Open Letter to U.S. Congress About U.S. Freedom To Travel to Cuba

To: Senator Flake: As an U.S. and Minnesota citizen, I thank you for sponsoring legislation to grant U.S. citizens freedom to travel to Cuba (S.127 Freedom for Americans to Travel to Cuba Act). I also thank and copy my Minnesota Senators, Amy Klobuchar and Al Franken, for joining 52 other senators in co-sponsoring this bill.

To: Representative Mark Sanford: I thank you for sponsoring a similar bill in the House (H.R.351—Freedom to Travel to Cuba Act of 2017). I also thank and copy the three Minnesota representatives (Tom Emmer, Erik Paulsen and Rick Nolan) who have joined 21 other representatives in cosponsoring the bill. By copies of this open letter, I urge the other Minnesota representatives (Timothy Walz, Jason Lewis, Betty McCollum, Keith Ellison and Collin Peterson) to join the ranks of cosponsors.

Now is the time to push these bills forward for votes in the two chambers before the Trump Administration comes forward with proposed regulations to implement the President’s intention to eliminate individual person-to-person travel to the island. (A copy of this open letter is also being sent to President Trump.)

In addition to the arguments already advanced for supporting these bills, I submit that the new Trump policy is internally inconsistent for the following reasons:

  • The ban on individual person-to-person travel, by all accounts, will reduce the overall amount of U.S. travel to the island and thereby have substantial negative effects on Cuba’s emerging private sector, which has improved the living standards of many Cubans and is a force for change in Cuba and for friendlier relations with the U.S. Remember that President Trump favors measures to improve the lives of ordinary Cubans.
  • Forcing Americans who want to have a person-to-person experience in Cuba to do so only with established tour groups will mean “large tour groups [that] are too big for smaller bed-and-breakfast rentals, and their [Cuban] government-appointed guides tend to ply the well-trodden routes that bypass the new galleries, restaurants and night spots opened by enterprising Cubans and others.” This is a direct negative effect on Cubans’ standard of living, which President Trump does not want.
  • According to Andrea Gallina, an Italian entrepreneur who last year opened a high-end boutique hotel, Paseo 206, with his Cuban spouse, “If independent American travel is cut off, you won’t only hurt the bed-and-breakfasts. It’s also the construction crews, the private tour guides, the taxi drivers, the restaurants and the artists selling handicrafts.” Again, the Cubans now engaged in these private enterprises will be substantially disadvantaged.
  • The larger groups will by necessity have to stay in hotels, most of which are state-owned, rather than individually owned b&bs, and travel in tour buses (again, state-owned), rather than individually owned taxis. The large-group U.S. visitors also probably will be provided with government-provided guides rather than private guides used by people traveling by themselves or in small groups. All of these consequences are contrary to the President’s intent to stop or limit U.S. persons from doing business with enterprises owned or controlled by the Cuban military or security services.
  • The ban on individual person-to-person travel will increase the cost for Americans’ traveling to the island and thereby reduce the amount of such travel. As a result, the U.S. will lose the impact on Cubans of ordinary Americans, who often are the best ambassadors for the U.S., its government, people and values.

====================================================For more details, see This Blogger’s Reactions to Trump Reversal of Some U.S.-Cuba Normalization Policies (June 23, 2017).

Disagreement About the Positive Impacts of Immigration      

A disagreement about the positive impacts of immigration and diversity has emerged between Robert Putnam, the distinguished Peter and Isabel Malkin Professor of Public Policy at Harvard University, and Mark Krikorian, the Executive Director of the Center for Immigration Studies. [1]

The disagreement started with a Wall Street Journal article by Krikorian that was the subject of a prior post although that post did not emphasize one of the article’s points that has given rise to this disagreement. Krikorian argued that immigration will overwhelm American culture by stating the following:

  • “[H]igh levels of immigration actually exacerbate the bowling-alone tendencies in the wider society, overloading it with ethnic diversity than it cannot handle. It is not that diversity causes increased hostility between groups, as one might expect. Rather, it causes people to disappear into their shells like turtles.”

As support for this assertion, Krikorian cited Putnam’s article—E Pluribus Unum: Diversity and Community in the Twenty-first Century (The 2006 Johan Skytte Prize Lecture), Wiley Online Library (June 15, 2007).

