U.S. Releases Annual Report on Human Rights in the World

On May 24, 2012, the U.S. Department of State released its annual report on human rights conditions in every other country in the world. Secretary of State Clinton said that the reports “make clear to governments around the world: We are watching and we are holding you accountable. And they make clear to citizens and activists everywhere: You are not alone. We are standing with you.” Assistant Secretary of State Michael Posner added, “In too many countries, egregious human rights violations continue, including torture, arbitrary detention, denial of due process of law, disappearance, and extrajudicial killings.”

The annual U.S. reports cover internationally recognized individual, civil, political, and worker rights, as set forth in the Universal Declaration of Human Rights and various international treaties. The U.S. Department of State submits reports on all countries receiving assistance and all United Nations member states to the U.S. Congress in accordance with the Foreign Assistance Act of 1961 and the Trade Act of 1974.

The Department of State prepares these reports using information from U.S. embassies and consulates abroad, foreign government officials, nongovernmental and international organizations and published reports. U.S. diplomatic missions abroad prepared the initial drafts of the individual country reports, using information they gathered throughout the year from a variety of sources, including government officials, jurists, the armed forces, journalists, human rights monitors, academics, and labor activists.

Once the initial drafts of the individual country reports are completed, the Department’s Bureau of Democracy, Human Rights and Labor, in cooperation with other Department offices, work to corroborate, analyze, and edit the reports, drawing on their own sources of information. These sources included reports provided by U.S. and other human rights groups, foreign government officials, representatives from the U.N. and other international and regional organizations and institutions, experts from academia and the media. Bureau officers also consult experts on worker rights, refugee issues, military and police topics, women’s issues, and legal matters, among many others. The guiding principle was to ensure that all information was reported objectively, thoroughly, and fairly.

As Secretary of State Clinton stated on the release of the latest report, “Congress mandated these country reports more than three decades ago to help guide lawmakers’ decisions on foreign military and economic aid, but they have evolved into something more. Today, governments, intergovernmental organizations, scholars, journalists, activists, and others around the world rely on these reports as an essential update on human rights conditions around the world – where we have seen progress, where progress has come too slowly or at great cost, and all too often, where it has been rolled back.”

In my work as a pro bono lawyer for asylum seekers in the U.S., for example, these reports were important corroborative evidence to support the claim of someone who alleges that he or she has a well founded fear of persecution on account of race, religion, ethnic group, political opinion or membership in a particular social group if returned to his or her home country. In addition, my experience with some of the country reports, especially El Salvador, has shown that over time they have become increasingly more objective.

With respect to China, the new report said that human rights had deteriorated. It cites “repression and coercion” of rights advocates, tight restrictions on political dissidents, curbs on journalists and on Internet access, and “severe cultural and religious repression” of ethnic Uighurs and Tibetans.

The next day (May 25th) China said that the U.S. report was inaccurate and irresponsible. As the Foreign Ministry spokesperson said, the report was “baseless, biased and completely wrong.” In fact, the spokesman said China has made world-recognized gains in improving human rights since broad social and economic reforms were launched 30 years ago. China’s economy has grown rapidly over the last three decades, and the government marks poverty reduction as one of its greatest human rights achievements. Moreover, the person said, “The Chinese people themselves are the most qualified to judge China’s human rights condition . . . . Countries can hold talks about human rights on equal footing to increase mutual understanding and help each other improve, but should never use the relevant issue as a tool for interfering in the internal affairs of other countries.”

China simultaneously retaliated with its report on human rights in the U.S. It criticized the arrest of Occupy Wall Street protesters and other alleged U.S. violations of civil and political rights.

The Chinese report on human rights in the U.S. reflects other countries’ frequent criticism of the U.S.’ annual reports for failure to evaluate and criticize the U.S. itself. But the U.S.’ recent submission of its own human rights record to Universal Periodic Review by the U.N. Human Rights Council, as discussed in a prior post, is another means for the U.S. to do just that with on-the-record comments and criticism by other governments.




Reactions to Charles Taylor’s Conviction

Special Court for Sierra Leone Logo

As reported in a prior post, on April 26th 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. The hearing on his sentencing has been scheduled for May 16th with the sentence to be pronounced on May 30th. The deadline for any appeal is 14 days after the sentencing judgment.

