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Mark V. Vlasic

Mark V. Vlasic

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5.7 Million Reasons for Duvalier to Return to Haiti

Posted: 02/ 4/11 09:53 AM ET

After twenty-five years in comfortable exile, what convinced former president Jean-Claude "Baby Doc" Duvalier to leave France and return to earthquake-shattered Haiti? Supporters will claim that he returned to help re-build his country. But if so, why did he choose to return a year after a 7.0 earthquake struck his homeland? The answer likely has little to do with a small island in the Caribbean trying to dig itself out of poverty -- and much more to do with a small country in the Alps better known for its watches, chocolate and ski resorts.

That's because the "Return of Illicit Assets Act" (RIAA), passed by the Swiss Parliament last October, comes into effect this week.

But why would Duvalier, a Haitian living in France, care about a law change in Switzerland?

Money -- that's why.

You see, the Swiss government maintains an "assets freeze" on over $5.7 million of Duvalier-related bank accounts in Switzerland. And while Duvalier has been fighting the assets freeze for years -- trying to stop the Swiss from confiscating his allegedly ill-gotten gains -- the law that takes effect this week paves the way for returning his assets to Haiti -- thus completing an asset recovery effort that began in 1986.

Duvalier's return to Haiti, just as another alleged kleptocrat, former president Zine al-Abidine Ben Ali of Tunisia, fled his own country, evoked memories of déjà vu to many in the asset recovery world.

Taking over as "president-for-life" after his father's death, Duvalier's rule was characterized by greed and neglect. For 15 years, Duvalier and his associates allegedly stole Haitian funds and international aid money while ordinary Haitians grew poorer and poorer. Only when faced with the near-total breakdown of the Haitian state, rioting, and a potential coup d'état did Duvalier flee the country.

Similar to reports that Ben Ali left Tunisia on a jet with millions of dollars in gold coins, Duvalier reportedly left Haiti in a jet filled with gold, jewels and artwork, leaving (like Ben Ali) a chaotic and economically scarred nation behind.

Since then, it has been left to Duvalier's successors in Haiti and a handful of diligent officials in Switzerland, aided by the joint World Bank-United Nations Stolen Asset Recovery (StAR) Initiative, to try to recover Duvalier's assets for the benefit of the Haitian people.

Unfortunately, corruption in Haiti and Tunisia are not isolated issues. According to World Bank estimates, corruption among holders of public office accounts for the misappropriation of between $20 and $40 billion each year. This corresponds to 20-40 percent of annual global development aid.

Because of this, there has been greater attention focused on stolen asset recovery as a critical component in the fight against impunity that is so often associated with grand corruption. This was one of the reasons President Robert Zoellick made the StAR Initiative, a global partnership to help recover assets from past dictators, his first initiative after joining the World Bank. And this is one of the reasons that so many in the development and anti-corruption fields have been waiting patiently for Switzerland's RIAA to come into effect.

The Swiss law, also known as "Lex Duvalier," was designed for cases involving assets frozen in Switzerland which have been acquired unlawfully, but which cannot be returned via typical mutual legal assistance channels due to failures in the victim state's judicial system.

In such cases, where the country involved renders it impossible to conduct a proper exchange procedure, the Swiss law would enable a unique "burden shift." In these cases, should RIAA be implemented as envisioned, officials would only have to show that the funds held in Switzerland by an alleged corrupt official are significantly larger than what someone could have credibly earned in office, and that the country from which the funds originate was known to be corrupt.

Then the burden of proving that the money came from legal sources would lie with the allegedly corrupt official, rather than the Swiss state. If the official could not prove a legitimate origin of his or her Swiss assets, they would be confiscated by the state.

It is likely that Duvalier returned to Haiti in order to throw a wrench into the new law's application, perhaps hoping that by re-entering Haiti, he could challenge the use of the law, or possibly strike a deal that could allow for a return of his assets to Haiti, but in a manner that might better position him for a future presidential bid. For the moment, however, it looks like his plan has backfired, and he may finally face justice in Haiti. Should that happen -- and Duvalier's assets are finally returned to Haiti - it may give life to President Zoellick's assertion that "there should be no safe haven for those who steal from the poor."

Mark V. Vlasic, an adjunct professor of law at Georgetown University Law Center and senior fellow at Georgetown's Institute for Law, Science & Global Security, worked on the Haiti/Duvalier asset recovery team while serving as head of operations of the World Bank's StAR Secretariat. Now a partner at Ward & Ward PLLC, he currently serves as international legal adviser to the Charles Taylor/Liberia asset recovery team.