In addition, Krikorian as additional support for his argument quoted the following from the Putnam article: “Inhabitants of diverse communities tend to withdraw from collective life, to distrust their neighbors, regardless of the color of their skin, to withdraw even from close friends, to expect the worst from their community and its leaders, to volunteer less, give less to charity and work on community projects less often, to register to vote less, to agitate for social reform more but to have less faith that they can actually make a difference, and to huddle unhappily in front of the television.”

Another quotation from Professor Putnam is also found in the Krikorian article: immigration has made Los Angeles into ‘”among the most ethnically diverse human habitations in history’ and had the lowest level of social trust among all the communities that his team studied.”

Professor Putnam, however, has taken exception to this use of his article,[2] which, he correctly says, provided “empirical evidence for [the following] three major points:

“1. Increased immigration and diversity are not only inevitable, but over the long run they are also desirable. Ethnic diversity is, on balance, an important social asset, as the history of the U.S. demonstrates.”

“2. In the short to medium run, however, immigration and ethnic diversity challenge social solidarity and inhibit social capital.”

“3. In the medium to long run, on the other hand, successful immigrant societies like the U.S. create new forms of social solidarity and dampen the negative effects of diversity by constructing new, more encompassing identities.”

According to Putnam, Krikorian “cherry-picks the middle point but entirely ignores the first and last because they are inconvenient for his policy recommendations. . . . In my 2007 article, I specifically warned against this danger: ‘It would be unfortunate if a politically correct progressivism were to deny the reality of the challenge to social solidarity posed by diversity. It would be equally unfortunate if an ahistorical and ethnocentric conservatism were to deny that addressing that challenge is both feasible and desirable.’ Mr. Krikorian’s tendentious use of my research illustrates precisely how our civic culture, which he claims to value, is being undermined in today’s public dialogue.”

Professor Putnam’s article also concludes with this statement: “One great achievement of human civilization is our ability to redraw more inclusive lines of social identity. The motto on the Great Seal of the United States (and on our dollar bill) and the title of this essay –e pluribus unum– reflects precisely that objective – namely to create a novel ‘one’ out of a diverse ‘many’.”

Conclusion

As an advocate for U.S. immigration, I naturally side with Professor Putnam on this debate. Several other thoughts come to mind. If God created human beings as clones, what a boring world this would be. The social world is always changing. As was said many years ago by the Greek philosopher Heraclitus, who was famous for his insistence on ever-present change as being the fundamental essence of the universe: “No man ever steps in the same river twice.” On the other hand, I also believe there is wisdom in skepticism of grand theories and in favoring incremental, as opposed to revolutionary, change.

==============================================

[1] Professor Putnam also is a member of the National Academy of Sciences and the British Academy; past president of the American Political Science Association; recipient of the Skytte Prize, the most prestigious global award in political science; and recipient of the National Humanities Medal, the nation’s highest honor for contributions to the humanities.

[2] Putnam, Letter to Wall Street Journal, W.S.J. (Mar. 31, 2017),

 

Trump and Rubio Share “Similar Views” on Cuba

At President Trump’s rambling press conference on February 16 he said that over dinner the previous night he and Senator Marco Rubio (Rep., FL) “had a very good discussion about Cuba because we have very similar views on Cuba.” Trump added that “Cuba has been very good to me, in the elections. . ., the Cuban people, Americans.” (Torres, Trump: Rubio and I have ‘very similar views on Cuba,’ Miami Herald Feb. 16, 2017).)

No details were provided on which views were similar, but Rubio’s opposition to former President Obama’s normalisation of U.S. relations with Cuba is well known, and during last year’s presidential campaign Trump voiced similar thoughts. (See posts listed in ¨ U.S. and Cuba in the Trump Administration, 2017¨section of List of Posts to dwkcommentaries.com–Topical: CUBA.)

As  an advocate of such normalization, this is disturbing, but unfortunately not surprising, news.

