On January 16, 2011, former president-for-life of Haiti, Jean-Claude "Baby Doc" Duvalier, returned to his homeland after nearly 25 years in exile. The government of Haiti responded by re-opening a 2008 investigation into alleged financial crimes, and several victims of serious human rights violations under the Duvalier government also came forward and filed complaints with the prosecutor. The investigation into Duvalier’s alleged financial and human rights crimes is currently underway.
This report provides an overview of human rights violations under Duvalier, details the current status of the proceedings against him, including obstacles to a successful prosecution, and analyzes applicable Haitian and international law. We conclude that investigation and prosecution of the grave violations of human rights under Duvalier’s rule is required by Haiti’s obligations under international law. While there are still obstacles to overcome, the case presents an historic opportunity for Haiti.
Successful prosecution of Duvalier is important not only for Duvalier’s many victims, but also for Haiti’s struggling judicial system and for Haitian society more broadly. Bringing Duvalier to justice and giving him a fair trial could help restore Haitians’ faith in the justice system and the rule of law. A prosecution could also act as a deterrent to other leaders, both in Haiti and elsewhere, demonstrating that they can be held accountable for serious violations of human rights.
The challenges to fair and transparent prosecution of Duvalier, however, are enormous. Haiti’s judicial system is weak, the case requires continuing investigations and evidence-gathering, and significant procedural hurdles need to be addressed, in particular the mistaken view in some quarters that the prosecution should be barred by Haiti’s statute of limitations. As this report shows, those obstacles are not insurmountable. The success of the case will depend on the political will of the government of Haiti to uphold its obligations under international law and rigorously pursue what could be the most important criminal case in its history, and on the willingness of the international community to provide essential support now and as the case develops.
Human Rights Abuses under Jean-Claude Duvalier
Under the leadership of Jean-Claude Duvalier, the government of Haiti relied on an extensive network of security forces to enforce its control through a pattern of human rights abuses, including:
- Political Prisoners and the “Triangle of Death”: Hundreds of political prisoners held in a network of three prisons known as the “triangle of death” died from maltreatment or were victims of extrajudicial killings.
- “Disappearances” and Political Killings: Many political prisoners who entered the triangle of death were never released, and their whereabouts remain unknown to their families. Summary executions of prisoners are also alleged to have occurred, including prisoners at Fort Dimanche on August 7, 1974, seven people executed on March 25, 1976, and eight prisoners reportedly executed at Morne Christophe and Titanyen on September 21, 1977. Political killings by security forces also took place.
- Torture: Political prisoners often faced interrogation and savage torture. A common method of torture—the djak in Haitian Creole—involved tying the hands of prisoners behind their legs, and pushing a stick or bar between their legs and arms. The prisoners tied in this position would be drawn into a ball around the stick, and beaten with sticks.
- Repression of the Press and Political Dissent: Freedoms of association, assembly, and expression were severely restricted. The government repeatedly closed independent newspapers and radio stations. Journalists were beaten, jailed and forced to leave the country.
The Proceedings against Duvalier
Shortly after Duvalier fled the country in 1986, the new government established a commission to investigate the financial corruption of the Duvalier government and soon instituted criminal proceedings against Duvalier for financial crimes. In 2008, another investigation was opened and included crimes against persons. The government re-instituted these pending cases when Duvalier returned in January 2011. As of March 16, 2011, 19 Haitian victims of Duvalier also had filed complaints with the state prosecutor related to crimes against humanity and human rights violations.
Theories of Duvalier’s Liability
Human Rights Watch has not seen any evidence that Duvalier was present when the murders, acts of torture, “disappearances,” or arbitrary detentions of suspects took place; however, physical presence at a crime scene is not necessary to establish criminal liability. Under international and Haitian law, Duvalier can be held criminally responsible via the doctrines of:
- Accomplice Liability to Crimes Committed by Subordinates: Evidence exists that Duvalier directly ordered certain crimes, including the November 1980 mass arrest of activists, many of whom were tortured and expelled.
- Command Responsibility: Duvalier, the legal superior of the security forces who committed the crimes discussed in this report, may be criminally liable for those crimes as he was repeatedly made aware of the crimes and failed to take measures to prevent the crimes or to punish their perpetrators.
Haiti’s Obligation to Investigate and Punish Duvalier’s Alleged Crimes
Duvalier’s alleged crimes, including murder, torture, and false imprisonment, are serious crimes under Haitian law. 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, the continuous nature of several of the alleged crimes, namely enforced disappearances and false imprisonment, prevent their prescription, because the statute of limitations has not begun to run.
Institutional Challenges Facing the Prosecution
The investigation and trial of a former head of state for mass crimes committed between 25 and 40 years ago will be a complex endeavor. Further complicating the issue are the challenges currently facing the Haitian judicial system, including problems of capacity, limited resources, and political will. But all of these obstacles can be overcome:
- Weak Capacity can be Bolstered by International Support: The Haitian legal system will have difficulty pursuing the case without broader support to bolster its weak infrastructure, but with concerted international efforts, a fair trial for Duvalier in Haiti could kick-start rule of law efforts and help to begin building the state institutions that Haitians deserve.
- Limited Resources Can Be Used Efficiently: Limited resources can be maximized by development of a targeted and efficient prosecution strategy.
- Lack of Technical Expertise can be Addressed with Expert Support: Haiti does not have the experience, and thus, at present, the expertise to pursue this type of investigation and prosecution. It needs technical support from the international community.
- A Safe Political Environment can be Created through Political Support: The government has not done enough to ensure a safe environment for witnesses, prosecutors, court staff, and defense attorneys. Protections must be in place for the prosecution to be effective and fair. With a new administration potentially less committed to the Duvalier prosecution soon to take power in Haiti, the international community also has a role to play in supporting and encouraging witnesses and officials currently in charge of the case, and in ensuring that the prosecution is carried through to completion regardless of who is in power in Haiti.
To the Government of Haiti
- Maximize available resources for the prosecution by:
- Working with international donors and the UN High Commissioner for Human Rights to ensure that judicial reform efforts are effectively targeted to pursue the investigation and prosecution of Duvalier.
- Developing a targeted prosecution strategy, selecting a representative sampling of the gravest crimes for which there is the strongest evidence.
- Assigning sufficient human resources to the investigation and prosecution.
- Facilitating mechanisms for members of the diaspora to file complaints and testimony with the court.
- Foster a safe political environment for the prosecution by:
- Providing security to victims, witnesses, judicial officers, and others who may be at risk, in collaboration with the Haitian National Police and the MINUSTAH police forces.
- Publicly acknowledging Haiti’s obligation under international law to prosecute Duvalier’s alleged crimes.
- Ensuring that judicial authorities can operate independently and with sufficient resources.
- Ensuring that Duvalier’s rights to a fair trial are fully respected.
To Haitian Judicial Authorities
- Ensure that Jean-Claude Duvalier receives a fair trial in accordance with international standards.
To the International Community and Donor States
- Publicly support Haiti’s attempt to fulfill its international obligations by investigating and prosecuting Jean-Claude Duvalier.
- Provide technical and financial support to the Haitian justice
system to pursue the investigation and prosecution of Duvalier, including
- Sending temporary legal staff with experience in complex investigations and prosecutions to work alongside Haitian judicial officers.
- Incorporating support for this complex prosecution into existing rule of law programs.
- Assist the government of Haiti in gathering evidence for the case through the release of diplomatic cables and other evidence relevant to Duvalier’s prosecution, including information that demonstrates the international community had put Duvalier on notice of crimes being committed in Haiti.
