New York Times Urges Normalization of U.S.- Cuba Relations

In an October 12th editorial the New York Times says, “For the first time in more than 50 years, shifting politics in the United States and changing policies in Cuba make it politically feasible to re-establish formal diplomatic relations and dismantle the senseless embargo.” Indeed, in the Times’ opinion, these changes in U.S. policy should be accompanied by ending the U.S. designation of Cuba as a “State Sponsor of Terrorism.”[1]

 Editorial’s Commentary on Cuba’s Current Conditions

The Times points out that Cuba has “taken significant steps to liberalize and diversify the island’s tightly controlled economy.” This includes “allowing citizens to take private-sector jobs and own property.” encouraging foreign investment, constructing a major deep-sea port in Mariel with Brazilian capital and negotiating a cooperation agreement with the European Union. Although the pace of reform may seem slow and inconsistent, these are significant changes.

On the other hand, the Times asserts that the Cuban “government still harasses and detains dissidents . . . [and has not explained] the suspicious circumstances surrounding the death of political activist Oswaldo Payá.” This is outweighed, however, by the Cuban government’s in recent years having “released political prisoners” and showing “slightly more tolerance for criticism of the [government’s leadership” while loosening travel restrictions “enabling prominent dissidents to travel abroad.”[1a]

Editorial’s Recommendations for U.S. Policy

End Designation of Cuba as a “State Sponsor of Terrorism.” The Times recommends that the U.S. “should remove Cuba from State Department’s list of nations that sponsor terrorist organizations . . . .   Cuba was put on the list in 1982 for backing terrorist groups in Latin America, which it no longer does. . . . [and Cuba now] is playing a constructive role in the conflict in Colombia by hosting peace talks between the government and guerrilla leaders.” [2]

End the Embargo. Just 16 days before the U.N. General Assembly is expected again to overwhelmingly approve Cuba’s resolution to condemn the embargo, the Times says the U.S should end its embargo of Cuba as it has become “clear to many American policy makers that the embargo was an utter failure.” In addition, now a slight majority of Cuban-Americans in Florida oppose the embargo.

“Fully ending the embargo will require Congress’s approval,” which may be difficult to obtain in this time of a dysfunctional Congress, but the Administration could “lift caps on remittances, allow Americans to finance private Cuban businesses and expand opportunities for travel to the island.”

Ending the embargo, according to the Times, “could also help American companies that are interested in developing the island’s telecommunications network but remain wary of the legal and political risks. Failing to engage with Cuba now will likely cede this market to competitors. The presidents of China and Russia traveled to Cuba in separate visits in July, and both leaders pledged to expand ties.”

In addition, ending the embargo would eliminate Cuba’s using the embargo as an excuse for the Cuban government’s shortcomings.[3]

Restoration of Diplomatic Relations. Says the Times, “Restoring diplomatic ties, which the White House can do without congressional approval, would allow the United States to expand and deepen cooperation in areas where the two nations already manage to work collaboratively — like managing migration flows, maritime patrolling and oil rig safety.[4] It would better position Washington to press the Cubans on democratic reforms, and could stem a new wave of migration to the United States driven by hopelessness.”

Closer ties could also bring a breakthrough on the case of an American development contractor, Alan Gross, who has been unjustly imprisoned by Cuba for nearly five years.[5] More broadly, it would create opportunities to empower ordinary Cubans, gradually eroding the government’s ability to control their lives.

In the opinion of the Times, Restoring relations would improve U.S. “relationships with governments in Latin America, and resolve an irritant that has stymied initiatives in the hemisphere.” The most current example of that irritant is “Latin American governments . . . [insisting] that Cuba, the Caribbean’s most populous island and one of the most educated societies in the hemisphere, be invited” to next year’s Summit of the Americas in Panama over U.S. opposition.

Moreover, “The [Cuban] government has said it would welcome renewed diplomatic relations with the United States and would not set preconditions” while a significant majority of Cuban-Americans favor restoring diplomatic ties, mirroring the views of other Americans.

Reactions to the Editorial 

I concur in all of the Times’ recommendations, but believe it understates the economic reasons for these changes in U.S. policy. Here is a fuller exposition of those economic reasons.

This month Dr. José Ramón Cabañas Rodriguez, the Chief of Mission, Cuban Interests Section, said that the U.S. was running the risk of becoming economically irrelevant to Cuba. Many foreign countries, especially China, and foreign companies are developing good commercial relationships with Cuba and its new private businesses with ordinary commercial terms, unlike the U.S. sales of food and agricultural products under an exemption to the U.S. Helms-Burton Law that requires Cuba to pay in advance and in cash for such products. This U.S. practice is not a good way to encourage future business. Moreover, the new Mariel port and its adjacent business park is attracting interest from companies all over the world, and if all the space in that park is committed to these foreign companies, there will be nothing left for U.S. companies.

The geographical setting of the new Mariel port is strategic in terms of trade, industry and services in Latin America and the Caribbean. On the northern cost of Cuba only 45 km west of Havana, it is located along the route of the main maritime transport flows in the western hemisphere. As the largest industrial port in the Caribbean, it will be equipped with state-of-the-art technology to handle cargo from the larger container ships that will begin to arrive when the expansion of the Panama Canal is completed in December 2015. Those larger ships can carry up to 12,500 containers, triple the capacity of the current ships, and the port’s warehouse capacity is 822,000 containers. Here are some photos of the development of this port.

