

Troubling decision by a Haitian judge for CARICOM

By Rickey Singh, Guyana Chronicle Online
February 12, 2012

Case of excluding Duvalier from trial for gross human rights abuses

President Michel Martelly

If the governments of our Caribbean Community  (CARICOM) do not agree that the statute of limitations should be used to exclude ANY political leader from facing justice for crimes against humanity while controlling state power, then they should let the region’s public know where they stand on the implications of last week’s controversial ruling by a judge in Haiti.

The judge’s decision, which is being linked by international human rights organizations and media to an earlier statement by President Michel Martelly, involves ex-Haitian dictator, Jean-Claude Duvalier (popularly referred to as ‘Baby Doc’) who held power for 15 years in that Caribbean nation, an extension of the tyrannical rule of his father, the late Dr Francois Duvalier.

The judge’s ruling that Duvalier should not stand trial for human rights abuses was not based on lack of evidence but because, he said, the statute of limitations for the crimes had expired.

A response from CARICOM seems all the more urgent in view of the latest initiative by victims of the Duvalier era, of nightmare human rights abuses, who have decided to appeal to restrict prosecution of Duvalier to cases of claimed financial corruption and not human rights violations.

Significantly, President Martelly had earlier indicated in a media interview his consideration of a “presidential pardon”, in the interest of “national reconciliation”, instead of a long drawn out court trial that deals with a dark period of ‘duvalierist’ political culture.

Also returning to Haiti from exile after Duvalier, and prior to the swearing in of Martelly as President, was former President Jean Bertrand Aristide. He was ousted from power in 2004 as a democratically-elected Head of State.

Martelly had unwittingly revived uneasiness in Haiti late last year by his announcement to establish as new Haitian army–the old one having been abolished as being corrupt and repressive. Then arose new concerns following a report last month by the Associated Press that he was favouring a “Presidential pardon for Duvalier instead of a court trial for claimed crimes against humanity.

Martelly’s “thinking”
In his AP interview, as reported on January 27 by the Washington Examiner”, President Martelly, who was then attending the World Economic Forum in Davos, Switzerland, was questioned about arrangements for the scheduled court trial of Duvalier on allegations of widespread human rights abuses during his years in power.

He was quoted as stating that he had little appetite for a trial” and explained: “My way of thinking is to create a situation where we rally everyone together and create peace and pardon people. Not to forget about the past, because we need to learn from it, but to mainly think about the future…”

Well meaning as this reported position on Duvalier may have been, questions were to be raised about the implications of a Presidential pardon for crimes against humanity, for which there are no statute of limitations in international conventions (to which all member states of CARICOM  are parties).

Martelly was to deviate from that position in a subsequent radio interview in Dublin with the explanation that in his reference to “pardon” when he spoke of the need for “reconciliation” he meant only that he wanted an “end to the internal conflict” that has long afflicted Haiti.

However, by then the judge had already chosen to exonerate Duvalier from facing trial for his alleged numerous crimes against Haitians, including murder and torture during 15 years in power. But Martelly’s expressed sentiment in favour of “reconciliation” instead of a court trial for Duvalier did not go down well with those familiar with Haiti’s political culture.

The ‘Los Angeles Times’, for one, was to editorialise on February 6, why Duvalier should be prosecuted for atrocities committed during his dictatorial rule.  In its argument, the Times reflected the thinking of what human rights organizations, including those in Haiti, had long favoured–that the ex-dictator should face justice for his crimes against humanity.

Rejecting the Haitian judge’s position on the expiry of the statute of limitations, the Times argued that “there are plenty of victims willing to recount the beatings, arbitrary arrest and prolonged detentions they suffered.

Further, that there is a trove of evidence detailing how Duvalier’s “army and shadowy secret police force, the ‘Tontons Macoutes, killed and tortured untold number of civilians…And the fact that there are international conventions, to which Haiti is a signatory, that require it to investigate and prosecute crimes committed  by Duvalier and his government…”

Civil Society Charter
Conscious that such an argument would resonate with human rights agencies and organizations, regionally and internationally, it was further pointed out that Human Rights Watch, the United Nations, as well as the Inter-American Commission on Human Rights were already on record as having urged Haiti’s courts to respect its international obligations that “when it comes to crimes against humanity, there can be no statute of limitations.”

The CARICOM Secretariat, therefore, has an obligation to carefully monitor this latest development in Haiti, given the  implications of the judge’s decision for the rest of  our Caribbean Community that support the International Criminal Court (ICC) which continues to deal with crimes against humanity by political tyrants.

For a start, it is felt that the CARICOM Secretariat should secure the text of the judge’s ruling and communicate it to all Heads of Government, bearing in mind their embrace of the “CARICOM Charter of Civil Society”, and more importantly known respect for international conventions governing crimes against humanity.

The CARICOM Charter eloquently outlines “respect for fundamental human rights and freedoms” and  recognises the need for a Code governing the “conduct of the holders of public office and all of those who exercise power that affects the public interest…”
The pity is, that our governments are yet to enact legislation to make this commendable ‘Charter of Civil Society’ a legally binding instrument.

Yet, this shortcoming does not stand in the way of the Martelly government being asked for a response on the judge’s controversial ruling to exonerate Jean-Claude Duvalier from facing trial for crimes against humanity on the unsubstantiated claim of expiry of the statute of limitations for crimes committed.
Or, more precisely, let the citizens of CARICOM know that THEY do not subscribe to such a judicial position as surfaced in Haiti which makes a mockery of institutionalised commitment to observance of international conventions governing crimes against humanity.

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