 

Ecuador Continues To Restrict Freedom of the Press

On June 14, 2013, Ecuador’s national legislature adopted the Organic Law on Communications with the following provisions that threaten freedom of the press:

  • Prohibition of “media lynching,” which is defined as “a concerted effort, coordinated by several media or carried out by just one, to destroy a person’s honor or prestige.”
  • Establishment of “everyone’s right that information of public interest received through the media should be verified, balanced, contextualized and opportune” without defining those terms.
  • Establishment of media’s responsibility to accept and promote obedience to the Constitution, the laws and the legitimate decisions of public authorities.
  • Creation of the office of Superintendent of Information and Communication with the power to regulate the news media, investigate possible violations and impose potentially large fines.
  • Creation of the Council for Media Regulation and Development headed by a representative of the President with the power to exact a public apology (and impose fines for repeat offenses) when media fail to accord someone the right to a correction or the right of reply.
  • Retention of the system of “cadenas,” or official messages which all over-the-air TV and radio stations have to broadcast that the President and the National Assembly speaker may use whenever they think it necessary and that other public office holders may use for five minutes per week.

Another provision on the surface may appear to be non-controversial: a requirement for allocation of broadcast frequencies (state, 34%; private, 33%; and community, 33%). Currently an estimated 60% are privately owned. Therefore, this requirement is seen as a means of the government’s closing privately owned media, presumably those critical of the government.

Other provisions of the new law are more benign. It prohibits any form of censorship by government officials or civil servants, guarantees the right of journalists to protect their sources and to maintain professional confidentiality.[1]

Ecuadorian legislators opposing the Communications Law
Ecuadorian legislators opposing the Communications Law

This new law was strenuously challenged by the Ecuadorian legislators opposing the law, who said it will allow the government to control media through loosely defined regulations. (To the right is a photo of the objecting legislators with signs and masks over their mouths.)

Over 50 Colombian newspapers published a joint editorial condemning the law. Some Ecuadorian newspapers     (Hoy and El Commercio) had similar criticisms. Human Rights Watch said the law “is yet another effort by President Correa to go after the independent media. The provisions for censorship and criminal prosecutions of journalists are clear attempts to silence criticism.” The law also was criticized by the Inter-American Press Association, Reporters Without Borders and the Committee To Protect Journalists.

The law was defended by its author who is a member of President Correa’s political party and who said it will “protect freedom of speech with a focus on everybody’s rights, not just for a group of privileged.” Another member of that party who is the president of the legislature predicted that the law would promote more balanced news coverage.

In his TV and radio speech to the country on June 15th President Correa said that law was a precedent that other Latin American countries would follow. Critics of the law, he said, were members of the “gallada” or club that opposes any regulation of the media.

This is not the first effort by Ecuadorian President Rafael Correa to restrict the media. Such prior attempts have been protested by the previously mentioned NGO’s, the U.S. Department of State in its annual human rights reports and the Inter-American Commission on Human Rights.

The Commission’s criticisms have caused Ecuador to launch a full-scale attack on the Commission that was not successful this last past March, but that Ecuador promises to keep pursuing.


[1] This summary of the new law is based upon articles in an Ecuadorian newspaper (Hoy), the New York Times and the Wall Street Journal and a commentary by Reporters Without Borders. As always, I invite others to provide comments to correct any errors of mine and to express other opinions about the new law.

 

 

 

Cuba Adopts Regulations Against Money Laundering and Terrorist Financing

As explained in a prior post, one of the purported bases for the recent U.S. re-designation of Cuba as a “State Sponsor of Terrorism” was its having “strategic anti-money laundering/combating the financing of terrorism deficiencies” in 2012.

The speciousness and unfairness of this charge was rebutted by the international agency in charge of such matters, the Financial Action Task Force (FATF), which has announced that last year Cuba had joined the Financial Action Task Force on Money Laundering in South America (GAFISUD)) and  that Cuba had “developed an action plan with the FATF” with “written high-level political commitment to address the identified deficiencies.”

This past week even this weak U.S. assertion should be thrown in the trash can where it belongs.

The reason?  Last week Cuba’s Central Bank apparently adopted regulations to detect money laundering, terrorist financing and illicit capital movements.

The regulations require Cuban and foreign banks to adopt measures to control financial transactions “to prevent them from being used or involved in operations with illegal proceeds , or to finance terrorism and weapons proliferation.”

These new regulations have not yet been posted to the official website of the Cuban Central Bank.