Note on Methodology
This report is based on extensive archival research and interviews conducted during two Human Rights Watch visits to Haiti in February and March 2011. Some of the archival research was also conducted in the United States Library of Congress in Washington, D.C.
Human Rights Watch met with governmental officials to discuss the status of the prosecution, and interviewed local nongovernmental organizations, lawyers, journalists, and diplomats. Human Rights Watch also met with and conducted interviews with several victims who have filed complaints against Duvalier in domestic court.
This report draws heavily from legacy reports of Human Rights Watch (then named Americas Watch) and Amnesty International as well as the 1979 Inter-American Commission on Human Rights report.
When Jean-Claude came to power, I was not released. . . instead, the conditions of my and my brother’s detention got worse. My brother died in the National Penitentiary in 1972 of bad treatment. I stayed in prison for eight years, six of them under Jean-Claude.
—Jean, political prisoner arrested without charge September 23, 1969 and released February 18, 1977, Port-au-Prince, Haiti, March 17, 2011
Jean-Claude Duvalier’s government perpetrated widespread crimes and human rights violations during his 15-year presidency. There is substantial evidence that military, paramilitary, and police officers committed these violations while under Duvalier’s de facto and de jure control. In some cases, there is evidence that they acted under the direct order of Duvalier. Throughout Duvalier’s 15-year rule, human rights organizations, foreign politicians, donor governments, diplomats, and the Inter-American Commission for Human Rights raised their concerns about these crimes. Thus, Duvalier was on notice and had knowledge that serious human rights violations were occurring under his command.
Jean-Claude Duvalier came to power in 1971 at age 19, succeeding his father as president-for-life. His father, François “Papa Doc” Duvalier (hereinafter Duvalier père), “executed hundreds of people, imprisoned hundreds more, and drove thousands into exile, while running the country with an iron fist” according to US embassy officials. Inheriting this brutal regime from his father, Duvalier’s 15-year rule from 1971 to 1986 was marked by grave human rights violations against his challengers and critics—opposition party members, trade unionists, independent journalists, university professors, and human rights activists—and by an absence of fundamental freedoms.
The international community initially hoped that Jean-Claude Duvalier’s government would be less brutal than his father’s. The United States Ambassador to Haiti at the time of Duvalier’s ascension, Clinton Knox, suggested hopefully that “new departures of this regime represent a general trend towards liberalization.” In cleaning up its image, the new government sought to reinvigorate the flow of international assistance that had tapered, and at times disappeared, under Francois Duvalier’s government. Secretary of State for Defense and the Interior, Luckner Cambronne, sought to convince the United States of Duvalier’s good intentions. In a meeting with Knox, Cambronne indicated that “the [government of Haiti’s] record over Jean-Claude’s first year in office is a good one and entitles the country to assistance from abroad.” The ambassador warned, however, that there remained a risk that “[e]xpectations [of the populace] may rise to the point where the government will feel threatened and compelled to adopt repressive measures to keep the situation in check.” Despite the international community’s hope for a less repressive government, the pattern of abuses remained much the same.
As his father had, Duvalier relied on a network of security forces that enforced control through arbitrary arrests, which often led to prolonged, incommunicado detention, enforced disappearances, torture, and extra-judicial killings. Under Jean-Claude Duvalier’s leadership, hundreds of Haitians were victims of extrajudicial killings or otherwise died from torture or as the result of inhuman detention conditions. Many more were forced to flee the country, contributing to the modern Haitian diaspora that began to build under Duvalier père.
As “President for life” of Haiti, Jean-Claude Duvalier served as head of state, head of government, and commander-in-chief of the armed forces and police. A report by US Senator Edward Brooke following a visit to Haiti in 1977 concluded that “[p]ower is concentrated in the hands of President Duvalier and a small palace guard.” He commanded the network of military and paramilitary organizations that committed a wide range of serious human rights violations, including arbitrary arrests, torture, “disappearances,” and extra-judicial executions. The security apparatus under Duvalier’s command included several overlapping and conflicting units. Within the army, there existed five special units, the Presidential Guard, the Léopards Corps (a counterinsurgency unit), the Port-au-Prince military police, which included a secret police, the Dessalines Battalion, and a unit at the National Penitentiary. According to the US Embassy each of these special units took “orders directly from the President.” In addition six geographical military departments were under the supervision of the chief of staff who was “directly subordinate to the President for operations.”
The police were subordinate to the military. So-called “Section Chiefs,” deputized by the police, ruled Haiti’s rural areas, where most Haitians live. As a counterweight to the army, Duvalier controlled a paramilitary force of some 5,000 to 7,000 irregulars called the Volontaires de la Sécurité Nationale (Volunteers for National Security or “VSN”). Duvalier claimed to have abolished the force created by his father, popularly known as the Tontons Macoutes (“bogeymen” in Creole) and responsible for “all but eliminat[ing] the rule of law through extralegal executions, torture, arbitrary arrests, prolonged detention, and other human rights abuses.” In fact, Duvalier merely formally reconstituted the force under the name VSN. In 1983, Human Rights Watch (then Americas Watch) found that the Tontons Macoutes continued to violate human rights in Haiti.
The most feared force under Duvalier, however, was the civilian secret police, the Service Detectif (SD). Based on the grounds of the Presidential Palace, at the Casernes Dessalines, the SD were commanded by the chief of police of Port-au-Prince, who was also a member of the military, and were responsible for the detention and interrogation of all persons suspected of political offenses.
Political offences were outlawed by a 1969 anti-communist law, according to which all communist activity was illegal and “terrorists” were declared to be outlaws; however, the law left the term undefined, allowing the government to selectively apply it against its critics. This law punished expression or mere profession of certain ideas, even in private. Individuals detained according to this law were known as political prisoners but in practice, while Duvalier’s government used the law as a cover to detain individuals, it rarely formally charged many of them, instead holding them incommunicado and without access to legal remedies. In 1984, Duvalier’s government passed a law banning all groups which call themselves political parties, providing security forces additional grounds for arresting and detaining prisoners for their political beliefs.
Since [the ‘Tontons Macoutes’] existence, this zone has become a human slaughterhouse. The abuses that have [been] perpetrated there cannot be enumerated.
—32 citizens of Galette Potonier in a letter addressed to Duvalier, Galette Potonier, Haiti, December 1975
Documenting human rights abuses during the Duvalier government was difficult work. Much of the day to day violence by the Duvalier government outside of the capital occurred unnoticed by the international community or the few human rights defenders that operated within Haiti, with only eight cities on the telephone network and few roads open year round. Nevertheless, information did find its way out, establishing a pattern of human rights abuses that, most notably, included the use of a network of prisons to hold political prisoners in deplorable conditions, the use of torture against political prisoners, periodic enforced disappearances, and the systematic repression of the free press and political opposition.
a) Political Prisoners and the Triangle of Death
It is important to understand that prisoners did not just die of bad conditions at Fort Dimanche, rather persons were condemned to Fort Dimanche to slowly die of starvation, disease or diarrhea.
—Patrick Lemoine, political prisoner arrested without charge December 19, 1971 and released September 21, 1977, New York
Duvalier’s government held hundreds of political prisoners, often for years at a time, shuffling them through a network of three prisons that had been established by his father: Casernes Dessalines, located on grounds of the presidential palace; Fort Dimanche; and the National Penitentiary. Together, these prisons have been referred to as the “triangle of death.” Indeed, based on assessments collected from former detainees, Amnesty International estimated that due to prison conditions, disease, brutality, torture, and executions, 1 in 10 arrested Haitians died in the first days of their detention, and 8 in 10 prisoners did not survive more than two years.
