The 60 years of U.S. hostility towards Cuba (with the two-year respite (2014-2016) under President Obama) have left many important unresolved issues.[1] Here is at least a partial list of those issues:
U.S. ending embargo (blockade) of Cuba?
U.S. response to Cuba’s claims for alleged damages from embargo & other acts?
U.S. closing its detention facility at Guantanamo Bay?
U.S. paying Cuba for use of Guantanamo Bay, 1960— ?
U.S. returning Guantanamo Bay to Cuba or entering into new lease of territory?
Cuba paying U.S. persons for expropriated property, 1959-60?
U.S. ending unilateral “democracy promotion” activities in Cuba?
Mutual extradition of the other’s criminal suspects & convicts?
Cuba improving human rights?
U.S. & Cuba resolving responsibility for medical problems of U.S. diplomats in Cuba, 2016-??
U.S. ending or modifying U.S. ban on transactions with certain Cuban entities on the State Department’s “Cuba Restricted List”?
U.S. possible restoration of parole for Cuban medical professionals?
U.S. possible allowance of lawsuits for expropriated Cuban property?
U.S. possible re-designation of Cuba as a “state sponsor of terrorism” due to Cuban military aid to Venezuela?
U.S. possible adoption of other U.S. hostile acts against Cuba proposed by President Trump, National Security Advisor Bolton, Secretary of State Pompeo, Senator Rubio, et al.?
Many of these issues were discussed in the meetings of the two countries in 2015-17 although the substance of the discussions have not been publicly disclosed.
If I were President with a supportive Congress, I would work for the following comprehensive bilateral resolution:of these issues:
U.S. ends embargo (blockade) of Cuba;
U.S. ends unilateral “democracy promotion” efforts in Cuba;
U.S. closes detention facility at Guantanamo Bay;
U.S. pays Cuba for its use of Guantanamo Bay, 1960 to date;
U.S. and Cuba enter into new lease of Guantanamo Bay at fair market value rental;
U.S. pays Cuba for alleged damages caused by U.S. embargo (blockade);
Cuba agrees to pay fair market value, with interest, to U.S. owners of expropriated property (potentially with funds provided by U.S. paying Cuba for past use of Guantanamo Bay; for future use of Guantanamo Bay under new lease; and for alleged damages caused by U.S. embargo (blockade));
U.S. abolishes Title III of Helms-Burton Act allowing U.S. owners of expropriated property to sue persons trafficking in property owned by U.S. persons that were expropriated by Cuba (1959-60);
U.S. agrees not to reintroduce parole for Cuban professional medical personnel;
U.S. agrees not to re-designate Cuba as “state sponsor of terrorism;”
U.S. and Cuba enter into new agreement on mutual extraditions;
U.S. and Cuba agree on bilateral ways to improve Cuban human rights and Internet access; and
U.S. and Cuba resolve issues regarding medical problems of US diplomats in Cuba (2016-??).
The proposal to have the U.S. use some or all of its payments to Cuba for Guantanamo usage and alleged Cuban damages from the embargo for the U.S. to pay for the U.S. claims for Cuba’s expropriations is based on the painful realization that Cuba does not have the resources to pay for any significant portion of these U.S. claims.
Cuba repeatedly has asserted that the U.S. use of Guantanamo Bay is an illegal occupation and the property should be returned to Cuba. Because of the U.S. argument to legally have occupied the territory under the 1903 lease and because of U.S. current national security concerns, however, the U.S. would not and should not agree to this Cuban proposal, especially since Cuba is developing closer relationships with Russia and China, which potentially could occupy Guantanamo to enhance their threats to the U.S.
Failure to reach agreement on any of these issues may well result in narrowing the issues, and any unresolved issues should be submitted to a binding international arbitration at the Permanent Court of Arbitration at the Hague in the Netherlands. Based on this blogger’s experience as a corporate litigator in U.S. courts, I note that many cases like the one proposed for arbitration of the Cuban and U.S. claims frequently are settled before they go to trial.
One example of narrowing the issues is Cuba’s recognition with other countries that it has an international legal obligation to pay for expropriated property, which is the major premise of the U.S. claims for expropriated property. That would leave important, subsidiary issues: are the claimants valid owners of the Cuban properties; what were the fair market values of the properties at the time of expropriation; and what is a fair rate of interest on the claims?
I invite anyone with other ideas for a comprehensive bilateral resolution of outstanding issues or objections to my proposed resolution to share them in reasoned comments to this post.
On November 1, 2018, the United Nations General Assembly again overwhelmingly adopted a resolution condemning the U.S. embargo (blockade) of Cuba. The vote this year was 189 to 2 (the two negative votes were registered by the U.S. and Israel while Moldova and Ukraine did not vote).[1]
Also on November 1, the General Assembly overwhelmingly rejected all of eight amendments that were proposed by the U.S. with only Israel and Ukraine (plus the Marshall Islands on one of them) joining the U.S. in their support while 113 voted against them with 65 abstaining. . However, some delegations said they were not opposed to the content of the amendments, but voted against them because the resolution on the embargo was not their appropriate venue.
The debate on the resolution was preceded by Cuba’s report, dated June 2018, that was called for by the previous U.N. General Assembly resolution on the subject.
The report commenced by saying, “The economic, commercial and financial blockade imposed by the government of the United States of America against Cuba for almost six decades is the most unfair, severe and extended system of unilateral sanctions ever applied against any country. From April of 2017 until March of 2018, the period with which this report deals, the blockade policy has intensified and it continues to be applied with all rigor.” (P. 48)
This report then alleged, “In the period considered by this report, the blockade has caused losses to Cuba for around $ 4.3 billion” and the “accumulated harm because of the blockade being applied for almost six decades reaches the figure of . . . . $134.5 billion” (at today’s prices). (Pp. 48-49)
The actual resolution, “Necessity of ending the economic, commercial and financial embargo imposed by the United States of America against Cuba” (A/RES/73/8) had two principal operative paragraphs.
It reiterated “its call upon all States to refrain from promulgating and applying laws and measures [like the U.S. embargo against Cuba] . . . in conformity with their obligations under the Charter of the United Nations and international law, which, inter alia, reaffirm the freedom of trade and navigation.” (¶ 2). It also urged “States that have and continue to apply such laws and measures to take the steps necessary to repeal or invalidate them as soon as possible in accordance with their legal regime.” (¶ 3).
The resolution’s preamble reaffirmed “the sovereign equality of States, non-intervention and non-interference in their internal affairs and freedom of international trade and navigation, which are also enshrined in many international legal instruments” and recited the previous General Assembly resolutions against the embargo. It then recalled “the measures adopted by the Executive of the United States [President Obama] in 2015 and 2016 to modify several aspects of the application of the embargo, which contrast with the measures announced on 16 June 2017 [by President Trump] to reinforce its implementation.”
Prior to the Session, the U.S. proposed the following eight amendments to the Cuban resolution:
The first called for the Cuban government to “grant its citizens internationally recognized civil, political and economic rights and freedoms, including freedom of assembly, freedom of expression and free access to information.”
The second manifested “serious concern that in Cuba the serious lack of access to information and freedom of expression, the total absence of judicial independence, and arbitrary arrest and detention, are undermining collective efforts to implement Goal 16 of Sustainable Development.”
The third expressed “concern that in Cuba the absence of women in the most powerful decision-making bodies . . . seriously undermines the collective efforts to implement Goal 5 of Sustainable Development.”
