In a crowded and chaotic courtroom in Port-au-Prince Haiti on January 31, the main character in the drama was nowhere to be found. Ex-President –for- Life Jean Claude Duvalier had failed to appear for a hearing to determine whether charges that he was responsible for crimes against humanity could proceed. The presiding judge postponed the hearing until February 7.
Did the judge choose this date intentionally or was it just a coincidence? Twenty seven years ago, on February 7, 1986, in what we would now call the “Haitian Spring”, Duvalier, his wife Michele and their nearest and dearest were hustled on to a transport plane and taken to Paris. The 29 years of Duvalier dictatorship seemed to be over. A brutal regime begun by Jean Claude’s father, the infamous “Papa Doc,” Francois Duvalier in 1957, had yielded to intense pressure from the streets and a waning interest from the US in supporting Duvalier’s self-proclaimed fight against communism.
Yet for Haitians targeted by Duvalier, he escaped not only from Haiti but from any attempt to hold him accountable for the next 25 years until he inexplicably returned in January 2011. Within days, victims, many of them now quite old, started to file their claims against him, including Claude Rosier who had survived years of torture in Duvalier’s prisons. Groups formed and hired lawyers. Duvalier too reached out to his old circle of friends, many of whom had become fabulously wealthy due to the monopoly control he had granted them over sectors of the economy.
His lawyers claimed that Duvalier could not be responsible for the alleged crimes because he himself had never killed or tortured anyone. And even if true, they argued that the crimes occurred so long ago that they were barred by Haiti’s statute of limitations. So far the judiciary has bought these arguments.
On February 7, Duvalier once again failed to appear. In a letter to the court he claimed that the day is too emotionally charged and that his prosecution would only open old wounds instead of healing them. One torture survivor in the courtroom, Robert Duval, could not contain his disgust with this call to forget the past, telling Duvalier’s lawyers in vivid Haitian Creole to “keep quiet.”
When the court reconvenes on February 21, this time with Duvalier present one hopes, the judges should consider two arguments that rebut Duvalier’s defense. First, under the doctrine of command responsibility, Duvalier, as head of the armed forces, police and the infamous Tons Tons Macoutes, had the responsibility to prevent and punish criminal activity by those acting under his command. When he took over from his father, Duvalier declared that “I make all the decisions.” He had to know that his security forces murdered, tortured and disappeared people. Annual US State Department reports along with documentation from the Inter-American Commission on Human Rights, Amnesty International, Americas Watch and the National Coalition for Haitian Refugees provided more proof, yet Duvalier never tried to punish or prevent these abuses.
Second, these widespread and systematic abuses constitute crimes against humanity under international law. The assassinations and torture sessions were not occasional or rogue acts but part of an intentional policy to terrorize Haitians. Crimes against humanity are not subject to any statute of limitations so it is never too late to prosecute. “Disappearances” are crimes that do not end until the person has been found, dead or alive. Hubert Legros, an eminent Haitian jurist was abducted from his home in January 1973. His daughter, Gloria, later learned that he had been taken to Fort Dimanche, a notorious prison where few survived. A fellow prisoner later told her that her father was killed in December 1975, but his remains have never been found. For Gloria Legros and the many relatives of those whose fate remains unknown, the crime continues and cannot be barred by statutory time limits.
Torture victim Claude Rosier died last April, but his colleagues fighting for justice in Haiti can take heart from the decision in late January in Guatemala to prosecute another former head of state, General Rios Montt, for crimes also committed 30 years ago.
Ever since the devastating January 2010 earthquake many have talked about “building Haiti back better” and that “Haiti is open for business.” Neither statement can be true unless Haiti first faces its past and identifies the reasons for its deep poverty and predatory governments. The impunity enjoyed by Duvalier and his associates is directly connected to Haiti’s enduring ills. Establishing Duvalier’s criminal responsibility for his acts as president is a first step in reversing the power of the old Creole proverb: “Laws are paper, bayonets are steel.”
William G. O’Neill
Brookyn, NY, Feb. 5, 2013
(The writer is an international lawyer who has worked on Haiti for over 25 years.)