ORGANIZATION OF AMERICAN STATES
[Emblem] INTER-AMERICAN COMMISSION ON HUMAN RIGHTS CIDH
September 29, 1999
104th Period of Sessions
Report No. 86/99
Case No. 11,589
Approved by the Commission at its Session 1447
Held on September 29, 1999
GENERAL SECRETARIAT OF THE ORGANIZATION OF AMERICAN STATES, WASHINGTON, D.C. 20006
REPORT No. 86/99
CASE No. 11,589
ARMANDO ALEJANDRE, JR., CARLOS COSTA, MARIO DE LA PEÑA AND
REPUBLIC OF CUBA
September 29, 1999
1. On February 25, 1996, the Inter-American Commission on Human Rights (hereinafter "the Commission" or "the Inter-American Commission") received several complaints against the Republic of Cuba (hereinafter "the State," "the Cuban State," or "Cuba"), according to which a MIG-29 military aircraft of the Fuerza Aerea Cubana (FAC) [Cuban Air Force, or CAF] brought down two unarmed civil small aircraft of the organization known as "Hermanos al Rescate" [Brothers to the Rescue]. According to a report from the Organización de Aviación Civil Internacional (OACI) [International Civil Aviation Organization, known as ICAO], the events took place on February 24, 1996 at 15:21 and 15:27, respectively, in international air space. The air-to-air missiles fired by the MIG-29 disintegrated the civil small aircraft, producing the instantaneous deaths of Armando Alejandre, Jr., 45 years of age; Carlos Alberto Costa, 29 years of age; Mario Manuel de la Peña, 24 years of age; and Pablo Morales, 29 years of age. The complaint concludes with a petition to the Commission to institute case proceedings in accordance with Articles 32 et seq. of its Regulations and to declare Cuba responsible for breaching its international obligations set out in the American Declaration of the Rights and Duties of Man (hereinafter "the Declaration" or "American Declaration") due to the violation of the rights to life and to justice contained in Articles 1 and XVIII of said international instrument.
2. The Commission, upon receiving several complaints concerning the same facts and persons, joined them in Case No. 11,589, in accordance with Article 40(2) of its Regulations. Consequently, the petitioners in the present case comprise the members of the immediate families of the victims (Marlene Alejandre, Marlene Victoria Alejandre, Mirta Costa, Osvaldo Costa, Miriam de la Peña, Mario de la Peña, and Eva Barbas), Dr. Haydée Marín (Institute of Human and Labor Rights of Florida International University), Dr. Claudio Benedí (Junta Patriótica Cubana [Cuban Patriotic Group]), and Mr. José J. Basulto (Hermanos al Rescate).
3. Since the commencement of the processing of the present case-March 7, 1996-the Cuban State has not responded to the repeated requests for information made by the Commission with respect to the admissibility and to the merits of the case. Therefore the Commission, on the basis of an exhaustive analysis of the bases of fact and of law, and in accordance with Article 42 of its Regulations, deems that the complaint complies with the formal requirements of admissibility set forth in the Regulations, and concludes that the Cuban State is responsible for the violation of the rights contained in the American Declaration which were set out by the petitioners in their complaint of February 25, 1996. Based on the analysis and conclusions of the present report, the Commission recommends to the Cuban State an exhaustive investigation of the facts complained of, and the prosecution and criminal penalization of those responsible for the several violations here established, as well as adequate and timely reparation that includes payment of a just compensatory indemnification for pecuniary and extra-pecuniary damages, to the members of the immediate families of the victims.
II. PROCEEDINGS BEFORE THE COMMISSION
4. The Commission, by note of March 7, 1996, commenced the proceedings in the case and requested of the Cuban State the relevant information concerning the facts forming the subject of the said note, as well as any other element which might assist it in forming an opinion so as to make it possible for it to determine whether all stages of the domestic jurisdiction had been exhausted in the case. Since that date, the case has been dealt with in accordance with Article 32 et seq. of the Commissions Regulations. As has been stated, Cuba never replied to the requests for information from the commencement of the proceedings to the date hereof, notwithstanding the fact that notice, including a warning as to the applicability of Article 42 of the Commission's Regulations, was delivered to it on repeated occasions. As a matter of fact, the Cuban State was notified on March 7 and April 19, 1996; February 4 and September 25, 1997; January 21 and 30, 1998; and June 12, 1998. The Commission, at its Session 1432 of the 103rd Regular Period of Sessions held on May 5, 1999, approved Report No. 81/99 on the present case, in accordance with the provisions of Article 53, Subsections (1) and (2) of its Regulations. By note of May 19, 1999, the Commission forwarded the said report to the Cuban State with a deadline of two months for it to carry out its recommendations. The time period granted to the Cuban State expired on July 19, 1999, without its having filed comments on the Commission's report.
III. POSITIONS OF THE PARTIES
A. THE PETITIONERS
5. THE FACTS. Alejandre, Costa, De la Peña, and Morales were members of the "Hermanos al Rescate" organization based in the city of Miami, Florida, United States of America. On the morning of February 24, 1996, two of the Cessna 337 small aircraft of "Hermanos al Rescate" took off from the Opa-Locka Airport, in South Florida. Costa was piloting one aircraft, accompanied by Pablo Morales, a citizen of Cuba who had also been a rafter. De la Peña was piloting the second aircraft, with Alejandre as a passenger. Before taking off, the aircraft notified the air-traffic controllers at Miami and at Havana of their flight plans, which would take them south of the 24th parallel.
6. The 24th parallel is located a fair distance north of Cuba's twelve miles of territorial waters, and it is the northernmost limit of the Havana Flight Information Region. Commercial and civil aircraft carry out routine flights in this area, and aviation practice demands that they notify the air-traffic controllers of Havana if they pass southward of the 24th parallel. The two "Hermanos al Rescate" aircraft followed this custom by communicating with Havana, identifying themselves, and stating their position and altitude.