Mariel PortMariel3

The Mariel project includes highways connecting the port with the rest of the country, a railway network, and communication infrastructure. In the adjacent special zone, currently under construction, there will be productive, trade, agricultural, port, logistical, training, recreational, tourist, real estate, and technological development and innovation activities in installations that include merchandise distribution centers and industrial parks.

The special zone is divided into eight sectors, to be developed in stages. The first involves telecommunications and a modern technology park where pharmaceutical and biotechnology firms will operate. Other sectors include renewable energies, agriculture and food, chemical, construction materials, logistics and rental equipment. For the last four sectors Cuba is currently studying the approval of 23 projects from Europe, Asia and the Americas.

The May 2014 visit to Cuba by a delegation from the U.S. Chamber of Commerce evidences U.S. businesses’ cognizance of these economic and commercial realities. The delegation’s head and the Chamber’s president, Thomas Donohue,  said in a speech in Havana, “For years, the US Chamber of Commerce has demanded that our government eliminate the commercial embargo on Cuba. It’s time for a new approach.” At the conclusion of the trip he said the delegation and Cuban officials had “talked about steps forward that might be taken by both countries” to improve U.S.-‪Cuba relations and that their meetings with President Raul Castro had been “positive.” In addition, the Chamber in congressional testimony has called for an end to the embargo and has supported proposed legislation to end the ban on U.S. citizens traveling to the island and easing restrictions on U.S. exports of farm and medical products.

Another sign of U.S. companies’ interest in Cuba is the visit to the island this past June by Google executives. They said they discussed increasing Cubans access to the Internet and Cuba’s need for improving its Internet technology.

These U.S. economic concerns were highlighted in February 2014 by U.S. Senator Patrick Leahy, who earlier had led a visit with four other Senators to Cuba. Leahy said, “Trade with Latin America is the fastest growing part of our international commerce.  Rather than isolate Cuba with outdated policies, we have isolated ourselves.  Our Latin, European and Canadian friends engage with Cuba all that time.  Meanwhile, U.S. companies are prohibited from any economic activity on the island.” Therefore, the Senator said, “It is time – past time – to modernize our policies and the frozen-in-time embargo on Americans’ travel and trade with Cuba that have accomplished nothing but to give the Cuban regime a scapegoat for the failures of the Cuban economy.  Change will come to Cuba, but our policies have delayed and impeded change.  It is time to elevate the voice of a crucial stakeholder:  the American people. Thanks to this [recent public opinion] poll, they are silent no longer. It is time to recognize that U.S. policy toward Cuba has been unsuccessful in achieving any of its objectives.”

Given the limited space for an individual editorial, the New York Times editorial does not discuss any of the other many issues that need to be addressed by the two countries in order to establish truly normal relations. Nor does it discuss how this normalization process can happen or be facilitated.

In contrast, this blog repeatedly has suggested both counties need a neutral third-party with the resources and commitment to act as mediator and has called for such a third-party to step forward to offer such services, rather than waiting for the U.S. or Cuba to make such a proposal unilaterally or for the two countries to agree to such a mediation. [6]

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[1] Interestingly the online version of the editorial is titled “End the U.S. Embargo on Cuba” with a linked Spanish translation while the print version is titled “The Moment to Restore Ties to Cuba.”

[1a] This month Dr. José Ramón Cabañas Rodriguez, the Chief of Mission, Cuban Interests Section, emphasized that Cuba now has term limits on every governmental office, including president: two terms of five years each for a total limit of 10 years, and Raul Castro has announced that this applies to him and thus ends his term as president in 2018. Dr. Cabañas also emphasized that many younger people are taking over many governmental positions and that there has been a decentralization of power to municipalities.

[2] This blog has provided detailed criticism of the ridiculous, absurd, stupid and cowardly rationales provided by the U.S. for such designations in 2010, 2011, 2012 (with supplement), 2013 and 2014.

[3] This blog has provided criticisms of the embargo.

[4] This month Dr. José Ramón Cabañas Rodriguez also said that the U.S. and Cuba in recent years have had bilateral discussions regarding migration, drug trafficking, search and rescue in the Florida straits, stopping oil spills in the Caribbean, airline security measures, scientific exchanges and restoration of direct telephone and mail services. In addition, the U.S. has invited or permitted an invitation to Cuba to attend a Clean Oil Conference in San Antonio, Texas in December 2014.

[5] Although it certainly is debatable whether Mr. Gross was unjustly convicted in Cuban courts for violating Cuban law, I agree that it is in the U.S. national interest to have him released and returned to the U.S. Cuba, however, has argued that the three of the “Cuban Five” still in U.S. prisons should also be released and allowed to return to their homes. At a minimum, I believe that negotiations between the two countries could and should lead to at least a one-for-one exchange with the U.S. President commuting the sentence of one of the three Cubans to time served.

[6] This blog has called for normalization of Cuba-U.S. relations and has criticized the U.S. for insisting on preconditions for holding any talks with Cuba to improve relations. Another blog post was a public letter to President Obama recommending reconciliation with Cuba. In addition, this year a group of 50 prominent Americans issued a public letter to the President urging him to take executive action to expand U.S. involvement with Cuba. Another blog post criticized recent opposition to pursuing such reconciliation.

