El Salvador – Page 5 – dwkcommentaries

Update on Status of Extradition of Defendants in Spain’s Criminal Case Regarding the 1989 Salvadoran Murders of the Jesuit Priests

Previous posts have reported that the National Court of Spain in 2008 commenced a criminal investigation of the 1989 murder of six Jesuit priests and their housekeeper and her daughter in El Salvador. In May 2011 the Spanish court issued the equivalent of an indictment of 20 former Salvadoran military officials for their alleged involvement in those murders.[1]

One of these defendants had died; one had been living in the U.S.; two have been cooperating with the Spanish investigation; and the whereabouts of three are unknown. The other 13 are believed to be living in El Salvador.

Ever since May 2011 Spanish authorities have been seeking extradition of 13 of these men from El Salvador and one from the United States. But extradition has not happened yet. Here is an update on the status of those efforts.

Developments in El Salvador

In December 2011 Spain requested extradition of 13 of them who were then believed to be in El Salvador. In May 2012, however, the Supreme Court of El Salvador denied extradition of the 13 on the ground that the country’s constitution prohibited extradition of its citizens.

In August 2015, in an unrelated case, the Constitutional Chamber of the Salvadoran Supreme Court ruled that, according to a treaty on international cooperation in criminal matters to which El Salvador is a party, an INTERPOL red notice requires both the identification of the location of the defendants and their arrest and detention pending an additional filing, such as an extradition request. This decision appeared to be in direct conflict with the just mentioned Court’s May 2012 ruling against extradition in the Spanish case.[2]

In response to the August 2015 ruling, the Salvadoran Human Rights Ombudsman, David Morales, on November 16, 2015, petitioned the country’s Supreme Court to review its 2012 decisions refusing to arrest and order the extradition of 13 former military officials who were subjects of the INTERPOL arrest warrants.[3]

The Ombusman also issued a resolution asking Spanish authorities to re-issue the arrest warrants for extradition purposes in this case. This request was endorsed in the Spanish case by the U.S.-based Center for Justice and Accountability (CJA) and the Spanish Association for Human Rights (APDHE).

On January 4, 2016, the Spanish court’s Judge Velasco honored that plea by requesting INTERPOL to re-issue the international arrest warrants for all the Jesuit Massacre case defendants who reside in El Salvador for their extradition to Spain to face the charges.

On January 6, the Salvadoran government said it will cooperate in the execution of those warrants and the extradition of former Salvadoran military officials and soldiers, but that the country’s Supreme Court would make the final decision.

In February 2016 Salvadoran authorities arrested and detained four of the former Salvadoran military officials who are sought for this Spanish criminal case. The four were former colonel Guillermo Alfredo Benavides Moreno; former sergeants Ramiro Ávalos Vargas and Tomás Zárpate Castillo; and former corporal Ángel Pérez Vásquez. The Salvadoran National Civilian Police (PNC) force said that it would “continue the search and capture of the rest of the wanted persons and will inform the public in the opportune moment.” To date, however, no additional arrests have been reported.

On July 14, 2016, the full Supreme Court of El Salvador was scheduled to release its decision on the latest request to issue extradition warrants in this case. The day before, however, the Constitutional Chamber of the Court decided that the country’s Amnesty Law was unconstitutional, which was discussed in a prior post. As a result, the full Supreme Court stayed further proceedings about the extradition warrants.

On August 16, 2016, the Supreme Court unanimously, 15-0, decided that former colonel Guillermo Alfredo Benavides Moreno could not be extradited.[4] The court, 11-4, also ordered that Benavides be detained in a Salvadoran prison in accordance with his conviction and imposition of a 30-year sentence by a Salvadoran court before passage of the amnesty law; after the passage of that law Benavides was released from prison. As a result, extradition was barred by a provision of the El Salvador-Spain extradition treaty that says extradition can be denied “if the person whose extradition is requested “has been tried and finally acquitted or convicted [of the same crime].”

The Supreme Court, however, has not yet ruled on the request to extradite the other three men– former sergeants Ramiro Ávalos Vargas and Tomás Zárpate Castillo; and former corporal Ángel Pérez Vásquez. They also were tried by a Salvadoran court for illegal homicide, which is an essential element of the crime now being pursued in Spain, but these three men were acquitted in a Salvadoran trial with many alleged irregularities. Strict application of the rationale of the above Supreme Court decision and the cited provision of the extradition treaty and the underlying notion of no double jeopardy suggest that they too should not be subject to extradition, but the irregularities in their trial are impediments to that analysis.[5] We now await the Salvadoran Supreme Court’s ruling on these three men.

Developments in United States

As explained in a prior post, a Magistrate Judge in the U.S. District Court for the Eastern District of North Carolina on February 5, 2016, upheld the requested extradition of Orlando Montano Morales to Spain in this case. https://dwkcommentaries.com/2016/02/06/resumption-of-spanish-criminal-case-over-1989-salvadoran-murder-of-jesuit-priests/

On April 1, 2016, Montano filed in that court an Application for a Writ of Habeas Corpus, which is the only way for him to appeal or challenge that decision.[6]

On April 26, the U.S. moved to dismiss that habeas application. Its brief argued that the certification of extraditability would not be overturned if there was any evidence warranting the finding that there was a reasonable ground to believe that the individual was guilty of the crime in the foreign country and that there was such evidence in this case. On June 10 the U.S. submitted its reply to the petitioner’s opposition to the dismissal motion; it argued that the response raised no issues needing further rebuttal.[7]

Montano Morales, however, was not finished. On July 21, he submitted another brief arguing that there was insufficient evidence to support the certification order’s probable cause conclusion. He also asserted that the court should consider certain declassified U.S. government cables with respect to the probable cause conclusion. On August 10, the U.S. again rejected Montano’s arguments, emphasizing that the habeas review was “limited to ascertaining ‘whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty of the asserted crimes’” and that there was such evidence.[8] (Emphasis added.)

The matter is now submitted for decision by U.S. District Judge Terrance W. Boyle.

According to Patty Blum, senior legal adviser with the Center for Justice and Accountability, which filed the original complaint in the Jesuit case with the Spanish court in 2008 and which supported the request for extradition of Montano, the habeas corpus application is unlikely to “get much traction substantively” as the order granting extradition already rejected the core arguments of the new petition and the Magistrate Judge “did a thorough job of reviewing the record and giving a reasoned, detailed opinion.”[9]

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[1] Prior posts covered the marvelous ministries of these Jesuit priests and their university (University of Central America or UCA); the circumstances of their horrible murders; the Salvadoran military’s attempted cover-up of their involvement in these crimes; the flawed Salvadoran criminal prosecution of a few of the military personnel so involved and their absolution by a Salvadoran amnesty law; the investigation and report on these crimes by the Truth Commission for El Salvador; other legal proceedings regarding these crimes; the Spanish criminal case over these crimes; El Salvador’s 2012 denial of Spain’s request for extradition of most of the suspects in the case; and the commemoration of the 25^th anniversary of the Jesuit martyrs in November 2014. These posts are identified in reverse chronological order of posting in a computer-generated list. They also are identified in logical sequence in “The Jesuit Priests” section of my manually prepared List of Posts to dwkcommentaires—Topical: El Salvador. There also is extensive discussion of the Spanish case in the website of the Center for Justice and Accountability, the U.S.-based human rights organization that is involved in that case.

[2] Spanish Judge Re-Issues Request for the Arrest of Military Officials, CJA (Dec. 2015); Dalton, Spain calls for arrest of 18 soldiers accused of killing priests in El Salvador, El Pais (Dec. 23, 2015); Reuters, El Salvador will cooperate in arrest of 17 former soldiers accused of killing priests, Guardian (Jan. 6, 2015); Labrador, Spain orders again capture Jesuit Salvadoran military case, El Faro (Jan. 5, 2016).

[3] Human Rights Ombudsman asks extradition slaughter of Jesuits, El Mundo (Nov. 16, 2015).

[4] Labrador, Arauza & Zabiań, Court refuses to extradite Colonel Benavides, but agrees to send him to prison, El Faro (Aug. 17, 2016); Melendez, Supreme Court Decides Not To Extradite Jesuit Case, LaPrensa Grafica (Aug. 17, 2016); Reuters, El Salvador Court Denies Extradition of former Colonel to Spain, N.Y. Times (Aug. 17, 2016).

[5] The Salvadoran trial was covered in a prior post as was the release of Colonel Benavides under the Amnesty Law.

[6] Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241, et seq, Montano Morales v. Elks, No. 5:16-HC-2066-BO (April 1, 2016).

[7] Memorandum in Support of Motion To Dismiss Application for Writ of Habeas Corpus, Montano Morales v. Elks, No. 5:16-HC-2066-BO (April 26, 2016); Response in Opposition to Federal Respondents’ Motion To Dismiss Application for Writ of Habeas Corpus, and Request for Hearing, Montano Morales v. Elks, No. 5:16-HC-2066-BO (May 18, 2016); United States’ Reply to Petitioner’s Response in Opposition Regarding Motion To Dismiss Application for Writ of Habeas Corpus, Montano Morales v. Elks, No. 5:16-HC-2066-BO (June 10, 2016).

[8] Supplemental Filing To Support Petition for Write of Habeas Corpus and Request for Hearing, Montano Morales v. Elks, No. 5:16-HC-2066-BO (July 21, 2016); Government’s Response to Supplemental Filing To Support Petition for Writ of Habeas Corpus, Montano Morales v. Elks, No. 5:16-HC-2066-BO (Aug. 10, 2016).

[9] Cooper & Hodges, Extradition appeal among setbacks in Jesuit massacre, Nat’l Cath. Rep. (April 13, 2016); Assoc. Press, Ex-Salvadoran colonel fights extradition in Jesuit killings (Apr. 1, 2016).

Extradition Has Become a Hot Topic for the United States

Extradition is the legal process “by which one country (the requesting country) may seek from another country (the requested country) the surrender of a person who is wanted for prosecution, or to serve a sentence following conviction, for a criminal offense. In the U.S., international extradition is treaty based, meaning that the U.S. must have an extradition treaty with the requesting country in order to consider the request for extradition.”[1]

That process is now a hot topic in the U.S. Most recently Turkey is pressing the U.S. to extradite Fethullah Gulen, a Muslim cleric living in Pennsylvania, to Turkey to face charges of being involved in the attempted coup in that country. Another pending request, this from Spain, seeks the U.S. extradition of Inocente Orlando Montano Morales, a former Salvadoran military officer living in the U.S., to face criminal charges involving the 1989 murders of Jesuit priests in El Salvador. Extradition also is one of the many unresolved issues in the process of normalizing U.S.-Cuba relations: will Cuba extradite certain U.S. fugitives and will the U.S. do likewise for certain Cuban fugitives.[2]

Therefore, a better understanding of international extradition is necessary to follow these developments. Such a primer can be found in a 2001 U.S. State Department report to Congress and a recent U.S. government brief in the previously mentioned Spanish case for extradition of the former Salvadoran military officer from the U.S.[3] Assuming those sources are fair summaries of the process, this post omits citations to statutes and cases other than to note that extradition is the subject of 18 U.S. Code, Chapter 209.

U.S. Extradition Treaties

U.S. extradition practice is based almost entirely on individually negotiated bilateral treaties, which the U.S. brings into force following Senate advice and consent to ratification. The U.S. is currently a party to 109 such treaties.[4] While most of these treaties currently in force have been negotiated in the last 30-40 years, many of the treaties still in force are quite old, in some cases dating back to the 19^th Century.