Before we look at the reactions to that conviction, we should be aware of the gruesome details of what happened in Sierra Leone according to witnesses at Taylor’s trial. Here are only two examples. One male witness, “Then I put this other hand. Then he [a Sierra Leone rebel] chopped it, but when he chopped it it was not severed initially. He chopped it twice, and it hit here and some bones were broken in it. Then the third time it was severed.” Another male witness, “Well, they [the rebels] used to treat them [civilians] badly. They used to rape them. They used to kill them. Sometimes they even ate them.” A video with photos of some of the Sierra Leone victims should be watched as well as current photos from the country.

Another aspect of the trial needs highlighting. One of the challenges facing the prosecution was how to link Mr. Taylor in Liberia to the crimes committed in Sierra Leone. There was no paper trail showing orders from Taylor. Nor was there any evidence of his ever going to Sierra Leone. He was not at the scene of the crimes in that country, and the Liberian army was not involved. Instead the link was proven by radio and telephone communications from Taylor to the rebels in Sierra Leone, by shipments of arms and ammunition to the rebels from Taylor’s forces and by bank records showing transfers of funds to Taylor’s accounts from Sierra Leone.

The Special Court’s chief prosecutor, Brenda J. Hollis, who is a U.S. lawyer, said the conviction was a triumph for the idea that political leaders should be held accountable  for their deeds in “the new reality of an international justice system.”

The U.N. High Commissioner for Human Rights stated that the conviction “marked a major milestone in the development of international justice. . . .  A former President, who once wielded immense influence in a neighbouring [sic] country where tens of thousands of people were killed, mutilated, raped, robbed and repeatedly displaced for years on end, has been arrested, tried in a fair and thorough international procedure, and has now been convicted of very serious crimes.” Such a result, she said, was “a stark warning to other Heads of State who are committing similar crimes, or contemplating doing so.”

The U.S. Department of State issued an official statement welcoming the conviction as “an important step toward delivering justice and accountability for victims, restoring peace and stability in the country and the region, and completing the Special Court for Sierra Leone’s mandate to prosecute those persons who bear the greatest responsibility for the atrocities committed in Sierra LeoneThe Taylor prosecution at the Special Court delivers a strong message to all perpetrators of atrocities, including those in the highest positions of power, that they will be held accountable.” The U.S. statement also noted that the U.S. “has been a strong supporter and the leading donor of the Special Court  . . . since its inception. The successful completion of the Special Court’s work remains a top U.S. Government priority.”

Amnesty International (AI) asserted that the conviction sends “a clear message to leaders the world over that no-one is immune from justice.”  However, AI lamented that because of the limited jurisdiction and funding of the Special Court, “Thousands of persons suspected of criminal responsibility for incidences of unlawful killings, rape and sexual violence, mutilations and the use of children in Sierra Leone’s armed conflict have never been investigated, much less prosecuted.” In addition, AI emphasized that “only a limited number of Sierra Leone’s thousands of victims who bear the terrible scars of the conflict have received reparations, despite the [provisions for reparations in the Sierra Leone] Peace Accord and the clear recommendations [for reparations] by [Sierra Leone’s] Truth and Reconciliation Commission.” AI also reiterated its call for the repeal of the amnesty provision in the Peace Accord and [for Sierra Leone’s] enactment of legislation defining crimes against humanity and war crimes as crimes under Sierra Leone law.”

Human Rights Watch had a similar reaction. It said the conviction “sends a message to those in power that they can be held to account for grave crimes.”

A New York Times editorial said the conviction “is a historic victory for justice and accountability: the first time a former head of state has been convicted by an international court since the Nuremberg trials after World War II. Mr. Taylor . . . richly deserves this distinction.” The editorial also reminded us that “other leaders . . .  deserve the same fate” from the International Criminal Court in its prosecutions of the Ivory Coast’s brutal former president, Laurent Gbagbo, and Sudan’s current president, Omar Hassan al-Bashir.