7. At a time when the two aircraft were still north of the 24th parallel, the Air Force of Cuba ordered the take-off of two military aircraft, a MIG-29 and a MIG-23, operating under the control of the military station on Cuban land. The MIGs carried artillery pieces, short-range missiles, bombs, and rockets, and they were being piloted by members of the Cuban Air Force. Excerpts from the radio communications exchanged between the MIG-29 and the Military Control Tower of Havana provide the details which are set out below:
MIG-29: OK, the target is in sight; the target is in sight. It is a small aircraft. Copied, small aircraft in sight.
MIG-29: OK, we have it in sight, we have it in sight.
MIG-29: The target is in sight.
MILITARY CONTROL: Go ahead.
MIG-29 The target is in sight.
MILITARY CONTROL: Aircraft in sight.
MIG-29: Is it coming again?
MIG-29: It is a small aircraft, a small aircraft.
MIG-29: It is white, white.
MILITARY CONTROL: Color and Registry of the aircraft?
MILITARY CONTROL: Comrade.
MIG-29: Listen, the registry, too?
MILITARY CONTROL: What type and color?
MIG-29: It is white and blue.
MIG-29: White and blue, at low altitude, a small aircraft.
MIG-29: Give me orders.
MIG-29: Listen, authorize me...
MIG-29: If we fly over it, it will complicate things. We are going to fly over it. Since a few boats are approaching there, I am going to fly over it.
MIG-29: Come in, come in.
MIG-29: I have a fix on it, I have a fix on it.
MIG-29: We have a fix on it. Give us authorization.
MIG-29: It is a Cessna 337. That's it, that's it. Give us authorization, fuck it!
MILITARY CONTROL: Fire.
MIG-29: Give us authorization, fuck it, we have it.
MILITARY CONTROL: Authorized to destroy.
MIG-29: We copy. We copy.
MILITARY CONTROL: Authorized to destroy.
MIG-29: Understood, I'd already received it. Leave us alone for now.
MILITARY CONTROL: Do not lose it.
MIG-29: Fire one.
MIG-29: We busted his balls! We busted his balls!
MIG-29: Wait, look and see where it fell.
MIG-29: Let's go! Let's go! Fuck, we hit it. Fuck!
MIG-29: Mark the place where we shot it down.
MIG-29: We are above him. This guy's not going to fuck with us ever again.
MILITARY CONTROL: Congratulations to both of you.
MIG-29: Mark the place.
MIG-29: We are ascending and are on our way back.
MILITARY CONTROL: Stay there, circling overhead.
MIG-29: Over the target?
MILITARY CONTROL: Correct.
MIG-29: Shit, we told you, comrade.
MILITARY CONTROL: Correct, the target is marked.
MIG-29: Go ahead.
MILITARY CONTROL: OK, go up to 3,200, 4,000 meters over the target destroyed and keep a low speed.
MIG-29: Go ahead.
MILITARY CONTROL: I need you to stay...there. Which direction did you fire in?
MIG-29: I have another aircraft in sight.
MIG-29: We have another aircraft.
MILITARY CONTROL: Follow it. Do not lose the other small aircraft.
MIG-29: We have another aircraft in sight. It is in the area where [the first aircraft] went down. It is in the area where it went down.
MIG-29: We have the aircraft in sight.
MILITARY CONTROL: Stay there.
MIG-29: Comrade, it is in the area of the event, where the target went down. They are going to give us authorization.
MIG-29: Listen, the SAR is not necessary. There is nothing left, nothing.
MILITARY CONTROL: Correct, follow the aircraft. You are going to stay over it.
MIG-29: We are over it.
MILITARY CONTROL: Correct...
MIG-29: What for?
MIG-29: Is the other one authorized?
MILITARY CONTROL: Correct.
MIG-29: Great. Allow us to go, Alberto.
MIG-29: Understood; we are going to destroy it now.
MILITARY CONTROL: Do you still have it in sight?
MIG-29: We have it, we have it, we are working. Allow us to work.
MIG-29: The other one is destroyed; the other one is destroyed. Country or death, fuck it! The other one went down, too.
8. The air-to-air missiles from the MIG-29 disintegrated the "Hermanos al Rescate" aircraft, instantly killing their occupants and leaving almost no recoverable remains. Only a great sheet of oil marked the spot where the aircraft went down. The Cuban Air Force never notified nor warned the civil small aircraft, did not attempt to make use of other methods of interception, and never gave them the opportunity to land. The first and only response of the MIGs was the intentional destruction of the civil aircraft and of their four occupants. Such conduct clearly violated the established international rules, which require that all methods be exhausted before aggression is resorted to against any aircraft, and totally prohibit the use of force against civil aircraft. Several essential rights of the person as set out in the American Declaration of the Rights and Duties of Man have also been violated by agents of the Cuban State.
9. THE VICTIMS. Armando Alejandre, Jr., was 45 years of age at the time of his death. Although he was born in Cuba, at an early age Alejandre took up residence in the city of Miami, Florida, and became a United States citizen by naturalization. Alejandre served in the military for eight months during the war in Viet Nam; he completed his higher education at Florida International University; and was working as a consultant to Metro-Dade Transit Management. He is survived by Marlene Alejandre, his wife of 21 years, and his daughter Marlene, a college student.
10. Carlos Alberto Costa was born in the United States in 1966 and lived in the city of Miami. He was only 29 years of age. Costa, who was always interested in aviation and hoped some day to supervise the operations of a major airport, obtained his degree at the Embry-Riddle University of Aeronautics and was working as a training specialist in the Dade County Aviation Department. He is survived by his parents, Mirta Costa and Osvaldo Costa, and his sister, Mirta Méndez.
11. Mario Manuel De la Peña was also born in the United States, and he was 24 years of age at the time of his death. De la Peña lost his life while he was completing his last semester at the Embry-Riddle University of Aeronautics with the aim of becoming a professional airline pilot. During that semester, he had obtained a much sought-after and competed-for position at American Airlines. The University conferred a degree in Professional Aeronautics on De la Peña, posthumously. He is survived by a younger brother, Michael De la Peña, and by his parents, Mario T. De la Peña and Miriam De la Peña.