For many reasons, however, not every request for extradition results in a fugitive being delivered to the requesting country. Sometimes the requesting state doesn’t know where a fugitive is located and makes multiple contingency requests for provisional arrest and extradition. In other cases, fugitives learn they are being sought and flee or go into hiding. Even following a fugitive’s arrest, court proceedings and appeals can last a very long time and can be delayed by fugitives’ exercising all possible rights to challenge extradition.

In addition, most such treaties provide specific bases on which extraditions can be delayed or denied. The obligation to extradite under a bilateral extradition treaty is not absolute and protections are included in the treaty to accommodate both U.S. and foreign interests. While the exact terms of such treaties result from country-specific negotiations and thus vary somewhat among the treaties, there are the following typical types of qualifications on the obligation to extradite:

An almost universal treaty exception, known in international extradition law as the “non bis in idem” doctrine, is similar to the double jeopardy doctrine under U.S. domestic law. It provides that extradition will be denied when the person has already been either acquitted or convicted for the same offense in the country from which extradition is requested, or, in some instances, in a third country.

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) or a “military offense” (a crime subject to military law that is not criminalized under normal penal law).

U.S. treaties also 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.

Perhaps the highest profile exceptions to the obligation to extradite are bars or limitations in some countries on the extradition of their own nationals. The U.S., however, makes no distinction between extraditing its own nationals and those of other countries and advocates that all countries adopt the U.S. policy due to the ease of flight and the increasingly transnational nature of crime.

Some U.S. treaties provide that if the offense for which surrender is sought is punishable by death under the laws in the country requesting extradition but not in the country holding the fugitive, extradition may be refused unless the requesting country provides assurances that the death penalty will not be imposed or, if imposed, will not be carried out. Sometimes these provisions are included in the treaty at the insistence of our treaty partner, because many countries in Europe and elsewhere oppose the death penalty. Sometimes the U.S. insists on such provisions in order to retain sufficient flexibility to ensure that the U.S. is not obliged to surrender persons for execution for relatively less serious crimes.

Older U.S. treaties that were negotiated before the late 1970’s contained a list of offenses that would be covered. In newer U.S. treaties this list approach has been replaced by the concept of “dual criminality,” usually providing that offenses covered by the treaty include all those made punishable under the laws of both parties by imprisonment or other form of detention for more than one year, or by a more severe penalty (such as capital punishment). Such a formulation obviates the need to renegotiate the treaty to provide coverage for new offenses, strikingly exemplified by the currently evolving area of cyber-crime. Indeed, to avoid having the dual criminality analysis applied too narrowly, most treaties provide further guidance, including that an offense is extraditable whether or not the laws in the two countries place the offense within the same category or describe it by the same terminology. A major goal in the U.S. current ambitious treaty-negotiating program is to negotiate new, modern treaties that eliminate the “list” approach in favor of dual criminality treaties.

Other limitations on the obligation to extradite, which vary to some extent from treaty to treaty, would relate to requests for extradition for extraterritorial offenses where the two countries’ laws differ on the reach of jurisdiction over such crimes. In such cases, the U.S. seeks the greatest possible flexibility in our treaties to permit extradition for offenses that have taken place in whole or in part outside the territory of the requesting party.

U.S. Practice Regarding Foreign Government Requests for Extradition

The U.S. practice regarding foreign government requests for extradition involves the Department of State, the Department of Justice, a U.S. attorney, a U.S. district court and the Secretary of State.

U.S. Department of State

The extradition process in the U.S. starts when the Department of State receives a request for extradition from a foreign country. That Department initially determines whether the request is governed by a treaty between the U.S. and that country, and if there is such a treaty and the request conforms to the treaty, that Department will prepare a declaration authenticating the request and send it to the U.S. Department of Justice’s Office of International Affairs.

U.S. Department of Justice[5]

The Justice Department’s Office of International Affairs examines the foreign country’s request to determine if it contains all of the necessary information. If it does, the request is sent to the U.S. Attorney for the district where the subject of the request is located. Thereafter the Office’s attorneys will assist, as needed, the U.S. Attorney.

U.S. Attorney

The U.S. Attorney then prepares and files a complaint with the local U.S. district court seeking a warrant for the individual’s arrest and certification that he or she may be extradited. The U.S. Attorney also files briefs and appears at any hearings in the district court in the case.

U.S. District Court

The complaint, of course, is served upon the subject of the proceeding, who has a right to be represented by counsel and to contest the complaint.

The court then conducts a hearing to determine if there is probable cause that the subject has violated one or more of the criminal laws of the country seeking extradition. This is not a criminal trial, but like a preliminary hearing in a criminal case to determine if the evidence is sufficient to sustain the charge under the treaty’s provisions.

At such a hearing, the Federal Rules of Civil Procedure, Criminal Procedure and Evidence do not apply. Thus, the evidence may consist of hearsay and unsworn statements, and the judicial officer does not weigh conflicting evidence and make factual determinations. Instead the officer only decides whether there is competent evidence to support the belief that the individual has committed the charged offense under the other country’s laws.

At this hearing, the individual has no right to submit a defense to the charges or evidence that merely contradicts the other country’s proof or poses conflicts of credibility.

If the court finds after the hearing that (a) there is a criminal charge pending in the other country against the individual; (b) the offense underlying the charge is encompassed by the relevant treaty; (c) the individual is the person sought by the foreign government; (d) the evidence supports a finding that the crime for which the individual is sought was committed; (e) the evidence supports a finding that the individual committed the crime; and (f) the treaty has no other basis for denying extradition; then the court issues a certification that the individual is subject to extradition.

Such a certification may be challenged only by the individual’s filing a petition for a writ of habeas corpus to the same district court.[6]

If there is no petition or it is denied, the court sends the certification to the Secretary of State.

U.S. Secretary of State[7]

Under U.S. statutes, the Secretary of State is the U.S. official responsible for determining whether to surrender a fugitive to a requesting state. In making this decision, the Secretary may consider issues properly raised before the extradition court or a habeas court as well as any humanitarian or other considerations for or against surrender, including whether surrender may violate the United States’ obligations under the Convention Against Torture. The Secretary also will consider any written materials submitted by the fugitive, his or her counsel, or other interested parties.

If the Secretary decides to extradite, the Secretary issues and serves a warrant for the extradition, and the individual is extradited to the other country.

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[1] U.S. State Dep’t, Report on International Extradition Submitted to the Congress Pursuant to Section 211 of the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001 (Public Law 106-113) (2001); U.S. Justice Dep’t, Frequently Asked Questions Regarding Extradition;Memorandum in Support of Motion To Dismiss Application for Habeas Corpus at 2, Montano Morales v. Elks, No. 5-16-HC-2066-BO (E.D.N.C. April 26, 2016).

[2] Future posts will examine the requests from Spain and Turkey while an earlier post reviewed a district court’s issuance of the certification for extradition to Spain of the former Salvadoran military officer: Resumption of Spanish Criminal Case Over 1989 Salvadoran Murder of Jesuit Priests?, dwkcommentaries.com (Feb. 6, 2016). Another post reviewed U.S. and Cuban extradition issues: Issues Regarding Cuba and U.S. Extradition of the Other’s Fugitives, dwkcommentaries.com (Feb. 24, 2015).

[3] See n.1.

[4] The U.S. currently has bilateral extradition treaties with 109 countries.

[5] Justice Dep’t, Office of International Affairs.

[6] A prior post erroneously stated that such a certification was subject to an ordinary appeal to the relevant U.S. court of appeals.

[7] State Dep’t, Extradition.

El Salvador’s Supreme Court Invalidates Salvadoran Amnesty Law

On July 13, the Constitutional Chamber of the Supreme Court of El Salvador decided, 4 to 1, that the country’s amnesty law of 1993 was unconstitutional. This post will examine that decision and a subsequent post will discuss the impact of that decision on the pending criminal case in Spain regarding the 1989 murders of the Jesuit priests in El Salvador.

The Court’s Decision.[1]

The Chamber held that the country’s amnesty law of 1993 was unconstitutional because it was “contrary to the access to justice” and the “protection of fundamental rights” as impeding the state from fulfilling its obligation to investigate, try and punish grave violations of those rights. Indeed, the court said the government has an obligation to “investigate, identify and sanction the material and intellectual authors of human rights crimes and grave war crimes” in its civil war and to provide reparations to victims.[2] The court also suggested that prosecutors begin with about 30 cases highlighted by a U.N. Truth Commission in March 1993.[3] The cases include massacres, assassinations and kidnappings by combatants from both the armed forces and the guerrilla army called the Farabundo Martí National Liberation Front (FMLN). One of the most prominent was the 1989 murders of the Jesuit priests and their housekeeper and her daughter.

The court’s announcement of its decision stated that the 1992 Peace Accords ending the civil war had contained no provision for an amnesty; that the country’s National Assembly had no power to grant an amnesty to persons who had committed crimes against humanity or war crimes constituting grave violations of human rights and that its constitution and international law of human rights required the conclusion of invalidity.

The court also stated that the crimes against humanity during the civil war were not individual and isolated acts, but the result of guidelines and orders issued by organized apparatuses of power with hierarchies of command. This implies criminal responsibility of the direct actors, those who gave the orders for the crimes and those commanders who failed to countermand the orders and thereby failed to exercise control over the hierarchies.

Much to the surprise of this blogger as a retired U.S. attorney, one of the Chamber’s four judges in this very case, Florentine Menendez, made a public statement about the decision. He said, “We’re not raising hatred or reopening wounds,” but rather emphasizing “the strength of the constitution and the right to life and justice” for the victims. The decision rescues “the jurisprudence of the Inter-American system of human rights protection to heal the wounds of the past and finally close the page and get a national reconciliation.”

Positive Reactions to the Decision.[4]

The next day the decision was celebrated at a ceremony in San Salvador’s Cuscatlan Park, the site of a 275-foot granite wall etched with the names of 30,000 civilians killed in the country’s civil war and the locations of nearly 200 massacres committed between 1970 and 1991. Below are photographs of David Morales,El Salvador’s human rights ombudsman, who made remarks that day, and of part of the granite wall.

At this celebration, David Morales said, “If prosecutors and judges are willing to comply with the ruling, it will generate for the first time in El Salvador the first glimmers of reconciliation.” He added that many Latin American countries have already abolished their amnesty laws and begun to prosecute crimes dating to the civil wars and military dictatorships of the late 20th century.

Benjamin Cuellar, former director of the human rights institute at the University of Central America (UCA) and one of the petitioners in the lawsuit, said, “This is the first step that will take El Salvador to true reconciliation; so that the institutions work and bring to justice those who commit crimes, regardless of who they are.”

UCA, the home of the murdered Jesuit priests, stated, “The majority of the victims are more noble than the victimizers. They do not want vengeance, they want the injustice to be recognized. And the State is obliged to honor them. It is time to put the victims in the center. The new phase that is opened for the country is positive, it means an advance for democracy and justice, and constitutes a late but just recognition for those who had been disrespected in their memory and in their pain.”

The Center for Justice and Accountability, which has been involved in various Salvadoran human rights cases, including the Spanish case regarding the murder of the Jesuit priests, said, “Today’s decision marks a moment many of us have hoped for, for a long time, as we struggled by the victims’ side. The victims have been demanding justice since the peace was signed and the brave truth commission report was published. The amnesty law passed only seven days after was a betrayal to the victims’ hopes and the whole peace process. With it, justice was excluded forever. Today’s decision brings back hope for investigation and prosecution both inside and outside the country.”