Duvalier used the triangle of death to silence political dissent. Political prisoners imprisoned under his father remained in the network, and new prisoners were arrested and entered into the system, with many disappearing or dying due to the harsh conditions of detention. Prisoners were held without access to the judicial system or to their families. Some prisoners who survived remained in detention for six or seven years without charge, and at least one prisoner—Claude Rosier—spent 11 years in the triangle of death.
Fort Dimanche most often served as the detention facility for long term political prisoners, and was infamous for its inhuman conditions. Cells that measured approximately 3 meters by 3 meters held up to 33 prisoners each, allowing each prisoner a space of only 30 centimeters. Prisoners sometimes had to sleep in shifts, or in rows like sardines. One survivor explained how sometimes, if a new prisoner made an odd number in the cell, the extra person would have to squeeze in on one side; with dark humor the prisoners would joke that if they waited a few days, the problem would go away because at least one of them would die, making the number even again.
Prisoners received very little food, with one prisoner estimating the ration constituted little more than 300 calories a day. If and when prisoners were released, they often weighed a fraction of what they did when they entered Fort Dimanche. Sanitation was poor, and communicable diseases easily passed among prisoners, who often shared the same plate and drinking glass; approximately 18 glasses served a population of 195 prisoners.
Sometimes the body stays in the cell for some hours after the death, until the jail officer deigns to authorize its removal. Sometimes, the prisoners are obliged to eat their meager meals over the corpse of a prison companion who has just died. The dead man is rolled up in the thin straw mat that had been his bed, and is carried by the prisoners out to the brush-covered piece of land where common-law prisoners bury him under a thin layer of earth. It has sometimes happened that dogs eat the corpse.
—Testimony of a political prisoner to the Inter-American Commission on Human Rights, transmitted to the government of Haiti on September 11, 1978
Only one physician, Dr. Treván, was charged with the medical care of the prisoners, but his visits were limited to two or three per year. Prisoners died of pulmonary tuberculosis, diarrhea, dysentery, and other preventable diseases. Former prisoner Boby Duval—held incommunicado for almost 9 months in 1977—counted 180 deaths during his detention.
In 1977, under pressure from abroad to clean up his human rights record, Duvalier said in his new year’s speech that the protection of human rights “must not violate the respect for sovereignty, much less serve as a springboard for political maneuvering.” Unfazed, US President Jimmy Carter’s administration began to pressure the government to clean up its record. Besieged by telegrams and messages from Haitians about human rights violations, including the condition of political prisoners, United Nations Ambassador Andrew Young carried Carter’s message of respect for human rights to Haiti in August 1977. In a press conference, he advised that imprisoning political opponents and the use of brutality does not contribute to the growth and development of a country, but “ultimately to its downfall.” He later in his visit met one-on-one with Duvalier and reiterated this message.
Young also arrived in Haiti with a list of 21 political prisoners. According to Young, Duvalier promised he would investigate each case and find out if the person should come to trial immediately or be released. Duvalier also agreed to invite an Inter-American Commission on Human Rights delegation to Haiti for a country visit and to restore habeus corpus and to limit detention without judicial hearing to the constitutionally permissible 48 hours. The United States privately believed “Duvalier [did] not intend to introduce any significant reforms or to refrain from using arrests or the threat of arrests to remove people he [viewed] as political threats.” US intelligence recounted that the “IHaitian [sic] goverronent [sic] will not oppose a visit by the Inter-American Commission on Human Rights because it feels that any violations of human rights or problems in that reiard [sic] can be hidden.”
On September 21, 1977, Duvalier released 104 political prisoners and Haiti formally signed the American Convention on Human Rights. In a speech the next day, he said that there remained no political prisoners in all of Haiti. Duvalier also stated that he decided to release the prisoners on his own will, and that no one had asked him to do it. The fate of missing persons, according to the US Embassy in Port-au-Prince, remained unsolved. Indeed, Amnesty International quickly questioned the fate of Haitian prisoners known still to be in detention, including Rochambeau Nestor, Ceres Daccueil, and Luc Deslmours.
That experience has altered my whole life. You can never be the same person and anything you do is in reference to that moment. I have never been able to pass it. It was a horrendous experience.
—Boby Duval, political prisoner arrested April 20, 1976 and released in the amnesty of September 21, 1977, Port-au-Prince, Haiti, March 17, 2011
After the 1977 prisoner release, the government announced that Fort Dimanche had been closed by order of Duvalier, though the Inter-American Commission for Human Rights continued to receive denunciations that the Fort Dimanche had not closed. Political prisoners continued to be held by the Duvalier government; however, the pattern of the detention in the later years of the Duvalier regime was more targeted to repressing the emerging free press and political opposition movement.
b) “Disappearances” and Political Killings
The harsh conditions of the triangle of death led many prisoners to die in prison. After their imprisonment and death, the whereabouts of these prisoners often remained unknown to their family members. For many families whose loved ones were not on the list of prisoners Duvalier released in September 1977, the announcement provided confirmation that they would not be found.
While many prisoners died from the conditions in Fort Dimanche or the other triangle of death facilities, others were summarily executed. Known executions include 11 prisoners at Fort Dimanche on August 7, 1974, and the seven persons killed on March 25, 1976. Summary executions allegedly occurred even as Duvalier was publicly pledging the respect of human rights, with eight prisoners reportedly executed at Morne Christophe and Titanyen on September 21, 1977, the same day of the release of the 104 prisoners.
“Disappearance” of political prisoners continued in the waning years of the government. For example, Human Rights Watch (then Americas Watch), interviewed family members of two persons—Meres Briole and Joseph Pardorany—“disappeared” after being arrested on September 9, 1983. When Human Rights Watch confronted government officials at the Haitian National Commission for Human Rights about the “disappearances,” it was told that the two people never existed and that their identities were created by subversives.
Political killings reached new levels in the final months of the government. The murder of four students by the army at a peaceful demonstration in Gonaives on November 28, 1985, outraged the population, setting in motion a movement to end the Duvalier government. The killing sparked protests across the country and the government responded with force that brought international condemnation and prompted the United States to cut back its aid to Haiti. On January 31, 1986, Duvalier declared a state of siege, and unleashed his VSN paramilitary force (Tontons Macoutes) to terrorize the population. According to Michael S. Hooper, perhaps the leading expert on human rights under Duvalier, the Tontons Macoutes killed hundreds of people in the final days of the Duvalier government. Human Rights Watch documented at least six people shot and killed on February 5 and 6, 1986, by a Tonton Macoute in the Bel Air neighborhood of Port-au-Prince. In these last days, fresh graves were found at a site near the village of Bon Repos, where area residents told reporters that visited in early February 1986 that trucks had come to the site after street protests against the Duvalier government.
The skin on my buttocks had been torn away. The blood was running down. They weren’t put off. On the contrary, you could say that the sight of my blood excited them. When I was on the point of dying, they untied me and dragged me to a dark cell . . .
—Evans Paul, arrested October 16, 1980 and released October 26, 1980
Torture was a regular occurrence under Duvalier. In the transfer of detainees among triangle of death facilities, Casernes Dessalines, the army barracks located on the grounds of the presidential palace, often served as the first location of detention. Many political prisoners faced interrogation and savage torture at the Casernes Dessalines before their transfer to Fort Dimanche.
