Abstract
Crimes against humanity involve not only a willing offender but often collaboration by government authorities as well. Besides threatening victims’ faith in others, their faith in government and social institutions is also threatened. In this article we examine victims’ perceptions of justice in order to obtain a better understanding of how to restore justice for victims following crimes against humanity. Based on qualitative interviews with victims of crimes against humanity, we explore the meaning and function of justice. The results support the Fairness Heuristic Theory of Justice, which considers justice judgements to be a determinant of trust in authorities. The article closes with recommendations for transitional governments.
Introduction
It is well established that criminal victimization can have a major impact on the individual and affect not only their well-being but also change their outlook on life. Crimes against humanity such as genocide and torture are very serious both from a legal standpoint and from the victim’s point of view. They involve not only a willing offender but often collaboration by government authorities in addition. The victim’s whole world is torn apart. In addition to threatening their faith in others, their faith in government and social institutions may be threatened. Unable to continue to justify the system in place, they will become refugees − fleeing from persecution in their country and seeking safety in another country.
Transitional justice addresses the move to democracy and peace following mass violence and gross violations of human rights (Lambourne, 2009). Justice has many faces, and criminal justice, or more specifically, the prosecution of those suspected to be the most responsible for the atrocities, is an important element of transitional justice. Other elements include reparation, institutional reform and truth commissions. An important question in transitional justice is how to restore justice for victims, as this is key to achieving sustainable peace (Bloomfield et al., 2003). Victims will often claim that what they want is for justice to be done. But what does that mean? What is justice? When do victims feel that justice has been done? What is justice in the context of crimes against humanity? What is its function and what are its determinants? What does it take to regain a sense of justice?
In this article we examine victims’ perceptions of justice, its determinants and its function in order to gain a better understanding of how to restore justice for victims following crimes against humanity. Specifically, we interviewed former victims of the former ruler of Haiti, Jean-Claude ‘Baby-Doc’ Duvalier. Following a brief description of the Haitian context, we will present a theoretical framework in order to understand victims’ justice judgements. The results from the interviews are presented and discussed against the framework of the justice theory. The article closes with a discussion of the implications of the findings for transitional justice policy.
The case of Jean-Claude Duvalier
Jean-Claude ‘Baby-Doc’ Duvalier ruled Haiti from 1971 to 1986. He came to power at age 19, succeeding his father as president-for-life. His father, François ‘Papa Doc’ Duvalier, who ruled Haiti from 1957 to 1971, ‘executed hundreds of people, imprisoned hundreds more, and drove thousands into exile, while running the country with an iron fist’, according to US embassy officials (Human Rights Watch, 2011: 12). Inheriting this brutal regime from his father, Duvalier’s 15-year rule was marked by grave human rights violations against his challengers and critics − opposition party members, trade unionists, independent journalists, university professors and human rights activists − and by an absence of fundamental freedoms.
According to international criminal law, 1 crimes against humanity include murder, extermination, enslavement, imprisonment, torture, rape, persecution against an identifiable group, and enforced disappearance of persons. Under Baby-Doc’s rule, hundreds of political prisoners held in a network of prisons known as the ‘triangle of death’ died from mistreatment or were victims of extrajudicial killings. Fort Dimanche most often served as the detention facility for long-term political prisoners, and was infamous for its inhuman conditions (Lemoine, 2006). Duvalier's government repeatedly closed independent newspapers and radio stations. Journalists were beaten, and in some cases tortured, jailed and forced to leave the country (Human Rights Watch, 2011).
On 26 January 2011, after nearly 25 years in exile in France, Jean-Claude Duvalier returned to Haiti. Upon his return, many victims of the former dictator spoke out demanding that he be tried for crimes against humanity in order to end impunity. Haitian authorities filed charges against Jean-Claude Duvalier for financial and human rights crimes. In addition to the aforementioned grave violations of human rights, Duvalier is accused of embezzling between $300 million and $800 million in assets during his presidency (Human Rights Watch, 2012). In January 2012, the Investigating Magistrate, Judge Jean Carves, ordered the dismissal of all the crimes against humanity charges, but not the financial crimes. 2 This decision was strongly criticized by human rights groups as well as victims and is currently under appeal in Haiti (Institute for Justice and Democracy in Haiti, 2013). In an effort to see justice done in Haiti, around the world members of the Haitian Diaspora and human rights organizations have repeatedly called attention to the crimes committed and the need for justice. For example, in Montreal, survivors of the Duvalier Regime created the Committee Against Impunity and for Justice in Haiti, 3 which works together with the Canadian Centre of International Justice in an effort to bring Jean-Claude Duvalier to justice.
