Universal Jurisdiction for the Most Serious Crimes

Under customary international law, a nation state’s courts have jurisdiction over crimes where there is some link, usually territorial, between that state and the crime. In addition, under customary international law and certain treaties, a state has universal jurisdiction over certain crimes of international concern regardless of where the crime was committed or the nationality of the victim or perpetrator. These crimes of international concern are (a) piracy; (b) slavery; (c) war crimes; (d) crimes against peace; (e) crimes against humanity; (f) genocide; and (g) torture.[1]

Amnesty International recently released a comprehensive review of domestic statutes regarding criminal jurisdiction in the 193 members of the United Nations. It found that 75% of the members provided for universal  jurisdiction over one or more of the above crimes.  Yet there are many obstacles to effective use of these jurisdictional statutes. States often incorporate incomplete or incorrect definitions of such crimes into their domestic codes. Another obstacle is incorporation of defenses that are inconsistent with the international law for these crimes: following superior orders; statutes of limitation; amnesty laws; pardons; and immunities.[2]

On the other hand, this study found only 19 states have actually invoked universal jurisdiction since World War II. They are Argentina, Austria, Australia, Belgium, Canada, Denmark, Finland, France, Germany, Israel, Netherlands, Norway, Paraguay, Senegal, Spain, Sweden, Switzerland, the United Kingdom and the U.S.[3]

As we have seen, one of these 19 states–Spain–currently is invoking its domestic statute that implements the principle of universal jurisdiction for its criminal prosecution of former Salvadoran military officers for the November 1989 murders of the six Jesuit priests and their cook and her daughter at the Universidad de Centro America in San Salvador.[4] Spain’s statute provides that its National Court (La Audiencia Nacional) has universal jurisdiction for war crimes, genocide, crimes against humanity and torture.[5]

In 2009 Spain adopted an amendment that added the following conditions or limitations on such jurisdiction: (1) the alleged perpetrators are in Spain; or (2) the victims are of Spanish nationality; or (3) there is another connecting link to Spain. In addition, the amendment specified that for such Spanish jurisdiction to exist another country or international tribunal had not started a process involving an investigation and successful prosecution of such offenses; if there is such another process, then the Spanish court should suspend or stay its case until the other investigation and prosecution has been concluded. The latter provision is referred to as the subsidiary principle.[6]

This amendment has been seen by some as a significant and regrettable limitation on universal jurisdiction in Spain.[7] In my opinion, however, the amendment is a reaffirmation of Spain’s implementation of such jurisdiction, and the limitations are reasonable to make efficient use of Spanish judicial resources. Moreover, the subsidiary principle is similar to the International Criminal Court’s notion of complementarity whereby the ICC does not take a criminal case if there is a good faith criminal investigation or prosecution in a national court system or a good faith decision by a state not to prosecute.[8] The same considerations find expression in the U.S. notions of comity or forum non conveniens whereby a civil case in an U.S. court is stayed or dismissed if it makes more sense for the case to be litigated in another country.


[1] David Weissbrodt, Fionnuala Ní Aoláin, Joan Fitzpatrick, and Frank Newman, International Human Rights: Law, Policy and Process, at 572-86 (4th ed. 2009); Princeton Project on Universal Jurisdiction, Princeton Principles on Universal Jurisdiction (2001). Especially noteworthy is a blog exclusively devoted to universal jurisdiction: http://ergaomnesnet.wordpress.net.

[2] Amnesty Int’l, Universal Jurisdiction: A Preliminary Survey of Legislation Around the World (Oct. 2001 [“AI Study”]; van Schaack, Amnesty International Universal Jurisdiction Study, IntLawGrlls (Nov. 30, 2011).

[3] Id.

[4] Post: International Criminal Justice: Spanish Court’s Case Regarding the Salvadoran Murders of the Jesuit Priests (Aug. 26, 2011); Post: International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests (May 31, 2011); Post: International Criminal Justice: Developments in Spanish Court’s Case Regarding the Salvadoran Murders of the Jesuit Priests (Aug. 26, 2001); Post: Spain Requests Extradition of Suspects in Jesuits Case (Dec. 3, 2011).

