Posts Tagged ‘Syria’

Latest U.S. Report on Human Rights Around the World

April 24, 2013

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On Friday (April 19th), the U.S. Department of State released its latest annual Country Reports on Human Rights Practices.[1]

In his Preface, Secretary of State John F. Kerry said, “It is in our interest to promote the universal rights of all persons. Governments that respect human rights are more peaceful and more prosperous. They are better neighbors, stronger allies, and better economic partners. Governments that enforce safe workplaces, prohibit exploitative child and forced labor, and educate their citizens create a more level playing field and broader customer base for the global marketplace. Conversely, governments that threaten regional and global peace, from Iran to North Korea, are also egregious human rights abusers, with citizens trapped in the grip of domestic repression, economic deprivation, and international isolation.”

Therefore, Kerry continued,” we advocate around the world for governments to adopt policies and practices that respect human rights regardless of ethnicity, religion, gender, race, sexual orientation, or disability; that allow for and honor the results of free and fair elections; that ensure safe and healthy workplaces; and that respect peaceful protests and other forms of dissent.”

In so doing, Kerry acknowledged that “from our own experience [we know] that the work of building a more perfect union – a sustainable and durable democracy – will never be complete.”

The Introduction to the Report highlighted these five developments from 2012.

  1. Shrinking space for civil society activism around the world. Active participation of civil society in determining policies for the society is an important part of human rights. Yet in 2012, many governments “continued to repress or attack the means by which individuals have the ability to come together, air their views, and put forward their own proposals.” Mentioned specifically in this regard were Iran, Venezuela, Russia, Egypt, Bangladesh and China. [2]
  2. The ongoing struggle by people in the Middle East and North Africa for democratic change. Although there were some encouraging changes in this region, there also was “erosion of protections for civil society, sexual violence against women, violence against and increased marginalization of members of religious minorities, and escalating human rights violations.” This was most pronounced in Syria, but significant problems in this regard were seen in Bahrain and Egypt.
  3. Steps toward emerging democracy and a tentative opening for civil society in Burma. In 2012 Burma “continued to take significant steps in a historic transition toward democracy.” These changes are “the result of hard work by the Burmese people and sustained U.S. and international pressure to reform.” This transition, however, is not yet complete. Much work remains to be done.[3]
  4. The game-changing nature of information and communication technologies, in the face of increased suppression of traditional media and freedom of expression.  New technologies have made information more widely available throughout the world. Yet some governments seek to stop the free press. The world-wide number of journalists killed or imprisoned increased. Some governments used counter-terrorism as a “pretext for suppressing freedom of expression.”  Others endeavored to restrict internet freedom. Ecuador was cited as an example of a state where the president publicly criticized specific journalists and encouraged lawsuits to be brought against them, where a ban was instituted on press coverage favoring one candidate, philosophy or political theory and where the government used legal pretexts to harass and close several media outlets.[4]
  5. The continued marginalization of and violence against members of vulnerable groups. Too many governments “continue to persecute, or allow the persecution of, members of religious and ethnic minorities; women; lesbian, gay, bisexual and transgender (LGBT) people; people with disabilities; migrants; and members of other vulnerable populations, including tribal communities.” Anti-Semitism in the Middle East, Europe and Latin America was specifically mentioned as a problem.

These reports have been prepared by the State Department pursuant to a 1961 federal statute. Since then other federal statutes require U.S. foreign and trade policy to take into account countries’ human rights and worker rights performance.

Since 1976 a Coordinator of Human Rights (later upgraded to an Assistant Secretary) in the Department of State has the overall responsibility for preparing these reports based upon information from U.S. embassies and consulates abroad, foreign government officials, nongovernmental and international organizations, published reports, foreign government officials, jurists, the armed forces, journalists, human rights monitors, academics, and labor activists.

[1]  News of the Report in the U.S. media has been virtually nonexistent. Here is the New York Times article on the Report.

[2] On April 21st China responded to the U.S. criticism with “The Human Rights Record of the United States in 2012.” This year, the Chinese report focused on U.S. gun crime, citing “astonishing casualties”; growing poverty in the U.S. and a wide wealth gap; and America’s overseas wars. It also singled out what it said was low voter participation in U.S. elections and the detention of terrorism suspects in Guantánamo.