Justice theory
What does justice mean to victims and when do victims feel that justice has been done? Social psychologists have studied lay perceptions of justice since the 1960s. One of the main and often replicated results of fairness research is that people respond to fair conditions with higher levels of trust. In contrast, people react to unfair treatment with mistrust (Streicher et al., 2012).
Early theories of procedural justice, such as Tyler and Lind’s (1992) relational model, view trust in authorities as a determinant of procedural justice. According to this model, ‘a good relationship with authorities promotes feelings of procedural fairness’ (Tyler and Lind, 1992: 158). In other words, when we trust authorities we feel their treatment was fair. Trust involves the belief that the intentions of third parties are benevolent and that they desire to treat people in a fair and reasonable way (Tyler, 1989: 831). Consequently, trustworthiness is particularly important because of the implications for the future behaviour of that authority and the behaviour of other, similar, authorities, and these implications in turn suggest what a person can expect across the whole range and duration of his or her interactions with the group (Tyler and Lind, 1992: 142). If they believe that authorities are trying to be fair, citizens develop a long-term commitment to the group (Tyler, 1989: 831).
Social psychologists have found that once trust in authorities is established, people will tend to justify and support authorities, even when their policies are objectively considered unjust. Jost and Banaji (1994) have developed System Justification Theory in order to explain how people will support the authorities of their in-group despite injustices. According to this theory, people tend to justify and legitimize the socio-political systems within which they are forced to operate. Even in the face of injustice, we tend to support the status quo. Hence, once trust in authorities is established, they will continue to see procedures as fair even when objectively they are not fair (Starzyck, 2012).
Although support for authorities is not something people easily let go of, it is not unwavering.
But what happens when a new, democratically elected regime steps in and replaces the old untrustworthy regime? Is the new regime doomed to be viewed as unfair? How does a nation transition from a dictatorship to a democracy if people are unable to trust authorities? A new regime with a new leader can be a source of uncertainty as people are not yet sure what to expect from it. When people are confronted with uncertainty in their environment, they turn to their impressions of fair treatment to help them decide how to react. Van den Bos and Lind (2002a) argue that fairness is all about the management of uncertainty. In particular, they will look at how the new regime deals with the past injustices.
According to fairness heuristic theory, after unfair events people are motivated by the aim to find out more about the trustworthiness of the new authority (Van den Bos et al., 2001).
However, Streicher et al. (2012) found that following unfair events, people focused more on finding information, which confirmed their impression that authorities were unfair rather than looking for information about the trustworthiness of authorities. This poses an extra challenge to authorities: not only do they have to gain people’s confidence but they also have to overcome people’s scepticism. Once trust is gone, people will associate authorities with unfair procedures.
Methodology
The Haitian Diaspora meant that large numbers of Haitian refugees left their country and sought asylum in countries such as Canada and, in particular, in the French-speaking province of Quebec. In collaboration with the Montreal-based Committee Against Impunity and for Justice in Haiti, we conducted interviews with victims of the Baby-Doc Regime. The aims of the interview were two-fold: (i) to gather evidence which would help in the on-going trial in Haiti against Jean-Claude Duvalier for crimes against humanity; (ii) to explore victims’ perceptions of justice and in particular how to restore victims’ sense of justice following gross violations of their human rights. This article deals exclusively with the second objective.
Semi-directive interviews were held with ten victims of the Baby-Doc regime. The participants were seven men and three women. They ranged in age from 29 to 93 years of age. Participants included both direct victims (9) and indirect victims (1), although many of the direct victims were also indirect victims owing to the loss of a loved one. The interviews varied in length from 40 minutes to 2 hours and were conducted in French. The quotations provided in the text were translated from French into English by the researchers.
The interviews were analysed using content analysis. That is, participants’ responses to the question ‘what is justice?’ were compared, and common themes or topics were identified.
Results
Analysis of the interviews allowed us to identify four main themes that emerged from the interviews: accountability, recognition, reparation and a precondition for democracy. In the following these themes will be described in further detail. The findings are interpreted within the framework of justice theory.