12. Pablo Morales was born in Havana, Cuba, on May 16, 1966. On May 5, 1992, he fled Cuba on a raft and was rescued by the "Hermanos al Rescate" organization, which is the reason that he joined the group as a volunteer to fly as a co-pilot. Morales studied Cartography and was graduated as a Geodesics Technician.
13. The petitioners further state that the responsibility of the Cuban State consists, first, in the fact of firing--without prior provocation--lethal rockets against a defenseless and unarmed civil aircraft meets the definition of extra-judicial execution. This term is defined with reference to its use in the Ley de Protección a las Víctimas de Torturas (TVPA) [Law for the Protection of Torture Victims], which provides that the expression extra-judicial execution means a deliberate murder not authorized by a prior sentence pronounced by a regularly-constituted court, which provides every procedural guarantee se forth in the international instruments on human rights and in particular in the American Declaration of the Rights and Duties of Man. The actions of Cuba in this case match this definition. The occupants of the two unarmed civil aircraft did not receive any kind of warning concerning their imminent destruction.
14. The Cuban Air Force (CAF) was acting as an agent of the State when it committed the murders. The evidence submitted shows how the pilots of the Cuban MIGs obtained authorization from functionaries of the State before the shoot-down of each aircraft, as well as sincere congratulations from the said functionaries after the aircraft were destroyed.
15. The events in which death was dealt to the victims took place in international air space. The report of the ICAO concluded that the aircraft were over international waters when they were shot down. The first aircraft was 18 miles from Cuban shores and the second aircraft 30.5 miles offshore when they were destroyed by the missiles of the Cuban Air Force. These numbers place the aircraft very far from the twelve miles of Cuban territorial waters which international law permits. Moreover, the evidence contributed by the crew and passengers of a cruise ship which was in the vicinity, namely the "Majesty of the Seas," and by a private fishing boat, namely the "Triliner," established that the civil aircraft were flying in international air space towards Florida and were moving away from Cuba when they were executed by the agents of the Cuban State.
16. The practice of summary execution has been firmly condemned by the world community. Many international human rights agreements and declarations proclaim the right of all individuals not to be deprived of live without reason or arbitrarily. So widespread is the consensus against extra-judicial execution, that each instrument or agreement which has attempted to define the scope of international law on human rights has recognized the guarantee of due process in order to protect that right. The proscription of extra-judicial execution thus raises to the level of imperative law a standard of international law so fundamental that it is mandatory for all the members of the international community. The human rights standards which have been generally accepted and which, therefore, are incorporated into the laws of nations include basic rights such as the right not to be murdered, tortured, or in any way subjected to cruel, inhumane, or degrading punishment, and the right not to be detained arbitrarily. The proscription against summary execution is universal and compliance with it is mandatory for the States. A State violates international law on human rights if, as a matter of State policy, it practices, fosters, or condones homicide, or gives rise to the disappearance of individuals. Consequently, the extra-judicial executions committed by the agents of the Cuban State to the detriment of De la Peña, Costa, Alejandre and Morales make it the international responsibility of the said State for the violation of the rights to life recognized in Article 1 of the American Declaration of the Rights and Duties of Man. And by denial of justice, the Cuban State is responsible for disregard of the right to justice set out in Article XVIII of the said international instrument.
B. THE STATE
17. The Cuban State did not respond to the repeated requests for information from the Commission asking for its comments concerning the admissibility and the merits of the complaint. The Commission has also found that the State has not to date disputed the facts set out in the complaint, despite the several notes from it so requesting. Consequently, the deadlines set out in the Commission's Regulations for a State to provide information on the case sub lite have more than expired.
A. THE COMMISSION'S COMPETENT AUTHORITY AND THE FORMAL REQUIREMENTS FOR ADMISSIBILITY
18. The Commission has competent authority ratione materiae to take cognizance of the present case, since it concerns violations of rights recognized in the American Declaration of the Rights and Duties of Man. The competent authority of the Commission arises out of the terms of the Charter of the OAS, its Statute, and its Regulations. In accordance with the Charter, all the member States agree to respect the fundamental rights of individuals, which, in the case of the States which are not parties to the Convention, are those set out in the American Declaration, which constitutes a source of international obligations. The Commission's Statute makes it incumbent upon it to give special attention to the task of observance of the human rights recognized in Articles I (Right to Life, to Liberty, to Security, and to Personal Integrity), II (Right to Equality Before the Law), III (Right to Freedom of Religion and of Worship), IV (Right to Freedom of Investigation, Opinion, Expression, and Diffusion), XVIII (Right to Justice), XXV (Right to Protection against Arbitrary Detention), and XXVI (Right to Due Process).
19. The Commission has dealt with the present case in accordance with the provisions of Chapter III of its Regulations and Articles 1, 18, and 20 of its Statute. Article 51 of the Commission's Regulations provides that "[t]he Commission shall receive and examine any petition which contains a complaint concerning alleged violations of the human rights recognized in the American Declaration of the Rights and Duties of Man with regard to the member States of the Organization which are not parties to the American Convention on Human Rights."
20. The procedure applied to the present case has been that provided in Article 52 of the Commission's Regulations, which states verbatim as follows: "The procedure applicable to the petitions regarding the member States of the Organization which are not parties to the American Convention on Human Rights shall be that set out in the General Provisions contained in Chapter I of Title II; in Articles 32-43 of these Regulations; and in the articles which are indicated below."
21. The submission of the petition meets the formal requirements of admissibility contained in Article 32 of the Commission's Regulations, the procedure contemplated in Article 34 of the Regulations having been exhausted. Moreover, the complaint is not pending another proceeding of international settlement, nor is it a duplicate of a prior petition already examined by the Commission.