The Guardian newspaper from London commented that the conviction was “an important step in what can only be described as the faltering path of international justice.” It noted that even though there were dysfunctional justice systems in Russia and China, it is “a safe bet that no Russian [or Chinese] leader will ever appear before an international court of justice for war crimes . . . . The same is true of . . . US or British generals for war crimes committed in Iraq and Afghanistan. Might, or a seat on the UN security council, still appears to be right. If the arm of international law is long, it is also selective. . . .  If impunity is to end, jurisdiction has to be universal.”

Taylor’s conviction was for crimes against humanity and war crimes in Sierra Leone. But the conviction reminded Liberians of the horrible similar crimes committed in their country by Taylor and his forces.

Charles Taylor (Rebel leader)
Charles Taylor, President of Liberia

An expert on Liberia stated that in “Liberia, Mr. Taylor fought a brutal campaign against West African peacekeepers and other armed factions. As many as 250,000 Liberians out of a prewar population of just over [3,000,000] lost their lives, while more than [1,000,000] others became refugees — crimes for which no one has yet been held accountable. An internationally brokered peace deal in 1997 led to the travesty of a frightened population’s electing Mr. Taylor president for fear of what would happen if he did not get his way. He was driven from power only in 2003.” Moreover, “many of his closest former associates remain at large and active in public life . . . . Mr. Taylor’s ex-wife, Jewel Howard Taylor, who filed for divorce after his fall from power in part to protect her assets from international sanctions, is a member of the Liberian Senate. So is Prince Y. Johnson, a onetime Taylor ally who literally butchered President Samuel K. Doe at the start of the civil war and was so certain of his impunity that he had the entire episode videotaped for posterity. Far from becoming a pariah, Mr. Johnson played kingmaker in Liberia’s presidential election last year, delivering the bloc of votes that assured President Ellen Johnson Sirleaf a second term.”

The previously mentioned New York Times editorial said that Taylor now “must also be held accountable for his role in Liberia’s 14-year civil war. Liberia needs to enact the legislation to bring him, and the other murderous warlords from that era, to trial either in Liberian or international courts.”

Amnesty International and Human Rights Watch also remembered that Taylor and his forces had committed grave crimes in his native Liberia, but had not been subject to any criminal prosecutions for those crimes. Said AI, “during “the 14-year Liberian civil war that raged while Taylor was first the leader of one of the numerous armed opposition groups and later the President, all parties to the conflict committed war crimes and crimes against humanity, including murders along ethnic lines, as well as torture, rapes and other crimes of sexual violence, abductions, and recruitment and use child soldiers.” After the end of the civil war, AI said the Liberian Truth and Reconciliation commission had recommended “that a criminal tribunal be established to prosecute people identified as responsible for crimes under international law [but that it] is yet to be implemented, as are most TRC recommendations on legal and other institutional reforms, accountability, and reparations.  The lack of justice for the victims of the Liberian conflict is shocking. The government of Liberia must end the reign of impunity by enacting the necessary legislation and acting on its duty to investigate and prosecute alleged perpetrators.”

Finally, two African observers commented that justice having “had to come from international courts does not reflect well on . . .  Liberia in particular. The process exposes the failure by Liberians to provide themselves with a legal and judiciary system capable of effectively administering justice.” More generally “the verdict and the process should be a wakeup call to Africans. The successful conviction for such crimes is a glaring example of the failure of Africans to govern themselves effectively. . . . Africans must focus on building strong institutions to deal with human rights violations ourselves . . . .” On the other hand, the conviction “informs future Liberian, and indeed African, dictators and tyrants that they cannot escape justice by hedging their bets on a dysfunctional domestic legal system. Where national systems are incapable of adequately and effectively prosecuting leaders who engage in wanton violations of human rights, citizens can look to the international criminal court for justice.”

International Criminal Court’s First Conviction

Thomas Lubanga Dyilo

On March 14, 2012, the International Criminal Court (ICC) convicted its first defendant: Thomas Lubanga Dylio. [1]

The ICC’s three-judge Trial Chamber unanimously concluded, after a lengthy trial, that he was guilty beyond a reasonable doubt as a co-perpetrator of the war crimes of conscripting and enlisting children under the age of 15 and using them to participate in an internal armed conflict in 2002-2003 in the Democratic Republic of the Congo (DRC). At the time Lubanga was the President of a rebel group, the Commander-in-Chief of its military wing and its political leader.