Justice is accountability
Six respondents emphasized the importance of accountability or punishment with respect to justice. One respondent said, ‘justice … Me, I believe first of all that it's accountability.’ (93). Jean-Claude Duvalier had to be held accountable for his acts. Similarly, another said that justice means ‘punishment’ (90−91). The ‘torturers, the soldiers should be punished and go to prison’, said another (79). It is just deserts, ‘Ensuring that each citizen receives that which he is due and to which he has a right’ (90−91). For another respondent, justice meant, ‘Judging him [Jean-Claude Duvalier] – not that he suffers as we did – otherwise we would be like him – but that he be judged. We have to give an example for other dictators’ (2b). Another respondent referred to the trials of other dictators and saw this as an example for Haiti: ‘They must be judged for their crimes. Like the Nazis during the time of Hitler, they must be judged. Like in Argentina, those killers there … the death squads … They must be judged and condemned’ (87).
However, some of the victims in this study drew a distinction between accountability and punishment. One respondent was quite specific that he did not equate justice with punishment. He said, ‘I don’t like the word punishment. For me, in a criminal justice process the authors must recognize the wrong that they committed’ (95). For this victim, justice was about the offender taking responsibility for his actions rather than society making him pay for the crimes committed. Similarly, another victim who emphasized the importance of accountability went on to say: ‘Amnesty can be given after a conviction’ (93). For these victims, accountability was not about punishment or vengeance but about recognition.
Two respondents saw accountability more as a process than an outcome. One respondent was very clear that outcomes were secondary to the process: ‘We have to prosecute them … We have to investigate … There are questions that need answering … I don’t see them calling witnesses to speak, like they did in South Africa … But at least there is a tribunal and there will be an arrest warrant for him … Maybe he will get off but at least he will have been summoned to court … He cannot die without a case against him’ (95). Similarly, another respondent was quite open that he did not think that they would win their case against Baby-Doc, but that it was up to the people living in a democracy (outside of Haiti) to bring this scandal to light: ‘It is up to us who live in a democratic country to take steps … Not because we believe that we can win, that would surprise everyone … But … because the news spreads everywhere … regardless’ (90). Independent of the outcome, the criminal justice process would give rise to a public discussion about the events that occurred under the Baby-Doc regime, and it is this process which is important for justice.
In addition to recognizing the wrongs committed in the past, accountability would allow victims to obtain answers to their questions: ‘All that I ask is that those things be clarified today. Why? We never knew why … Was the regime afraid? Did they really think that we would rebel? … At least then I could understand today why it all happened’ (95). The criminal justice process would shed light on what really happened.
Justice is recognition
Three respondents mentioned the importance of public recognition of what happened. These respondents emphasized how important it was that people know what happened and that the memory of what happened not be forgotten. As one respondent said, ‘He cannot arrive and say that he was a positive factor for the country … To me this is denial and it is unbearable … I don’t expect that this will have criminal justice consequences or financial consequences, what I expect really is that it will have consequences for the history and the memory’ (93). Similarly, another respondent felt that if the memory of what happened was not preserved, ‘one is bound to make the same errors again’ (95). This victim went on to say: ‘my children would like to know what happened. There isn’t a book about what happened, there are no known archives … it is for the memories … we have to do this … People have forgotten’ (95).
Four respondents emphasized the importance of the process, and in particular dialogue with respect to what happened. According to one respondent, up until now, the Haitian people have not been able to talk about their past: ‘When I studied Haitian history, it stopped around 1953, with the arrival of the first American Airlines airplane … All of that which followed afterwards is still too recent to discuss. We cannot talk about it’ (93). For this victim, dialogue was important and the silence that so often surrounds crimes against humanity had to end.
Justice is reparation
Regarding reparation, the responses were mixed. When asked what it would take for them to feel that justice had been done, one respondent replied, ‘For me, he must compensate the people and return to the victims their land and their homes that were stolen’ (79). Others felt that although they did ‘not need reparation, there should be reparation for the country and the people of Haiti’ (2b).
However, others felt that reparation was less important than other factors such as recognition. For example, ‘I swear that I don’t believe in reparation … I believe that for a victim, recognition is important, that the torturer recognizes what he did and that he will be punished for what he did’ (88).
