United States Narration Supersede Equality of Nations assured under UN Charter- The Cuban Experience
The art of narration selection, building on the favoured perspective and creating acceptance happens not just in the media, the UN platform but also within institutions supposed to deliver justice, this is clearly seen in many instances in the United States. At times, it is the sound of silence from the US court that deafens humanity, as in the case of the US President proudly claiming he has bombed fishermen boats, and his administration even opting for double strike in case some soul had been left alive to bear witness to the incident. Not one official or those from judiciary has asked about legality of extrajudicial killing or how did the US President or any of the official determine that fishing boat contained drugs, when the only option for detection was from the skies above, miles aways from the boat. Besides it is common knowledge that physical examination along with chemical testing is necessary to determine the chemical composition of the substance suspected to be drugs.
All the illegal options within US
governance have been made possible through narration building within domestic
and international media. When tailor made narrative manipulated for political
advantage is presented as truth from the centre of power, oval office of the
President, public are blindsided to absence of logic and relevant source for
data verification. These narrations are then segmented and used by US
Ambassadors to influence policy decision at UN Platform or the court within the
United States or abroad.
Here I am taking an example of an
event that happened thirty years ago in Cuba, to illustrate how narration has
been used to build a case, to direct its presentation and integration by
concerned audience, to define its legal framing, creating a stimulus for
international policy adaption and creating a foundation for further isolation
of the target, the accused or victim country, here Cuba.
I. The event in Past and its
current link
The specific focus is on the
events that happened on 24th February 1996, that led to the downing
of two aircrafts belonging to a humanitarian agency, Brothers to the Rescue
(BTTR). The main focus of BTTR was to save rafters who left Cuba to illegally enter
the USA, and got caught in difficult situations including dying because of
dehydration, during the journey. The agency was founded by Jose Basulto in
1991, he is a Cuban whose focus was to overthrow the communist government in
Cuba [1,2]. He made this clear to both the US government and the Cuban
government. The transgression into sovereign space of Cuba is clear from the data,
it is also possible to infer that the US government encouraged the work of BTTR
beyond that of saving rafters fleeing Cuba [3].
International relationships
between Cuba and the United States took an interesting turn after communist
government came to power in Cuba. The US government along with elite right-wing
Cubans have been shouting foul since the 1959 and yet Communist government
continues to exist and Cubans continue to reside there. During the 1990s when
Cuba lost support of the Soviet Union and given trade restrictions through
sanctions, the situation became difficult for many Cubans and there was large
migration from Cuba to different states in the region, including the US which
has a significant Cuban population in Miami, Florida.
A strange delusion exists within
US governance system, it has been there for decades, the belief that as the
most powerful country the US can dictate which kind of governance can be opted
for within other sovereign nations especially those in the region and this has
been subtly carried out through Organisation of American States. A clear indication of the same is seen in the
functioning of OAS, which considers it is a fundamental requirement that
governance in the region should move towards unitary democracy, and that is
crucial for peace in the region. This selection of one type of political
ideology over others, is done subtly and blatantly forgetting it is a
transgression into the sovereign rights of another country and its citizens.
Initially the downing of two
aircraft was seen as part of human rights violation, Right to life among
others. As a result, an assessment was sought from Inter-American Commission on
Human Rights regarding admissibility of the case [4], IACHR is part of
Organization of American States (OAS). It is relevant to note that Organization
of American States of which the United States is part off, is funded by the US
and is the largest funder, providing more than 49 percent of funds. As an organ
of OAS, Inter-American Commission on human rights is also largely funded by the
US [5]
The report by Inter-American
Commission on Human Rights used the perspective of a) Right to life as given in
Article 1 and b) Right to fair trial as given Article XVIII of American
Declaration of the Rights and Duties of Man. It should be remembered that the
United States never ratified American Convention on Human Rights the legally
binding treaty and thus is not subject to the jurisdiction of the
Inter-American Court of Human Rights. The US through the humanitarian agency
Brothers to the Rescue and OAS is trying Cuba based on a legislation that the
US refused to ratify giving sovereignty concerns.
