Institute for Justice and Democracy in Haiti

IJDH Conference Call on Duvalier Trials with Staff Attorney Nicole Phillips

<Transcript of: March 7 2013 IJDH call on Duvalier with Staff Attorney Nicole Phillips>

Min 0:00 – 4:59

Brian: [inaudible] …legitimacy in Haiti, they represent some of the victims who filed complaints of political violence and they appealed the dismissal of political violence crimes, and so what we’re now doing in the appeals court process that is deciding whether those political violence crimes were correctly tried and for people more familiar with the English and American legal systems this is a little strange because they’re actually taking victim testimony and defendant testimony at an appeals court hearing which you can do in the United States, but in this case the appeals court in Haiti have fairly broad powers, they can almost re-do the trials court’s work. It looks like that’s what the trial court’s doing is to, really look at the factual basis underlying the claims to see if there’s an issue for trial. And with that, I’ll pass it on to Nicole with a quick introduction.  Nicole is an adjunct professor at the university of San Francisco school of law and for the last three years she’s been a lawyer with the Bureau des Advocates International, she has a long experience of labor and human rights work, and for IJDH she leads most of our international litigation including the American Commission on Human Rights and the UN Human Rights Counsel. Since January she’s been based in Haiti and she’s been following the hearings at the at the appeals court. I’ll let Nicole take it from here and tell us what’s been happening on the ground.

Nicole: Okay great, thank you Brian. I am going to- I’m sorry I just called in by cell phone hopefully you all will be able to hear me now. For the last month the hearings have really heated up, and as Brian mentioned the case is in the appeals court right now. Not a lot has happened over the last year but in the last few weeks the court has started having hearings again and the main focus has been to get Jean-Claude Duvalier in to testify.  It took three weeks to compel him to testify. His lawyers argued very strenuously against it although they didn’t have very good legal arguments about why he shouldn’t be allowed to testify. Instead their tactics were to divert attention to other things, make legal arguments that had nothing to do with whether or not Duvalier should testify.  They also attacked the victims’ lawyer’s ability to be at the hearing, they wanted to exclude our lawyers of course. Our victims’ lawyers make up about 3 different law offices that include the BAI; it’s a really impressive legal team that’s led by a former minister of justice, as well as Mario Joseph and four other BAI lawyers. The court ordered Duvalier to appear and finally last week he did.  Duvalier had filed an initial interlocutory appeal with the Supreme Court to block his testimony, even though there was actually no real order from the court that was appealable so their appeal was improper. Luckily the court didn’t buy it so he testified last week – last Thursday – the court room was packed, there was well over 100 people, standing room only, a lot of panelists, as well as victims. There were also interestingly a lot of monitors at the hearing, there was somebody from the US embassy,  amnesty international, human rights watch, as well as the UN, the High Commissioner for Human Rights that work through the Minustah human rights office, and many others from different embassy’s, et cetera.  So it was a packed court room, Duvalier did appear.  He was asked probably about a dozen or so questions, and really didn’t give a lot of information; he spoke very softly…

Min 5:00 – 9:59

(Nicole) …he sat down and spoke to a clerk that wrote down all of his answers and then read them back to the court.  He was so weakened that he wasn’t even able to speak out, which is quite contrary to the victims who spoke today. But I’ll get to that in a second. The judges asked very good questions about his knowledge about Fort Dimanche, what was happening in Fort Dimanche, his control of police, but he really didn’t answer any of the questions with any specificity, he was really basic in all of his answers.  Unlike the common law system where he’d be asked follow up questions, the court left it at however he answered. On the other hand though, we really walked away from that day feeling that Duvalier evaded the questions so you almost didn’t need a follow up.  It was quite clear that he was not in good faith about giving his answers.

The most interesting question in last week’s hearing with Duvalier was asked by his own lawyer, Renald George, who is a very intelligent lawyer who asked whether or not he had a copy of 1976 report from the US embassy about human rights abuses that was released at the same time as the Amnesty International report on the same subject. Duvalier responded that he had been at a meeting in Washington where he was meeting other international governments where they talked about how NGO’s, rather than promoting human rights in the country, were very de-stabilizing to the governments.  That appeared to be a direct attack to Amnesty International, and it was interesting that Duvalier’s lawyer asked about the US government. I spoke with one of the victims, Bobby Duval, afterwards and he thought that Duvalier’s testimony that day was geared towards the US government, saying you gave me cart blanche, supported me, put me in office, I just did what I was able to do.  His answers and others were reminders to the US government, who was sitting in the court room. So that’s an important thing also because we’ve mentioned in interviews, Brian and me and others, that the US government has not yet spoken up about the Duvalier prosecution. You know they influence Haitian politics, the government and the economy, and many other areas.

So that was Duvalier’s testimony last week, this week was the testimony of the victims.  There are about 6 victims that are signed up to speak. Only two testified today.  They each were on the stand for almost two hours, they stood – unlike Duvalier who didn’t stand – they stood and spoke loudly enough for everyone in the court room to hear.  Jean-Claude Duvalier was not there today, we knew he wasn’t going to be there today but there was a press release that came out today that said he was sick in the hospital, but we knew he wasn’t going to be there – that he was not ordered to be there today because his testimony was last week.

The 6th victim that testified was Alix Fils Aimé, and he used to be a deputy in Petionville. He went – was in prison for about 18 months and in the middle of that he was in Fort Dimanche, which as many of you know is known for its horrible prison abuses, torture, and conditions. So, he talked about being kidnapped and arrested, and how he was mostly in solitary confinement in the jail, and living conditions…

 Min 10:00 – 14:59

(Nicole)… he had a one and a half meters by one and a half meter cell so he was barely able to lie down, he was barely able to lay down and the cell had excrement, urine, blood, mosquitoes everywhere and he wore only his underwear and that was it. They gave him a little bowl of food through a little iron door, which was his only real human contact except he was able to hear torture happening around him in the other cells. When he was in Fort Dimanche for those 46 days that he was there in 1977, that was one of the questions from the judge was whether he saw people being tortured to death. His response was that he saw prisoners naked with their legs apart, beaten on their buttocks so badly that they started defecating. He didn’t mention if they died or not but that was his answer that question. The second witness was Bobby Duval, which you may know.  He spent some time in Canada, he was a famous soccer player here in Haiti, a celebrity and has a nonprofit now, which I think has really been an icon for the victims group for Duvalier. He was targeted because of the time he spent abroad.  He talked more about the prison conditions – he spent some of his time in Fort Dimanche.  He talked about how he was given about one bowl of cornmeal a day which he thinks is about 300 calories, which is how most of them lost pounds quickly and started to die. In the 8 months he was in Fort Dimanche, he counted 180 people die, and that when people died – the prisoners were kept in in blocks of cells about 20 feet wide with 40 people per cell, and that when somebody would die they would knock on the door – the iron door of the cell so everyone could hear and the guards would come by and take the body out and throw it into a big hole near the prison.