 

 

U.S.’ Absurd Designation of Cuba as a “State Sponsor of Terrorism”

On May 30, 2013, the U.S. Department of State issued its annual report on terrorism in the world: Country Reports on Terrorism 2012. A prior post reviewed the report as a whole

We now examine this report’s designation of Cuba as a “State Sponsor of Terrorism,” i.e., as a country that has “repeatedly provided support for acts of international terrorism.” This post’s analysis is also informed by the U.S.’s similar designation of Cuba in the annual reports on terrorism for 1996 through 2011.[1] Earlier posts analyzed and criticized the reports for 2009, 2010 and 2011.

State Department’s Rationale

The following is the complete asserted justification for the Department’s designation of Cuba for 2012:

  • “Cuba was designated as a State Sponsor of Terrorism in 1982. Reports in 2012 suggested that the Cuban government was trying to distance itself from Basque Fatherland and Liberty (ETA) members living on the island by employing tactics such as not providing services including travel documents to some of them. The Government of Cuba continued to provide safe haven to approximately two dozen ETA members.
  • In past years, some members of the Revolutionary Armed Forces of Colombia (FARC) were allowed safe haven in Cuba and safe passage through Cuba. In November, the Government of Cuba began hosting peace talks between the FARC and Government of Colombia.
  • There was no indication that the Cuban government provided weapons or paramilitary training to terrorist groups.
  • The Cuban government continued to harbor fugitives wanted in the United States. The Cuban government also provided support such as housing, food ration books, and medical care for these individuals.
  • The Financial Action Task Force (FATF) has identified Cuba as having strategic anti-money laundering/combating the financing of terrorism deficiencies. In 2012, Cuba became a member of the Financial Action Task Force of South America against Money Laundering, a FATF-style regional body. With this action, Cuba has committed to adopting and implementing the FATF Recommendations.”

Rebuttal of State Department’s Rationale

On its face this alleged justification proves the exact opposite: Cuba is not a state sponsor of terrorism.

Indeed, this and earlier U.S. reports admit that “Cuba no longer supports armed struggle in Latin America and other parts of the world” (1996, 1997, 1998, 2008, 2009), that there was no evidence that Cuba had sponsored specific acts of terrorism (1996, 1997) and that there “was no indication that the Cuban government provided weapons or paramilitary training to terrorist groups” (2011, 2012). Similar admissions were made in the U.S. reports for 2005, 2008, 2009 and 2010. Some also reported that in 2001(after 9/11) Cuba “signed all 12 UN counterterrorism conventions as well as the Ibero-American declaration on terrorism” (2001, 2002, 2003).

I also note that the latest report in its Western Hemisphere Overview says that in “2012, the majority of terrorist attacks within the . , . Hemisphere were committed by the . . . [FARC]. The threat of a transnational terrorist attack remained low for most countries in the Western Hemisphere.” There is no mention of Cuba in this overview.

Nor is there any mention of Cuba in the latest report’s “Strategic Assessment” that puts all of its discussion into a worldwide context.

All of this rebuttal so far is based only on what the State Department has said about this designation since 1996.

In addition, the Cuban government has taken the following actions that strengthen the rebuttal of the designation and that, to my knowledge, the U.S. has not disputed:

  • First, Cuba publicly has stated that Its “territory has never been and never will be utilized to harbor terrorists of any origin, nor for the organization, financing or perpetration of acts of terrorism against any country in the world, including the [U.S.]. . . .  The Cuban government unequivocally rejects and condemns any act of terrorism, anywhere, under any circumstances and whatever the alleged motivation might be.”
  • Second, in 2002, the government of Cuba proposed to the U.S. the adoption of a bilateral agreement to confront terrorism, an offer which it reiterated in 2012, without having received any response from the U.S.
  • Third, Cuban President Raul Castro on July 26, 2012 (the 59th anniversary of the Cuban Revolution) reiterated his country’s willingness to engage in negotiations with the U.S. as equals. He said no topic was off limits, including U.S. concerns about democracy, freedom of the press and human rights in Cuba so as long as the U.S. was prepared to hear Cuba’s own complaints. In response the U.S. repeated its prior position: before there could be meaningful talks, Cuba had to institute democratic reforms, respect human rights and release Alan Gross, an American detained in Cuba.

But let us go further.