[5] AI Study at 105; Human Rights Watch, Universal Jurisdiction in Europe, ch. XII (June 27, 2006). The Criminal Division of the Spanish National Court in Madrid has six chambers. An instructing (or investigative) judge presides over each chamber. Once an instructing judge accepts a criminal case, that judge initiates an investigation. After the completion of the investigation, the instructing judge closes the case and transfers it within the court to a panel usually of three judges who will preside over the trial or “oral phase” of the case. Such criminal cases are commenced by ordinary citizens filing a criminal complaint. If a victim files the complaint directly with an instructing judge, then the victim becomes a party to the case for further proceedings. This is known as a private prosecution (acusacion particular). (Center for Justice & Accountability, The Spanish National Court: An Overview of La Audiencia Nacional, http://www.cja.org/article.php?id=342&printsafe=1.)

[6] Spain, Government Gazette No. 266, Law I/2009, First Article (Nov. 4, 2009) (amendment to Article 23.4 of Organic Law 6/1985) (Google English translation); Burnett & Simons, Push in Spain to Limit Reach of the Court, N.Y. Times (May 20, 2009); Burnett, Spain Votes on Changes to Inquiry Law, N.Y. Times, (June 26, 2009); Assoc. Press, Spain Shortens Long Arm of Justice, N.Y. Times (Oct. 15, 2009).

[7] Center for Justice & Accountability, Bill Restricting Spain’s Universal Jurisdiction Law Passes First Round of Voting, http://cja.org/article.php?id=666 (circa June 25, 2009); Human Rights Watch, The world needs Spain’s universal jurisdiction law (June 27, 2009).

[8]  Post: International Criminal Court: Introduction (April 28, 2011).

Spain Requests Extradition of Suspects in Jesuits Case

The National Court of Spain is processing a criminal case against 20 former Salvador military officers for the November 1989 murders of six Jesuit priests and their cook and her daughter.[1]

On December 2nd the Spanish Government approved the request of Spanish Judge Eloy Velasco to issue requests for extradition of 15 of the men charged in this case.[2]

The government of El Salvador will receive 13 of the requests. Whether or not to grant the request will be a matter for the country’s Supreme Court. A Salvadoran defense attorney says that there will be no extradition because El Salvador already tried a criminal case involving this crime.[3]

The government of the U.S. will receive the other two requests. One will be for extradition of Inocente Orlando Montano, who  is living in Massachusetts, has denied the Spanish charges. In the federal court in Boston he is now facing criminal charges of perjury and making false statements on U.S. immigration forms. The other will be for Hector Ulises Cuenca Ocampo, who is believed to be living in California.[4]

Five other former Salvadoran military officers are facing criminal charges in the Spanish case. One is reported to be cooperating with the Spanish court; another is said to be willing to do so; two have not been located; and the last is deceased (General Rene Emilio Ponce).[5]


[1] Post: International Criminal Justice: Spanish Court’s Case Regarding the Salvadoran Murders of the Jesuit Priests (June 15, 2011); Post: International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests (May 31, 2011); Post: International Criminal Justice: Developments in Spanish Court’s Case Regarding the Salvadoran Murders of the Jesuit Priests (Aug. 26, 2011).

[2]  Assoc. Press, Spain Asks U.S. and El Salvador to Extradite Murder Suspects, N.Y. Times (Dec. 3, 2011).

[3] Guzman, Court awaiting extradition request, lapagina.com.sv (Dec. 2, 2011(Google English translation);Guzman, The extradition of former soldiers to Spain will never give, according to defense, lapagina.com.sv (Dec. 2, 2011(Google English translation).

[4] EUA also asked to send, laprensagrifica.com (Dec. 3, 2011)( Google English translation); Immigration fraud, a former soldier Montano faces 5 years in prison, lapagina.com.sv (Nov. 30, 2011)( Google English translation); Salvadoran ex-officer faces Mass. Perjury charge, http://www.boston.com (Nov. 29, 2011); Criminal Complaint, U.S. v. Montano, Case No. 11m-5193-I6D (D. Mass. Aug. 22, 2011).