One of the questions he was asked by Duvalier’s lawyer was ‘if you were in solitary confinement, how did you know how many people were dying?’  His answer was, “While I was in Fort Dimanche I wasn’t in solitary confinement, we were kept in cells and that we had a system – and we counted about three people a week who would die, and each cell was in charge of counting on a weekly basis how many people died.”  The last thing that he said was – and then I’ll switch over to questions – was that he was pretty –

Caller A: I’m sorry to interrupt, this is [inaudible] from Jamaica, the connection is not very clear if you could speak a little – there is a lot of noise in the background, so if you could speak a little clearer please.

Nicole: Sure, yeah, thanks for letting me know, if folks could put their phones on mute that would be great.  I think we have over 30 – about 40 people on the line, is this better now, can you hear me?

Caller A: Hello?

Nicole: Hi, can you hear me – is this any better?

Caller B: I think your voice is very clear, people just need to mute their phones.

Nicole: Okay, so if we could mute phones right now that would be great.

Caller B: It’s a lot better now.

Nicole: Okay so what Duval said was that he was freed because in 1976 President Jimmy Carter came into office in the United States, that he cared about human rights and so he sent an ambassador to Haiti with a list of 13 names in prisons.  The US government at that time started putting…

Min 15:00 – 19:59

(Nicole) …pressure on the Haitian government.  His name was on that list of 13 people but that only 3 people were alive still of the 13 people that were on that list. He was very lucky. So he was transferred in January 1977 to a different facility where he was cared for. He apparently lost weight, he only weighed only about 120 or so pounds, and he’s a big guy, definitely well over 6 foot tall, and he was cared for back to health but he really almost died.  Both these witnesses themselves did not experience torture – beatings I should say, and both are very, very grateful that they didn’t, but witnessed the torture and beating of others, and endured the prison conditions.

I spoke to Mario right after the hearing and I asked him what he thought of the hearing. All of our lawyers seem really pleased with how it went.  He is very optimistic that this court- this appeals court will rule in our favor on the appeal- on the victims appeal, and so what that means is that it could go back down to the trial court, overruling of trial court order, and there would be a trial on Jean-Claude Duvalier, not just on the financial crime but also for the political violence crimes. The only sticking part of course is that Duvalier will have another chance, both sides will have another chance, to appeal the Supreme Court, I think it’s quite likely that Duvalier’s lawyers will appeal to the Supreme Court. That would be a whole new battle and a whole new set of judges and so who knows what will happen! In terms of time length, it looks like there will be one, if not two more hearings where we will listen to victim’s testimonies and there might be another hearing after that with some legal arguments.  Mario thinks that this evidence will be enough to sustain that there were prison and crimes against humanity, and therefore is appropriate to have a trial on these crimes, which is a huge victory. I’ll leave it there for now, and I think it would be great to open it up to questions.

Caller C: are we going to get a transcript of what you said? Because its- I’m sorry, I missed half of it.

Nicole: I’m not sure, I think somebody is recording this, but I’m not positive I’m sorry, I don’t know.

Hannah: Yes, we should be able to send a transcript.

Caller C: Alright, thank you.

Caller D: Did you say, I’m trying to clarify if you said that Duvalier said that the US government put him there and he just was doing what he could?

Nicole: No, he did not say that. It was the implication, what he said is that he had a meeting with the US government where they talked about the interference of NGO’s.

Caller D: Okay.

Pooja: Hey Nicole, this is Pooja, I have a couple of questions. How are you? Wonderful information – a very exciting time. My first question is about the status of the financial crimes case. Is there any movement of that in Haiti? And also, I remember that a couple of years back when he came to Haiti I remember that that was speculation that he had done so to avoid getting his assets in Switzerland confiscated, do you know what the status of that is? So that’s the first question. And then the second question – it’s basically about the process going forward in terms of, you know, when you guys would expect the appeals court to issue a ruling, all things considered – yeah, that would basically be it, thanks Nicole.

Nicole: Sure, thanks Pooja.

Min 20:00 – 24:59

(Nicole) …So for the financial crimes, that case I think has been stalled, but to my knowledge there hasn’t been a lot of movement on that case. I think there’s some work and preparation of evidence but in the judiciary there hasn’t been movement to my knowledge. In terms of his return back to Haiti and the millions of dollars he has in a Swiss bank account, I have not heard an update on that. the last I heard was that the money was still being held and of course we don’t know exactly why Duvalier came back to Haiti As of February 1, 2011 – about a week before he came to Haiti, under Swiss law, the burden of proof was still on the government to prove that the money in these bank accounts were not ill-gotten gains, if there was an allegation of that,  whereas under – that was before February 1st, right after February 1st the presumption shifted to the alleged dictator that they were not ill-gotten gains.  Because of the shift in burden of proof, he wanted to come into Haiti, spend a few days here, he said he would arrive and be here only for three days, and that he was going to come into Haiti within the mix of elections and political instability and that he wouldn’t be arrested, so he thought, and go back to Geneva and say ‘I was there, they didn’t arrest me, and therefore I get to take the money out of the Swiss bank account.’  But instead he didn’t. I don’t know if Brian is on the phone – if he as any other information on that.