It is the American Convention on
Human Rights that confers Inter American Commission on Human Rights as competent
to hear issues regarding the compliance to agreement undertaken by States [6].
Besides, Cuba is not part of American Convention on Human Rights [ibid] and
Cuba though the founding member of OAS, was excluded from participation in
inter-American system forum since 1962 [7], as a punishment for opting for
Communist Government and not a Unitary Democracy as per the guidelines for
governance in the region by the United States.
The incident of downing of
aircraft near Cuba is brought up as a legal issue under American Convention on
Human Rights by the United States which is not bound by the Convention and case
is filed against Cuba which also cannot held legally accountable and yet the
issue and the verdict of the Inter American Commission on Human Rights and
later deliberation by UNSC was upheld by the UN. The obvious international
support from the beginning and local mobilisation by right wing Cubans led to
enforcement of Helms-Burton Act of 1996, President Clinton’s measure that
ensured strict sanctions were passed into law and thereby tying the hands of
future US Presidents [8,9].
It is interesting to note that
another angle taken by the report of Inter-American Commission on Humans Rights
is that there is case under Torture Victim Protection Act, which allows
individuals to file civil law suit in US Federal Court against individuals. who
acting under actual or apparent authority of any foreign nation, committed acts
of torture or extrajudicial killing. Here the downing of airplanes was
considered to be extrajudicial killing [10]. This provision under law has been
used against many foreign leaders by the US. Interestingly there is no option
of similar nature to hold US officials accountable, besides all US Presidential
Executive Order has a rider no US official will be held legally accountable to
events that occur as part of performing his/her duty or work.
It is based on the report of
Inter-American Commission on Human Rights, the Civil Aviation Organization
Release reports and details provided by Brothers to the Rescue and others that
the US Ambassador to UN, Madeleine Albright spoke on this issue and asked for
immediate action against Cuba.
The position taken by the
Ambassador was similar to that of OAS and Inter-American Commission on Human
Rights, which is that Right to life was taken away and that the Cuban military
knowingly and wilfully and in broad day light shot down two aircraft and killed
four individuals, three US citizens and one US resident. She said the US
victims were murdered by the Cuban government and that no attempts were made to
forcefully land the BTTR aircrafts and no warning shots were fired. She claimed
the aircrafts were in international airspace when the shots were fired [11].
I. a. President Trump Administration’s approach to
the issue
The incident was already
assessed and action taken both by UNSC and by the US government through US
Presidential Executive which destroyed the economy of Cuba. The fact that many
sanctions continue and US President has ensured the total destruction of Cuban
economy by attacking its source for oil, specifically Venezuela. All these
measures have been taken to pressurise Cuba to ignore its sovereign rights and
give into American demands. The present superseding indictment is also a move
to assert the democratic rights of Cubans would be shaped in manner that is
pleasing to the US and President Trump’s administration.
Given the fact that the earlier
legal case did not lead to total surrender of Cuban government, now President
Trump wants to have a different take on the incident of downing of aircrafts by
Cuban military. Besides, the case under
TVPA can only be acted upon with 10 years after the incident. Now, the US
administration, DOJ, has moved forward with a case against Raul Modesto Castro
Ruz and five others, Raul Castro is the brother of late Fidel Castro and was
the defence minister at that time. The Superseding Indictment against Raul
Castro and others focus on the
(1) aircraft destruction via:
a) Punishment for the destruction US
registered aircrafts under 18 US Code §2332 (b) (2); Section 2332b is
intended to reach violent international terrorist activity that takes place
within the US where at least a part of that activity also occurs outside the
US. The violent activity can be targeted against persons of property within the
US . This has been used against many international terrorists, as in case of
involvement in September 11, 2001, attacks and 1998 US embassy bombing. As per this code, whoever kills a US national
while such national is outside the US, shall if killing is murder as defined
under section 1111 (a), be fined under this title, punished by death or
imprisonment for any term of years or life or both [12]. There is separate
punishment in case it is voluntary manslaughter or involuntary manslaughter.