[3] Similar recent reports about Burma come from Human Rights Watch, Former South African Archbishop Desmond Tutu and a Burmese Buddhist. On the other hand, the government continues to declare amnesties and release political prisoners, and we continue to be inspired by Aung San Suu Kyi’s, whose  acceptance in 2012 of her Nobel Peace Prize of 1991 was the subject of an earlier post.

[4] Ecuador’s wide-ranging measures to squelch hostile journalism have been the subject of persistent and detailed criticism by the Inter-American Commission on Human Rights, and as discussed in a prior post Ecuador in retaliation has mounted, and continues to mount, a campaign to try to weaken the Commission and thereby its criticism of Ecuador.

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International Criminal Court: Other Developments

April 2, 2013

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We just reviewed the current status of the investigative situations and cases of the International Criminal Court (ICC). [1] Now we look at two other major issues facing the ICC–Syria and Palestine, last year’s meeting of the Court’s Assembly of States Parties and the Chief Prosecutor’s statement about this month’s being genocide awareness month.

Syria. As we know from many news sources, popular demonstrations against Syrian President Bashar al-Assad commenced in March 2011 and immediately grew throughout the country. In April 2011, the Syrian Army was deployed to quell the uprising, and soldiers were ordered to open fire on demonstrators. After months of military sieges, the protests evolved into an armed rebellion. By January 2013 the U.N. estimated the war’s death toll had exceeded 60,000, and a month later this figure was updated to 70,000. Another 6,000 reportedly were killed in March 2013.

To respond to this horrible suffering, many have called for the ICC to become involved. One who has repeatedly done so is the U.N. High Commissioner for Human Rights, Navi Pillay. Here are some examples:

  • During a debate on Syria by the U.N. Human Rights Council in February 2012, she said she believed that the situation of Syria should be referred to the ICC by the U.N. Security Council.
  • On June 7, 2012, she said, “We continue to witness a serious deterioration of the human rights situation in Syria, which demands our full attention and engagement.” There is evidence of “a pattern of widespread or systematic attacks against civilian populations, and may amount to crimes against humanity and other international crimes. There are indications that the situation in Syria – at least in certain areas – amounts to an internal armed conflict. This would have legal implications, triggering the possibility of commission of war crimes, in addition to crimes against humanity. It makes the call I made to the Security Council to consider referring the case of Syria to the International Criminal Court even more urgent.”
  • At a February 13, 2013, Security Council meeting, she said, “The lack of consensus on Syria and the resulting inaction has been disastrous and civilians on all sides have paid the price. We will be judged against the tragedy that has unfolded before our eyes.” She said that referring Syria to the ICC could have a very significant preventive effect because it “would send a clear message to both the government and the opposition that there will be consequences for their actions”.

In January 2013, 58 countries signed a joint statement calling for such a referral. In response at least five Security Council members voiced support for same– France, Britain, Australia, Luxembourg and South Korea. The next month, February 2013, U.N. human rights investigator Carla del Ponte said the “time has come” for the Security Council to refer war crimes in Syria to the ICC for prosecution. Similar calls for referral have come from Amnesty International and Human Rights Watch.

The Syrian government obviously opposes such a referral. In January 2013 it said it “regrets the persistence of these countries [that signed the joint statement favoring referral] in following the wrong approach and refusing to recognize the duty of the Syrian state to protect its people from terrorism imposed from abroad.” The statement also accused some of the countries signing the statement of “deceit and double standards” in blaming Syria while financing, training and hosting “terrorists.”

Because Syria is not a state party to the ICC’s Rome Statute, the only way for the Syrian situation to get before the ICC is by a referral from the U.N. Security Council. But so far that has been impossible because Russia and China as permanent members of the Council would veto such a referral as they already have vetoed resolutions to impose sanctions on Syria.[2] For example, this past January the Russian Foreign Ministry said the joint request by over 50 countries for such a referral was  “ill-timed and counterproductive to resolving the main task at this moment: an immediate end to the bloodshed in Syria.”

