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REPORT Nº 86/99
I. SUMMARY
1. On 25 February 1996, the Inter-American
Commission on Human Rights (hereinafter “the Commission” or “the
Inter-American Commission”) received several complaints brought
against the Republic of Cuba (hereinafter “the State,” “the Cuban
State,” or “Cuba”) according to which a MiG-29 military aircraft
belonging to the Cuban Air Force (FAC) downed two unarmed civilian
light airplanes belonging to the organization “Brothers to the
Rescue.”[1]
According to a report issued by the International Civil Aviation
Organization (ICAO), the incidents occurred on 24 February 1996 at
3:21 p.m. and 3:27 p.m., respectively, in international airspace. The
air-to-air missiles fired by the MiG-29 destroyed the civilian light
aircraft, immediately killing Armando Alejandre Jr. (45 years old),
Carlos Alberto Costa (29), Mario Manuel de la Peña (24), and Pablo
Morales (29). The complaint concludes with the Commission being
requested to begin proceedings in accordance with Articles 32 et
seq. of its Regulations and to declare Cuba responsible for
failing to comply with its international obligations contained in the
American Declaration of the Rights and Duties of Man (hereinafter “the
Declaration” or “the American Declaration”) for violating the right to
life and the right to a fair trial as set forth in Articles I and
XVIII of said international instrument.
2. After receiving several complaints regarding the
same incident and persons, the Commission combined them, as provided
for in Article 40(2) of its Regulations, as file Nº 11.589.[2]
Thus, the petitioners in the case at hand are the direct relatives of
the victims (Marlene Alejandre, Marlene Victoria Alejandre, Mirta
Costa, Osvaldo Costa, Miriam de la Peña, Mario de la Peña, and Eva
Barbas), Dr. Haydeé Marín (Institute of Human and Labor Rights at
Florida International University), Dr. Claudio Benedí (Cuban Patriotic
Council), and Mr. José J. Basulto (Brothers to the Rescue).
3. Since the start of proceedings in this case on 7
March 1996, the Cuban State has not replied to the Commission’s
repeated requests for information regarding the admissibility and
merits of the matter. Therefore, based on an exhaustive analysis of
the legal and factual grounds and in accordance with Article 42 of its
Regulations,[3]
the Commission believes that the complaint meets the formal
requirements for admissibility as set forth in the Regulations and
concludes that the Cuban State is responsible for violating the rights
enshrined in the American Declaration as reported by the petitioners
in their complaint of 25 February 1996.[4].
Based on the analysis and conclusions of this report, the Commission
recommends that the Cuban State conduct an exhaustive investigation
into the incidents in question, prosecute and punish the individuals
responsible for the different violations described herein, and make
adequate and timely amends to the victims’ direct relatives, including
the payment of fair compensatory indemnification.
II. PROCEEDINGS BEFORE THE COMMISSION
4. The Commission, by means of a note dated 7 March
1996, began proceedings in this case, asking the Cuban State to
provide the relevant information on the incidents described in that
note, along with any evidence indicating whether or not the remedies
available under domestic law had been exhausted. Following that date
the case has been processed in accordance with Article 32 et seq.
of the Commission’s Regulations. As stated above, at no time
between the start of proceedings and the present did Cuba reply to the
requests for information, in spite of being warned on repeated
occasions and being informed about the application of Article 42 of
the Commission’s Regulations. In fact, the Cuban State was notified
on 7 March and 19 April 1996; 4 February and 25 September 1997; 21 and
30 January 1998; and 12 June 1998.
At
its meeting Nº 1432, on May 5, 1999, during the 103rd session, the
Commission adopted Report Nº 81/99, pertaining to this case, in
accordance with Article 53, paragraphs 1 and 2, of its Regulations. In
a note dated May 19,1999, the Commission transmitted the report to the
Cuban State, granting it a period of two months in which to implement
the report’s recommendations. On July 19, 1999, when that period
expired, the Cuban State had not presented any observations on the
Commission’s report.
III. POSITIONS OF THE PARTIES
A. The petitioners
5. THE INCIDENT. Alejandre, Costa, De la Peña, and
Morales were members of the “Brothers to the Rescue” organization,
based in the city of Miami, Florida, United States of America. On the
morning of 24 February 1996, two of the Brothers to the Rescue Cessna
337 airplanes departed Opa Locka airport in south Florida.[5]
Costa was flying one airplane, and he was accompanied by Pablo
Morales, a Cuban citizen who had fled the country on a raft. De la
Peña was at the controls of the second plane, with Alejandre as his
passenger. Before departing, the two aircraft notified air traffic
controllers in both Miami and Havana of their flight plans, which were
to take them south of the 24th parallel.
6. Parallel 24 is located a good distance to the
north of Cuba’s 12-mile territorial waters and it serves as the
northernmost limit of the Havana Flight Information Region. Commercial
and civilian aircraft routinely fly in this area, and aviation
practice requires that they notify Havana air traffic control when
they move south of parallel 24. Both Brothers to the Rescue airplanes
complied with this custom by communicating with Havana, identifying
themselves, and giving their position and altitude.
