21641: Esser: Chamblain (fwd)

[Bob Corbett <corbetre@webster.edu>]

From: D. Esser torx@joimail.com

HaitiAction.net
http://www.haitiaction.net

April 29 2004

Chamblain
by Brian Concannon

Brian Concannon has worked on human rights in Haiti since 1995, first
with the United Nations, subsequently with the Bureau des Avocats
Internationaux, which represented the victims of the Raboteau
Massacre.


“Bay Kou Bliye…”
(Whoever gives the blow forgets….)

On April 22, the tenth anniversary of the Raboteau massacre, Louis
Jodel Chamblain surrendered to the Haitian National Police. Mr.
Chamblain had been convicted, in absentia, for murder for Raboteau
and for the execution of Antoine Izmery, a prominent businessman and
Aristide supporter, who was dragged out of a full church and shot in
1993. The surrender follows intense criticism by human rights groups
and members of the U.S. Congress of the de facto government's close
relationship with Chamblain and other convicted criminals. How the
authorities now handle the Chamblain case will tell much about their
overall respect for human rights.

The Raboteau and Izmery killings took place while Chamblain was the
#2 leader of FRAPH ("Front Révolutionnaire pour l'Avancement et le
Progrès Haïtiens"), a paramilitary organization he founded with
Emmanuel "Toto" Constant in 1993. FRAPH was responsible for thousands
of killings and beatings during Haiti's previous de facto
dictatorship (1991-1994). In the Raboteau trial, Mr. Chamblain was
convicted as an accomplice and under a command responsibility theory.
There was no evidence that he directly participated in the massacre,
but there was evidence that other FRAPH members did, and that
Chamblain created, armed and managed FRAPH precisely to carry out
operations like Raboteau. Conspiracy and command responsibility are
the same legal theories used to prosecute the leaders of Nazi
Germany, the leaders of the Rwandan genocide and Yugoslavia's
Slodoban Milosevic.

Mr. Chamblain was also a top leader in the rebel force that attacked
Haiti in February. The rebels executed police officers and ordinary
citizens accused of supporting the elected government, destroyed
courthouses and police stations, and let the criminals out of every
prison in the country. In March, Chamblain installed himself as a
"judge" in Cap Haitian, deciding on punishments for people who were
accused, but never got their day in a real court.

Back in 1994, Mr. Chamblain fled to the Dominican Republic when the
elected government was restored, and refused to return to Haiti for
his trials in 1995 and 2000. He was convicted twice of murder in
absentia ("in his absence"), meaning that a judge decided on the
basis of the available evidence, without Mr. Chamblain answering the
charges himself. Haitian law bends over backwards to protect in
absentia convicts' right to defend themselves: it allows them a whole
new legal proceeding, with no presumption of guilt holding over from
the the previous trial. In his new proceedings, Mr. Chamblain is
entitled to the same rights as any other criminal defendant: the
right to a lawyer, to present evidence and to question the evidence
against him. He is also entitled to a presumption of innocence until
proven guilty.

The victims of the Raboteau massacre and the Izmery assassination and
their families also have a right to justice. They are entitled to a
prosecutor who will vigorously pursue their accusations against Mr.
Chamblain, and a court that will fairly judge him. There is reason to
doubt that these rights will be respected in Haiti's current context.
Mr. Chamblain and his rebel allies appear above the law: they
effectively control large parts of the country, keeping the police
and even international peacekeepers out of many areas. The law says
Mr. Chamblain should have been arrested as soon as he entered the
country, but he circulated openly for two months, with no attempts to
arrest him. He turned himself in only under international pressure,
and even then he first negotiated a deal with the de facto government.

We do not know the precise arrangements of Chamblain's deal, but
Minister of Justice Bernard Gousse declared that Chamblain "had
nothing to hide." This sends a signal, especially to prosecutors who
are appointed by the Minister, that the Minister has already decided
on the outcome. 

Other signals have been sent: in March, the Raboteau case judge was
beaten, reportedly in retaliation for convicting Chamblain the first
time. The house of the Raboteau head prosecutor has been burned, most
of the victims and witnesses are in hiding. The prominent judge who
investigated the case is in fear for his life. The government has
made no attempt to arrest the 15-20 other Raboteau convicts released
from prison by the rebels. These include rebel leader Jean Tatoune,
and three former members of the military high command.

There are many ways the case against Chamblain can be lost. He could
prove his innocence in open court of course, but a prosecutor could
present the case just poorly enough, omit a critical piece of
evidence, or choose a sympathetic jury. The case could be dismissed
behind closed doors by an investigating judge or by an appeals court.
A technical "error" could be planted by a judge or prosecutor, and
later invoked to dismiss the case or start a long appeals process.

The de facto authorities can disprove doubts about their willingness
to bring Chamblain to justice by assuring a high quality proceeding
within the courtroom, and appropriate security outside the courtroom.
Mr. Chamblain's pre-trial proceedings and trial should rise to the
same standards as his original conviction in the Raboteau trial:
there should be extensive testimony by victims and witnesses,
including international experts on the operations of FRAPH and
paramilitary groups. There should be extensive written evidence,
including military documents, human rights reports and expert's
reports. Lawyers should be available for the accused and for the
victims, and a team of aggressive, competent prosecutors should
present the case to a well-chosen jury. The process should be an open
one, conducted primarily in Haitian Creole, broadcast on the radio
and television, and subject to observation and verification by
Haitian and international human rights groups. As in the original
Raboteau trial, the observers should be able to conclude,
unanimously, that the trial was fair to victims and accused alike.

There can be no fair trial within the courthouse if judges,
prosecutors, witnesses and victims cannot get there and back safely.
Gonaives and the rest of Haiti need to be controlled by the Haitian
National Police, not rebel gangs. The persecution of supporters of
the elected government must be stopped, and punished. Haiti's laws-
the Constitution and the criminal laws- must be proven stronger than
the rebels guns and machetes.
.