Bringing Justice to Victims of the Raboteau Massacre
Historic Milestone for Ending Impunity
In September 1991, a group of officers from the Armed Forces of Haiti (acronymed as “FADH” or “FAd’H” in French) overthrew Haiti’s first democratically elected president and imposed a military dictatorship led by Lieutenant General Raoul Cédras. Opposition to the coup was so fierce that the regime created FRAPH, a paramilitary organization alternatively described as a ‘death squad,’ to suppress it. The FADH and FRAPH jointly served as the arms of political violence for the Cédras regime and were implicated in the extrajudicial killings of as many as 4,000 Haitians, as well as in thousands of incidents of rape, torture, arson, and arbitrary detention during the three years of the regime. As a consequence, hundreds of thousands of Haitians fled their country.
On November 9, 2000, after five years of pretrial proceedings and six weeks of trial, an unprecedentedly diverse jury convicted sixteen former FADH soldiers and FRAPH paramilitaries for their roles in one of the regime’s most notorious abuses: the Raboteau Massacre. A week later, the judge handed down a guilty verdict and lifetime imprisonment sentence for another 37 defendants – including the entire FADH high command and the heads of FRAPH – who had fled Haiti and were therefore prosecuted in absentia. Under Haitian law, those defendants would now be subject to arrest upon returning to Haiti, with the choice of accepting the conviction or demanding a new trial. Victims who had participated in the trial as “civil parties” were further awarded one billion Haitian gourdes in damages (approximately U.S. $43 million at the time).
The Raboteau Massacre Trial represented an opening for justice in Haiti. The FADH, with its long history of coups and violent repression, was disbanded in 1995, as pretrial proceedings commenced. The very undertaking marked a sharp break with impunity for government abuses as the first prosecution of Haiti’s military leaders for human rights violations. The trial also embodied effective strengthening of the capacity and credibility of Haiti’s justice sector: proceedings exhibited investments in trainings for justice sector actors as well as judicial infrastructure; featured litigation tools like expert testimony and DNA evidence which had not previously been used in criminal proceedings in Haiti; invested in victim participation as well as public ability to observe (all proceedings were broadcast live on national radio and often on television in Creole); and were scrupulously fair to defendants. In short, the trial demonstrated that Haiti was committed to justice and was developing effective tools for achieving accountability for abuses previously shielded with institutional impunity.
Promise of Justice Betrayed
In the intervening years, successive Haitian governments have not lived up to that promise. By the time another coup had displaced the democratically elected government in 2004, all of the Raboteau defendants were no longer in prison, most having escaped. Despite their absence, in April of 2005, Haiti’s highest court (Cour de Cassation), which had been refusing to issue a decision on defendants’ appeals from years earlier, suddenly vacated the jury verdict in a decision that has been widely criticized as unconstitutional, procedurally unsound, politically motivated, and contrary to applicable international law. A Gonaïves chief registrar issued an order, sharply denounced by the BAI as unlawful, negating the conviction in absentia of Carl Dorélien (assistant chief of staff of the FADH under Cédras), who had in the interim returned to Haiti, been arrested pursuant to the Raboteau conviction without demanding a new trial, and then escaped from prison. Most visibly today, Jean Robert Gabriel, the former spokesperson for Cédras who was convicted in absentia as one of the intellectual authors of the Raboteau Massacre, not only returned to Haiti, but was also appointed, yet again, to a top position in the recently revived FADH. BAI sharply criticized the move as giving Gabriel a platform to “resume military barbarism and show disdain for the legitimate rights of the Haitian people.”
A New Opportunity to End Impunity
An apparent, briefly aborted, decision by the U.S. government to imminently deport the founder of FRAPH, Emmanuel “Toto” Constant to Haiti offers a new opening for returning to the promise of the Raboteau Massacre Trial. Constant, who had fled Haiti for the United States, only to be held liable there for his crimes as head of FRAPH civilly and then to be be criminally convicted and jailed for mortgage fraud, was abruptly paroled to the U.S. Immigration and Customs Enforcement on April 7, 2020 in spite of the sentencing judge’s finding that “[g]iven the uncertainty of the political situation in Haiti and the very real chance that defendant may be able to evade justice due to the instability in the Haitian judicial system, it is the court’s hope that defendant remain in New York State for the full term of incarceration” (of 37 years).