22. The Commission also has competent authority ratione personae, inasmuch as Article 26 of its Regulations provides that "[a]ny person or group of persons or non-governmental entity legally recognized in one or more of the Member States or the Organization may submit petitions to the Commission, in accordance with these Regulations, on its/their own behalf or on behalf of third persons, with regard to alleged violations of a human right recognized, as the case may be, in the American Convention on Human Rights or in the American Declaration of the Rights and Duties of Man." Within this context, the Commission cannot but repeat that the procedural silence of the Cuban State contravenes its international juridical obligations to provide information with respect to the petitions and other communications which contain alleged violations of human rights. The Commission has already indicated on several occasions that the purpose of the Organization of American States "in excluding the Government of Cuba from the Inter-American system" was not to leave the Cuban people without protection. The exclusion of the said Government from the regional system does not in any way imply that it can cease to comply with its international obligations in the area of human rights. Consequently, the Commission carries out its analysis on the basis of the elements of conviction made available to it, while taking due account of Article 42 of its Regulations.
23. With respect to competent authority ratione loci, it is evident that the Commission has competent authority as regards facts involving human rights violations which take place on the territory of the Member States of the Organization, whether or not these are parties to the Convention. Nevertheless, it is appropriate to note that in certain circumstances the Commission has competent authority to consider communications which complain of a violation of human rights protected under the Inter-American system by agents of a Member State of the Organization even though the facts which constitute such violation may have taken place outside the territory of the said State. In effect, the Commission believes it pertinent to note that, in certain circumstances, its exercising competent authority over facts which have occurred in an extra-territorial location not only is consonant with but is required by the relevant provisions. The fundamental rights of the person are proclaimed in the Americas on the basis of the principle of equality and non-discrimination: "regardless of race, nationality, creed, or sex." Since individual rights are inherent to the human person, all the American States are obliged to respect the protected rights of any person subject to their jurisdiction. Although this ordinarily refers to persons who are within the territory of a State, in certain circumstances it can refer to behavior having an extraterritorial locus, where a person is present on the territory of one State, but is subject to the control of another State, generally through the acts of the agents abroad of the latter State. In principle, the investigation has no reference to the nationality of the alleged victim or his presence in a given geographical zone, but rather to whether in those specific circumstances the State observed the rights of a person subject to its authority and control.
24. The European Commission on Human Rights spoke on this issue on the occasion of the inter-state complaint filed by Cyprus against Turkey following the Turkish invasion of that island. Cyprus alleged in its complaint that violations of the European Convention had taken place on the portion of its territory occupied by the Turkish forces. For its part, Turkey maintained that under Article 1 of the European Convection, the competent authority of the Commission was limited to an examination of the acts allegedly committed by a State Party on its own national territory and that it could not be found liable for violating the Convention since it had not extended its jurisdiction to Cyprus. The European Commission rejected this argument in the following terms:
In Article 1 of the Convention, the High Contracting Parties undertook to secure the rights and freedoms defined in Section 1 to all persons "within their jurisdiction" [in the Spanish text, this expression "dentro de su jurisdicción," is followed by its equivalents in English,"within their jurisdiction," and in French "relevant de leur juridiction"]. Contrary to what the defendant State alleges, the Commission considers that this term is not limited to or the equivalent of the national territory of the High Contracting Party in question. As clearly appears from the wording, and in particular the French, and from the object of this Article, as well as from the purpose of the Convention taken as a whole, the High Contracting Parties are under the obligation to secure such rights and liberties to all the persons under their actual authority and responsibility, whether such authority is exercised within their own territory or abroad [...]
25. In the case sub lite, the petitioners stated that their complaints were governed by the provisions of the American Declaration of the Rights and Duties of Man. In analyzing the facts, the Commission finds that the victims died as a consequence of direct actions of agents of the Cuban State in international air space. The circumstance that the facts occurred outside the Cuban jurisdiction does not restrict nor limit the Commission's competent authority ratione loci, for, as has already been indicated, when agents of a State, whether they be military or civil, exercise power and authority over persons located outside the national territory, its obligation to respect human rights, in this case the rights recognized in the American Declaration, continues. In the opinion of the Commission, there is sufficient evidence to show that the agents of the Cuban State, despite being outside its territory, subjected to their authority the civil pilots of the "Hermanos al Rescate" organization. Consequently, the Commission has competent authority ratione loci to apply extraterritorially the American Declaration to the Cuban State for the events which occurred on February 24, 1996, in international air space.
26. As far as the requirement of prior exhaustion of domestic procedures is concerned, Article 37(1) of the Commission's Regulations provides: "[i]n order for a petition to be admitted by the Commission, it shall be required that the procedures of the domestic jurisdiction shall have been pursued and exhausted, pursuant to the generally recognized principles of international law." The Inter-American Court of Human Rights has ruled in this respect:
From the generally recognized principles of international law it appears, in the first place, that this is a rule the assertion of which can be waived either expressly or tacitly by the State which is entitled to assert it, which has already been acknowledged by the Court on a prior occasion (cf. Matter of Viviana Gallardo and Others, Decision of November 13, 1981, No. G 101/81. Series A, para. 26). In the second place, that in order for the plea of non-exhaustion of domestic procedures to be timely, it must be asserted in the early stages of the proceeding, as otherwise there may be a presumption of the tacit waiver of assertion of it by the State concerned.
27. In the case sub lite, the Cuban State did not assert the plea of non-exhaustion of domestic procedures at the time when it received formal notice of the petition as a means of challenging admissibility, nor did it respond on several occasions to the request for information from the Commission in the course of the proceeding. In such circumstances, and with no more evidence than that set out in the case file, the Commission concludes that the Cuban State has tacitly waived assertion of the plea of non-exhaustion of domestic procedures.