The fourth asserted concern over a Cuban “trade union monopoly . . ., the prohibition of the right to strike and restrictions on collective bargaining and agreements . . . [which] seriously undermine collective efforts to implement Goal 8 Sustainable Development.”
The fifth urged Cuba to “create and maintain, in law and in practice, a safe and propitious environment in which an independent, diverse and pluralist civil society can operate without undue obstacles and insecurity.”
The sixth urged Cuba “to put an end to the widespread and serious restrictions, . . . on the right to freedom of expression, opinion, association and peaceful assembly . . . .”
The seventh urged Cuba to “free arbitrarily detained persons for the legitimate exercise of their human rights, consider rescinding unduly harsh sentences for exercising such fundamental freedoms . . . .”
The eighth called for Cuba “to initiate an integral process of accountability in response to all cases of serious human rights violations. . . .”
On October 30, the Cuba Foreign Minister said the U.S. amendments “are aimed at “creating a pretext to tighten the blockade, and attempt to present the illusion that there is international support for the policy. . . . The U.S. delegation to the UN seeks to disturb, consume time, create confusion and hinder the adoption of the resolution calling for the end of the blockade against Cuba.
The Foreign Minister added that these amendments “manipulate the issue of human rights and the Sustainable Development Goals.” But Cuba is “confident that the amendments will be rejected, and that the resolution will receive overwhelming majority support, as has happened in the past.”
According to an U.N. Press Release, on the morning of October 31, representatives of many countries “overwhelmingly called on the [U.S.]to end its economic,commercial and financial embargo against Cuba . . . amid demands for the cessation of unilateral coercive measures.” They said,”the nearly six‑decades‑long blockade imposed on the Caribbean island by Washington impedes its right to development and its ability to participate fully in the global economy. They stressed that the [U.S.] must heed the Assembly’s repeated calls to lift its restrictive policies.”
Some speakers added “concern over recent policy shifts in Washington that are undoing progress made in 2015 and 2016 to normalize bilateral ties with Cuba. The current [U.S.] Administration is pursuing efforts to strengthen the blockade, they warned.”
The Associated Press added that 135 countries spoke in favor of Cuba’s resolution and against the U.S. embargo and its proposed amendments.
The debate continued the next day and, according to another U.N. press release, Cuba’s Minister for Foreign Affairs Bruno Rodríguez said “the human damage caused by the United States‑led blockade against his country qualifies as an ‘act of genocide’ and creates obstacles for cultural, academic and scientific engagement throughout the island.”
He said the quantifiable damages caused by “the blockade amount to $933.678 billion and that over the past year losses in Cuba add up to $4.3 billion. Still, Cuba has managed to achieve economic progress and offer extensive international cooperation. ‘The blockade continues to be the main obstacle to the implementation of the Sustainable Development Goals,’ . . . [and] violates the right of Cubans to self‑determination. ‘It is an act of oppression and an act of war.’”
“Mr. Rodríguez said there is a ‘ferocious intensification’ of the extraterritorial implementation of the blockade, particularly the persecution of Cuba’s financial transactions. The embargo goes against the [U.N.] Charter and international law.”
U.S. Ambassador Nikki Haley said that the resolution “does not help a single Cuban family”and was “one more time that countries ‘feel like they can poke the United States in the eye’ . . . [while] the sorry state of liberty and human rights in Cuba is not lost on anyone.”
“She went on to say that the [U.N.]does not have the ability or the authority to end the [U.S.] embargo on Cuba. It does, however, have the power to send a moral message to Cuba’s regime [and] that the [U.S.’] proposed amendments are ‘your words’ . . .[i.e.] the words expressed by delegations on Cuba’s oppression and lack of freedoms.”
“Throughout the morning, speakers regretted that after 27 years of near‑unanimous support for the yearly resolution in the General Assembly, there is still no indication that Washington, D.C. will lift the embargo.”
After the passage of the resolution and rejection of the U.S. amendments, Ambassador Haley said to the General Assembly, “I’m always taken aback when I hear applause in this chamber in moments like this, because there are no winners here today. There are only losers.The [U.N.] has lost. It has rejected the opportunity to speak on behalf of human rights. The UN Charter commits every country here to the promotion of peace, security, and human rights. And that Charter was betrayed today.”
“Once again, we were reminded why so many people believe that faith in the [U.N.] is often misplaced. The countries that profess to believe in human rights have lost, too. They have earned a justified measure of doubt that they will act to defend their beliefs. And most of all, the Cuban people have lost. They’ve been left, once again, to the brutal whims of the Castro dictatorship. They have been abandoned by the United Nations and by most of the world’s governments.”
“But the Cuban people are not alone today. The [U.S.] stands with them. The people of Cuba are our neighbors and our friends, and they are fellow children of God. The American people will stand with them until they are restored the rights that God has given us all. Rights that no government can legitimately deny its people.”
“While today’s votes were not admirable, they were highly illuminating. And that light contributes to the cause of truth, which is the essential basis of freedom and human rights”.
The previous day (October 31), the U.S. Embassy in Cuba accused the Cuban regime of using the embargo as a justification for its failed economic model and demanded that it stop blocking the development and progress of Cubans, It also said that in 2017 the U.S. exported food, agricultural products, medicines, medical devices, fertilizers, parts of civil aircraft, telecommunications equipment and other products to Cuba and that Cuba was free to trade with any other country.”
Conclusion
As an U.S. citizen-advocate for ending the embargo as soon as possible, I am not pleased with the U.S. opposition to this resolution and to the very hostile tone of Ambassador Haley’s remarks.[7]
Moreover, too many in the U.S. believe the Cuban damages claim from the embargo is just a crazy Cuban dream, but I disagree. Given the amount of the claim, Cuba will not someday tell the U.S. to forget it, nor will the U.S. write a check for Cuba in that amount. A prior post, therefore, suggested that the two countries agree to submit this claim and any other damage claims by both countries for resolution by an independent international arbitration panel such as those provided by the Permanent Court of Arbitration at The Hague in the Netherlands.
[3] U.N. Gen. Assembly, A/RES/73/8, Necessity of ending the economic, commercial and financial embargo imposed by the United States of America against Cuba (Nov. 1, 2018).
President Obama in the final days of his presidency continues to press forward with additional implementation of the policy of normalization of relations with Cuba. The January 12 U.S.-Cuba agreement regarding migration associated with the U.S. ending two immigration benefits for Cubans was discussed in an earlier post.
Here we will discuss (a) the recent joint meeting regarding trafficking in persons; (b) another joint meeting regarding the two countries’ claims against each other; and (c) a new U.S.-Cuba Law Enforcement Memorandum of Understanding (MOU). Recent comments by Cuban leaders about President-elect Trump also will be discussed.
Meeting Regarding Trafficking in Persons
On January 12 and 13 the two countries met in Washington, D.C. The Cuban delegation “outlined the measures that are being implemented in [Cuba] to prevent and address this scourge, as well as the support and assistance provided to the victims, as part of the “zero tolerance” policy implemented by Cuba in any form of trafficking in persons and other crimes related to sexual exploitation, labor, among others.”[1]
Meeting Regarding Claims
On January 12 the U.S. State Department announced that the two countries were meeting in Havana that day for the third government-to-government meeting on claims. The meeting was to build upon their previous discussions for an exchange of views on technical details and methodologies regarding outstanding claims.[2]
Outstanding U.S. claims include claims of U.S. nationals for expropriated property on the island in the early years of the Cuban Revolution that were certified by the Foreign Claims Settlement Commission, now with interest totaling $8 billion; claims related to unsatisfied U.S. court default judgments against Cuba; and claims held by the U.S. Government. The U.S. continues to view the resolution of these claims as a top priority.