Brian: This is Brian; I have not heard anything of the disposition of the money. My guess is that the Haitian government was able to take it, because I think that on February 1st 2011, he might have lost any opportunity he had to get it but I can’t confirm that the Haitian government did in fact do what it necessary to get the money back.

Nicole: Then in terms of your third question, Pooja, about how long this is going to take – it’s hard to know. Of course, they haven’t really said yet but I think Mario thinks it’s going to happen pretty soon, potentially within the next few weeks, and I don’t know when the order will be released out of the appeal court.

Pooja: Great, thanks.

Connor Bohan: Nicole, this is Connor Bohan, first of all, thanks for all your work, this is horrifying and exciting all at the same time. I’m wondering how open or accessible these hearings are, I imagine it is hard to get a seat in the court room.  Are they either televised or recorded and then available afterwards?

Nicole: Yes, the hearings are open to the press. There are a lot of both radio and TV journalists and newspaper journalists that are there.  Probably at least 80-90% are Haitian which is great to know that this is directly on Haitian TV and on Haitian radio.  I don’t see any kind of official recording but the court itself is making a written record but I don’t know how that will be available down the road. It’s a good question though, because particularly the testimony of Duvalier and the testimony of the hearing is something that a lot of people should be able to see in their entirety and it’s nice to have copies of that but I don’t know how they’d get disseminated necessarily.

Connor Bohan: Okay, thanks.

Mike: I have a related question – this is Mike.  Thanks again of course for all the wonderful work you guys are doing.  I’m wondering whether the legal documents submitted by both sides are available to the public and related to that, will any new evidence be able to be submitted in the event of a trial down the road?

Min 25:00 – 29:59

Nicole: We would be likely be submitting new evidence in a trial so that will be an exciting time if we get there. In terms of the legal piece, we have not – because a lot of the legal arguments have not been made yet, we have not yet made our brief available to the public.  Other than the appeal to the Supreme Court, I have not seen any brief coming out of Duvalier’s lawyers.  We have been able to obtain an amazing brief that was coordinated through the Center for Justice and Accountability based in San Francisco that have provide assistance to Haiti victims in prior cases, they were able to make a brief on crimes against humanity and clarify those issues, that there is no statute of limitations or limits on these crimes based on customary international law. We got that brief, we have our own brief, and we may have another brief so that at some point that might become public but now they’re not.  A lot of these arguments are in reports by Human Rights Watch and Amnesty International, so if you go on our website under Duvalier projects, you’ll find those reports and those really summarize the legal arguments quite well.

Mike: Thanks.

Caller E: Nicole, can you – I mean it’s in its early days, I know, but can you summarize what the effect you think this will being having on the Haitian public politically, I mean what kind of – you say the court room has a lot of Haitian journalists so what kind of effect is the reporting having?

Nicole: Hi, you ask a great question, and it’s a little hard to know right now. I think one of the things I heard is that a lot of it actually comes from not wanting to come forward because they thought that the Haitian justice system was incapable of fairly prosecuting the case, that it was not even worth it so they didn’t want to partake in the process, which is too bad.  I have also seen a lack of protesters against Duvalier in the courthouse, so it’s hard to tell how much of this is being followed. I ask people in the streets away from my office to tell me if they know about this, the legal community definitely knows, but the average taptap driver on the street kind of knows that this is happening but really isn’t following it that closely. I think it’s really up to the Haitian journalists to really disseminate this.  We’ve all heard statistics, but you’d really have to be 30 years old or older to really remember what happened in the Duvalier’s time. I think that if we get a positive decision, then we will have something that shows he came and he testified, he now has a court order out of the appeals, the Haiti justice system can and does work for justice. That will send a very positive signal that the justice system can and should be used. But it’s hard to say right now about what impact this all is having, many people are very weary of this and don’t know what’s happening.

Brian: Hey Nicole, If I can add something, I was in Haiti in late January I had a good talk with Mario about this and at the time, he was very pessimistic and really assuming that we would lose quickly in the appeals court and would have to go to the Court de Cassassion – the Supreme Court – and would probably quickly lose there and then would have to go to the Inter-American Commission on Human Rights where we’d win, and then bring it to the Court of Human Rights and win there, and then we’d be back three to five years back in the Haitian trial court.  He really expect we’d get a fair hearing out of the people’s court so I think the developments of the past few weeks have been really remarkable.  I think we really have completely changed the context, I think it’s due to the work of Nicole and all the BAI lawyers on the ground but also of the journalists who have been covering this, the activists – everybody’s been tweeting and re-tweeting these things…

Min 30:00 – 34:59

(Brian) …we’ve really kind of changed the context to the extent where there’s a lot of pressure on the court and on the government to follow what they’re hearing.  I think it is that pressure which has really made the difference to get to the point to where we are today, and obviously one of the reasons that I am so grateful that so many people are on the call now, that pressure needs to continue to ultimately have the court and the hearing conclude in a fair way.

Nicole: Yeah, that’s right, the one thing I might want to add that Brian mentioned which I forgot to mention in the beginning is that I think one of the reasons Duvalier was forced to testify is because with Amnesty International and Human Rights Watch, with so many different human rights organizations all coming out, and the High Commissioner of Human Rights, all these different organizations to put pressure on the Haitian judicial system, made this a fair trial. I think it brought so much pressure on the system that it’s working, which is incredible.

Connor: This is Connor, I have another question, and that is what it seems like from what I’ve been reading is that the State Department just isn’t really interested in this as an issue at all, and if you could tell us a little bit about why you think that’s the case and if there’s any kind of pressure can be put on through congress or anyway so that might push them to change their minds?

Nicole: Brian, do you want to take that?