b) Under 18 US Code §
32 (a) (1) makes it a federal crime to wilfully destroy, damage or disable an
aircraft in the special aircraft jurisdiction of the US or any civil aircraft
used, operated, or employed in interstate, overseas or foreign air commerce [13]
c) Under 18 US Code §
34 is a federal criminal statute that establishes the penalty for committing
wilful destruction or sabotage against aircraft, motor vehicles, or related
transportation facilities – if that sabotage results in the death of any person
[14,15]
d) Under 49 US Code §
46501 (2) defines the “special aircraft jurisdiction of the United States’.
This legal framework establishes US federal authority and enables US courts to
prosecute crimes (like hijacking or air piracy) committed abroad specific
aircraft, even if they occur in international airspace [16]. The special
aircraft jurisdiction of the United States includes any of the following
aircraft in flight (“aircraft in flight” means an aircraft form the moment all
external doors are closed following boarding- a) through the moment when one
external door is opened… b) until, if a forced landing competent authorities
take over…
2. Killing of BTTR flyers using heat missiles by
Cuban military
a) Under 18 US Code §
1111 (2) (1), first degree murder is defined as any unlawful killing of a human
being with malice, afterthought that is wilful, deliberate, malicious and
premeditated. Every murder perpetrated by poison, lying in wait, or any other
kind of wilful, deliberate, malicious and premeditated killing… [17]
b) Under 18 US Code §
(2), concept of Principals in federal law is established. It ensures that
anyone involved in a federal crime against the United States or aids, abets,
counsels, commands, induces or procures its commission is punishable as
principal. Whoever wilfully causes an act to be done which if directly
performed by him or another would be an offence against the United States, is
punishable as a principal [18].
II. Issues of Concern with
regard to earlier legal action against Cuba and downing of aircrafts
1. The report of Inter-American
commission on Human Rights is cited Right to life, as an “absolute right” with
no exception. But that is not the case, there are exceptions. According
European Commission on Human Rights, Article 2- Protects your right to life.
But there are instances where restrictions to the right to life can exist.
Article 2 is often referred to as an “absolute right”. These are rights that
can never be interfered with by the state. There are situations when exceptions
do apply.
For example, a person’s right to
life is not breached if they die when a public authority (such as the police)
uses necessary force to; stop them carrying out unlawful violence, to stop
rioting or uprising. According to International Convention on Civil and
Political Rights (ICCPR) only intentional taking of life death penalty,
self-defence or quelling a riot.
Here the entire document has not
stated that BTTR may be a humanitarian organisation for the US but for Cuba Government
it as a paramilitary terrorist organisation, and had been found to be involved
in terrorist activities. It included
destruction of government property and illegal entry into the country.
2. IACHR and US Ambassador and
the UN claims that the air crafts were shot down in international airspace and
they base their conclusion on IACO report [19,20]. As per IACO report the data provided by the US
and Cuba could not be used as they were different, and could not be reconciled.
IACO then depended on inferred data based on information provided by different
witnesses in the area, and the data received from their instruments used where
not continuous and accurate, so cross verification and assumption were used to
arrive at a conclusion, ignoring the presence of raw data.
3. The report does not focus on
the intention aspect of the event be it with regard to the aircraft or the
agency for whom the flyers were carrying out their duty. As per Aviation
Criminal law the intent of the person and intent regarding the vehicle
(aircraft) is considered relevant. Under 18 US Code 2332 (C) Other – whoever
outside the United States engages in physical violence – (1) with intent to
cause serious bodily injury to a national of the United States; or (2) with the
result that seriously bodily injury is caused to a national of the United
Staes, shall be fined under this title or imprisoned not more than ten year or
both [21].
The IACHR always presented the perspective of
the US, it did not indicate that Cuba has classified BTTR as a terrorist
organisation, this based on the presentation of Cuban Foreign Minister at UN
discussion and hence the agency aircraft tries to enter Cuban territorial
space, it is seen as a terrorist agency entering Cuba. There have been many
instance when BTTR aircraft entered Cuban airspace specifically to mobilize Cubans against the Cuban government.