Palestine. In November 2012 the U.N. General Assembly, 138 to 9 with 41 abstentions, voted to grant non-member observer state status to the Palestinian Authority. Those voting “No” included Israel, U.S. and Canada. The abstainers included the U.K. and Germany.

Israel and the U.S. are concerned that the Palestinian Authority (PA) may use its new U.N. status to try a press for an ICC investigation of Israeli practices in the occupied territories. The PA could: (1) attempt to become a State Party at the ICC by ratifying the Rome Statute and then referring alleged crimes to the ICC; or (2) remain a non-State Party but make a declaration accepting the Court’s jurisdiction over a particular set of crimes.

In either option the PA would have to refer an entire situation or train of events to the ICC that would permit the ICC Prosecutor to investigate or prosecute any crime within that situation allegedly committed by anyone, including alleged crimes by Palestinians against Israelis.

The State Party option would require the PA to ratify the Rome Statute and then present a document certifying the ratification to the U.N. Secretary-General, who is responsible for administering the Rome Statute. He would have to decide whether the PA was a state competent to ratify. Should he so decide, the Prosecutor and the rest of the ICC would be obliged to proceed as with any other State Party.

In the non-State Party option of a declaration of acceptance of jurisdiction followed by a referral, the ICC Prosecutor would have to make the first decision on whether the PA was a state competent to make the referral. This decision could be challenged in the Pre-Trial Chamber by the PA, or by another state involved in the situation giving rise to the referral, such as Israel.

The PA has in fact already tried this option by submitting a report of alleged crimes and declaration of acceptance of jurisdiction to the ICC Prosecutor in 2009. In April 2012, however, the Prosecutor released a statement that at he was not empowered to decide on the PA’s statehood status. Instead, the Prosecutor said, a U.N. body such as the Security Council or the General Assembly, or the ICC’s Assembly of States Parties, would have to make this determination. After the General Assembly’s recent action, the press has reported that the current Prosecutor is giving the earlier PA declaration further consideration.

Assembly of States Parties. Last November the Assembly of States Parties (ASP) held its 11th session and adopted a budget and made certain elections.

The ASP approved an amendment to the Court’s Rules of Procedure (new Rule 132 bis) that will permit a single judge to perform the functions of a Trial Chamber for the purposes of trial preparation. The amendment was agreed by consensus and is expected to expedite ICC trial preparation.

The ASP also had a general discussion of complementarity, i.e., the principle and practice of the ICC’s deferring to criminal prosecutions in national court systems. Helen Clark, the former prime minister of New Zealand and current administrator of the U.N. Development Program, spoke about the role international development agencies, such as UNDP and others, can contribute to domestic capacity for dealing with ICC crimes. She also urged governments to take responsibility to deliver justice.

U.S. Ambassador-at-Large for Criminal Justice, Stephen J. Rapp, congratulated the ASP for this crucial discussion on both the policy and practice of complementarity. He stressed the importance to governments – States Parties and non-States Parties alike – to strengthen domestic judicial capacity in a manner that is both concerted and coordinated. He also said the U.S. supports ICC prosecutions and building national justice systems by funding support of complementarity; using the tools of diplomacy to support complementarity; providing technical and legal assistance to national systems; and improving fugitive tracking efforts.

There also was discussion about an initiative to adopt a treaty on crimes against humanity that has been prepared by the Whitney R. Harris World Law Institute at the Washington University in St. Louis School of Law.

Genocide Awareness Statement by Prosecutor. In light of this April’s being genocide awareness month, the Court’s Chief Prosecutor called on “all States, whether parties to the Rome Statute or not, to cooperate with the ICC in seeking/pursuing accountability for genocide.” In particular, this meant enforcing the ICC’s warrant for the arrest of Sudanese President Omar al Bashir, who is charged with “genocide by killing, causing serious bodily injury or mental harm and by deliberating inflicting conditions of life calculated to bring about the physical destruction of the Fur, Masalit and Zaghawa ethnic groups in Darfur.”

[1] Many posts have covered the ICC.

