Institutional Reform, Including Access to Justice:
International Aspects of Current Efforts at Judicial Reform: Undermining Justice in Haiti

Chair: Juan Méndez, Inter-American Institute of Human Rights
Paper: Reed Brody, Esq., USA
Discussant: Leonardo Franco, UNHCR; Former Director, UN Mission to Guatemala

The Helen Kellogg Institute for International Studies
Workshop on The Rule of Law and the Underprivileged in Latin America
9-11 November 1996

Brody contextualized the current efforts at judicial reform in Haiti: historically, repressive rulers and their henchmen have not been brought to justice. President Aristide-now that his government has been restored-has declared his intention to seek justice for victims of the excesses of the reign of terror that began after the 1991 coup. The restoration of an independent judiciary is vital to this task. To date, however, few offenders have been brought to book; Haitians have little confidence in the system.

Indeed, legal practitioners are drawn from the small upper stratum of Haitian society and are frequently unable to represent the interests of poorer clients; disarmament of former soldiers and paramilitary agents has been slow, inhibiting people from coming forward to denounce their repressors; government efforts at investigation and prosecution are inconsistent. A "truth commission" diverted attention and resources away from prosecutions. Its report has never been released.

The international community, particularly the United States, is also responsible for this state of affairs. It has refused to help the government in its effort to bring offenders to book, yet has offered generous support for other aspects of "judicial reform." US agencies have had no contact with Haitian human rights groups in their activities.

Role of International Actors in the Fight against Impunity

The United States attempted to pressure President Aristide to grant an amnesty to the coup leadership. It even went so far as to make a unilateral offer of amnesty. US troops allowed top criminals to leave, and where Haitian authorities made arrests, US officials intervened to secure their release. US forces seized 160,000 pages documenting killing and torture and shipped them to the Pentagon. The United States has said that it will restore them only after it has deleted or removed names or other information identifying individual US citizens. The United States has refused to return Emmanuel Constant, a leading offender, despite a court finding that he was deportable.

Other international actors have not offered the Haitian government assistance in securing prosecutions. The UN/OAS Civilian Mission in Haiti has found it to be outside of its mandate to help the government of Haiti to prosecute human rights crimes.

Former Minister of Justice Guy Malary was murdered in 1993. The chief of police, a prime suspect, was allowed to slip away by US forces. An accomplice, Marcel Morissant, was arrested in Haiti but sprung from jail. Two hitmen were tried, but the evidence against them was insufficient since the United States blocked access to army and police records.

Conclusions

The interest of donor countries in "judicial reform" has not coincided with the Haitian interest in securing prosecutions. Haitians have not been consulted. International and US assistance has been directed so as to meet the priorities of donor countries, rather than those of Haiti.

 

Discussant's Comments (Leonardo Franco)

Franco offered the diagnosis that many programs of judicial reform have been ill matched to the particular problems presenting in the societies in which they have been adopted. This is the case in Haiti: "quick fix" solutions which fail to connect judicial reform efforts with human rights violations and which do not include consultation with sectors of civil society are bound to fail. Judicial reform is not neutral. Rather, it is susceptible to the interests of political actors.

International Efforts in Judicial Reform

International actors have recognized the importance of judicial reform programs in the post-conflict peace building, recovery, and reconstruction phase. Fortunately, such actors are also both realizing the importance of maintaining a sensitivity toward the local contexts in which reform efforts are undertaken and addressing judicial reform as part of a comprehensive sector strategy. For example, efforts to educate a judiciary that lacks independence will be insufficient if the root political causes of a lack of judicial independence are not addressed.

Efforts of the UN Mission for the Verification of Human Rights in Guatemala are instructive. The mission has provided technical and financial support to institutions relevant to the protection of human rights, with a view to ending a long tradition of impunity. A "comprehensive sector" approach was adopted: The mission consulted with civil society in order to diagnose the problems faced, facilitated the enactment of a new criminal procedure code, and addressed issues of access to justice, and human rights education, promotion, and dissemination. Sufficient political will, maintained by ongoing publicity regarding the process, has meant that the mission's approach has yielded tangible benefits to human rights protection in Guatemala.

Conclusions

Judicial reform cannot be divorced from reforms in other sectors: A comprehensive sector approach is vital. Ongoing consultations with communities affected are necessary to effectively diagnose the problems targeted and maintain a foundation of political support.

 

Floor Discussion

Méndez warned against viewing the rule of law as a non-neutral or relative concept. International actors and donor countries could find themselves without any standards to use as benchmarks against which to measure the performance of recipient states. This would have implications for the practice of setting preconditions for aid.

Brody asserted that some principles are universal by their very nature-for example, the Universal Declaration of Human Rights and doctrines of international law. Where, however, the local focus of aid is under consideration, greater weight should be given to local preferences. The decision about whether to grant aid can, however, remain subject to overriding standards or conditions-for example, that there be present the political will to accept and implement measures in a recipient state. Formal independence of the judiciary may also be such a condition. He drew upon the example of UN peacekeeping operations which have linked technical assistance to their monitoring role in order to "leverage" assistance and ensure that conditions were met.

Felipe Michelini (Representante Nacional, Uruguay) wished to know whether there was a link between the truth commission and judicial reform in Haiti. Brody replied that the Haitian truth commission has hardly been a success: its report was yet to emerge, and many prosecutions had lapsed. Christopher Larkins wanted to know how the judiciary could be strengthened in states where a strong military or a dominant presidency had been the order of the day. Jorge Correa viewed the paper as emphasizing the importance of judicial reform as a goal pivotal to further reforms. Addressing these points, Brody stressed that the principal concern of people in Haiti was whether their tormentors would be brought to justice. He was, however, hesitant to advocate that donors should intervene in recipient states so as to alter the political balance among judiciary, presidency, and military-though he again raised the matter of whether or not formal independence of the judiciary might be stipulated as a precondition of aid.

The unique nature of Haiti was stressed by Henry Raymont (Syndicated Columnist, Washington DC). He referred both to the manner in which Haiti was regarded by the United States, and to the role of the Black Caucus in the US Congress. Brody concurred that Haiti was indeed exceptional, in the sense that the events in that country were largely a result of US intervention-but for US intervention, President Aristide would not have been restored to power.