The so-called agents of peace [the Tontons Macoutes], inflicted on him a horrible treatment: the poor man was bludgeoned; they enjoyed pummeling his stomach with a cudgel, hitting him in the ribs. Besides wounds here and there, fractures to the spinal column were observed, and the poor man succumbed in excruciating pain on November 4 at 8 am in public view. All this happened because he had not what it takes to buy his freedom.
—32 citizens of Galette Poonier in a letter addressed to Duvalier, Galette Potonier, Haiti, December 1975
Some well-known cases include the torture of Sylvio Claude during his 1979 arrest, when security forces applied electric shocks to his feet, and of Richard Brisson after the November 28, 1980 raids on activists. Shortly after the raids, Lafontant Joseph, a lawyer and secretary general of the Ligue Haitienne des droits humains, the Haitian Human Rights League, was forcibly arrested and reportedly severely tortured. In November 1981, several members of the Autonomous Federation of Haitian Workers (Central Autonome des Travailleurs Haitiens or CATH) and other workers demonstrating outside the Palais de Justice were also reportedly detained, taken to Casernes Dessalines, and tortured.
Prisoners who had been tortured recounted a similar method of torture, called the djak in Haitian Creole: as already described, their hands were tied behind their legs, and a stick or bar was then pushed between their legs and arms. The prisoners tied in this position would be drawn into a ball around the stick, and from that position, they would be beaten with sticks.
d) Repression of the Press and Political Dissent
Duvalier’s government severely restricted freedoms of association, assembly, and expression through its complex network of military, paramilitary, and police forces, which worked to silence independent or opposition voices. The government repeatedly closed independent newspapers and radio stations. Journalists were beaten, jailed, and forced to leave the country. Despite promises of liberalization by Duvalier, the physical assault and arrest in December 1977 of Bob Nuree, editor of the opposition weekly Jeune Presse, made clear that any steps by the government towards liberalization had been cosmetic.
By September 1979, newspapers reported that “Duvalier terror” gripped Haiti, and that Duvalier had unleashed the Tontons Macoutes “as a warning to all.” In the first three weeks of September 1979, 200 people were reportedly arrested and the secret police had seized, beaten, and jailed leaders of two newly emerged political parties. According to newspaper reports, the government also forbade “the increasingly independent press and radio to report the arrests and any more complaints about killings and brutality of the Macoutes through the country.” Duvalier also reportedly called on his VSN paramilitary force to be “ready to fight to defend” his government. In a September 22, 1979 speech commemorating the 22nd anniversary of the Duvalier regime, Duvalier stated that he would not tolerate subversive critique. On the same day, he referred to the VSN as his “first line of defense,” saying “[m]en and women of the militia, you are the linchpin of my government, the major force on which I base myself.”
Prompted by concerns about Duvalier’s new rhetoric, the Haitian Human Rights League held a meeting to discuss the status of human rights in Haiti on November 9, 1979. In what became known as “Black Friday,” a unit of Tontons Macoutes, carrying guns, knives, and iron bars and shouting “Jean-Claude Duvalier,” violently broke up the meeting, attacking some in attendance, including envoys from the United States, France, Canada, and West Germany. United States political officer Ints Silins was slapped sharply across the face. The head of the human rights league, Gerard Gourgue, and his wife and daughter were beaten and Georges Michel, a journalist for Radio Metropole, was hospitalized with head injuries. A government communiqué regretted the incident, which it blamed on “a fight between those present ... as a result of opinions issued in introductory remarks which were not shared by the audience,” but denied any involvement in it.
In the remaining years of the Duvalier government, the regime used increasing repression to contain the growing opposition and free press. In 1980, the press law was amended to “provide for prison sentences of one to three years for members of the press engaged in ‘offending the Chief of State or the First Lady of the Republic,’ or ‘making any attack against the integrity of the people’s culture.’” This law also required that journalists be licensed through the minister of the interior, and that all publications be submitted for censorship to the Interior Ministry 72 hours in advance.
After the November 28, 1980 round-up, the repression of the press continued. In 1982, a newscaster for Radio Metropole was forced to discontinue his broadcasts and a group of journalists trying to produce a political newsletter was arrested, interrogated, and provided a warning that they should discontinue such attempts. Minister of Interior Roger Lafontant issued a communiqué in 1984 to remind the press that they were required to obtain authorization to establish new publications and failure to observe the procedures provided for in the press law would result in a government ban of their publication.
Despite these warnings, the press attempted to continue covering riots over food shortages that broke out in several cities in 1984, but several journalists were rounded-up, arrested, interrogated, and in some cases tortured. In one instance, police interrogated for 40 hours, beat, and broke the fingers of Pierre Robert Auguste, an editor of a local newspaper, in the presence of the minister of the interior and the chief of police. At the end of 1984, approximately 35 intellectuals who spoke against the corruption of the government were rounded up and imprisoned, held without charge, and finally released in April 1985. The conditions of imprisonment were little improved from the period of time when scores of prisoners died in Fort Dimanche. One imprisoned doctor was beaten to the point of loss of consciousness for trying to treat a fellow prisoner with a gastrointestinal illness.
November 28, 1980: Duvalier and the Arrest, Torture, and Expulsion of Journalists and Activists
The events of November 28, 1980, when security forces arrested hundreds of journalists and opposition voices—torturing several of them—illustrate Duvalier’s personal role in crimes committed by his government.
A period of liberalization under Duvalier had allowed for the development of independent journalism, a few opposition parties, and a human rights league, but signs of a coming repression began to gather in early fall 1980, with the October 13th arrest of Sylvio Claude, head of the Christian Democratic Party, and of Anthony “Konpe-Filo” Pascal, a journalist with Radio Haiti Inter, and the subsequent arrest of Ivens Paul, playwright and station announcer for Radio Cacique on October 16, 1980.
The election of Ronald Reagan as president of the United States in November 1980 changed the political calculation for Duvalier. The night of Reagan’s election, gunshots from the celebrating Tontons Macoutes could be heard across Port-au-Prince and the Duvaliers threw a lavish gala to celebrate Jimmy Carter’s defeat. A US official claimed that “Haitians felt free to act when Carter lost.”
On November 28, 1980, Haiti “inaugurated the most widespread campaign to repress dissent since the days of “Papa Doc,” Francois Duvalier, almost a decade [before].” The day began with the disappearance of several journalists at Radio Haiti Inter. Richard Brisson, the program manager at Radio Haiti Inter did not show up to work and station manager Jean Dominique had not returned from running an errand. Radio Haiti Inter began to broadcast the disappearances, asking for information about the whereabouts of Brisson and Dominique. In early afternoon, suddenly the airwaves at Haiti Radio Inter were filled with commotion, as plainclothes officers raided the station. A recording played over and over again for 30 minutes, and then the broadcast went silent. The only sound that could be heard emanating from the station was the methodic click of a skipping record player, as security forces took everyone in the station into several vans that transported them to Casernes Dessalines, on the grounds of the presidential palace. By the end of the day, between 100 and 400 human rights defenders, opposition political members, and journalists had been arrested throughout Port-au-Prince. In one sweep, the democratic movement in Haiti was crushed.
The conditions of detention were harsh. Stripped of their clothing, detainees secretly communicated with each from their small cells, trying to piece together information about what was occurring. One by one, the detainees were called in for questioning by Chief of Police Colonel Jean Valmé, Major Emmanuel Orcel, and Colonel Albert Pierre, widely known as “Ti Boulé,” with Valmé conducting the questioning.As they waited their turn, they could hear the screams of other detainees being tortured.The detainees were held incommunicado without access to legal counsel or to their families.