[2] Some prior posts have discussed possible ICC consideration of the Syrian situation (here and here).

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The Latest U.S. Report on International Terrorism

August 5, 2012

 On July 31, 2012, the U.S. Department of State issued its latest annual report on terrorism in the world: Country Reports on Terrorism 2011. This post will review the report as a whole.

This report was submitted in compliance with 22 U.S.C. § 2656f, which defines “terrorism” for this purpose as ” premeditated, politically motivated violence perpetrated against non-combatant targets by subnational groups or clandestine agents” while the term  ”international terrorism” means “terrorism involving citizens or the territory of more than one country.”

The report included the following statistics on terrorists attack during the year:

Area Number of Attacks
Near East & South Asia    7,721
Africa       978
Europe & Eurasia       561
East Asia & Pacific       543
Western Hemisphere       480
     TOTAL   10,283

The report’s “Strategic Assessment ” section puts all of this into a worldwide context. It highlights the death of Osama bin Laden and other top leaders of al-Qa’ida as putting its “network on a path of decline that will be difficult to reverse.” However, its affiliated groups around the world increased their impact. Iran was also criticized for its lethal support of terrorism in Iraq and Palestine. Others specifically mentioned in this Assessment were certain terrorist groups in South-Asia, the Kurdistan Workers Party in Turkey, anarchists in Greece and Italy, dissident Republican groups in Northern Ireland and Anders Behring Breivik (the Norwegian right-wing extremist who killed 77 people last July).

The statutory authorization of this report requires the Department of State to identify countries that have “repeatedly provided support for acts of international terrorism” as “State Sponsors of Terrorism.” This year the following four countries were so designated: Iran, Sudan, Syria and Cuba. A subsequent post will examine this designation of Cuba.

A wide range of sanctions may be imposed as a result of a State Sponsor of Terrorism designation, including: (a) a ban on arms-related exports and sales; (b) controls over exports of dual-use items, requiring 30-day Congressional notification for goods or services that could significantly enhance the terrorist-list country’s military capability or ability to support terrorism: (c) prohibitions on economic assistance; and (d) imposition of miscellaneous financial and other restrictions.

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Is the International Criminal Court Flawed?

July 8, 2012

A July 8th New York Times headline proclaims, “Arab Uprisings Point Up Flaw in Global Court.” It erroneously suggests that the people operating the International Criminal Court are stupid or cowardly or that the diplomats who in 1998 drafted the ICC’s governing treaty, the ICC’s Rome Statute, were similarly stupid or cowardly.

The article starts with the facts that the ICC has not initiated an investigation of human rights abuses in Yemen and Syria. That is lamentable, but it is not due to a flaw in the operations of the ICC or the Rome Statute.

It is due instead to the limitations on the Court’s jurisdiction that were intentionally established in the drafting of the Rome Statute because of opposition of states like the U.S. that did not want the Court commencing investigations or criminal prosecutions against their citizens if the state did not ratify that Statute.

That Statute’s Article 12 provides, in part, that the Court has jurisdiction if certain crimes (genocide, crimes against humanity or war crimes) are committed on the territory of a state that is a party to the Rome Statute or by nationals of such a state. Neither Yemen nor Syria is such a party, as is true for all other states in the Mideast except Jordan. Thus, the Court does not have jurisdiction of such an investigation or prosecution under Article 12.

The Rome Statute’s Article 13(b) also provides jurisdiction for the Court if the U.N. Security Council, acting under Chapter VII of the U.N. Charter (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression), refers a situation of suspected crimes of that nature to the ICC even if the state where the conduct occurred or whose nationals are involved had not ratified the Rome Statute. In fact, as the New York Times article points out, the Security Council has twice done so: Sudan (Darfur) and Libya.

However, as most people know, the U.N. Charter that was drafted in 1945 at the end of World War II grants in Article 27(3)  a veto on any action by the Council to each of its five permanent members: the U.S., the United Kingdom, France, the Union of Soviet Socialist Republics [now Russia] and the Republic of China. The failure of the ICC to undertake any investigation of the Yemen situation is due to a threatened veto by the U.S. of such a referral.