U.S. State Department’s Report on International Religious Freedom in 2013

USDeptStateseal

On July 28, 2014, the U.S. State Department released its annual report on religious freedom around the world.[1]

 Secretary of State Kerry’s Comments

Announcing the release of the report, U.S. Secretary of State John Kerry said although the U.S. was “obviously far from perfect,” it was important for the U.S. to treasure freedom of religion as “a universal value. . . . The freedom to profess and practice one’s faith is the birthright of every human being . . . [and] are properly recognized under international law. The promotion of international religious freedom is a priority for President Obama and it is a priority for me as Secretary of State.” In short, “religious freedom remains an integral part of our global diplomatic engagement.”

Executive Summary of the Report

The world had the largest displacement of religious communities in recent memory. In almost every corner of the globe, millions of Christians, Muslims, Hindus, and others representing a range of faiths were forced from their homes on account of their religious beliefs. Out of fear or by force, entire neighborhoods are emptying of residents. Communities are disappearing from their traditional and historic homes and dispersing across the geographic map.” In conflict zones (Syria, Central African Republic and Burma), this mass displacement has become a pernicious norm.

All around the world, individuals were subjected to discrimination, violence and abuse, perpetrated and sanctioned violence for simply exercising their faith, identifying with a certain religion, or choosing not to believe in a higher deity at all. Countries where this was a significant problem were Pakistan, Egypt, Saudi Arabia, Iran, Bangladesh, Sri Lanka and Eritrea. Throughout Europe, the historical stain of anti-Semitism continued to be a fact of life.

Governments repressed religious freedom. Governments from all regions subjected members of religious groups to repressive policies, discriminatory laws, disenfranchisement, and discriminatory application of laws. These governmental actions not only infringed on freedom of religion themselves, but they also often created a permissive environment for broader human rights abuses. Restrictive policies included laws criminalizing religious activities and expression, prohibitions on conversion or proselytizing, blasphemy laws, and stringent registration requirements or discriminatory application of registration requirements for religious organizations. This was especially true in North Korea, Saudi Arabia, Iran, Sudan, China, Cuba, Tajikistan, Turkmenistan, Uzbekistan, Pakistan, Burma, Russia and Bahrain.

Governments engaged in discrimination, impunity and displacement of religious minorities. When governments choose not to combat discrimination on the basis of religion and intolerance, it breeds an environment in which intolerant and violent groups are emboldened, even to the point of physically attacking individuals on the basis of their religious beliefs. Governments in these countries failed to protect vulnerable communities and many religious minority communities were disproportionately affected, resulting in a large number of refugees and internally displaced persons. This was especially true in Syria, Sri Lanka, Egypt, Iraq, Bangladesh, Indonesia, India and Nigeria. Rising anti-Semitism and anti-Muslim sentiment in the following countries of Europe demonstrated that intolerance is not limited to countries in active conflict:Belgium, France, Germany, Hungary, Italy, Latvia, Sweden and United Kingdom.

Religious minority communities were disproportionately affected by violence, discrimination and harassment. In many regions of the world, religious intolerance was linked to civil and economic strife and resulted in mass migration of members of religious minority communities throughout the year. In some of these areas, the outward migration of certain communities has the potential to permanently change the demographics of entire regions.

“Countries of Particular Concern”

Pursuant to the International Religious Freedom Act of 1998, the Secretary of State designated the following countries as “Countries of Particular Concern” (CPC): Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, Turkmenistan, and Uzbekistan. Such countries “engage in or tolerate particularly severe violations of religious freedom” or “systematic, ongoing, and egregious violations of religious freedom, including torture, cruel, inhuman, or degrading treatment or punishment, prolonged detention without charges, abduction or clandestine detention of persons, or other flagrant denial of the right to life, liberty, or the security of persons based on religion.”

Turkmenistan, which is new to this State Department list, is the only one of eight countries recommended for such designation by the latest report from the U.S. Commission on International Religious Freedom. The others so recommended by the Commission are Egypt, Iraq, Nigeria, Pakistan, Syria, Tajikistan and Vietnam.

Ambassador-at-large for International Religious Freedom

Simultaneously with this report’s release, the Obama administration announced the nomination of Rabbi David Saperstein as the next ambassador-at-large for international religious freedom. Rabbi Saperstein, a reform rabbi and lawyer known for his work in Washington to advance religious freedom, would be the first non-Christian to lead the State Department’s Office of International Religious Freedom, if confirmed by the Senate.

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[1] This post is based upon the International Religious Freedom Report for 2013 (July 28, 2014); Secretary Kerry, Remarks at Rollout of the 2013 Report on International Religious Freedom (July 28, 2014); Assistant Secretary Malinowski, Remarks on the Release of the 2013 Report on International Religious Freedom (July 28, 2014); Department of State, Fact Sheet: 2013 Report on International Religious Freedom (July 28, 2014). Earlier posts covered the international law regarding religious freedom and the State Department’s reports on the subject for 2011 and 2012.

The U.S. Commission on International Religious Freedom’s Annual Report 2014   

Comm'n Intl Religious Free                                                

On April 30, 2014, the quasi-independent U.S. Commission on International Religious Freedom released its Annual Report 2014, pursuant to the International Religious Freedom Act of 1988 (“the Act”).[1]

Introduction

The Commission relies upon this definition of the freedom in the Universal Declaration of Human Rights: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” Similar provisions are found in several multilateral human rights treaties.[2] (P. 9.)