B. THE ELEMENTS OF CONVICTION IN THE CASE SUB LITE
28. The Commission will go on to present the documents and other evidence which has been exhaustively examined and which has provided the elements for the formation of an opinion concerning the events which occurred in the afternoon of February 24, 1996, namely the date on which the four civil pilots of the "Hermanos al Rescate" lost their lives, allegedly as a consequence of actions originated by agents of the Cuban State. Thus, among the documents and other elements of conviction submitted to and carefully processed, analyzed, and evaluated by the Commission are: 1) Report of the International Civil Aviation Organization (ICAO) dated June 28, 1996; 2) Descriptive summary of the facts prepared by the victims' families; 3) Written transcript of the testimony of the victims' families given to the Inter-American Commission on Human Rights on March 3, 1997; 4) Brochure with biographical data and photographs of the four dead pilots, with other particulars; 5) Report of the Special Rapporteur of the United Nations for Cuba; 6) Final Judgment against the Republic of Cuba delivered by Judge King of the District Court of the United States, Southern District of Florida, in the civil complaint; 7) Testimony of Captain Charles F. Leonard, aviation expert, given during the civil complaint before the United States Court; 8) Testimony of Professor Stephen J. Schnably, expert in international law, given during the civil complaint before the United States Court; 9) Copy of the United States 1996 Anti-Terrorism and Actual Death Penalty Act; 10) Copy of the United States 1976 Foreign Sovereign Immunity Act; 11) Article from the Times Magazine of March 11, 1996, entitled "The Cold War is Back"; 12) EFE cable dated March 5, 1996: Decision to shoot down was taken to avoid further humiliation; 13) EFE cable dated March 5, 1996: Pilot admits he exclaimed scornful expression in shoot-down; 14) Transcript of the interviews, as televised by Cubavisión, with General Rubén Martínez Puente, Commander of the Cuban Air Defense Force, Havana, on March 6, 1996; 15) Audio tape recording from the cockpit of the 2506 small aircraft on February 24, 1996; and 16) Scale models of the Cessnas and the MIGs involved in the shoot-down.
C. ANALYSIS OF THE EVIDENCE WITH RESPECT TO THE ACTUAL PERPETRATORS OF THE FACTS
29. Once the elements of conviction have been evaluated, the Commission must analyze the facts which took place on February 24, 1996, and determine whether they involve the international responsibility of the Cuban State for the alleged violations of the rights recognized in the American Declaration of the Rights and Duties of Man. In other words, the Commission must elucidate whether the Cuban State is responsible for the deaths of the four civil pilots and, consequently, whether the three elements which involve the international responsibility of a State are present, namely: i) The existence of an act of commission or omission which violates an obligation set out in a rule of international law in force, which in this case would be the American Declaration; ii) The immutability of such an act of commission or omission to the State as a juridical person; and iii) The producing of a loss or an injury as a result of the unlawful act.
30. One of these elements of conviction which throws light on the facts complained of is the Report of the International Civil Aviation Organization (ICAO), which is present in the case file of the present case. As a matter of fact, in light of the facts, the Council of the ICAO during its 147th period of sessions, on March 6, 1996, adopted a resolution concerning the shooting down of two private civil aircraft of United States registry by Cuban military aircraft on February 24, 1996. The ICAO took this matter up for consideration in response to a request from the Security Council of the United Nations on February 27, 1996, and by virtue of the petitions from the Governments of the United States and of Cuba for the carrying out of an exhaustive investigation of the facts. In fulfillment of that petition, on June 28, 1996, the ICAO submitted a report to the Security Council entitled "Report on the Investigation concerning the Shooting Down of Two Private Aircraft Registered in the United States of America by a Cuban Military Aircraft on February 24, 1996."
31. With regard to the facts, the ICAO report establishes that the pilots and supporters of "Hermanos al Rescate" met at the hangar of the Opa-Locka Airport, located in South Florida, on the afternoon of February 24, 1996, and that at 09:12 the pilot of the Cessna 337C, registration number N2456S, who was the head of flight operations of the said organization, commenced the filing of the flight plans in accordance with visual flight rules (VFR), with the intention of making a flight to rescue rafters. However, because of other commitments of some of the pilots, the intended flight did not leave at 10:15 as had been planned. The pilots returned to the hangar after 11:00 and decided to eat lunch before starting the flight. At 13:01, the three Cessna 227 aircraft, registration number N2506 (José Basulto, Arnaldo Iglesias, Andrés and Silvia Iriondo), N2456S (Carlos Costa and Pablo Morales), and N5485S (Mario De La Peña and Armando Alejandre) departed in a westerly direction at 13:11, 13:12, and 13:13, respectively. After takeoff, each one of the three Cessna aircraft established contact with the AIFSS of Miami (call words Miami Radio) in order to activate their flight plans. At 14:39, the Cuban air defense radar detected aircraft north of the 24th parallel North. At 14:43, two military interceptor aircraft were immediately prepared at the air base of San Antonio de los Baños. The aircraft were armed with air-to-air missiles equipped with heat-seekers and guns. These aircraft, one two-seat MIG-29 UB and one MIG-23 ML, took off at 14:55 to patrol 15 to 20 kilometers north of the coast at altitudes of between 200 and 500 meters. The ICAO then concludes, among other things, the following:
- At 15:21 on February 24, 1996, the N2456S was destroyed by an air-to-air missile launched by a Cuban MIG-29 military aircraft
-At 15:27 on February 24, 1996, the N5485S was destroyed by an air-to-air missile launched by a Cuban MIG-29 military aircraft.
-The positions and ship's course recorded from the Majesty of the Seas, the observations of its crew and passengers, the position of the Tri-Liner relative to the Majesty of the Seas, and the resulting estimated locations of the downings are considered the most reliable reckonings of position.
-No evidence was obtained which would corroborate the position of the Majesty of the Seas. Subject to this, and on the basis of the recorded positions of the Majesty of the Seas, the N2456S was shot down at approximately position 23 29 N 082 28W, 9 nautical miles outside the Cuban territorial air space, and the N5485S was shot down at approximately position 23 30, 1 N 082 28, 6 W, 10 nautical miles outside the Cuban territorial air space (emphasis added).
-Cuba had methods other than interception available, such as radio communication, but it did not employ them. This was not compatible with the ICAO principle that the interception of civil aircraft is to be carried out only as a last resort.
-During the interceptions, no attempt was made to direct the N2456S or the N5485S beyond the limits of the national air space, to conduct them out of the prohibited, restricted, or dangerous area, or to give them orders to make a landing at a designated airfield.
-When carrying out the interception, the intercepting military aircraft did not follow the standard procedures for maneuvers and signals in accordance with the provisions of the ICAO as published in the AIP of Cuba.
-The Protocol which incorporates Article 3 bis of the Chicago Convention had not entered into effect. Neither Cuba nor the United States had ratified it.