With respect to Syria, the U.S. in June 2011 reportedly was seeking Russian and Chinese support for a Council referral of the situation to the Court, but that was obviously unsuccessful because no such proposal was actually advanced in the Council. In November 2011 four U.S. Senators (Dick Durbin, Benjamin Cardin, Robert Menendez and Barbara Boxer) sent a letter to the U.S. Ambassador to the U.N. (Susan Rice) asking for such a Security Council referral. They said, “The people of Syria deserve to know that the people of the United States understand their plight, stand behind them, and will work to bring justice to the country.” Security Council referral of Syria to the ICC also has been endorsed by the New York Times.

The next month (December 2011) the U.N. High Commissioner for Human Rights urged the Security Council to make such a referral. But nothing happened, again because of threatened vetoes by Russia and China.

If there is any “flaw” in this structure with respect to Yemen and Syria it is the veto right of the five permanent members of the Security Council. Although many, if not most, of the U.N. members that are not permanent Council members dislike the superior status and veto rights of the permanent Council members and voice various suggestions for reform of the Security Council, expert observers of the U.N. do not think that is at all likely in the near future.

In the meantime, 121 of the 192 U.N. members are now parties to the Rome Statute, and the Court’s governing body (its Assembly of States Parties) is working towards its goal of universal ratification of the Rome Statute. If and when that happened, the Court could initiate investigations and prosecutions with respect to all such parties without Security Council action.

Over the last 60-plus years the peoples of the world through their nation-state governments have been struggling to climb out of the pits of depravity of World War II by creating or codifying international norms or human rights and by constructing mechanisms to protect individuals that are beyond the control of their own national governments while such governments still have sovereignty over most aspects of their lives. The creation and operation of the International Criminal Court and other so-called ad hoc international criminal tribunals are important pieces of this effort. This is an inherently difficult process, and many compromises are necessary in order to make any progress. But the story is not finished. Further development, I am confident, will occur.

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International Criminal Court: Recent Developments in Proposed ICC Investigations

November 20, 2011

In addition to the seven investigations being conducted by the International Criminal Court (ICC), its Office of the Prosecutor (OTP) conducts preliminary examinations of other situations to determine if an official investigation should be conducted. Four such possible preliminary examinations deserve comment.

Syria. This June there were reports that Syrian opposition and human rights groups had asked the OTP to seek authorization for an investigation into alleged crimes by the Syrian government and that discussions about a possible U.N. Security Council referral of the Syrian situation to the ICC were occurring.[1] Since then the Syrian regime has continued to attack and kill protesters with at least 3,500 protesters killed since the uprising began in March.[2] So far the OTP has not commented on Syria.

Recently four U.S. Senators (Dick Durbin, Benjamin Cardin, Robert Menendez and Barbara Boxer) sent a letter to the U.S. Ambassador to the U.N. (Susan Rice) asking for such a Security Council referral. They said, “The people of Syria deserve to know that the people of the United States understand their plight, stand behind them, and will work to bring justice to the country.” The Security Council, the Senators added, should be deeply troubled by the “credible threats to . . . [the] safety” of the U.S. Ambassador to Syria that forced him to leave the country. Security Council referral of Syria to the ICC also has been endorsed by the New York Times.[3]

Palestine. In January 2009, the Palestinian National Authority lodged a declaration with the ICC under Article 12(3) of the Rome Statute which allows States not party to the Statute to accept the Court’s jurisdiction. Later (October 2009) representatives of the Authority and the Arab League visited the Court to support the Authority’s ability to delegate its jurisdiction to the ICC.[4]

The OTP will examine issues related to its jurisdiction: first whether the declaration accepting the exercise of jurisdiction by the Court meets statutory requirements; and second whether crimes within the Court’s jurisdiction have been committed. The Office will also consider whether there are national proceedings in relation to alleged crimes. The OTP has not made any determination on the issue, and recently the Prosecutor said that the issue of Palestinian statehood would have to be resolved elsewhere before the OTP issued any kind of statement on this request.[5]

