OAS » Inter-American Commission on Human Rights (IACHR) » Statement on the Duty of the Haitian State to Investigate

IACHR

Statement on the Duty of the Haitian State to Investigate the Gross Violations of Human rights Committed during the Regime of Jean-Claude Duvalier

1.                  On January 16, 2011, Jean-Claude Duvalier, president of Haiti from 1971 to 1986, returned to the Republic of Haiti after 25 years in exile in France.  The government of Jean-Claude Duvalier was characterized by systematic, gross violations of human rights. The Inter-American Commission on Human Rights (hereinafter the “Inter-American Commission”, the “Commission”, or the “IACHR”) documented the situation in its Report on the Situation of Human Rights in Haiti, published in 1979[1] and prepared on the basis of an in loco observation visit conducted in Haiti from August 16 through 25, 1978.  

 

2.                  During that visit, the IACHR compiled information on the repression practiced by the state apparatus headed by Jean-Claude Duvalier. In the process, the Commission put together a list of 151 persons alleged either to have been executed while in State custody or to have died as a result of the wretched prison conditions.  Most of the deaths were said to have occurred between 1975 and 1976.  The Commission also compiled testimony on the practice of extrajudicial executions at the Fort Dimanche prison, and on the inhumane prison conditions at that facility. It also confirmed the existence of a practice of arbitrary detention and torture and cited specific cases of violations of due process and of the right to freedom of expression, the right of assembly and the right of association, the right of residence and movement, the right to nationality and political rights. The IACHR recommended to the Haitian State that, inter alia, it “investigate and punish those responsible for the numerous violations of the right to life and physical security.” 

 

3.                  After Jean-Claude Duvalier’s return to Haiti, the Inter-American Commission reminded the Haitian State of its duty to investigate, prosecute, punish and redress the human rights violations.[2]   Then, on March 28, 2011, the Commission held a public hearing on impunity for human rights violations during the Duvalier dictatorship.  At that hearing the representatives of the State reported on Haiti’s willingness to prosecute the human rights violations perpetrated under the regime of Jean-Claude Duvalier, on the judicial investigations being conducted since Duvalier’s return to the country, and on the difficulties that the Haitian system of justice is encountering in conducting those investigations.  Accordingly, they requested technical support from the international community and, in particular, from the IACHR.

 

4.                  The Inter-American Commission welcomes the Haitian authorities’ commitment to investigate and punish those responsible for the gross human rights violations committed during the regime of Jean-Claude Duvalier.   In response to the public request for technical assistance made by the State and civil society organizations, the IACHR is issuing this statement in order to collaborate with the Haitian justice system in the investigation and punishment of the serious human rights violations committed during the regime of Jean-Claude Duvalier.

 

5.                  The Commission will briefly set out Haiti’s international human rights obligations and will conclude that the torture, extrajudicial executions and forced disappearances committed during the regime of Jean-Claude Duvalier are crimes against humanity that, as such, are subject neither to a statute of limitations nor to amnesty laws.

 

I.        HAITI’S INTERNATIONAL OBLIGATIONS UNDER THE INTER-AMERICAN HUMAN RIGHTS SYSTEM

 

6.                  On September 27, 1977, Haiti deposited its instrument of accession to the American Convention on Human Rights (hereinafter the “American Convention”), which entered into force on July 18, 1978.  Pursuant to Article 276(2) of the Haitian Constitution, this international treaty has become part of Haitian domestic law and abrogates any and all laws contrary to it.[3]  Furthermore, on March 20, 1998, Haiti accepted the binding jurisdiction of the Inter-American Court of Human Rights (hereinafter the “Inter-American Court”).

 

7.                  Therefore, as part of the apparatus of the State, the Haitian judiciary is bound by the American Convention and has an obligation to ensure that the Convention’s provisions are not undermined through enforcement of laws that are contrary to its object and purpose. Accordingly, “the Judiciary must exercise a sort of ‘conventionality control’ between the domestic legal provisions which are applied to specific cases and the American Convention on Human Rights. To perform this task, the Judiciary has to take into account not only the treaty, but also the interpretation thereof made by the Inter-American Court, which is the ultimate interpreter of the American Convention.”[4]

 

8.                  Furthermore, according to the principle of the continuity of the State in international law, irrespective of any changes of government that may have occurred over the course of time the State’s responsibility for human rights violations committed by previous governments persists.[5]  In its first judgment delivered against the Haitian State, the Inter-American Court repeated its jurisprudence constante to the effect that “the conditions that a country is undergoing, no matter how difficult they may be, do not constitute grounds for the States Parties to the American Convention to be released from complying with the obligations established therein.”[6]  It wrote in this regard that “the principles of identity or continuity of the State are fundamental when determining its responsibility, irrespective of the political moment in the country when the alleged violations of the provisions of the American Convention occurred.”[7]

 

9.                  As the IACHR and the Inter-American Court have held, a State has an international obligation to investigate and punish serious human rights violations, even those that occurred prior to the date on which the American Convention entered into force for that State.[8]  Accordingly, the Haitian State’s duty to investigate and punish extends to those serious violations that occurred prior to July 18, 1978, the date on which the American Convention entered into force, and that have gone unpunished.  The IACHR also recalls that OAS member States have an international obligation to guarantee the human rights recognized in the American Declaration of the Rights and Duties of Man, adopted in 1948.