7. While the two aircraft were still north of the
24th parallel, the Cuban Air Force ordered the scrambling of two
military aircraft, a MiG-29 and a MiG-23, operating under the control
of a military station on Cuban soil. The MiGs were carrying artillery,
short-range missiles, bombs, and rockets, and they were flown by
members of the FAC. Extracts from the radio communications between
the MiG-29 and the military control tower in Havana detail what
transpired next: MIG-29: OK, the objective is in sight; the objective is in sight. It is a small airplane. Copied; small airplane in sight.
MIG-29: OK, we have it in sight, we have
it in sight.
MIG-29: The objective is in sight.
Military Control: Go ahead.
MIG-29: The objective is in sight.
Military Control: Airplane in sight.
MIG-29: Is it coming again?
MIG-29: It is a small airplane, a small
airplane.
MIG-29: It is white; white.
Military Control: Color and registration
of the airplane?
Military Control: Buddy.
MIG-29: Hey, the registration as well?
Military Control: What type and color?
MiG-29: It is white and blue.
MIG-29: White and blue, at low altitude,
a small airplane.
MIG-29: Give me instructions.
MIG-29: Instructions!
MIG-29: Hey, give me authorization . . .
MIG-29: If we overfly it, things are
going to get complicated. Let’s overfly it. There are some vessels
coming that way, so I’m going to overfly it.
MIG-29: Talk to me; talk to me.
MIG-29: I’ve got a lock; I’ve got a
lock.
MIG-29: We’re locked on. Give us the
authorization.
MIG-29: It’s a Cessna 337. That one, that one. Hell, give us the authorization.
Military Control: Fire.
MIG-29: Hell, give us the authorization!
We got it!
Military Control: Authorized to destroy.
MIG-29: We copy. We copy.
Military Control: Authorized to destroy.
MIG-29: Understood; I had already received it. Leave us alone for a minute.
Military Control: Don’t lose him.
MIG-29: First shot.
MIG-29: We blew his balls off! We blew
his balls off!
MIG-29: Wait; look and see where he went
down.
MIG-29: Yes! Yes! Shit, we hit him!
Jesus!
MIG-29: Mark the place where we took him
down.
MIG-29: We’re on top of him. He won’t
give us any more fucking trouble.
Military Control: Congratulations to the
pair of you.
MIG-29: Mark the place.
. . .
MIG-29: We are climbing and coming home.
Military Control: Stay there, circling
above.
MIG-29: Above the objective?
Military Control: Correct.
MIG-29: Jesus, we told you, buddy.
Military Control: Correct; the objective
is marked.
MIG-29: Go ahead.
Military Control: OK, climb to 3200, 4000 meters above the destroyed objective and keep a low speed.
MIG-29: Go ahead.
Military Control: I need you to
stay . . . there. What 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 plane] came down. It’s in
the area where it came down.
MIG-29: We have sight of the airplane.
Military Control: Stay there.
MIG-29: Buddy, it’s in the incident
area, where the objective came down. They are going to give us
authorization.
MIG-29: Hey, SAR isn’t necessary.
There’s nothing left. Nothing.
Military Control: Correct, follow the
plane. You are going to remain above it.
MIG-29: We are above it.
Military Control: Correct . . .
MIG-29: What for?
MIG-29: Is the other one authorized?
Military Control: Correct.
MIG-29: Marvelous. Let’s at it, Alberto.
MIG-29: Understood; we are now going to
destroy it.
Military Control: Do you still have it
in sight?
MIG-29: We have it, we have it; we are
working. Let us do our job.
MIG-29: The other one is destroyed; the
other one is destroyed. Homeland or death, you bastards! The other one
is also down.[6]
8. The
MiG-29’s air-to-air missiles disintegrated the Brothers to the Rescue
airplanes, killing their occupants instantaneously and leaving almost
no recoverable remains. Only a broad slick of oil marked the place
where the planes were downed. At no time did the FAC notify or warn
the civilian airplanes, try to use other interception methods, or give
them an opportunity to land. The MiGs’ first and only response was the
intentional destruction of the civilian airplanes and their four
occupants. This actions were a clear violation of established
international rules, which require all measures to be exhausted before
resorting to aggression against any airplanes and utterly forbid the
use of force against civilian craft.[7]
In addition, agents of the Cuban State violated several basic human
rights set forth in the American Declaration of the Rights and Duties
of Man.
9. THE
VICTIMS. Armando Alejandre was 45 years old at the time of his
death. Although born in Cuba, Alejandre made Miami, Florida his home
at an early age and became a naturalized U.S. citizen. Alejandre
served an eight-month tour of duty in the Vietnam War, completed his
college education at Florida International University, and worked as a
consultant to the Metro-Dade Transit Authority. He was survived by his
wife of 21 years, Marlene Alejandre, and his daughter Marlene, a
university student.
10. Carlos
Alberto Costa was born in the United States in 1966 and lived in
Miami. He was only 29 years old. Always interested in aviation and
hoping to someday oversee the operations of a major airport, Costa
earned his bachelor's degree at Embry-Riddle Aeronautical University
and worked as a Training Specialist for the Dade County Aviation
Department. He was survived by his parents Mirta Costa and Osvaldo
Costa and by his sister, Mirta Méndez.