The Report stressed the importance of this freedom. It says this right “protects the freedom of religious communities, as groups, to engage in worship and other collective activities. It also protects every individual’s right to hold, or not to hold, any religion or belief, as well as the freedom to manifest such a religion or belief, subject only to the narrow limitations specified under international law.” (P. 9.)

This right is important, says the Commission, “because it enables people to follow what their conscience dictates. . . . People are entitled to religious freedom by virtue of their humanity.” Therefore, there can be no “coercion or compulsion in these matters.” (P. 2.)

Moreover, whenever this freedom is abused, “societal well-being would suffer” as well as democracy and other human rights and economic productivity. So too “peace and security may become more elusive.” In short, according to the commission, “the defense of religious freedom is both a humanitarian imperative and a practical necessity.” (P. 3.)

General Recommendations

The Commission recommended that the U.S. do the following with respect to this freedom:

  • develop and implement a religious freedom strategy;
  • demonstrate the importance of religious freedom , including the designation of “countries of particular concern ” identified by the Commission;
  • reinvigorate and create new tools under the Act;
  • expand training, programming and public diplomacy about the subject;
  • expand multilateral efforts on the subject; and
  • protect asylum-seekers from being returned to countries where they face persecution for religious reasons. (Pp. 7-8.)

“Countries of Particular Concern” (Tier 1 Countries)

Under its authorizing statute, the Commission is required to designate as “countries of particular concern” (CPC) (or “Tier 1 Countries”) those that have engaged in or tolerated “particularly severe” violations of religious freedom. (P. 5.)

The latest report recommends that the Secretary of State re-designate the following eight countries as Tier 1 countries: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan and Uzbekistan. In addition, the Report recommends that the following additional eight countries also be so designated by the State Department: Egypt, Iraq, Nigeria, Pakistan, Syria, Tajikistan, Turkmenistan and Vietnam. (P. 5.)

Tier 2 Countries

The Commission also designates some countries as “Tier 2 Countries,” i.e., countries on the threshold of Tier 1 status, i.e., when their “violations . . . are particularly severe” and when at least one, but not all three, of the criteria for that status (“systematic, ongoing and egregious”) is met. (P. 5.)

The latest Report designated the following nine countries as Tier 2: Afghanistan, Azerbaijan, Cuba, India, Indonesia, Kazakhstan, Laos, Russia and Turkey.[3] (P. 5.)

Other Countries

The latest Report also discussed seven other countries (Bahrain, Bangladesh, Belarus, Central African Republic, Ethiopia, Kyrgyzstan and Sri Lanka) and one region (Western Europe) that it monitored during the year. (P. 5.)

Conclusion

Because of my personal interest in Cuba, including its religious freedom, a subsequent post will critique the Report regarding that country.

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[1] The Act § § 202, 205. The Report contains an account of the development of the Act and the 15-year history of its implementation. (Pp. 11-23.) A prior post examined the fascinating structure and composition of the Commission, and another post its report issued in 2013.

[2] See Post: International Law Regarding Freedom of Religion (Jan. 1, 2012).

[3] Previously the Commission called this group the “Watch List of countries where the serious violations of religious freedom engaged in or tolerated by the governments do not meet the CPC threshold, but require close monitoring.” According to the Commission, the “Watch List provides advance warning of negative trends that could develop into severe violations of religious freedom, thereby providing policymakers with the opportunity to engage early and increasing the likelihood of preventing or diminishing the violations.”

 

 

 

 

 

 

 

 

Amending Spain’s Universal Jurisdiction Statute

Spain currently is in the process of adopting an amendment to its statute regarding universal jurisdiction for one of its courts. This post will examine that forthcoming amendment after looking at the background of that amendment.

Background

Under customary international law and certain treaties, a nation state has universal jurisdiction over certain crimes of international concern regardless of where the crimes were committed or the nationality of the victims or perpetrators. These crimes of international concern are (a) piracy; (b) slavery; (c) war crimes; (d) crimes against peace; (e) crimes against humanity; (f) genocide; and (g) torture. (This was discussed in a prior post.)

Spain implemented this principle in 1985 in its own domestic statutory law by conferring such jurisdiction on its National Court (La Audiencia Nacional) for the following crimes: (a) genocide; (b) terrorism; (c) piracy and hijacking of aircraft; (d) falsification of foreign currency; (e) prostitution and corruption of minors or incompetents; (f) trafficking in illegal, psychotropic, toxic and narcotic drugs; and (g) any other crimes under international treaties or conventions that should be prosecuted in Spain.

In 2009 Spain amended this statute to add these additional crimes for universal jurisdiction: crimes against humanity; illegal trafficking or illegal immigration of persons; and female genital mutilation (FGM). In addition, the amendment specified that these conditions or limitations had to be established for such jurisdiction: the alleged perpetrators were in Spain; or the victims were of Spanish nationality; or there was another connecting link to Spain.

Finally the 2009 amendment specified that for such Spanish jurisdiction to exist, another country or international tribunal had not started a process involving an investigation and successful prosecution of such offenses; if there were such another process, then the Spanish court should suspend or stay its case until the other investigation and prosecution has been concluded. The latter provision is referred to as the subsidiary principle.