 

II.       NON-APPLICABILITY OF STATUTORY LIMITATIONS TO CRIMES AGAINST HUMANITY

 

10.              Crimes against humanity were defined for the first time in the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgement of the Tribunal, adopted by the International Law Commission of the United Nations in 1950.  The United Nations General Assembly approved these principles before the regime of Jean-Claude Duvalier ever began in Haiti.  This confirms the fact that the prohibition of crimes against humanity had already acquired jus cogens status at the time the aforementioned gross violations of human rights were committed in Haiti.[9]

 

11.              The Inter-American Court acknowledged that the Nuremberg Charter played an important role in establishing the elements that characterize a crime as a “crime against humanity.” Accordingly, for the inter-American system, crimes against humanity are any inhuman act, committed in a context of generalized or systematic attacks against civilians.  Even one such act, when committed in the context described, would suffice for a crime against humanity to exist.[10]  Crimes against humanity are gross violations of human rights that affect humanity as a whole. The damage caused by these crimes endures within the national society and the international community, both of which demand that those responsible be investigated and punished.[11]

 

12.              The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity clearly provides that “[n]o statutory limitation shall apply to [crimes against humanity], irrespective of the date of their commission.” The Inter-American Court has written that States that have not ratified that Convention, as in the case of Haiti, must nonetheless comply with this imperative of the law, as “the non-applicability of statutes of limitations to crimes against humanity is a norm of General International Law (ius cogens), which is not created by said Convention, but is acknowledged by it.”[12]

 

13.              The jurisprudence constante of the Inter-American Court holds that “all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.”[13] On the subject of crimes against humanity, the Inter-American Court has written that “the duty to investigate and eventually conduct trials and impose sanctions, becomes particularly compelling and important in view of the seriousness of the crimes committed and the nature of the rights wronged.”[14]

 

14.              Thus, it is clear that the torture, extrajudicial executions and forced disappearances committed during the regime of Jean-Claude Duvalier constitute crimes against humanity that must not go unpunished, are not subject to any statutory limitations and, as will be shown below, cannot be the subject-matter of amnesty.[15]  The State must remove all obstacles standing in the way of compliance with the obligation to investigate and punish those responsible, such as statutory limitation, the non-retroactivity of criminal law and the principle of non bis in idem, and must use every means at its disposal to conduct the investigation expeditiously.[16]

 

III.      AMNESTY LAWS

 

15.              The combined case law of the inter-American human rights system holds that amnesty laws for serious human rights violations are incompatible with the American Convention.[17]

 

16.              The first time the Inter-American Commission addressed the question of amnesty laws was in its 1985-1986 Annual Report.[18] In 1992, the Commission issued a series of decisions on individual cases in which it held, for the first time, that amnesty laws are incompatible with the American Convention.[19]  Since then, both the Inter-American Commission and the Inter-American Court have had occasion to elaborate upon their case law on this subject.

 

17.              States that adopt laws whose effect is to deny judicial protection and exercise of the right to a simple and prompt recourse are violating articles 8 and 25 of the American Convention, in combination with articles 1(1) and 2 thereof.  Such laws lead to the defenselessness of victims, precludes the identification of the individuals who are responsible for human rights violations and perpetuate impunity.  Hence, because amnesty laws are manifestly incompatible with the American Convention, they lack legal effect and must not obstruct the investigation of serious human rights violations and the identification and punishment of those responsible.[20]

 

18.              Crimes against humanity violate a number of non-derogable rights recognized in the American Convention, violations which must not go unpunished.  The adoption and enforcement of laws that grant amnesties for these crimes prevents compliance with the obligation that every State has to investigate crimes against humanity and prosecute persons accused of having committed them.[21]  The Inter-American Court has written that the obligation under international law to prosecute and, if found guilty, punish “the perpetrators of certain international crimes, among which are crimes against humanity, is derived from the duty to protect embodied in Article 1(1) of the American Convention.””[22]

 

19.              All regional human rights systems have held that amnesties for serious human rights violations are incompatible with international law.  Similarly, the supreme courts of a number of members of the Organization of American States have incorporated this jurisprudence into their own case law, thereby observing in good faith their international obligations.[23]

