One thing is certain, we will not be able to move forward without looking at the traces of the past. “Bay kou bliye, mate mak sonje”…
Over the last three days, I was particularly happy to participate in a regional meeting of experts around the issue of transitional justice.
In its resolution 51/23 on “human rights and transitional justice” adopted on October 7, 2022, the Human Rights Council requested the Office of the High Commissioner for Human Rights to develop a report on good practices and lessons from transitional justice in the context of peacekeeping and sustainable development.
Transitional justice mechanisms have been particularly mobilized in recent years in Latin America and the Caribbean, with more or less mixed results, varying depending on the country, which is particularly interesting to study.
I was asked to intervene in this context to present the initiatives carried out in Haiti, analyze their results over the years, and the challenges that such an approach would face if it were to be mobilized in the future.
- The Haitian context
I would like to start with an observation that deserves to be questioned: this notion of transitional justice is practically unknown in Haiti, even though the country has experienced particularly troubled times over the last forty years (not counting the previous period of dictatorship).
If a period of “democratic transition” began with the adoption on March 29, 1987 of a new Constitution, we have not yet emerged from the transition, and, on the contrary, we even seem to have lost ourselves in it. The country experienced all kinds of democratic ruptures during this period. On three occasions, in 1988, in 1991, and in 2004, the President-elect was forced into exile.
A multitude of interim governments emerged: Military juntas in 1987, 1988, 1990, and from 1991 to 1994; an executive headed by a judge of the Court of Cassation in 1990, or by its President, from 2004 to 2006, by the President of the Senate, from 2016 to 2017, or even by a Prime Minister designated by the President three days before his assassination , since 2021. We no longer count the number of times where the executive, de facto or not, has declared for its benefit and in the absence of elections, the deficiency of legislative or municipal power, at the same time assuming full powers .
If a period of “democratic transition” began with the adoption on March 29, 1987 of a new Constitution, we have not yet emerged from the transition, and, on the contrary, we even seem to have lost ourselves in it.
During this same period, Haiti welcomed on its soil all the variations of the international missions of the UN: Joint UN-OAS International Civilian Mission (MICIVI, in 1993); United Nations Mission in Haiti (MINUHA, from 1993 to 1996). The deployment in 1994 of a multinational force of 20,000 members was followed by a series of successive missions from 1996 to 2001: United Nations Support Mission in Haiti (UNSMAH); United Nations Transitional Mission in Haiti (MITNUH), United Nations Civil Police Mission in Haiti (MIPONUH). From 2004, a major mission was set up with a military component, the United Nations Stabilization Mission in Haiti (MINUSTAH). Renewed from year to year, she herself comments on her website, having, I quote, “successfully completed her mandate” in October 2017.
Since that date, the situation has significantly deteriorated, accompanied in this dynamic by two reduced models, essentially political: the United Nations Mission for Justice Support (MINUJUSTH), then the United Nations Integrated Office in Haiti (BINUH). After much procrastination, the Security Council finally adopted resolution 2699 on October 2, 2023, authorizing a Multinational Security Support Mission (MMAS), which has not yet seen the light of day.
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The last 35 years have been marked by serious accusations against successive powers, each of which has contributed in its own way to the weakening of the rule of law, accusations of serious corruption and massive violations of human rights. However, it must be noted that, faced with all this disorder, the transitional justice mechanisms were only mobilized once, in 1995, on the occasion of the return from exile of President Jean Bertrand Aristide.
- The National Truth and Justice Commission
This National Commission for Truth and Justice (CNVJ) set up by presidential decree had the mission “to generally establish the truth about the most serious violations of human rights committed between 1991 and 1994” by the military regime. The report entitled “Si m pa rele” submitted in 1996 demonstrates substantial investigative work on the circumstances, the different types of violations, the analysis of practices and structures of repression, the establishment of a list of victims and a list of alleged perpetrators.