The New Amendment

On February 11, 2014, Spain’s Congress of Deputies (Congreso de los Diputados), the lower house of the country’s bicameral legislature (los Cortes Generales), approved another amendment to this statute (Article 23.4 of the 1985 Organic Law of the Judicial Power, as amended).[1] Since the same political party (Party Popular) also controls Spain’s Senate, it is anticipated that the Senate will pass the bill as well. Here are the principal provisions of the amendment:

  • The following specific crimes were added for universal jurisdiction: (i) war crimes (crimes against persons or goods in armed conflict); (ii) torture and crimes against moral integrity; (iii) crimes under the Convention on the Physical Protection of Nuclear Material; (iv) crimes covered by the Council of Europe Convention on the prevention and combatting of violence against women and domestic violence; (v) offenses of corruption between private or international economic transactions; and (vi) crimes of enforced disappearances under the International Convention for Protection of All Persons from Enforced Disappearances.
  • Greater specificity was provided for offenses other than piracy covered by the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and its Protocol; offenses other than hijacking of aircraft under the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation and its Supplemental Protocol; crimes against sexual freedom committed on children; and trafficking in human beings.
  • For genocide, crimes against humanity and war crimes, universal jurisdiction exists only if the accused individual is a Spanish citizen or a foreign citizen who is habitually resident in Spain or a foreigner who is found in Spain and whose extradition had been denied by Spanish authorities.
  • For torture and disappearances, universal jurisdiction exists only if the prospective defendant is a Spanish citizen, or the victims were (at the time of the events in question) Spanish citizens and the person accused of the crime was in Spanish territory.
  • Only public prosecutors and victims may initiate criminal proceedings under universal jurisdiction; other private individuals or groups (acusaciones populares) may not do so.
  • Pending cases under the universal jurisdiction provision would be stayed and thereafter dismissed if they could not satisfy these new conditions.

There currently are 12 cases under this jurisdictional provision pending in Spanish courts, and presumably they all will be dismissed under this new amendment. They are the following:

  1. Genocide in Tibet. In 2006 the court commenced an investigation against five former Chinese Communist leaders, including former President Jiang Zemin, for alleged genocide in Tibet. In November 2013, the court issued arrest warrants for these individuals, and in early February 2014, the court rejected the prosecutor’s motion to quash the warrants. As a result, the court on February 10th asked INTERPOL to issue international arrest warrants for the Chinese individuals.
  2. Genocide in Guatemala. In 2003 the court commenced an investigation of eight former senior Guatemalan officials for alleged genocide, terrorism and torture.
  3. Genocide in Sahara. In 2006 a NGO commenced a case against 31 Moroccan military officers for alleged genocide in the Sahara Desert.
  4. Genocide in Rwanda. In 2005 an investigation was commenced against 69 senior Rwandan officials for alleged genocide and murder, and in 2008 arrest warrants were issued for 40 Rwandan soldiers.
  5. Holocaust. In 2008 a case was commenced by Spanish survivors of the Holocaust against four SS guards, and in 2009 international arrest warrants were issued for three of these guards.
  6. Murder of Spanish Diplomat. In 2012 the court commenced an investigation against seven Chilean officials for alleged participation in the 1976 kidnapping and assassination of a Spanish diplomat, Carmelo Soria. Last year a Chilean court rejected Spain’s request for the arrest of the officials.
  7. Persecution of Falun Gong. In 2006 the court started an investigation of alleged persecution of Falun Gong practitioners by the Chinese government between 1999 and 2002.
  8. Israeli Attack on “Freedom Flotilla” to Gaza. In 2010 the court started an investigation of Israeli officials for alleged war crimes and crimes against humanity for an armed assault on ships with materials for Palestinians in Gaza.
  9. Murder of Spanish Journalist. In 2003 the court started an investigation of alleged U.S. military personnel in the 2003 death of a Spanish journalist, Jose Couso, in Iraq.
  10. Torture of Detainees on CIA Flights. In 2006 the court started an investigation of possible violations by CIA or other U.S. personnel with respect to detainees on CIA flights stopping at an airport in Spanish territory.
  11. Iraqi attack on Iranian refugee camp. In 2009 the court started to investigate an alleged Iraqi military attack on an Iranian refugee camp in 2008.
  12. Murder of the Jesuit priests. In 1999 the court commenced to investigate the 1989 murders of six Jesuit priests in El Salvador, and in 2011 the court ordered the arrest of 20 former Salvadoran military officials.

The immediate precipitating causes for the Spanish government’s seeking and obtaining approval of this amendment at this time are widely seen as the Spanish court’s issuance of arrest warrants, and seeking INTERPOL arrest warrants, for high officials of the Chinese Communist Party, including a former president of the country, for alleged genocide in Tibet; China’s vehement protests of these developments; and the Spanish government’s desire for a friendly economic relationship with China.

Indeed, on February 11th, China’s Foreign Ministry said, “China is extremely dissatisfied with and resolutely opposed to the wrong actions of the relevant Spanish [court] taken while ignoring China’s solemn position. Whether or not this issue can be appropriately dealt with is related to the healthy development of ties. We hope that the Spanish government can distinguish right from wrong.”

