Violent and organised crime threatens to overwhelm Haiti. The justice system is weak and dysfunctional, no match for the rising wave of kidnappings, drug and human trafficking, assaults and rapes. If the efforts of the last three years to establish the rule of law and a stable democracy are to bear fruit urgent action is needed. Above all the Haitian government must demonstrate genuine political will to master the problem. But the international community also has a major support role. The immediate need is to establish, staff and equip two special courts, one a domestic criminal chamber to handle major crimes, the other a hybrid Haitian/international tribunal to deal with cases of transnational, organised crime that the country can not tackle on its own.

Crime has surged since courthouses and prisons were looted and many of them destroyed in the lead-up to former President Aristide’s departure in March 2004. The judiciary is encumbered by incompetence and corruption, partly due to inadequate pay, infrastructure and logistical support. The legal code is antiquated, barely modified since Napoleon bequeathed it to the one-time French colony, judges are not independent, case management is poor, and indigent defendants rarely have counsel. The state is able to guarantee neither the security of its citizens nor the rights of defendants. When arrests are made, the system is virtually incapable of conducting trials. Prisons become more crowded, and street crime escalates daily, while court procedures move at a snail’s pace. The results are prolonged pre-trial detention – some 96 per cent of the inmates of the National Penitentiary have not been tried – lack of due process and near total absence of public confidence in the criminal justice system.

In the optimistic days after the democratically elected Aristide returned from exile in 1994, donors poured more than $43 million into justice reform. By 2000, when Aristide was re-elected, they had withdrawn almost all such support because they were convinced the government lacked political will. Aid has begun to flow again since Aristide’s ouster but the obstacles are the same. The UN Mission in Haiti (MINUSTAH) and the new Préval government want to build a new justice system but corruption remains pervasive, including within the police and the judiciary. Organised crime has put down roots, and urban gangs have yet to be disbanded.

Haitians and internationals need to take a sober look at past failings and devise, fund and implement a comprehensive rule-of-law strategy. Police reform will not succeed without parallel court reform. Building a criminal justice system that is sustainable requires a dual track effort: short-term actions to cope with the current crime wave and longer-term institution building.

In the short term, i.e., in 2007, the government and parliament need to:

• enact into law a code of ethics for judges and an independent judicial council to enforce its provisions against corrupt judges;
   
• authorise a special serious crimes court chamber with a vetted corps of judges, prosecutors and defence counsel and permit plea-bargaining with appropriate oversight; and
   
• provide witness protection and better pay for judges;

while donors and MINUSTAH should coordinate with the ministry of justice’s national strategy and provide trainers and funding for infrastructure, witness protection, forensic capabilities and legal aid.

In the longer term, the government and parliament need to:

• amend the constitution to establish a more rational and effective procedure for appointing higher-level judges;
   
• modernise the code of criminal procedure, establish a permanent panel to review cases of lengthy pre-trial detention and expand the use of fast-track procedures for prosecution of relatively minor crimes; and
   
• build civil society support for justice reform;

while donors and MINUSTAH should ensure their programs extend for at least five years and, together with the government and other members of the Caribbean Community and Common Market (Caricom), should create a hybrid court with Haitian and other judges and personnel from the region to try transnational crime cases.

Port-au-Prince/Brussels, 31 January 2007