A group of independent United Nations human rights experts declared: “This historic decision for the country brings hope to victims and confidence in the legal system…. More than twenty years after the end of the conflict, this decision will restore the fundamental rights of victims to justice and full reparations.”

Amnesty International praised the decision: “Today is an historic day for human rights in El Salvador. By turning its back on a law that has done nothing but let criminals get away with serious human rights violations for decades, the country is finally dealing with its tragic past.”

Another voice of support for the decision came in a New York Times editorial calling it “ a remarkable ruling that opens the door for relatives of victims of war crimes to hold torturers and killers accountable.” “However,” the editorial continued, “there appears to be little political will in El Salvador to revisit a painful chapter of its history in courtrooms. Politicians across the political spectrum have questioned the viability of war crimes tribunals at a time when the country’s judicial institutions are overwhelmed by endemic gang violence.” Nevertheless, the Times suggested that El Salvador should create “a prosecution unit and gives it the tools and independence to pursue the most emblematic cases of the conflict” like the El Mozote Massacre,” which has been discussed in prior posts.

Negative Reactions to the Decision.

The lack of political will referenced in the Times editorial can be seen in the country’s President, Salvador Sánchez Cerén, a member of the FLMN, asserted that his government had always been committed to the restoration of the victims of the war and to building a culture committed to human rights. However, he said the court’s decision did not meet “the real problems of the country and far from solving the daily problems of Salvadorans, worsens them. Judgments of the Constitutional Chamber ignore or fail to measure the effects on our living together in society, and do not contribute to strengthening institutionality.”

Another FLMN leader had a similar reaction. The former president of the National Assembly, Siegfried Reyes, said the decision was “surprising and seeks to weaken and hit the governance and hit the security plans that the government is implementing effectively.”

The country’s Minister of Defense, David Munguia Payés, asserted that the decision was a “political error” and would be a setback to the process of pacification which had occurred since the end of the civil war.” He openly worried that the ruling would turn into a “witch hunt.”

Mauricio Ernesto Vargas, a retired general who represented the armed forces in the peace negotiations, said the court’s ruling could intensify political polarization in a country with no shortage of problems: a gang-violence epidemic, a migration crisis, crop failures and economic stagnation.

The country’s Attorney General, Douglas Melendez, had a more nuanced view. He said, “We respect from the institutional point of view this ruling. We will do what we have to do, we will fulfill our constitutional responsibilities.”

The conservative political party ARENA (founded by a leader of the death squads in the 1970s and 1980s, and in control of the government when atrocities like the massacre of the Jesuits occurred and the authors of the amnesty law) published an official statement urging respect for the court’s decisions, but also noting that the decisions would present challenges for the process of reconciliation and the strengthening of democracy and institutions.

Now we will have to see whether this decision leads to any Salvadoran investigations and prosecutions for the serious human rights crimes of its civil war and to a resumption of Spain’s criminal case regarding the 1989 murders of the Jesuit priests. (The latter subject will be covered in a subsequent post.)

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[1] El Salvador Supreme Court (Constitutional Chamber), Press Release (July 13, 2016), http://static.ow.ly/docs/20.%20Comunicado%2013-VII-2016%20Ley%20de%20amnist%C3%ADa_50Yr.pdf; Post war 1993 amnesty law declared unconstitutional, Tim’s El Salvador Blog (July 13, 2016), http://luterano.blogspot.com/2016/07/post-war-1993-amnesty-law-declared.html; Malkin & Palumbo, Salvadoran Court Overturns Wartime Amnesty, Paving Way for Prosecutions, N.Y. Times (July 14, 2016); Maslin, El Salvador strikes down amnesty for crimes during its civil war, Wash. Post (July 14, 2016), https://www.washingtonpost.com/world/the_americas/el-salvador-strikes-down-amnesty-for-crimes-during-its-civil-war/2016/07/14/5eeef2ec-49bf-11e6-8dac-0c6e4accc5b1_story.html.

[2] Prior posts have discussed the Amnesty Law: International Criminal Justice: El Salvador’s General Amnesty Law and Its Impact on the Jesuits Case, dwkcommentaries.com (June 11, 2011), https://dwkcommentaries.com/2011/06/11/international-criminal-justice-el-salvadors-general-amnesty-law-and-its-impact-on-the-jesuits-case; El Salvador’s Current Controversy Over Its General Amnesty Law and Supreme Court, dwkcommentaries.com (June 16, 2011), https://dwkcommentaries.com/2011/06/16/el-salvadors-current-controversy-over-its-general-amnesty-law-and-supreme-court; The El Mozote Massacre: The Truth Commission for El Salvador and the Subsequent General Amnesty Law and Dismissal of the Criminal Case, dwkcommentaries.com (Dec. 13, 2012), https://dwkcommentaries.com/2012/12/13/the-el-mozote-massacre-the-truth-commission-for-el-salvador-and-the-subsequent-salvadoran-general-amnesty-law-and-dismissal-of-criminal-case. It should be noted, however, that U.S. federal courts have held that the General Amnesty Law is limited to Salvadoran judicial proceedings and thus does not bar U.S. civil lawsuits for money damages against Salvadoran defendants. (El Salvador’s General Amnesty Law in U.S. Federal Courts, dwkcommentaries.com (June 14, 2011), https://dwkcommentaries.com/2011/06/14/el-salvadors-general-amnesty-law-in-u-s-federal-court-cases.

[3] Prior posts have discussed the Truth Commission: International Criminal Justice: The Jesuits Case in the Truth Commission for El Salvador, dwkcommentaries.com (June 9, 2011), https://dwkcommentaries.com/2011/06/09/international-criminal-justice-the-jesuits-case-in-the-truth-commission-for-el-salvador; The Salvadoran Truth Commission’s Investigation of the 1980 Murders of the Four Churchwomen, dwkcommentaries (Dec. 19, 2011), https://dwkcommentaries.com/2011/12/19/the-salvadoran-truth-commissions-investigation-of-the-murders-of-the-four-american-churchwomen; The El Mozote Massacre: The Truth Commission for El Salvador and the Subsequent General Amnesty Law and Dismissal of the Criminal Case, dwkcommentaries.com (Dec. 13, 2012), https://dwkcommentaries.com/2012/12/13/the-el-mozote-massacre-the-truth-commission-for-el-salvador-and-the-subsequent-salvadoran-general-amnesty-law-and-dismissal-of-criminal-case.

[4] Thanks for Tim’s El Salvador Blog (http://luterano.blog spot.com) for much of the information on the reactions to the Chamber’s decision. David Morales: The sentence “is a tool of greater scope to demand justice, DiarioCoLatino (July 14, 2016) http://www.diariocolatino.com/david-morales-la-sentencia-es-una-herramienta-de-mayores-alcances-para-exigir-justicia; Dalton, Declared unconstitutional the amnesty in El Salvador, El Pais (July 14, 2016) http://internacional.elpais.com/internacional/2016/07/15/america/1468541983_506876.html.

Raúl Castro Discusses Cuba-U.S. Relations in Report to Seventh Congress of the Communist Party of Cuba

The major event of the first day (April 16) of the four-day Seventh Congress of the Communist Party of Cuba was the two-hour, live televised address by Raúl Castro, the First Secretary of its Central Committee (and also President and General of the Army).[1] Most of this address concerned the country’s internal socio-economic and other issues, which will be covered in a subsequent post, while a prior post provided an overview of the Congress. This post will focus on his discussion of Cuba-U.S. relations. Here is what he had to say on that subject near the end of the speech along with this blogger’s reactions.

Castro’s Remarks

“Fifteen months have transpired since we announced, simultaneously with President Barack Obama, the decision to reestablish diplomatic relations between Cuba and the United States, on the basis of sovereign equality, non-interference in domestic affairs, and absolute respect for our independence. Hours before this speech, Fidel’s promise to the Cuban people was kept, with the completion of the return to the homeland of the Cuban Five.”

“We have reached this point thanks to the heroic resistance and sacrifice of the Cuban people, and their loyalty to the Revolution’s ideals and principles, supported by decisive international solidarity, made clear in multiple events and international organizations, in particular the overwhelming votes in the United Nations General Assembly against the blockade.”

“The political map of Our America had changed, given the advance of political forces on the left and popular movements, which contributed to progress in regional integration, symbolized by the constituting of the Community of Latin American and Caribbean States (CELAC), in December of 2011.”

“All of this placed the [U.S.] in an untenable situation of isolation within the hemisphere, and put the so-called inter-American system in crisis, as was made evident by the demand to end the blockade and opposition to the exclusion of Cuba from the 6th Summit of the Americas in Cartagena, in 2012.”

“On the other hand, changes have been occurring in U.S. society, and in the Cuban émigré community, in favor of the modification of the [U.S.’] policy toward Cuba.”

“In April of last year, we attended the 7th Summit of the Americas in Panama, with our heads held high. . . .”

“Throughout the period . . . since December of 2014, concrete results have been achieved in the dialogue and in cooperation between Cuba and the [U.S.] Nevertheless, the economic, commercial and financial blockade, imposed more than half a century ago, remains in force, with unquestionably intimidating, extraterritorial effects, although we recognize the position taken by President Obama and high-ranking administration officials against the blockade, and their repeated appeals to Congress in the interest of eliminating it.”

“The measures announced prior to [President Obama’s] visit to Havana, to introduce some modifications in the blockade’s implementation, on the basis of his executive powers, are positive but insufficient.”

“As we expressed in the meeting between the two Presidents with the press, to advance toward normalization of relations, it is imperative to eliminate the blockade, which causes our population hardship and constitutes the principal obstacle to economic development of the country; and return the territory illegally occupied by the Guantánamo Naval Base against the will of the Cuban government and people.”

“Likewise, [U.S.] programs directed toward changing the political, economic and social system, which we have chosen sovereignly, must be ended, along with other damaging policies still in effect.”

U.S. immigration “policy continues to be used as a weapon against the Revolution. The Cuban Adjustment Law, the “wet foot-dry foot” policy, and the Parole program for Cuban medical professionals remain in effect, to encourage illegal and unsafe emigration, and seeking to deprive us of qualified personnel.”[2]

“These practices do not reflect the stated change of policy toward Cuba, and generate difficulties for third countries.”

“There are more than a few U.S. government officials who upon recognizing the failure of their policy toward Cuba, make no attempt to disguise their affirmations that the goals remain the same, only the means are being modified.”

“We are willing to carry out a respectful dialogue and construct a new type of relationship with the [U.S.], one which has never existed between the two countries, because we are convinced that this alone could produce mutual benefits.”

“However, it is imperative to reiterate that no one should assume that to achieve this Cuba must renounce the Revolution’s principles, or make concessions to the detriment of its sovereignty and independence, or forego the defense of its ideals or the exercise of its foreign policy – committed to just causes, the defense of self-determination, and our traditional support to sister countries.”

“As the Constitution of the Republic stipulates, ‘Economic, diplomatic or political relations with any other state can never be negotiated under aggression, threats, or coercion by a foreign power.’”

“The road to normalization of bilateral ties is long and complex, and we will advance to the extent we are capable of putting into practice the art of civilized coexistence, or in other words, accept and respect our differences which are, and will be, profound; not making them the center of our relations, but rather concentrating on what brings us closer and not what separates us, promoting what is beneficial to both countries.”