1. Cuba As an Alleged Safe Haven for Terrorists 

The first stated basis for designating Cuba as a “State Sponsor of Terrorism” is its allegedly providing safe havens to individuals associated with two U.S.-designated Foreign Terrorist Organizations–ETA and the FARC–and to certain fugitives from U.S. criminal proceedings.

                a. ETA

There are only 20 to 24 ETA members in Cuba, and by now they must be older people who have not participated in any terrorist activities in Spain for many years. They are “side-line sitters.”

Moreover, the 2011 and 2012 reports state that Cuba is “trying to distance itself” from the ETA members on the island and is not providing certain services to them.

Earlier U.S. reports also reflect the limited nature of this charge. Of the 20 to 24 members, some may be there in connection with peace negotiations with Spain (2009). In May 2003, Cuba publicly asserted that the “presence of ETA members in Cuba arose from a request for assistance by Spain and Panama and that the issue is a bilateral matter between Cuba and Spain” (2003). In March 2010 Cuba “allowed Spanish Police to travel to Cuba to confirm the presence of suspected ETA members” (2010).

Moreover, in March 2011 the Spanish Ambassador to Cuba told former U.S. President Jimmy Carter that Spain was “not concerned about the presence of members of . . .  ETA . . . in Cuba.” Indeed, the Ambassador maintained that this enhances his country’s ability to deal more effectively with ETA.  In fact, the Ambassador added, some ETA members are there at the request of the Spanish government.

The last two U.S. reports say that Cuba is providing “safe haven” to the ETA members, but their separate chapters on the legitimate international problem of terrorist safe havens have  no mention whatsoever of Cuba.

                b. FARC

Most of the reasons for the speciousness of the charges regarding ETA also apply to the charges regarding the Colombian group, FARC.

In addition, the 2008 report said in July of that year “former Cuban President Fidel Castro called on the FARC to release the hostages they were holding without preconditions. He has also condemned the FARC’s mistreatment of captives and of their abduction of civilian politicians who had no role in the armed conflict.”

There is no indication in the State Department’s reports of the number of FARC members allegedly in Cuba, but some may be there in connection with peace negotiations with Colombia (2009 report).

Moreover, in March 2011 the Colombian Ambassador to Cuba told former U.S. President Jimmy Carter that Colombia was “not concerned about the presence of members of FARC . . . in Cuba.” Indeed, the Ambassador maintained that this enhances their ability to deal more effectively with FARC.

The Cuban connection for Colombia and the FARC resulted in a September 2012 statement by Cuba’s Ministry of Foreign Relations about the then recently-announced peace talks between Colombia’s government and the FARC. It stated that Cuba “has a historical commitment to peace in Colombia and efforts to put an end to [her] . . . political, social and military conflicts.” To that end, the Cuban Government “has made constructive efforts to . . . search for a negotiated solution, always responding to a request from the parties involved and without the slightest influence in their respective positions.” The statement continued. For over a year, at the express request of the Government of Colombia and the FARC, “the Cuban government supported the . . . exploratory talks leading to a peace process,” and as a “guarantor” Cuba participated in these talks. “The Cuban government will continue to . . . [provide its] good offices in favor of this effort, to the extent that the Government of Colombia and the FARC . . . so request.”

As a result, as the latest State Department report admits, in November 2012 Cuba has been hosting peace negotiations in Havana between the Colombian government and the FARC seeking to end their long civil war. Colombia’s president said that support for such negotiations by Cuba and Venezuela has been crucial in helping the two sides to reach agreement on conducting the negotiations.

Late last month (May 2013), the two sides announced an agreement to distribute land to small farmers and undertake development projects that would improve rural education and infrastructure that will not take effect until a final peace agreement is reached.

                c. U.S. fugitives

There apparently were or 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, but pursuant to a 2005 Cuban government statement, no additional U.S. fugitives have been permitted on the island. In a few instances Cuba has extradited such fugitives to the U.S. (2001, 2003, 2004, 2005, 2006, 2007, 2008, 2009).

One of the U.S. fugitives, William Potts, recently has asked to return and face trial in the U.S. In 1984, he  hijacked a Piedmont Airlines passenger plane with 56 people aboard in the U.S. and forced it to go to Cuba. There as a Black Panther and self-styled revolutionary, he dreamed of receiving military training in Cuba that he could use against the U.S. government. This did not happen. Instead he was tried and convicted in Cuba and served a  13.5 years in a Cuban prison plus 1.5 years of supervised release for the hijacking.