[5] Lemus, Spain calls on El Salvador extradition of military slaughter processed by Jesuit, http://www.elfaro.net/es (Dec. 2, 2011)( Google English translation);The judge asked the government to claim 13 soldiers for the killing of Jesuit, http://www.elmundo.es (Nov. 8, 2011) (Google English translation).

 

International Criminal Court: INTERPOL Issues Red Notice for Gaddafi

 On September 8th the ICC Prosecutor announced that he is requesting INTERPOL to issue a “Red Notice” to arrest Muammar Gaddafi for the alleged crimes against humanity of murder and persecution that have been charged by the ICC. The Prosecutor also is seeking such Red Notices for the other two Libyans facing ICC charges.[1] On September 9th INTERPOL isssued these Red Notices. (Nordland, INTERPOL Issues Qaddafi Arrest Warrant as More Libyan Officials Flee, N.Y. Times (Sept. 9, 2001).)

The ICC Press Release says that an “INTERPOL Red Notice seeks the provisional arrest of a wanted person with a view to extradition or surrender to an international court based on an arrest warrant or court decision.” Such notices go to all 188 countries that are members of INTERPOL.

This statement also stands as an implicit rebuke to the recent erroneous decision of El Salvador’s Supreme Court that a Red Notice only called for information about the location of individuals named in such notices, not their arrests.[2]

In another ICC development, on August 30, 2011, the Philippines deposited its instrument of ratification of the Rome Statute with the U.N. Secretary General. It will become the 117th State Party to the Statute.[3]


[1] ICC Press Release, ICC Prosecutor Requesting INTERPOL Red Notice for Gaddafi (Sept. 8, 2011). See Post: International Criminal Court and the Obama Administration (May 13, 2011); Post: International Criminal Court: Libya Investigation Status (May 8, 2011); Post: International Criminal Court: Three Libyan Arrest Warrants Sought (May 16, 2011); Post: International Criminal Court: Issuance of Libyan Arrest Warrants and Other Developments (June 27, 2011); Post: International Criminal Justice: Libya, Sudan, Rwanda and Serbia Developments (July 4, 2011); Post: International Criminal Court: Possible Arrests of Three Libyan Suspects (Aug. 22, 2011).

[2] Post: International Criminal Justice: Developments in Spanish Court’s Case Regarding the Salvadoran Murders of the Jesuit Priests (Aug. 26, 2011); Comment [to that Post]: Salvadoran Supreme Court’s Decision on INTERPOL RED NOTICE Was Erroneous (Aug. 28, 2011).

[3] ICC Press Release, The Philippines becomes the 117th State to join the Rome Statute system (Aug. 30, 2011).

Memory and Human Rights: Latin America and the Iberian Peninsula

On September 29-October 1, 2011, the University of Minnesota Department of Spanish and Portuguese Studies will host an “International Symposium: Ongoing Dialogues about Memory and Human Rights: Latin America and the Iberian Peninsula.”[1]

The  symposium will address the role that literature, art and film have in the struggles against enforced disappearance, torture, degrading treatment, forced prostitution, human trafficking, violence against immigrants, gender violence, and feminicide. We seek to address the relations between artistic practices and struggles against impunity and between aesthetics and ethics, and to give visibility to current human rights concerns and to the design of practices of memory.

I will be presenting a paper, “The Interactive Global Struggle Against Impunity for Salvadoran Human Rights Violators.”[2]  Other participants and their topics are the following:

  • Jean Franco (Emeritus Professor, Columbia University),“The Ghostly Arts.”
  • David William Foster (Regents’ Professor of Spanish and Women and Gender Studies, Arizona State University), “Helen Zout’s Desapariciones: Shooting Death.”
  • Ileana Rodriguez (Humanities Distinguished Professor, Ohio State University),“ Operación Pájaro: Expediente 27, 1998. Obispo Gerardi: Enemigo del Estado.”
  • Horacio Castellanos Moya (Escritor, periodista), READING from “Insensatez (Senselessness) y Tirana memoria (Tyrant memory).”
  • Guillermina Wallas (Independent Scholar),“Ciudad y memoria: reclamos de justicia a través de las marcas testimoniales de La Plata (Argentina).”
  • Margarita Saona (Associate Professor, Department of Spanish, University of Illinois at Chicago), “Memory Sites: From Auratic Spaces to Cyberspace in Peruvian Embattled Memories.”
  • Amy Kaminsky (Professor, Department of Gender, Women and Sexuality Studies, University of Minnesota), “Memory, Postmemory, Prosthetic Memory: Reflections on the Holocaust and Argentina’s Dirty War.”
  • Hernán Vidal (Emeritus Professor, Department of Spanish and Portuguese Studies, University of Minnesota),“Verdad universal: notas jurídicas para una hermenéutica cultural basada en los derechos humanos.”
  • Alicia Kozameh (writer), READING from “Pasos bajo el agua, 259 saltos, uno inmortal, Mano en vuelo,y “Bosquejo de alturas.” Barbara Frey (Program director, Human Rights Program. University of Minnesota),”Forms and Practices of Human Rights Advocacy.”
  • Felix de la Concha (Artist),“Facing Memories: Portraits with Testimonies.”
  • Patrick J. McNamara, (Associate Professor, Department of History, University of Minnesota,“Memory Without Metaphor: Cognition and the Art of Human Rights in Mexico.”
  • Raul Marrero Fente, (Associate Professor, Department of Spanish and Portuguese Studies, University of Minnesota),”Ethics and Law in the Inter-American Human Rights System.”
  • Luis Martín Estudillo (Associate Professor, University of Iowa),“The Banality of Torture? Earning Democratic Credentials Under Franco.”
  • Miguel Rep (Artist, cartoonist),“Del derecho humano al humor.”
  • Regina Marques (Professor of Communication Science at the Polytechnic Institute of Setúbal (Portugal), Member MDM (Movimento Democrático de Mulheres) , CES (Conselho Económico e Social) and WIDF’s (Women’s International Democratic Federation) bureau), “ Women’s Rights as Human Rights. Vulnerabilities in Portugal and in Europe. The Gap Between the Law and Life.”
  • Javier Sanjinés (Professor, Department of Romance Languages and Literatures, University of Michigan),”Estética y Derechos Humanos bajo la Dictadura en Bolivia: el monumentalismo de Fernando Díez de Medina.”
  • Alicia Gaspar de Alba (Writer, Professor of Chicana and Chicano Studies, English, and Women’s Studies at UCLA), READING from “Desert Blood: The Juarez Murders.”
  • Leigh Payne, (Professor of Sociology and Latin American Studies, University of Oxford, Visiting Professor, Department of Political Sciences, University of Minnesota), “The Struggle Against Silence and Forgetting in Brazil.”
  • Alexis Howe, (Assistant Professor, Dominican University), “Madness and Disappearance: El infarto del alma” by Diamela Eltit and Paz Errázuriz.
  • Ofelia Ferrán, (Associate Professor, Department of Spanish and Portuguese, University of Minnesota), “Mala gente que camina, by Benjamín Prado: Uncovering the Plot of Franco’s ‘Stolen Children’ in Contemporary Spain.”


[1] Univ. Minnesota, Dep’t of Spanish & Portuguese Studies, International Symposium: Ongoing Dialogues about Memory and Human Rights: Latin America and the Iberian Peninsula, http://spanport.umn.edu/news/index.php?entry=297980. The Symposium will be held at the Maroon, Gold and the Gateway Rooms of the McNamara Alumni Center, 200 Oak St. SE, Minneapolis, MN 55455. For further information contact Professor Ana Forcinito (aforcini@umn.edu) or Jaime Hanneken (hanne045@umn.edu).

[2] An earlier version of this paper was presented at an October 2009 conference in Rio de Janeiro, Brazil and has been published (in Portuguese translation) in Memorie e Justica by Brazil’s Museau da Republica (Museum of the Republic).