“Relations with the [U.S.] have historically represented a challenge for Cuba, given their permanent pretension of exercising domination over our nation, and the determination of Cubans to be free and independent, regardless of the dangers to be faced, or the price we would have to pay.”

“The people’s unity with the Party, its profound patriotism and political culture, which have allowed us to confront the policy of aggression and hostility, will serve as a shield to defeat any attempt to undermine the revolutionary spirit of Cubans. This will be a challenge, especially for the youngest, who the Party recognizes as the continuators of the Revolution’s work and of the patriotic convictions of their grandparents and parents.”

Castro then launched into a defense of its Latin American allies against an unnamed foe (the U.S.):

“Latin America and the Caribbean find themselves experiencing the effects of a strong, articulated counteroffensive, on the part of imperialism and oligarchies, against revolutionary and progressive governments, in a difficult context marked by the deceleration of the economy, which has negatively impacted the continuity of policies directed toward development and social inclusion, and the conquests won by popular sectors.”
“This reactionary attack uses methods and technologies specific to the new doctrine of unconventional war, especially in the area of communications and culture, without ruling out attempts at destabilization and coups.”
“This policy is principally directed toward the sister Bolivarian Republic of Venezuela, and has been intensified in recent months in Bolivia, Ecuador, and Brazil, as well as Nicaragua and El Salvador.”
“Recent setbacks for governments of the left in the hemisphere are being used to announce the end of a progressive historical cycle, opening the way for the return of neoliberalism and demoralization of political forces and parties, social movements and working classes, which we must confront with more unity and increased articulation of revolutionary action.”
“We hold the firm conviction that the Venezuelan people will defend the legacy of our beloved compañero Hugo Chávez Frías, and prevent the dismantling of the accomplishments achieved. To the Bolivarian and Chavista Revolution, to President Maduro and his government, and to the civic-military union of the Venezuelan people, we reiterate our solidarity, our commitment, and energetic rejection of efforts to isolate Venezuela while dialoging with Cuba.”
“We demand that the sovereignty and independence of states be respected, and that interference in domestic affairs cease. At the same time, we reaffirm our firm support to all revolutionary and progressive governments, headed by prestigious leaders, whose economic and social policies have led to justice, dignity, sovereignty, and tangible benefits for the great majority, in the world’s most unequal region.”
“Also being renewed are efforts by the [U.S.] and their allies to undermine unity and the process of regional integration, frustrate the advance of CELAC, ALBA, UNASUR, and others, through a supposed reform of the inter-American system, in particular the OAS, attempting to promote the leading role of other schemes more compatible with their hegemonic interests.”
“We will never forget that the OAS – the Organization of American States – founded by the [U.S.]during the second half of the past century, at the beginning of the Cold War, has only served interests which contradict those of Our America. This organization, rightly described as the “Ministry of colonies” of the [U.S.] by the Foreign Minister of Dignity, compañero Raúl Roa García, was the one that sanctioned Cuba, and was ready to offer support and recognition to a puppet government, if the mercenary invasion at Playa Girón [Bay of Pigs] had been successful. The list of actions it took against the nascent Cuban Revolution, and other revolutionary and progressive governments, is interminable.”

Cuba’s diatribe against the U.S. was broadened to include the rest of the world with this statement by Castro: “Increasingly more serious are threats to international peace and security, as a result of U.S. imperialism’s attempts to impose its hegemonic position in the face of changes in the world’s equilibrium, and of the philosophy of usurpation and control of strategic natural resources, made evident by the increasingly offensive and aggressive military doctrine of NATO; the proliferation of non-conventional wars under the pretext of fighting “international terrorism;” the sharpening of differences with Russia and China; and the danger of a war in the Middle East of incalculable dimensions.”

Earlier in the address, Castro sought to rebut U.S. complaints about Cuban human rights with these words: Cuba is a party to 44 international treaties on human rights while the U.S. is only party to 18.[3] Moreover, “equal pay for equal work, whether for a man or woman, is a human right [in Cuba]. In other countries, including the [U.S., it is not, women earn less and thus dozens of supposed human rights can be cited. Free medical care in Cuba is a human right. In many other countries, this is not a human right, it is a business. In our country, education is free, in how many countries of the world is education free? It’s a business, too. That is, we will discuss this issue of human rights with anyone and anywhere whatsoever, and we will recognize those who are in the right.”

Raúl then made a joke about political rights. “When they say to me that in Cuba there is only one party. And I answer them, ‘Yes, like you, you have a single party,’ and the North Americans answer me: “No, we have two.” And as if I did not know, they tell me their names, ‘Democratic and Republican.’ ‘Correct, that’s right, it’s the same as if we were to have two parties in Cuba, Fidel would head one and I the other.’”

Conclusion

Given the prior public positions of the Cuban government, Castro did not say anything new on the subject of Cuba-U.S. relations. As expressed in many earlier posts, I agree that the U.S. should end its embargo of Cuba, its special immigration policies regarding Cubans and its covert or “discreet” programs purportedly promoting democracy in Cuba.

I also recognize that Cuba repeatedly has alleged that the U.S. occupation of Guantanamo Bay is illegal, but saying so does not make it so, and this blog has suggested that the dispute on this issue is unlikely to be resolved in discussions and negotiations, but instead should be submitted for resolution to an independent court like the International Court of Arbitration at the Hague along with any damage claims asserted by Cuba with respect to the embargo.

Another point of disagreement with Castro is his assertion that the U.S. goal of Cuban regime change is the same, but that the means have changed. Yes, the U.S. vigorously advocates for the right of Cubans to elect their leaders by popular vote, for the right of Cubans to protest and demonstrate against the government and to express their opinions without arrest and arbitrary detention and for the empowerment of Cubans to engage in self-employment and business. If they had such rights, that might lead to changes in the Cuban economy and government, but those changes would be chosen by the Cuban people, not imposed upon them by the U.S.

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[1] Congress documents will be submitted to a broad discussion, Granma (April 16, 2016); 7^th Party Congress underway, Granma (April 16, 2016); Raúl Castro, Central Report to 7^th Congress of Communist Party of Cuba, Granma (April 16, 2016) (text in original Spanish); Raúl Castro, Central Report to 7^th Congress of Communist Party of Cuba, Granma (April 17, 2016) (text in English translation); Burnett, Raúl Castro Urges Cubans to Remain Alert to U.S. Efforts to Alter Communist System, N.Y. Times (April 16, 2016); Reuters, Castro Hardens Rhetoric, Warns Cubans to Be Alert to U.S. Intentions, N.Y. Times (April 16, 2016); Assoc. Press, Raul Castro Presents Grim Picture of Cuban Reforms, N.Y. Times (April 16, 2016); Torres, Raúl Castro proposes age limits on key jobs in CCP, Miami Herald (April 16, 2016);Raúl Castro derides US democracy in speech to Cuban Communist Party, Guardian (April 16, 2016); Editorial, Rhetoric and reality in Cuba, El Pais (April 17, 2016).

[2] Earlier in the speech Castro said, “Illegal and disorderly emigration of youth and specialists from various sectors is encouraged under the Cuban Adjustment Act, the “wet foot-dry foot” policy and the Parole Program, that is, permission to reside in the United States, granted with absolute speed, for our doctors, who provide services abroad.”

[3] Castro did not list the human rights treaties in question, and this blogger has not attempted to verify the assertion that Cuba was a party to 44 such treaties. Prior posts have pointed out that the U.S. is a party to 16 major such treaties while signing, but not ratifying 9 others and not signing and ratifying 7 others: Multilateral Human Rights Treaties Ratified by the U.S. (Feb. 9, 2013); Multilateral Treaties Signed, But Not Ratified by the U.S. (Feb. 12, 2013); Multilateral Human Rights Treaties That Have Not Been Signed and Ratified by the U.S. (Feb. 16, 2013)

Another Cuban Migrant Problem in Central America

Last November 8,000 Cuban migrants were stranded in Costa Rica on their journey to the U.S. after Nicaragua closed its borders with Costa Rica. This crisis eventually was resolved by a multilateral effort in that region to transport the migrants by plane and bus to the Mexico-U.S. border where they gained entry to the U.S. The last of such transfers occurred this March. Another part of the “solution” was Costa Rica’s closing its southern border to additional Cuban migrants coming from neighboring Panama.[1]

It recently has been revealed that the U.S. in January, pledged at least $1 million to help provide temporary shelter, potable water, food, sanitation and hygiene kits to the thousands of Cubans who had been stranded in Costa Rica while trying to make their way to the American border. The U.S. did so through the International Organization for Migration. The State Department said, “We expect this particular contribution to be a one-time contribution, and the final amount that will actually be provided to I.O.M. will depend upon needs on the ground, given that the number of vulnerable migrants in need of immediate humanitarian aid in Costa Rica fluctuates.”[2]

Now another similar crisis has erupted with over 3,500 Cuban migrants stranded in Panama and unable to enter Costa Rica. On April 13 an estimated 1,200 of the Cubans illegally entered Costa Rica after attacking one of its immigration offices at the border.

Costa Rica’s Response[3]

In its initial response, on April 11, Costa Rica’s Foreign Minister, Manuel González Sanz, issued a warning to the new wave of undocumented Cubans hoping to travel by land from Ecuador to the U.S. He said, “I want to make absolutely clear, to all the [Cuban] migrants who are coming and those already in Panama, that Costa Rica cannot and will not receive them.”

Moreover, The Foreign Minister stated Costa Rica ““will make use of all domestic and international measures at its disposal to address this situation, if we face something similar to what we faced from November to March.” His country, the Foreign Minister added, “already gave everything it could give, did more than it was required to do, and we definitely are not in a position to confront—not as part of a group and certainly not alone, as we did in the past—a situation similar to what the country experienced.”

González’s statement appropriately blamed U.S. laws, especially the Cuban Adjustment Act, granting special immigration benefits to Cubans arriving by land at the U.S. border. Therefore, the issue of Cuban migration “should be part of the bilateral relations between Cuba and the United States, but the reality is that the countries from Ecuador to Mexico, we are the ones caught in the middle and we are the ones suffering the consequences of laws that incite that migration.”

The next day, April 12, Costa Rica hosted a regional meeting to discuss this new migrant crisis. Other countries present were Ecuador, Colombia, Panama, El Salvador, Guatemala, Honduras, Mexico and the U.S. Absent were Nicaragua and Cuba. Costa Rica’s Foreign Minister said, ““We are once again faced with a valuable opportunity to continue the dialogue, take advantage of good practices and experiences, reaffirm our commitments and, as in the meetings that preceded this, demonstrate that we can provide permanent concrete solutions,” He added, “ If there is not a coordinated, structural approach by all the countries involved, we will continue to have these events affecting countries individually. But individual action has proven to be too fragile for one country to take on a problem of such magnitude.”

After the April 13 illegal entry of Cuban migrants, the Costa Rican government issued another statement. It said the government:

“Reaffirms its commitment to respect for human rights and the protection of the dignity of persons irrespective of their nationality. The Government is obliged to maintain, in compliance with the law a climate of social peace for its citizens, to events that put their safety at risk.”

“Remembers that Costa Rica was an example to the world with humanitarian assistance of Cuban migrants, with the help of communities, civil society, municipalities and public institutions to more than 8,000 people who were stranded in our territory attended between November 2015 and March 2016.”