Outstanding Cuban claims include those of the Cuban people for human and economic damages, as reflected in the default judgments issued by the Provincial People’s Court of Havana in 1999 and 2000 against the U.S. As stated in a prior post, these judgments were for $64 billion on behalf of eight Cuban social and mass organizations plus $54 billion on behalf of the Cuban Government for alleged U.S. efforts to subvert that government. (These were default judgments in that the U.S. did not appear or contest these lawsuits in Cuban courts.)
In addition, Cuba repeatedly has asserted at the U.N. General Assembly its damage claims against the U.S. for the latter’s embargo. Last November these alleged damages totaled $ 125 billion.
The representatives of both governments reiterated the importance and usefulness of continuing these exchanges.
As usual, the governments’ public announcements about these closed-door sessions are not illuminating. Prior posts have discussed some of these claims and proposed ways to resolve them, primarily by an international arbitration proceeding at the Permanent Court for Arbitration at The Hague in the Netherlands.[3]
Agreement Regarding Law Enforcement
On January 16, in Havana the MOU was signed by Jeffrey DeLaurentis, chief of mission at the U.S. Embassy in Havana, and Vice Adm. Julio Cesar Gandarilla, the newly appointed Cuban interior minister. It provides for the two countries “to cooperate in the fight against terrorism, drug trafficking, money laundering and other international criminal activities.”[4]
“The arrangement will establish a framework for strengthening our partnership on counternarcotics, counterterrorism, legal cooperation, and money laundering, including technical exchanges that contribute to a strong U.S.-Cuba law enforcement relationship,” the White House statement said. “The arrangement will establish a framework for strengthening our partnership on counternarcotics, counterterrorism, legal cooperation, and money laundering, including technical exchanges that contribute to a strong U.S.-Cuba law enforcement relationship,” the White House statement said.
The U.S. National Security Council stated, “The goals of the President’s Cuba policy have been simple: to help the Cuban people achieve a better future for themselves and to advance the interests of the United States. While significant differences between our governments continue, the progress of the last two years reminds the world of what is possible when we are defined not by the past but by the future we can build together.”
Granma from Havana reported that the agreement covered “the prevention and combating of terrorist acts; drug trafficking; crimes committed through the use of information and communication technologies, and cyber security issues of mutual interest; trafficking in persons; migrant smuggling; flora and fauna trafficking; money laundering; the falsification of identity and travel documents; contraband, including firearms, their parts, components, ammunition, explosives, cash and monetary instruments.”
Cuban Officials’ Recent Comments About President-elect Trump[5]
The Guardian from London reports that in a recent interview Josefina Vidal, Cuba’s top diplomat with respect to the U.S., said it is “‘too early” to predict which path the new administration will follow. “There are . . . [some] functionaries, businessmen [other than anti-normalization Cuban-Americans whom] Trump has named, including in government roles, who are in favor of business with Cuba, people who think that the US will benefit from cooperation with Cuba, on issues linked to the national security of the US.” Cuban officials say that they plan to wait for action rather than words because Trump has repeatedly flip-flopped on the issue of rapprochement – and also put his business interests above his country’s laws.
Nevertheless Vidal warned, “Aggression, pressure, conditions, impositions do not work with Cuba. This is not the way to attempt to have even a minimally civilized relationship with Cuba.”
Her analysis was echoed by Ricardo Alarcón, who spent 30 years representing Cuba at the United Nations and another 20 years as president of the country’s National Assembly, before retiring in 2013. He said, “For two years we have been talking to a sophisticated president with an intelligent, skillful discourse. Now we have a gentleman who is capable of saying anything and nobody is sure what he is going to do.”
On December 8, the U.S. and Cuba held discussions in Havana about the two countries’ damage claims: (1) U.S. claims to recover damages for U.S. property interests that were expropriated by the Cuban government at the start of the Cuban Revolution in 1959.; (2) U.S. courts’ money judgments against Cuba; (3) Cuba’s claims for alleged damages resulting from the U.S. embargo of Cuba; and (4) Cuba’s alleged damage claims for Cubans personal injuries and deaths from U.S. hostile actions.
This post will briefly examine those claims, the recent U.S.-Cuba discussions on the subject and an analysis of the issues by Washington, D.C.’s Brookings Institution.
Some 5,913 U.S. corporations and individuals have $1.9 billion worth of claims (without interest) for factories, farms, homes and other assets that were nationalized in Cuba after Fidel Castro’s rebels came to power in 1959. These claims have been registered and validated by the U.S. Justice Department’s Foreign Claims Settlement Commission. They are now worth roughly $8 billion when including 6.0 percent annual interest. These claims (without interest) have been categorized by the Brookings Institution’s report discussed below:
Claimants
Claims
Amount ($USD)
Corporate
899
1,677,280,771
Individual
5,014
229,199,112
TOTAL
5,913
1,906,479,883
Nevertheless, the Brookings’ report identifies these potential issues with respect to the claims validated by the U.S. Commission: (1) Whether to recognize the Commission rulings as a legitimate procedure in which cuba did not participate; (2) Whether to accept or challenge its valuations of lost properties; (3) Whether Cuba should recognize accumulated interest as awarded by the Commission on its certified claims or whether to negotiate an alternative benchmark interest rate or other formula for partial payments.
In U.S. courts various plaintiffs have sued the Cuban Government, which did not appear in the cases. As a result the courts entered default judgments against Cuba, now totaling $2 billion.
In a 2015 report to the United Nations General Assembly, Cuba asserted that the accumulated economic damages from the U.S. economic sanctions had reached $121 billion. The annual report offers some estimates on sectoral damages but does not discuss methodology. An earlier 1992 Cuban statement detailed these estimated cumulative losses among others:: (a) $3.8 billion for losses in the tourist industry; (b) $400 million for losses in the nickel industry; (c) $375 million for the higher costs of freighters; (d) $200 million for the purchase of sugarcane crop equipment to substitute for U.S.-manufactured equipment; and (e) $120 million for the substitution of electric industry equipment
4. Cubans Killed or Injured by Alleged U.S. Hostilities[4]
The Cuban government claims that U.S. “acts of terrorism against Cuba have caused 3,478 deaths and 2,099 disabling injuries.” Examples of such alleged acts include (a) U.S.-supported hostilities in Cuba resulting in 549 deaths between 1959-1965; (b) the Bay of Pigs invasion resulting in 176 deaths and over 300 wounded of whom 50 were left incapacitated; (c) the explosion of the French vessel La Coubre on March 4, 1960 in Havana Harbor, resulting in 101 deaths including some French sailors; (d) the terrorist bombing of Cuban Airlines Flight 455 in 1976 killing all 73 persons on board including 57 Cubans; (e) the September 11, 1980 assassination of Cuban diplomat Félix García Rodriguez in New York City; (f) Numerous aggressions from the U.S. naval base in Guantanamo resulting in the deaths of Cuban citizens; and (g) suspicions that the U.S. employed biological warfare to spread fatal dengue fever in Cuba.
Immediately before the December 8 discussions, a U.S. State Department spokesperson said the U.S. expected this to be “a first step in what we expect to be a long and complex process, but the United States views the resolution of outstanding claims as a top priority for normalization.”
Afterwards a U.S official said that reaching a settlement of these claims was “a top priority” for the U.S. and that these talks were “fruitful” and would continue in 2016. This official also said that the U.S. had provided information on the additional $2 billion in judgments awarded to plaintiffs who had sued the Cuban government in U.S. courts, proceedings that Havana does not recognize.