An editorial by the Ministry of Information ran the next morning in the Nouveau Monde; entitled “The plot will not succeed,” it was a warning to “troublemakers” that the “interests of the nation will prevail.”On November 30, Colonel Jean Valmé issued a statement about the arrests in which he announced the dismantling of a vast communist plot:
National and international Communist agitators connected with the media have been carrying out subversive activities for several months both in the capital and certain provincial towns in order to create a climate suitable for the perpetration of terrorist and criminal acts… Faithful to its duty of ensuring the security of lives and property, the police have, in a series of raids, succeeded in dismantling a network of agitators, some of whom have now gone into clandestinity…
In an interview years after the events, Valmé reportedly asserted that Duvalier told him to “do what you want with these journalists.” Valmé did not fully understand the order, and sought clarification from Henri Bayard, Minister of the Presidency. Bayard reportedly told him to "do [his] job” and “[a]rrest them.” He also told Valmé not to worry, “if they did nothing, the president would release them” the following Monday.
On December 4, the pro-government newspaper Le Nouveau Monde ran a headline celebrating the arrests; “[t]hey failed in their criminal attempt, the revolution continues its triumphal march.” Under this headline an official bulletin was published announcing “the dismantling of a network of communist agitators,” and another editorial by Duvalier’s information ministry warning youth about the “trap” of subversive ideas. The editorial refers to the “revolution’s” disarmament of conspiratorial and reactionary groups and cautions that those of mature age must be vigilant and protect youth from being manipulated by ideologues. It is for this reason, the editorial claimed, that the government must censure the behavior of those who unpatriotically lead youth away from their vocation as citizens.The same front page reproduced a communiqué from the secretary of state for social affairs inviting citizens to a rally to support Duvalier on December 4, 1980.
At the rally on December 4, Duvalier vigorously defended his actions, saying that there were Haitians who had “forgotten” all that he had done to liberalize the country.He warned activists that, “they must respect [his] power, as my power will respect them.”Alluding to the arrests, he said that “he did not lose his cool,” but that it was a moment in which one had to act.
In an interview published on December 8, Duvalier told the New York Times that the arrests were necessary for the security of the government, stating “wewere obliged to act for the simple reason most of these people were implicated in a conspiracy against the security of the Government…Politics is not a matter for children, [s]ometimes you have to act even if it is against your feelings.”In an interview with a Haitian paper the next day, Duvalier reiterated that “the government did not act lightly” (“n’a pas agi à la légère”) in imprisoning and expelling the dissidents.
By January 1981, 17 of the journalists that had been arrested were forcibly exiled, and 26 more were charged with acts of terrorism. Several of those arrested had suffered severe beatings and torture, including journalist Richard Brisson and Lafontant Joseph, a human rights activist. An unnamed journalist was so badly beaten around the head, with his hands tied behind his legs, that upon his return to his cell, he was semi-conscious and unable to stand.
I was taken. . .to Casernes Dessalines where we were interrogated under torture. . . I was kept […] hidden below the Palais National, where there is no daylight. Thanks to the electric torch of the prison guard, however, I was able to distinguish skeletons, probably those of former prisoners, lying there on the ground. It was like living a nightmare inside a mass grave under the Palais National.
—Yves Richard, Secretary General of CATH, arrested November 28, 1980, date and location of testimony unknown
e) The Need to Investigate Sexual and Gender—Based Violence
Testimonial evidence from female victims of Duvalier should be collected to determine whether violations also included sexual violence. The Tontons Macoutes under Duvalier-père were widely believed to use sexual violence against women as a means to humiliate women and their husbands into submission to the regime, without facing punishment. In some instances in that earlier period, parents would not allow their daughters to go to public areas where Macoutes were known to be, because “if a Macoute decided he wanted a girl, he would have her.”
There is anecdotal evidence that politically motivated sexual crimes continued under Jean-Claude Duvalier. In 1981, Amnesty International reported that one female refugee living in France claimed that she had been detained after refusing to have sexual relations with a Tonton Macoute. And what we know of Duvalier government treatment of female political prisoners should give pause. Female prisoners held in the Casernes Dessalines, for example, recount that they were forced to walk in only their panties to the washroom, walking through the barracks exposed. While male prisoners were also forced to walk in their underwear, the nakedness of female prisoners in front of all-male military police guards and majority-male prisoners was a form of sexual humiliation.
The issue merits further investigation because, while there is little documentation of Duvalier-era sexual crimes at present, it was not standard practice at the time for human rights organizations or even journalists to report on sexual violence as a human rights violation.
Shortly after Duvalier fled the country in 1986, the new government established a commission to investigate the financial corruption of the Duvalier government and later instituted criminal proceedings against Duvalier for financial crimes. In 2008, another investigation was opened and included crimes against persons. The government re-instituted these pending cases when Duvalier returned in January 2011. Under Haitian law and procedural rules, the government has until May 19, 2011, to complete its investigation and charge Duvalier.
The 1986 proceedings began on April 18, 1986, when the state prosecutor (Commissaire du gouvernement), Ulrick Rosarion, issued instructions for the investigation of members of the Duvalier government, referred to as the “Duvalier criminal organization.” Investigating judge (juge d’instruction) Emmanuel Dutreiuil was assigned to the case. The same year, cases were instituted against several of the members of his government, including Luc Desir, an official in Duvalier’s government who also served as chief of the secret police under Duvalier-père, for crimes including murder and torture. On January 15, 1987, the governor of the Bank of the Republic of Haiti issued a report concluding that sufficient evidence existed that Duvalier alone stole over $120,000,000 from the public coffers of Haiti and that members of his family and government stole hundreds of millions of dollars more.
On June 9, 1999, a supplemental instruction enumerating the allegations in the original 1986 instruction was sent to a new investigating judge on the case, Pierre Josiard Agnant, who brought charges against Duvalier and Frantz Merceron for bribery and corruption, Duvalier’s wife Michèle Duvalier for corruption and as an accomplice to bribery, and several other named defendants for corruption. On April 29, 2008, another investigation against Duvalier was opened by the state prosecutor (Commissaire du gouvernement), Claudy Gassant; it included the allegations of financial crimes and added crimes against persons, including potential crimes against humanity. This case was referred to investigating judge (juged’instruction) Bernard Saint Vil, and was open when Duvalier returned to Haiti after his 25-year exile.
Commissaire du gouvernement Harycidas Auguste re-instituted this pending criminal case when Duvalier returned in January 2011. Saint Vil was no longer available to handle the case, and it was referred to investigating judge Carvés Jean on January 19, 2011, with instructions to investigate both alleged financial crimes and crimes against persons, including murder, torture, arbitrary detention, and disappearances. On January 19, 2011, Duvalier submitted to questioning on corruption and embezzlement allegedly committed during his 15-year rule. In addition, several victims of the Duvalier government came forward and filed complaints with the government. Their complaints formed the basis of further instructions by the commissaire to investigate Duvalier for human rights violations, including crimes against humanity. As of March 28, 2011, 16 Haitian victims of Duvalier had filed complaints with the state prosecutor related to crimes against humanity and human rights violations, including extrajudicial killings, torture, and enforced disappearances.
The procedural clock for the investigation began on January 19, 2011, giving the investigating judge three months to determine whether charges should be brought against Duvalier. The investigating judge may request an additional month, though these time limits are rarely adhered to in practice. During this time, the judge may call in witnesses and carry out other investigative acts. As of March 19, 2011, a number of victims had been brought before the judge for questioning, as well as two former finance ministers. At the end of the investigative period, the investigating judge will issue a notification to the commissaire (“Soit communiqué”), alerting him that the investigation is complete. The commissaire may then provide the judge with a final resubmission (“Requisitoire definitif”) on the charges. The judge will consider the evidence and will ultimately decide if charges will be brought.