Brian: Sure, I did a bunch of discussions with the State Department, one of the both promising and frustrating things about the State Department is that it has a real all-star team of human rights lawyers, Michael Posner, who is the Assistant Secretary for Democracy and Human Rights in labor, he actually got his teeth on the Haiti case with the lawyer’s committee of human rights, they’ve got Steven Raft who is the war crimes ambassador whose career is going after people like Duvalier in Africa and despite having some very capable lawyers, who understand the importance of cases like this – the State Department has not, despite a lot of effort, really stepped up.  For anyone who wants an analysis of this, Fran Quigley works at the University of Indiana Law School, wrote a post on Common Dreams and Truth Net called Free Michael Posner, just Google Free Michael Posner or look on our website for that article.  But I think it is a couple of things, the US administration thinks that this could be disruptive to Haiti, the second thing is I think they are friendly with the Martelly government, and this is something that I thing the Martelly government is both officially and in the way of seeing the case, making it known that it is not excited about prosecuting this case.  So I think it is somewhat standing by a friend, and I think its short sided in both ways; yes I think there is a chance for disruption, since people go to the street and need to go to police to control that and in fact these hearings show that the Haitian justice system can in fact pull this off. And I think if it does pull it off, and Duvalier is given a fair trial, you set a great president against political violence and corruption.  Once you do that you are making a very substantial contribution to the long term stability both political and financial of Haiti.  So I’m disappointed that the US government is not taking the opportunity – and it’s not a question, the US is saying that we cannot interfere in Haitian politics, which is inconsistent with its interfering itself in so many ways. It’s also not a question of imposing US will, Haiti has an international law obligation to prosecute – the International Commission on Human Rights, the High Commissioner of Human Rights, Amnesty International Human Rights Watch, have all made that clear and it certainly wouldn’t be overstepping for the United States to say that they recognizes that.

In terms of what people can do, that’s a big question. Maybe we’ll think about, we have worked with people who have made statements, who have approached the State Department that have worked, I have had meetings with [inaudible]. Maybe we should think of something in the pocket here…

Min 35:00-39:59

(Brian) …we actually had many people around here sign a letter, I think it was back a year and a half ago we had a letter signed by dozens of human rights organizations, urging the State Department. Maybe this is a good time to re-circulate that letter in order to do some more other action and active pressure.

Abigail: Excuse me, this is Abigail, calling from Georgia, and I would like to ask a question next please.

Brian: there’s certainly a lot of back noise, can we encourage people to mute their phones again.

Abigail: This is Abigail calling from Atlanta Georgia; I would like to ask a question.

Nicole: Yes please, we would like your question. One thing though is before you start, [inaudible] -.

Brian: Go ahead and ask your question.

Abigail: Yes, I would like to know if the contestants know how this is being covered in the greater Caribbean is it a focus of the news agencies there and how people are reacting to this scenario there?

Brian: I haven’t seen any coverage by any of Haiti’s neighbors. There was actually a pretty good article on Haiti Justice by Ricky Singer in Barbados about the UN response to the cholera claim, but I have not seen anything in the Caribbean press about the Duvalier case.

Abigail: And I will follow up on my own question and check and see what is being covered and what the discussion that is taking place is. Thank you very much.

Brian: And we also have – I’ll ask Myrtha Desulme from Jamaica if she’s seen anything from the Jamaican press.

Abigail: Sister from Jamaica, have you seen or heard anything in the Jamaican press if you are in Jamaica? [pause] I don’t know, we probably lost her.

Brian: Okay maybe she’s lost, but Myrtha is actually is sending anything from the Jamaican press that she sees and she hasn’t sent anything so my guess is that this hasn’t been covered.

Abigail: That is really terrible. If that’s the case that is really, really terrible. Of all places it should have been covered in the Caribbean press, but I don’t want to speak ahead without doing the research to see and inquire.

Matthew: Hey, this is Matthew from Inner City Press, I just wanted to ask about the cholera and the UN cholera dismissal of claims. What do you think could have any impact on the ability to litigate on the cholera claims there? And also just if either of you can provide a response in Haiti about the dismissal by the UN of those claims?

Nicole: Brian, I’ll let you take the first part of that question I’ll take the second part.

Brian: Okay sounds fair. I think that any opportunity to strengthen the justice system is a good one, and therefore is why I think one of the reasons this case is so important to the system because this is an opportunity for everyone in the system to raise their game. They attract attention, they attract interest, they attract resources, and one example of how that works is the Raboteau case that happened in 2000, which really raised the Haitian justice system to a new level not only as it performed at a new level.  There was a perception that people in the justice system as well as its constituents, the citizens of the country that the system could do much better, and that really had a ripple effect, and the Duvalier case is another opportunity to do that – as is the cholera case. We haven’t filed the cholera case in Haitian court but I think that’s one of the alternatives to giving a fair trial to Jean-Claude Duvalier could pave the way for giving a fair trial for victims of the cholera epidemic.

Nicole: In terms of the second question and the effect of the cholera dismissal by the UN, to the folks that care about human rights that is a question that a lot of people are talking about.  I mentioned that we have a group of law students from Boston College here this week and they were interviewing an organizer about demonstrations and those types of things. One of the things the organizer asked is ‘what are you going to do about the…

Min 40:00 – 44:59

(Nicole) …UN’s dismissal about cholera claims.’ It’s something that I think is on the minds of a lot of people. I think there’s also an acceptance, that in Haiti the UN often does what they want with impunity and they’re used to this unfortunately. At the same time, people who care about human rights are very, very upset about this and discouraged by it and unfortunately are not surprised and are wondering what can be done.  They don’t necessarily want this to go away, they want to know what’s the next step, how can we keep fighting? They realize how unjust this is, they realize that people keep dying, and you know, there was a cholera elimination plan that was announced here – I think it was – last week. The Haitian people don’t know about it, nobody I’ve talked to really knows about the cholera elimination plan, so it’s certainly not being disseminated by the Haitian government, by the Haitian media or by the UN. So I think a lot of Haitians just don’t see an end to the deaths that are happening by cholera and want justice and want this to stop.

Matthew: Thanks a lot, that’s helpful.

Brian: Do we have any other questions?

Abigail: I have one.

Brian: Yes, go ahead.

Abigail: The question I have is; are we going to rally around – are you going to – is there anything we can do on this end for those of us who want to raise the ante here and keep the pressure on. Is there any center source or organization we can contact or ways we can support keeping putting the pressure on the courts in Haiti?