At a hearing to be held on April 18th the Trial Chamber will consider the length of his sentence and the principles to be used in establishing reparations for the victims of these crimes. The ICC’s Prosecutor has said that his office will seek a sentence close to the maximum of 30 years under Article 77(1)(a) of the Court’s Rome Statute. It is anticipated that Lubanga will appeal his conviction and sentence to the ICC’s Appeals Chamber.

The Trial Chamber’s judgment also harshly criticized the Prosecutor for negligence in delegating investigations to unreliable intermediaries who had encouraged certain witnesses to give false testimony that had compelled the Court to exclude any reliance on their testimony.

The U.N.’s High Commissioner for Human Rights said this verdict “represented the coming of age of the [ICC] . . . and . . . [sent] a strong signal against impunity for such grave breaches of international law that will reverberate well beyond the D.R.C.”

The U.S. had similar words of commendation. The White House said the decision demonstrated that “the international community is united in its determination to end the repugnant practice of using child soldiers.” The U.S. Department of State noted that the conviction highlighted the “paramount international concern” over “the brutal practice of conscripting and using children to take a direct part in hostilities” and puts “perpetrators and would-be perpetrators of [such conduct] on notice that they cannot expect their crimes to go unpunished.”


[1] A previous post reviewed the trial of this case while another post discussed interesting issues of witness protection in the case.

U.S. Government’s Opinions on Religious Freedom in Cuba

Annually the U.S. Department of State, pursuant to statutory authorization, releases a report on the status of religious freedom in every country in the world.[1] In addition, the quasi-independent U.S. Commission on International Religious Freedom releases annual reports on the same subject.[2]  The most recent State Department reports grudgingly admit that there have been many improvements in such freedom in Cuba while the Commission takes a more strident and hostile view of the subject.

It should be noted at the outset that these two agencies are not seeking to impose on the rest of the world the U.S. constitutional prohibition of the “establishment of religion” or of “abridging the free exercise [of religion].” [3] Instead the agencies reports rely upon international legal standards for such freedom.[4]

Introduction

The Cuban Revolution’s early hostility to religion and the relaxation of this hostility after the 1989 collapse of the Soviet Union have been discussed.[5]

Cuba’s constitution now recognizes the right of its citizens to profess and practice any religious belief. However, Cuba is not a party to the International Covenant on Civil and Political Rights or the American Convention on Human Rights. Therefore, those treaties are not legally binding upon Cuba. Nor is the Universal Declaration of Human Rights; as a resolution of the U.N. General Assembly it does not create legal obligations for any nation state.

The estimated religious makeup of the Cuban population is as follows:

Religious Group Number Percentage
Roman Catholic   8,000,000     69.57%
Protestants      600,000      5.22%
Jews          1,500      0.01%
Muslims          1,000      0.01%
Other   2,897,500    25.20%
TOTAL 11,500,000 100.00%

However, only an estimated 320,000 to 400,000 of the Roman Catholics regularly attend Mass, and an estimated 80% of the population has some interactions with Santaria, an African Yoruba religion with Catholicism accents.

State Department Reports

Under the authorizing statute, the State Department Under the authorizing statute, the Commission is required to designate as “countries of particular concern” (CPC) those that have engaged in or tolerated “particularly severe” violations of religious freedom. It has so designated eight countries. Cuba is not one of them.[6]

The most recent State Department reports on Cuba start with the statement that “in law and in practice, the [Cuban] government places restrictions on freedom of religion.” The balance of the reports, however, talk about the following positive aspects of this freedom in Cuba:

  • “Most religious groups reported improvements in religious freedom.”
  • They report “increased ability to cultivate new members, hold religious activities, and conduct charitable and community service projects.”
  • They report “fewer restrictions on politically sensitive expression, importation of religious materials, and travel.” Indeed, the majority of religious groups said there was “continued improvement in their ability to import religious materials, receive donations from overseas, and travel abroad to attend conferences and religious events,” and it was “easier to bring in foreign religious workers, access the Internet, and restore houses of worship.”
  • They also report greater ability “to obtain government permission to maintain and repair existing places of worship and other buildings.”
  • “There were no reports of societal abuses or discrimination based on religious affiliation, belief, or practice.”
  • The Cuban government and  the Roman Catholic Cardinal of Cuba held discussions that led to less government harassment of a group of female relatives of political prisoners (Damas de Blanco (Ladies in White)).
  • Although unrecognized religious groups are technically illegal, the government rarely interfered with them.
  • Although unregistered “house churches” are technically illegal, the vast majority of religious leaders reported that such churches operated without interference.
  • “There were no reports of persons imprisoned or detained for specifically religious reasons.”
  • “There were no reports of forced religious conversion.”
  • Although there is no legal provision for conscientious objections to military service, in practice the government allows alternative civilian public service.