The recent, and so far unsuccessful, efforts of the Authority to obtain U.N. membership for Palestine have heightened interest in the Authority’s seeking an ICC investigation of Israel’s military actions in the Gaza. Being a member of the U.N. would strengthen the Authority’s argument for ICC jurisdiction over alleged crimes committed by Israel in Gaza.[6]

Liberia. Before Liberia’s recent re-election of Ellen Johnson Sirleaf Tubman as its president, the OTP released a public statement that it was monitoring the pre-election activities of all of the candidates and political parties and that “resorting to violence will not be tolerated.”[7]

Roman Catholic Church Officials. In September a U.S. human rights NGO (the Center for Constitutional Rights) and the Survivors Network of Those Abused by Priests filed a complaint with the OTP seeking an investigation of high-level Vatican officials for alleged cover-up of rapes and sexual violence committed by individual priests as a crime against humanity.[8]

This application poses serious questions as to whether the ICC has jurisdiction over such claims, and I anticipate it will take a long time for the OTP to make any public statement about this request. I will be surprised if the OTP decides to seek approval for such an investigation from the Pre-Trial Chamber of the Court.

[1] Post: International Criminal Court: Possible U.N. Security Council Referral of Syrian Human Rights Abuses to ICC (June 6, 2011).

[2] Bakhi & Gladstone, Syria Faces New Threats as Opposition Seeks Allies, N.Y. Times (Nov. 15, 2011).

[3] US senators: Charge Assad before ICC, Google News (Oct. 25, 2011); Editorial, The Killing in Syria Goes On, N.Y. Times (Nov. 16, 2001).

[4]  ICC, Palestine, www2.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Office+of+the+Prosecutor; Dunphy, An Interview with Luis Moreno-Ocampo (Oct. 1, 2011), http://amicc.blogspot.com.

[5]  Id.; Dunphy, An Interview with Luis Moreno-Ocampo (Oct. 1, 2011), http://amicc.blogspot.com.

[6] Reuters, Committee Is Deadlocked Over Palestinian Membership Bid, N.Y. Times (Nov. 11, 2011); Maccarone, The Palestinian Authority’s Application for United Nations Membership and Its Implications for the International Criminal Court (Sept. 27, 2011), http://www.amicc.org/docs/Palestine_and_the_ICC.pdf.

[7]  ICC prosecutor “monitoring” Liberia elections, expatica. com (Oct. 14, 2011).

[8]  Center for Constitutional Rights, In the Case Against Vatican Officials for Rape and Sexual Violence, We’ve come to the End of the Beginning (Sept. 27, 2011).

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International Criminal Court: Possible U.N. Security Council Referral of Syrian Human Rights Abuses to ICC

June 18, 2011

As previously mentioned, the International Criminal Court (ICC) has jurisdiction over the crime of genocide, crimes against humanity and war crimes, and one of the ways in which it can obtain jurisdiction over a specific situation is by referral from the U.N. Security Council. [1] The Council already has done so with respect to Sudan (Darfur) and Libya.[2]

Now the U.S. is considering asking the U.N. Security Council to refer possible Syrian human rights abuses to the ICC for investigation and possible prosecution. On June 17th U.S. officials said the possible referral was in reaction to the regime’s killing 1,100 civilians since March and another 20 on Friday.[3]

Russia and China, two other permanent Security Council members with veto power, have expressed opposition to pressuring Syria through the Council. But the U.S. now is pressing Russia to support a Council resolution on Syria.[4]

Earlier in June Syrian opposition and human-rights groups presented the ICC’s Prosecutor with information about alleged crimes against humanity by the Syrian regime. This information had details about attacks on civilians: over 1,100 killings, 3,000 injured and 900 forced disappearances. The report also alleged the regime’s use of torture, snipers, attack helicopters and tanks against civilians. [5]

In May U.S. Ambassador-at-Large for War Crimes, Stephen Rapp, reiterated U.S. support for the ICC. He  mentioned how the U.S. as a non-member was cooperating with the ICC: participating as an observer at meetings of the Court’s Assembly of States Parties, assisting the Court with information-sharing, witness relocation and protection and the arrest and transfer of ICC fugitives. The U.S. also supported the Security Council’s referral of the Libyan situation to the ICC.[6]

[1] See Post: The International Criminal Court: Introduction (April 28, 2011).