“Remembers that since December 18, 2015, Costa Rica ceased granting extraordinary transit visas to Cuban migrants, who were notified, transparently and straightforwardly, they cannot enter the country illegally.”

“Reports the various U.S. regulations that promote and privilege for entry into that country, incite illegal Cuban migration and create perverse incentives to migration and favorable conditions for trafficking in human beings.”

“Deplores that Costa Rica and Panama are trapped in a region that maintains closed northern borders and open southern borders.”

“Reports that today more than a thousand irregular migrants entered Costa Rica violently in an affront to the Costa Rican people, who attended in past months so timely and generously to Cuban migrants.”

“Declares that Costa Rica has no economic or logistical capacity to host new groups of migrants. The Costa Rican people have given more than our ability is to sustain these groups of people.”

“Announced that efforts are made with the government of Panama to return all migrants irregularly entering our territory.”

“Repudiates and rejects all acts of violence and anyone who enters that way will be stopped.”

“Reports that Costa Rica had an active participation in the meeting held yesterday in San Jose, Costa Rica with chancellors, vice chancellors, members of government, immigration authorities and officials from UNHCR, UNDP, IOM. This meeting did not produce the expected results.” (Emphasis added.)

In addition, the President of Costa Rica, Luis Guillermo Solis Rivera, issued an order to implement this statement. In addition, the President stated that his government will write to President Obama to express his country’s “repudiation of . . . the effect of U.S. legislation which encourages [Cuban] migrants to continue a dangerous transit to that country using our territories.”

On April 15, the Government of Costa Rica issued another statement about the situation. This statement reiterated the previous points and declared that “Costa Rica and Panama are working to find joint and sustainable international solutions” to this problem.

Panama’s Response

On April 15, the Panama Foreign Ministry expressed “its concern about the current crisis of Cuban migrants in Latin America and their interest and willingness to find a sustainable and joint solution with the countries of the region.” It called on “the migrants living in our country to respect the peace and rules of both countries, especially in such a difficult situation.” At the same time, Panama has made significant efforts to safeguard the human rights of the migrants and has obtained Mexico’s agreement for nearly 1,300 Cuban migrants to fly from Panama to Mexico so they can continue their transit to the U.S. [4]

Cuba’s Response

Although invited to the Costa Rica meeting about the problem, Cuba did not attend, and no official Cuban statement on the matter has been found.

However, Raúl Castro as First Secretary of the Communist Party of Cuba on April 16 delivered the Central Report to the Party’s Seventh Congress. He said that U.S. migration policies that encourage Cubans to defect were “a weapon against the revolution.”[5]

U.S. Response

To my amazement and regret, I have not found any response to this situation from the U.S. Government.

However, prior posts have argued that the U.S. should terminate its ”dry feet” policy that allows Cubans automatic entry into the country without a visa when arriving by land as well as the U.S. Cuban Medical Personnel Parole Policy that grants such personnel parole into the U.S. These policies are based upon the obsolete U.S. notion that every Cuban leaving the island is escaping persecution.[6]

These recent problems in Central America provide another reason for the U.S. to terminate these programs. Our friends in Central and South America are being subjected to intolerable burdens from Cuban migrants and our friends also see what they regard as unfair harsh U.S. immigration policies for their people seeking to go to the U.S. when compared with the Cubans.

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[1] This earlier crisis was discussed in these blog posts: Cubans in Central America Provide Cuba with an Opportunity To Reiterate Its Objections to U.S. Immigration Policies (Nov. 20, 2015); Update on Cuban Migrants in Central America (Nov. 27, 2015); Status of Cuban Migrants in Central America Still Unresolved (Dec. 11, 2015); Resolution of Problem of Cuban Migrants Stranded in Central America (Dec. 30, 2015).

[2] Robles, U.S. Pays to Feed and Shelter Cuban Migrants Stranded in Costa Rica, N.Y. Times (Mar. 4, 2016;

[3] Meléndez, Costa Rica says its doors are closed to Cubans, Miami Herald (April 11, 2016); Costa Rica Foreign Ministry, Deputy Foreign Ministers Meeting in Costa Rica allowed constructive dialogue on the issue of migration flows (April 12, 2016); San Martin, Central American countries meet to resolve new Cuban migration wave, Miami Herald (April 12, 2106); Costa Rica Foreign Ministry, Declaration by the Government of Costa Rica to irregular entry of migrants (April 13, 2016); Assoc. Press, Migrants Force Way Into Costa Rica From Panama, N.Y. Times (April 13, 2016); Dyer, Costa Rica pushed greater regional cooperation on Cuba, African migration, Tico Times (April 13, 2016); Fernandez, Cuban migrants force their way across the Panama-Costa Rica border,Miami Herald (April 14, 2016); Costa Rica Foreign Ministry, Statement of the Government of Costa Rica to the attempt of massive influx of Cuban migrants (April 15, 2016).

[4] Panama Foreign Ministry, Panama reiterates concern over problems of Cuban migrants (April 15, 2016).

[5] Reuters, Castro Hardens Rhetoric, Warns Cubans to Be Alert to U.S. Intentions, N.Y. Times (April 16, 2016).

[6] Prior posts about special U.S. immigration laws for Cubans: New York Times Calls for End of U.S. Program for Special Immigration Relief for Cuba Medical Personnel (Nov. 23, 2014); U.S. and Cuba Fail To Resolve Complaints About U.S. Immigration Policies (Dec. 1, 2015); President Obama Should Exercise His Legal Authority To End U.S. Admission of Cubans Arriving with “Dry Feet” (Dec. 4, 2015); New York Times Calls for End to Special U.S. Immigration Programs for Cubans (Dec. 21, 2015); U.S. Ending Its Cuban Medical Personnel Parole Program? (Jan. 8, 2016).

Resumption of Spanish Criminal Case Over 1989 Salvadoran Murder of Jesuit Priests?

As discussed in a prior posts, Spain’s National Court in 2008 commenced a criminal investigation of the 1989 murder of six Jesuit priests and their housekeeper and her daughter in El Salvador. In May 2011 the Spanish court issued the equivalent of an indictment of 20 former Salvadoran military officials for their alleged involvement in those murders.[1]

In December 2011 Spain requested extradition of 13 of them who were in El Salvador and two who were believed to be in the U.S. (Two of the others could not be located, another two were in the process of cooperating with the Spanish judge in the case and another had died.) In May 2012, however, the Supreme Court of El Salvador denied extradition of the 13 on the ground that the country’s constitution prohibited extradition of its citizens while one of those was in the U.S. in U.S. custody on criminal charges (Inocente Orlando Montano Morales). As a result, it appeared that the Spanish case had been road-blocked

Now there are signs in the U.S., Spain and El Salvador that the case will be resumed.

U.S. Court Approves Extradition of a Salvadoran Suspect to Spain

On April 8, 2015, the U.S. Department of Justice filed a complaint for U.S. extradition of Montano to Spain. A hearing on that complaint was held on August 19, 2015, before U.S. Magistrate Judge Kimberly Swank, U.S. District Court (Eastern District, North Carolina).[2]

On February 5, 2016, the Magistrate Judge issued her decision upholding the requested extradition. She agreed with the Spanish evidence that showed that Mr. Montano was present at a meeting of the military high command that ordered the murders, which were carried out by an elite Salvadoran unit trained by the U.S. military. “A government official who acts in collaboration with others outside the scope of his lawful authority,” she wrote, “may reasonably be considered a member of an armed gang under the Spanish terrorist murder statute.”[3]

The key conclusions of the decision were: (a) “There is currently in force an extradition treaty between the United States and Spain;” (b) Montano “was charged in Spain with extraditable offenses under the terms of the extradition treaty between the United States and Spain, namely the terrorist murder of five Jesuit priests of Spanish origin and nationality;” and (c) “Probable cause exists to believe [Montano] committed the charged offenses of terrorist murder.”

Therefore, the Magistrate Judge concluded that Montano was subject to extradition and certified this finding to the U.S. Secretary of State as required by 18 U.S.C. § 3184.

The Center for Justice and Accountability (CJA), which has supported the extradition of Montano, said that this decision was “thorough, erudite and sweeping in scope [and] turns on a central legal ruling: As a government official, Montano collaborated with others to carry out the murders, acting beyond the scope of his official authority. As such, Montano can be considered a terrorist. This finding is a vindication of the years of struggle of the Salvadoran people against a repressive military which tried to turn reality on its head by calling anyone who defied it – including the Jesuits priests – terrorists. It is gratifying that a US court has recognized the true reality and named its leaders, Montano one of the most powerful, what they were – terrorists.” CJA added: “The Assistant U.S. Attorney was persuasive in all aspects of his arguments, ably representing the interests of Spain in the U.S. judicial process.”

Carlos Martín Baró, the plaintiff in CJA’s Jesuits Massacre Case in Spain and brother of Father Ignacio Martín Baró, S.J., one of the murdered priests, said: “My brother had a broad desire to help people. When he encountered the poverty and inequality of El Salvador, he realized the problem was deeper, and he dedicated his entire life to helping the people of that country. The fact that the Colonel Montano may face trial in Spain won’t heal the pain but is a victory for all people who seek justice.”

Under the previously mentioned U.S. federal statute (18 U.S.C. § 3184) the Secretary of State “shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made.” This statute on its face does not appear to grant the Secretary the discretion to deny the request for extradition. Moreover, since the U.S. Department of Justice brought the prosecution of Montano for immigration fraud and then for his extradition, it appears exceedingly unlikely that Secretary of State John Kerry would not provide the necessary warrant for extradition.

Now we wait to see if Montano exercises his right under Federal Rule of Civil Procedure 73 (c) and Federal Rule of Appellate Procedure 4(a) to appeal this decision to the U.S. Court of Appeals for the Fourth Circuit within 30 days “after entry of the judgment or order being appealed from,” which presumably is February 5.

Spain and El Salvador’s Apparent Cooperation on Extradition of Other Suspects

In August 2015, in an unrelated case, the Constitutional Chamber of the Salvadoran Supreme Court ruled that, according to a treaty on international cooperation in criminal matters to which El Salvador is a party, an INTERPOL red notice requires both the identification of the location of the defendants and their arrest and detention pending an additional filing, such as an extradition request. This decision appears in direct conflict with the Court’s May 2012 ruling against extradition in the Spanish case over the Jesuit murders.[4]

In response to this recent ruling, on November 16, 2015, the Salvadoran Human Rights Ombudsman, David Morales, petitioned the country’s Supreme Court to review its 2012 decisions refusing to arrest and order the extradition of 11 former military officials who were subjects of the INTERPOL arrest warrants,[5]

The Ombudsman also issued a resolution asking Spanish authorities to re-issue the arrest warrants, for extradition purposes in the Jesuits Massacre Case. This request was endorsed in the Spanish case by CJA and the Spanish Association for Human Rights (APDHE).

On January 4, 2006, the Spanish court’s Judge Velasco honored that plea by requesting INTERPOL to re-issue the international arrest warrants for all the Jesuit Massacre case defendants who reside in El Salvador for their extradition to Spain to face the charges.

On January 6, the Salvadoran government said it will cooperate in the execution of those warrants and the extradition of 17 former Salvadoran military officials and soldiers (one of whom is the previously mentioned Montano in the U.S.), but that the country’s Supreme Court would make the final decision.

