Two recent developments implicitly have endorsed my strong suggestion for the U.S. to rescind its designation of Cuba as a “State Sponsor of Terrorism” and to seek reconciliation with Cuba.
Over the last week the President of Colombia, Juan Manuel Santos, has announced that this October his government will enter into new negotiations with the Revolutionary Armed Forces of Colombia (FARC) seeking to end their long civil war.
Santos said that holding such talks is well worth the risk of failure because an end to the conflict would not only would end bloodletting, but also bring a “peace dividend” of up to 2% additional economic growth a year to the country’s economy.
The initial negotiations will take place in Norway and then move to Havana, Cuba. The President said that support for such negotiations by Venezuela and Cuba has been crucial in helping the two sides to reach agreement on conducting the negotiations.
Cuba’s role in this positive development for Colombia and the whole western hemisphere shows the absurdity of the U.S. designation of Cuba as a “State Sponsor of Terrorism” on the ground, in part, that some members of the FARC have been living in Cuba.
Former President Carter Calls for Improved U.S.- Cuba Relations
On September 6th, former President Jimmy Carter said the next U.S. president should act forcefully to improve relations with Cuba. He also called for Cuba to be removed from the U.S. State Department’s list of state sponsors of terrorism.
On July 31, 2012, the U.S. Department of State issued its annual report on terrorism in the world: Country Reports on Terrorism 2011. 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 previous U.S. reports on terrorism for 1996, 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009 and 2010. Earlier posts analyzed and criticized the reports for 2009 and 2010.
Preliminarily I note that the latest report says that 480 of the 10,283 terrorist attacks in 2011 occurred in the Western Hemisphere and that “the vast majority of . . . [these] were ascribed to the Revolutionary Armed Forces of Colombia (FARC).” There is no mention of Cuba in this statistical summary.
Nor is there any mention of Cuba in the latest report’s “Strategic Assessment” that puts all of its discussion into a worldwide context. Instead this section of the report highlights the death of Osama bin Laden and other top leaders of al-Qa’ida as putting its “network on a path of decline that will be difficult to reverse.” Others specifically mentioned in this Assessment were Iran, terrorists groups in South-Asia, the Kurdistan Workers Party in Turkey, anarchists in Greece and Italy, dissident Republican groups in Northern Ireland and Anders Behring Breivik (the Norwegian right-wing extremist who killed 77 people last July).
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 Terrorist Organizations–Spain’s Basque Fatherland and Liberty (ETA) and the Revolutionary Armed Forces of Colombia (FARC)–and to certain fugitives from U.S. criminal proceedings. Here are direct quotations of the report on these points:
“Current and former members of . . . ETA continue to reside in Cuba. Three suspected ETA members were arrested in Venezuela and deported back to Cuba in September 2011 after sailing from Cuba. One of them, Jose Ignacio Echarte, is a fugitive from Spanish law and was also believed to have ties” to the FARC.
“Press reporting indicated that the Cuban government provided medical care and political assistance to the FARC.”
“The Cuban government continued to permit fugitives wanted in the United States to reside in Cuba and also provided support such as housing, food ration books, and medical care for these individuals.”
Before we examine some details about these charges, it must be said that the speciousness of this charge about ETA and FARC is shown by the latest U.S. terrorism report itself. It has a separate chapter on the legitimate international problem of terrorist safe havens as “ungoverned, under-governed, or ill-governed physical areas where terrorists are able to organize, plan, raise funds, communicate, recruit, train, transit, and operate in relative security because of inadequate governance capacity, political will, or both.” The report then identifies such havens in different parts of the world. For the Western Hemisphere, it discusses Colombia, Venezuela and the Tri-Border Area (where Argentina, Brazil and Paraguay come together). But there is no mention whatsoever of Cuba.
Earlier U.S. reports provide another reason for discounting these charges. They admit that “Cuba no longer supports armed struggle in Latin America and other parts of the world” (1996, 1997, 1998, 2008, 2009 reports) and that there was no evidence that Cuba had sponsored specific acts of terrorism (1996, 1997 reports). They also report 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 reports).
Let us now examine details about each of these specific assertions about alleged safe haven which have been made by the U.S. since at least 1996.
The weakness of the U.S. charge regarding ETA implicitly is admitted by the latest report itself when it states there “was no indication that the Cuban government provided weapons or paramilitary training for” ETA. Similar admissions were made in the U.S. reports for 2005 (“no information concerning terrorist activities of [ETA] on Cuban territory”); 2008 (“no evidence of . . . terrorist financing activities”); 2009 (“no evidence of direct financial support”); 2010 (“no evidence of direct financial or ongoing material support”).