The Cuban restrictions on religious freedom, according to these reports, in my opinion, are less significant and are qualified by the above recognized positive developments. It has been difficult to obtain permission to construct new church buildings. Some unrecognized churches reported government harassment. The process of obtaining permission for “house churches” was difficult. All religious groups are required to disclose certain financial information and affiliation with foreign organizations, and their records are subject to inspection. The government tightly regulates the publication of all printed materials, including religious materials.

Leaders of an association of nondenominational churches (Apostolic Reformation) reported harassment and detention, and one of the leaders, Pastor Omar Gude Perez, was convicted in 2009 of illicit electronic activity and falsification of documents. In early 2010 the conviction was affirmed.

U.S. Commission on International Religious Freedom

Under the authorizing statute, the Commission is required to designate as “countries of particular concern” (CPC) those that have engaged in or tolerated “particularly severe” violations of religious freedom. In its latest report 14 countries are so designated. Cuba is not one of them; the eight so designated by the State Department plus six others.[7]

But Cuba is one of 11 countries on the Commission’s “Watch List of countries where the serious violations of religious freedom engaged in or tolerated by the governments do not meet the CPC threshold, but require close monitoring.” According to the Commission, the “Watch List provides advance warning of negative trends that could develop into severe violations of religious freedom, thereby providing policymakers with the opportunity to engage early and increasing the likelihood of preventing or diminishing the violations.” (Cuba has been on this Watch List since 2004.)[8]

The Commission recognizes many of the same improvements in Cuban religious freedom as the State Department. The Commission also notes that Raul and Fidel Castro have taken steps to reach out to its small Jewish community with Raul celebrating Hanukkah in 2010 while Fidel criticized Iranian President Ahmadinejad’s denial of the Holocaust.

This report focuses on the Cuban government’s harassment of the Apostolic Reformation, including the conviction and imprisonment of one of its leaders, as was noted in the State Department’s report too. The Commission also discussed the charges made against an evangelical Cuban pastor.

The Commission mentions the Cuban government’s requirement for registration of churches and house churches and its “failure to give permission to build new houses of worship, repair or restore existing ones, or access construction materials; denial of access to state media; denial of exit visas for Cubans; state monopoly on printing presses for religious material; censorship of such materials; prohibition of private religious schools; limits on entry of foreign religious workers; denial of Internet access; denial of religious materials to prisoners; denial of permission to hold religious events outside their buildings; and unofficial exclusion of overtly religious propel from certain employment. (The State Department in contrast talks about many of these restrictions being relaxed.)

The Commission then recommends that the U.S. press the Cuban government to take 10 specific actions to improve religious freedom “prior to [the U.S.’] considering resuming full diplomatic relations” with Cuba. Other recommendations were: (i) U.S. funding of initiatives to advance Cuban religious freedom; (ii) increasing the number of U.S. visas for Cuban religious leaders; (iii) encouraging Radio Marti and Radio Marti to report on religious freedom issues;[9] (iv) eliminating U.S. barriers to Internet access by Cuban religious freedom and human rights activists; and (v) awarding U.S. funds to counter Cuban censorship.

Conclusion

The State Department’s more balanced reports on Cuban religious freedom, in my opinion, are better grounded in reality than the Commission’s. While I believe the U.S. should encourage and promote religious freedom around the world, including Cuba, the recommendations by the Commission are unjustified and counterproductive and evidence the same bias against Cuba that we see in other aspects of U.S. policy towards Cuba.[10]


[1]  U.S. Dep’t of State, 2010 Annual Report on International Religious Freedom (Nov. 17, 2010), http://www.state.gov/g/drl/rls/irf/2010/index.htm; U.S.Dep’t of State, July-December, 2010 Annual Report on International Religious Freedom (Sept. 13, 2011), http://www.state.gov/g/drl/rls/irf/2010_5/index.htm.