A precondition for democracy
Five respondents talked about democracy in relation to justice. For these respondents, justice is fundamental to ‘civilized societies’ (87). As one respondent said, ‘I know that a country cannot develop without justice; a democracy cannot be built without justice. This is my profound conviction’ (88), or, as another respondent said, ‘You cannot build a country on quicksand’ (95). In order to assess whether the new regime was in fact democratic, these respondents looked to the ability of the regime to address past injustices. The trial of Baby-Doc was considered to be ‘symbolic for … the beginning of a process which would touch all sectors and mark the end of impunity and the end of corruption’ (88). This would ensure that such crimes could not occur again and provide stable ground for building a new future. Thus the function of justice is to promote trust in the new regime by breaking with the bad habits of the old regime and embracing the values of democracy such as justice. In doing so, the new regime can regain the confidence of the people. Conversely, without justice there will be no trust and the new democracy will be feeble.
Once trust has been re-established, there can be reconciliation. One victim spoke very frankly about the necessity to ‘pass through the criminal justice system before there can be reconciliation (93). Clearly, for this victim justice is a necessary precondition for sustainable peace.
Discussion
The findings show that victims look to justice information in order to establish whether or not a new regime is democratic and worthy of their trust. Concretely, they want to see the new regime break with the past and judge suspected criminals for the crimes committed under the former regime. Criminal trials have an important symbolic value for the people, as they reflect a collective will to recognize victims and victimization and to hold offenders accountable. Prosecution consolidates the values of democracy and instils public confidence in the new regime. Failure to prosecute may, however, generate public feelings of cynicism and distrust towards the political system and its values (Bloomfield et al., 2003). Unless the new regime puts an end to impunity, it will not gain the trust of the people, and reconciliation will not be possible. These findings support those by Van der Merwe (2008), whose research with survivors of South Africa’s Apartheid regime showed that their justice perceptions correlated with perceptions of trust and transformation.
Although criminal prosecutions are only one element of transitional justice, it is the form of justice that the victims in this study mentioned most often. Other elements include reparation and truth (Parmentier and Weitekamp, 2007). However, when victims brought up these other measures it was often in relation to criminal prosecution, thereby emphasizing the importance of justice in order to regain trust in authorities. For example, by holding offenders accountable through prosecution, victims could get answers to some of their questions and offenders could be ordered to make reparation. There seemed to be a need to not just recognize the wrongs committed in the past but also to establish the criminal nature of these acts. Prosecution was felt to reflect institutional reform and democratic values. This suggests that any effort to substitute criminal justice with another mechanism of transitional justice such as truth commissions would be likely to be unsuccessful in establishing trust.
Our findings support the fairness heuristic theory proposed by Van den Bos et al. (2001), which views fairness information as a determinant of trust in authorities. People use fairness information in order to determine whether or not an authority can be trusted.
Justice is a multi-faceted concept, and fairness heuristic theory makes little distinction between fairness in terms of procedures and fairness in terms of outcomes (Van den Bos et al., 2001; Wemmers, 2010). Our findings echo those of Gibson (2002) and Raymond (2010), who also found that for victims of crimes against humanity, justice includes procedural and distributive justice elements. Whereas some victims emphasized the importance of outcomes such as punishment, others focused on the criminal justice process itself as a source of justice. These victims emphasized that, regardless of the outcome, the criminal justice process fulfils an important symbolic value. It opens a discussion about the crimes that were committed and shows society’s intent to no longer tolerate crimes against humanity.
The findings suggest that victims do not necessarily equate punishment with accountability. Van der Merwe (2008) comes to a similar conclusion based on his work with survivors in South Africa. Accountability is about confronting perpetrators with the immorality of their actions and requiring them to explain what they did and why. In contrast, punishment is about making perpetrators pay for what they did. Hence, accountability is closely affiliated with recognizing the wrong committed, which can then lead to punishment of the offender.
Simply opening a public discussion about the crimes that occurred was viewed by many victims as an important step towards justice. Danieli (2009) writes of the conspiracy of silence which often surrounds crimes against humanity. Similarly, Stover finds that, among the victims of the war in the Former Yugoslavia, ‘justice meant piercing the veil of the denial’ (Stover, 2005: 143) about the past.
Trust in authorities is essential to the functioning of the group. It cannot be taken for granted and, although it is resilient, trust in authorities can be lost. A new regime can re-establish trust by breaking with the past and ensuring justice for victims. Justice information is used in order to establish the trustworthiness of a new regime and the extent to which the regime has successfully changed its ways and embarked on a new path. In order to be sustainable and provide long-lasting peace,