Human rights groups opposed the current proposed amendment. Amnesty International, Human Rights Watch, the Center for Justice and Accountability and 14 others argue that under multilateral treaties ratified by Spain it has a legal obligation to prosecute any suspected offender of those treaties—regardless of where the crime was committed,[2] who is found in Spain. Moreover, these groups say, the International Court of Justice explained in the case Belgium v. Senegal, this duty to prosecute arises “irrespective of the existence of a prior request for the extradition of the suspect” and requires States to adopt legislation giving its courts the necessary jurisdiction.

Conclusion

Although I regard myself as an human rights advocate and have great respect for Amnesty International and the other NGOs that have opposed the amendment, I dissent from their objections.

In my opinion, the amendment is a reaffirmation of Spain’s implementation of such jurisdiction. Indeed, as noted above, but not acknowledged in the NGOs’ objections, the amendment expands the crimes that are subject to universal jurisdiction and provides greater specificity for some of the crimes previously covered by the statute. This is important for future use of the statute and for due process notice to individuals who may be charged with such crimes in the future.

The main objection appears to be the amendment’s requirement for universal jurisdiction in some instances for an accused foreigner to be present (habitually resident or found) in Spain. This is akin to the U.S. constitutional due process requirement for a defendant to be present in the jurisdiction in order for personal jurisdiction in civil cases to exist, and I believe it is a reasonable requirement for criminal cases in Spain under its universal jurisdiction provisions.

Moreover, in many, if not all, of the previously mentioned 12 pending cases in Spain, the defendants have never been in Spain, and this has lead to the Spanish court’s unsuccessful efforts to enforce its own arrest warrants or the INTERPOL international arrest warrants. As a result, actual criminal prosecutions in these 12 cases have not even been commenced.

I know this is true in the case against 20 former Salvadoran military officers for their alleged involvement in the horrendous murders of the six Jesuit priests and their housekeeper and her daughter in El Salvador in November 1989. I think it is outrageous that these 20 individuals so far have not faced any criminal accountability or punishment for their alleged complicity in this awful crime and thus have de facto immunity or impunity for their actions, and I had hoped that the criminal case in Spain under its universal jurisdiction statute would bring them to justice. But unfortunately that has not happened. (Other posts on Spain’s case regarding the Jesuits’ murders, 6/15/11 and 8/26/11.)

Objection also has been made to the amendment’s imposing a requirement for universal jurisdiction in some instances for Spain to have denied a request for extradition. But at least as I read the English translation of the amendment, this requirement exists only for those foreigners who are temporarily in Spain and does not apply to foreigners who habitually reside in the country. For the passers-by this seems like a due process concern. How would you like while on holiday for one week on the Costa Brava to be charged with a serious crime  by a Spanish court for something you allegedly did in the U.S. 10 years ago?

Furthermore, the amendment’s limitations also appear to be reasonable to make efficient use of Spanish judicial resources.

Finally, the Spanish government, in my opinion, has a legitimate interest in its efforts to have friendly economic relations with China as Spain continues to struggle to emerge from its economic difficulties, including high unemployment. Pursing justice for horrible crimes committed elsewhere is a laudable purpose and goal, but it is not the only purpose and goal of the Spanish government or any country’s government.

As an U.S. scholar stated, “With unemployment at 25 percent, Spaniards would be right to wonder why their officials were using taxpayer resources for other peoples’ problems and simultaneously risking even more Iberian jobs.”


[1] This summary of Spain’s new amendment by a retired U.S. lawyer who is not an expert on Spanish law is based upon the English translation of the new law (Proposed Law on Universal Justice to amend the Organic Law 6/1985 of 1 July on the Judiciary on universal justice, No. 122/000136) and of Spain’s Congress’ press release about the bill and the following English-language sources and translations (from Spanish): Perez, High court to follow through on arrest warrants against top Chinese officials, El Pais in English (Feb. 7, 2014); Amnesty Int’l and 15 other Human Rights Organizations, Spanish Lawmakers Should Reject Proposal Aimed at Closing the Door on Justice for the Most Serious Crimes (Feb. 10, 2014);   Yardley, Spain Seeks to Curb Law Allowing Judges to Pursue Cases Globally, N.Y. Times (Feb. 10, 2014); Moffett, Spain’s Lower House Approves Law to Limit Judges’ Reach, W.S.J. (Feb. 11, 2014);  The twelve causes of ‘universal justice,’ El Mundo (Feb. 11, 2014); Molto, Tibet to universal justice: Chronicle of an announced impunity, El Pais (Feb.11, 2014); Kassam, Spain moves to curb legal convention allowing trials of foreign rights abuses, Guardian (Feb. 11, 2014).

[2] These treaties include the Geneva Conventions; the U.N. Convention against Torture; the International Convention for the Protection of All Persons from Enforced Disappearances; the Hague Convention for the Suppression of Unlawful Seizure of Aircraft; and the Convention on the Physical Protection of Nuclear Material.

President Obama Speaks Out for Religious Freedom

President Obama
President Obama

On February 6th at the National Prayer Breakfast in Washington, D.C., President Obama affirmed that we are “all children of a loving God; brothers and sisters called to make His work our own.  But in this work, as Lincoln said, our concern should not be whether God is on our side, but whether we are on God’s side.”