None of these fugitives apparently is affiliated with U.S.-designated foreign terrorist organizations. The issue of whether or not they will be extradited to the U.S. is an appropriate issue for bilateral negotiations between the two countries. But, in my opinion, it is not a legitimate basis for designating Cuba as a “State Sponsor of Terrorism.”

2. Cuba’s Alleged Financial System Deficiencies

The other asserted ground in the latest U.S. report for the designation of Cuba as a “State Sponsor of Terrorism” was new for 2011 and is reiterated (in modified form) for 2012. It is Cuba’s having been identified by the Financial Action Task Force (FATF) [2] as “having strategic AML/CFT [Anti-Money Laundering/Combating the Financing of Terrorism] deficiencies.”

Last year’s U.S. criticism of Cuba on this issue went on to say, “Despite sustained and consistent overtures, Cuba has refused to substantively engage directly with the FATF.  It has not committed to FATF standards and it is not a member of a FATF-style regional body.”

In 2012, however, Cuba joined such a regional body (the Financial Action Task Force on Money Laundering in South America (GAFISUD)), and  FATF recently said Cuba has “developed an action plan with the FATF” with “written high-level political commitment to address the identified deficiencies.”

The State Department’s recent report comes close to admitting this significant change in 2012. In short, the U.S. admits that Cuba is addressing its alleged financial system deficiencies.

Moreover, as of February 2013, Cuba is not on the FATF’s list of “bad guys” (my phrase).  The two at the bottom of that list are Iran and North Korea (Democratic People’s Republic of Korea), for which FATF calls for all states to apply counter-measures. The other 13 on this list are ones that have strategic AML/CFT deficiencies, but have not made sufficient progress in addressing the deficiencies or have not committed to an action plan developed with the FATF to address the deficiencies: Ecuador, Ethiopia, Indonesia, Kenya, Myanmar, Nigeria, Pakistan, Sao Tome and Principe, Syria, Tanzania, Turkey, Vietnam and Yemen.

But all of these facts about Cuba’s financial system, in my opinion, do not support designating Cuba as a “State Sponsor of Terrorism.” If it were, then 13 countries on the “bad guy” list should be added to the U.S. list of “State Sponsors of Terrorism.” (Of the 15 countries on the “bad guy” list, only Iran and Syria are now U.S.-designated “State Sponsors of Terrorism.”)

Moreover, as noted above, the U.S. terrorism reports have indicated there was no evidence of Cuban financing of terrorism in the covered years. In addition, some of the reports reference Cuban laws permitting the tracking, blocking, or seizing terrorist assets (Cuba’s Law 93 Against Acts of Terrorism and Instruction 19 of the Superintendent of the Cuban Central Bank) (2005, 2006, 2007, 2008). In addition, in its response to last year’s U.S. report, Cuba has asserted that it “regularly provides precise, truthful information to the appropriate United Nations bodies charged with addressing these issues and others related to confronting terrorism.”

The whole FATF issue raised in the U.S. terrorism report, in my opinion, is a “red herring.”

Conclusion 

In summary, the U.S. designation of Cuba as a “State Sponsor of Terrorism” is absurd. This conclusion is shared, in less colorful language, at least by the U.S. Central Intelligence Agency, the U.S. Council on Foreign Relations, the Center for Democracy in the Americas, the Center for International Policy, the Latin American Working Group, former President Jimmy CarterThe Atlantic magazine’s  noted national correspondent (Jeffrey Goldberg) and a retired U.S. Army Brigadier General (John Adams).

Not surprisingly the Cuban government comes to the same conclusion. It said last year, “the only reason Cuba is kept on this list is exposed as an attempt to justify the U.S. blockade of our country, as well as the adoption of new measures to limit our financial and commercial transactions, to strangle the Cuban economy and impose a regime which responds to U.S. interests.”

Whatever legitimate issues are raised by these U.S. reports, I submit, they are appropriate subjects, among many, for the bilateral negotiations that a prior post recommended should occur between the U.S. and Cuba to the end of reconciliation and restoration of normal relations.


[1] Cuba has been so designated since March 1982.The U.S. terrorism reports for 1996 through 2012 are those that are accessible on the U.S. State Department’s website. I would appreciate detailed comments from anyone with knowledge about the reports for 1982-1995 although they are less relevant due to the passage of time.