 

 

 

International Criminal Justice: Developments in Spanish Court’s Case Regarding the Salvadoran Murders of the Jesuit Priests

Over the last several weeks there have been significant developments in El Salvador, the U.S. and Spain regarding the Spanish court’s criminal case against 20 Salvadoran military officers for their alleged involvement in the November 1989 murders of six Jesuit priests. These developments arise out of the May 30, 2011, Spanish court’s issuance of arrest warrants for the 20 defendants on charges of crimes against humanity and state terrorism in planning and carrying out the murders.[1]

After May 30th Spain enlisted the assistance of the International Police Organization or INTERPOL, the world’s largest international police organization, with 188 member countries, to facilitate cross-border police co-operation and to prevent or combat international crime. INTERPOL in turn issued RED NOTICES identifying the 9 of the 20 defendants believed to be living in El Salvador (the Salvadoran Nine) and their indictment by the Spanish court. (Another RED NOTICE is believed to have been issued for a defendant believed to be living in the U.S.) Such RED NOTICES typically are treated as requests for provisional arrests of the subjects of the notices so that the formal process of requests for their extradition to Spain, in this case, can be made.[2]

El Salvador Developments

In El Salvador, in late July a lawyer for the Nine requested the National Civilian Police (PNC) to not execute the Red Notices on the ground that the crime already had been prosecuted by Salvadoran courts.[3] In addition, on August 7th the Nine turned themselves in to a military base near San Salvador, presumably because of a belief that as former military officers they would have some protection there. That same day, however, the country’s Minister of Defense turned them over to civilian authorities who kept the Nine in custody at one of the country’s military facilities.[4]

Thereafter, the Nine filed habeas corpus petitions with the Constitutional Chamber of El Salvador’s Supreme Court. On August 24th the Chamber rejected the petitions on the ground that there was a request for their extradition to Spain.[5]

Minutes later on August 24th, however, the 15-member Salvadoran Supreme Court decided, 10 to 2, that the RED NOTICES for the Nine only served to locate people accused of crimes by another country. The Notices did not authorize arrests. That could happen only if there were a formal extradition request, and no such request had been received by El Salvador. If Spain in fact made an extradition request, the court would consider it.[6]

The reaction to the decision within El Salvador was predictable; those who supported the military were happy; those who wanted to see justice for the Jesuits were disappointed.[7]

In response to the Salvadoran Supreme Court ruling, a Spanish court official has said that Spain cannot issue a formal extradition request to El Salvador for the Nine because Spain has not been notified that they are under arrest. The Spanish court, therefore, has asked El Salvador to clarify the legal status of the Nine after the Salvadoran court’s August 24th ruling. [8]

Does this leave the issue at an impasse? El Salvador will not authorize an arrest because there is no extradition request, and Spain will not or cannot issue extradition requests because there are no arrests?

Meanwhile in El Salvador, the controversial Decree 743 that required the Constitutional Chamber of its Supreme Court to act unanimously has been repealed.[9]

U.S. Developments

On or about August 19th defendant Montano was arrested in Virginia on charges of lying to U.S. immigration officials in applying for Temporary Protected Status in the U.S.  On August 23rd he made an appearance at a federal court in Massachusetts, where he had been residing. The next day he was released on a $50,000 bond and confinement to his sister’s house with electronic monitoring. Apparently there has not yet been a RED NOTICE for him.[10]

Earlier (in July) Senators John Kerry, Tom Harkin, Patrick Leahy and Barbara Boxer jointly signed a letter to Secretary of State Hillary Clinton requesting the U.S. to cooperate fully with the Spanish court in this case. The response from an Assistant Secretary of State said the U.S. was monitoring the case and would give any Spanish request for assistance the appropriate consideration.[11]

Spain Developments

In Spain, lawyers for the Nine apparently have decided that offense is the best defense. They have filed charges in the Spanish court alleging that the Spanish judge, Valasco Nunez, acted illegally in the May 31st arrest orders for the 20 Salvadoran former military officers. The basis for the charge is the prior Salvadoran criminal case regarding the murders of the Jesuits, the Salvadoran amnesty law and its statute of limitations barring any such charges at this time. The attorneys also are considering a charge of defamation against the Spanish judge.[12]

Conclusion

As this discussion indicates, the story is far from over. Further developments in this case are expected in all three countries.