Regardless of whether and when Constant is deported to Haiti, the government of Haiti now has the opportunity to reverse nearly two decades of regression from the promise of the Raboteau Massacre Trial by making meaningful Haitian law and ending impunity for the Raboteau Massacre and the other abuses of the Cédras regime. As Mario Joseph of the BAI wrote in his recent letter to the Haitian Ministry of Justice and Public Security, the Haitian government should commit to arresting and delivering to justice any convicted Raboteau defendants who are found on Haitian soil: not only Constant, if he is deported, but also those who, like Gabriel, are already present in Haiti and have to date been allowed to flourish or even regain high government positions.
May 6, 2020 BAI letter to the Haitian Ministry of Justice and Public Security (calling on the Ministry to arrest and bring to justice any fugitives convicted in the Raboteau Massacre trial who are deported to or otherwise present in Haiti); the National Network for the Defense of Human Rights (le Réseau National de Défense des Droits Humains, RNDDH) joined the BAI in calling for the same on May 16, 2020
May 13, 2020 letter from Reps. Waters and Levin to the U.S. Departments of State and Homeland Security (“[u]rg[ing] DHS to Detain Haitian Death Squad Leader Toto Constant in the U.S. until the Haitian Government Provides a Plan to Prosecute Him under Haitian Law”)
Emmanuel ‘’Toto’’ Constant Reste Emprisonné aux Etats-Unis (Emmanuel “Toto” Constant Remains Imprisoned in the United States), Le Nouvelliste, May 27, 2020 (reporting that the government of Haiti announced that, at its request, the U.S. would temporarily halt the deportation of Emmanuel Constant, a former paramilitary leader convicted in absentia for crimes under the Cédras dictatorship)
30 Deported to Haiti, But Ex-Strongman Remains in US , Evens Sanon, AP, May 26, 2020 (reporting that Haitian government spokesperson “said the government would arrest Constant if ever he is deported from the US to Haiti, but that he would Be eligible for a second trial”)
Haiti death squad leader’s US deportation is back on, Monique O. Madan and Jacqueline Charles, Miami Herald, May 20, 2020
Edwidge Danticat: U.S. deportations to Haiti during coronavirus pandemic are ‘unconscionable’ | Opinion, Edwidge Danticat, Miami Herald, May 10, 2020
The U.S. planned to send a death squad leader to Haiti. Then it said never mind., Monique O. Madan and Jacqueline Charles, Miami Herald, May 6, 2020
The US Has Been Exporting COVID-19 to Haiti; Now, It Is Returning a Death Squad Leader, Jake Johnston, Center for Economic and Policy Research, May 5, 2020
Background on the Raboteau Massacre and Related Litigations
Legal Victory Leads to Historic Recovery for Massacre Survivors in Haiti, Institute for Justice & Democracy in Haiti, Upside Down World, May 27, 2008
Civil Suit Exposes U.S. Role in Haitian Massacres, G. Dunkel, Workers World, June 1, 2008
National Lawyers Guild Congratulates Raboteau Massacre Victims on Historic Victory, National Lawyers Guild, May 23, 2008
Giving “The Devil” His Due, David Grann, The Atlantic Monthly, June 2001
Justice Delayed: Showdown Looms in Haiti, John Donnelly, Boston Globe, June 11, 2000
So that Tyrants Won’t Rest, Haitians Keep a Vigil, David Gonzales, New York Times, August 2, 2000
Pote Mak Sonje: The Raboteau Trial (Documentary Film), Two for the Road Videos, 2003
If You Are Not Corrupt, Arrest the Criminals: Prosecuting Human Rights Violators in Haiti, Ken Bresler, Spring 2003
Raboteau Massacre, Wikipedia
Raboteau Massacre Litigation in Haiti
2000 Raboteau Massacre Trial
November 16, 2000 in Absentia Judgment of the Court of First Instance of Gonaïves (convicting 37 individuals in absentia for murder, sentencing them to lifetime imprisonment and hard labor, and ordering them to pay one billion Haitian Gourdes in damages to the families of the victims)
Raboteau Massacre Trial Verdict List (Unofficial) (listing all individual convictions and sentences following the Raboteau Massacre Trial)
Ordonnance [similar to an indictment] Issued by the Court of First Instance of Gonaïves (indicting and charging defendants and explaining the applicable law)
