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Prosecuting Duvalier

by JEENA SHAH

Nunca Mas. Never again.

From Argentina to Guatemala, nunca más served as the clarion call for justice for the victims of the mass atrocities and systemic political repression that plagued Latin America and the Caribbean for decades. On January 16, 2011, the hope that the call would someday be universally heeded rose again when one of the last century’s most notorious despots, Jean-Claude Duvalier, returned to Haiti after 25 years in exile.

Also known as “Baby Doc”, Duvalier terrorized Haiti from 1971 to 1986, picking up where his father François “Papa Doc” Duvalier had left off. Duvalier’s army and the dreaded Tonton Macoutes death squad systematically beat, imprisoned, tortured, and killed the regime’s political opponents. Nearly 50,000 Haitians were killed under the combined reign of father and son. Duvalier and his profligate wife, Michèle Bennett, looted hundreds of millions of dollars while the Haitian people starved, forcing Haiti to become dependent on foreign aid.

As the target of several government investigations and prosecutions, Duvalier was immediately arrested upon his return and charged with both financial and political crimes. Human rights groups presented extensive evidence of his regime’s abuses to the Haitian government. A United States federal court had found Duvalier liable in 1988 for over a half a billion dollars for stealing public funds, and a partial forensic investigation of Duvalier’s corruption, conducted by American law firm Stroock & Stroock & Lavan at the behest of the Haitian government, established the theft of over $300 million. Following their investigation, Stroock concluded that the Duvaliers had “behaved as if Haiti was their feudal kingdom and the coffers and revenues of the state their private property.” Boxes of documents establishing Duvalier’s criminal liability sat waiting for more than two decades in offices in Haiti and the United States.

Legal documentation was supplemented by an extensive public record of Duvalier’s human rights violations, maintained by watch groups like Amnesty International. As “President-for-Life”, Duvalier’s repertoire included the torture and disappearances of political dissidents at the infamous Fort Dimanche prison and other crimes committed by the Armed Forces of Haiti and the Tonton Macoutes acting under Duvalier’s control. While still in the seat of power, Duvalier was taken to task for his regime’s abuses through visits, investigations and communications of the Inter-American Commission on Human Rights, U.S. government officials, and rights watch groups. By pardoning select political prisoners following sporadic condemnation by international actors, Duvalier could not deny continuing his father’s legacy of political repression.

But as the victims of Chile’s Pinochet and other dictators of the 1970s and 1980s have found, facts are often not enough on the road to justice.

After highly flawed elections, right-wing candidate Michel Martelly became Haiti’s newest President this past May. President Martelly’s statements calling for amnesty for Duvalier, his historical (and current) ties with Duvalier loyalists, and his failed nomination for Prime Minister of Bernard Gousse–who has publicly argued against prosecuting Duvalier and as Haiti’s former justice minister directed political persecution under the 2004-2006 dictatorial “Interim Government”– signal the lack of political will to bring Duvalier to justice.

Duvalier’s lawyers have used Haiti’s airwaves to inaccurately assert that his prosecution is time-barred. Under Haitian criminal law, the proceedings for Duvalier’s financial crimes can advance because of the ongoing prosecution of the case from 1986 to 2008. And political killings, disappearances, and torture constitute grave human rights abuses and crimes against humanity, none of which are extinguishable under the American Convention on Human Rights.

Offering support for Duvalier’s prosecution, the UN High Commissioner of Human Rights Navanethem Pillay affirmed, “Haiti has an obligation to investigate the well-documented serious human rights violations that occurred during the rule of Mr. Duvalier, and to prosecute those responsible for them.” Similarly, the Inter-American Commission on Human Rights reminded the Haitian government of its duty to investigate and prosecute Duvalier’s crimes in a statement it released in May 2011.

Despite such compelling facts and law, foreign powers like the United States and Haiti’s former colonizer, France, have been silent. More than that, the U.S. State Department has yet to declassify files documenting Duvalier’s knowledge of his regime’s abuses, which could prove integral to establishing his criminal liability at trial. While it was comfortable playing a decisive role in Haiti’s recent elections by forcing the electoral council to reverse the first round results, the State Department declined to even remind Haiti of its obligation under international law to prosecute Duvalier, calling justice for Duvalier “a matter for the people of Haiti.” However, former U.S. Congressman Bob Barr’s assistance to Duvalier is seen as a signal of support from the U.S. Intelligence Community, which has supported impunity for right-wing dictators in Latin America and the Caribbean for decades.

Some in the international aid community mistakenly believe that the Duvalier prosecution would detract from Haiti’s reconstruction efforts following its devastating earthquake of January 12, 2010. To the contrary, Duvalier’s prosecution would strengthen respect for rule of law by those overseeing Haiti’s reconstruction. Prosecution would serve as an impetus to much-needed investment in the Haitian judicial system, which could build a stronger system that deters political violence and financial crimes while providing an effective venue for victims of human rights violations and the business community alike to enforce their rights.

Countries that have contributed troops to the Brazilian-led UN peacekeeping operation in Haiti, MINUSTAH, have done so ostensibly with the intention of providing stability to the country and, following the earthquake, assisting in humanitarian relief. (In Latin America, these countries include Argentina, Bolivia, Brazil, Chile, Ecuador, Guatemala, Paraguay, Peru, and Uruguay.) The calls amongst Haitian civil society have been loud and clear that MINUSTAH serves as a threat to Haiti’s sovereignty and must be held accountable for its spread of cholera and widespread sexual abuse of Haitian women and children.

The more effective way for the MINUSTAH-contributing countries of Latin America to help Haiti would be to provide the support it needs to hold accountable those who flagrantly and violently abuse power at the great expense of the Haitian population. Haiti’s true allies should call on the Martelly administration to ensure fair and effective prosecution of Duvalier for his crimes, and Latin American governments that have prosecuted crimes by dictators from this same era should provide technical support to the Haitian judiciary.

Uruguayan writer Eduardo Galeano recently observed how Latin America remains indebted to Haiti to this day for opening “the doors of freedom” for the region by launching the world’s first successful black slave revolution. What better way to help repay the great debt owed to Haiti than to heed the call for nunca más?

Jeena Shah, a human rights lawyer, was a 2010-2011 Lawyers Earthquake Response Fellow with the Bureau des Avocats Internationaux in Haiti, where she worked on the case against Jean-Claude Duvalier. She is a contributor to the Americas Program.


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