On the other hand, a former Salvadoran Defense Minister, Humberto Corado, who was not involved in the killings, has requested support for those subject to the INTERPOL arrest warrants from the ARENA political party because their party members were the government officials in charge at the time of the killings and issued orders that the military carried out. He also argued that the country’s amnesty law should prevent the Spanish case from proceeding further,[6]

On February 5 and 6, 2016, Salvadoran police detained four of the 17 former military officials. The police also are looking for the other 12 (excluding Montano). This is despite some earlier police reluctance to do so. These arrests and searches are seen as a first step towards extradition. These actions were endorsed on February 6 by President Salvador Sanchez Ceren, who stressed that the country was “committed to comply with international standards” and that there were INTERRPOL red notices calling for arrest. He also urged those subject to arrest to comply for decision on extradition to be made by the Supreme Court.[7]

Conclusion

There now appears to be some hope that those accused of complicity in the murder of the Jesuits will face criminal charges in Spain. The main obstacle now is the Salvadoran Supreme Court, which will have to decide whether the new arrest warrants and request for extradition will be honored.

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[1] Prior posts that were tagged “Jesuits” covered the marvelous ministries of these Jesuit priests and their university (University of Central America or UCA); the circumstances of their horrible murders; the Salvadoran military’s attempted cover-up of their involvement in these crimes; the flawed Salvadoran criminal prosecution of a few of the military personnel so involved and their absolution by a Salvadoran amnesty law; the investigation and report on these crimes by the Truth Commission for El Salvador; other legal proceedings regarding these crimes; the Spanish criminal case over these crimes; El Salvador’s 2012 denial of Spain’s request for extradition of most of the suspects in the case; and the commemoration of the 25^th anniversary of the Jesuit martyrs in November 2014.

[2] Prior posts that were tagged “Montano” discuss the U.S. prosecution, conviction and imprisonment of Montano for U.S. immigration fraud and the proceedings for his extradition to Spain. See also CJA, U.S. Extradition of Montano; Drew, Unusual extradition fight plays out over priests’ slayings, Yahoo News (Aug. 18, 2015); Hodge, Former colonel faces extradition for charges of plotting Jesuits’ slayings, Nat’l Catholic Reporter (Aug. 24, 2015).

[3] Certification of Extraditability & Order of Commitment, In re Request By Spain for the Extradition of Inocente Orlando Montano Morales (No. 2:15-MJ-1021-KS, U.S. Dist. Ct., E. D. N.C., N. Div. Feb. 5, 2016); CJA Press Release, Judge Grants Extradition of Salvadoran Colonel Accused in Jesuit Massacre (Feb. 5, 2015); Malkin, U.S. Judge Approves Extradition of Former Salvadoran Colonel, N.Y. Times (Feb. 5, 2016).

[4] CJA, Spanish Judge Re-Issues Request for the Arrest of Military Officials, CJA (Dec. 2015); Dalton, Spain calls for arrest of 18 soldiers accused of killing priests in El Salvador, El Pais (Dec. 23, 2015); Reuters, El Salvador will cooperate in arrest of 17 former soldiers accused of killing priests, Guardian (Jan. 6, 2015); Labrador, Spain orders again capture Jesuit Salvadoran military case, elfaro (Jan. 5, 2016).

[5] Human Rights Ombudsman asks extradition slaughter of Jesuits, El Mundo (Nov. 16, 2015).

[6] Serrano, They asked military support of ARENA and right before the event of murdered Jesuits, LaPagina (Jan. 6, 2016).

[7] President recommends involved in Jesuit case to be delivered, Diario CoLatino (Feb. 6, 2016); Labrador, Captured soldiers accused in the Jesuit case, Elfaro (Feb. 5, 2016); PNC Accused Military Capture Jesuit Case, DiarioLatino (Feb. 5, 2015); Labrador, Police are still resisting capture by military Jesuit Case, Elfaro (Jan. 25, 2016).

Cuban Migration Developments

In recent weeks there have been significant developments regarding Cubans leaving, and returning to, the island and possible changes to U.S. laws regarding Cubans coming to the U.S.

Cuban Migrants in Central America

“Test Plan” for Transit of Cuban Migrants to U.S.

As reported in prior posts, about 8,000 Cuban migrants have been stranded in Costa Rica on their journeys to the U.S., but last December Mexico and certain Central American governments agreed on a “test plan” to transport the migrants via air and bus from Costa Rica through El Salvador, Guatemala, Honduras and Mexico to the U.S. border.[1]

On January 12 the initial group of 180 of these migrants started this journey, and on the next morning they had arrived in Ciudad Hidalgo on the Honduras-Mexico border, where they were granted 20-day transit visas. They were then put on their own to get to the Mexico-U.S. border. The first of them reached the Mexico-U.S. border at Laredo, Texas on the evening of January 14. And on January 18 a group of 30 arrived in Florida (Tampa, Sarasota, Fort Myers and Miami).[2]

In anticipation of the arrival of many of these Cubans in the Miami, Florida area, the mayors of Miami-Dade County in Florida have asked the federal government for funds to assist in welcoming many of those Cubans who are expected to come to their county.[3]

Evaluation of “Test Plan”[4]

On January 20 Guatemala hosted a meeting with representatives of Costa Rica, El Salvador, Honduras, Mexico, Panama, Belize and members of the International Organization for Migration to review the operation of the “test plan.” During the meeting an analysis of the operation was performed and each country presented their experience in the management of migration and visa issues as well as logistics and security. They concluded that the process was successful and that the passage of the Cuban migrants was made in a legal, orderly, safe and transparent manner. They also agreed to collaborate better and improve coordination needed for future transfers and to meet again on February 15 to review further progress.

Future Transit of Cuban Migrants to the U.S.

The representatives at the January 20 meeting also concluded to resume the transit of Cubans in Costa Rica on February 4 with two weekly flights (February 9, 11, 16, 18, 23 and 25) from Costa Rica to El Salvador followed by their busing to the Honduras-Mexico border and thence on their own to the Mexico-U.S. border. Priority will be given to households with pregnant women or children, with earlier dates of entry into Costa Rica, the numbers on their Costa Rica visas and the financial resources to pay for the transit. In addition, Costa Rican officials will visit Cubans remaining in shelters to renew their visas.

Each Cuban will pay $555 for the charter flight, the bus and food arranged by a travel agency. Once in Mexico, the Cubans will receive a 20-day transit visa to make it on their own to the U.S. border. U.S. and Mexican officials hope is to hatch a similar plan for the 3,000 Cubans stranded in Panama.

Cuban Migrants By Sea

On May 2, 1995, in response to a large increase in Cubans who were attempting to make the dangerous crossing of the Caribbean Sea to get to Florida, the U.S. and Cuba entered into an agreement whereby the two countries “reaffirm their common interest in preventing unsafe departures from Cuba. Effective immediately, Cuban migrants intercepted at sea by the [U.S.] and attempting to enter the [U.S.] will be taken to Cuba.”[5]

Since then, the U.S. has done just that. Such an agreement and practice, it was believed, would discourage other Cubans from attempting such dangerous journeys. This then became known as the “wet feet” part of the U.S. disjunctive dry feet/wet feet policy. Here are the statistics on such interdictions:[6]

Fiscal Year (Oct.1-Sept. 30)	Number of Interdictions
1995	525
1996	411
1997	421
1998	903
1999	1,619
2000	1,000
2001	777
2002	666
2003	1,555
2004	1,225
2005	2,712
2006	2,810
2007	2,868
2008	2,216
2009	799
2010	422
2011	985
2012	1,275
2013	1,357
2014	2,111
2015	2,924

So far in Fiscal 2016 (10/01/15-01/14/16), the U.S. Coast Guard estimates that 1,942 Cubans have been interdicted at sea or have attempted to land in the U.S. or have actually landed by sea. For the first half of January 2016 alone, a total of 396 Cuban migrants have been picked up in the waters between Florida and Cuba and returned to Cuba. The increases in Fiscal 2015 and so far in Fiscal 2016 are believed to have been caused by the December 2014 announcement of normalization between the two countries and Cubans’ concern that the U.S. might end its special immigration benefits for Cubans.[7]

In addition, the U.S. Coast Guard reports that more of the Cubans who have been interdicted and put on Coast Guard vessels are jumping overboard, trying to poison themselves or making self-inflicted wounds in attempts to be taken to U.S. shore. As a result the Guard has added security personnel on the vessels.

A Guard official recently said, “Immigration policies have not changed, and we urge people not to take to the ocean in unseaworthy vessels. It is illegal and extremely dangerous.”

Some Cubans Returning to Cuba[8]

Nick Miroff of the Washington Post reports there is a “growing number of Cubans who have opted to move back to the island in recent years as the Castro government eases its rigid immigration rules. The returnees are a smaller, quieter counter-current to the surge of Cubans leaving, and their arrival suggests a more dynamic future when their compatriots may come and go with greater ease, helping to rebuild Cuba with earnings from abroad.”

Indeed, Miroff says, these returnees or “repatriates are not coming back for socialism. They are coming back as capitalists. . . . [or as] trailblazing entrepreneurs. Prompted by President Raúl Castro’s limited opening to small business and his 2011 move allowing Cubans to buy and sell real estate, the repatriates are using money saved abroad to acquire property and open private restaurants, guesthouses, spas and retail shops.”

In 2012, Cuban immigration officials said they were processing about 1,000 repatriation applications each year. “The numbers appear to have increased since then, at least judging from anecdotal evidence and the proliferation of new small businesses in Havana run by returnees.”

“Many of the repatriates . . . are returning from Europe and Latin America. Cubans in the [U.S.] may be more reluctant to return to the island because of their relatively high incomes . . . [in the U.S. and because U.S.] economic sanctions also make it essentially illegal for any U.S. resident to go to Cuba and run a business. And the ability to buy property remains mostly restricted to Cubans who live on the island.”

Possible Changes in U.S. Immigration Laws Regarding Cubans

As noted in previous posts, Cuba and now Central American countries have been vigorous opponents of the U.S. policy of allowing Cubans who arrive on land to come into the U.S. without visas, and the U.S. Administration repeatedly has said it has no intentions of changing that policy.

In the meantime, the only congressional bill to end the special treatment for Cubans arriving by land at the U.S. border that was offered by Representative Paul Gosar (Rep., AZ)—Ending Special National Origin-Based Immigration Programs for Cubans Act of 2015 (H.R.3818)– has gained little support beyond its nine cosponsors.[9]

Under another law, Cubans who have arrived in the U.S. by land are automatically eligible for federal public assistance under the Refugee Resettlement Program. On January 12, 2016, Senator Marco Rubio (Rep., FL), a candidate for the Republican presidential nomination, introduced a bill to end these automatic federal benefits.[10]

The bill, The Cuban Immigrant Work Opportunity Act of 2016 (S.2441), which has no cosponsors and which was referred to the Senate Finance Committee, would terminate the automatic eligibility for federal public assistance for Cuban nationals under the Refugee Resettlement Program, while maintaining it for those that have been persecuted that are in need of resettlement assistance.

Rubio said, ““It is outrageous whenever the American people’s generosity is exploited. It is particularly outrageous when individuals who claim to be fleeing repression in Cuba are welcomed and allowed to ‎collect federal assistance based on their plight, only to return often to the very place they claimed to be fleeing. The weaknesses in our current law not only allow the flow of American tax dollars into the Castro regime’s coffers, it also undermines the legitimate cause of those Cubans who are truly fleeing repression and political persecution.”

Rubio’s rationale for this bill would also justify the U.S.’ ending its previously mentioned “dry feet” immigration policy.

