April 14, 2011

V. Haiti has a Duty to Investigate and Punish Duvalier’s Alleged Crimes

Duvalier’s alleged crimes, including murder, torture, and sequestration, are serious crimes under Haitian law. These crimes were committed as part of a state apparatus under Duvalier’s command. Under international law, which is binding on Haiti and has been incorporated into Haitian law, Haiti has a duty to investigate and punish perpetrators of serious human rights abuses, a duty which cannot be undermined by statutes of limitations, amnesties, or other domestic legal obstacles. In addition, crimes committed as part of systematic or generalized attacks against civilian populations constitute crimes against humanity.[189]

Article 466 of the Haitian penal code provides a 10-year limitations period from the date of the commission of the crime for the prosecution for most of Duvalier’s alleged crimes. After the fall of the Duvalier government, a decree was adopted on June 18, 1986, to extend the statute of limitations for crimes against persons (including homicide, murder, rape, false arrest, and illegal imprisonment) committed under the 25-year Duvalier regime (from October 22, 1957 to February 7, 1986) to 10-years from the date of the decree, thus allowing for investigation and prosecution of all Duvalier-era crimes (Duvalier-pere as well as Jean-Claude Duvalier) through June 18, 1996.[190] Duvalier’s lawyers and former Minister of Justice Bernard Gousse argue that this decree prevents the current investigation and prosecution of Duvalier since that date is now past.[191] This interpretation fails to consider Haiti’s international human rights obligations and to consider the jurisprudence that defines some of the alleged crimes, namely “disappearances,” to be continuing crimes, and therefore, the statute does not run until the crime is completed (i.e. the victim's whereabouts determined).

a) Haiti’s International Obligation to Investigate Serious Violations of Human Rights or Crimes against Humanity Prevails over Any Statute of Limitations

Article 276 (2) of the Haitian Constitution states:

Les Traités ou Accord Internationaux, une fois sanctionnés et ratifiés dans les formes prévues par la Constitution, font partie de la Législation du Pays et abrogent toutes les Lois qui leur sont contraires.
Once international treaties or agreements are approved and ratified in the manner stipulated by the Constitution, they become part of the legislation of the country and abrogate any laws in conflict with them.[192]

Thus, duly ratified international treaties trump any conflicting laws. Haiti is a party to at least two human rights treaties, the American Convention on Human Rights and the International Covenant on Civil and Political Rights, which impose obligations on party states to investigate and punish perpetrators of serious human rights abuses.

Haiti became a party to the American Convention on Human Rights in 1977. The Inter-American Court of Human Rights, whose interpretations of the convention are authoritative and binding on Haiti, has held repeatedly that in light of states’ obligations to investigate and prosecute crimes under the convention, statutes of limitations are inadmissible in connection with gross human rights violations proscribed by international law. The court has ruled that “all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible under the convention, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extra-legal, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.”[193] Thus, as the crimes allegedly committed by Duvalier constitute serious violations of human rights, they cannot be prescribed by domestic law.

Moreover, since 1946, various international instruments have reaffirmed that those responsible for crimes against humanity must be punished and that states should not enact legislative or other measures, such as statutes of limitations, to prevent fulfillment of the international obligation to prosecute persons alleged to have committed crimes against humanity. 

Indeed, the Convention on the Non-Applicability of Statutory Limitations on War Crimes and Crimes Against Humanity (1970) was adopted just prior to Jean-Claude Duvalier assuming power, and the European Convention on the Non-Applicability of Statutory Limitations on War Crimes and Crimes Against Humanity (1974) was adopted shortly thereafter. Both treaties set out the principle that there is no time limit to prosecute crimes against humanity, a principle that is codified in Article 29 of the Rome Statute of the International Criminal Court.

While Haiti has not ratified any international treaty on statutory limitations, these instruments are evidence of state practice and opinio juris that statutes of limitations should not be interpreted to bar prosecution of crimes against humanity. The Inter-American Court of Human Rights, a body by whose judgments Haiti is legally bound, has also affirmed that crimes against humanity are not susceptible to application of statutes of limitation.[194] In that case the court held that a murder carried out in 1973 should be subject to prosecution notwithstanding that Chile only became a party to the Court in 1990, on the grounds that in 1973 murder committed in the course of a generalized or systematic attack against certain sectors of the civil population was a crime against humanity and therefore in violation of a binding rule of international law at the time. As the prohibition to commit crimes against humanity is a jus cogens rule, the punishment of such crimes is obligatory pursuant to the general principles of international law and statutes of limitations are not applicable.

b) The Continuous Nature of “Disappearances” and False Imprisonment Prevent Prescription

As described above, many people taken away by Duvalier’s forces were never heard from again. The United Nations Working Group on Enforced or Involuntary Disappearances has recorded a number of cases dating from the 1981-1985 period: in none of the cases have officials acknowledged the detainee’s wrongful deprivation of liberty let alone disclosed their fate or whereabouts. According to the working group, “most of the cases that occurred during the [1981-1985] period concerned members or supporters of the Haitian Christian Democrat Party who were allegedly arrested by members of the Armed Forces or by the Tontons Macoutes.”[195]

Under both French law—on which Haitian law is based—and international law, the statute of limitations for such acts does not begin to run until the crime has finished, i.e., until the detained person is released or his whereabouts are clarified.