-The rule of consuetudinary international law whereby States are to refrain from resorting to the use of arms against civil aircraft are applicable irrespective of whether or not the aircraft in question is within the territorial air space of the State concerned.
32. The ICAO also stated that "[t]here were several eyewitnesses to the event. The personnel and passengers aboard of the [vessel] Majesty of the Seas, of Royal Caribbean Cruise Lines, and the crew of the fishing boat Tri-Liner, observed the destruction of one aircraft (N2456S) and the subsequent destruction of the other aircraft (N5485S). One observer who was working at an observation post on the Havana coast and the crewman of the sailing ship heard and saw an event, but none of them could say whether he had seen the destruction of the first or of the second aircraft. According to the ICAO, the Majesty of the Seas had an automatic system for recording the time, position, speed, course, relative wind, and depth every five minutes, on the basis of a worldwide system for determining position, GPS (global-positioning satellite), and other sensing devices.
33. Again with regard to the witnesses, the ICAO states that at 15:23 the look-outs on the bridge of the Majesty of the Seas observed an explosion in the air and the remains of the destroyed aircraft which were falling to the sea. Several passengers and other members of the crew also saw the explosion and the fall of the wreckage. The event was recorded in the ship's log. The ICAO also notes that one crewman of the fishing boat Tri-Liner heard and saw the explosion directly over his head and called the captain, who was below deck. The two of them saw the aircraft fall to the sea in flames some 200 to 400 yards behind their vessel. The fishing boat went about, approached the location of impact, and noted a few small bits of wreckage and an oil stain. A square-shaped orange box or float, 1.5 feet per side, to which was attached a yellow rope, was seen but could not be recovered. The boat stayed on the scene some ten minutes; nothing else come to the surface. The Tri-Liner then resumed its northerly heading. The captain afterwards reckoned that the time of the explosion had been 15:15 at position 23 30N 082 17W.
34. The Commission has also been able to determine that the excerpts from the radio communications exchanged by the MIG-29 and the Military Control Tower of Havana, as supplied by the petitioners, match those included in the ICAO report, and also, in this connection, the adjectives employed by the pilots of the Cuban Air Force before shooting down the civil small aircraft, as well as the orders received through their superiors from Havana, Cuba.
35. The International Civil Aviation Organization refers to the injuries sustained by the civil pilots and the damage to their aircraft in the following manner:
The pilot and the other occupant of the Cessna 337C N2456S (Carlos Costa and Pablo Morales) have disappeared and are presumed dead. The pilot was a citizen of the United States and the other occupant was a legal resident of that country.
The pilot and the other occupant of the Cessna 337B, N5485S (Mario De La Peña and Armando Alejandre) have disappeared and are presumed dead. The two occupants were citizens of the United States.
The Cessna 337C, N2456S, and the Cessna 337B, N5485S, were destroyed by an air-to-air missile fired from a Cuban MIG-29 military aircraft. The two Cessna aircraft broke up in the air as a result of the explosions of the missiles, the wreckage fell to the sea and sank. At May 31, 1996, the remains of the four occupants of the two Cessna aircraft had not been recovered.
36. As for the pilots of the Cuban Air Force MIGs who took part in the events of February 24, 1996, the ICAO states as follows:
Pilot of the MIG-29. The pilot of the MIG-29 was qualified in accordance with the current Cuban air defense and Air Force regulations. The pilot, of the male sex and 44 years of age, held the rank of Lieutenant Colonel. His total flight experience was more than 1,000 hours, 500 of them in MIG-29 aircraft. He had been a MIG aircraft pilot for 19 years and had taken part in three international missions, including 74 combat missions.
Co-pilot of the MIG-29. The co-pilot of the MIG-29 was qualified in accordance with the current Cuban air defense and Air Force regulations. The co-pilot, of the male sex and 44 years of age, held the rank of
Lieutenant Colonel. His total flight experience was more than 1,800 hours. He had been flying for 26 years and had taken part in international missions, including 30 combat missions.
Pilot of the MIG-23. The pilot of the MIG-23 was qualified in accordance with the current Cuban air defense and Air Force regulations. The pilot, of the male sex and 35 years of age, held the rank of Major. His total flight experience was more than 800 hours. He had been a MIG aircraft pilot for 15 years and had taken part in two international missions which included some combat missions.
37. The Inter-American Commission, on the basis of the foregoing considerations and on the elements of conviction made available to it, sees fit to make the following points with respect to the events which took place on February 24, 1996:
i. The facts complained of by the petitioners, and the evidence submitted by them, fully coincide with the investigations carried out by the International Civil Aviation Organization (ICAO) as regards the description of the facts and material perpetrators thereof.
ii. The destruction of the civil aircraft in international air space, as well as the deaths of their four occupants by agents of the Cuban Air Force constitute flagrant violations of the right to life.
iii. The fact of using weapons of war and combat-trained pilots against unarmed civilians demonstrates not only a lack of proportion in the use of force, but also the intent of putting an end to the lives of the said persons. Moreover, from the excerpts from the radio communications exchanged between the pilots of the MIG-29 and the Military Control Tower, it appears that the said servicemen acted with advantage, premeditation, and contempt for the human dignity of the victims.
iv. There is abundant evidence in the present case to demonstrate the configuring of the three elements which involve the international responsibility of the Cuban State for the deaths of the four pilots which took place in the afternoon of February 24, 1996.
D. THE INTERNATIONAL RESPONSIBILITY OF THE CUBAN STATE
EXISTENCE OF AN ACT OF COMMISSION OR OMISSION
WHICH VIOLATES AN OBLIGATION STIPULATED BY A
PROVISION OF INTERNATIONAL LAW IN FORCE
38. THE RIGHT TO LIFE. The first article of the American Declaration of the Rights and Duties of Man recognizes the right to life when it states that "[e]very human being has the right to life, liberty, and the security of his person." For its part, the Inter-American Commission has also held that the right to life is "the foundation and support of all the other rights", by holding that
it can never be suspended. Governments cannot under any circumstances employ illegal or summary execution... Methods of this type are proscribed in the Constitutions of the States and in the international instruments which protect the fundamental rights of the human being.