Brian: That is a really good question. I’ll answer it by what I suggest, unless Nicole has more great suggestions. I suggest that you cold call to the Haitian lawyers and see what think we can do that might help out. In extension I think that we’ll probably circulate something soon in terms of pushing the United States to take a stand, but there are a couple of things that are pretty easy that people can do. There have been a lot of very good Twitter reports that happen from the court room, Nicole and her feed is @BuddhistLawyer. If you’re on twitter and search for Duvalier you’ll get a lot of people- Nicole’s been doing it, a lot of journalists have been doing it, Amnesty International and Human Rights watch have been sending twitters, and a few other people on the ground in Haiti. I’d encourage everybody to just keep the word circulating around by re-tweeting some of the good tweets from the ground. Certainly people who want to write, there’s plenty of room to write, and we’d be happy to suggest angles to people who want to op-ed write a paper on why this is important or why the US government should step up. All these things are useful. I’ll let Nicole add whatever she has to that.

Nicole: I would also love to see more movement in Haiti and on the Haitian government as well. I think that there has been a lot of media covering this, and I think it’s really important.  We could have more op-eds like Brian mentioned and more tweets in Kreyol and French as well.   I think that’s important among the Haitian diaspora group in the United States, potentially putting pressure on Congressional districts in Florida, New York and other representatives. What I’ve heard a lot of is that there are a lot of Duvalier victims out there, unfortunately, and that for so many reasons that are very understandable, a lot of them haven’t really mobilized around this. If there is any chance for them to renew hope and try to join in the activism.  I think that could make a huge, huge impact both locally with US representatives who live in New York but also who live in Haiti.

Abigail: Ms. Nicole, I thank you very much. I also am a member of a community radio program that covers the Latin America and Caribbean here at WRFG89.3 and I was wondering if there is anyone from your organization that I’m making some contact in some Haitian…

Min 45:00 – 49:59

(Abigail) …community here in Atlanta to do some coverage here in that area but also if I could have someone from your organization as well to interview then sometime in the future I would be very thankful.

Nicole: Yes, we would be very happy to do so, thank you for asking.

Abigail: Thank you, and how would we be able to stay in contact – I mean how could I reach you?

Nicole: Yes – anybody can reach me with questions at feel free to email me, and to touch on what Brian said on twitter @IJDH and also myself is @BuddhistLawyer – any of those work so keep in touch with us please.

Abigail: Okay and I do get emails from your organization and I’m sure I’m going to see – that’s where I found out about this webinar. Let’s see – well thank you for agreeing to support us as well.

Roger: Hi it’s Roger– just a few quick points from Canada, we’ll be having meetings in the next week or two weeks in Montreal at least to try and get better organized on this issue because it has been really quite striking and disturbing on the follow-up news coverage of the case precisely in the moment that it was actually making some progress by bringing in [inaudible] .I don’t think there was a single report about the outcome of the first debate.  There are a few articles and still even not too much there saying that even to appear to a judge on the 21st or so.  I don’t understand this because last year there were a pretty steady stream of reports, and at least one editorial in the Toronto Star, but it seems to have dropped away which points to the need for us to get organized on this in Canada. It seems that unless we are doing more pressuring and advocating then we’re not going to get the response from media. Were still a long way from getting anyone in Ottawa to speak out about the issue, but I guess there’s aspects of recent events that are disturbing for us. Um, I did notice in the Haitian press in the last couple of days some pretty significant statements both on the cholera issue and now on the editorial on  [inaudible]  about the hundreds of millions of dollars that were gained from the petrol program. So there is obviously the capacity in Haiti and official circles in Haiti to question government policies but I guess it’s still the case that the Duvalier process is hands-off shall we say on Haitians a higher society, but hopefully over time with the kind of work that’s happening that even that can begin to turn around. So that’s a brief summary from us here north of the border.

Caller F: You know it’s very interesting that Argentina has made a move that I think could translate into what is happening with Duvalier in Haiti.

Nicole: Yeah, the Center for Economic and Policy Research did a really good article on their Haiti blog that talks about the US government as well, and kind of puts it into context how historic this prosecution is against this oppressive dictator. It’s a really good article that I recommend. So I was going to email it but since you’re on the phone, I just did an interview with Carol Off show on PRI and I just taped that show about an hour ago and she is broadcasting, and at least one CBC program is interested.

Roger: Yeah that’s a very important program that I listen to so that important to know that. I’ll have to write them a letter and thank them, I’ll look in my file and I’ll have to apologize to them for it (laughs) or maybe because I wrote the letter they’re doing it, who knows!

Nicole: Her questions were very, very good and in general I found, last week Al Jazeera was in Haiti, and we got some interest from the BBC Mark Doyle and then…

Min 50:00 – 54:59

(Nicole) …the CBC program. But really, that’s about all with the press – well and newspapers obviously, in Haiti and some others, and a few articles but really that’s about all the news internationally. The Economist wrote a really good article about linking the impunity of Duvalier and the Minustah with the cholera case, but other than that, there really hasn’t been that much coverage. There was much more coverage after Duvalier testified versus the victims testifying even though I thought their stories were much more compelling.

Jasmine: Hi Nicole, this is Jasmine, I just wanted to ask one quick question then I have to shoot off and I’m sure everyone else does too, but what could happen if this goes through and Duvalier is found guilty? What the maximum penalty, the maximum charge he’s facing?

Nicole: That’s a good question for Brian.

Jasmine: I mean given he’s in his 80’s and he’s ailing.

Nicole: He’s 61 but he is in the hospital now-

Jasmine: How old is he?

Nicole: He’s only 61; he was only 19 when he made president for life-

Jasmine: 61! He looks older than that, he looks like 80. [Laughs] well what is happening- what could happen to him?

Brian: Well the sentence for pre-meditative murder, and I believe for some of the more serious torture charges is life in prison for pre-meditative murder without an excuse I know is life in prison, so I guess that’s probably what it would be although it is possible that most of the cases that are there are false imprisonment cases and I believe for those the likely penalty is 10 years depending on what exactly is proven. But typically in Haitian courts there is a – judges do not have a lot of discretion there’s a basic charge, and a basic statutory for the crime, and it can be raised or lowered depending on different factors. It’s pretty much a calculation according to the book on how much time he gets.