The Commission analyzed thousands of cases of violations of the right to life, forced disappearances, summary executions, arbitrary detentions, attempted executions, threats and persecutions, rapes and sexual violence. She was also interested in violations of property rights, freedom of expression, association and assembly, repression against the media and journalists, and the systematization of repression against members of popular movements. , politicians, feminists, students or farmers, as well as the study of the massacre committed in 1994 in Raboteau against political opponents.
Watch this short documentary published by AyiboPost in January 2021 on the “Raboteau Massacre”:
If the Commission underlines in its report the fundamental nature of the action of justice to “escape collective amnesia” and “restore confidence in the State and in society”, it recognizes that it does not have any binding power, leaving it is up to the authorities to carry out the necessary follow-ups.
It is clear that these have not been done. The report was never officially released. More particularly, Annex IV containing the names of the perpetrators of the violations has “disappeared”, as has one of the members of civil society speaking for the victims…
Civil society organizations, however, initiated a single trial, that of the Raboteau massacre, which gave rise to a historic judgment of conviction in 2000, unfortunately overturned in cassation in 2005 without any further action.
The very idea of putting a regime on trial and prosecuting the perpetrators of serious human rights violations has since been simply abandoned. The “Kase fèy kouvri sa” movement seems to have won.
It is clear that these have not been done. The report was never officially released.
In a 2019 report addressed to the United Nations Human Rights Committee, the Haitian authorities explain that “the Government considered it necessary not to currently stir up the ashes of the past by resuming the trial” to the extent that, I quote, “victims and executioners coexist in harmony in relatively lasting social peace”…
- The emblematic trials of human rights violations
As I have no other examples of transitional justice mechanisms as such to present to you, I would like to additionally mention the rare occasions where truth and justice have crossed paths in recent years on the judicial scene.
Allow me to mention, without going into details, three emblematic trials: that of Jean-Claude Duvalier “and others”, buried at the investigation stage since 2014; that of the Saline massacre, committed in 2018 in this working-class neighborhood, in a context of popular mobilization, by armed gangs maintaining murky links with senior political leaders; that of the summary executions carried out in 2010 by police officers against defenseless detainees in the civil prison of Les Cayes, a trial held with the support of MINUSTAH and under the pressure of the revelations of an American journalist in the New York Times, and more to the establishment of a joint commission of inquiry.
Read also: Testimonies, investigations… understanding the massacres that occurred at La Saline
The results of these various trials are far from satisfactory. The first two never got beyond the training stage; that of Les Cayes prison led to a relatively light conviction of several police officers in 2012, revised downwards in a new trial in 2014. Four years after the events, no one responsible was in prison. Fourteen years later, none of the victims, despised throughout the trial, have obtained reparation.
These disputes join the disorderly piles of tens of thousands of files lost or forgotten in court registries, from the most anonymous to the most famous, such as the files of murdered activists and journalists, or that of President Monferrier Dorval. If they sometimes rise to the surface, as recently the case of the assassination of President Jovenel Moïse, it is in a political context which can only raise doubts about the independence and impartiality of the process. We also do not know what to think of the ramifications of the case before the American justice system, leading to successive convictions with significant sentences without sharing information on the case, in particular on the real motive of the crime and its real ramifications.
These “strategic” disputes collapse like others in the face of the dysfunction of the judicial system, to the point that one can wonder if these failures are not above all an objective sought by political actors to annihilate any possibility of putting them into effect. cause.
4. International sanctions
I would like to enrich this part with an opening that occurred on October 21, 2022 with the adoption by the Security Council of a resolution creating a sanctions regime supposed to “send a clear message to bad actors”, that is to say “to political and economic leaders who embezzle public money and finance gangs.” Sixteen months later, the Committee of Experts set up for this purpose has so far not published any list, except the names of a few notorious gang leaders. If in his final report preceding the renewal of his mandate in November 2023 he strongly pointed the finger at certain senior officials, in particular former President Michel Joseph Martelly, no follow-up has yet been given to these serious accusations .