It was important, Obama said, that “as Americans, we affirm the freedoms endowed by our Creator, among them freedom of religion. . . . [This] freedom safeguards religion . . . [and] religion strengthens America.  Brave men and women of faith have challenged our conscience and brought us closer to our founding ideals, from the abolition of slavery to civil rights, workers’ rights.”

In addition, the President declared, “promoting religious freedom is a key objective of U.S. foreign policy.” Therefore, the U.S. must take steps to challenge the threats to that freedom around the world. “We see governments engaging in discrimination and violence against the faithful.  We sometimes see religion twisted in an attempt to justify hatred and persecution against other people just because of who they are, or how they pray or who they love.  Old tensions are stoked, fueling conflicts along religious lines, . . . even though to harm anyone in the name of faith is to diminish our own relationship with God.  Extremists succumb to an ignorant nihilism that shows they don’t understand the faiths they claim to profess — for the killing of the innocent is never fulfilling God’s will; in fact, it’s the ultimate betrayal of God’s will.”

Specific criticisms for violations of religious freedom were directed by the President at China, Burma, Nigeria, Pakistan, Iran, Egypt, Syria and North Korea.

The President also made a personal confession of his own religious faith. He said, God had “directed my path to Chicago and my work with churches who were intent on breaking the cycle of poverty in hard-hit communities there. . . . [The] church fed me . . .[and] led me to embrace Jesus Christ as my Lord and Savior . . . [and] to Michelle — the love of my life — and it blessed us with two extraordinary daughters [and] to public service.  And the longer I serve, especially in moments of trial or doubt, the more thankful I am of God’s guiding hand.”

Earlier this year the President, proclaiming January 16th as Religious Freedom Day, emphasized that “America embraces people of all faiths and of no faith. We are Christians and Jews, Muslims and Hindus, Buddhists and Sikhs, atheists and agnostics. Our religious diversity enriches our cultural fabric and reminds us that what binds us as one is not the tenets of our faiths, the colors of our skin, or the origins of our names. What makes us American is our adherence to shared ideals — freedom, equality, justice, and our right as a people to set our own course.”

Samantha Power
Samantha Power

A similar statement about Religious Freedom Day was made by U.S. Ambassador Samantha Power, the U.S. Permanent Representative to the U.N. She said, “Protecting freedom of religion is a cornerstone of American foreign policy, carried out by prioritizing accountability for religiously-motivated violence, urging governments to adopt legal protections for religious minorities, and promoting societal respect for religious diversity. And at the United Nations, we work with our partners to fight for the world’s religious minorities, including adoption of the landmark Human Rights Council resolution calling on member states to combat intolerance, violence, and discrimination based on religion.”[1]


[1] The New York Times and Washington Post issued reports on the President’s speech at the National Prayer Breakfast. Earlier posts have discussed the work on international freedom of religion by the U.S. Department of State and by the quasi-independent U.S. Commission on International Religious Freedom.

 

 

 

 

 

Latest U.S. Reports on International Religious Freedom

Annually the U.S. Department of State, pursuant to statutory authorization, releases a report on the status of religious freedom in every country in the world.[1] In addition, the quasi-independent U.S. Commission on International Religious Freedom releases annual reports on the same subject for selected countries.[2]

It should be noted at the outset that these two agencies are not seeking to impose on the rest of the world the U.S. constitutional prohibition of the “establishment of religion” or of “abridging the free exercise [of religion].” [3] Instead the agencies reports rely upon this definition of the freedom in the Universal Declaration of Human Rights: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” Similar provisions are found in several multilateral human rights treaties.[4]

The post will review the latest State Department report on this subject for all 194 other countries in the world and the Commission’s latest report on 29 countries plus one large region (Western Europe).[5]

Latest State Department Report

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After emphasizing the importance of religious freedom, the State Department’s May 20, 2013, report “tells stories of courage and conviction, but also recounts violence, restriction, and abuse. While many nations uphold, respect, and protect religious freedom, regrettably, in many other nations, governments do not protect this basic right; subject members of religious minorities to violence; actively restrict citizens’ religious freedom through oppressive laws and regulations; stand by while members of societal groups attack their fellow citizens out of religious hatred, and fail to hold those responsible for such violence accountable for their actions.”

The report continues.”The immediate challenge is to protect members of religious minorities. The ongoing challenge is to address the root causes that lead to limits on religious freedom. These causes include impunity for violations of religious freedom and an absence of the rule of law, or uneven enforcement of existing laws; introduction of laws restricting religious freedom; societal intolerance, including anti-Semitism and lack of respect for religious diversity; and perceptions that national security and stability are best maintained by placing restrictions on and abusing religious freedom.”

Highlighted for concern by the report were “[l]aws and policies that impede the freedom of individuals to choose a faith, practice a faith, change their religion, tell others about their religious beliefs and practices, or reject religion altogether remain pervasive. Numerous governments imposed such undue and inappropriate restrictions on religious groups and abused their members, in some cases as part of formal government law and practice.” Another concern was the “use of blasphemy and apostasy laws.” They “continued to be a significant problem, as was the continued proliferation of such laws around the world. Such laws often violate freedoms of religion and expression and often are applied in a discriminatory manner.”

The report documented “a continued global increase in anti-Semitism. Holocaust denial and glorification remained troubling themes, and opposition to Israeli policy at times was used to promote or justify blatant anti-Semitism. When political leaders condoned anti-Semitism, it set the tone for its persistence and growth in countries around the world. Of great concern were expressions of anti-Semitism by government officials, by religious leaders, and by the media.”