11. Mario
Manuel De la Peña was also born in the United States and was 24 years
old at the time of his death. De la Peña was in his last semester at
Embry-Riddle Aeronautical University, working toward his goal of being
an airline pilot, when he was killed. During that semester he had
obtained a coveted and highly competitive position with American
Airlines. The university granted De la Peña a posthumous bachelor's
degree in professional aeronautics. He was 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 16 May 1966. On 5 August 1992 he
fled the island on a raft and was rescued by the Brothers to the
Rescue organization. As a result, he joined the organization as a
volunteer and flew as copilot. Morales studied cartography and
graduated as a geodesist.
13. According
to the petitioners, the responsibility of the Cuban State lies, first,
in that the unprovoked firing of deadly rockets at a defenseless,
unarmed civilian aircraft undoubtedly comes within the scope of
“extrajudicial execution.” That term is defined in reference to its
use in the Torture Victim Protection Act (TVPA), which states that the
term “extrajudicial execution” means a deliberated killing not
authorized by a previous judgment pronounced by a regularly
constituted court affording all the judicial guarantees set forth in
international human rights instruments and, in particular, in the
American Declaration of the Rights and Duties of Man. Cuba’s actions
in this case come within that definition. The occupants of the two
unarmed civilian planes received no warning of any type regarding
their imminent destruction.
14. The FAC
was acting as an agent of Cuba when it committed the killings.[8]
The evidence presented shows how the pilots of the Cuban MiGs obtained
authorization from state officials prior to downing each plane and
received hearty congratulations from those officials after the planes
were destroyed.
15. The
incidents in which the victims were killed occurred in international
airspace. The ICAO concluded that the aircraft were over international
waters when they were shot down. The first plane was 18 miles off the
Cuban coast when it was destroyed by FAC missiles; the second was 30.5
miles away from Cuba. These numbers place the airplanes a good
distance from the 12 miles of territorial waters Cuba is allowed under
international law.[9]
Furthermore, the evidence provided by the crew and passengers of the
Majesty of the Seas, a cruise ship that was in the vicinity,
and of the Tri-Liner, a private fishing vessel, indicated that
the civilian aircraft were flying in international airspace toward
Florida and away from Cuba when they were destroyed by the agents of
the Cuban State.
16. The
practice of summary execution has been roundly condemned by the global
community. Many international human rights conventions and
declarations enshrine the right of all individuals to freedom from
arbitrary or unjustifiable deprivation of life.[10]
The consensus against extrajudicial executions is so extended that
each instrument or agreement that has tried to define the scope of
international human rights law has enshrined the right of due process
for protecting that right. The forbidding of extrajudicial executions
thus raises to the level of imperative law a provision of
international law that is so basic that it is binding on all members
of the international community. The human rights rules that have been
generally accepted and that therefore have been incorporated into
national law cover such basic rights as the right not to be murdered,
tortured, or in any way submitted to cruel, inhuman, or degrading
punishment and the right of freedom from arbitrary arrest. The ban on
summary executions is universal and binding on states. A state
violates international human rights law if, as state policy, it
practices, encourages, or condones murder or allows the disappearance
of individuals. Consequently, the extrajudicial killings of De la
Peña, Costa, Alejandre, and Morales committed by agents of the Cuban
State make that State’s internationally responsible for violating the
right to life set forth in Article I of the American Declaration of
the Rights and Duties of Man. And by refusing justice, the Cuban State
is responsible for ignoring the right to a fair trial enshrined in
Article XVIII of that international instrument.
B. The State
17. The Cuban
State did not reply to the Commission’s repeated requests for
information and for its comments on the admissibility and merits of
the complaint. The Commission also notes that to date the State has
not disputed the facts set forth in the complaint, in spite of the
series of notes asking it to do so. Consequently, the period of time
allowed in the Commission’s Regulations for the State to provide
information on the case at hand has expired by a wide margin.
IV. ANALYSIS
A. Competence of the Commission and formal requirements for
admissibility
18. The
Commission is competent ratione materiae to hear the case at
hand since it involves violations of rights enshrined in the American
Declaration of the Rights
and Duties of Man. Its
competence stems from provisions of its Statute and Regulations and of
the OAS Charter. Under the Charter, all member states pledge to
respect the essential rights of individuals. In the case of states
not parties to the Convention, the rights in question are those
established in the American Declaration, which is a source of
international obligations.[11]
In its Statute, the Commission is instructed to place special emphasis
on the observance of the human rights recognized in that Declaration's
Article I (life, liberty, and personal security), Article II (equality
before law), Article III (freedom of religion and worship), Article IV
(freedom of investigation, opinion, expression, and dissemination),
Article XVIII (fair trial), Article XXV (protection from arbitrary
arrest), and Article XXVI (due process of law).
19. The
Commission has processed this case in compliance with the provisions
of Chapter III of its Regulations and Articles 1, 18, and 20 of its
Statute. Article 51 of the IACHR Regulations states that the
Commission “shall receive
and examine any petition that contains a denunciation of alleged
violations of the human rights set forth in the American Declaration
of the Rights and Duties of Man, concerning the member states of the
Organization that are not parties to the American Convention on Human
Rights.”
