By Irwin P Stotzky
Op-Ed Contributor

Two years and two months after a devastating earthquake struck Haiti killing approximately 350,000 people, leaving several million homeless and destroying thousands of buildings, including most of the landmark buildings in Port-Au- Prince, Haiti stands on the precipice of another disaster. The issue is whether the justice system can function in a manner that assures some semblance of justice, or will continue to allow those who have committed massive human rights abuses impunity. As it has historically, impunity continues to rule the day.

Indeed, while there have been many instances of massive human rights crimes in Haitian history, there have been a paucity of human rights prosecutions. In 1991, shortly after President Aristide, the first democratically-elected president in the nearly 200-year history of Haiti, officially took office, he was ousted by a coup.

A reign of terror then took place, resulting in the murders of approximately 5,000 of Aristide’s supporters. One of his main financial backers, Antoine Izmery, was pulled out of a church and assassinated in broad daylight. Upon Aristide’s reinstatement to office in 1994,  the Haitian government brought his killer to justice. This was the first successful prosecution of a human rights violation in Haitian history. But the convicted murderer somehow disappeared and was never incarcerated for any length of time.

In 1994, at least 23 of Aristide’s supporters were killed by paramilitary forces in a town on the west coast called Raboteau. In 2000, after Aristide was elected President for the second time, 16 of the murderers were prosecuted and convicted of murder.  Unfortunately, after another coup removed Aristide from power in 2004, Haiti’s Supreme Court overturned 15 of those convictions. Presently, impunity remains the gold standard of the Haitian justice system.

The attempted prosecution of “Baby Doc” Duvalier has not gone well for those seeking justice.  On Jan. 30, 2012, more than a year after Duvalier returned to Haiti, the investigating judge concluded his investigation of the dictator’s brutal 1971-1986 reign of terror.

The judge had reams of documents, including human rights complaints, direct testimony of torture victims, copies of international bank transfers and checks, and even diary entries from former political prisoners.

The uncontested evidence proves that the army and Tontons Macoutes committed massive human rights abuses as part of a systematic attack against the civilian population, including the murders of at least 30,00 people, and that the Duvalier regimes gave the orders and offered immunity for their operatives.

But the investigating judge nevertheless ruled that all human rights charges against “Baby Doc” be dropped, claiming that the statute of limitations had run on Duvalier’s crimes against humanity and barred a prosecution for those crimes.  He did rule that Duvalier could be tried on financial corruption charges.

The dismissal of crimes against humanity is clearly legally, and certainly morally, wrong. Indeed, the decision is a judicial disgrace. It completely ignores the decisions of the Inter-American Court of Human Rights, to which Haiti is bound through its ratification of the American Convention on Human Rights.

Under international law, there is no time limit—no statute of limitations can be applied—on crimes against humanity. But one can certainly understand the judge’s reluctance to charge Duvalier with crimes against humanity. There is no doubt that he and his family were threatened in subtle and not so subtle ways by Duvalier’s associates. An appeal has been taken but the chances for a reversal are problematic.

The trial of Duvalier could be the most significant human rights case in Haitian history. It could actually help to create institutions which function in a democratic manner. It could help the majority of the Haitian people secure some sense of justice.

It could be a positive step away from authoritarianism and toward democracy. But for that to happen, justice must triumph over impunity.

Irwin Stotzky, a professor at the University of Miami School of Law, has served as the attorney and advisor to former Haitian President Jean-Bertrand Aristide, and as an advisor to former Haitian President Rene Preval. Stotzky organized and directed the investigations into the massive human rights violations committed in Haiti from 1991-1994, and has represented Haitian and other refugees on constitutional issues including in the United States Supreme Court.

Note: the opinions expressed in Caribbean Journal Op-Eds are those of the author and do not necessarily reflect the views of the Caribbean Journal.