By Corey Sullivan Martin, National Lawyers Guild
In matters of diplomacy pertaining to Haiti, the United States government has a history of acting like a well-intentioned older sibling—willing to give advice whether wanted or not. But regarding the prosecution of Jean-Claude Duvalier, past dictator of Haiti, the American government has chosen to break this trend and remain silent.
Beginning in 1971 and lasting fifteen years, Jean-Claude Duvalier (“Baby Doc”) orchestrated a systematic attack of grave human rights violations on his own people including torture, unlawful imprisonment, forced disappearances, and murder. Because he fled Haiti in 1986, Duvalier was never held accountable for the atrocious crimes committed under his watch. On the contrary, he spent the last twenty-five years enjoying a life of comfort in France
In an unexpected twist, Duvalier returned to Haiti on January 16, 2011. To the surprise of many, the government seemed prepared to hold Duvalier accountable for the systematic repression his regime inflicted. A judge was appointed to investigate allegations of Duvalier’s corruption and crimes. Prosecutor Harycidas Auguste, appointed under the Préval administration, zealously pursued the charges. Unfortunately, support for the Duvalier prosecution has waned considerably since the right-wing President Martelly took office in May 2011, following U.S.-financed elections that excluded Haiti’s most popular political party, the progressive Fanmi Lavalas party.
In fact, on November 11, 2011, a new prosecutor appointed by President Martelly recommended dismissing all charges against Duvalier. A little over two months later, on January 30, the investigatory judge, Judge Carvés, dismissed the political violence charges because the statute of limitations under the Haitian Penal Code (10 years) had passed. He did, however, file formal charges (similar to an indictment in the United States) against Duvalier on corruption charges.
International law is quite clear: there is no statute of limitations for crimes against humanity. No amount of time can bar someone from being held accountable for heinous crimes committed on a systematic scale – such crimes have universal jurisdiction. In addition, the lack of time bars is binding precedent in Haitian courts through the Inter-American Court of Human Rights, whose “binding jurisdiction” Haiti accepted on March 20, 1998. Prior to that, on September 27, 1977, Haiti signed and ratified the American Convention on Human Rights. The recognition of crimes against humanity and the application thereof by the Inter-American Court demands that Haiti does the same. No amount of time can minimize the harm Duvalier inflicted on Haiti.
The U.S. State Department knows this, none better than Stephen J. Rapp, the State Department’s ambassador-at-large for War Crimes; Michael H. Posner, the current Assistant Secretary for the Bureau of Democracy, Human Rights and Labor; and Harold Koh, the State Department’s Legal Advisor. Ambassador Rapp has tried and convicted perpetrators of crimes against humanity and was Chief of Prosecutions at the International Criminal Tribunal of Rwanda. Mr. Posner is the founder of Human Rights First. Mr. Koh has zealously and successfully represented Haitian refugees who were improperly held at the U.S. base in Guantanamo Bay. These three officials should be helping Haiti to hold a past dictator accountable for his crimes against humanity, but unfortunately, no expressions of support or statements about Haiti’s duties have been forthcoming.
The reason for the continued resistance to Duvalier’s prosecution is one person—President Martelly. Martelly has been hesitant to support the prosecution and has exhibited signs that he would prefer that the remaining charges be dropped. Duvalier has many ties to the Martelly administration: Duvalier’s son works as a consultant to the president; a former Duvalier minister is a member of Martelly’s inner circle; and other Martelly ministers are the sons of past Duvalier ministers. Duvalier and Martelly have been seen at official events and private social events together. Martelly has even hinted that he would be willing to grant Duvalier amnesty, although, under pressure, he has backed away from that statement.
The U.S. State Department engineered President Martelly’s election, by paying half the cost of the elections that excluded Fanmi Lavalas, and forcing the Electoral Council to change the results of the first round of voting to allow Mr. Martelly into the runoff. In light of strong backing for his candidacy, the U.S. government appears resistant to openly criticize, challenge, or burden the current administration.
Without the United States’ explicit support, the odds of a successful prosecution diminish significantly. Endorsement from the United States has powerful implications in Haiti. If the United States does not speak out, Duvalier will most likely not be brought to justice. It is time for Ambassador Rapp, Mr. Posner, and Mr. Koh to admit that this scenario is completely unacceptable. With pressure, this prosecution is possible. Capable lawyers and, more importantly, numerous victims are committed to seeing it through despite the odds against them.
As it is often said, where there is a will there is a way. The United States has the ability to provide the will. Haiti can provide the way.
Corey Sullivan Martin is a law student at Boston College Law School and a law intern at the Dorchester-based Institute for Justice and Democracy in Haiti.