20. The
procedure applied to this case was the one set forth in Article 52 of
the Commission’s Regulations, to wit: “The
procedure applicable to petitions concerning member states of the
Organization that are not parties to the American Convention on Human
Rights shall be that provided for in the General Provisions included
in Chapter I of Title II, in Articles 32 to 43 of these Regulations,
and in the articles indicated below.”
21. The
presentation of the petition meets the formal requirements for
admissibility contained in Article 32 of the Commission’s Regulations,
in that the procedure described in its Article 34 has been exhausted.
Moreover, the claim is not pending any other international settlement
procedure, nor does it reproduce any other petition that the
Commission has previously examined.
22. The
Commission is also competent ratione personae, since Article 26
of its Regulations provides that "[a]ny
person or group of persons or nongovernmental entity legally
recognized in one or more of the member states of the Organization may
submit petitions to the Commission, in accordance with these
Regulations, on one's 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." In this context, the
Commission must reiterate that the Cuban State's failure to respond in
these proceedings is a breach of its international legal obligation to
provide information in response to petitions and other communications
containing allegations of human rights violations. The Commission has
already stated on numerous occasions that the intent of the
Organization of American States in its "Exclusion of the Present
Government of Cuba from Participation in the Inter-American System"[12]
was not to leave the Cuban people without protection. The exclusion
of that government from the regional system in no way means that it
can fail to meet its international obligations in matters of human
rights. Consequently, the Commission bases its analysis on the
evidence at its disposal and on Article 42 of its Regulations.
23. In terms
of its competence ratione loci, clearly the Commission is
competent with respect to human rights violations that occur within
the territory of OAS member states, whether or not they are parties to
the Convention. It should be specified, however, that under certain
circumstances the Commission is competent to consider reports alleging
that agents of an OAS member state have violated human rights
protected in the inter-American system, even when the events take
place outside the territory of that state. In fact, the Commission
would point out that, in certain cases, the exercise of its
jurisdiction over extraterritorial events is not only consistent with
but required by the applicable rules. The essential rights of the
individual are proclaimed in the Americas on the basis of equality and
nondiscrimination, "without
distinction as to race,
nationality, creed, or sex."[13]
Because individual rights are inherent to the human being, all the
American states are obligated to respect the protected rights of any
person subject to their jurisdiction. Although this usually refers to
persons who are within the territory of a state, in certain instances
it can refer to extraterritorial actions, when the person is present
in the territory of a state but subject to the control of another
state, generally through the actions of that state's agents abroad.[14]
In principle, the investigation refers not to the nationality of the
alleged victim or his presence in a particular geographic area, but to
whether, in those specific circumstances, the state observed the
rights of a person subject to its authority and control.[15]
24. The
European Commission on Human Rights has ruled on this matter in the
case brought by Cyprus against Turkey following the Turkish invasion
of that island. In its complaint, Cyprus alleged that the European
Convention had been violated in the part of its territory occupied by
Turkish forces. Turkey, for its part, maintained that, under Article
1 of the European Convention, the competence of the Commission was
limited to the examination of actions allegedly committed by a state
party in its own national territory and that Turkey could not be found
to have violated the Convention since it had not extended its
jurisdiction to Cyprus. The European Commission rejected that
argument, as follows:
In
Article 1 of the Convention, the High Contracting Parties undertake to
secure the rights and freedoms defined in Section 1 to everyone
“within their jurisdiction” (in the French text: “relevant de leur
jurisdiction"). The Commission finds that this term is not, as
submitted by the respondent Government, equivalent to or limited to
the national territory of the High contracting Party concerned. It is
clear from the language, in particular of the French text, and the
object of this article, and from the purpose of the Convention as a
whole, that the High contracting Parties are bound to secure the said
rights and freedoms to all persons under their actual authority
and responsibility, whether that authority is exercised within their
own territory or abroad.[16]
25. In the
case sub lite, the petitioners stated that their allegations
were guided by the provisions of the American Declaration of the
Rights and Duties of Man. The Commission has examined the evidence
and finds that the victims died as a consequence of direct actions
taken by agents of the Cuban State in international airspace.
The fact that the events took place outside Cuban jurisdiction does
not limit the Commission's competence ratione loci, because, as
previously stated, when agents of a state, whether military or
civilian, exercise power and authority over persons outside national
territory, the state's obligation to respect human rights
continues--in this case the rights enshrined in the American
Declaration. The Commission finds conclusive evidence that agents of
the Cuban State, although outside their territory, placed the civilian
pilots of the "Brothers to the Rescue" organization under their
authority. Consequently, the Commission is competent ratione loci
to apply the American Convention extraterritorially to the Cuban State
in connection with the events that took place in international
airspace on February 24, 1996.