Human Rights Watch is not aware of any evidence that Duvalier was present when the murders, torture, “disappearances,” or arbitrary detentions took place. However, under international and Haitian law, senior leaders can be prosecuted for the acts of their subordinates in a number of ways.
a) Investigating Duvalier as an Accomplice to Crimes Committed by His Government
A senior leader may be responsible if prosecutors can prove a causal link between his orders and crimes against civilians committed by his troops. Liability can also arise if a leader instigated, aided, or abetted the commission of crimes.
Under Haitian criminal law, a person can be tried and punished as an accomplice when three conditions exist: first, a principal act, i.e., a predicate crime; second, an act of complicity before or concomitant with the commission of the predicate crime; and, third, mens rea, or knowing participation in the criminal activity. The code distinguishes between three types of complicity. The first is complicity by instigation and can take the form of direct provocation through instructions, promises, threats, and the like; the second type is by procuring the means for the crime; and, the third, aiding and abetting.
The International Criminal Tribunal for Rwanda (ICTR) has found that assistance or encouragement alone may be sufficient to establish individual responsibility. The ICTR also found that aiding and abetting are distinct juridical concepts. It has also held that the presence of the accomplice at the crime is not required. In addition, the act of aiding or abetting can occur through failure to act if the omission has a decisive effect on the perpetration of the crime or is accompanied by the requisite intent or mens rea. The accomplice does not, however, need to share the same intent or mens rea as the primary author of the crime; rather, the intent “requirement will be satisfied where an individual acts intentionally and with the awareness that he is influencing or assisting the principal perpetrator to commit the crime.” In addition, the mens rea can be established circumstantially, including with evidence of prior like behavior, failure to punish, or verbal encouragement.
When Duvalier came to power, Haiti’s constitution named the president the supreme chief and leader of the Armed Forces and VSN, and granted the president all power to command them. The 1983 constitution confirmed this power. Many of the acts of torture and arbitrary attention occurred on the very grounds of the Presidential Palace, in the Casernes Dessalines.
Duvalier’s public speeches and acts have alluded to his control over the state apparatuses perpetuating these crimes. In a speech on June 22, 1971 in front of Fort Dimanche, he said that he was "the supreme and de facto Leader of the Armed Forces, Police Forces and the National Security Volunteers [Tontons Macoutes]," and that he was "now the only Supervisor of the Militia." He also warned that "people who openly or stealthily try to block the path of our Revolution will be systematically carried and swept away by this great force of history." At the September 21, 1977 release of 104 prisoners, Duvalier stated that the release of prisoners was his decision to make. In December 1980, after the round-up and torture of journalists and political opposition, Duvalier said baldly “we were obliged to act.” In that case, his police chief reportedly said that Duvalier told him to “do what you want with these journalists.” Duvalier is alleged to have ordered the detention of businessman Lucien Rigaud in the National Penitentiary.
The chief of state must do everything. He is like the father of a family who must take care of everyone. . .
—Jean-Claude Duvalier, President of Haiti, Port-au-Prince, Haiti, June 30, 1981
In addition to public speeches and acts of Duvalier, evidence of “insiders,” those who worked in Duvalier’s system, will be critical to detail Duvalier’s exact role. Important insiders who are alive today include Colonel Jean Valmé, director of the secret police and chief of the Port-au-Prince police, and Emmanuel Orcel. Both have been identified in human rights reports and by victims as perpetrators of torture and arbitrary arrests.
b) Investigating Duvalier for Crimes Committed under His Command Responsibility
Duvalier may also be liable under the customary international law doctrine of “command responsibility” or “superior responsibility” which holds that individuals who are in civilian or military authority may under certain circumstances be criminally liable not solely for their own actions but also for the crimes of those under their authority. This principle of liability was applied by Haitian courts in the prosecution of the April 1994 Raboteau massacre and resulted in the conviction of a number of superiors including Raoul Cédras, the leader of the 1991-1994 military junta and Emmanuel “Toto” Constant, the founder of the paramilitary organization the Front for the Advancement and Progress of Haiti.
Three elements are needed to establish liability for criminal acts pursuant to the doctrine of command or superior responsibility:
- There must be a superior-subordinate relationship.
- The superior must have known or had reason to know that the subordinate was about to commit a crime or had committed a crime.
- The superior failed to take necessary and reasonable measures to prevent the crime or to punish the perpetrator.
In the Raboteau case, the court found that these elements resulted in a “crime by omission.”
1. The Superior-Subordinate Relationship
A superior-subordinate relationship is clearest when there are formal rules, for example when legislation or a military chain of command specifies the existence of a relationship. However, even in the absence of formal rules, a superior can have actual and effective control. Thus, civilian and political superiors, as well as those in military command, may be held liable under this doctrine.
As president, Duvalier exerted de jure and de facto command and control over the army, police, and other irregular security forces, which committed arbitrary arrests, torture, “disappearances,” and executions. These groups reported directly to Duvalier. The state-run prison Fort Dimanche—where prisoners died from torture—was run by the army.
2. The Superior’s Knowledge
A superior’s knowledge can be proven either by showing he had “actual knowledge” that his subordinates were committing or about to commit crimes or that he had “reason to know” that his subordinates were about to commit or had committed crimes.
While the fact that a superior had actual knowledge may be proven through direct evidence, it may—and often is—also established through circumstantial evidence, i.e., evidence from which an inference can be made that the superior “must have known” of subordinates’ criminal acts. Such evidence can include the number, type, and scope of illegal acts, time during which the illegal acts occurred, whether the occurrence of the acts is widespread, the modus operandi of similar illegal acts, and the officers and staff involved. International tribunals have also found that a superior’s knowledge may be presumed if a superior had means to obtain information of a crime and deliberately refrained from doing so.
The “had reason to know” standard does not require that the superior had actual knowledge but requires only that he had some information available to him that would have put him on notice of crimes. General information about the possibility of crimes is all that is necessary, not that he have explicit or specific details of them and that information could be available in many different forms, such as through a specific report or other written format, or even orally. The key question is whether the superior is in possession of the information, not whether he acquainted himself with it because a superior may not remain “willfully blind” to the acts of subordinates.
As described above, the crimes under Duvalier’s rule were sufficiently notorious that he “must have known” about them. And if not, he was personally put on notice repeatedly by, among others:
- US Ambassador Andrew Young, who raised human rights issues with Duvalier in August 1977 and presented him with a list of 21 political prisoners;
- US Senator Edward Brooke, who discussed human rights with Duvalier in April 1974 and 1977. Duvalier ordered a 1974 report by Brooke on the human rights situation in Haiti to be circulated to all cabinet members. In the 1977 conversation “[Brooke] stressed the need for the GOH to move rapidly to improve its record regarding respect for human rights.” According to Brooke, “[Duvalier] said that he was aware of the serious problems in this area and was moving to rectify them. As proof of the latter he mentioned that the attempt was being made to improve the situation of prisoners by the construction of a new and modern prison to replace the present facilities of the ancient Fort Dimanche.”