Dozens of sanctions have, however, been adopted unilaterally by the United States, Canada, and the Dominican Republic.
These sanctions, adopted from time to time, indexing this or that personality on an individual basis, often announced by a simple tweet from diplomats, are assumed to be political decisions, having nothing to do with any judicial process. They do not respect the guarantees, but above all, have, far from any desire to
punish, than a cyclical claim to induce “changes in behavior”.
If these sanctions were able to arouse hope of moving the lines, this quickly diminished.
This blacklisting, sometimes very divergent depending on the country, giving very little substantive information on the charges made and the evidence gathered, has until now had no significant impact on the control of the cycle of violenc e and the restoration of democracy. Above all, he had no outlet in Haitian justice. Rather than the truth, it is an obfuscation of the political game that we are witnessing, accompanied by an increasingly pronounced lack of confidence in the international community, and its support for the de facto power that is increasingly contested, yet itself even
partially blacklisted by these sanctions.
- Lessons from past experiences, the opportunities offered by transitional justice and the challenges ahead
What to think of this assessment? That the transition we are experiencing today is almost the exact opposite of a dynamic of transitional justice: no search for the truth, no real credible legal prosecution, a deep contempt for the increasingly numerous victims abandoned to their fate every day , and no measures taken to guarantee non-repetition, on the contrary.
The solution is therefore perhaps precisely to start talking about justice and truth again by assuming the need to establish a breaking point, and to rely on the mechanisms of transitional justice to outline more lasting paths to exiting the crisis. . However, this is not without challenges and pitfalls.
I propose to outline four of them in the form of a conclusion.
The context of implementation
The institutional crisis continues to strengthen, with the remoteness of the possibility of organizing elections and the indefinite extension of governance without a mandate of the interim Prime Minister. Should we wait for a new legitimate power to put such a process in place? Can we design it with the current leaders or impose it in parallel with a new political transition? Who then might be able to install it? And with what guarantee of independence?
The period to consider, again.
Should we resume the study of the dictatorship which has been lacking until today? Start right after? Pick up the thread from the end of the work of the first Commission? Focus on the excesses that began after the earthquake, with the influx of squandered international money? Or on the Petrocaribe file, indexed for the embezzlement of billions of dollars? Circle the excesses of PHTK power, started with the election of Michel Joseph Martelly in 2011 and continued with that of Jovenel Moïse? Include his assassination, and look at this last interim period during which violence has never been more powerful?
The framing of the subject, then.
What types of violations to consider? Financial crimes? Attacks on the rule of law? The breakdown of public services, the bankruptcy of the prison system? The abandonment of the population in the face of natural disasters? Suspicious assassinations? Multiple gang violence? Massacres ? Abuses committed by the police, those committed by the population or vigilante groups as part of the popular revenge movement “Bwa Kale”? Which victims must be taken into account, when we could consider today that the entire population is impacted in one way or another? Which authors to target? How can we trace the web of links between economic and political leaders and gang abuses, and how can we ensure that the intellectual sponsors are truly identified? What about the responsibility of the “international community”, which has accompanied, voluntarily or reluctantly, all the excesses of recent years?
Finally, impact monitoring.
Haitians are skeptical about the establishment of a commission, because the last one was buried. How can we ensure that the report will not be misplaced again? That it will not be exploited by this or that political side? Should commissioners be given jurisdictional powers? Counting on the overhaul of the judicial system between now and then? Thinking about a Special Criminal Court, or an internationalized jurisdiction? …
Read also: Exclusive | Read the order of the investigating judge on the assassination of Jovenel Moïse
The journey is, once again, just beginning. But one thing is certain, we will not be able to move forward without looking at the traces of the past. “Bay kou bliye, mate mak sonje”…
This text is an intervention by Me Jacques Letang during the Latin America and Caribbean regional meeting on human rights and transitional justice processes held in Bogota from February 20 to 22, 2024 at the invitation of the Office of the High Commissioner for Human Rights. .
Par Jacques Letang
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