26. As regards
the requirement that domestic remedies be exhausted, Article 37(1) of
the Commission’s Regulations states that “for
a petition to be admitted by the Commission, the remedies under
domestic jurisdiction must have been invoked and exhausted in
accordance with the general principles of international law.” In this
regard, the Inter-American Court of Human Rights has stated that:
Generally recognized principles of international law indicate, first,
that this is a rule that may be waived, either expressly or by
implication, by the State having the right to invoke it, as this Court
has already recognized (see Viviana Gallardo et al., Judgment
of November 13, 1981, Nº G 101/81. Series A, para. 26). Second, the
objection asserting the non-exhaustion of domestic remedies, to be
timely, must be made at an early stage of the proceedings by the State
entitled to make it, lest a waiver of the requirement be presumed.[17]
27. In the
present case, the Cuban State made no objection asserting that
domestic remedies had not been exhausted upon receiving formal
notification of the petition and thus opposing its admissibility;
neither did it respond to the Commission’s repeated requests for
information during processing of the case. In consideration of this,
and with no evidence other than that contained in the case documents,
the Commission concludes that the Cuban State has tacitly declined to
make an objection asserting the nonexhaustion of domestic remedies.
B. Evidence in
the case at hand
28. The
Commission will now present the documents and other evidence, which
have been thoroughly examined and which provide indications for
reaching a decision regarding the events of the afternoon of 24
February 1996, when the four civilian pilots from Brothers to the
Rescue lost their lives, allegedly as a result of actions taken by
agents of the Cuban State. Thus, the documents and other evidence
submitted to the Commission — which it has carefully processed,
analyzed, and assessed — include: (1) the report of the International
Civil Aviation Authority (ICAO) of 28 June 1996; (2) a descriptive
summary of the incident drawn up by the victims’ relatives; (3) a
written transcript of the testimony given to the IACHR by the victims’
relatives on 3 March 1997; (4) a leaflet with biographies and
photographs of the four dead pilots, along with other general
information; (5) the report of the United Nations Special Rapporteur
for Cuba; (6) the final judgment against the Republic of Cuba handed
down in a civil suit by Judge King of the United States District
Court, South Florida; (7) the testimony given by Capt. Charles F.
Leonard, aviation expert, during the civil trial in the U.S. courts;
(8) the testimony given by Prof. Stephen J. Schnably, expert in
international law, during the civil trial in the U.S. courts; (9) a
copy of the USA’s 1996 Anti-Terrorism and Effective Death Penalty Act;
(10) a copy of the USA’s 1976 Foreign Sovereign Immunities Act; (11)
an article from Times magazine, 11 March 1996, titled “The Cold
War is Back”; (12) EFE newswire, dated 5 March 1996: Decisión de
derribo se tomó para evitar nueva humillación [Decision to shoot
down taken to prevent further humiliation]; (13) EFE newswire, dated 5
March 1996: Piloto admite que exclamó frase despectiva en el
derribo [Pilot admits to exclaiming derogative phrase
during downing]; (14) transcriptions of interviews with Gen.
Rubén Martínez Puente, commanding
officer of the Cuban Antiair Defense Force, broadcast by Cubavisión,
Havana, on 6 March 1996; (15) audio tape of the flightdeck recorder
from aircraft 2506, 24 February 1996; and (16) scale models of the
Cessnas and MiGs involved in the shootdown.
C. Analysis of the evidence
with regard to the material perpetrators of the incident
29. After
assessing the evidence, the Commission must analyze the events of 24
February 1996 and determine whether they cause the Cuban State to
incur in international responsibility for the alleged violation of
rights enshrined in the American Declaration of the Rights and Duties
of Man. In other words, the Commission must ascertain whether the
Cuban State is responsible for the death of the four civilian pilots
and, consequently, whether the three elements that cause a State to be
internationally responsible are present, namely (i) whether there
existed an action or a failure to act that violated an obligation
enshrined in a rule of international law currently in force, which in
this case would be the American Declaration; (ii) whether that action
or a failure to act can be attributed to the State in its capacity as
a juridical person, and (iii) whether harm or damage was caused as a
result of the illicit act.
30. One of the
pieces of evidence that casts light on the substance of the complaint
is the report by the International Civil Aviation Organization (ICAO),
which is included in the file on this case. Following the incident,
during its 147th session on 6 March 1996 the ICAO Council adopted a
resolution regarding the downing of two private U.S.-registered
civilian aircraft by Cuban military airplanes on 24 February 1996. The
ICAO studied this issue in response to a request made by the United
Nations Security Council on 27 February 1996 and in consideration of
the requests made by the governments of the USA and Cuba for an
exhaustive investigation of the incident to be conducted. In
compliance with that request, on 28 June 1996 the ICAO presented the
Security Council with a report titled “Report of the Investigation
into the Shooting Down of Two U.S.-Registered Private Aircraft by a
Cuban Military Plane on 24 February 1996”.
31. With
regard to the events, the ICAO report establishes that the Brothers to
the Rescue pilots and followers met at a hangar at Opa Locka airport,
located in south Florida, in the morning of 24 February 1996, and that
at 9:12 a.m. the pilot of the Cessna 337C, registration N2456S, who
was the organization’s flight operations chief, began presentation of
the flight plans according to visual flight rules (VFR) prior to
conducting a rafter rescue flight. However, due to other commitments
on the part of some of the pilots, the flight did not leave at 10:15
a.m. as had been planned. The pilots returned to the hangar after
11:00 a.m. and decided to have lunch before taking off. At 1:01 p.m.
the three Cessna 337 aircraft — registration numbers N2506 (José
Basulto, Arnaldo Iglesias, Andrés and Silvia Iriondo), N2456S (Carlos
Costa and Pablo Morales), and N5485S (Mario De La Peña and Armando
Alejandre) — took off to the west at 1:11, 1:12, and 1:13 p.m.,
respectively. Once in the air, the three Cessnas contacted Miami AIFSS
(call sign Miami Radio) to activate their flight plans. At 2:39 p.m.