39. The Commission has also stated that "the obligation to respect and protect the right to life is an obligation erga omnes, that is to say, it must be assumed by the Cuban State--as by all the Member States of the OAS, whether or not they are parties to the American Convention--vis-à-vis the inter-American community as a whole and vis-à-vis the individuals subject to its jurisdiction as the direct beneficiaries of the human rights recognized by the American Declaration of the Rights and Duties of Man." In this connection, the Inter-American Court has stated that for the States "the American Declaration constitutes (...) a source of international obligations. The circumstance that the Declaration is not a treaty, then, does not lead to the conclusion that it lacks juridical effects..."
40. In addition, the doctrine of the specialists on public law in the matter of international law on human rights is very broad when it comes to analyzing the obligations which States have to see to respecting the right to life. Thus, for example, the Venezuelan jurist and professor of the Central University of Venezuela, Héctor Faúndez Ledesma, states:
In essence, the right to life attempts to protect the citizen from capricious action by those who hold the power of the State and who, in abuse of that power, may feel the temptation to do away with the lives of those who may be troubling to it...
...it is to be noted that it [the right to life] entails for the State two different obligations: On the one hand, the obvious consequence is that the State authorities, and in particular the police and the military forces, must refrain from causing arbitrary deaths; on the other hand, this guarantee entails a duty of the State to protect persons from the acts of private parties who may arbitrarily make attempts on their lives by punishing them in such a manner as may dissuade or prevent such attempts.
41. In this connection, the Commission considers that in this case there has been sufficient proof of the first element which involves the international responsibility of the Cuban State, consisting of the existence of actions originating in its agents, who violated the first obligation recognized in the American Declaration: The right to life of Carlos Costa, Pablo Morales, Mario De La Peña, and Armando Alejandre during the events which took place on February 24, 1996.
42. The Commission cannot but comment, also, on the conclusions of the ICAO with respect to the fact that the agents of the Cuban State did nothing to employ methods other than the use of lethal force to conduct the civil aircraft out of the restricted or danger zone. The Commission considers that the indiscriminate use of force, and in particular the use of firearms, is an attack on the life and on the integrity of the person. In this case in particular, the military aircraft acted in an irregular fashion: Without prior warning, without proof that its action was necessary, without proportionality, and without the existence of due motivation.
43. The Special Rapporteur of the United Nations on Summary or Arbitrary Executions has stated that "if an agent of the policing services employs force greater than that needed to accomplish its lawful objective and a person dies as a result, this would be the equivalent of an arbitrary execution." In the case sub lite, the pilots of the civil small aircraft offered no danger to the national security of Cuba, nor to the Cuban people, nor to the military pilots. The Inter-American Court of Human Rights, with regard to the disproportionate use of force and the arbitrary deprivation of life, has stated that:
It is beyond all doubt that the State has the right and the duty to guarantee its own security. Nor is it open to discussion that every society suffers from violations of its system of laws. But, no matter how serious certain actions may be, it cannot be accepted that power can be exercised without any limit whatever or that the State can make use of any procedure to accomplish its objectives without being subject to law or morality. No activity of the State can be based on contempt for human dignity.
44. On the same subject, the European Court of Human Rights has stated that:
...soldiers are trained to continue firing until the suspect dies. With this background, the authorities are under the obligation to respect life and to exercise the greatest prudence in evaluating information before issuing orders to the soldiers, whose use of firearms automatically implies shooting to kill.
45. Given the circumstances which surrounded the facts which took place on February 24, 1996, the disproportionate and indiscriminate size and use of lethal force which was employed against the civil small aircraft, and the manner in which the authorities at the Military Control Tower of Havana congratulated the pilots of the MIG-29 after they carried out their orders, the Commission considers it sufficiently proven that Carlos Costa, Pablo Morales, Mario De La Peña, and Armando Alejandre were the subjects of an arbitrary or extra-judicial execution on the part of agents of the Cuban State. Consequently, the Cuban State is responsible for the violation of the right to life recognized in Article I of the American Declaration of the Rights and Duties of Man.
46. THE RIGHT TO JUSTICE. The American Declaration recognizes the procedures to which any person must have access who considers that his rights have been violated by the State authorities. Thus, Article XVIII provides that "[e]very person may have recourse to the courts in order to assert his rights. Moreover, he must have available to him a simple, brief procedure by which the courts protect him against such acts of authority as, to his detriment, violate any of the fundamental rights recognized in the constitution."
47. There is nothing in the record which would make it possible to infer that the victims' families have attempted to exhaust Cuban domestic procedures in order to prosecute and penalize criminally those responsible for the facts forming the subject-matter of this case. However, the Inter-American Commission has at all times considered that in the case of offenses of public action--and even those which arise out of private action--it is not valid to demand that the victim or his family exhaust domestic procedures, since it is the function of the State to preserve public order and, therefore, it is its obligation to enforce the criminal laws by bringing the procedure or by pursuing it to the end. That is, the obligation to investigate, prosecute, and punish those responsible for violations of human rights is an indelegable duty of the State. One consequence of this is that a public functionary, as distinct from a private person, has the legal obligation to report any offense of public action which comes to his attention in the course of his work. The foregoing statement is confirmed in those procedural systems which deny the victim or his family procedural standing, with the State holding the monopoly on criminal action. And in those others in which such standing is provided for, the exercise of it is not mandatory for the injured party, but optional, and it does not replace action by the State.
48. Nor is there anything in the record which demonstrates that the Cuban State--since February 24, 1996--has made any effort to investigate the facts, determine responsibility, and penalize criminally the Air Force pilots who executed the victims, or the authorities who authorized the use of lethal force against defenseless civil aircraft. The European Court of Human Rights has stated in this regard:
The general juridical prohibition on arbitrary death by action of agents of the State would in practice have no effect if there were no procedure whatever for review of the lawfulness of the use of lethal force by the authorities of the State. The obligation to protect the right to life in accordance with this provision, construed jointly with the general obligation of the State contemplated in Article 1 of the [European] Convention [on Human Rights] to guarantee to all citizens under its jurisdiction the rights and freedoms defined in the Convention, requires by inference that there should be some form of real official investigation if there have been deaths caused by the use of force by agents of the State.