Various public releases of prisoners that Duvalier personally oversaw indicate that he had full knowledge of the imprisonment of political dissenters. He was also put on notice by international actors about his human rights record. For example, in 1974, a United States Senate subcommittee charged that the government of Haiti continued the practice of Duvalier père and held political prisoners and engaged in political repression. When US Senator Edward W. Brooke met with Duvalier in April 1974, Duvalier attempted to rebut allegations in the report, which he had read. Duvalier claimed that Haiti, unlike other Latin American countries, had no political prisoners. In direct contradiction of this, in September 1974, “about a dozen of Haiti’s most prominent political prisoners, after being held for two years without trial, [were] sentenced to life imprisonment by a secret military court. . .” Over the next few years, Duvalier pardoned over 100 political prisoners, again contradicting his assertions. Although Duvalier issued public amnesties in the succeeding years, the Inter-American Commission on Human Rights was able to send the government a note on September 11, 1978, with a list of 151 individuals who, according to the allegations of accusers, were executed while in prison or who died in prison between 1974 and 1977 because of lack of medical care.
3. Superior Duty to Take Necessary and Reasonable Measures to Prevent the Crime and to Punish the Perpetrator
Superiors have both a duty to prevent and a duty to punish the crimes of subordinate persons. These constitute distinct and independent legal obligations, but they are not alternative obligations, i.e., a superior who has reason to know of a crime to be committed cannot wait until the crime is committed and then impose punishment.
Superiors successfully discharge their duty to prevent subordinate crimes when they employ all means materially available to them to do so.
A superior’s “duty to punish” arises after the commission of an offense, and includes at least an obligation to investigate possible crimes, to establish the facts, and to take steps to ensure that the perpetrators are sanctioned. Both the criminal crimes tribunals for Rwanda and the former Yugoslavia have held that evidence of failure to punish may arise from failure to create or sustain an environment of discipline and respect for the law.
Human Rights Watch knows of no evidence that Duvalier took steps to prevent or stem any of the crimes described in this report or that any of their direct perpetrators were punished.
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.
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. 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. 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.
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.” 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. 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.”
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,”which may be translated as “false imprisonment.” The French Cour de cassation (Supreme Court) has consistently held that “sequestration” is a “continuing crime.” 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. 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. Even in the case of murder, the statute of limitations only begins when the date and the cause of the victims’ death are known.
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.” 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.”
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.”
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.”
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.” 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. 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. 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.
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.
As described above, international law requires that Haiti investigate and prosecute Duvalier’s crimes. The investigation and trial of a former head of state for mass crimes committed between 25 and 40 years ago will be a complex endeavor. Further complicating the issue are the challenges currently facing the Haitian judicial system. The infrastructure, already weak, was further weakened by the January 2010 earthquake. Few judicial resources exist to dedicate to this case. The Haitian judiciary and bar have little experience or expertise in prosecutions of this nature. And all actors in the case, including witnesses, victims, judicial officers, and the defendant, face possible harassment and in some cases possible physical violence that require attention from Haitian authorities.
a) Weak Capacity Can be Bolstered by International Support
The Haitian legal system will have difficulty pursuing the case without international support. Even before the earthquake, the Haitian judicial system struggled to handle basic criminal cases, let alone complex trials involving a former head of state. According to a pre-earthquake UN report,
Arbitrary arrests, unlawful police custody, ill-treatment and excessive use of force continue to be reported. Lack of technical expertise, poor communication, negligence and apparent corruption of judicial authorities are reportedly the source of numerous unlawful arrests, prolonged pre-trial detention and a low number of court decisions. Public distrust of the justice system has led many Haitians to avoid the formal court system and rely on informal methods, such as vigilantism, which further undermines the security situation.
Haiti's earthquake has further diminished the capacity of the state and has almost totally undermined its ability to safeguard fundamental rights. Chronic problems such as violence against women and inhumane prison conditions have been exacerbated. Most of those who escaped from jail during the earthquake (almost none of whom had ever been tried) remain at large. The failures of reconstruction and confused elections have further eroded government legitimacy.
Special Advisor to the President of Haiti for Legal Affairs René Magloire stated clearly: “the Haitian judicial system—and I think that this is no secret—is very weak.”
Nevertheless, with concerted international efforts, a prosecution of Duvalier in Haiti could kick-start rule of law efforts and help to begin building the state institutions that Haitians deserve. Trying these complex cases demands special expertise in investigating mass violations, understanding the criminal network that led to their commission, and building the links between Duvalier and other senior officials and those officers or agents who committed crimes on the ground. It requires among other things, protecting prosecution and defence witnesses, and providing adequate security for those involved in proceedings. Enhancing national capacity to address the most serious crimes under international criminal law thus has the potential to significantly advance broader judicial reform efforts and both merits and requires targeted funding and assistance from international donors.
Resources must also be available to ensure Duvalier’s right to a fair trial. The Haitian constitution enshrines basic due process rights, including the right to a fair trial, as does the American Convention on Human Rights and the International Covenant on Civil and Political Rights (ICCPR). Under Article 14 of the ICCPR, Duvalier has a number of fair trial rights, including the right to be presumed innocent until proven guilty; the right to be informed promptly and in detail of the nature and cause of the charges against him; the right to adequate time and facilities to prepare his defense and communicate with a lawyer of his choosing; the right to be tried without undue delay; and the right not to be compelled to testify against himself or to confess guilt. Any trial of Duvalier should ensure that these rights are scrupulously protected.
b) Limited Resources can be Used Efficiently
An investigation and prosecution of this kind requires significant human resources. Currently, only one juge d’instruction and one prosecutor are assigned to the case. The government should consider assigning additional personnel to the Duvalier dossier. Under Haitian law it is not unprecedented to have more than one investigative judge assigned to a case.
The government’s limited resources can be maximized to develop a targeted and efficient prosecution strategy. Though his alleged crimes may be extensive and varied, the government should not attempt to prosecute Duvalier for all of the alleged crimes of his regime. A better strategy for the prosecution of Duvalier would be to focus on charges that are representative of Duvalier’s alleged gravest crimes for which there exists a strong evidentiary basis.
The prosecution should also ensure that its strategy includes adequate focus on evidence about the chain of command. It will be vitally important to balance testimony from victims and witnesses to establish what crimes took place with sufficient with evidence to establish Duvalier’s control over the official and unofficial security forces that committed such serious crimes as well as his knowledge of the crimes.
c) Lack of Technical Expertise Can be Addressed with Expert Support
Mass human rights violations presume a criminal network that facilitates the widespread commission of crimes, in Duvalier’s case a network of official and unofficial security forces. Uncovering this criminal network to prove the links between Duvalier and his forces on the ground will require significant effort and expertise. While there are many skilled jurists in Haiti, they do not have the experience, and thus, at present, the expertise to pursue this type of investigation and prosecution. Special Advisor to the President of Haiti on Legal Affairs René Magloire noted that “[t]his is the first time a case on crimes against humanity will be before the Haitian courts.”
On February 1, 2011, United Nations High Commissioner for Human Rights Navi Pillay “offered the authorities in Haiti technical assistance towards the prosecution of crimes committed under the leadership of Jean Claude Duvalier.” According to Pillay:
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 . . . Such systematic violations of rights cannot remain unaddressed. The thousands of Haitians who suffered under this regime deserve justice. I call on the Haitian authorities to send a message to the world that their national courts can ensure accountability for serious violations of human rights, even in difficult humanitarian and political contexts.
