Prosecuting Duvalier for Crimes Against Humanity

The return of former Haitian dictator Jean-Claude ('Baby-Doc') Duvalier to Haiti has revived calls for him to be brought to justice. For years, Duvalier has been on the shortlist of former tyrants who had managed to escape prosecution, finding a comfortable retirement in a receptive home. In Duvalier's case, for many years this was France, the country that brought Haiti to its knees and kept it there for more than a century.

Père et fils

Since Duvalier landed in Haiti, I have been receiving calls and e-mails from friends and colleagues in that country asking about the possible legal difficulties involved in prosecution. A huge fog of debate has been created in Haiti by Duvalier supporters, who invoke a range of tired arguments in order to suggest that Duvalier cannot be punished, or that his liability may be limited to economic crimes.
There is a strong case that Duvalier was responsible for crimes against humanity. Crimes against humanity, involving persecution and other forms of attack directed against any civilian population have been punishable under international law since Nuremberg. The precedents at Nuremberg linked crimes against humanity to aggressive war, and Duvalier's lawyers will have an argument that this limitation on the scope of crimes against humanity persisted until after he had left power. There has been no credible argument since the 1990s that crimes against humanity could not be committed in peacetime.
There is much authority to suggest that the link between crimes against humanity and aggressive war had disappeared by the time of the Duvalier regime. I would not expect international judges to sustain an argument to the contrary.
Apparently Haitian law does not contain a provision governing prosecution for crimes against humanity. This can be easily rectified by the adoption of new legislation. Could such legislation operate retroactively? Article 11(2) of the Universal Declaration of Human Rights says: 'No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed.' Thus, the test for retroactivity is not whether the crime existed under Haitian law at the time it was committed but whether it was part of international law. Nuremberg answers that question.
The text of article 9 of the American Convention on Human Rights might be considered: 'No one shall be convicted of any act or omission that did not constitute a criminal offense, under the applicable law, at the time it was committed.' The reference to 'applicable law' rather than 'national or international law' is noteworthy. But the preamble of the American Convention cites the Universal Declaration of Human Rights. The Inter-American Court of Human Rights will consider 'applicable law' to include 'international law'. 
The Nuremberg precedent adopts that view that crimes of such horror were contrary to fundamental principles of humanity, and that the prospect of punishment for such crimes should have been known to the perpetrators. More recently, international case law takes the view that the accused person can only be punished for crimes that were 'accessible' and 'foreseeable'. Duvalier will have a hard time claiming that this was not the case with respect to the various acts with which he is charged during his regime.
There can be no issue of immunity from the standpoint of international law. The International Court of Justice established that clearly in the case of Democratic Republic of the Congo v. Belgium, of February 2002. It confirmed that a state may always prosecute its own leaders. Some states have their own constitutional provisions on this, but it is something that can always be changed, even retroactively.
There is also an issue of 'prescription' or statutory limitation. Haiti's criminal law provides for statutory limitation of various crimes. But since it has no provision for crimes against humanity, nothing in its law establishes a statutory limitation. It is well-accepted that crimes against humanity should not be subject to statutory limitation.
Thus, it seems likely that some housekeeping in Haitian law may be required in order to facilitate prosecution of Duvalier. But Haitians should not be concerned that some legal loophole can shelter Duvalier from prosecution. All that is required, now, is some political will coupled with judicial energy.