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Will Duvalier Regain Access to Illicit Funds Pilfered from the Haitian Treasury?

Jean-Claude Duvalier is scheduled to appear in court on February 7, 2013 which falls on the 25th anniversary of his forced ouster from power. At issue before the court is whether or  not he will be found guilty of pilfering State coffers when he ran Haiti as a 3rd world despot. Duvalier has been exonerated by Haitian courts of the most serious charges: crimes against humanity, although the historical record speaks volumes of his misdeeds and of those of his father François “Papa Doc.”

If the past is prologue, Haiti’s court may lift the last  threat to Duvalier’s remaining fortunes.

William G. O'NeillCourts however don’t  always have the last word. Following is an analysis, redacted a year ago, of the decisions rendered by Commissaire du Gouvernement Félix Leger dated 3 November 2011 and by Investigating Judge Jean Carvès dated 30 January 2012. This analysis comes to us via our colleague, the esteemed human rights lawyer William G. O’Neill.

New York, NY, 1 Feb. 2012

The Haitian Judiciary released its decisions regarding criminal claims against former President-for-Life Jean Claude Duvalier on Jan. 31, 2012. The Investigating Judge Jean Carvès decided that Haitian law did not permit claims of crimes against humanity and he dismissed those charges while upholding claims of financial crimes of stealing state funds. Previously, the prosecutor in the case, Commissaire du Gouvernement Félix Leger, also had decided that the Haitian Penal Code’s statute of limitations prevented any prosecution for the murders, disappearances, torture and other grave violations of human rights committed by the Duvalier government from 1971-1986. Both decisions are riddled with errors of law and fact.

François and Jean-Claude DuvalierFirst, Commissaire Leger adopted a hyper-technical and erroneous reading of Haitian and international law binding on Haiti. For example, he states that the Code of Criminal Procedure has only a 10 year period to begin a prosecution for serious felonies. Yet he ignores numerous international rulings establishing that there is no statute of limitations for crimes against humanity. Crimes against humanity have been recognized since the Nuremberg Tribunal in 1946 and have been reconfirmed in various UN General Assembly Resolutions, which the Government of Haiti has supported by voting affirmatively in the GA, ever since. So this principle trumps any time limitation to bring a prosecution in Haitian domestic law.

Second, the prosecutor fails to acknowledge the numerous “disappearance” cases from the Duvalier era. An unknown and probably unknowable number of people were taken by state agents into government custody and were never seen again. This is the definition of a “disappearance” under international law which also holds that such crimes are continuing violations; a “disappearance” does not end until the person is found, dead or alive. Therefore the many unresolved “disappearances” in Haiti are ongoing crimes as of this minute and the Statute of Limitations, by definition, does not even begin to run since these crimes’ commission has not yet been completed.

Jean-Claude Duvalier, Commander in ChiefNext, Commissaire Leger notes that the plaintiffs failed to provide evidence linking Duvalier with committing these crimes. This completely ignores the well-established doctrine of command responsibility. Duvalier was in charge of all law enforcement and military bodies in Haiti from 1971 to 1986. He admitted as much several times publicly when he said he was in charge and he controlled everything. As Commander-in-Chief he was responsible for their acts if he knew or should have known they were committing these crimes. If he failed to take action after learning of these crimes he is also culpable. Clearly, Duvalier had to know that his army and police were committing widespread and systematic violations of human rights. The Organization of American States’ Inter-American Commission on Human Rights visited Haiti several times during Duvalier’s presidency and investigated and reported on these violations in the 1970s and 80s. Their reports were public and sent directly to the President and his government. Other organizations like Amnesty International, Americas Watch and the National Coalition for Haitian Refugees amply documented these violations, as did the annual human rights reports published by the US State Department. Yet President Duvalier never took any serious action to prevent violations or to punish those responsible. The Commissaire adopted an impossibly high and inappropriate standard of proof here for the victims and one that is inappropriate as well. There can be no doubt that Jean-Claude Duvalier as head of state and commander of all law enforcement bodies of Haiti, bears criminal responsibility for their acts.