It is very interesting that a country the US that can classify any one as a
terrorist and sanction anyone including staff at UN agency for doing their job
has the audacity to justify all acts of BTTR against a sovereign nation and
state full support of BTTR and its goals, which includes overthrowing a foreign
government. In this case and with regard to superseding indictment against Raul
Castro the intention is the same to disempower Cuban Government and hamper its
capacity to run the country and strong move towards it was the Helm’s Burton
Act.
Isn’t there another side to this
perspective which Cuban Foreign Minister tried to highlight for a more
objective and asked for just discussion on the issue but he did not get the
support for the same. For example, a paramilitary terrorist group BTTR that has
carried out terror acts on different occasion by illegal entry into Cuban
territory as a matter of taunting the government. The founder of BTTR has made
it clear on many occasion he considers it is his right to do so, at no point
has the US government set boundaries for the agencies on what it can carry out
within a foreign sovereign nation. The US government can be inferred to have
encouraged the functioning of the agency [22].
Does the silent acceptance of
this by international community mean that UN member states have to seek
permission from US President to decide on the governance system within their
own country?
4) US Ambassador insists that the
flights informed Cuba, this was done through reporting their schedule to
Florida and Havana. But, the report by IACHR indicate that BTTR did report
their flight schedule for morning to Miami and Havana. Later in the report it
is indicated that morning flight did not happen and the BTTR personnel decided
to fly in the afternoon after lunch. They did fly from Florida to Cuba at 1.21 pm,
that’s when the second flight left. During that time the flight schedule was
reported only to Miami, when the flyers were reminded, they have to inform
Havana they ignored the instruction, they did this only much later on reaching
24 parallel. The BTTR founder said that is fine, they are not bothered about
it. The flyers were also told certain spots in Cuba airspace are risky as Cuba
was conducting military manoeuvring exercise. The BTTR flyer laughed and said
it is always risky [23, 24].
5. According to flight regulation
rules and procedures in case there is a change in time, then another new
application has to be filed for seeking permission which has to be done a day
in advance. All the three flights flew to Cuba airspace without legitimate
permission and after recuring warning about the possibility of the air space
being risky because of military training by Cuban forces.
6. According to data provided by
IACHR and ICAO the flights left Miami at 1.20 pm and weather was clear. As per
information available about flight duration from Miami to reach Cuba is around
1 hour to 1.30 hrs so how come the aircrafts did not reach Cuban territory even
after 2 hrs of straight flight time and no issues being reported by either of
the aircrafts. As the downing of the aircrafts happened at 3.20 pm, it means
the aircrafts had covered two hours of flight time, which means they should be inside
Cuban territory. The detailed report from ICAO indicates instances when BTTR
being within Cuba’s territorial airspace
[ibid].
7. For any criminal or accidental
events, the antecedent factors are relevant, here it includes the antecedent
factors of the aircraft and that of the agency that the flyers represent, for
the flyers where not there on their individual capacity, they were flying as
part of the agency, Brother to the Rescue. The agency has a clearly stated
mission not just to safe rafters flee Cuba but also mobilize Cubans to bring
about regime change. This has been stated loud and clear by the founder of the
agency and also is reflected in his and agency action after the agency was
formed. This was not case of civilian aircrafts being downed it was case of
aircrafts that Cuban government suspected to be a risk and capable of carrying
terror acts, as the agency has done so in earlier instances. Besides, BTTR is termed
as a paramilitary terrorist agency by Cuban government.
8. The founder of the agency Basulto
has stated his anti-Cuban government stand and also has proudly stated of
working for CIA to try to overthrow Castro government. He has stayed in Cuba
and spied on Cuban government on behalf of CIA and US government . He is not an
innocent civilian and his agency workers are not innocent civilians but are
part of mission that seeks to overthrow Cuban government.