49. The fact that for more than three years no exhaustive investigation has been commenced within the Cuban domestic jurisdiction to review the lawfulness of the use of lethal force against the civil aircraft; that neither the material perpetrators nor those who gave the orders from the Military Control Tower have been tried; and the absence of a fair reparation to the victims' families; all this makes it the responsibility of the Cuban State for violation of the right to justice recognized in Article XVIII of the American Declaration. Theo Van Boven, the Special Rapporteur of the Sub-Commission for the Prevention of Discrimination and Protection of Minorities of the Human Rights Commission of the United Nations, analyzed the question of impunity thus:
Persons who commit violations of human rights, whether they be civil or military, become more audacious if they are not held accountable before the courts. In a social and political atmosphere in which impunity prevails, it is likely that the right to reparation of the victims of flagrant violations of human rights and basic freedoms would be a mere illusion. It is difficult to imagine that a judicial system which protects the rights of victims can at the same time remain indifferent or inactive in the face of the flagrant offenses of those who have violated them.
IMMUTABILITY OF THE ACT OF COMMISSION OR OMISSION TO THE STATE
50. Once it has been shown that in the case sub lite the first element is present which involves the international responsibility of the Cuban State, namely actions violating the American Declaration of the Rights and Duties of Man, the Commission also deems it fully proven that such unlawful actions are imputable to the State, since the agents responsible are functionaries of the Cuban Air Force and, therefore, acted while clothed with an official function. In effect, the version of the eyewitnesses, the investigations of the International Civil Aviation Organization, and the transcript of the recordings between the Control Tower of Havana and the pilots of the aircraft which perpetrated the facts confirm the foregoing. Consequently, the events which took place on February 24, 1996, are imputable to the Cuban State.
DAMAGE CONSEQUENT UPON THE UNLAWFUL ACTIONS
51. The final element which involves the international responsibility of the Cuban State is the damage produced as a consequence of the unlawful actions committed by its agents in the afternoon of February 24, 1996. In the opinion of the Commission, the damage produced as a consequence of the unlawful actions committed by the Cuban State is as follows: a) Irreparable physical injury, consisting of the deaths of the four occupants of the civil aircraft; b) the pain and suffering and psychological injury caused to the victims' families, consisting of the emotional suffering for the loss of loved ones, the trauma arising out of the events, and the impossibility of recovering the bodies in order to give them a decent burial, all this, together with the knowledge that they have not received justice; that is to say, that the deaths caused by agents of the Cuban State have gone unpunished; and c) the physical damage consisting of loss of earnings and consequential damages.
52. Consequently, the Inter-American Commission considers that the Cuban State is under obligation: i) to investigate the facts; ii) to adopt appropriate measures in this regard; iii) to prosecute the agents of the State and/or other authorities who are responsible for the facts; and iv) to pay adequate reparation to the victims' families.
53. The Cuban State is responsible for the violation of the right to life--Article I of the American Declaration of the Rights and Duties of Man--to the detriment of Carlos Costa, Pablo Morales, Mario De La Peña and Armando Alejandre, who died as a result of the direct actions of its agents in the afternoon of February 24, 1996, while they were flying in international air space.
54. The Cuban State is responsible for the violation of the right to justice--Article XVIII of the American Declaration of the Rights and Duties of Man--to the detriment of the families of Carlos Costa, Pablo Morales, Mario De La Peña and Armando Alejandre, whereas the Cuban authorities, to date, have not conducted an exhaustive investigation in order to prosecute and penalize criminally the parties responsible therefor, nor have they indemnified said relatives for the damages and injuries which they have suffered as a result of the said unlawful acts.
Based on the analysis and conclusions of the present report, the Inter-American Commission on Human Rights recommends as follows to the Cuban State:
1. Conduct a complete, impartial, and effective investigation in order to identify, prosecute and penalize criminally the agents of the State responsible--materially and intellectually--for the deaths of Carlos Costa, Pablo Morales, Mario De La Peña and Armando Alejandre, for the events which took place in international air space on February 24, 1996.
2. Ratify the Protocol to the Agreement of the International Civil Aviation [Article 3 bis], an international agreement to which Cuba has been a Party since December 7, 1944.
3. Adopt the necessary measures so that the families of the victims receive appropriate and timely reparation that includes full satisfaction for the violations of human rights established herein, as well as payment of fair indemnification for patrimonial and extra-patrimonial damages, including moral damages.
The Commission, by note of May 19, 1999, forwarded to the Cuban State Report No. 81/99 concerning the present case, with a deadline of two months to comply with its recommendations, all this in accordance with Article 53 (1) and (2) of its Regulations.
The Cuban State did not submit comments, nor did it comply with the recommendations of the Commission.
On the basis of the foregoing considerations and in accordance with Article 53 (3) and (4) of its Regulations, the Commission decides to reiterate the conclusions and recommendations of the present report, to make it public, and to include it in its Annual Report to the General Assembly of the OAS. The Commission will, in compliance with its mandate, continue to evaluate the steps taken by the Cuban State with respect to the said recommendations until they have been complied with in full.
The Commission resolves to forward this report to the State of Cuba and to the petitioners in accordance with Article 53(4) of its Regulations.
Issued and signed at the seat of the Inter-American Commission on Human Rights in the city of Washington, D.C., on September 29, 1999. (Signed) Robert K. Goldman, Chairman; Helio Bicudo, First Vice Chairman; Claudio Grossman, Second Vice Chairman; Commissioners Jean Joseph Exume, Alvaro Tirado Mejía, and Carlos Ayala Corao.
I, the undersigned Jorge E. Taiana, in my capacity as Executive Secretary of the Inter-American Commission on Human Rights (known as CIDH), hereby certify in accordance with the provisions of Article 53 of its Regulations that these presents are a true copy of their original stored in the files of the Secretariat of the CIDH.
Jorge E. Taiana