 

20.              As the Inter-American Commission had requested in its final observations in the Case of Gelman, the Inter-American Court held that the fact that an amnesty law has been upheld in a popular referendum does not make it legitimate under international law.  In its judgment, the Court ruled that “the protection of human rights constitutes an insurmountable limitation to majority rule, that is to say, to the sphere of things that are “susceptible to being decided” by a majority in the context of democratic initiatives” (the Executive Secretariat’s translation).[24]

 

21.              Finally, when the Legislative Branch adopts laws that are contrary to the American Convention, the Judicial Branch is bound to honor the obligation to respect rights, as stated in Article 1(1) of the said Convention; consequently, it must refrain from enforcing any laws contrary to that Convention.[25]

 

IV.       Inter-american STANDARDs

 

22.              The Commission will now briefly turn its attention to the case law of the Inter-American Court on the subject of forced disappearance, extrajudicial execution and torture.  The purpose of this summary is to provide the Haitian justice system with a guide to use in the investigation and punishment of the serious human rights violations committed during the regime of Jean-Claude Duvalier.

 

-          Forced disappearance

 

23.              The inter-American system was one of the first to build a body of comprehensive case law on the continuing and autonomous nature of the crime of forced disappearance of persons.

 

24.              In one of its earliest judgments, the Inter-American Court wrote 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 and guarantee.”[26]  These are the rights to life, to personal liberty, and to humane treatment.  The Court has also written that forced disappearance also involves a violation of the right to juridical personality.[27]  The elements constituting forced disappearance are: a) deprivation of liberty; b) direct involvement of governmental agents or their acquiescence; and c) refusal to acknowledge the detention and to disclose the fate and whereabouts of the person concerned.[28]

 

25.              The established case law holds that the acts that constitute a forced disappearance have a permanent nature and that their consequences imply multiple offenses to the rights recognized by the American Convention, so long as the whereabouts of the victim or his/her remains is unknown.[29]  Correspondingly, the obligation to investigate and punish forced disappearance of persons has attained the status of jus cogens.[30]

 

26.              A State’s international responsibility is compounded when “the forced disappearance forms part of a systematic pattern or practice applied or tolerated by the State”, thus making it “a crime against humanity involving a gross rejection of the essential principles on which the inter-American system is based.”[31] In order not to replicate the conditions of impunity, the State must adopt all measures necessary to investigate and punish those responsible.[32]

 

27.              The obligation to undertake an investigation any time there are reasonable causes to suspect that a person has been submitted to forced disappearance “exists regardless of the filing of a complaint, since in cases of forced disappearance international law and the general duty to guarantee, impose the obligation to investigate the case ex officio, without delay, and in a serious, impartial, and effective manner.”[33] The obligation to investigate  persists until the person deprived of liberty or his or her remains have been found.  In the case of presumption of death due to forced disappearance, the burden of proof falls upon the State, as it is the State that had the alleged control over the detained person and their fate.[34]

 

-          Extrajudicial execution

 

28.              According to the jurisprudence constante of the inter-American system, “[t]he right to life is a fundamental human right, and the exercise of this right is essential for the exercise of all other human rights.  If it is not respected, all rights lack meaning.”[35] The right to life is one of the rights that form part of the non-derogable core established in Article 27(2) of the American Convention; these are rights that cannot be suspended in case of war, public danger or other threats to the independence or security of the States Parties.[36]

 

29.              The legitimate use of force by State law enforcement officials must be limited by the principles of exceptionality, necessity, proportionality and humanity.  Furthermore, domestic law must establish clear guidelines regulating the use of force, and the State must train its law enforcement officials on the protection of human rights and the limits to which the use of weapons must be subject.  Finally, procedures must be in place to determine whether the lethal force used by agents of the State was legal.[37]

 

30.              In cases involving a pattern of extrajudicial executions tolerated and promoted by the State, the Inter-American Court has deemed that the State is responsible for having created a climate incompatible with the effective protection of the right to life.  In this sense, “the States must take all necessary measures not only to prevent and punish deprivation of life as a consequence of criminal acts, but also to prevent arbitrary executions by its own security forces.”[38] Murders committed within the context of a generalized or systematic attack against the civil population constitute crimes against humanity.[39]

 

31.              The investigation into a death that may have been by extrajudicial execution “must be conducted using all legal means available and should be aimed at establishing the truth and conducting the investigation, search, arrest, trial, and punishment of all masterminds and actual perpetrators of the crimes, especially when State officials are or may be involved.”[40] Thus, the obligation to investigate extrajudicial executions committed in a context of systematic acts of violence committed against a specific group within society is not a question of examining the crime in isolation, “but rather of inserting it in a context that will provide the necessary elements to understand its operational structure.”[41]