[1]  See Post: International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests (May 31, 2011); Post: International Criminal Justice: The Spanish Court’s Criminal Case Regarding the Salvadoran Murders of the Jesuit Priests (June 15, 2011).

[2]  INTERPOL, http://www.interpol.int/default.asp; Arauz, Dada & Lemus, Interpol arrest warrants processed 10 Jesuit Salvadoran military case, el Faro (July 29, 2011), http://www.elfaro.net (Google English translation). In addition to the RED NOTICES for the nine officers believed to be living in El Salvador, another was issued for Rene Emilio Ponce, who died in May 2011. (Id.)

[3]  See Post: International Criminal Justice: Salvadoran Criminal Prosecution of the Murders of the Jesuit Priests (June 8, 2011).

[4] Center for Justice & Accountability, Press Release: Salvadoran High Commanders Responsible for Jesuit Massacre in 1989 Under Custody in El Salvador (Aug. 10, 2011); Tim’s El Salvador Blog, Officers indicted for Jesuit murders surrender (Aug. 8, 2011),______     ;

[5] Gonzalez & Perez, Supreme Court in the event benefited the Jesuit military, diario colatino (Aug. 25, 2011) (Google English translation).

[6] Id.; Assoc. Press, Salvadoran Supreme Court refuses to detain men charged in 1989 killings of Jesuit priests, Wash. Post (Aug. 24, 2011); Released in the Salvador to military courts in Spain by death of Jesuits, lapagina.com (Aug. 25, 2011) (Google English translation).

[7]  General Zapeda,”national sovereignty has prevailed and has restored peace to the country, lapagina (Aug. 25, 2011) (Zapeda is one of the defendants) (Google English translation); Perez, Munguia Payes, “an episode closes, whatever comes later, lapagina (Aug. 25, 2011)(Payes is Defense Minister) (Google English translation); Calderon, Rodolfo Cardenal, “The decision was somewhat expected, because,” lapagina (Aug. 25, 2011)(Cardenal is former UCA vice chancellor) (Google English translation); Guzman, Siegfried Reyes: “El Salvador has a large debt tp truth and justice, lapagina (Aug. 25, 2011)(Reyes is President of the Legislative Assembly) (Google English translation).

[8] Sainz, Spain seeks El Salvador clarification on suspects, Miami Herald (Aug. 25, 2011); Assoc. Press, Spain Seeks El Salvador Clarification on Suspects, N.Y. Times (Aug. 25, 2011).

[9] Tomorrow Decree 743 will be history, diariocolatino (July 28, 2011). See Post: El Salvador’s Current Controversy over Its General Amnesty Law and Supreme Court (June 16, 2011).

[10] Arsenault, War crime suspect found in Everett [Massachusetts], Boston Globe (Aug. 17, 2011); Assoc. Press, Salvadoran accused in Jesuit deaths held in Mass., Boston Globe (Aug. 23, 2011); Assoc. Press, Suspect in Jesuit deaths out on immigration charge (Aug. 24, 2011); Arsenault, War crimes suspect in house arrest in Saugus [Massachusetts], Boston Globe (Aug. 25, 2011); Aragon, Military accused of slaughter in the U.S. Jesuit was arrested while fleeing to Mexico, elfaro (Aug. 25, 2011) (Google English translation).

[11] Arsenault, War crime suspect found in Everett [Massachusetts], Boston Globe (Aug. 17, 2011);

[12]  Lemus, Military sue Spanish judge to reverse the Jesuit case, elfaro (July 31, 2011) (Google English translation); Aguilar, Military accused of slaughter in Spain by Jesuits are delivered to the army, elfaronet (Aug. 8, 2011). See Post: International Criminal Justice: Salvadoran Criminal Case Regarding the Murders of the Jesuit Priests (June 8, 2011); Post: International Criminal Justice: El Salvador’s General Amnesty Law and Its Impact on the Jesuits Case (June 11, 2011).