According to the report, “Governments that repress freedom of religion and freedom of expression typically create a climate of intolerance and impunity that emboldens those who foment hatred and violence within society. Government policy that denies citizens the freedom to discuss, debate, practice, and pass on their faith as they see fit also undercuts society’s ability to counter and combat the biased and warped interpretations of religion that violent extremists propagate. Societal intolerance increased in many regions during 2012.”

Finally the report said, “Governments exacerbated religious tensions within society through discriminatory laws and rhetoric, fomenting violence, fostering a climate of impunity, and failing to ensure the rule of law. In several instances of communal attacks on members of religious minorities and their property, police reportedly arrested the victims of such attacks, and NGOs alleged that there were instances in which police protected the attackers rather than the victims. As a result, government officials were not the only ones to commit abuses with impunity. Impunity for actions committed by individuals and groups within society was often a corollary of government impunity.”

The report also acknowledged the Department’s statutory obligation to designate “Countries of Particular Concern (CPCs), i.e., those countries that are considered to commit “particularly severe violations of religious freedom,” and whose records call for the U.S. government to take certain actions under the terms of the Act. The term ‘‘particularly severe violations of religious freedom’’ means systematic, ongoing, egregious violations of religious freedom, including violations such as: (a) torture or cruel, inhuman, or degrading treatment or punishment; (b) prolonged detention without charges; (c) causing the disappearance of persons by the abduction or clandestine detention of those persons; or (d) other flagrant denial of the right to life, liberty, or the security of persons.”

Accordingly the report re-designated the following eight countries as CPCs: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan and Uzbekistan.[6]

Latest Commission Report

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Under the authorizing statute, the Commission is required to designate as “countries of particular concern” (CPC) (or “Tier 1 Countries”) those that have engaged in or tolerated “particularly severe” violations of religious freedom.

In its latest report, issued on April 30, 2013, the following 15 countries were so designated: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan and Ubekistan (all of which had been designated as “Countries of Particular Concern” (CPC) by the State Department the prior year) plus Egypt, Iraq, Nigeria, Pakistan, Tajikistan, Turkmenistan and Vietnam.

The Commission also designates some countries as “Tier 2 Countries,” i.e., countries on the threshold of Tier 1 status, i.e., when their “violations . . . are particularly severe” and when at least one, but not all three, of the criteria for that status (“systematic, ongoing and egregious”) is met.

The latest report designated the following eight countries as Tier 2: Afghanistan, Azerbaijan, Cuba, India, Indonesia, Kazakhstan, Laos and Russia.[7]

The latest report also discussed six other countries (Bahrain, Bangladesh, Belarus, Ethiopia, Turkey and Venezuela and one region (Western Europe) that it monitored during the year. At first glance the monitoring of Western Europe seems anomalous, but here are the topics of concern to the Commission:

  • Restrictions on religious dress (full-face veils) in France and Belgium.
  • Failure in Sweden, Luxembourg, Switzerland, Poland, Norway and Iceland to exempt religious slaughter of animals from laws requiring prior stunning of the animals.
  • Suggestions in Germany and Norway that religious circumcisions of male children were illegal.
  • Restrictions on construction of Islamic minarets in Switzerland, and the lack of an official mosque in Athens, Greece.
  • “Incitement to hatred” and other laws in almost all European states that can be used to restrict expression of religious beliefs.
  • Reluctance in many European states to provide accommodation of religious objections to generally applicable laws.
  • Measures in France, Austria, Belgium and Germany against religious groups perjoratively characterized as “cults” or “sects.”
  • Societal intolerance, discrimination and violence based on religion or belief such as towards Muslim women with full-face veils, Jewish people and Jehovah’s Witnesses.

It should also be noted that the Commission sometimes takes an adversarial position vis-à-vis the U.S. State Department. For example, on April 30, 2013, when the Commission released its latest report, its simultaneous press release recommended that the Department designate as “Countries of Particular Concern” the seven additional countries the Commission had placed in Tier 1 as noted above.

When the Department failed to do so in its May 20th report, the next day the Commission issued a press release criticizing the Department for failure to make additional CPC designations since August 2011 and to do so for the same seven additional countries.

Conclusion

Because of my personal interest in Cuba, including its religious freedom, a subsequent post will compare and contrast the two reports regarding that country.

Such a comparison, in my opinion, will show that the State Department’s reports are more balanced and fair at least with respect to Cuba.


[2]  Id. § § 202, 205. The fascinating structure and composition of the Commission will be the subject of a future post.

[3]  U.S. Const., First Amend.

[5] A prior post examined the prior State Department report.

[6] The State Department report noted that it considers the recommendations of the Commission on CPCs, but that the Secretary of State makes the final decision on that issue. The Department’s report thereby implicitly rejected the Commission’s recommendation for an additional seven countries to be so designated.

[7] Previously the Commission called this group the “Watch List of countries where the serious violations of religious freedom engaged in or tolerated by the governments do not meet the CPC threshold, but require close monitoring.” According to the Commission, the “Watch List provides advance warning of negative trends that could develop into severe violations of religious freedom, thereby providing policymakers with the opportunity to engage early and increasing the likelihood of preventing or diminishing the violations.”

 

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

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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.