SUPREME COURT REJECTS TRANSFER OF NEPTUNE/PRIVERT

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