Other than the above sketchy summary, very little has publicly emerged about the specifics of the talks. It sounds as if the discussions were akin to the pretrial discovery process in U.S. civil lawsuits when parties learn about each other’s evidence and arguments.
A Cuba legal expert, Pedro Freyre, said, “It’s the first time the two countries are going back to look at this history and try to sort out a system for fixing it.” The Cubans, he added, were “very tough, very clever” in such negotiations.
On the same day as the U.S.-Cuba discussions (December 8), the Brookings Institution released a cogent report on the subject by Richard Feinberg, a nonresident senior fellow in Brookings’ Latin American Initiative. [7]
Introducing the report at a press conference, Feinberg said, “The convening of these talks in Havana [is] a major milestone in the process of gradual full normalization of relations between the United States and Cuba, especially important with regard to commercial relations. Property ownership and claims are at the strategic heart of the Cuban revolution, dating from the early 1960s and also a major cause, perhaps the major cause, of the conflict between the United States and the Cuban revolution. The seizure of U.S. properties was the proximate cause of the imposition of U.S. economic sanctions back in the early 1960s.” These talks are of “strategic importance in the bilateral relationship.”
Feinberg also emphasized that both the U.S. and Cuba “agree on the principle of compensation” for expropriation of property.” Indeed, he said, to do so is in Cuba’s national interest. It “wants to demonstrate [that] it is not a rogue nation . . . [that] it is a nation of laws” and it “wants to remove major irritants to its international diplomacy and commercial relations” and “to attract international investment.”
Another point made by Feinberg was Cuba was not so poor that it could not pay any compensation, especially if the payments were spread out over time, as seems likely.
In addition to setting forth information about the above claims, the report examined the following ways of resolving these claims.
The Grand Bargain
The Report asserts that “a much more promising alternative approach” is “to take advantage of the very size and complexity of the conflicting claims and to make their resolution the centerpiece of a grand bargain that would resolve some of the other remaining points of tension between the two nations, and embrace an ambitious, forward-looking development strategy for Cuba.”
In such a grand bargain, “the settlement of U.S. claims could be wrapped in a package of economic opportunities for Cuba. Importantly, the United States could further relax its economic sanctions (amending or repealing Helms-Burton), providing more trade and investment opportunities – and the capacity for Cuba to earn the foreign exchange needed to service debt obligations. In turn, Cuba will have to accelerate and deepen its economic reforms, to offer a more attractive business environment for investors and exporters. Politically, the Cuban government could present a significant softening of the U.S. embargo as a victory, offsetting any concessions made in the claims negotiations. A comprehensive package might also be more attractive to the U.S. Congress; formal Congressional consent would enhance the measures’ legitimacy and durability and help to close off any court challenges, should some claimants be unsatisfied with the final settlement.”
“The [U.S.] strategic goals in a massive claims resolution process must be political: to heal the deep wounds of past conflicts, to lay foundations for peaceful coexistence and the non-violent resolution of disputes, to avoid jeopardizing fiscal balances and crippling debt burdens, to build investor confidence and international reputation, and to help render the Cuban economy more open and competitive. . . . In the interests of both Cuba and the United States, the twentieth-century trauma of massive property seizures should be transformed into a twenty-first century economic development opportunity.”
“Wrapping a claims settlement within a more sweeping diplomatic package could have large advantages. A robust accord could help overcome long-simmering bilateral animosities and reconcile the fractured Cuban family. Potentially embarrassing ‘concessions’ by either party could be masked by larger victories on more weighty or emotive issues. What to some might appear the unseemly materialism or inequity of property claims would be subsumed within a higher-toned humanitarian achievement. Having turned the page on a half-century long era of conflict, Cuban society could begin in earnest on a new path toward social peace and shared prosperity. The claims settlement, which would bolster investor confidence, could also be linked to a reformed economic development model for Cuba actively supported by the international community.”
2. Lump-Sum Settlement
Separate resolution of the damage claims could be done in a lump-sum settlement, whereby “the two governments negotiate a total amount of financial compensation that is transferred in a lump-sum or global indemnity to the plaintiff government which in turn assumes the responsibility to distribute the transferred monies among its national claimants.” Such a settlement would provide “greater efficiency in coping with large numbers of claims; enhanced consistency in the administration and adjudication of claims; promoting fairness among claimants in setting criteria for evaluating claims and distributing awards; and upholding professionalism and integrity in the national claims commission.” In addition, sometimes lump-sum arrangements “allow the two governments to address other matters, such as broader investment and trade relations.”
3. Two-Tier Resolution
Another way for separate resolution of the U.S. expropriation damage claims is what Brookings calls a two-tier solution, “whereby corporate claimants can choose either to seek creative bargains, or join individual claimants in a lump-sum settlement.”
The 5,014 individual claims validated by the U.S. Commission total about $229 million (without interest). Of these, only 39 amount to over $1 million each while only four were valued at over $5 million. A lump-sum cash settlement of these claims could be shared share equitably by all or with caps on those over a certain figure, such as $ 1 million.
The 899 corporate claims are heavily concentrated: the top 10 corporate claims are valued at nearly $1 billion while the top 50 at $1.5 billion. “The corporate claimants could be given the opportunity to be included in a lump-sum settlement—albeit possibly facing an equity hair-cut to limit the burden on Cuba and to ensure a minimum payment to the smaller claimants—or to ‘opt out’ of the general settlement and instead seek alternative remedies” in Cuba, such as a voucher for new investment; a right to operate a new business; a final project authorization for a new venture; a preferred acquisition right for a venture; Cuba sovereign bonds; and restoration of properties.
Conclusion
Although I hope that the Brookings’s “grand bargain” or more limited negotiated solution is reached, a Miami Herald article emphasizes the difficulties in reaching any settlement. First, some of the claims that were validated by the U.S. Foreign Claims Settlement Commission could be stricken from the list that the U.S. may negotiate if the claims have not always been owned by a U.S. citizen or business. Second, the U.S. government is not authorized to negotiate the previously mentioned U.S. courts’ default judgments against Cuba. As a result, U.S. attorneys for the plaintiffs in those cases could seek to seize any assets in the U.S. of the Cuban government such as a Cuban plane or ship to satisfy the outstanding judgments. Third, Cuba also has to fear that any payment of U.S. claimants for expropriated property will invite demands for similar payments by Cuban exiles around the world and by Spanish claimants after some Spanish courts have ruled that Spain’s 1986 settlement of such claims with Cuba is not binding on at least some Spanish claimants. Fourth, the time to complete such a settlement at the end of the Obama Administration is rapidly shrinking, and a new administration in January 2017 may not be as willing to do such a deal.[8]
I, therefore, reiterate the solution proposed in a prior post: an agreement by the two countries to submit all of their damage claims against each other for resolution to the Permanent Court of Arbitration at the Hague in the Netherlands under its Arbitration Rules 2012 before a panel of three or five arbitrators.[9]
My experience as a lawyer who handled business disputes in U.S. courts and in international arbitrations leads me to believe that arbitration is the appropriate way to resolve these claims by the two governments. The International Court of Arbitration was established in the late 19thcentury to resolve disputes between governments. It would be a third-party, neutral administrator of the proceedings and the arbitrators who would be selected would also be neutral. Finally it has an existing set of arbitration rules and procedures. Moreover, in the arbitration process, both sides would gain a better understanding of the opponent’s evidence and argument that could lead to a settlement before the arbitrators would be asked to render an award.