In addition, the latest U.S. report adds that there is evidence”[suggesting ] that the Cuban government [in 2011] was trying to distance itself from ETA members living on the island by employing tactics such as not providing services including travel documents to some of them.”
Earlier U.S. reports also reflect the limited nature of this charge. There allegedly were only 20 ETA members living in Cuba (2001 report), some of whom may be there in connection with peace negotiations with Spain (2009 report). 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 report). In March 2010 Cuba “allowed Spanish Police to travel to Cuba to confirm the presence of suspected ETA members” (2010 report).
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.
Again the new U.S. report implicitly admits the weakness of its FARC allegations by the report’s stating there “was no indication that the Cuban government provided weapons or paramilitary training for” FARC. Similar admissions were made in the U.S. reports for 2005 (“no information concerning terrorist activities of [FARC] on Cuban territory”); 2008 (“no evidence of . . . terrorist financing activities”); 2009 (“no evidence of direct financial support”); 2010 (“no evidence of direct financial or ongoing material support”).
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 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.
3. 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 reports).
None of these fugitives apparently is affiliated with U.S.-designated 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.”
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” is new.
This other ground is Cuba’s having been identified by the Financial Action Task Force (FATF) as “having strategic AML/CFT [Anti-Money Laundering/Combating the Financing of Terrorism] deficiencies. 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.”
According to its website, 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.” Thus, 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. They form the basis for a co-ordinated response to these threats to the integrity of the financial system and help ensure a level playing field. First issued in 1990, the FATF Recommendations were revised in 1996, 2001 [additional measures regarding terrorist financing], 2003 and 2012 to ensure that they remain up to date and relevant, and they are intended to be of universal application.”
To this end, FATF promotes the global adoption and implementation of the FATF Recommendations.
In June 2012 FATF issued a Public Statement that identified Iran and the Democratic Republic of Korea [North Korea] as jurisdictions “subject to a FATF call on its members and other jurisdictions to apply counter-measures to protect the international financial system from the on-going and substantial money laundering and terrorist financing (ML/TF) risks emanating from [these] . . . jurisdictions.”
The June 2012 Statement also listed 18 other countries, including Cuba, as jurisdictions “with strategic AML/CFT deficiencies that 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. The FATF calls on its members to consider the risks arising from the deficiencies associated with each jurisdiction.”
The latest U.S. terrorism report made an important concession on this point by noting that in 2011 Cuba “did attend a [FATF] meeting on Money Laundering in South America meeting as a guest and prepared an informal document describing its anti-money laundering/counterterrorist financing system.” But this U.S. concession did not go far enough, for the June 2012 FATF Statement said, “Since February 2012 Cuba has officially engaged with the FATF and has also attended [the meetings of the relevant regional organizations] CFATF [Caribbean Financial Action Task Force] and GAFISUD [Financial Action Task Force on Money Laundering in Latin America] . . . . The FATF urges Cuba to continue its engagement with the FATF, and to work with the FATF to develop and agree on an action plan in order to implement an AML/CFT regime in line with international standards.”
I assume that the issues being addressed by the FATF are important ones for the international community and that its Recommendations are reasonable ones to address the real problems of money laundering and financing of terrorism. I also assume that the Cuban financial system is not as sophisticated as those in the U.S. and other international money centers and that it along with at least 17 other countries that are not “State Sponsors of Terrorism” is not in compliance with the FATF Recommendations.
But these facts, in my opinion, do not support designating Cuba as a “State Sponsor of Terrorism.” If it were, then the 17 other countries on the two FATF lists should be added to the U.S. list of “State Sponsors of Terrorism.” (Of the 20 countries on the two FATF lists, only Iran, Syria and Cuba are now U.S.-designated “State Sponsors.”)
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 reports). In addition, in its response to this latest 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.”
Not surprisingly the Cuban government comes to the same conclusion. It says “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, 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. As Cuba pointed out after this U.S. report was released, Cuba repeatedly has proposed that the two countries “agree upon a bilateral program to confront terrorism,” but the U.S. government has not responded.
More generally, 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.
 Cuba has been so designated since March 1982.The U.S. terrorism reports listed above 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.
All of the ICC’s initial six investigations come from Africa.