The High Commissioner’s statement is a welcome development. Overall, international experts with knowledge of how to handle complex criminal investigations, prosecutions, and trials can help build the capacity of their national counterparts and promote procedures that provide guarantees of a fair trial. International staff can also help to buffer proceedings from political interference and foster judicial independence, particularly in sensitive cases such as Duvalier’s. In addition to the expertise provided by the OHCHR, international donors can provide vital support to the Haitian authorities—including through ongoing judicial reform efforts—in a number of ways. For instance, donors could consider funding international experts to provide “behind the scenes” assistance to prosecutors, judges, and defense attorneys. It could also involve funding or seconding a temporary complement of international staff to work alongside Haitian staff, which also would alleviate some of the human resource constraints identified above.
d) A Safer Political Environment Can be Created Through Political Support
Technical assistance is important but it will be of little consequence unless Haitian authorities are committed to vigorously pursuing the evidence and trying Duvalier—and potentially others—fairly and effectively. Unfortunately, the two presidential candidates in the March 20, 2011 runoff have not yet demonstrated the requisite political will. (The election results from the March 20, 2011, were not available at this writing.) Mirlande Manigat has indicated that the prosecution of Duvalier is “not [her] business.” Michel Martelly has welcomed Duvalier’s return and indicated he would be happy to have Duvalier as an advisor. Such positions are inconsistent with Haiti’s international law obligations, as outlined above.
Even under the administration of President René Préval, which has supported the prosecution, the government has not yet done enough to create a safe environment for the investigation and prosecution of Duvalier. Several victims have expressed concerns for their safety. A group of victims sent a public letter to President Préval and several ministers calling on the government to detain Duvalier during the pendency of the proceedings. These victims protest that Duvalier is free to travel the country and give speeches, in the company of known macoutes, and to reactivate his network of “henchmen,” while victims face intimidation and are afforded no protection. The juge d’instruction issued an order assigning Duvalier to his home, a form of house arrest, on March 24, 2011, while he was in a hospital.
Several people in direct contact with victims and witnesses told Human Rights Watch that, in fact, some victims and witnesses would not come forward in the current environment, particularly given the likelihood that a new government less supportive of the case than the current administration may soon take power. To address these concerns, effective witness protection and adequate security for prosecutors, court staff, and defense attorneys must be in place for procedures to be effective and fair.
International donors have a role to play in supporting witness protection and security programs as well as in supporting those in Haiti committed to the prosecution. Public statements by donors and high-level foreign officials recognizing the importance of the case and noting Haiti’s obligations to pursue justice are essential. While UN High Commissioner Pillay and UN Secretary General Ban Ki Moon have strongly backed the need to prosecute Duvalier-era crimes, other key international actors have not made the same demonstration of support. P.J. Crowley, then spokesperson for the United States Department of State, stated that what happens to Duvalier is “a matter for the Government of Haiti and the people of Haiti.” This is of course is true, but Haiti also has international legal obligations and will require strong international support to discharge those obligations and to help foster a domestic climate that favors prosecution. The safety and security of witnesses, victims, and judicial officers could be enhanced if the international community demonstrated its commitment to the case and admonished any intimidation or threats designed to prevent the prosecution from continuing.
Justice means that the truth should be known, and that all that happened did not happen in vain… I don’t want [money], to be compensated from his looted treasury.
—Michèle Montas, complainant in the case against Duvalier, Port-au-Prince, Haiti, March 16, 2011
The prosecution of Duvalier comes at one of the most difficult periods in Haiti’s already difficult history. In just over a year’s time, Haiti has faced innumerable challenges, with the destruction caused by the earthquake of January 12, 2010, a subsequent slow recovery, Hurricane Tomas, a cholera epidemic, and contested first-round presidential elections. Despite the obstacles, we believe the prosecution of Duvalier should be a priority, providing an opportunity for Haiti to break with the impunity of the past.
[T]he return of Jean-Claude Duvalier has brought the country’s turbulent history of State-sponsored violence to the fore. It is of vital importance that the Haitian authorities pursue all legal and judicial avenues in this matter. The prosecution of those responsible for crimes against their own people will deliver a clear message to the people of Haiti that there can be no impunity.
—Ban Ki Moon, UN Secretary General, Report to Security Council, March 24, 2011
A Haitian proverb states that “a constitution is made of paper, but bayonets are made with steel.” This has been the legacy of most governments of Haiti, not only of Jean-Claude Duvalier’s. Though it was one of the first colonies to win independence, Haiti’s path towards establishing the rule of law has been tortuous. Throughout Haitian history, repressive rulers and their henchmen have bled the country and its citizens dry. The law has been used to reinforce the domination of a tiny elite over the great mass of poor peasants and workers and has almost never functioned to punish even the worst massacres. As a result, the Haitian poor justifiably have little faith in the Haitian state in general, and the legal system in particular.
A fair and transparent prosecution of Duvalier in Haiti—in which victims are able to tell their stories and participate as “parties civiles” for one of the first times in history, and in which Duvalier’s lawyers present a vigorous defense—could help to build Haitians’ confidence in the justice system. It could also provide a civics lesson about a particularly dark period of Haitian history which most Haitians today are too young to remember. In confronting its history head-on, Haiti has the opportunity to end the cycle of impunity that has left the majority of its citizens outside the protection of the law.
Justice to me is just the same grappling of this experience as I have always had . . . but there was an outcry from my gut that something was wrong and it should be righted. 180 people died physically in front of me in eight, nine months. [T]wo or three persons a day, dying . . . Justice may not right what I have seen, but maybe, I don’t know, it will be a beginning . . . To me, that’s. . . why I wanted to get this story out in the open.
—Boby Duval, complainant in the case against Duvalier, Port-au-Prince, Haiti, March 17, 2011
This report was written by Amanda M. Klasing, fellow in the Women’s Rights Division of Human Rights Watch and Reed Brody, counsel and spokesperson in Brussels for Human Rights Watch, based on archival research and research in Haiti in February and March 2011. Fred Abrahams, special advisor in the Program Office, contributed additional archival research. The report was edited by Daniel Wilkinson, Americas deputy director; Param-Preet Singh, senior counsel, International Justice Program; Aisling Reidy, senior legal advisor; and Joe Saunders, deputy program director. Americas Division associates Laura Graham and Guillermo Farias contributed to production of the report. Primum Africa Consulting (Senegal) translated this report into French. The law firm of Mayer, Brown LLP (Paris) edited the translation together with Human Rights Watch interns Diane Douzillé and Alvine Temfack. Dany Khayat and José Caicedo of Mayer, Brown LLP and Beatrice Bartoli of the Paris Bar assisted with legal analysis.
Human Rights Watch would like to thank the many organizations and individuals that contributed to this report, some of whom asked not to be identified. We are especially grateful for the support provided by Paul Seils, Luc Coté, and Marieke Wierda from the International Center for Transitional Justice; Brian Concannon, Jeena Shah, and Corey Sullivan from the Institute for Justice and Democracy in Haiti; Mario Joseph from the Bureau des Avocats Internationaux; Pierre Esperance and Marie Yolène (Lelene) Gilles from the Réseau National de Défense des Droits Humains; Danièle Magloire from Rights and Democracy—Haiti; Bill O’Neill from the Social Science Research Council; Ben Majekodunmi and Antonio Maldonado Paredes from the UN Office of the High Commissioner for Human Rights; Rodolofo Matarollo, UNASUR Special Representative to Haiti; and Michel Forst, UN Independent Expert on Human Rights in Haiti. Karin Ryan of the Carter Center provided us with access to Carter Center files.
We would also like to thank the government officials we interviewed. We are especially grateful to Maître René Magloire, special advisor to the president of Haiti for legal affairs, and his staff for the information they provided for this report.
We are deeply grateful to the victims of human rights abuses who shared information with us.
Human Rights Watch takes full responsibility for any errors or omissions in this report.