[7]Brookings is a non-governmental organization that “brings together more than 300 leading experts in government and academia from all over the world who provide the highest quality research, policy recommendations and analysis on a full range of public policy issues.” Feinberg is a professor of international political economy in the School of Global Policy and Strategy (formerly the School of International Relations and Pacific Studies) at the University of California, San Diego. Previously, Feinberg served as special assistant to President Clinton for National Security Affairs and senior director of the National Security Council’s Office of Inter-American Affairs; his other government positions include positions on the policy planning staff of the U.S. Department of State and in the Office of International Affairs in the U.S. Treasury Department.
Over the last week Cuban President Raúl Castro has made two speeches at the United Nations in New York City as has U.S. President Barack Obama. Afterwards the two of them with advisors held a private meeting at the U.N. with subsequent comments by their spokesmen. Here is a chronological account of these events.
On September 26, President Raúl Castro addressed the U.N. Summit on Sustainable Development, as shown in the photograph to the right. In his remarks he said, ”The reestablishment of diplomatic relations Between Cuba and the United States of America, the opening of embassies and the policy changes announced by President Barack Obama . . . constitute a major progress, which has elicited the broadest support of the international community.”
However, he added, “the economic, commercial and financial blockade [by the U.S.] against Cuba persists bringing damages and hardships on the Cuban people, and standing as the main obstacle to our country’s economic development, while affecting other nations due to its extraterritorial scope and hurting the interests of American citizens and companies. Such policy is rejected by 188 United Nations member states that demand its removal.”
More generally Castro condemned “the pervasive underdevelopment afflicting two-thirds of the world population” and the widening “gap between the North and the South” and “wealth polarization.”
Thus, he argued, “If we wish to make this a habitable world with peace and harmony among nations, with democracy and social justice, dignity and respect for the human rights of every person, we should adopt as soon as possible concrete commitments in terms of development assistance, and resolve the debt issue.” Such a commitment, he said, would require “a new international financial architecture, removal of the monopoly on technology and knowledge and changing the present international economic order.”
Nevertheless, according to President Castro, Cuba will continue to help other developing nations despite its limited capabilities and “shall never renounce its honor, human solidarity and social justice” that “are deeply rooted in our socialist society.”
On September 27, President Obama addressed the same U.N. Summit on Sustainable Development without touching on U.S.-Cuba relations. Instead he concentrated on the purpose of the Summit– sustainable development. (His photograph is to the left.)
He started by rejecting the notion that “our efforts to combat poverty and disease do not and cannot work, that there are some places beyond hope, that certain people and regions are condemned to an endless cycle of suffering.” Instead, he asserted, “the global hunger rate has already been slashed. Tens of millions of more boys and girls are today in school. Prevention and treatment of measles and malaria and tuberculosis have saved nearly 60 million lives. HIV/AIDS infections and deaths have plummeted. And more than one billion people have lifted themselves up from extreme poverty — one billion.”
Nevertheless, much remains to be done, according to Obama, and the nations at this Summit “commit ourselves to new Sustainable Development Goals, including our goal of ending extreme poverty in our world. We do so understanding how difficult the task may be. We suffer no illusions of the challenges ahead. But we understand this is something that we must commit ourselves to. Because in doing so, we recognize that our most basic bond — our common humanity — compels us to act.”
In this work, President Obama stated, the U.S. “will continue to be your partner. Five years ago, I pledged here that America would remain the global leader in development, and the United States government, in fact, remains the single largest donor of development assistance, including in global health. In times of crisis — from Ebola to Syria — we are the largest provider of humanitarian aid. In times of disaster and crisis, the world can count on the friendship and generosity of the American people.”
Therefore, Obama said, he was “committing the United States to achieving the Sustainable Development Goals” and to “keep fighting for the education and housing and health care and jobs that reduce inequality and create opportunity here in the United States and around the world.” This effort will include other “governments, more institutions, more businesses, more philanthropies, more NGOs, more faith communities, more citizens.” Moreover, the “next chapter of development must also unleash economic growth — not just for a few at the top, but inclusive, sustainable growth that lifts up the fortunes of the many.”
President Obama concluded by noting these obstacles to achieving these goals: bad governance; corruption; inequality; “old attitudes, especially those that deny rights and opportunity to women;” failure to “recognize the incredible dynamism and opportunity of today’s Africa;” war; and climate change
In a wide-ranging speech on international affairs, President Obama commented on U.S. relations with Cuba. He said, “I also believe that to move forward in this new era, we have to be strong enough to acknowledge when what you’re doing is not working. For 50 years, the United States pursued a Cuba policy that failed to improve the lives of the Cuban people. We changed that. We continue to have differences with the Cuban government. We will continue to stand up for human rights. But we address these issues through diplomatic relations, and increased commerce, and people-to-people ties. As these contacts yield progress, I’m confident that our Congress will inevitably lift an embargo that should not be in place anymore. Change won’t come overnight to Cuba, but I’m confident that openness, not coercion, will support the reforms and better the life the Cuban people deserve, just as I believe that Cuba will find its success if it pursues cooperation with other nations.”
Later in the speech, Obama added these words: “Think of the Americans who lowered the flag over our embassy in Havana in 1961 — the year I was born — and returned this summer to raise that flag back up. (Applause.) One of these men said of the Cuban people, “We could do things for them, and they could do things for us. We loved them.” For 50 years, we ignored that fact.
These comments were in the context of the following more general discussion of international affairs by President Obama: “We, the nations of the world, cannot return to the old ways of conflict and coercion. We cannot look backwards. We live in an integrated world — one in which we all have a stake in each other’s success. We cannot turn those forces of integration. No nation in this Assembly can insulate itself from the threat of terrorism, or the risk of financial contagion; the flow of migrants, or the danger of a warming planet. The disorder we see is not driven solely by competition between nations or any single ideology. And if we cannot work together more effectively, we will all suffer the consequences.”
“No matter how powerful our military, how strong our economy, we understand the United States cannot solve the world’s problems alone.” So too, in words that could be aimed at Cuba and others, “repression cannot forge the social cohesion for nations to succeed. The history of the last two decades proves that in today’s world, dictatorships are unstable. The strongmen of today become the spark of revolution tomorrow. You can jail your opponents, but you can’t imprison ideas. You can try to control access to information, but you cannot turn a lie into truth. It is not a conspiracy of U.S.-backed NGOs that expose corruption and raise the expectations of people around the globe; it’s technology, social media, and the irreducible desire of people everywhere to make their own choices about how they are governed.”
In a similar vein, Obama said, “The strength of nations depends on the success of their people — their knowledge, their innovation, their imagination, their creativity, their drive, their opportunity — and that, in turn, depends upon individual rights and good governance and personal security.”
Finally, according to Obama, we must “defend the democratic principles that allow societies to succeed” with a recognition that “democracy is going to take different forms in different parts of the world. The very idea of a people governing themselves depends upon government giving expression to their unique culture, their unique history, their unique experiences. But some universal truths are self-evident. No person wants to be imprisoned for peaceful worship. No woman should ever be abused with impunity, or a girl barred from going to school. The freedom to peacefully petition those in power without fear of arbitrary laws — these are not ideas of one country or one culture. They are fundamental to human progress.”
“A government that suppresses peaceful dissent is not showing strength; it is showing weakness and it is showing fear. History shows that regimes who fear their own people will eventually crumble, but strong institutions built on the consent of the governed endure long after any one individual is gone.”