9. Even when considering the case
as part of human rights violation, the contextual details of the aircraft is
relevant. Here the flyers were not civilians flying to Cuba on for civilian
purposes they were part of a humanitarian agency that was setup to save rafters
who fled Cuba without permission. This process of saving rafters lost its
relevance when US changed its policy and state any rafters that reached US
shore illegally would be sent back to Cuba. This meant much before the
downing of aircrafts happened there were no rafters to be saved. The only
activity carried out by the agency BTTR is to mobilize Cuban against Cuban
government, besides dropping pamphlets breaking into Cuban territory was also
seen as way to taunt the Cuban government. The US has clear cut norms for
pamphlet distribution and it falls under Federal Aviation Administration
Regulation, special permission has to be sought and specific spot chosen,
dropping of pamphlets by US citizens or those living in the US without
permission is a crime. There is no way an aircraft from another country can
sneak into the US and drop pamphlets and in case it does not adhere to warning
signs, it can be shot down as last resort.
III. Issues with current case
by DOJ under President Trumps administration
1. While in previous case under
Inter American Commission on Human Rights the focus was on Right to life and
extrajudicial killing under Torture Victim Protection Act, but here the case is
a superseding indictment against Raul Castro the brother of Fidel Castro and
four others. This case builds up from the assumption that the US government has
the right to decide whether communist ideology should exist within any country
in the region.
Within the current case, the
focus is to build a background to indicate that the Cuban Government has been
conspiring against the BTTR flyers, even having spies to get information on the
flight details of BTTR flyers, and based on these details the Cuban military were
waiting to kill the flyers. There is problem with this argument, when there is
so much resources crunch because of actions taken by the US why would Cuba send
spies to collect information that has to be provided legally to Cuba as per
rules and regulations for aviation.
According to
the rules, for aircraft to fly to Cuba would need official application to be
made at least 48 working hours in advance. On certain occasion on urgent basis
permission is given for an additional fee within one to six hours. This process
in rare and not regular practice. Details of the flight has to be provided such
as - a) aircraft information include aircraft make, model, registration and
MTOW (Maximum Take Off Weight) and b) Operator name, crew member name, license
number and passport details. c) Flight details should be provided to Cuba, this
would include details on specific entry and exit point, routing of the flight,
all this has to be provided in the Cuban Flight Information Region (FIR) d)
Valid airworthiness certificate, radio licence and liability insurance and e) Exact
reason for charter flight.
2. The case
against Raul Castro and others is presented as though they were waiting to kill
BTTR Flyers for no reason. That is not the reality, the true picture for Cuba
the actual victim, for an agency that it considers a paramilitary terrorist
agency keeps entering its air space without permission, taunts the Cuban
Government and indicates to the Cuban public that the Cuban government is
unable to manage its own security. As this became a real issue the Cuban
government did complaint to the US Government to take action on this
regard.
So, the flyers
that flew to Cuba were not innocent civilians with no questionable motive but
well-planned staff of BTTR who actually even on 24th February did
not stay on the route and took deviation and this has been provided in the
detail report by IACO [25]. The
behaviour of BTTR is one of planned attacker out prove a point to the Cubans
and mobilize them to overthrow the existing government in Cuba. Even on 24th
February they ignored the warning at Miami and from Havana that certain spots
are risky, for Cuba is conducting military exercises, yet these warnings were
ignored.
While the US is
so liberal with regard to function of BTTR, within the US there is strict
regulation about any association or support being provided for Foreign
Terrorist Organisations (FTO). It should be remembered that BTTR is registered
in the US and Cuba considers BTTR as a paramilitary terrorist group. According
18 U.S. Code § 2339 whoever
knowingly provides material support or
resources to a foreign terrorist organization, or attempts or conspires to do
so shall be fined…, shall be imprisoned for any term of years or for life. As
per 18 U.S. Code § 2339 (B) to knowingly provide material support to FTOs
may face criminal liability [26]. The definition of “material support” broadly
encompasses “any property”, tangible, intangible or service. It includes
currency, monetary instruments, financial securities, financial services,
lodging, training (i.e. instructions or teaching designed to impact a specific
skill), and export advice or assistance (i.e. advice or assistance derived from
scientific, technical, or other specialized knowledge) among others. Anything
and everything can be included as material supports, selling them goods or
services can lead to criminal investigation and prosecution. There is no need for
knowledge about intent, only knowledge about FTO is adequate for being charged
[27].
