Despite encouraging constitutional provisions against impunity, Cuba routinely denies human rights abuses, fails to investigate or punish those who commit them, and retaliates against those who denounce them, particularly prisoners.116 The persistence of human rights violations in Cuba is undoubtedly due, in part, to the fact that Cuban officials have faced virtually no consequences for the thousands of human rights violations committed in the past forty years. Yet, Cuba has clear obligations under international law to offer effective remedies to victims of human rights abuses, arising from the Universal Declaration of Human Rights and Cuba's ratification of the Convention Against Torture.117
The Cuban government has committed egregious, systematic human rights violations since the 1959 revolution. But the exact numbers of victims wrongfully killed, imprisoned, tortured, exiled, arrested, or suffering other human rights abuses by the Cuban government is impossible to know, in part due to the government's secrecy about its human rights practices. Human Rights Watch has monitored human rights practices in Cuba for over ten years. During that time, we have documented scores of cases of wrongful arrests, detentions, prosecutions, exile, and other abuses. Moreover, the human rights violations committed in the early years of the Castro government stand out as particularly severe. Historian Hugh Thomas, who acknowledged the impossibility of knowing precisely how many executions and other human rights violations had occurred, estimated that by early 1961, the Cuban government had "probably" executed some 2,000 Cubans, while by 1970, the government had, "perhaps," executed 5,000. Thomas does not specify whether these executions occurred following trials, but notes that "in the case of political crimes, there [was] no rule of law."118 Thomas cites a Castro speech in in 1965 in which the Cuban leader admitted that Cuba had 20,000 "political prisoners"—an unclear number of whom had participated in armed actions against thegovernment.119 Human Rights Watch is not aware of the Cuban government providing restitution to any victim or family member for any of these human rights violations.120
In a report to the U.N. Committee against Torture, Cuba provided information about internal efforts to establish accountability for a broad range of rights and specifically mentioned receiving complaints of abuse in its prisons. Since Cuba permits no independent prison monitoring, and has not even released the number of prisoners currently detained in its prisons, it is impossible to confirm the veracity of this information. Without providing specific details of any cases, the government stated that in 1997 it had received thirty-seven complaints of ill-treatment in prison or in custody; had taken "administrative or disciplinary measures" in ten of those cases; and had sent ten cases to the courts, one of which resulted in an eight-year sentence.121 If this information is true, Cuba's actions would be encouraging steps in the process of establishing accountability for human rights abuses. However, Cuba's retaliations against prisoners who denounce prison abuses and conditions and its ban on prison monitoring suggest a determination to cover up—rather than expose and punish—prison abuses.
The Cuban government has argued in international human rights fora that its laws ensure that victims can present complaints of human rights abuses. But these avenues fail to provide genuine options for redressing wrongs committed by state officials. Until Cuba's laws are purged of provisions that explicitly violate fundamental rights, such as enemy propaganda or contempt for authority, legal
action against human rights violators likely will be stymied by the fact that many prosecutors who deprived individuals of their fundamental rights did so in keepingwith Cuban law. And Cuba's Criminal Code notably fails to criminalize torture, as required by the Convention against Torture.
Cuba has claimed that Article 116 of its Criminal Procedure Code provides a remedy for victims of human rights abuses, but this measure simply compels an individual to report the occurrence of any crime.122 Ironically, in 1998 Cuba tried independent journalist Juan Carlos Recio Martínez for failing to denounce an acquaintance who allegedly had committed enemy propaganda (by encouraging abstention from elections). Cuba prosecuted Recio Martínez for a state security crime that requires the reporting of the commission of other state security crimes.123 Article 116 provides no duty or protected right to denounce state officials for having violated fundamental rights. The Civil Code permits an individual to sue another individual for the violation of constitutionally protected rights, allowing the cessation of the violation and restitution.124 But here, too, Cuban citizens have no specific right to take action against state officials.