Cuban air defense radar detected aircraft to the north of Parallel
24N. At 2:43 p.m. two military interception airplanes were immediately
prepared at the San Antonio de los Baños airbase. These airplanes — a
two-man MiG-29 UB and a MiG-23 ML — were armed with heat-seeking
air-to-air missiles and machineguns. They took off at 2:55 p.m. to
patrol around 15 to 20 km north of the coast at altitudes of between
200 and 500 meters.[18]
The ICAO then concluded, inter alia, the following:
-
At 15:21 hours on 24 February 1996, N2456S was destroyed by an
air-to-air missile fired by a Cuban MiG-29 military aircraft.
-
At 15:27 hours on 24 February 1996, N5485S was destroyed by an
air-to-air missile fired by a Cuban MiG-29 military aircraft.
-
The recorded positions and track of the Majesty of the Seas,
the observations by its crew and passengers, the position of the
Tri-Liner relative to the Majesty of the Seas, and the
resulting estimated locations of the shootdowns were considered to be
the most reliable position estimates.
-
No corroborative evidence of the position of the Majesty of the
Seas was obtained. With this qualification and based on the
recorded positions of the Majesty of the Seas, N2456S was shot
down approximately at position 23°29N 082°28W, 9 NM outside Cuban
territorial airspace and N5485S was shot down approximately at
position 23°30.1N 082°28.6W, 10 NM outside Cuban territorial
airspace (emphasis added).
-
Means other than interception were available to Cuba, such as radio
communication, but had not been utilized. This conflicted with the
ICAO principle that interception of civil aircraft should be
undertaken only as a last resort.
-
During the interceptions, no attempt was made to direct N2456S and
N5485S beyond the boundaries of national airspace, guide them away
from a prohibited, restricted or danger area or instruct them to
effect a landing at a designated aerodrome.
-
In executing the interception, the standard procedures for maneuvering
and signals by the military interceptor aircraft, in accordance with
ICAO provisions and as published in AIP Cuba, were not followed.
-
The Protocol introducing Article 3-bis into the Chicago Convention had
not entered into force. Neither Cuba nor the United States had
ratified it.[19]
-
The rule of customary international law that States must refrain from
resorting to the use of weapons against civil aircraft applies
irrespective of whether or not such aircraft is within the territorial
airspace of that State.[20]
32. The ICAO also notes: “There were several
eyewitnesses to the event. Personnel and passengers on board the
Majesty of the Seas and the crew of the fishing boat Tri-Liner
observed the destruction of an aircraft (N2456S) as well as the later
destruction of another aircraft (N5485S). An observer on duty in an
observation post on shore in Havana and the yachtsman on the sailing
boat heard and saw one event, but neither of them was able to tell
whether he saw the destruction of the first or the second aircraft.”
[21]
According to ICAO, the Majesty of the Seas had an automatic
system for recording the time, position, velocity, direction, relative
wind, and depth every five minutes, based on an international system
for determining position (GPS) and other sensors.[22]
33. Regarding the witnesses, the ICAO states that
the watchkeeping staff on the bridge of the Majesty of the Seas, at
15:23 hours, observed an explosion in the air and the debris that fell
into the sea. Several passengers and other members of the crew also
saw the explosion and the falling debris. The occurrence was recorded
in the ship’s log. The ICAO further notes that a crewman of the
fishing boat Tri-Liner heard and saw the explosion directly
overhead and called the master, who was below deck. Both observed the
aircraft fall into the sea in flames, from 200 to 400 yards astern of
their vessel. In addition, a military-type aircraft was seen. The
fishing boat turned around, approached the place of the impact, and
observed some small debris and an oil slick. A 1.5 ft square
orange-colored box or float, with a yellow line attached, was seen but
not recovered. The boat remained on the scene for about 10 minutes;
no other items came to the surface. The Tri-Liner then resumed
its course to the north. The master later estimated the time of the
explosion as 15:15 hours and the position as 23 30N 082 17W.
[23]
34. The
Commission has also been able to verify that the extracts from the
radio communications exchanged by the MiG-29 and the military control
tower in Havana, as supplied by the petitioners, agree with those
contained in the ICAO report, as do the adjectives used by the FAC
pilots before shooting down the civilian aircraft and the orders they
received from their superiors in Havana, Cuba.
35. The
International Civil Aviation Organization described the damage done to
the civilian pilots and their aircraft in the following terms:
The pilot and the other occupant of the
Cessna 337C, N2456S [Carlos Costa and Pablo Morales], are missing and
presumed fatally injured. The pilot was a citizen of the United
States, and the other occupant was a legal resident of the United
States.