Report of Colonels Horacio P. Ballester and Jose Luis Garcia, Military Experts for M. Jean-Senat Fleury, Juge d’Instruction for the Gonaives Court of First Instance: Hierarchy of Responsibilities of the Armed Forces of Haiti During Its Course of Conduct in Raboteau (Gonaives) from April 18 to April 22, 1994 August 6, 1999 (expert report submitted to the court and outlining the laws of war applicable in the Raboteau trial and how they apply to the organizational structure of the de-facto military regime in Haiti)
Raboteau Verdict in Haiti “A Landmark in Fight Against Impunity,” but Case Not Yet Finished (publishing statement by the UN Independent Expert on Haiti, calling the trial a “significant step in the fight against the impunity which affects all Haitian people” and “proof that the Haitian judicial system is able to effectively judge the authors of crimes and other offences that contravene the law and violate human rights”)
Justice for Haiti: The Raboteau Trial, Brian Concannon Jr., The International Lawyer, June 1, 2001
Beyond Complementarity: The International Criminal Court and National Prosecutions, A View From Haiti, Brian Concannon, Jr., Columbia Human Rights Law Review, Fall 2000
2005 Cour de Cassation Reversal of Jury Verdict
On April 21, 2005, Haiti’s highest court (Cour de Cassation) reversed the convictions of the individuals found guilty by a jury in the Raboteau Massacre Trial. That opinion has been harshly criticized and disputed as an improper and unconstitutional application of the law.
Decision of the Cour de Cassation (providing the court’s rationale for overturning the convictions of defendants convicted by jury)
Legal Memorandum of Mario Joseph (BAI) and Brian Concannon Jr. (IJDH) of June 6, 2005 (providing legal analysis of the Raboteau Case reversal)
Letter of the Association of the Bar of the City of New York to the Prime Minister and the Minister of Justice and Public Security August 12, 2005 (condemning the reversal)
Justice Dodged, Part II, Brian Concannon, Jr., Derechos, June 2005
Haiti: Obliterating Justice, Overturning of Sentences for Raboteau Massacre by Supreme Court is a Huge Step Backwards, Amnesty International, May 25, 2005 (outlining how the reversal was contrary to the Haitian Constitution and did not apply to the defendants convicted in absentia)
December 22, 2005 Open Letter of Mario Joseph (BAI) (explaining to the Minister of Justice in Haiti that the reversal in the Raboteau case does not apply to Carl Dorélien or others convicted in absentia)
Raboteau Massacre Trial: Criticism follows court’s decision, Reed Lindsay, The Washington Times, May 17, 2005
Civil Litigation Against Raboteau Defendants in the U.S.
Haitian survivors successfully sued two of the Raboteau Massacre Trial defendants convicted in absentia in Haiti in U.S. courts. In each case, millions of dollars in civil damages were awarded to the plaintiffs.
Constant Criminal Fraud Conviction in the U.S.
Decision and Order of the Supreme Court, Kings County, New York of May 22, 2007 (vacating proposed plea agreement and noting, inter alia, that Constant emphasized serving as “a leader of FRAPH” and not merely a member, and characterizing the allegations made against Constant in Haiti as “heinous”)
Sentencing Order of the Supreme Court, Kings County, New York of October 28, 2008 (sentencing Constant and finding, inter alia, that “[d]efendant, a native of Haiti, has a truly heinous record of violence, murder, torture and intimidation under the brutal regime of the Duvaliers” and that “[g]iven the uncertainty of the political situation in Haiti and the very real chance that defendant may be able to evade justice due to the instability in the Haitian judicial system, it is the court’s hope that defendant remain in New York State for the full term of incarceration, although it is apparent that the federal authorities may move to deport him shortly”)
Declaration of Mario Joseph (BAI) of May 2007 (providing information in connection with the Court’s sentencing decision)
Declaration of Brian Concannon, Jr. (IJDH) of May 2007 (providing information in connection with the Court’s sentencing decision)
Noteworthy Raboteau in Absentia Defendants
Giving “The Devil” His Due, David Grann, The Atlantic Monthly, June 2001
A Haitian Leader of Paramilitaries was Paid by C.I.A., Stephen Engelberg, New York Times, October 8, 1994
Raoul Cédras (ruled Haiti 1991-1994 through a brutal regime) EN
Jean Robert Gabriel (secretary for the general staff of the FADH and eventual spokesman for Cédras)
Philippe Biamby (Cédras deputy and FADH chief of staff) EN
Michel François (chief of police and secret police under Cédras) EN