Fourth, the prosecutor notes that the Haitian Constitution prohibits creating “special tribunals” so that there can be no prosecution of Duvalier. This is a red herring since no one is saying Haiti should establish a special tribunal for Duvalier and the crimes were established under Haitian and international law at the time they were committed so that a trial in the ordinary criminal courts is both possible and required. It is the only forum currently available to the many victims of Duvalier’s crimes which makes the decision not to prosecute especially harmful.

Gun-ready Francois DuvalierInvestigating Judge Carvès’s decision is even more wooden, rigid and erroneous. He states that “crimes against humanity” are “unknown” in Haitian law and that international treaties covering these crimes are “foreign” to Haitian law. Second, he states that there is nothing in the Haitian codes that allows for a prosecution of crimes against humanity. And since Haiti has not ratified the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, there is no way to use treaty law either to prosecute Duvalier.

Judge Carvès completely overlooks controlling legal authority that establishes that crimes against humanity not only have no time limit for prosecution, but also exist independently of treaties and national penal codes. Crimes against humanity are what lawyers call “jus cogens” (the highest standing of all international legal norms allowing no suspension or derogation) which means all states in the world, regardless of whether they have explicitly defined crimes against humanity in their domestic laws or ratified relevant international treaties, must prosecute perpetrators of crimes against humanity or extradite them to jurisdictions that will. And no statute of limitations ever applies to such heinous acts.  Thus Judge Carvès is wrong on every facet of his judgment in the Duvalier case.

Moreover, the Inter-American Court of Human Rights rejected identical arguments in a case from Chile decided in 2006, Almonacid-Arellano et al v. Chile. The Court had to decide whether the murder of Mr. Almonacid-Arellano by state agents on Sept. 17, 1973 could be considered not just a murder but also a crime against humanity. The Court analyzed the history of “crime against humanity” noting its modern origins in the Charter of the International Military Tribunal of Nuremberg and in Control Council Law No. 10 which was applied in the Nuremberg trials. The Court further found that the prohibition of crimes against humanity was corroborated by the UN on several occasions. First the UN General Assembly, of which Haiti was a member, confirmed “the principles of International Law recognized by the Charter of the Nuremberg Tribunal and the judgments of said Tribunal.”[1] Later, in 1947, the General Assembly directed the International Law Commission to formulate international legal principles based on Nuremberg and the UN Charter. In 1950 the GA adopted these principles, including Principle VI (c) that classifies murder as a crime against humanity.

In a holding that directly contradicts Judge Carvès’s finding that Haiti cannot prosecute Duvalier because “crimes against humanity” are neither specified nor defined in Haitian law, the Court in Almonacid-Arellano found that:

There is sufficient evidence to conclude that in 1973, year in which Mr. Almonacid-Arellano died, the commission of crimes against humanity, including murder in the course of a generalized or systematic attack against certain sectors of the civil population, was in violation of a binding rule of international law. Said prohibition to commit crimes against humanity is a jus cogens rule, and the punishment of such crimes is obligatory pursuant to the general principles of international law.”[2]

Haiti has recognized the jurisdiction of the Inter-American Court and is thus bound by its rulings. The thousands of people murdered, tortured and disappeared during the reign of Jean-Clause Duvalier were victims of crimes against humanity when these crimes were committed in 1971-1986. They, their families and survivors must have their day in court and Judge Carvès’s decision must therefore be reversed.

[1] Quoting from UN, Confirmation of Principles of International Law recognized by the Charter of the Nuremberg Court adopted by the General Assembly of the United Nations in its Resolution 95(I), at it 55th Plenary Session on December 11, 1946.

[2] Case of Almonacid-Arellano et al v. Chile, Judgment of Sept. 26, 2006 at para. 99

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