US embassy cable - 05PORTAUPRINCE795

C O N F I D E N T I A L SECTION 01 OF 03 PORT AU PRINCE 000795 
 
SIPDIS 
 
WHA/EX PLEASE PASS USOAS 
SOUTHCOM ALSO FOR POLAD 
 
E.O. 12958: DECL: 03/17/2015 
TAGS: PGOV, PHUM, PREL, HA 
SUBJECT: SUPREME COURT REJECTS TRANSFER OF NEPTUNE/PRIVERT 
CASES TO PORT-AU-PRINCE 
 
REF: PAP 666 
 
Classified By: AMBASSADOR JAMES B. FOLEY, REASONS 1.5(B) AND (D). 
 
1. (C) Summary:  The Haitian Supreme Court rejected March 18 
a motion to transfer from St. Marc to Port-au-Prince the 
linked cases of former Prime Minister Yvon Neptune and 
co-defendant former Interior Minister Jocelerme Privert. 
Both are charged with involvement in the February 2004 
massacre in Saint-Marc of Aristide opponents and civilians. 
The decision short circuited the IGOH's efforts to find a 
quick resolution to Neptune's case, which poses grave dangers 
for the IGOH in the event Neptune should die (which would 
result in international condemnation) or in the event Neptune 
is freed without a judicial reckoning.  Internal criticism of 
PM Latortue's handling of the case and of the international 
community's perceived meddling is narrowing the IGOH's 
options.  IGOH leaders told Ambassador they will undertake 
another effort to effect the change of venue and are prepared 
to take huge political risks to make it happen.  Should this 
effort fail we will be looking at extra-judicial solutions 
whose political cost to the fragile IGOH will be even higher. 
 End Summary. 
 
The IGOH Gameplan... 
----------------------- 
2. (C) The IGOH's gameplan last week was to get Neptune's 
case transferred from St. Marc to the capital and thereby 
arrange for him a swift hearing from a Port-au-Prince judge. 
Since Neptune's case is linked to Privert's, approval of 
Privert's pending change-of-venue request would have 
accomplished this.  The alternative was to persuade the St. 
Marc investigating judge to relinquish the case and the St. 
Marc state prosecutor (Commissaire de Gouvernement) to 
request a change-of-venue on that basis.  PM Latortue told us 
that his government had identified a judge in Port-au-Prince 
who would be willing to interview Neptune and evaluate the 
charges against him.  Latortue expressed concern, however, 
that the judge and prosecutor might be reluctant to act given 
the possibility of a violent reaction in St. Marc. 
 
3. (C) On March 16 PM Latortue informed Ambassador that 
Commissaire Jules had traveled to the capital and been 
persuaded to accept the plan and to transmit the appropriate 
communications to the Supreme Court.  Latortue explained to 
Ambassador that he had "moved heaven and earth" in his home 
base in the Artibonite to persuade Commissaire Jules to write 
the necessary letter, and said that President Alexandre was 
expected to discreetly weigh in with his former colleagues on 
the Supreme Court.  By Thursday March 17, the Supreme Court 
had before it the letter from Jules stating his opinion on 
the Privert change-of-venue request.  In a meeting that day 
with embassy human rights officer, Justice Minister Gousse 
said that he had personally called the vice-president of the 
Supreme Court, Georges Henry, to urge the court to make a 
decision before the judicial Easter recess. 
 
...goes awry 
----------------- 
4. (C)  In the end, neither the Commissaire nor the Supreme 
Court played ball.  President Alexandre's Chief of Staff 
Michel Brunache attributed the judges' decision to fear of 
the likely violent reaction in the event they had decided to 
grant the change of venue request. (Note: This is underscored 
by the fact that the members of the court had apparently 
tried to flee the country on an early Easter break in order 
to avoid having to render a judgment in the case.  Latortue 
slapped a travel ban on the members and forced them to act on 
the case before departing on vacation.  End Note.)   In the 
event, it turned out that the Commissaire actually 
recommended against Privert's change of venue request and the 
Supreme Court readily endorsed this recommendation, thus 
dealing a sharp blow to the President and the Prime Minister 
-- and to our hopes of achieving a legal resolution to the 
Neptune case that shields the IGOH from a political backlash 
it can ill afford. 
 
5. (C) It is not clear where things go from here.  MINUSTAH 
officials are looking urgently for a legal and defensible 
solution that would ensure a modicum of respect for the 
judicial process.  The investigating judge could still 
request a recusal which, if the state prosecutor endorsed it, 
could be presented to the Supreme Court, but that seems 
unlikely given the public pressure in St. Marc.  Latortue has 
floated the idea of taking Neptune to St. Marc under heavy 
guard for a hearing; any public disorder would then be used 
to justify another request to the Supreme Court to transfer 
the case on security grounds.  (Justice Minister Gousse in 
fact indicated that this was the government's intent in a 
March 22 radio interview.)  Neptune said last week that, 
regardless of the court's decision, he would neither see a 
judge nor cooperate in the judicial process (although he 
could be compelled to at least appear in court). SRSG Valdes 
barely persuaded Neptune to temporarily halt his hunger 
strike prior to the Supreme Court's decision, and Neptune has 
said that he is prepared to resume the strike unto death if 
the IGOH does not capitulate and simply free him. 
 