[2] U.S. Comm’n on Int’l Religious Freedom, Annual Report 2011 (May 2011), http://www.uscirf.gov/images/book%20with%20cover%20for%20web.pdf. The Commission, which was created by the International Religious Freedom Act of 1998 as an entity separate and distinct from the State Department, is an independent U.S. government body that monitors religious freedom worldwide and makes policy recommendations to the President, Secretary of State, and Congress.  On December 16, 2011, the Commission’s life was extended by Congress through 2018 after a series of brief extensions had kept it in existence after its previous authorization expired in September 2011. (Bauman, US religious freedom commission reauthorized at last minute, http://www.catholicnewsagency.com (Dec. 17, 2011).)

[3]  U.S. Const., First Amend.

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

[5] See Post: The Cuban Revolution and Religion (Dec. 30, 2011).

[6] The eight CPC countries are Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan and Ubekistan.

[7]  The other six CPC countries, according to the Commission are Egypt, Iraq, Nigeria, Pakistan, Turkmenistan and Vietnam.

[8]  The other 10 countries on the Commission’s Watch List are Afghanistan, Belarus, India, Indonesia, Laos,Russia, Somalia, Tajikistan, Turkey and Venezuela.

[9] Radio y Televisión Martí is a radio and television broadcaster based in Miami, Florida, financed by the U.S. government which transmits Spanish radio and television broadcasts to Cuba.

[10] See Post:The Ridiculous U.S. Designation of Cuba as a “State Sponsor of Terrorism” (May 20, 2011); Post: U.S. Repeats Its Designation of Cuba as a “State Sponsor of Terrorism” (Aug. 21, 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.

 

 

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

The U.S. State Department, pursuant to legislative authority, annually identifies countries that have “repeatedly provided support for acts of international terrorism” and designates them as “state sponsors of terrorism.”[1] The U.S. currently designates the following four countries as “state sponsors of terrorism:” Cuba, Iran, Sudan and Syria.[2] Note that Libya and North Korea, which were previously on the list, are no longer present; these are two stories for others to pursue.

The following is the complete text of the State Department’s rationale for its most recent designation of Cuba:[3]

  • “The Cuban government and official media publicly condemned acts of terrorism by al-Qa’ida and affiliates, while at the same time remaining critical of the U.S. approach to combating international terrorism. Although Cuba no longer supports armed struggle in Latin America and other parts of the world, the Government of Cuba continued to provide physical safe haven and ideological support to members of three terrorist organizations that are designated as Foreign Terrorist Organizations by the United States.”
  • “The Government of Cuba has long assisted members of the Revolutionary Armed Forces of Colombia (FARC), the National Liberation Army of Colombia (ELN), and Spain’s Basque Homeland and Freedom Organization (ETA), some having arrived in Cuba in connection with peace negotiations with the governments of Colombia and Spain. There was no evidence of direct financial support for terrorist organizations by Cuba in 2009, though it continued to provide safe haven to members of the FARC, ELN, and ETA, providing them with living, logistical, and medical support.”
  • “Cuba cooperated with the United States on a limited number of law enforcement matters. However, the Cuban government continued to permit U.S. fugitives to live legally in Cuba. These U.S. fugitives include convicted murderers as well as numerous hijackers. Cuba permitted one such fugitive, hijacker Luis Armando Peña Soltren, to voluntarily depart Cuba; Peña Soltren was arrested upon his arrival in the United States in October.”
  • “Cuba’s Immigration Department refurbished the passenger inspection area at Jose Marti International Airport and provided new software and biometric readers to its Border Guards.”[4]

One of the factual predicates for the designation of Cuba as a “state sponsor of terrorism” is true: FARC, ELN 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 three organizations? It has provided “physical safe haven and ideological support to [an unspecified number of their] members.” How many members? What were the particulars of the safe haven?  We are not told other than “living, logistical, and medical support.” And some of these members, the State Department concedes, were in Cuba to participate in peace negotiations with the governments of Columbia and Spain. Moreover, by the State Department’s own admission, there “was no evidence of direct financial support [by Cuba] for [these three] . . . organizations in 2009.”

