Issues Regarding Cuba and U.S. Extradition of the Other’s Fugitives

Another issue for U.S.-Cuba reconciliation is whether Cuba will extradite to the U.S. fugitives from U.S. criminal prosecution and whether the U.S. will do likewise for any fugitives from Cuban authorities who are in the U.S.

The U.S.-Cuba Extradition Treaty

This issue appears to be governed by the “Treaty between the United States and Cuba for the mutual extradition of fugitives from justice,” which entered into force on March 2, 1905. [1]

Under this treaty, as amended, each country shall grant extradition of persons covered by Article I for crimes covered by Article II, as amended and expanded by Articles I and II of the Additional Extradition Treaty between the parties, which entered into force on June 18, 1926 (44 Stat. 2392; TS 737).

The persons covered by Article I are “persons who, having been charged as principals, accomplices or accessories with or convicted of any crimes or offenses specified in the following article, and committed within the jurisdiction of one of the high contracting parties, shall seek an asylum or be found within the territories of the other: Provided that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his or her apprehension and commitment for trial if the crime or offense had been there committed.”  However, under Article V of the treaty, “Neither of the contracting parties shall be bound to deliver up its own citizens under the stipulations of this Treaty.”

The long list of crimes covered by Article II, as amended, includes the following: (1) “Murder, comprehending the offenses expressed in the Penal Code of Cuba as assassination, parricide, infanticide and poisoning; manslaughter, when voluntary; the attempt to commit any of these crimes.” (2) “Arson.” and (3) “Robbery, defined to be the act of feloniously and forcibly taking from the person of another money, goods, documents, or other property, by violence or putting him in fear; burglary; housebreaking and shopbreaking.”

Under Article VI of the original treaty, however, the requested country is not obligated to extradite someone when the offense is of “a political character.” The exact language of this provision states, “A fugitive criminal shall not be surrendered if the offense in respect of which his surrender is demanded be of a political character, or if it is proved that the requisition for his surrender has, in fact, been made with a view to try or punish him for an offense of a political character.” (Emphasis added.) [2]

The only limitation on this exception is in Article VI itself, which states, “An attempt against the life of the head of a foreign government or against that of any member of his family when such attempt comprises the act either of murder, assassination, or poisoning, shall not be considered a political offense or an act connected with such an offense.” (Emphasis added.)

Moreover, Article VI states, “If any question shall arise as to whether a case comes within the provisions of this article [VI], the decision of the authorities of the government on which the demand for surrender is made, or which may have granted the extradition shall be final. (emphasis added.) [3]

To have a better understanding of this treaty, it would be useful to see all documents regarding (a) the negotiation of the treaty in 1904-1905 and its amendment in 1926; and  (c) previous U.S. and Cuban requests for extradition.

U.S. International Extradition Practice

Being unfamiliar with extradition generally or with treaties on the subject specifically, I was surprised by the provisions about “political offenses” in the U.S.-Cuba extradition treaty, I wondered if they were sui generis and how they have been interpreted in practice.

Research indicated that they are not sui generis. This is at least the conclusion based upon a report for Fiscal Years 2000 and 2001 submitted to the Congress by the U.S. Department of State. It stated, in part, “A similarly widely adopted exception is that extradition is not required where the crime at issue is a “political offense” (a term which can cover treason, sedition or other crime against the state without the elements of any ordinary crime, or which under U.S. law can cover ordinary crimes committed incidental to or in furtherance of a violent political uprising such as a war, revolution or rebellion, especially when such crimes do not target civilian victims).”

That report to Congress also stated that U.S. extradition “treaties typically provide that extradition may be denied if the request is found to be politically motivated.  Some of our treaties provide that extradition may be denied if the request was made for the primary purpose of prosecuting or punishing the person sought on account of race, religion, nationality or political opinion.”

Research, however, did not disclose the rationale for such typical provisions although I could understand that a country making a request for extradition for a “political offense”  could not reasonably be expected to have an unbiased view on the legitimacy of its request while the requested country, if acting in good faith, could be expected to act more objectively and dispassionately. Nor have I uncovered sources explaining how such provisions have been interpreted and used in practice. I solicit comments that shed light on these issues.

Moreover, the U.S.-Cuba extradition treaty treaty by itself does not prohibit the requested country from granting a request for extradition that might be viewed as “political” or from reversing a prior determination by the requested country to reject a request on that ground. The requested country’s own laws, however, may prohibit such actions.

U.S. Fugitives in Cuba

According to U.S. Department of State annual reports purportedly justifying the designation of Cuba as a “State Sponsor of Terrorism,” there have been or still are over 70 individuals living in Cuba who are fugitives from criminal charges in U.S. relating to violent acts in the 1970’s purportedly committed to advance political causes. Pursuant to a 2005 Cuban government statement, however, these U.S. reports also say no additional U.S. fugitives have been permitted on the island and in a few instances Cuba has extradited such fugitives to the U.S.

However, a U.S. newspaper recently asserted, “The U.S. has no idea how many fugitives Cuba’s harboring,” And on January 23, 2015, U.S. Senator Marco Rubio (Rep., FL) and two other Republican Senators (David Vitter (LA) and Ted Cruz (TX)) asked the F.B.I. to submit a complete list of such fugitives with copies of their U.S. indictments.