 

 

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

 

The U.S. designation of Cuba as a “state sponsor of terrorism” already has been shown to be ridiculous.[1]

Now the U.S. has done it again in the State Department’s recently released Country Reports on Terrorism 2010.[2] The following is the complete text of the U.S. “rationale” for so designating Cuba:

  • “Overview: Designated as a State Sponsor of Terrorism in 1982, the Government of Cuba maintained a public stance against terrorism and terrorist financing in 2010, but there was no evidence that it had severed ties with elements from the Revolutionary Armed Forces of Colombia (FARC) and recent media reports indicate some current and former members of the Basque Fatherland and Liberty (ETA) continue to reside in Cuba. Available information suggested that the Cuban government maintained limited contact with FARC members, but there was no evidence of direct financial or ongoing material support. In March, the Cuban government allowed Spanish Police to travel to Cuba to confirm the presence of suspected ETA members.
  • Cuba continued to denounce U.S. counterterrorism efforts throughout the world, portraying them as a pretext to extend U.S. influence and power.
  • Cuba has been used as a transit point by third-country nationals looking to enter illegally into the United State. The Government of Cuba is aware of the border integrity and transnational security concerns posed by such transit and investigated third country migrant smuggling and related criminal activities. In November, the government allowed representatives of the Transportation Security Administration to conduct a series of airport security visits throughout the island.
  • Legislation and Law Enforcement: Cuba did not pass new counterterrorism legislation in 2010. The Cuban government continued to aggressively pursue persons suspected of terrorist acts in Cuba. In July, Venezuela extradited Salvadoran national Francisco Antonio Chavez Abarca to Cuba for his alleged role in a number of hotel and tourist location bombings in the mid to late 1990s. In December, a Cuban court convicted Chavez Abarca on terrorism charges and sentenced him to 30 years in prison. Also in December, the Cuban Supreme Court commuted the death sentences of two Salvadorans, René Cruz León and Otto René Rodríguez Llerena, who had been convicted of terrorism, and sentenced them both to 30 years.
  • Regional and International Cooperation: Cuba did not sponsor counterterrorism initiatives or participate in regional or global operations against terrorists in 2010.”

One of the implicit factual predicates for the most recent designation of Cuba as a “state sponsor of terrorism” is true: FARC and ETA have been designated “Foreign Terrorist Organizations” by the State Department, and such designations presumably are well founded. But what has Cuba done with respect to these two organizations? This report itself indicates that Cuba has done practically nothing with or for the FARC or ETA. The report states, “the Cuban government maintained limited contact with FARC members” and “there was no evidence of direct financial or ongoing material support.” (Emphasis added.) In addition, the report says, “the Cuban government allowed Spanish Police to travel to Cuba to confirm the presence of suspected ETA members.”

The most recent report states “some current and former members of . . . (ETA) continue to reside in Cuba.” But the report does not say how many. Nor does it state the particulars of their residence in Cuba. Moreover, in last year’s report, the State Department conceded that some of these FARC and ETA members were in Cuba to participate in peace negotiations with the governments of Columbia and Spain.

Other qualifications to this basis for the “state sponsor of terrorism” designation were made in a prior  State Department  annual antiterrorism report, which said that “on July 6, 2008, former Cuban President Fidel Castro called on the FARC to release the hostages they were holding [in Colombia] without preconditions.”  Fidel “also had condemned the FARC’s mistreatment of captives and of their abduction of civilian politicians [in Colombia] who had no role in the armed conflict.”[3]

Furthermore, former President Jimmy Carter while visiting Cuba in March 2011 had a meeting with the Spanish and Colombian Ambassadors to Cuba. The two Ambassadors said “they were not concerned about the presence of members of FARC, ETA, and ELN [another Colombian rebel group] in Cuba. Indeed, they maintained that this enhances their ability to deal more effectively with these groups. In fact, ETA members are there at the request of the Spanish government.”[4]

The second basis for the most recent designation is “Cuba continued to denounce U.S. counterterrorism efforts throughout the world, portraying them as a pretext to extend U.S. influence and power.” From my following Cuba news over the last year, this is a fair assessment, in my opinion, of the Cuban government’s public statements about U.S. foreign policy. But Cuba is a sovereign nation. It has a right to express its views of U.S. policies and actions. This does not amount to Cuba or any other country’s  being a “state sponsor of terrorism.”