“That’s why our strongest leaders — from George Washington to Nelson Mandela — have elevated the importance of building strong, democratic institutions over a thirst for perpetual power. Leaders who amend constitutions to stay in office only acknowledge that they failed to build a successful country for their people — because none of us last forever. It tells us that power is something they cling to for its own sake, rather than for the betterment of those they purport to serve.”
“Democracy — inclusive democracy — makes countries stronger. When opposition parties can seek power peacefully through the ballot, a country draws upon new ideas. When a free media can inform the public, corruption and abuse are exposed and can be rooted out. When civil society thrives, communities can solve problems that governments cannot necessarily solve alone. When immigrants are welcomed, countries are more productive and more vibrant. When girls can go to school, and get a job, and pursue unlimited opportunity, that’s when a country realizes its full potential.”
On September 28, Cuban President Raúl Castro in his address to the U.N. General Assembly essentially reiterated his comments of two days earlier about U.S.-Cuba relations with these words: ‘After 56 years, during which the Cuban people put up a heroic and selfless resistance, diplomatic relations have been reestablished between Cuba and the United States of America.”
“Now, a long and complex process begins toward normalization that will only be achieved with the end of the economic, commercial and financial blockade; the return to our country of the territory illegally occupied by the Guantanamo Naval Base; the suspension of radio and TV broadcasts, and subversion and destabilization attempts against the Island; and, when our people are compensated for the human and economic damages they continue to endure.”
“As long as the blockade remains in force, we will continue to introduce the Draft Resolution entitled ‘Necessity of Ending the Economic, Commercial and Financial Embargo imposed by the United States of America on Cuba.’ To the 188 governments and peoples who have backed our just demand, here, and in other international and regional forums, I reaffirm the eternal gratitude of the Cuban people and government for your continued support.” [5]
The rest of this Castro speech argued that the U.N. has failed in its 70 years of existence to fulfill the lofty purposes of its Charter. The speech also noted Cuba’s solidarity with its Caribbean brothers, African countries, the Bolivarian Republic of Venezuela, the Republic of Ecuador, the people of Puerto Rico, the Republic of Argentina, the Brazilian people and President Dilma Rouseff, the Syrian people and the Palestinian people. Castro also supported the nuclear agreement with the Islamic Republic of Iran.
On the other hand, Castro reaffirmed Cuba’s “rejection of the intention to expand the presence of NATO up to the Russian borders, as well as of the unilateral and unfair sanctions imposed on that nation” and Cuba’s condemnation of NATO and European countries’ efforts to destabilize countries of the Middle East and Africa that have led to the recent migrant crisis in Europe.
In conclusion, Castro said, “the international community can always count on Cuba to lift its sincere voice against injustice, inequality, underdevelopment, discrimination and manipulation; and for the establishment of a more equitable and fair international order, truly focused on human beings, their dignity and well-being.”
The two presidents with their advisors held a 30-minute private meeting at the U.N. on Tuesday, September 29. The photograph at the left shows them shaking hands.
The U.S. delegation consisted of Secretary of State, John Kerry; National Security Adviser, Susan Rice; National Security Council Senior Director for Western Hemisphere Affairs, Mark Feierstein; and the U.S. Permanent Representative to the U.N., Samantha Power.
Cuba’s delegation was composed of the Foreign Minister, Bruno Rodriguez; Consultant, Alejandro Castro Espin (the son of President Raúl Castro); Vice President of Cuba’s Defense and Security Committee, Juan Francisco Arias Fernández; Cuba’s Director General of U.S. Affairs, Ministry of Foreign Affairs, Josefina Vidal; and Cuba’s Ambassador to the U.S., José Ramón Cabañas.
On a September 29 flight from New York City to Washington, D.C., White House Press Secretary Josh Earnest, in response to a journalist’s question, said, “I know that the two leaders had an opportunity to discuss some of the regulatory changes that have been announced in the last couple of weeks on the part of the [U.S.]. The State Department is leading civil aviation coordination talks in Cuba right now. And these are all additional steps that are moving toward more normal relations between our two countries.”
“The President, as he always does, . . . reaffirmed our commitment to seeing the Cuban government do a better job of not just respecting, but actually proactively protecting, the basic human rights of the Cuban people.”
We “continue to believe that deeper engagement and deeper people-to-people ties, deeper economic engagement between the [U.S.] and Cuba will have the effect of moving the government and the nation in a positive direction.”
Thereafter the White House released the following written statement about the meeting: “President Obama met today with President Raul Castro of Cuba to discuss recent advances in relations between the United States and Cuba, as well as additional steps each government can take to deepen bilateral cooperation. The two Presidents discussed the recent successful visit of Pope Francis to both countries. President Obama highlighted U.S. regulatory changes that will allow more Americans to travel to and do business with Cuba, while helping to improve the lives of the Cuban people. The President welcomed the progress made in establishing diplomatic relations, and underscored that continued reforms in Cuba would increase the impact of U.S. regulatory changes. The President also highlighted steps the United States intends to take to improve ties between the American and Cuban peoples, and reiterated our support for human rights in Cuba.”
Soon after the presidential meeting, Cuban Foreign Minister Bruno Rodriguez held a press conference at the U.N. In his opening statement, he said that in a “respectful and constructive” atmosphere, the two presidents exchanged their views on the recent visit of Pope Francisco to Cuba and the United States, as well as issues on the bilateral agenda established between the two countries.
“The presidents agreed on the need to continue working on the set bilateral agenda, which includes areas of mutually beneficial bilateral cooperation and in third countries such as Haiti, the development of dialogue on issues of bilateral and multilateral interest and resolving outstanding issues between two states.”
President Castro affirmed Cuba’s desire to build a new relationship with the U.S. based on respect and sovereign equality, but reiterated that to have normal relations the U.S. had to lift the blockade, which is causing damage and hardship to the Cuban people and affects the interests of American citizens.
Castro also confirmed that Cuba on October 27 would introduce in the General Assembly a resolution condemning the embargo (blockade). Said the foreign Minister, the blockade is “a massive, flagrant and systematic violation of human rights of all Cubans and harms all Cuban families, even Cubans living outside Cuba.” Cuba fully expects this year’s resolution to once again have overwhelming support.
The Foreign Minister said the return of the territory illegally occupied by the Guantanamo Naval Base in Cuba is a high priority element in the process of normalization of relations between the U.S. and Cuba, as a vindication of Cuban people.
At another point he added that “we are very proud of the accomplishments of Cuba on human rights and that human rights are universal, not subject to political selectivity or manipulation of any kind. ” Cuba guarantees the full exercise of political rights and civil liberties, and economic, social and cultural rights. We have many concerns with the situation on human rights in the world, particularly in the U.S. and Western Europe, as illustrated by the current immigration refugee crisis. The pattern of racial discrimination and police brutality against African Americans in the [U.S.] is really serious.
Conclusion
Cuba reiterated its insistence on ending the U.S. embargo as an essential condition for normalization of relations, an objective shared by President Obama and this blog. [9] We now await the U.N. General Assembly’s debate and anticipated approval on October 27 of another resolution condemning the embargo and whether the U.S. will, for the first time, abstain on the vote.
Cuba continues to assert that the U.S. lease of Guantanamo Bay is illegal, but its saying so does not make it so. Previous blog posts have discussed this contention and do not find it persuasive and, therefore, suggested the two countries submit the dispute for resolution to the Permanent Court of Arbitration at The Hague in the Netherlands.[10]
The same means has been suggested in this blog for resolving the disputes about whether or not Cuba has been damaged by the embargo (blockade) and the amount of such alleged damages as well as the amount of damages to U.S. interests by Cuba’s expropriation of property in the early years of the Cuban Revolution.