Caller E: Brian and Nicole, what do you actually have to prove here, is it actually the missing link the guys who say ‘he told me to do it’ or the piece of paper that says he knew actually play in here. I guess the legal thing that you actually need to prove crimes against humanity etcetera, etcetera of his knowledge of planning of those and then the practical one of what you think you might need in the Haitian context.

Brian: In terms of the formals, none of the victims as far as I’m concerned will say ‘Duvalier tortured me’ or ‘I saw him shoot somebody’ and so it’s based on his leadership role. Now there’s one way of establishing liability and that is the jury, what his leadership role was according to law, and what his leadership role was according to the law as head of the armed force and head of the Tonton Macoutes. So he did have that kind of official control and what he will then say is ‘well I didn’t have the real control’ and then he can introduce evidence to say that he really didn’t control and I think that evidence will be much more persuasive at the beginning of his reign when he was 19 rather than later in his reign when he had been in office for 15 years and had appointed many of the people who were running the torturing. We can also get liability by showing the de facto practical elements of control and there’s plenty of that. He did transfer people, he was able to hire and fire people, and another thing we can do is – he has an obligation and even if he wasn’t involved in overseeing the people who were doing the crimes, in his job he had an obligation once he was aware of any massive human rights violations to punish anybody who was involved, and we have ample evidence…

Min 55:00 – 59:59

…from Amnesty International, the Human Rights Watch, Commission, many embassies, saying that they gave to Duvalier these reports that there were these problems and they weren’t all correct, you know one of the things he said in his trial was that ‘well, when I was told there were problems, I corrected them’. There’s very strong evidence that that’s not true, he did correct some in a very cosmetic way, but he did not investigate or correct many of the problems.  Clearly he did not punish the people who were responsible for it.

Caller E: Thanks.

Gimond: I have a question. My name is Gimond from Atlanta, Georgia. Duvalier keeps comparing his regimes to current regimes after him, which means that it seems like after the post regimes of Duvalier has more crime so what would be the implication of the next terms after Duvalier?

Brian: Okay, Nicole signals me, I think she wants me to take this. First of all, it’s not an excuse that other people committed crimes are not an excuse for him committing crimes. In terms of prosecution of other people, I think that no one is above the law and that if there is any serious evidence of any of Duvalier’s successors then that should be described before a court. I will say there’s serious evidence against Duvalier because I have seen human rights reports – I have seen boxes and boxes filled with reports of people tortured, of checks written to cash for 50 thousand dollars, so I’m confident in saying there’s a case against Jean-Claude Duvalier. I’m not confident of evidence for his successors, we were involved in a case of the leaders of the 91 to 94 dictatorship where they were in fact all convicted based on a lot of evidence. Other than that I’m not sure for any of the other successors right up to the current regime if there is that kind of documentation. If there is, people should bring it forward, if there is I don’t think it’s a justified use of the justice system. In many cases, if you’re going after people without having the documents to prove or that should be able to prove more in itself is a human rights violation.

Gimond: Well I’m pretty sure that from Duvalier until up to 2010 or 2009, even or 2008, we have plenty evidence of human atrocities against the Haitian people, you know each government and each regime comes with its own pair militaries, to terrify, it’s not a matter of evidence for the case. The reason I bring up this is what is it that if they are trying to have some kind of national reconciliation well if course national reconciliation is not considered justice, it’s really in a way so that we can really bring peace in Haiti, because you’ll have to kill every Haitian because all Haitians commit crimes. You know in Haiti there is any kind of governments up the path.

Brian: Yeah that’s a good question, and first of all, obviously you answered the part that you can’t have reconciliation without justice. I actually think the justice system is a good way of working some of these issues out because if you don’t have justice you can have this cycle of violence where everybody uses violence and everyone can equally say that someone else did it so it justifies my violence. I think that no one can justify violence against innocence or civilians because others did the same thing. There have been allegations, and again I’ve worked on some cases on some regimes where there’s been some cases we haven’t brought because didn’t evidence and some we did. Also you have to make the distinction between criminality that takes place during administration’s term in office and criminality that is attachable to those top officials. You know, today I’m sure there are some police officers somewhere in the United States who…

Min 1:00:00 – 1:04:59

(Brian) …beat someone up but that’s not necessarily reputable to President Obama. If President Obama systematically supports police officers who are beating up his political opponents, then maybe you have a case but you don’t automatically do that and I think that there’s been a lot of talk about responsibility for people at the top but without people going through and making links. Something with the Duvalier case is you have to make the links, you have to go through and figure what is the exact date of the person at the top and the actual person doing the crime and figuring out the different factors that make that crime down at the low level imputable to the top levels.

Gimond: Yes, thank you. You know my last question is that I’m just concerned about the statutes of limitations and international law, these are such things that you can go far back, up to 25 years back to prosecute someone, you know what does international law say about the statutes of limitation.

Brian: Sure, I’ll take that too and Nicole can add in anything if I’m missing it. That’s one of Mr. Duvalier’s main arguments that the structure used to dismiss the case that these crimes are far beyond the ten year statute of limitations that Haiti has. And that is true that it is beyond ten years, but there is a principle in international law that if it involves crimes against humanity then you do not imply the statute of limitations and so there really is none. For someone who is committing a crime against humanity, where there is a very specific definition of what that is, I’m not going to get it exactly right but it contains serious crimes down to murder torture, rape, that are done on a widespread and systematic attack against civilians on account of their political opinion or membership in a group. So if you meet all those factors then it does become a crime against humanity and under international law no statute of limitations should be applied. The way that it’s applied in Haiti, they say that this is one of the things that Duvalier’s lawyers have argued is that it doesn’t apply to Haiti, they’re correct in saying that he hasn’t signed – there’s actually an application on ability of statute of limitations against the Haitian community. He’s not a part of that statute and Duvalier’s lawyers are correct in saying that the reason why the international principle of no statute of limitations is applicable to Haiti is that the Inter-American court has said it is, and so Haiti has ratified both the American convention on human rights and the statute of future American court on human rights. Once he ratifies a treaty, according to Haiti’s own constitution, ratifying that treaty automatically relates to international law and the Inter-American court has interpreted the American convention saying that statute of limitations don’t apply and this has been the case in Argentina, in Peru, in I think Brazil, and some other South American countries and those countries of acceptance there is actually a very interesting Argentinian case where it was sent up to the Supreme Court where you can’t apply statutory of limitations. The argument of the Supreme Court when it got back to them was that we really disagree with this decision but we have no choice where it’s binding law whereas Argentina has accepted that it’s binding law and Haiti’s in the same position now. Haiti’s accepting that its jurisdiction now that it’s binding court and it’s a right guaranteed by the American Convention on Human Rights to the victims that the statute of limitations does not apply.