The third basis for the most recent designation is Cuba’s allegedly being “used as a transit point by third-country nationals looking to enter illegally into the United States.” I do not know if this is true, but even if it is, Cuba is hardly unique in the Western Hemisphere for this phenomenon. And the U.S. report admits that this last year Cuba “allowed representatives of the [TSA] . . .  to conduct a series of airport security visits throughout the island.”

The fourth basis for the most recent designation is Cuba’s not adopting new counterterrorism legislation in 2010 and not sponsoring counterterrorism initiatives or participating in regional or global operations against terrorists in 2010. Again, I do not know if this is true, but even if it is, it does not justify the designation. Moreover, the report undermines this purported basis for the designation with its admission that the “Cuban government continued to aggressively pursue persons suspected of terrorist acts in Cuba.”

In short, the U.S. has no legitimate basis for designating Cuba as a “state sponsor of terrorism.”[5]


[1] See Post: The Ridiculous U.S. Designation of Cuba as a “State Sponsor of Terrorism” (May 20, 2011).

[2] U.S. Dep’t of State, Country Reports on Terrorism 2010 (Aug. 19, 2011), http://www.state.gov/s/ct/rls/crt/2010/index.htm; DeYoung, Terorrism report arrives with a whimper, Wash. Post (Aug. 19, 2011). The Cuban government immediately denounced this report, saying Cuba had an “unblemished” record of fighting terrorism. (Assoc. Press, Cuba Rejects Continued Inclusion on US Terror List, N.Y. Times (Aug. 20, 2011).)

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

[4]  The Carter Center, Trip Report by Former U.S. President Jimmy Carter to Cuba, March 28-30, 2011 (April 1, 2011), http://www.cartercenter.org/news/trip_reports/cuba-march2011.html.

[5]  Last year the Council on Foreign Relations basically came to the same conclusion. (Council on Foreign Relations, State Sponsors: Cuba (March 23, 2010), http://www.cfr.org/cuba/state-sponsors-cuba/p9359.)This July the U.S. Congressional Research Service reviewed the arguments, pro and con, for the designation of Cuba as a “state sponsor of terrorism.” It did not come to a conclusion as to whether the designation was justified, but it does not rebut my analysis. (See Congressional Research Service, Cuba: Issues for the 112th Congress (July 15, 2011), http://www.fas.org/sgp/crs/row/R41617.pdf.

 

 

International Criminal Justice: U.S. Reportedly Failed To Detain Rwandan Indictee of Spanish Court

In May 2011 Justus Majyambere, a major in the Rwandan Defense Forces, apparently visited the U.S. Military Staff College at Fort Leavenworth, Kansas as an official representative of his government. The purpose of the visit was to obtain ideas for starting a military college in Rwanda.[1]

That sounds like a positive development.

But Majyambere is under indictment by a Spanish court for alleged involvement in the killing of nine employees of a Spanish NGO in Rwanda and the Democratic Republic of the Congo. Therefore, he is under an Interpol “red notice,” a worldwide bulletin that is roughly equivalent to an arrest warrant. As a result, he reportedly was arrested upon his recent arrival in the U.S., but mysteriously was not detained and sent to Spain.[2]

If all of this is true, it is contrary to repeated statements by U.S. Ambassador-at-Large for War Crimes, Stephen Rapp, about U.S. supporting the arrest of fugitives from international criminal justice.[3] It is also contrary to the global goal of punishing and deterring violations of international humanitarian and human rights law.


[1] Rosen, U.S. Hosted Alleged Rwandan War Criminal for Military Visit, (June 20, 2011), http://www.theatlantic.com/international/archive/2011/06/us-hosted-alleged-rwandan-war-criminal-for-military-visit/240679/.

[2]  Id.

[3]  See Post: The International Criminal Court and the Obama Administration (May 13, 2011); Post: The International Criminal Court: Possible U.N. Security Council Referral of Syrian Human Rights Abuses to ICC (June 18, 2011).