The pilot and the other occupant of the
Cessna 337B, N5485S [Mario De La Peña and Armando Alejandre], are
missing and presumed fatally injured. Both occupants were citizens of
the United States.
The Cessna 337C, N3456S, and the Cessna
B, N5485S, were each destroyed by one air-to-air missile fired from a
Cuban MiG-29 military aircraft. Both Cessna aircraft broke up in the
air from the explosions of the missiles, the wreckage impacted the sea
and sank.[24]
36. As regards
the pilots of the Cuban Air Force MiGs that were involved in the 24
February 1996 incident, the ICAO noted the following:
Pilot of the MiG-29. The pilot
of the MiG-29 was qualified in accordance with existing Cuban
Anti-Aircraft Defense/Air Force regulations. The pilot, male, 44
years of age, held the rank of Lieutenant Colonel. His total flying
experience was over 1,000 hours, of which about 500 hours were in
MiG-29 aircraft. He had been flying MiG aircraft for 19 years and had
participated in three international assignments, including 74 combat
missions.
Co-pilot of the MiG-29. The
co-pilot of the MiG-29 was qualified in accordance with existing Cuban
Anti-Aircraft Defense/Air Force regulations. The co-pilot, male, 44
years of age, held the rank of Lieutenant Colonel. His total flying
experience was over 1,800 hours. He had been flying for 26 years and
had participated in international assignments, including over 30
combat missions.
Pilot of the MiG-23. The pilot
of the MiG-23 was qualified in accordance with existing Cuban
Anti-Aircraft Defense/Air Force Regulations. The pilot, male, 35 years
of age, held the rank of Major. His total flying experience was over
800 hours. He had been flying MiG aircraft for 15 years, and had
participated in two international assignments, including some combat
missions.
[25]
37. The
Inter-American Commission, based on the above considerations and on
the evidence made available to it, offers the following clarifications
regarding the events of 24 February 1996:
i. The
incidents described in the petitioners’ complaint, together with the
evidence they provided, agree in full with the investigations
conducted by the International Civil Aviation Organization (ICAO) in
their factual description of the events and of the persons directly
behind them.
ii. The
destruction of the two civilian aircraft in international airspace and
the death of their four occupants at the hands of agents of the Cuban
Air Force constitute flagrant violations of the right to life.
iii. The fact
that weapons of war and combat-trained pilots were used against
unarmed civilians shows not only how disproportionate the use of force
was, but also the intent to end the lives of those individuals.
Moreover, the extracts from the radio communications between the
MiG-29 pilots and the military control tower indicate that they acted
from a superior position and showed malice and scorn toward the human
dignity of the victims.
iv. There is abundant evidence
in this case to indicate the presence of the three elements that would
make the Cuban State internationally responsible for the deaths of the
four pilots in the afternoon of 24 February 1996.
D. The
international responsibility of the cuban state
EXISTENCE OF AN ACTION OR FAILURE TO ACT THAT VIOLATES AN
OBLIGATION ENSHRINED IN A PROVISION OF CURRENT INTERNATIONAL LAW
38. RIGHT TO
LIFE: The first article of the American Declaration of the Rights and
Duties of Man enshrines the right to life by stating that “every
human being has the right to life, liberty and the security of his
person.” In addition, the Inter-American Commission has also ruled
that the right to life is
“the foundation and basis of all other rights,”[26]
adding that:
It
can never be suspended. Governments may not use, under any
circumstances, illegal or summary execution . . . This type of
measures proscribed by the Constitutions of the states and is the
international instruments that protect the fundamental rights of
persons.[27]
39. The
Commission has also stated that “the obligation of respecting and
protecting human rights is an obligation erga omnes, i.e., one
that the Cuban State must assume--like all other member states of the
OAS, whether or not they are signatories of the American Convention on
Human Rights--toward the inter-American community as a whole, and
toward all individuals subject to its jurisdiction, as direct
beneficiaries of the human rights recognized by the American
Declaration of the Rights and Duties of Man.”[28]
In this regard, the Inter-American Court of Human Rights has indicated
that for the states "the American Declaration is a source of
international obligations. The fact that the Declaration is not a
treaty should not lead one to conclude that it has no legal effect…".[29]
40.
Furthermore, the public law doctrine regarding international human
rights law is very broad in analyzing states’ obligations of ensuring
respect for the right to life. For example, Héctor Faúndez Ledesma, a
Venezuelan jurist and professor at the Central University of
Venezuela, has stated that:
Substantively, the right to life seeks to protect the citizen from the
capricious act by one who has state power and who, abusing that power,
may feel the temptation to dispose of those who may disturb him . . .
. . . it should be observed that the right to life implies two
distinct obligations on the state: first, the obvious consequence is
that the state authorities, and in particular the police and military
forces, should abstain from causing arbitrary deaths; and second, this
guarantee implies the state’s duty to protect persons from acts of
private persons that may constitute an arbitrary attack on their life,
punishing them so as to deter or prevent such attacks.[30]
41. In this
regard, the Commission believes that in this case the presence of the
first element giving rise to the international responsibility of the
Cuban State has been adequately proven: the existence of actions
originating with its agents that violated the first obligation set
forth in the American Declaration--the right to life of Carlos Costa,
Pablo Morales, Mario De La Peña, and Armando Alejandre in the course
of the events of 24 February 1996.