In any event, one of the most notable U.S. fugitives still on the island is JoAnne Chesimard (a/k/a Assata Shakur), a political radical and former member of the Black Panther Party and the militant Black Liberation Army, who in 1979 broke out of a New Jersey prison where she was serving a life sentence for assault, armed robbery and aiding and abetting the murder of a New Jersey state trooper. After hiding in the New York area, she fled to Cuba in 1984, where she was granted political asylum that same year and has lived ever since. According to her U.S. attorney, she “has maintained from the time she was arrested that she was a victim of a counter intelligence program by the FBI and that she was stopped on the New Jersey turnpike as result of her being targeted by FBI.”

After the December 17, 2014, announcement of the U.S.-Cuba accord, New Jersey’s Governor, Chris Christie, and law enforcement officials expressed their desire for her extradition to the U.S.

Cuba, however, has rejected previous U.S. requests for her extradition on the ground that Cuba had determined she was being sought on “political” grounds and, therefore, had decided to grant her asylum. In addition, there are also some indications that Chesimard/Shakur has been granted Cuban citizenship, which would provide Cuba with another reason under the treaty to deny a U.S. request for her extradition. It would be useful to know the details of all prior U.S. requests for her extradition.

After the December 17th accord, Josefina Vidal said, “every nation has sovereign and legitimate rights to grant political asylum to people it considers to have been persecuted. … That’s a legitimate right. We’ve explained to the U.S. government in the past that there are some people living in Cuba to whom Cuba has legitimately granted political asylum.”  Presumably this statement includes Chesimard/Shakur.

Cuban Fugitives in U.S.

Less is known about Cuban fugitives in the U.S., but they could include Cubans who fled to the U.S. after the Revolution of 1959, especially those who allegedly took part in organizing the failed 1961 Bay of Pigs invasion.

At the top of this list probably is Luis Posada Carriles, the alleged mastermind behind the bombing of a Cuban airliner, who entered the US in 2005. in 2011, he was put on trial in El Paso, Texas, for allegedly lying to U.S. immigration authorities about how he got into the country and his alleged participation in terrorist attacks, but he was acquitted of those charges.

Recently Josefina Vidal said, “We’ve reminded the U.S. government that in its country they’ve given shelter to dozens and dozens of Cuban citizens. Some of them accused of horrible crimes, some accused of terrorism, murder and kidnapping, and in every case the U.S. government has decided to welcome them.”

Proposed Means for Resolving Extradition Issues

Here is my suggestion for resolving outstanding extradition issues.

First, by a certain date the countries should exchange complete lists of suspected fugitives in the other country with requests for extradition.

Second, by another certain date the countries should exchange responses to the lists of suspected fugitives indicating whether they are alive and in the country and whether they will be extradited and if not, why not. In addition, these documents should include names of other fugitives in their countries that were not on the original lists.

Third, by another date certain, the countries should exchange statements indicating whether they object to any refusals to extradite and why.

Fourth, by another date certain, the countries should exchange responses to objections to refusals to extradite with reasons why they are still pursing the requests.

Fifth, on a date certain the countries should meet to determine whether they can resolve  any disputes over refusals to extradite.

Sixth, by a date certain, the countries would submit any remaining disputes over extradition to an arbitration panel of one or three arbitrators at the Permanent Court of Arbitration at the Hague in the Netherlands for an award that the countries, in advance, agree to implement and enforce.

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[1] Recently there have been frequent assertions in the press that there is no extradition treaty between the two countries. And after December17th, Josefina Vidal, the Cuban official in charge of the current negotiations with the U.S., asserted, “There’s no extradition treaty in effect between Cuba and the U.S.” Those statements seem erroneous. Such a treaty has never been revoked and is still on the U.S. list of extradition treaties in force. However, there are some reports that after the Cuban Revolution of 1959, the U.S. ceased to honor the treaty.

[2] The Spanish language version of this sentence does not appear to be significantly different. It states:  “No será entregado el criminal fugitivo si el delito con respecto al cual se solicita su entrega es de carácter político, ó si se preuba que la reclamación de su entrega se ha formulado en realidad con el objecto de enjuiciarlo ó castigarlo por un delito de carácter polìtico.” However, the preamble to the 1926 Additional Extradition Treaty says the original treaty was signed on April 6, 1904, and the Protocol amending the Spanish text of that treaty was signed on December 6, 1904.  I have not been able to find that Protocol, but would like to know whether it concerns this sentence or the other sentence in Article VI mentioned above.

[3] The Spanish language version of this sentence does not appear to be significantly different. It states, “Cuando surgiere alguna duda respecto á si son aplicables á un caso dado las disposícíones de este artículo, lo que resolvieren las Autoridades del Govierno á quien se pidiere la entrega ó que hubiese accedido  á la extradición, será definitivo.”

[4] Report on International Extradition Submitted to the Congress Pursuant to Section 211 of the Admiral James W. Nance and Meg Donovan Foreign Relations Reauthorization Act, Fiscal Years 2000 and 2001 (Public Law 106-113).