Within this
context, if actually the country US is a democracy, and therefore hold same
principles for other countries as for itself, can then the US, its agencies and
professionals be legally tried for providing material support to Foreign
Terrorist Organisation by other countries, here example being, Cuba. Can Cuba
fine the US, its citizens or agencies for the same?
3. The case
largely rests on the US Special Aircrafts Jurisdiction it is interesting to
note that this is being used to assert the rights of an agency BTTR which Cuba
considers to be paramilitary terrorist group. It seems a paramilitary terrorist
agency is entering airspace within Cuba without permission going to area it has
been told clearly to avoid as it is dangerous, the flyers lied about its flight
route and yet according to the US, Cuba was expected to welcome the flyers and
ignore concerns regarding Cuba’s sovereignty and safety.
4. Again, and
again the humanitarian angle of BTTR is highlighted, yes BTTR did save rafters
for many years. But when the policy on migration shifted and it was decided
that migrants who reached US shores illegally from Cuba would be sent back.
This literally stopped the instances of people trying escape Cuba using rafts. Then
why was BTTR making these flights to Cuba. If US government was serious
about peace, it would have put restrictions on BTTR and not evidently supported
BTTR to continue to overthrow Cuban government.
5. The string that
runs through this case as per the US government is that Cubans are suffering
and dying under Communist regime. They all want to leave the country and huge
number of Cubans have left their country for others foreign countries. But the
population data does not substantiate huge migration since communist government
came into power [28], after Communist government came to power in Cuba the
population grew from 7.14 million in 1960 to 10.94 million in 2012, after which
declined to 10.94 million. The reduction in population after 2012 was linked
more lowering of total fertility rate, an aging society and emigration because
of difficulty created by decades of sanctions.
In case of
mortality rate among infants, in 1954 it was 78.42, 1957 it was 71.89, in 1959 it was 67.65, in 1961 it dropped to
36.80, 1966 it was 35.80, in 1977 it was 22.90,
in 1981 it was 17.30, 2006 it reached 5.40, in 2010 it was 4.90, 2014 it
was 4.80 and it increased in 2020 to 5.70 and it fell again to 3.94 in 2025 [29].
While the US
government would like the world to believe Cuba is a country where local people
are abused and Cubans want to leave their country in large numbers. Data
indicates that this not true, and health status improved after 1959, especially
for children. The idea that BTTR is fighting for ordinary Cubans seems a bit of
an exaggeration.
6. What the
superseding indictment against Raul Castro and others prove is that the US is
using its judiciary to assert of sovereign rights of a Latin American country
and to gain support within the region and globe for the same. This is a
dangerous especially when read within the background of digital governance,
where the US has indicated it has no respect for domestic law or international
ones, where human are transported in conditions worse than cattle, for cattle
can be rejected if the quality of health not ensured, that is absent in case of
human. So now the great torch bearer of democracy stands naked in front of the
world branding people as criminals with no shred of evidence and kicking them
around private and public prisons within and outside the country as per the
will of the oval office, as the US has said goodbye to due process.
The US in its
conceptualisation of OAS in its present form seems to assume it can enforce
democracy across Americas, strange the American leaders’ sense nothing ajar
when speaking of Enforced Democracy. Probably when the Sectary of War
can speak about “negotiation through bombs” as a strategy, then anything is
possible.
Sovereignty for
All or Sovereignty for None!
Molly Charles
Reference
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Justice Manual | 15. Providing
Material Support To Terrorist (18 U.S.C. § 2339A) United States
Department of Justice
28. https://www.worlddata.info/america/cuba/populationgrowth.php
29.
https://www.macrotrends.net/global-metrics/countries/cub/cuba/infant-mortality-rate
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