[2] FATF “is an inter-governmental body established in 1989 by the Ministers of its Member jurisdictions. [Its] . . . objectives . . .  are to set standards and promote effective implementation of legal, regulatory and operational measures for combating money laundering, terrorist financing and other related threats to the integrity of the international financial system. The FATF is therefore a ‘policy-making body’ which works to generate the necessary political will to bring about national legislative and regulatory reforms in these areas.” In other words, it apparently is a voluntary international organization, not one established by a multilateral treaty. FATF currently has 34 member jurisdictions (or only about 18% of the U.N. member states) plus 2 regional organizations (the European Council and the Gulf Co-Operation Council) representing most major financial centers in all parts of the globe. Starting in 1990,”FATF has developed a series of Recommendations that [it claims] are now recognised as the international standard for combating of money laundering and the financing of terrorism and proliferation of weapons of mass destruction.”

International Criminal Court: The U.S. and the ICC

International Criminal Court
International Criminal Court

We just reviewed the status of the investigative situations and cases of the International Criminal Court (ICC) and other ICC developments. Now we look at developments in U.S.-ICC relations.[1]

U.N. Security Council. On October 17, 2012, the U.N. Security Council had a general discussion on the promotion and strengthening of the rule of law in the maintenance of international peace and security with emphasis on the role of the ICC.

Susan Rice
Susan Rice

U.S. Ambassador to the U.N., Susan Rice, said at that meeting that “strengthening the global system of accountability for the worst atrocities remains an important priority for the [U.S.]. President Obama has emphasized that preventing mass atrocities and genocide is a core national security interest and core moral responsibility for our nation. We are committed to bringing pressure to bear against perpetrators of atrocities, ensuring accountability for crimes committed, and prioritizing the rule of law and transitional justice in our efforts to respond to conflict.”

Rice added that the U.S. “recognize[s] that the ICC can be an important tool for accountability. We have actively engaged with the ICC Prosecutor and Registrar to consider how we can support specific prosecutions already underway, and we’ve responded positively to informal requests for assistance. We will continue working with the ICC to identify practical ways to cooperate – particularly in areas such as information sharing and witness protection – on a case-by-case basis, as consistent with U.S. policy and law.”

Another important point for Rice was the need “to improve cooperation and communication between the Security Council and the Court. For example, the Council should monitor the developments in situations it refers to the Court, since the ICC may face dangers in conducting its work. However, we must also recognize that the ICC is an independent organization. This status raises concerns about proposals to cover its expenses with UN-assessed funding.” In addition, she said, the “interests of peace, security and international criminal justice are best served when the Security Council and the ICC operate within their own realms but work in ways that are mutually reinforcing. We should not accept the false choice between the interests of justice and the interests of peace.”

Assembly of States Parties. The U.S. continues to participate as an observer at meetings of the Court’s governing body, the Assembly of States Parties. At its November 2012 meeting, for example, major speeches were made by U.S. Ambassador-at-Large Stephen J. Rapp of the Department of State’s Office of Global Criminal Justice and Harold Koh, who then was U.S. Department of State Legal Advisor.

Stephen Rapp
Stephen Rapp

 

Ambassador Rapp said the U.S. had “worked diligently to promote an end to impunity” and had been “supporting the work of the ICC in each of its current cases.” He then outlined the following priorities for the Court and its supporters:

  • “First, it is essential that the fugitives who currently remain at large in the ICC’s cases are apprehended . . . and that the witnesses who testify and the victims who wish to participate in the proceedings are assured of their safety.” The U.S. uses “an array of tools to advance the causes of apprehension and witness protection.”
  • Second, “it is crucial that members of the international community continue to reinforce the legal norms and prohibitions that lead to the creation of institutions such as the ICC.” One example is the U.S. establishment of the Atrocities Prevention Board that was discussed in a prior post.
  • Third, “we must continue to strive to improve our system of international justice. . . . [The ICC needs] to build a solid jurisprudence, navigate challenges that arise in international cooperation, and establish legitimacy . . . as a fair and efficient criminal justice institution that makes prudent decisions in the cases it pursues, and those it declines to pursue.”
  • Fourth, “we all must continue to recognize that the ICC cannot and must not operate alone. States retain primacy, both legal and moral, in ensuring justice for grave crimes. Justice closer to the victims is always preferable, in a system that can account for local laws and custom, in a familiar language, and in an accessible setting. Even where the ICC does operate, tremendous work will remain to be done at the national level. . . . [The U.S.] looks forward to continuing to collaborate in promoting this crucial work.”[2]
Harold Koh
Harold Koh

Legal Advisor Koh said the Court was “an important forum” for advancing U.S. national security and humanitarian interests. It “can help increase stability and thus decrease the need for more costly military interventions in the future.”