Gimond: Okay thank you.

Brian: That’s explained in some of the materials on our website.  Our website again, I know that Nicole mentioned it but again it’s and then we’ve got a section on the Duvalier case where we have the human rights report that Francis talks about some of the statements from the Inter-American Commission on Human Rights and the UN High Commissioner for Human Rights talks about. And for people who read French, there’s a great article by a guy named Johnson Mardi, m-a-r-d-i, in French that explains a lot of the details of how international law applies in this situation.

Caller E: Brian, just one thing, you said that most of the cases now of victims Nicole has been detailing…

Min 1:05:00 – 1:09:59

(Caller E): … with the six in legal detention, but you listed a whole series of criteria or threshold to reach that standard of prosecution so to speak. Is there disconnect there?

Brian: No, okay so I’ll talk a little bit about those details. If we brought one case and said this person was beaten and that’s all we talked about, what happened to that person, then we would not have crimes against humanity, but torture and false imprisonment are some types of crime that can be crimes against humanity. And then we had to jump through the hoop for each of the qualifications. We explain that this is part of a wide-spread and systematic attack, which is what Alix was talking about, that this is a system that was set up. So we said that there is – I think 28 official complaints before the court, but our evidence and the tests we put in writing and the testimonies of the opponents show and continue to show that this is part of tens of thousands-

Caller E: Right, so this is why they saw in January that this is so important, because they saw the three deaths a week and everything.

Brian: Yes, and that’s also why the reports from Amnesty International and the reports on Human Rights are so important and other facts like why they were arrested are important, for example when Alix was getting beaten, and I don’t know the details, but whether the jailers said this is to make you shut up to make you stop going to meetings, that kind of due to their political opinion and this is to show that it was done due to their political positions

Caller E: Thanks

Caller G: I have a question. I’ve heard that around seven or so years ago there had been a conviction overturned by a military leader Jean Blain more or less because he had friends in the new government and the risk of something similar unfolding here seeing that there is an initial case to dismiss the cases before Duvalier came into power.  There have been allegations that there are a lot of people from Duvalier’s case and supporters of him in this current government that you risk dismissal of the appeals court potentially independent of the judiciary?

Brian: I think you’ve really hit upon the issue and the quick answer is that we don’t know and we’ll find out I think that if you look at the course of prosecution where you had Duvalier’s prosecution and as soon as Martelly came in that prosecution stopped.  And for a background I don’t think anybody- any member of Martelly’s cabinet who was an active Duvalier but there are several members, including his Prime Minister’s over his term, has been sons of ministers and other high officials in the Duvalier government. It’s been widely reported that the prime minister of Duvalier is an official counselor in the national palace but recently the Prime Minister’s office has been denying that. There have been many reports of people seeing him in the palace and certainly the fact that the government has not been prosecuting Duvalier which leads to the conclusion that is supported.  If you look at the prosecution made by the officers that say drop all charges that appear, and if you look at the order by the judge dropping the political violence charges- that appear publicized because it’s political and I can’t say that every case we lose is because it’s political, but if you look at it is a couple pages long, it is a really complicated issue where we had presented fairly complicated evidence, and you have other people putting in some fairly strong legal analysis and instead of going through those legal analysis and meeting the arguments made, the investigating judge made like a two page thing just dismissing it in court, clearly not reaching the important legal issues which leads to think that the decision was based more on the politics then on the law. I think that we’ll see that – well I know we should ask Mario – a few weeks ago he would have said we had very little chance at the court of appeal, that the government was

Min 1:10:00 – 1:14:59

(Brian) …going to exercise its influence and it’s unlikely we’ll get a fairly judged trial. I think that has been changed. Perhaps we underestimated the courage of the court of appeals but I also think that such interest has been kind of a public outcry in favor of fair prosecution, which makes it a lot easier for the appeals court to step up and to do a good job. And I think this is an example of a virtuous cycle that every trial by pushing we got the court to feel comfortable or under pressure to be sure that Duvalier testifies. Once that he testifies and that gets out to the public, the public are very engaged in this issue and that will increase the support for the prosecution.  Certainly today the fact that will be widely reported on the radio news tonight, tomorrow, you had the victims talking about what happened. That will have a very big impact on Haitian society especially because over half of all Haitians alive today were born well after Duvalier left and so this is an excellent opportunity to do popular education, which I’m pretty confident that popular education on this issue will lead to a stronger constituency for justice.

Caller G: Thank you.

Caller H: Is it possible to ask about next steps in the cholera situation?

Brian: Sure, I’ll give you the quick next step which is; right now I’m actually working in New York to do exactly that – we’re working on preparing the case to file on a national court. We haven’t decided which national court, but the options we are looking at most closely are Haiti, US courts in the Netherlands and Belgium but we don’t think there’s any opportunity to convince the UN to re-visit their decision to deny our claim. We first tried to deal with UN internal procedures, but that door appears to be closed and locked so we now decided to go to a national court and so the national court should not allow the UN because the UN is refusing to comply with their moral obligation to provide an alter mechanism for justice.

Caller E: Brian, this is Dutch national courts, not the international criminal court, right?

Brian: Correct, as far as we know there is no international court that would accept jurisdiction in this case, we would have to do it in a national court.

Caller H: And why the Netherlands as an option?