Haitian law, like French law, punishes the crime of “sequestration,”[196]which may be translated as “false imprisonment.” The French Cour de cassation (Supreme Court) has consistently held that “sequestration” is a “continuing crime.”[197] For such a crime, the statute of limitations only begins when all the elements of the crime have been completed—i.e., the victim has been released or his fate clarified.[198] In the cases filed in France on behalf of disappeared French victims of Chile’s Augusto Pinochet, the trial judge ruled that the statute of limitations could not run as long as the victims’ whereabouts were unknown.[199] Even in the case of murder, the statute of limitations only begins when the date and the cause of the victims’ death are known.[200]

Similarly, international law criminalizes “enforced disappearances,” defined as the “arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.”[201] The UN Declaration on the Protection of all Persons from Enforced Disappearance states that “Acts constituting enforced disappearance shall be considered a continuing offence as long as the perpetrators continue to conceal the fate and the whereabouts of persons who have disappeared and these facts remain unclarified.”[202]

The United Nations Working Group on Enforced or Involuntary Disappearances, in a recent General Comment, noted that “[e]nforced disappearances are prototypical continuous acts. The act begins at the time of the abduction and extends for the whole period of time that the crime is not complete, that is to say until the State acknowledges the detention or releases information pertaining to the fate or whereabouts of the individual.” As a result, said the working group:

“As far as possible, tribunals and other institutions ought to give effect to enforced disappearance as a continuing crime or human right violation for as long as all elements of the crime or the violation are not complete.”
“Where a statute or rule of procedure seems to negatively affect the continuous violation doctrine, the competent body ought to construe such a provision as narrowly as possible so that a remedy is provided or persons prosecuted for the perpetration of the disappearance.”[203]

The declaration also provides that “All States should take any lawful and appropriate action available to them to bring to justice all persons presumed responsible for an act of enforced disappearance, who are found to be within their jurisdiction or under their control.”[204]

The Inter-American Court of Human Rights has also recognized the permanent and continuous nature of forced disappearances. Since its judgment in the Velásquez Rodríguez case in 1988, the court has consistently reiterated that “[t]he forced disappearance of human beings is a multiple and continuous violation of many rights under the convention that the States Parties are obligated to respect.”[205] A similar understanding of the nature of forced disappearances is reflected in national case law in the Americas: courts in Argentina, Bolivia, Mexico, Peru, Uruguay and Venezuela have treated forced disappearances as continuous offences and crimes against humanity.[206] The Supreme Court of Mexico ruled, for instance, that the statute of limitations should be calculated only from the time the victim’s remains are found.[207] In Chilean cases involving General Augusto Pinochet, the Supreme Court and the Court of Appeal of Santiago established the non-applicability of statutes of limitations.[208]

Thus, because of the continuous nature of the crime, the allegations against Duvalier for “disappearances” are not prescribed by any domestic Haitian law, including the 1986 decree.

[189] See Rome Statue of the International Criminal Court (Rome Statute), adopted July 17, 1998, Doc. UN. A/CONF. 183/9, entered into force July 1, 2002, art. 7.

[190]“Decree (Decret),” Le Moniteur, 141ème Année No. 51, June 26, 1986.

[191]Bernard H. Gousse, “Haiti and the notion of crime against humanity (Haiti et la Notion de Crime Contre l’Humanité),” Le Nouvelliste, February 24, 2011, http://www.lenouvelliste.com/article.php?PubID=1&ArticleID=88934.  See also “A case against Duvalier is not possible, according to his lawyers (Un procès contre Duvalier "pas possible", selon ses avocats),” Le Nouvelliste, February 22, 2011, http://www.lenouvelliste.com/article.php?PubID=1&ArticleID=8948.

[192] “1987 Constitution of the Republic of Haiti,” art. 276 (2), http://pdba.georgetown.edu/constitutions/haiti/haiti.html (accessed April 1st, 2011).

[193] Inter-American Court of Human Rights,  Barrios-Altos Case,  Judgment of March 14, 2001, Inter-Am. C. H.R. (Ser. C) No. 75 (2001), para. 41; see also Inter-American Court of Human Rights, Ituango Massacres Case, Judgment of July 1, 2006, Inter-Am. Ct. H.R. (Ser. C) No. 148 (2006); Inter-American Court of Human Rights, Case of La Cantuta, Judgment of November 29, 2006, Inter-Am. Ct. H.R. (Ser. C) No. 162 (2006);Inter-American Court of Human Rights, LaRochela Massacre Case, May 11, 2007, Inter-Am. Ct. H.R. (Ser. C) No. 163 (2007).