Further qualifications to this basis for the designation were made in the State Department’s prior 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.”[5]

The other factual predicate for the most recent designation, I submit, is outright insufficient. Cuba, the State Department says, has continued to permit an unspecified number of U.S. fugitives (“convicted murderers and numerous hijackers”) to live legally in Cuba. Even if true, it is difficult to see how this is support of terrorism. Moreover, we are not told how many such fugitives there are and the circumstances of their cases. The State Department does not even call them “terrorists.” Again, the State Department’s prior annual antiterrorism report on Cuba provides details further undermining this charge.  It stated, “The Cuban government continued to permit some U.S. fugitives—including members of U.S. militant groups such as the Boricua Popular, or Macheteros, and the Black Liberation Army to live legally in Cuba. In keeping with its public declaration, the [Cuban] government has not provided safe haven to any new U.S. fugitives wanted for terrorism since 2006.”[6]

The balance of the State Department’s most recent “rationale” is, in fact, complimentary of Cuba. “”The Cuban government and official media publicly condemned acts of terrorism by al-Qa’ida and affiliates.” “Cuba no longer supports armed struggle in Latin America and        other parts of the world.” “Cuba cooperated with the United States on a limited number of law enforcement matters.” “Cuba’s Immigration Department refurbished the passenger inspection area at Jose Marti International Airport and provided new software and biometric readers to its Border Guards.” Another complimentary comment was made in the prior annual report:  there is “no evidence of terrorist-related money laundering or terrorist financing activities in Cuba.”[7]

The designation of Cuba as a “state sponsor of terrorism” has been reviewed by the Congressional Research Service, which said in 2006: Cuba was first designated a state sponsor of terrorism in 1982. Although it has ratified all 12      counterterrorism conventions, it has remained opposed  to the U.S. global war on terrorism. The CIA judged in August 2003 that ‘We have no credible evidence, however, that the Cuban     government has engaged in or directly supported international terrorist operations in the past decade, although our information is insufficient to say beyond a doubt that no collaboration has occurred.'”[8]

Some prior U.S. antiterrorism reports talked about Cuba’s alleged weapons of mass destruction program, but note that there is not any mention of such an alleged program in the most recent report. This canard was also rebutted by the Congressional Research Service: “The Administration’s assertions concerning Cuba’s WMD programs, which some observers dispute, focus on limited biological weapons research and development. Construction at the Juragua nuclear facility (two incomplete Russian nuclear power reactors) was indefinitely postponed in 1997.”[9]

The State Department’s best case for calling Cuba a “state sponsor of terrorism,” upon analysis, is ridiculous. The designation should be rescinded, and the U.S. and Cuba should get down to the real business of engaging in face-to-face, serious negotiations to resolve their many long-accumulated differences.


[1]  Countries determined by the Secretary of State to have repeatedly provided support for acts of international terrorism are designated pursuant to three laws: section 6(j) of the Export Administration Act, section 40 of the Arms Export Control Act, and section 620A of the Foreign Assistance Act. (U.S. State Dep’t, Country Reports on Terrorism 2009 (Aug. 5, 2010), http://www.state.gov/s/ct/rls/crt/2009/index.htm.) Such designation results in the following sanctions by the U.S.: (1) a ban on arms-related exports and sales; (2) controls over exports of dual-use items, requiring 30-day Congressional notification for goods or services that could significantly enhance the terrorist-list country’s military capability or ability to support terrorism; (3) prohibitions on economic assistance; and (4) imposition of miscellaneous financial and other restrictions.

[2]  Id.

[3]  Cuba is the oldest member of the list; it has been on this list since January 1, 1982. Id.

[4]  Id.

[5]  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.

6]  Id.

[7]  Id.

[8] CRS, Globalizing Cooperative Threat Reduction: A Survey of Options (Oct. 5, 2006), http://fpc.state.gov/documents/organization/74901.pdf. See also CRS, Cuba and the State Sponsors of Terrorism List (May 13, 2005), http://www.fas.org/sgp/crs/terror/RL32251.pdf.

[9]  Id.