Uganda, Democratic Republic of Congo and Central African Republic. Three of the investigations arise from submissions to the Court by three of its African States Parties–Uganda, the Democratic Republic of the Congo and the Central African Republic. These ICC investigations have led to the issuance of 10 arrest warrants. One of the subjects from Uganda died of natural causes. Five of the subjects of these warrants remain at large. Three of the Congolese subjects (Lubanga, Katanga and Chui) are now on trial at the ICC, with the closing arguments in the ICC’s first trial (Lubanga) scheduled for this coming August. In addition, the trial of Jean-Pierre Bemba for actions in the Central African Republic started this past November.
Kenya. Another investigation relates to Kenya. On November 26, 2009, the Prosecutor on his own initiative asked the Pre-Trial Chamber for permission to open an investigation into post-election violence in Kenya in 2007-2008 as possible crimes against humanity. On March 31, 2010, that Chamber approved that application. A year later–March 8, 2011, the Pre-Trial Chamber authorized the issuance of summonses to six individuals.
Darfur (Sudan) and Libya. The last two investigations –Darfur (Sudan) and Libya– arise from submissions to the Court by the U.N. Security Council under Article 13(b) of the Rome Statute and Chapter VII of the U.N. Charter. (The latter gives the Council responsibility for the maintenance of “international peace and security.”)
In the Darfur (Sudan) situation, the Court has issued seven arrest warrants against six persons. One of the subjects (Bahr Idriss Abu Garda) appeared voluntarily at the Court and was in pre-trial proceedings, but on February 8, 2010, the Pre-Trial Chamber declined to confirm the charges against him, thus ending his case subject to reopening by the Prosecutor if there is additional evidence to support the charges. Two others (both Darfur rebel commanders) voluntarily surrendered themselves to the ICC, and in March 2011, the Pre-Trial Chamber confirmed the charges against them and committed them to trial. Three others remain at large, and one of them (Sudanese President Omar Hassan Ahmed Al Bashir) is the current head of state.
As the Security Council resolution on Darfur itself noted, the Council under Article 16 of the Rome Statute has the power to stop any “investigation or prosecution” by the ICC for a period of 12 months after the Council adopts a resolution to that effect under Chapter VII of the U.N. Charter and to renew such a resolution ad infinitum. Yet in the over five years after its referral of the Darfur situation to the Court, the Council has not chosen to exercise this power after being kept advised of developments by the Prosecutor’s personal biannual reports to the Council. This refusal to defer the prosecution of President Bashir is despite requests to do so from African and Arab states.
The last of the six ICC investigations relates to the current situation in Libya. On February 26, 2011, the U.N. Security Council adopted Resolution 1970 that, among other things, referred the Libyan situation since February 15, 2011, to the ICC’s Prosecutor, directed the Libyan authorities to cooperate fully with the Court and Prosecutor and invited the Prosecutor to make periodic reports about his actions in this matter to the Council. The resolution also stated that “nationals, current or former officials or personnel from a State outside [Libya], which is not a party to the Rome Statute . . . shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in [Libya] established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State.”
Two days later (February 28th) the Prosecutor stated that he had to decide whether to open an investigation regarding Libya and that he was collecting information to determine whether the necessary conditions for the Court’s jurisdiction were satisfied.  Another four days passed, and the Prosecutor on March 3rd announced that he was opening such an investigation.
On May 4th the Prosecutor will report to the Security Council on the status of his Libyan investigation, including a possible request to the Pre-Trial Chamber to issue arrest warrants against those who appear to bear the greatest responsibility for crimes in Libya.
Preliminary examinations. In addition to these six investigations, the Office of the Prosecutor has conducted or currently is conducting preliminary examinations or analyses of situations in a number of other countries to determine if requests to the Pre-Trial Chamber should be made to commence investigations. These countries include Afghanistan, Chad, Colombia, Cote d’Ivorie, Georgia, Guinea, (Gaza) Palestine, Honduras and Nigeria. With respect to Afghanistan, which is a State Party to the Rome Statute, the Prosecutor has said that his office was looking into accusations of war crimes and crimes against humanity by the Taliban and by the U.S. and its allies.
The Prosecutor also has declined to commence certain investigations that had been suggested by outsiders, and under Article 15(6) of the Statute the Prosecutor publicly has stated the reasons for these declinations. Two such instances are Iraq and Venezuela.
The ICC is well on the way to establishing itself as an important actor in the interactive global struggle against impunity for the worst violators of international human rights.
See AMICC, ICC Prosecutor Reports to the United Nations, http://www.amicc.org/icc_activities.html#unreports. These reports include discussions of the Prosecutor’s efforts (a) to determine whether Sudan has capable domestic institutions and procedures to handle the crimes in question and (b) to address whether the “interests of justice” call for continuation or termination of the investigations.