[9] This blog has discussed the initial bills to end the embargo in the House and Senate as well as later bills to do the same in the Senate and House.
A previous post reviewed the various damage claims that Cuba and the U.S. have against each other and recommended that all of them be submitted to a joint proceeding before the Permanent Court of Arbitration at the Hague in the Netherlands.
One of those claims is Cuba’s claim for alleged damages resulting from the U.S. embargo or blockade of Cuba, which at the last session of the U.N. General Assembly in October 2014 amounted to $1.1 trillion, according to Cuba’s Foreign Minister.
On May 15, 2015, Granma, Cuba’s official newspaper, inexplicably ran an article about a judgment rendered by a Cuban court (the Civil and Administrative Court of Law at the Havana Provincial People’s Court) on such a claim fifteen years earlier, on May 5, 2000. This was in a lawsuit filed by eight of Cuba’s social and mass organizations (CTC, ANAP, FMC, FEU, FEEM, OPJM, CDR and ACRC) and was after a trial from February 28 through March 10, 2000.
The judgment on May 5, 2000, for these alleged damages was $ 64 billion, representing loss of markets for Cuban exports and loss of Cuba’s main suppliers; investments for the conversion of production facilities; increased costs of transportation to and from more-distant markets and suppliers; increased costs of carrying larger inventories of supplies to protect against supply interruptions; reduced purchases of Cuban goods by U.S. citizens and companies; increased costs associated with outdated equipment; and increased costs of alternative financing and frozen Cuban assets in the U.S.
In the same case the Cuban court also rendered a judgment against the U.S. for another $54 billion of alleged damages resulting from alleged U.S. efforts to subvert Cuba’s government, including Cuba’s costs of countering such efforts, of mobilizing Cuba’s military and of combatting U.S. alleged “biological warfare.”
I assume that this Cuban court judgment was in a lawsuit in which the U.S. did not appear and thus was what in U.S. law is called a default judgment. This judgment, I believe, would be irrelevant in the suggested arbitration of various damage claims by the Permanent Court of Arbitration as would any default judgments rendered against Cuba by any U.S. courts.
Interestingly a search of articles about Cuba in the New York Times from March 1 through May 30, 2000, did not reveal any articles about this Cuban lawsuit. Instead, there were many articles in this period about the battles in U.S. courts and public opinion over whether a six-year-old Cuban boy, Elian Gonzalez, who was in Florida after being rescued at sea should be returned to his Father in Cuba. This controversy was resolved on June 28, 2000, when he was returned to his Father.
On May 18, 2015, Elian, now 21 years old and a student of Industrial Engineering at the University of Matanzas, Cuba, was in the news again when he said to a U.S. journalist that if he could visit anywhere, it would be the U.S. to “give my love to (the) American people.”
Another issue for U.S.-Cuba reconciliation is whether Cuba will extradite to the U.S. fugitives from U.S. criminal prosecution and whether the U.S. will do likewise for any fugitives from Cuban authorities who are in the U.S.
Under this treaty, as amended, each country shall grant extradition of persons covered by Article I for crimes covered by Article II, as amended and expanded by Articles I and II of the Additional Extradition Treaty between the parties, which entered into force on June 18, 1926 (44 Stat. 2392; TS 737).
The persons covered by Article I are “persons who, having been charged as principals, accomplices or accessories with or convicted of any crimes or offenses specified in the following article, and committed within the jurisdiction of one of the high contracting parties, shall seek an asylum or be found within the territories of the other: Provided that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his or her apprehension and commitment for trial if the crime or offense had been there committed.”However, under Article V of the treaty, “Neither of the contracting parties shall be bound to deliver up its own citizens under the stipulations of this Treaty.”
The long list of crimes covered by Article II, as amended, includes the following: (1) “Murder, comprehending the offenses expressed in the Penal Code of Cuba as assassination, parricide, infanticide and poisoning; manslaughter, when voluntary; the attempt to commit any of these crimes.” (2) “Arson.” and (3) “Robbery, defined to be the act of feloniously and forcibly taking from the person of another money, goods, documents, or other property, by violence or putting him in fear; burglary; housebreaking and shopbreaking.”
Under Article VI of the original treaty, however, the requested country is not obligated to extradite someone when the offense is of “a political character.” The exact language of this provision states, “A fugitive criminal shall not be surrendered if the offense in respect of which his surrender is demanded be of a political character, or if it is proved that the requisition for his surrender has, in fact, been made with a view to try or punish him for an offense of a political character.” (Emphasis added.) [2]
The only limitation on this exception is in Article VI itself, which states, “An attempt against the life of the head of a foreign government or against that of any member of his family when such attempt comprises the act either of murder, assassination, or poisoning, shall not be considered a political offense or an act connected with such an offense.” (Emphasis added.)
Moreover, Article VI states, “If any question shall arise as to whether a case comes within the provisions of this article [VI], the decision of the authorities of the government on which the demand for surrender is made, or which may have granted the extradition shall be final. (emphasis added.) [3]
To have a better understanding of this treaty, it would be useful to see all documents regarding (a) the negotiation of the treaty in 1904-1905 and its amendment in 1926; and(c) previous U.S. and Cuban requests for extradition.
U.S. International Extradition Practice
Being unfamiliar with extradition generally or with treaties on the subject specifically, I was surprised by the provisions about “political offenses” in the U.S.-Cuba extradition treaty, I wondered if they were sui generisand how they have been interpreted in practice.
Research indicated that they are not sui generis. This is at least the conclusion based upon a report for Fiscal Years 2000 and 2001 submitted to the Congress by the U.S. Department of State. It stated, in part, “A similarly widely adopted exception is that extradition is not required where the crime at issue is a “political offense” (a term which can cover treason, sedition or other crime against the state without the elements of any ordinary crime, or which under U.S. law can cover ordinary crimes committed incidental to or in furtherance of a violent political uprising such as a war, revolution or rebellion, especially when such crimes do not target civilian victims).”
That report to Congress also stated that U.S. extradition “treaties typically provide that extradition may be denied if the request is found to be politically motivated.Some of our treaties provide that extradition may be denied if the request was made for the primary purpose of prosecuting or punishing the person sought on account of race, religion, nationality or political opinion.”
Research, however, did not disclose the rationale for such typical provisions although I could understand that a country making a request for extradition for a “political offense”could not reasonably be expected to have an unbiased view on the legitimacy of its request while the requested country, if acting in good faith, could be expected to act more objectively and dispassionately. Nor have I uncovered sources explaining how such provisions have been interpreted and used in practice. I solicit comments that shed light on these issues.
Moreover, the U.S.-Cuba extradition treaty treaty by itself does not prohibit the requested country from granting a request for extradition that might be viewed as “political” or from reversing a prior determination by the requested country to reject a request on that ground. The requested country’s own laws, however, may prohibit such actions.
U.S. Fugitives in Cuba
According to U.S. Department of State annual reports purportedly justifying the designation of Cuba as a “State Sponsor of Terrorism,” there have been or still are over 70 individuals living in Cuba who are fugitives from criminal charges in U.S. relating to violent acts in the 1970’s purportedly committed to advance political causes. Pursuant to a 2005 Cuban government statement, however, these U.S. reports also say no additional U.S. fugitives have been permitted on the island and in a few instances Cuba has extradited such fugitives to the U.S.