All is not lost? 
---------------- 
6. (C) Ambassador met with the President, Prime Minister, and 
Brunache  late in the afternoon of March 21 to discuss other 
possibilities for resolving Neptune's case.  Latortue 
indicated acceptance of the Ambassador's argument that it was 
too dangerous to take Neptune to a hearing in Saint-Marc. 
Instead, the President and the PM agreed to make another push 
to persuade the Commissaire in Saint-Marc to petition the 
Supreme Court for a change in venue, on the basis of security 
concerns (last week's Privert petition was based on the 
potential for bias among a jury in St. Marc).  They plan to 
fire him and name a new Commissaire in the likely event he 
refuses to comply.  They also eagerly embraced a UN proposal, 
conveyed by the Ambassador, to put Neptune in a house that 
would be designated as an Annex to the National Penitentiary 
once he is released from the Argentine military hospital. 
 
7. (C) The Ambassador, stressing the utter unacceptability of 
Neptune dying in IGOH custody, explored other options in the 
event that legal remedies are exhausted.  He suggested for 
example that the IGOH might consider declaring a pause in the 
legal process on the grounds that the situation in Haiti was 
too fragile for the IGOH to handle a case of this magnitude; 
it could be left for the elected government in 2006.  The 
President and Prime Minister did not rule this out, noting 
that it might be sustainable if the house/annex idea comes to 
fruition.  Second, the Ambassador conveyed a suggestion from 
Deputy SRSG Medili that the IGOH consider allowing an 
international or "mixed" tribunal to deal with Neptune's 
case, as well as with a number of other outstanding 
controversial cases.  After initial hesitation, the IGOH 
leaders went farther, proposing that the Security Council 
itself establish an international tribunal for Haiti.  They 
felt that this approach would be more politically palatable 
and represent the only possibility for Haiti to escape from 
the decades-old cycle of impunity.  Latortue suggested that 
an international tribunal could tackle the toughest 
oustanding cases, including the murders of Jean Dominque and 
Brignol Lindor. 
 
Latest Developments 
------------------- 
8. DSRSG Medili was pleased with the Ambassador's readout of 
the meeting, and set the wheels in motion to effect an 
eventual transfer of Neptune to a house in Port-au-Prince. 
In a subsequent conversation after consulting with SRSG 
Valdes (who is in the U.S.), Medili threw cold water on the 
idea of the Security Council formally establishing an 
international tribunal, saying the view in New York was that 
it would be too costly and time-consuming.  Instead, MINUSTAH 
would seek to pay for international jurists or legal experts 
to assist IGOH authorities in handling Neptune and other 
difficult cases.  (OAS Special Rep Modeste told Ambassador 
March 22 that the OAS would be willing to assist in such an 
effort as well.) 
 
9.  Brunache told the Ambassador at a palace dinner March 22 
that he had indentified a succcessor Commmissaire for 
Saint-Marc.  Now the PM would have to decide whether to make 
another go at the current Commissaire or simply fire him 
without further ado.  Brunache expected a negative political 
outcry over this (and Neptune's transfer to a residential 
"prison" annex) that would rock the government.  Whether the 
IGOH could survive the reaction he thought would depend on 
the context -- notably whether MINUSTAH was taking 
military-type action against the pro-Aristide criminal gangs 
(MINUSTAH's recent action against the renegade ex-FADH was 
largely playing against the IGOH, according to Brunache). 
Ambassador conveyed (and echoed) this perspective to DSRSG 
Medili March 23.  Medili responded that MINUSTAH was aware of 
the perception and was "planning steps to change that 
perception."  Medili and Guindo were expecting to meet with 
Latortue on the Neptune issue later March 23rd. 
 
Comment 
------- 
10. (C) The Supreme Court decision was a spectacular blow 
against our efforts to promote a resolution of the Neptune 
case in conformity with Haitian constitutional and legal 
procedures.  The IGOH is faced with an almost impossible 
dilemma -- the choice of international opprobrium if Neptune 
dies in prison, or a heavy-handed, political intervention 
that may produce a collapse of what little domestic support 
it enjoys.  The incendiary criticism of Neptune's previous 
transfer to the Argentine military hospital leveled by the 
G-184, most political parties and the human rights community 
has reduced the IGOH's maneuvering room to a minimum.  The 
IGOH needs cover for its next move.  We are endeavoring to 
work with business leaders, political parties and human 
rights groups to create space for an eventual solution. 
Whether Minister of Justice Gousse (whose wife's bodyguard 
was assassinated yesterday) is willing to be a part of that 
solution or an obstacle to it remains to be seen.  The good 
news is that the President and Prime Minsiter seem united and 
determined to assume the considerable political risks that 
any resolution will entail. 
FOLEY