[194] See, e.g., Inter-American Court of Human Rights, Almonacid-Arellano Case, Judgment of September 26, 2006, Inter-Am. Ct. H.R. (Ser. C) No. 154 (2006).

[195] United Nations Working Group on Enforced or Involuntary Disappearances, “Report of the Working Group on Enforced or Involuntary Disappearances,” E/CN.4/2006/56 and Corr. 1 and A/HRC/4/41, 2006, para. 200.

[196]., September 1, 2004, para. 278 for the former Yugoslavia,  they'ple coundangered the stability nst its critics.Article 289 of the Haitian Penal Code states:  “Those who, without orders from established authorities or where the law requires it, have arrested, detained or abducted any persons shall be punished with imprisonment from one to five years.” (unofficial translation). Article L. 224-1 of the French Penal Code states in similar terms: “The arrest, abduction, detention or imprisonment of a person without an order from an established authority and outside the cases provided by law is punished by twenty years' criminal imprisonment.

[197]Detention and illegal confinement are continuing offenses consisting of the withholding of any person illegally arrested against his/her will.” (unofficial translation), Cour de cassation, Chambre criminelle November 4, 1988, pourvoi n° 88-82121 http://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000007517556&fastReqId=878884624&fastPos=24&oldAction=rechExpJuriJudi). Seealso, Cour de cassation, Chambre criminelle, July 26, 1966 Bull.crim. n° 211 p.479.

[198] See Juris classeur procédure pénale, Action publique, prescription, Art. 7 à 9, n° 25; F. Desportes, L. Lazerges-Cousquer, Traité de procédure pénale, Economica, 2009, n° 987 p. 638. For example, construction without a permit is a continuing crime, so the statute does not begin until construction has been fully completed. See Cour de cassation, chambre criminelle, May 20, 1992, B. n° 202, pourvoi n° 90-87350 http://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechExpJuriJudi&idTexte=JURITEXT000007065688&fastReqId=143409432&fastPos=1 (accessed April 1st, 2010).

[199]Tribunal de Grande Instance de Paris, ordonnance of November 2, 1998, AJIL. Vol.93. n°3. July 1999.

[200] Cour de cassation, Chambre criminelle, September 19, 2006 pourvoi n°06-83963 http://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechExpJuriJudi&idTexte=JURITEXT000007075007&fastReqId=1924165478&fastPos=1.

[201] International Convention for the Protection of All Persons from Enforced Disappearance adopted December 20, 2006, G.A. res. 61/177, U.N. Doc. A/Res/61/177 (2006) , art. 1. Haiti has signed but not ratified the Convention.

[202] United Nations Declaration on the Protection of all Persons from Enforced Disappearance, adopted December 18, 1992, G.A. res. 47/133 U.N. GAOR Supp. (No. 49) at 207, U.N. Doc. A/47/49 (1992), art. 17 § 1.

[203] United Nations Working Group on Enforced or Involuntary Disappearances,  “General Comment on Enforced Disappearance as a Continuous Crime,” paras. 1, 6, and 7.

[204] UN Declaration on the Protection of all Persons from Enforced Disappearance, art. 14.

[205] Inter-American Court of Human Rights,Velásquez RodríguezCase,Judgment of July 29, 1988, Inter-Am. Ct. H.R., (Ser. C)  No. 4 (1988), para. 155; see also Inter-American Court of Human Rights, Heliodoro Portugal Case, Judgment of August 12, 2008., Inter-Am. Ct. H.R., (Ser. C) No. 186 (2008); Inter-American Court of Human Rights, Tiu Tojín Case,Judgment of November 26, 2008, Inter-Am. Ct. H.R., (Ser.C) No. 190 (2008).

[206] See Case of Marco Antonio Monasterios Pérez, Supreme Court of Justice of the Venezuelan Bolivarian Republic, judgment of August 10, 2007; Case of Vitela et al., Federal Criminal and Correctional Appeals Chamber of Argentina, judgment of September 9, 1999; Case of José Carlos Trujillo, Constitutional Court of Bolivia, judgment of November 12, 2001; Case of Castillo Páez, Constitutional Court of Perú, judgment of March 18, 2004; Case of Juan Carlos Blanco and Case of Gavasso et al., Supreme Court of Uruguay, judgments of October 18, 2002, and April 17, 2002.

[207]Case of Jesús Piedra de Ibarra Case, Supreme Court of Justice of Mexico, judgment of November 5, 2003; “Highest Court Authorizes Prosecution of 'Dirty War' Cases,” Human Rights Watch news release, November 4, 2003, http://www.hrw.org/en/news/2003/11/04/mexico-highest-court-authorizes-prosecution-dirty-war-cases.

[208] See Case of Caravana, Criminal Chamber of the Supreme Court of Chile, judgment of July 20, 1999; Case of the withdrawal of immunity from Pinochet, Plenary of the Supreme Court of Chile, judgment of August 8, 2000; Case of Sandoval, Court of Appeal of Santiago, Chile, judgment of January 4, 2004.