Yet another special U.S. immigration program for Cubans—the Cuban Medical Professional Parole Program—is under consideration for cancellation by the Obama Administration.[11]

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[1] Cubans in Central America Provide Cuba with an Opportunity to Reiterate Its Objections to U.S. Immigration Policies (Nov. 20, 2015); Update on Cuban Migrants in Central America (Nov. 27, 2015); Status of Cuban Migrants in Central America Still Unresolved (Dec. 11, 2015); Resolution of Problem of Cuban Migrants Stranded in Costa Rica (Dec. 30, 2015).

[2] Date set for the departure of first group of Cuban migrants from Costa Rica, Granma (Jan. 8, 2016); Robles, Cubans, Fearing Loss of Favored Status in U.S., Rush to Make an Arduous Journey, N.Y. Times (Jan. 9, 2016); Reuters, First Group of Stranded Cuban Migrants Leave Costa Rica, N.Y. Times (Jan. 13, 2016); Assoc. Press, Cubans Begin Pilot Transfer From Costa Rica to Mexico, N.Y. Times (Jan. 13, 2016); Assoc. Press, Stranded Cuban Migrants Brought by Air, Bus to Mexico, N.Y. Times (Jan. 13, 2016); Reuters, Mexico to Grant Transit Visas to Cuban Migrants, N.Y. Times (Jan. 13, 2016); Perez & Cordoba, Stranded Cuban migrants brought by air, bus to Mexico, Wash. Post (Jan. 13, 2016); First group of Cuban migrants arrive in Mexico, Granma (Jan. 13, 2016); Assoc. Press, Stranded Cuban Migrants Make Plans to Cross Mexico, N.Y. Times (Jan. 14, 2015); Assoc. Press, First of 8,000 Stranded Cuban Migrants Cross Into US, N.Y. Times (Jan. 15, 2016); Barbero, The first Cubans stranded in Central America come to Miami, El Pais (Jan. 19, 2016).

[3] Barbero, Miami seeks help from Obama before the arrival of Cubans, El Pais (Jan. 7, 2016),

[4] Prensa Latina,Guatemala: Cuban Migrant Issue to be Tackled in regional Meeting, Esacambray (Jan. 20, 2016); Costa Rice Foreign Ministry, Next trip to Cuban migrants will be on February 4 (Jan. 20, 2016); Central American governments agreed to Cubans plan, Granma (Jan. 21, 2016).

[5] U.S.-Cuba Joint Statement on Migration, May 2, 1995, Dispatch Magazine.

[6] Focus on Cuba: Current Issues and Developments at 41 (2008); U.S. Coast Guard, Alien Migrant Interdiction (May 31, 2015)

[7] Clary, Number of Cubans intercepted at sea rises to highest level in two decades, SunSentinel (Nov. 4, 2015); Flechas, U.S. Coast Guard repatriates 169 Cuban migrants, Miami Herald (Jan. 14, 2016) Rohrer, Post-Thaw, Cuban refugees surge in Florida, Orlando Sentinel (Jan. 19, 2016); Assoc. Press, Coast Guard: Migrants Fleeing Cuba Increasingly Violent, N.Y. Times (Jan. 20, 2016).

[8] Miroff, Amid a historic wave of emigration, some Cubans are returning home, Wash. Post (Jan. 1, 2015).

[9] Gosar, Press Release: Gosar Introduces Bill to End Wet Foot/Dry foot Policy & Stop Cuban Amnesty (Oct. 23, 2015)

[10] Rubio, Rubio Introduces Legislation To End Rampant Abuse of Cuban Refugee Resettlement Benefits (Jan. 12, 2016); Reuters, Republican Rubio Authors Senate Bill to Curb Cuban Immigration Benefits, N.Y. Times (Jan. 12, 2016) A companion bill (H.R.4247) was introduced in December 2015 in the House by Representative Carlos Curbelo, a fellow Cuban-American Republican from Florida. It has 12 cosponsors and was referred to the House Judiciary Committee.

[11] U.S. Ending Its Cuban Medical Professional Parole Program? (Jan. 8, 2016).

Resolution of Problem of Cuban Migrants Stranded in Central America

On December 28, 2015, five Central American countries and Mexico apparently resolved the problem created by the presence of 6,000 to 8,000 Cuban migrants in Costa Rica. Many of the circumstances leading up to the presence of these migrants have been discussed in prior posts.[1] This post will review subsequent events that have made the problem more pressing for Costa Rica, the recent agreed-upon solution for this problem and issues presented for its full implementation.

Recent Developments

On December 18, 2015, Costa Rica suspended its participation in the political bodies of the Central American Integration System (SICA) because of the refusal of three members (Belize, Guatemala and Nicaragua) to seek a regional solution to the transit of the migrants on their way to the U.S.[2]

On the same date, Costa Rica announced that it would no longer issue any more transit visas to Cubans seeking to enter the country and that it would deport to Cuba any Cubans in the country without such visas. [3]

On Sunday, December 27, Pope Francis led the Angelus Prayer with pilgrims and tourists gathered in St. Peter’s Square from the window of his study in the Apostolic Palace at the Vatican. Immediately after the prayer, Francis said, “[M]y thoughts at this time to the numerous Cuban migrants who find themselves in difficulties in Central America, many of whom are victims of human trafficking. I invite the countries of the region to renew generously all necessary efforts to find a timely solution to this humanitarian tragedy.”[4]

Agreed-Upon Solution[5]

On Monday, December 28, Costa Rica, Panama, El Salvador, Honduras, Mexico and Guatemala met in Guatemala with the International Organization for Migration and agreed to what they called a “pilot project” to resolve the Cuban migrants problem. Here the main points of that “pilot program:”

In the first week of January 2016, 250 of the 6,000 to 8,000 migrants in Costa Rica will be flown from San Jose, Costa Rica to San Salvador, El Salvador, where they will obtain the latter’s transit visas.
These migrants will then be transferred to buses to be taken from El Salvador through Guatemala and Mexico to the latter’s northern border with the U.S. while obtaining on the journey the latter Guatemala and Mexican transit visas.
At the U.S. border, the migrants will present their papers to U.S. immigration officials and presumably will be allowed to come into the U.S. under its dry feet/wet feel policy.

In addition, the five Central American countries and Mexico reaffirmed their commitment to combat human trafficking networks, to apply the law “without delay” in order to severely penalize this illegal activity that “unfortunately obliges countries in the region to return to their country of origin all persons entering their territory in an unauthorized manner, ”to prevent irregular migration and to firmly combat the crime of human trafficking, and primarily to protect the integrity of migrants and ensure respect for their fundamental rights,” They also agreed to convene a Regional Conference on Migration to address this issue in its entirety.

El Salvador’s announcement of this agreement stated that its participation in the solution was “in line with the call made by His Holiness Pope Francis, in his message of December 27.” This sentiment was echoed by Edgar Gutiérrez, a political analyst and former Guatemalan foreign minister, who said, “I believe that the pope’s comments were extremely important to accelerate the negotiation process.”

The U.S. and Cuba were not directly involved in the negotiations of this agreement, but according to the Wall Street Journal, both of these countries had pressed the Central American countries to reach a regional agreement on resolving the current situation before the end of this year. They did so after the U.S. reportedly rejected a Costa Rica request for the U.S. to airlift the migrants directly to the U.S. and after Cuba’s Foreign Minister Bruno Rodríguez stated that “Cuba requests that the solution for the thousands of Cuban migrants in Costa Rica is adequate, taking into account the welfare of these citizens, and that it is as swift as possible.”

Just before this agreement was reached, the New York Times published a letter from Costa Rica’s Ambassador stressing “the growing humanitarian and economic challenge that Costa Rica faces in caring for [the Cuban migrants].”[6]

Concerns About the Agreed-Upon Solution

The current public information about the agreed-upon solution presents the following questions (and problems):

Will the ‘pilot project” be successful?
If it is successful, how many separate flights and bus trips will be necessary for all 6,000 to 8,000 migrants legally in Costa Rica? Based upon the 250 migrants involved in the “pilot project,” it will require a total of 32 such ventures for 8,000 migrants.
Over what period of time?
The “pilot project” and implementation for all of the 6,000 to 8,000 migrants now in Costa Rica with transit visas will be expensive. At only $1,000 per person the total cost would be $6 million to $8 million. Who will pay for it? The countries directly involved clearly are not wealthy countries and presumably cannot afford it. As a result, they probably will ask the U.S. to do. So. Will the U.S. agree to do so?
Will the U.S. still have the dry feet/wet feet policy in effect when the “pilot program” and other migrants arrive at the U.S. border and, therefore, be permitted to come into the U.S.?

An overarching concern is whether this agreement will encourage additional Cubans to leave their country in an effort to get to the U.S. next year, especially after Cuban President Raul Castro’s December 29 speech to the country’s National Assembly warning Cubans that next year will be a difficult year for the Cuban economy.[7]

Carlos Raúl Morales, Guatemala’s foreign minister, said, “We are finishing the work of the smugglers, and of course it will incentivize the arrival of more illegals, but in solidarity we could not ignore the drama in Costa Rica.” Similar thought were offered by Eric Olson, a Latin American analyst at the Wilson Center in Washington.

Central American officials, however, stressed the deal was one-off due to a humanitarian situation and that Costa Rica has ended the transit-visa program that had opened the door to Cuban migrants. “This solution is absolutely an exception for those people who had already arrived legally,” Costa Rican Foreign Minister Manuel González told reporters after the agreement was reached on Monday. “Costa Rica has been very clear that we cannot establish a permanent mechanism” for Cuban immigrants. A Mexican diplomatic official concurred: “The agreement among all of us is that we had to solve this under the principle of shared responsibility and that the problem cannot repeat itself.”

Another result of the surge of Cuban migrants through Central America and of the agreement to resolve the current situation will be the enlistment of all of the Central American countries plus Mexico in Cuba’s effort to persuade the U.S. to terminate as soon as possible its “dry feet/wet feet” immigration policy for Cubans.

This U.S. immigration policy can also be seen as part of the U.S. “visa waiver” program, which currently is under legitimate review for future restrictions to attempt to prevent foreign terrorists from coming to the U.S.[8]

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[1] Cubans in Central America Provide Cuba with Opportunity To Reiterate Its Objections to U.S. Immigration Policies (Nov. 20, 2015); Update on Cuban Migrants in Central America (Nov. 27, 2015); U.S. and Cuba Fail to Resolve Complaints About U.S. Immigration Policies (Dec. 1, 2015); Status of Cuban Migrants in Central America Still Unresolved ((Dec. 11, 2015).

[2] Costa Rica Foreign Ministry, Costa Rica suspends participation in political bodies of SICA refusal to Nicaragua, Guatemala and Belize agreed solution to the transit of Cuban migrants, (Dec. 18 2015).

[3] Assoc.Press, Costa Rica Suspends Visas for Cubans as Regional Protest, N.Y. Times (Dec. 18, 2015); Assoc. Press, Costa Rica Moves to Deport 56 Cuban Migrants, N.Y. Times (Dec. 26, 2015).

[4] The Words of the Pope at Angelus, 27/12/2015; Pope Francis Angelus appeal for Cuban migrants, Va. News (Dec. 27, 2015).