 

32.              The principles that can be used to determine whether the investigation of a presumed extrajudicial execution was properly done, are those contained in the United Nations Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (Protocol of Minnesota). Based on that manual, the Inter-American Court has singled out the principles that such inquiries must observe.  The State authorities that conduct the investigation must: a) identify the victim; b) collect and preserve evidence related to the death in order to assist with any investigation; c) identify possible witnesses and obtain testimonies in relation to the death under investigation; d) determine the cause, manner, place and time of death, as well as any pattern or practice which may have brought about such death, and e) distinguish between natural death, accidental death, suicide and homicide.[42] 

 

33.              As for persons in the custody of the State, the latter is responsible for observing those persons’ right to life, as it is the guarantor of the rights recognized in the American Convention. Accordingly, “if a person was detained in good health conditions and subsequently died, the State has the obligation to provide a satisfactory and convincing explanation of what happened.”[43]

 

-          Torture

 

34.              International human rights law strictly prohibits torture and cruel, inhuman or degrading punishment or treatment.  The Inter-American Court has repeatedly held that “[t]he absolute prohibition of torture, both physical and psychological, is currently part of the domain of the international jus cogens.”[44] The prohibition of torture “is absolute and non-derogable, even in the most difficult circumstances, such as war, the threat of war, the fight against terrorism, and any other crime, martial law or state of emergency, civil war or commotion, suspension of constitutional guarantees, internal political instability, or any other public disaster or emergency.”[45]

 

35.              An act constitutes torture when the mistreatment is: a) an intentional act; b) causes severe physical or mental suffering, and c) is committed with a given purpose or aim.[46]  The obligation to guarantee the right recognized in the American Convention not to be subjected to torture or cruel, inhuman or degrading treatment or punishment entails the State’s obligation to investigate possible acts or torture of other cruel, inhuman or degrading treatment.[47]

 

36.              Even when the use of torture or cruel, inhuman or degrading treatment has not been reported to the competent authorities, whenever there is well-grounded reason to believe that an act of torture has been committed the State has the obligation to commence, on its own motion, an effective, impartial, independent and detailed investigation to determine the nature and origin of any injuries noted, identify the responsible parties and begin their prosecution.[48]  The State must consider that out of fear the victim may have refrained from reporting what happened.  The judicial authorities have the duty to guarantee the rights of the person detained, which entails obtaining and ensuring the authenticity of any evidence that can prove acts of torture.

 

37.              Finally, in order to determine whether an investigation into alleged acts of torture is effective, the State may use the United Nations Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, contained in the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol).[49]

 

V.        Conclusions

 

38.              As a State Party to the American Convention, the Republic of Haiti has an international obligation to investigate and, where necessary, punish those responsible for the gross human rights violations committed during the regime of Jean-Claude Duvalier. The Constitution of Haiti provides that the American Convention is part of Haitian domestic law and abrogates any and all laws that are contrary to the American Convention.

 

39.              According to the documentation available, the government of Jean-Claude Duvalier was characterized by systematic violations of human rights such as extrajudicial executions, forced disappearances and torture.  Under international law, such acts constitute crimes against humanity. The prohibition of such crimes, the fact that they are not subject to any statutory limitations, the obligation to investigate and punish them, and the absolute prohibition of torture, are now part of the jus cogens.  In other words, these are imperative norms that States cannot fail to comply with.  Accordingly, amnesty for such crimes is prohibited and the State must remove all obstacles that stand in the way of its compliance with its international obligation.

 

40.              Haiti now has a unique opportunity.  The investigation and punishment of these crimes could become a fundamental step in strengthening the rule of law and restoring confidence in the Haitian justice system, and an example of good faith compliance with international commitments.  The Inter-American Commission is aware of the significant challenges faced by the Haitian judiciary considering the unprecedented magnitude of these crimes, the fact that they happened three decades ago, and the overall weakness of the judicial system, particularly in the difficult context of a reconstruction process.

 

41.              Taking these difficulties into account, the Commission once again compliments the Haitian State for the judicial investigations it has either opened or reopened following the return of Jean-Claude Duvalier to Haiti, and for its public acknowledgment to the effect that these investigations are a priority for the State.  The IACHR urges the Republic of Haiti to use every means available to continue to investigate the serious violations of human rights that were committed in the period from 1971 to 1986, to prosecute and punish those responsible and to make reparations to the victims.

 

42.              The Inter-American Commission is aware of the dilemma that the Haitian State is facing and recognizes that the international community’s support and commitment are essential if Haiti is to be able to successfully prosecute and punish those responsible for these crimes.  Accordingly, the IACHR urges the international community to offer full assistance to Haiti at this historical juncture for the Haitian justice system.

 

Washington DC, May 17, 2011.

 

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