Koh reviewed the five stages of the historical development of international criminal justice: (1) International Criminal Justice 1.0: The Nuremberg Trials that worked to establish the principles of legitimacy, professionalism, cooperation, and legality; (2) International Criminal Justice 2.0: The Ad Hoc Tribunals; (3) International Criminal Justice 3.0: The Hybrid Tribunals; (4) International Criminal Justice 4.0: The ICC; and (5) International Criminal Justice 5.0: The Future.

After reviewing the history of U.S. relations with the ICC, Koh discussed four important issues for the Court’s future. First, it needs to continue to develop the practice of positive complementarity so that the ICC is the court of last resort with fewer cases. Second, the ICC established important precedents with its first conviction (Lubanga of the DRC) and establishment of procedures and principles for reparations for victims in that case. Third, the ICC must build up its resources and capacities; it must function in a fair and transparent manner with able and unbiased prosecutors and judges; national judicial systems must be bolstered to reduce the ICC’s burdens; it must improve cooperation with states and enhance the efficiency and effectiveness of its prosecutions; and it should be cautious about moving forward with the amendment on the crime of aggression that was adopted at the Kampala Review Conference.

Koh concluded with more general comments about the future. He said the challenge is “to build the accountability agenda of the past seventy years into a sustained ‘Smart Power Approach’  to international criminal justice that sees accountability as part of a broader approach to diplomacy, development, rule of law, and atrocities prevention.”

New U.S. Statute To Assist ICC. On January 15th, President Obama signed The Department of State Rewards Program Update and Technical Corrections Act of 2012 (S.2318). The President said the new law “will enhance the ability of the U.S. Government to offer monetary rewards for information that leads to the arrest or conviction of foreign nationals accused by international criminal tribunals of atrocity-related crimes, and of individuals involved in transnational organized crime.” The President added, “This powerful new tool can be used to help bring to justice perpetrators of the worst crimes known to human kind. . . . We have made unmistakably clear that the United States is committed to seeing war criminals and other perpetrators of atrocities held accountable for their crimes, and today’s legislation can help us achieve that goal.

The new law declares “the sense of Congress that the rewards program of the Department of State should be expanded in order to … target other individuals indicted by international, hybrid or mixed tribunals for genocide, war crimes, or crimes against humanity.” It then goes on to authorize the State Department to pay rewards for “the transfer to or conviction by an international criminal tribunal … of any foreign national accused of war crimes, crimes against humanity, or genocide, as defined under the statute of such tribunal.”

Two provisions of the law show a continuing wariness about the ICC. One requires that 15 days before announcing a reward for the arrest of a particular foreign national accused of those crimes, the State Department must submit a report to Congress explaining why the arrest would be in the national security interest of the United States. The other declares that the law does not authorized activities precluded under the American Servicemembers’ Protection Act.

On April 3rd this new law was used when the U.S. offered to pay up to $5 million for information leading to the arrest, transfer or conviction of four ICC fugitives: Joseph Kony, Dominic Ongwen and Okot Odhiambo of the Lord’s Resistance Army in Uganda and Sylvestre Mudacumura of the Democratic Republic of the Congo. The names will be broadcast on radio and appear on reward posters printed in the languages of the fugitives’ countries, he said. “The offer of rewards for I.C.C. fugitives will be the biggest step we’ve taken toward engagement and support” for the court, Ambassador Rapp said.


[1] The website of the American Non-Governmental Coalition for the International Criminal Court (AMICC) has additional details about U.S. relations with the ICC, Congress and the ICC, U.S. law regarding the ICC, analysis and opinion about the U.S. and the ICC.

[2]  As a prior post reported, Ambassador Rapp also addressed the Assembly on the subject of complementarity.