Cuba's state mechanisms for reporting human rights violations also suffer from a lack of independence from political authorities. Conflicts of interest in enforcing Cuban laws, many of which violate human rights in their application, also diminish the potential usefulness of these mechanisms. Cuba's claim, for example, that its public prosecutors will "guarantee respect for the dignity of the citizen," although the same prosecutors might be responsible for that person's prosecution for the exercise of his or her fundamental rights, strains credulity.125 Similarly, the Attorney General's allegiance to the National Assembly and his or her mandate to enforce Cuba's laws, however much they may restrict human rights, seriously compromise his or her role as a human rights advocate and undercut the likely efficacy of the Department of Citizens' Rights. Cuba has referred to this office as one with responsibility for overseeing the implementation of human rights.126 While the government claims that the Attorney General ensures that legal standards are obeyed in prisons and pretrial detention centers, the rampant human rightsabuses in both types of institutions say little for the success of this effort.127 The complaint mechanisms reportedly available in the National Assembly or Council of State likely would be entirely compromised by the political nature of the institutions. Since the Interior Ministry directly carries out much of Cuba's repression, recourse to its complaints department would likely prove fruitless and perhaps dangerous. The state maintains such firm control over the practice of law, through its collective law firms, that even finding legal representation would pose a tremendous challenge for victims of human rights abuses.128
Impunity for the Sinking of the 13 de Marzo
Without other avenues for redress, several Cuban exiles brought a historic human rights case before the Inter-American Commission of Human Rights (hereinafter the commission), the human rights body of the Organization of American States (OAS), in 1994. Although Cuba is not a member of the OAS, the commission considers the Cuban government responsible for protecting the rights enshrined in the American Declaration of the Rights and Duties of Man. On October 16, 1996, the commission approved a public report concluding that on July 13, 1994, Cuba violated the right to life of forty-one people who died when Cuban government boats rammed, flooded, and sank the 13 de Marzo, a hijacked tugboat loaded with civilians fleeing Cuba.129 The report also found that Cuba violated the right of personal integrity of the thirty-one survivors of the sinking, and violated the rights to transit and justice of all of the seventy-two persons who attempted to leave Cuba.130 The report provides shocking survivors' testimony of the Cuban government's deliberate attempts to sink the boat. Statements by President Castro and the Interior Ministry regarding responsibility for the incident provide a disturbing counterpoint to the victims' experiences. Clearly, the government's effort was to exculpate itself from responsibility, rather than conduct a serious investigation and punish those responsible for this incident.
Despite consistent testimonies that four Transportation Ministry boats fired water cannons onto the decks of the tugboat and later rammed and sank it, President Castro denied a government role in the sinking.131 Although President Castro asserted that Cuba had fully investigated the incident, the commission noted that Cuba never recovered the bodies lost in the tugboat, nor the boat itself, and concluded that "there was no judicial investigation and the political organs directed by the Cuban Chief of State rushed to absolve of all responsibility the officials who went to meet the 13 de Marzo tugboat."132
International Legal Actions Against Fidel Castro
In late 1998 the arrest in London of former Chilean dictator Gen. Augusto Pinochet sparked international interest in the possibility of trying former and current heads of state responsible for serious human rights abuses.
In November 1998 the Cuban American National Foundation (CANF), an anti-Castro organization of Cuban exiles based in Miami, filed a law suit against Castro in Madrid alleging that he had committed genocide, terrorism, and torture. A national high court judge in Spain dismissed the suit later that month, ruling that the facts presented in the complaint did not constitute genocide or torture and on the controversial grounds that states cannot commit terrorism. The judge, Ismael Moreno Chamarro, also ruled that as a sitting head of state Fidel Castro was immune from prosecution in Spain.133 At this writing, CANF has appealed the ruling.134
Two Cuban exiles and one French citizen commenced legal actions against Castro in January 1999 in Paris, charging him with crimes against humanity, torture, illegal detention, and drug-trafficking. According to the plaintiffs' attorney, Serge Lewisch, Cuban authorities arrested French journalist Pierre Golendorf in 1971, imprisoning him until 1975 for having drafted a book that criticized the government. Cuba jailed Lázaro Jordana from 1982 until 1986, as a politicalprisoner. Ileana de la Guardia filed the suit on behalf of her father, Col. Antonio de la Guardia, who was executed by a Cuban firing squad in 1989 after a Cuban court found him guilty of smuggling drugs.135 In late February 1999, a French magistrate dismissed the complaints.136
129 Informe No. 47/96, Caso 11.436, Cuba (OEA/Ser.>/V/11.93), October 16, 1996, para. 105.
130 Ibid., paras. 106 and 107.
132 Ibid., para. 87. Translation by Human Rights Watch.
133 Order issued by Judge-Magistrate Ismael Moreno Chamarro, Central Instruction Court Number 2, Madrid, November 19, 1998.
134 Human Rights Watch telephone interview with Javier Barrilero, CANF attorney, Madrid, February 5, 1999; and "Cuba: Spanish Judge Throws Out Fidel Castro 'Genocide' Suit," El Pais published by the BBC Monitoring Summary of World Broadcasts, November 21, 1998.
135 Lara Marlowe, "Pinochet Case Creates Precedent for Other Regimes," Irish Times, January 7, 1999; and Jon Henley, "France: Castro Accused of Role in Drug Trafficking," Guardian, January 7, 1999.
136 "France: French Magistrate Rejects Charges Against Castro," Reuters News Service, February 26, 1999.
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