[2] See Post: The International Criminal Court: Investigations and Prosecutions (April 28, 2011); Post: The International Criminal Court: Libya Investigation Status (May 8, 2011); Post: The International Criminal Court: Three Libyan Arrest Warrants Sought (May 16, 2011).

[3]  Solomon, U.S. Pushes to Try Syria Regime, Wall S. J. (June 18, 2011); Shanker, War Crimes Charges Weighed as Crisis Continues in Syria, N.Y. Times (June 19, 2011); Reuters, Russia’s Medvedev Opposed to U.N. Vote on Syria: Report, N.Y. Times (June 19, 2011).

[4]  Id.

[5] Id.

[6] Rapp, Where Can the Victims of Atrocities Find Justice? (May 10, 2011), http://www.state.gov/s/wci/us_releases/remarks/165257.htm.

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The Ridiculous U.S. Designation of Cuba as a “State Sponsor of Terrorism”

May 20, 2011

The U.S. State Department, pursuant to legislative authority, annually identifies countries that have “repeatedly provided support for acts of international terrorism” and designates them as “state sponsors of terrorism.”[1] The U.S. currently designates the following four countries as “state sponsors of terrorism:” Cuba, Iran, Sudan and Syria.[2] Note that Libya and North Korea, which were previously on the list, are no longer present; these are two stories for others to pursue.

The following is the complete text of the State Department’s rationale for its most recent designation of Cuba:[3]

  • “The Cuban government and official media publicly condemned acts of terrorism by al-Qa’ida and affiliates, while at the same time remaining critical of the U.S. approach to combating international terrorism. Although Cuba no longer supports armed struggle in Latin America and other parts of the world, the Government of Cuba continued to provide physical safe haven and ideological support to members of three terrorist organizations that are designated as Foreign Terrorist Organizations by the United States.”
  • “The Government of Cuba has long assisted members of the Revolutionary Armed Forces of Colombia (FARC), the National Liberation Army of Colombia (ELN), and Spain’s Basque Homeland and Freedom Organization (ETA), some having arrived in Cuba in connection with peace negotiations with the governments of Colombia and Spain. There was no evidence of direct financial support for terrorist organizations by Cuba in 2009, though it continued to provide safe haven to members of the FARC, ELN, and ETA, providing them with living, logistical, and medical support.”
  • “Cuba cooperated with the United States on a limited number of law enforcement matters. However, the Cuban government continued to permit U.S. fugitives to live legally in Cuba. These U.S. fugitives include convicted murderers as well as numerous hijackers. Cuba permitted one such fugitive, hijacker Luis Armando Peña Soltren, to voluntarily depart Cuba; Peña Soltren was arrested upon his arrival in the United States in October.”
  • “Cuba’s Immigration Department refurbished the passenger inspection area at Jose Marti International Airport and provided new software and biometric readers to its Border Guards.”[4]

One of the factual predicates for the designation of Cuba as a “state sponsor of terrorism” is true: FARC, ELN and ETA have been designated “Foreign Terrorist Organizations” by the State Department, and such designations presumably are well founded. But what has Cuba done with respect to these three organizations? It has provided “physical safe haven and ideological support to [an unspecified number of their] members.” How many members? What were the particulars of the safe haven?  We are not told other than “living, logistical, and medical support.” And some of these members, the State Department concedes, were in Cuba to participate in peace negotiations with the governments of Columbia and Spain. Moreover, by the State Department’s own admission, there “was no evidence of direct financial support [by Cuba] for [these three] . . . organizations in 2009.”