However, a U.S. newspaper recently asserted, “The U.S. has no idea how many fugitives Cuba’s harboring,” And on January 23, 2015, U.S. Senator Marco Rubio (Rep., FL) and two other Republican Senators (David Vitter (LA) and Ted Cruz (TX)) asked the F.B.I. to submit a complete list of such fugitives with copies of their U.S. indictments.
In any event, one of the most notable U.S. fugitives still on the island is JoAnne Chesimard (a/k/a Assata Shakur), a political radical and former member of the Black Panther Party and the militant Black Liberation Army, who in 1979 broke out of a New Jersey prison where she was serving a life sentence for assault, armed robbery and aiding and abetting the murder of a New Jersey state trooper. After hiding in the New York area, she fled to Cuba in 1984, where she was granted political asylum that same year and has lived ever since. According to her U.S. attorney, she “has maintained from the time she was arrested that she was a victim of a counter intelligence program by the FBI and that she was stopped on the New Jersey turnpike as result of her being targeted by FBI.”
After the December 17, 2014, announcement of the U.S.-Cuba accord, New Jersey’s Governor, Chris Christie, and law enforcement officials expressed their desire for her extradition to the U.S.
Cuba, however, has rejected previous U.S. requests for her extradition on the ground that Cuba had determined she was being sought on “political” grounds and, therefore, had decided to grant her asylum. In addition, there are also some indications that Chesimard/Shakur has been granted Cuban citizenship, which would provide Cuba with another reason under the treaty to deny a U.S. request for her extradition. It would be useful to know the details of all prior U.S. requests for her extradition.
After the December 17th accord, Josefina Vidal said, “every nation has sovereign and legitimate rights to grant political asylum to people it considers to have been persecuted. … That’s a legitimate right. We’ve explained to the U.S. government in the past that there are some people living in Cuba to whom Cuba has legitimately granted political asylum.”Presumably this statement includes Chesimard/Shakur.
Cuban Fugitives in U.S.
Less is known about Cuban fugitives in the U.S., but they could include Cubans who fled to the U.S. after the Revolution of 1959, especially those who allegedly took part in organizing the failed 1961 Bay of Pigs invasion.
At the top of this list probably is Luis Posada Carriles, the alleged mastermind behind the bombing of a Cuban airliner, who entered the US in 2005. in 2011, he was put on trial in El Paso, Texas, for allegedly lying to U.S. immigration authorities about how he got into the country and his alleged participation in terrorist attacks, but he was acquitted of those charges.
Recently Josefina Vidal said, “We’ve reminded the U.S. government that in its country they’ve given shelter to dozens and dozens of Cuban citizens. Some of them accused of horrible crimes, some accused of terrorism, murder and kidnapping, and in every case the U.S. government has decided to welcome them.”
Proposed Means for Resolving Extradition Issues
Here is my suggestion for resolving outstanding extradition issues.
First, by a certain date the countries should exchange complete lists of suspected fugitives in the other country with requests for extradition.
Second, by another certain date the countries should exchange responses to the lists of suspected fugitives indicating whether they are alive and in the country and whether they will be extradited and if not, why not. In addition, these documents should include names of other fugitives in their countries that were not on the original lists.
Third, by another date certain, the countries should exchange statements indicating whether they object to any refusals to extradite and why.
Fourth, by another date certain, the countries should exchange responses to objections to refusals to extradite with reasons why they are still pursing the requests.
Fifth, on a date certain the countries should meet to determine whether they can resolveany disputes over refusals to extradite.
Sixth, by a date certain, the countries would submit any remaining disputes over extradition to an arbitration panel of one or three arbitrators at the Permanent Court of Arbitration at the Hague in the Netherlands for an award that the countries, in advance, agree to implement and enforce.
[1] Recently there have been frequent assertions in the press that there is no extradition treaty between the two countries. And after December17th, Josefina Vidal, the Cuban official in charge of the current negotiations with the U.S., asserted, “There’s no extradition treaty in effect between Cuba and the U.S.” Those statements seem erroneous. Such a treaty has never been revoked and is still on the U.S. list of extradition treaties in force. However, there are some reports that after the Cuban Revolution of 1959, the U.S. ceased to honor the treaty.
[2] The Spanish language version of this sentence does not appear to be significantly different. It states:“No será entregado el criminal fugitivo si el delito con respecto al cual se solicita su entrega es de carácter político, ó si se preuba que la reclamación de su entrega se ha formulado en realidad con el objecto de enjuiciarlo ó castigarlo por un delito de carácter polìtico.” However, the preamble to the 1926 Additional Extradition Treaty says the original treaty was signed on April 6, 1904, and the Protocol amending the Spanish text of that treaty was signed on December 6, 1904.I have not been able to find that Protocol, but would like to know whether it concerns this sentence or the other sentence in Article VI mentioned above.
[3] The Spanish language version of this sentence does not appear to be significantly different. It states, “Cuando surgiere alguna duda respecto á si son aplicables á un caso dado las disposícíones de este artículo, lo que resolvieren las Autoridades del Govierno á quien se pidiere la entrega ó que hubiese accedidoá la extradición, será definitivo.”
[4] Report on International Extradition Submitted to the Congress Pursuant to Section 211 of the Admiral James W. Nance and Meg Donovan Foreign Relations Reauthorization Act, Fiscal Years 2000 and 2001 (Public Law 106-113).
On April 26, 2012, the Special Court for Sierra Leone convicted Charles Taylor, the former President of neighboring Liberia, of 11 counts of crimes against humanity and war crimes as defined in the Court’s governing Statute.
The Court’s judgment was based upon detailed findings that the prosecution had proved beyond a reasonable doubt that:
Sierra Leone rebels had committed crimes against humanity in Sierra Leone by murder (Count 2), rape (Count 4), sexual slavery (Count 5), other inhumane acts (Count 8) and enslavement (Count 10).
Said rebels had committed violations of Common Article 3 to the Geneva Conventions and of their Additional Protocol II in Sierra Leone by acts of terrorism (Count 1), violence to life, health and physical or mental well-being of persons, in particular murder (Count 3); outrages upon personal dignity (Count 6); violence to life, health and physical or mental well-being of persons, in particular cruel treatment (Count 7); and pillage (Count 11).
Said rebels had committed violations of international humanitarian law in Sierra Leone by conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities (Count 9).
Mr. Taylor had provided practical assistance, encouragement and moral support that had a substantial effect on the commission of said crimes by the rebels, and he knew that such crimes were being committed and that his actions would provide said practical assistance, encouragement or moral support to the commission of such crimes. Therefore, Mr. Taylor was guilty of the crime of aiding and abetting the commission of such crimes.
The Court, however, determined that the prosecution had failed to prove beyond a reasonable doubt that Mr. Taylor had participated in a common plan, design or purpose to commit the rebels’ crimes.
Mr. Taylor will be sentenced in the coming weeks. There is no death penalty in international criminal law, and any prison term would be served in a British prison pursuant to a special agreement with the Court.
The Court was established in 2002 in a partnership between the United Nations and Sierra Leone to prosecute those responsible for atrocities in a conflict that led almost half the population to flee and left an estimated 50,000 dead. With its main seat in Sierra Leone’s capital of Freetown, the Court already has sentenced eight other leading members from different forces and rebel groups for crimes in Sierra Leone. Mr. Taylor is its last defendant whose trial was moved to The Hague in the Netherlands for fear of causing unrest in the region where he still has followers.
Not since Karl Doenitz, the German admiral who briefly succeeded Hitler upon his death, was tried and sentenced by the International Military Tribunal has a head of state been convicted by an international court.