[5] Assoc. Press, Costa Rica: Some Stranded Cubans to be Allowed to Continue North, N.Y. Times (Dec. 28, 2015); Costa Rica Foreign Ministry, Countries in the region agree to give exceptional, safe passage and ordered Cuban migrants (Dec. 28, 2015); Guatemala Foreign Ministry, Press the Republic of Guatemala regarding the meeting held to address the immigration status of Cubans in Costa Rica (Dec. 28, 2015); El Salvador Foreign Ministry, El Salvador reiterates its readiness to cooperate with immigration crisis solution (Dec. 28, 2015); Central American agreement to transfer first group of Cuban migrants, Granma (Dec. 29, 2015); Iliff & Montes, Accord Over Cubans Stranded in Costa Rica Sparks Fear of Illegal Migration Wave, W.S.J. (Dec. 29, 2015).

[6] Macaya, Letter to the New York Times (Dec. 28, 2015).

[7] Iliff & Montes, Accord Over Cubans Stranded in Costa Rica Sparks Fear of Illegal Migration Wave, W.S.J. (Dec. 29, 2015); Assoc. Press, Raul Castro Prepares Cuba for Tough Year Despite US Opening, N.Y. Times (Dec. 29, 2015); Raul Castro, We never accept conditionalities for lacerating the sovereignty and dignity of the homeland, Granma (Dec. 30, 2015).

[8] E.g., Hulse, Some revealing Moments as Congress Closes the Door on 2015, N.Y. Times (Dec. 21, 2015)

U.S. Board of Immigration Appeals Affirms Deportation (Removal) of Former Salvadoran General José Guillermo Garcia

As mentioned in a prior post, in October 2009, the Department of Homeland Security charged that General Jose Guillermo Garcia, who had been residing in the U.S. since his retirement from the Salvadoran military, was removable (or deportable) from the U.S. under the Immigration and Nationality Act on the grounds that he had committed, ordered, incited, or otherwise participated in torture and extrajudicial killings in El Salvador.

The seven-day trial or hearing on these charges before an immigration judge was held in February 2013, and a year later the judge issued his 66-page decision in the case ordering that Garcia should be removed (or deported) from the U.S.This conclusion was based upon the judge’s findings that:

“As head of the armed forces and the most powerful person in El Salvador, [García] fostered, and allowed to thrive, an institutional atmosphere in which the Salvadoran Armed Forces preyed upon defenseless civilians under the guise of fighting a war against communist subversives. Instead of institutional changes that would decrease the incidents of killings and torture by the military, [García] failed to stamp out death squads within the security forces. Likewise, despite contemporaneous evidence that members of the military had been involved in the [1980] assassination of Archbishop Oscar Romero, [1] a man who could have been an ally in bringing about change and peace in El Salvador, [García] failed to adequately investigate.”

García helped conceal the involvement of soldiers who killed four American churchwomen in 1980.[2]

He “knew or should have known” that army troops had slaughtered the villagers, including women and children, in the hamlet of El Mozote in 1981.[3]

On December 15, 2015, the U.S. Board of Immigration Appeals upheld and finalized the removal order of Garcia in a decision that has not yet been made public. Whether he would exercise his right to appeal to a U.S. court of appeals was not immediately known.

This case has been conducted under the auspices of the Center for Justice and Accountability (CJA), a California-based human rights non-governmental organization. Its Legal Advisor Carolyn Patty Blum applauded the BIA’s decision. She said: “Minister of Defense Jose Guillermo García was the most powerful man in El Salvador during a reign of state terror in which tens of thousands of innocent Salvadorans were slaughtered. CJA applauds the Department of Homeland Security for its vigorous pursuit of García before the Immigration Court and the Board of Immigration Appeals and thanks our client Dr. Juan Romagoza, once again, for testifying in court proceedings against General García, as he had in the case of former Minister of Defense Eugenio Vides Casanova, deported earlier this year. We hope that García can be swiftly removed from the U.S. and face justice in El Salvador for the El Mozote massacre and the many other crimes committed under his command. It has been a long battle for justice for our clients and other victims who suffered horrendous repression during García’s rule in El Salvador.”

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[1] This blog has published many posts about Oscar Romero.

[2] This blog has published many posts about the American Churchwomen.

[3] This blog has published many posts about El Mozote.

Update on Cuban Migrants in Central America

A prior post discussed the conflict between Costa Rica and Nicaragua over Cubans trying to traverse Central American countries on their way to the United States. Since then, the foreign ministers of the eight countries of the Central American Integration System (SICA) and of other interested countries (Cuba, Ecuador and Colombia) held an inconclusive meeting to discuss that situation and thereafter Ecuador announced a change in its policies for Cuban migrants. Here is a summary of those developments.

Situation of Cubans in Central America

An estimated 3,000 Cubans are now stuck in Costa Rica over Nicaragua’s refusing to allow their entry into that country for their journey to the U.S. Many of these Cubans have smart phones and social media that have assisted them in their trek from Ecuador to Central America and, they hope, on to the U.S.[1]

SICA Foreign Ministers Meeting

The situation of the Cuban migrants was the focus of the just mentioned SICA meeting on Tuesday (November 24) . Note that the U.S. was not present or invited.[2]

The situation was prompted by Nicaragua’s refusing to admit Cuban migrants from Costa Rica. Nicaragua said Costa Rica had created and manipulated this crisis by seeking to ignore the real cause: the U.S. immigration policies that need to be changed. “Our governments do not have the resources to deal with this new threat to our national security,” suggesting that Nicaragua was faced with the wave of Cubans that could facilitate terrorism or migrants from other countries. Nicaragua also criticized the Cold-War-era U.S. policies that allow the Cubans special status as migrants.

The Cuban Ministry of Foreign Affairs said the Cubans in Costa Rica came legally to different nations of Latin America, with all the requirements established by the migratory regulations of their country. “In an attempt to reach U.S. territory, [however,] they have become victims of traffickers and criminal gangs, which unscrupulously profit from the control of the passage of these people through South America, Central America and Mexico.” Moreover, Cuba stated that the migrants also were victims of the politicization of the migration issue by the U.S. government, through the Cuban Adjustment Act and the “wet-foot, dry-foot policy.”

Cuba also said it has remained in contact with the governments of the countries involved. Indeed, Cuba’s Foreign Minister, Bruno Rodriguez Parilla, visited officials of its allies, Ecuador and Nicaragua, on November 19 and 20 respectfully to discuss the situation.

Ecuador supported Nicaragua’s position by saying that under international law creation of humanitarian corridors only applies in situations of war or armed conflict which was not the case here.

The Salvadoran Minister of Foreign Affairs, Hugo Martinez, afterwards said it was necessary to reach a comprehensive solution that addressed the current immigration crisis. He also said that El Salvador will ask the International Organization for Migration to support Costa Rica in shelter conditions for the Cuban migrants. However, he said, allowing the passage of the migrants was subject to the “principle of self-determination” of each of the SICA countries and that the migration was not encouraged by the country of origin (Cuba) or by the Central American countries, but by the U.S. with its special immigration policies for Cubans.

After the meeting Costa Rica’s Foreign Minister, Manuel Gonzalez, said that Nicaragua had refused again to cooperate in finding and adopting a solution for the migrants.

The solution proposed by Costa Rica was an arrangement to enable the safe, orderly and documented transit of the Cuban migrants so that they would avoid falling prey to international trafficking networks. According to Gonzalez, Nicaragua objected to this proposal and did not present any viable alternative approach.

Ecuador’s Requiring Visas for Cubans

On November 26 Ecuador announced that effective December 1 it will require Cubans to have visas to enter the country. Ecuador’s Deputy Minister of Foreign Affairs, Xavier Lasso, said this change was to honor commitments it made at the SICA meeting “to stop human rights violations and even loss of lives” and to halt threats to Cuba’s population. Lasso also urged the U.S. to rescind its “dry feet” immigration policy so that Cubans would no longer attempt this journey.[3]

The next day hundreds of Cubans gathered at the Ecuadorian Embassy in Havana to protest the new visa policy. They were angry because they say they had bought airplane tickets to Ecuador before visas were required. An Embassy spokesman said the Cubans would have to get a new visa and speak to the airlines about refunds.[4]

Conclusion

I agree that special immigration benefits for Cubans arriving on land in the U.S. and the risk that these benefits will be eliminated are prompting many Cubans to try to come to the U.S. as soon as possible. I also agree that these U.S. laws and policies should be eliminated as soon as possible.[5] In a future post I will attempt at least a preliminary legal analysis of the claim that the Obama Administration on its own by executive order or changes in regulations could do this.

I also agree that the U.S. should abolish the Cuban Medical Professional Parole Program as discussed in prior posts.[6] Again I have not attempted to determine whether the Obama Administration on its own by executive order or changes in regulations could do this or whether it requires Congress to pass a bill. (I would appreciate comments on this issue by those with more knowledge of the issues.)

The continuation of these U.S. immigration laws and policies will clearly be at the top of the Cuban agenda for the biannual round of bilateral discussion of migration issues in Washington, D.C. on November 30. Now Cuba will emphasize the recent Cuban migrant situation in Central America as an additional reason for prompt U.S. action.[7]

I originally was baffled by the U.S.’ continued assertions that there would be no changes in U.S. immigration policies regarding Cuba because those policies, in my opinion, are so illogical and inappropriate for countries with normal relations. Now I suspect that those assertions were based upon the Administration’s assessment of the difficulty (or impossibility) in obtaining Congressional approval of any necessary legislative changes on these issues and the Administration’s belief or hope that such assertions would discourage Cubans from immediately accelerating their plans or desire to leave Cuba for the U.S.

I reach these conclusions even though I suspect that Nicaragua’s precipitating the current problem in Central America was at the request of its close ally, Cuba, because, in my opinion, (a) Nicaragua would not do anything regarding Cuba against the latter’s wishes; (b) Cuba is concerned about the number of Cubans leaving the island and with Nicaragua’s assistance perhaps could stop a major route for such an exodus; (c) Cuba would like to have another occasion or reason to blame the U.S. for the problem; and (d) Nicaragua’s complaints against Costa Rica are absurd. I also believe, for similar reasons, that Ecuador’s recent requirement of visas for Cubans was at the request of Cuba.

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[1] Assoc. Press, Social Media Helps Drive Historic Cuban Exodus to US, N.Y. Times (Nov. 23, 2015).

[2] Sica meeting will address situation of Cuban migrants in Central America, Granma (Nov. 20, 2015); Cuban Foreign Minister held working visit to Ecuador and Nicaragua, Granma (Nov. 22, 2015); Begins Tuesday SICA meeting on migration in Central America, Granma (Nov. 23, 2015); Moran, Cuban migration could generate humanitarian crisis, ContraPunto (Nov. 23, 2015); Assoc. Press, Central American Officials Meet on Cuban Migrant Problem, N.Y> Times (Nov. 24, 2015); Foreign Ministers Discuss in El Salvador on Cuban Migrants Situation, Prensa Latina (Nov. 24, 2015); SICA meeting solution Cuban migrants issue in Costa Rica, CubaDebate (Nov. 24, 2015); Costa Rica Foreign Ministry, Nicaragua PREVENTS regional and humanitarian solution for protection of Cuban Migrants (Nov. 24, 2015); Moran, Nicaragua blocks outlet for Cuban immigrants, ContraPunto (Nov. 24, 2015); SICA Meeting in El Salvador: Regional gathering discusses situation of Cuban migrants in Costa Rica, Granma (Nov. 25, 2015); Gomez, Central America, a broker of broken dreams, Granma (Nov. 26, 2015).