Further qualifications to this basis for the designation were made in the State Department’s prior annual antiterrorism report, which said that “on July 6, 2008, former Cuban President Fidel Castro called on the FARC to release the hostages they were holding [in Colombia] without preconditions.”  Fidel  ”also had condemned the FARC’s mistreatment of captives and of their abduction of civilian politicians [in Colombia] who had no role in the armed conflict.”[5]

The other factual predicate for the most recent designation, I submit, is outright insufficient. Cuba, the State Department says, has continued to permit an unspecified number of U.S. fugitives (“convicted murderers and numerous hijackers”) to live legally in Cuba. Even if true, it is difficult to see how this is support of terrorism. Moreover, we are not told how many such fugitives there are and the circumstances of their cases. The State Department does not even call them “terrorists.” Again, the State Department’s prior annual antiterrorism report on Cuba provides details further undermining this charge.  It stated, “The Cuban government continued to permit some U.S. fugitives—including members of U.S. militant groups such as the Boricua Popular, or Macheteros, and the Black Liberation Army to live legally in Cuba. In keeping with its public declaration, the [Cuban] government has not provided safe haven to any new U.S. fugitives wanted for terrorism since 2006.”[6]

The balance of the State Department’s most recent “rationale” is, in fact, complimentary of Cuba. “”The Cuban government and official media publicly condemned acts of terrorism by al-Qa’ida and affiliates.” “Cuba no longer supports armed struggle in Latin America and        other parts of the world.” “Cuba cooperated with the United States on a limited number of law enforcement matters.” “Cuba’s Immigration Department refurbished the passenger inspection area at Jose Marti International Airport and provided new software and biometric readers to its Border Guards.” Another complimentary comment was made in the prior annual report:  there is “no evidence of terrorist-related money laundering or terrorist financing activities in Cuba.”[7]

The designation of Cuba as a “state sponsor of terrorism” has been reviewed by the Congressional Research Service, which said in 2006: “Cuba was first designated a state sponsor of terrorism in 1982. Although it has ratified all 12      counterterrorism conventions, it has remained opposed  to the U.S. global war on terrorism. The CIA judged in August 2003 that ‘We have no credible evidence, however, that the Cuban     government has engaged in or directly supported international terrorist operations in the past decade, although our information is insufficient to say beyond a doubt that no collaboration has occurred.’”[8]

Some prior U.S. antiterrorism reports talked about Cuba’s alleged weapons of mass destruction program, but note that there is not any mention of such an alleged program in the most recent report. This canard was also rebutted by the Congressional Research Service: ”The Administration’s assertions concerning Cuba’s WMD programs, which some observers dispute, focus on limited biological weapons research and development. Construction at the Juragua nuclear facility (two incomplete Russian nuclear power reactors) was indefinitely postponed in 1997.”[9]

The State Department’s best case for calling Cuba a “state sponsor of terrorism,” upon analysis, is ridiculous. The designation should be rescinded, and the U.S. and Cuba should get down to the real business of engaging in face-to-face, serious negotiations to resolve their many long-accumulated differences.

[1]  Countries determined by the Secretary of State to have repeatedly provided support for acts of international terrorism are designated pursuant to three laws: section 6(j) of the Export Administration Act, section 40 of the Arms Export Control Act, and section 620A of the Foreign Assistance Act. (U.S. State Dep’t, Country Reports on Terrorism 2009 (Aug. 5, 2010), http://www.state.gov/s/ct/rls/crt/2009/index.htm.) Such designation results in the following sanctions by the U.S.: (1) a ban on arms-related exports and sales; (2) controls over exports of dual-use items, requiring 30-day Congressional notification for goods or services that could significantly enhance the terrorist-list country’s military capability or ability to support terrorism; (3) prohibitions on economic assistance; and (4) imposition of miscellaneous financial and other restrictions.

[2]  Id.

[3]  Cuba is the oldest member of the list; it has been on this list since January 1, 1982. Id.

[4]  Id.

[5]  U.S. Dep’t of State, Country Reports on Terrorism 2008, ch. 3 (April 30, 2009), http://www.state.gov/s/ct/rls/crt/2008/122436.htm.

6]  Id.

[7]  Id.

[8] CRS, Globalizing Cooperative Threat Reduction: A Survey of Options (Oct. 5, 2006), http://fpc.state.gov/documents/organization/74901.pdf. See also CRS, Cuba and the State Sponsors of Terrorism List (May 13, 2005), http://www.fas.org/sgp/crs/terror/RL32251.pdf.

[9]  Id.

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