Developments in recent weeks once more highlight the under-appreciated complexity of the relationship between human rights organisations, democratising regimes and processes of international accountability. On Monday last, Egyptian civil rights lawyers demanded the death penalty for former President Hosni Mubarak on Monday, joining prosecutor’s calls for him to be executed. On the other hand, a coalitions of international NGOs (the Open Society Justice Initiative, International Commission of Jurists, Lawyers without Borders, Canada, the International Center for Transitional Justice) attempted to stimulate a reluctant Haitian government in Port-au-Prince to prosecute its former dictator, Jean-Claude “Baby Doc” Duvalier for crimes against humanity through an amicus curiae brief to the national prosecutor laying out the basis for prosecution under international law, arguing that the case is not covered by a local statute of limitations. Despite arriving in Haiti 367 days ago, Duvalier has yet to be charged with any crimes, though halting legal proceedings are underway. None of this is to argue that either Cairo or Port-au-Prince are guided by humanitarian principles – it is likely the former are guided by a desire to shore up their shaky legitimacy in light of the renewed Tahrir Square protests, while the right-wing candidate Michel Martelly, who became Haiti’s newest President this past May and who has historical (and current) ties with Duvalier loyalists, has called for amnesty for Duvalier. It is argued that his failed nomination for Prime Minister of Bernard Gousse–who has publicly argued against prosecuting Duvalier and as Haiti’s former justice minister directed political persecution under the 2004-2006 dictatorial “Interim Government”– signal the lack of political will to bring Duvalier to justice. Significantly, efforts for criminal accountability are buttressed by the ongoing presence of United Nations Stabilisation Mission (MINUSTAH), of which human rights is one of four components of a strong rule of law mandate, which has served to reduce the impact of potential instability that often militates against prosecution.
What the contrast between the two countries does tend to suggest is that power politics still plays a more significant role in transitional justice policy in many countries than the widely believed justice cascade described the Sikkink, Walling and Lutz, who effectively argue the development of human rights norms and institutions have rendered balance of power considerations largely redundant. They have contended that ongoing norm penetration, public debate and pressure that human rights activists can muster at international and domestic level have mitigated the unwillingness of nascent democracies (who care about what other states are doing and global normative trends) to deal with issues of the past. The experience of Egypt tends to suggest that sometimes the desire to secure accountability has nothing to do with the efforts of human rights activists, while events in Haiti demonstrate that in certain circumstances human rights organizations and civil society can play an important role in stimulating accountability, but politico-military balances remain determinative.
It is worthwhile briefly exploring both processes, the first advanced and the other impeded. On 24 May 2011, Mubarak was ordered to stand trial on charges of premeditated murder of peaceful protestors during the 2011 Egyptian ‘revolution’. The full list of charges released by the public prosecutor was “intentional murder, attempted killing of some demonstrators…misuse of influence and deliberately wasting public funds and unlawfully making private financial gains and profits.” Amnesty International has estimated more than 840 protesters were killed and 6,000 injured. The prosecutor’s spokesman, said the prosecutor’s estimate of 225 deaths and more than 1,300 injured is lower “because there has been a differentiation between those killed outside police stations while attacking the precinct and those shot while protesting.” The trial of Mubarak and his two sons Ala’a and Gamal, along with former interior minister Habib el-Adly and six former top police officials began in August. The prosecutor made his closing arguments at last week’s hearing and demanded the death sentence to Mubarak. It is hard to argue this move has been influenced by human rights concerns – the use of the death penalty is regarded as anathema by most human rights organisations, while the military council, has drawn growing criticism from HRNGO’s over its crackdown on critics in the aftermath of the uprising. For example, four activists, members of an offshoot of the April 6 youth movement that helped mobilise the revolt against Mubarak and has since been campaigning for a return to civilian rule, were detained on Tuesday while hanging up posters comparing heroic images of soldiers after the 1973 war with Israel with pictures of troops beating women in Cairo during protests last month, according to a member of the group. Even where deotological arguments for human rights accountability falls on infertile grounds, accountability for human rights abuses has an instrumental purpose in grounding new political arrangements.
On January 18, 2011, five days after he returned from 25 years in exile, Duvalier was taken into custody at his hotel by Haitian authorities. Investigations were opened in relation to corruption, theft, and misappropriation of funds committed during his 15-year presidency. Since his return, at least 22 individual citizens have filed criminal complaints alleging that Duvalier committed widespread and systematic attacks against civilians, amounting to crimes against humanity, including allegations of extrajudicial killings, torture and enforced disappearances. Duvalier’s lawyers have used Haiti’s airwaves to inaccurately assert that his prosecution is time-barred. Under Haitian criminal law, the proceedings for Duvalier’s financial crimes can advance because of the ongoing prosecution of the case from 1986 to 2008. And political killings, disappearances, and torture constitute grave human rights abuses and crimes against humanity, none of which are extinguishable under the American Convention on Human Rights. Nearly 50,000 Haitians were killed under the combined reign of father and son. Duvalier and his profligate wife, Michèle Bennett, looted hundreds of millions of dollars while the Haitian people starved, forcing Haiti to become dependent on foreign aid. The state prosecutor has referred these additional complaints to the juge d’instruction for further investigation. The role, formal and informal, of MINUSTAH, will be essential in securing accountability. It remains an open question whether accountability could have been pursued without its steadying influence.