Brian: Well the Netherlands and Belgium both have a record for being fairly progressive on human rights issues in general. More important than that there have been many European court decisions on human rights basically saying that immunity can mean impunity, that if an international organization fails to provide an alternative mechanism then courts should not enforce the immunity probation. As well, we don’t have as strong language in the US court or other advantages of US court. So we’re weighing if it’s better to take advantage of the US court, which is a highly respected court system and it’s something closer for the Haitians to get to then Europe, but there’s also advantages to the European court because the European court is human rights juries.

Caller E: But Brian, you’re thinking again of going to national court in Belgium and the Netherlands and not to an EU court.

Brian: So we’d file initially in national court, and rely on what the European court’s jurors prove, and we might have to go to the European court. But we filed in Belgium, and if the Belgium court dismisses it because of the immunity issue, we would then appeal to the European court and ask them to instruct the Belgium court not to invoke immunity.

Caller E: Are Belgians or Dutch best rather than Danes or Swedes or Fins?

Brian: Well, we’d be happy to talk about this – we have other suggestions because most of the people we’ve talked to so far have told us that those two countries are probably the best. We are certainly open to anyone who has other suggestions; we’ll look at anything that might help.

Caller E: Brian, one thing on that, is when you read the SOFA…

Min 1:15:00 – 1:19:59

(Caller E): …so basically the standing claims commission was supposed to kick in as soon as there was a petition, right?

Brian: Correct.

Caller E: Now there’s no distinct – as I read it – no distinct mechanism to say how that happens except you’re supposed to have one appointee nominate from the Haitian government and one from the UN and one neutral agreement as I understand it. Why can, in a Haitian court, could you not take action by say that the government has not lived up to the SOFA in not nominating somebody, it’s candidate in the standing claim’s commission?

Brian: Yeah, there are actually some lawyers who will go and do that – some lawyers who have worked with the BAI who have worked cases. To tell you the truth, Mario Joseph and the BAI lawyers have been working pretty hard on the Duvalier case recently and I haven’t had a chance to talk to them about it, but there are Haitian lawyers who have gone so much to the Haitian government asking them to explain why it hasn’t followed through on the SOFA. I think that’s in interesting fact to see whether that works, although it might be too late now that you have the UN that has formally denied consideration of these claims. I’m not sure how that would work out, especially one of the good things that makes it a little more interesting in pursuit of this case is that there isn’t more precedent. The standing claims commission, as far as we know, every status is a forced agreement which part of the commission for 60 years but the standing claims commission despite that has never been set out a single time, and so we don’t have a lot of precedent.  There is some ambiguity in the process for setting up and our position is that we were not necessarily on setting up the standing claims commission, we were willing to work with the UN to come up with something as long as it provided base fairness to our clients, we’d be willing to consider a whole range of possibilities

Caller E: Might you not have to try and do something like that to try and cover yourself in another jurisdiction because that’s the agreement on which, basically, Minustah came in – UN troop came in – that’s the agreement between the Haitian government and the UN, which these people operate in this country. That is nominally the first step, isn’t it? A national court might say to you, for instance, ‘well, you know, what have you done to get the standing claims commission up and running?’

Brian: Yeah we don’t think that’s an obstacle, and I don’t want to get too much into the details until we can have a private discussion on this if you think its desirable but briefly, the SOFA is vague enough that there are other things besides the standing claims commission that would be acceptable to it. In fact, it happens every day that Minustah has a claims unit that is processing claims all the time and providing compensation. There’s a long UN tradition of doing that, and I don’t think we needed or the UN needed to necessarily to fit into the box of the standing claims commission, which has never been set up. I think the right is not to have immunity to [inaudible] the victims but is to have a fair mechanism for dispute resolution. We don’t want to get tied up in what the Haitian government should do, our focus is on the UN which has an obligation to provide a remedy, we are more flexible on that remedy but I think that the UN has foreclosed any discussion of this, and so we’re now going to a national court and saying it’s not that the UN has refused to set up a claims commission, it’s the refusal to give a remedy which is, at the end, our client’s right to a remedy. Our problem with the stating claims commission is that its self could be problematic. You mentioned the commission is set up with representatives from the UN, representative from Haiti and representative from Geneva, in this situation you’ve got the UN and the Haitian government who has said quite clearly that they don’t think that this case has merit and so that even if they did establish a standing claims commission based on the rules, we would say that that commissions do not meet our basic due process requirements, because it’s made by a couple of people who already prejudged, for example names of organizations of that have already prejudged to be meritless. So we don’t really want to get hung up on the standing claim’s commission, it’s the fundamental right to justice of our clients.

Caller E: I just wonder if somebody outside of you at IJDH and BAI, you know some sort of…

Min 1:20:00 – 1:24:59

(Caller E): …legal body or legal group shouldn’t be trying to keep pressure on the UN saying ‘well, why hasn’t this happened?’ You know, completely besides the fact of what you do, will you proceed, the UN is off the hook until another national jurisdiction even agrees to consider this, and probably is off the hook anyway. I don’t know, I just mean if you had a bunch of lawyers, or professors or something, alright, people who have been involved in UN law and some case histories go back here you know in Bosnia and elsewhere, say well why hasn’t this thing been met, why hasn’t it been activated, why hasn’t it been nominated. I mean, it wouldn’t say what you were doing.

Brian: There are actually people who are pushing, not hard enough, but there are people pushing within the UN and people from outside aren’t a lot of those issues – particularly someone setting up the commission in Haiti more general the UN needs to respond more responsibly to these cases.

Caller E: Okay, right, thanks.

Brian: Okay, we’ve held Nicole longer then we said we would, and I know she’s pretty tired after a long day and a long week of work on the Duvalier case, so I think we will probably bring the call to an end now. I’d like to thank Nicole obviously for coming on and everyone else for asking so many great questions, and we’ll send out a message soon but I think that tonight’s conversations was very valuable. If we can convince Nicole next Thursday I’d like to do that, so we’ll definitely let you know more about that. In the meantime please continue to keep spreading the word by twitter, by Facebook, by sending emails on to keep the profile of this case up there.

Abigail: Thank you for creating this space so that we could have this conversation and continue to be informed this is Abigail in Atlanta signing off.

Nicole: Thank you very much

Various thanks.

END 1:22:45

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