42. Neither
can the Commission fail to refer to the ICAO’s conclusions that the
agents of the Cuban State made no effort to use means other than
lethal force to guide the aircraft out of the restricted or danger
area. The Commission believes that the indiscriminate use of force,
and particularly the use of firearms, is an affront to the right to
life and personal integrity. In this particular case, the military
airplanes acted irregularly: without prior warning, without evidence
that their actions were necessary, without keeping things in their
correct proportion, and without the existence of due motivation.
43. The United
Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions has stated that “if an agent of the services of repression
uses force in excess of that necessary to attain his legitimate goal
and a person is killed, that would equate to an arbitrary execution.”[31]
In the case at hand, the pilots of the civilian light aircraft posed
no danger to Cuba’s national security, to the Cuban people, or to the
military pilots. Regarding the disproportionate use of force and the
arbitrary taking of lives, the Inter-American Court of Human Rights
has stated that:
Without question, the State has the right and duty to guarantee its
security. It is also indisputable that all societies suffer some
deficiencies in their legal orders. However, regardless of the
seriousness of certain actions, the power of the State is not
unlimited, nor may the State resort to any means to attain its ends.
The State is subject to law and morality. Disrespect for human dignity
cannot serve as the basis for any State action.[32]
44. In the
same regard, the European Court of Human Rights has stated that:
. . . soldiers [trained] to continue shooting once they opened fire
until the suspect was dead. . . . Against this background, the
authorities were bound by their obligation to respect the right to
life of the suspects to exercise the greatest of care in evaluating
the information at their disposal before transmitting it to soldiers
whose use of firearms automatically involved shooting to kill.[33]
45. From the
circumstances surrounding the events of 24 February 1996, from the
disproportionate and indiscriminate use of lethal force applied to the
civilian aircraft, from the intensity of that force, and from the way
in which the authorities at the Havana military control tower
congratulated the MiG-29 pilots after they had carried out their
orders, the Commission finds sufficient evidence that Carlos Costa,
Pablo Morales, Mario De La Peña, and Armando Alejandre were
arbitrarily or extrajudicially executed at the hands of agents of the
Cuban State.[34]
Consequently, the Cuban State is responsible for violating the right
to life, as enshrined in Article I of the American Declaration of the
Rights and Duties of Man.
46. RIGHT TO A
FAIR TRIAL: The American Declaration sets forth the remedies to which
all individuals who believe their rights to have been violated by
state authorities shall have access. Thus, Article XVIII stipulates
that: “Every person may
resort to the courts to ensure respect for his legal rights. There
should likewise be available to him a simple, brief procedure whereby
the courts will protect him from acts of authority that, to his
prejudice, violate any fundamental constitutional rights.”
47. In the
case documents there is no evidence to indicate that the victims’
families attempted to exhaust domestic Cuban law in order to secure
the prosecution and punishment of the perpetrators of the incident at
hand. Nevertheless, the Inter-American Commission has always
maintained that in the case of crimes of public action, and even in
those which may be prosecuted by a private actor, it is not valid to
demand exhaustion of domestic remedies of the victim or the victim's
relatives, for the state has a duty to maintain public order, and
therefore it has an obligation to set the criminal law system into
motion and to process the matter until the end. In other words, the
obligation to investigate, prosecute, and punish the persons liable
for human rights violations is a non-delegable duty of the state. One
consequence is that public employees, unlike private persons, have a
legal obligation to denounce all crimes of public action that they
come to learn of in performing their duties. The preceding statement
is confirmed in those procedural regimes that deny the victim or
victim's relatives any standing, as the state monopolizes the ability
to press criminal charges. And where such standing is provided for,
its exercise is not compulsory, but optional for the person who has
suffered harm, and does not take the place of state action.
48. Neither do
the documents contain any evidence to indicate that the Cuban State,
since 24 February 1996, has made any effort to investigate the
incident, identify responsibilities, and punish either the air force
pilots who executed the victims or the authorities who authorized the
use of lethal force against defenseless civilian aircraft. In this
regard, the European Court of Human Rights has stated that:
A
general legal prohibition of arbitrary killing by the agents of the
State would be ineffective, in practice, if there existed no procedure
for reviewing the lawfulness of the use of lethal force by State
authorities. The obligation to protect the right to life under this
provision, read in conjunction with the State's general duty under
Article 1 of the [European] Convention to “secure to everyone within
their jurisdiction the rights and freedoms defined in [the]
Convention”, requires by implication that there should be some form of
effective official investigation when individuals have been killed as
a result of the use of force by, inter alios, agents of the
State.[35]
49. The fact
that in more than three years no exhaustive investigation was begun
under Cuba’s domestic laws to study the legitimacy of the force used
against the civilian aircraft, that neither the perpetrators nor the
individuals who gave the orders from the military control tower have
been brought to trial, and that fair reparations have not been made to
the relatives of the victims makes the Cuban State responsible for
violating the right to a fair trial as set forth in Article XVIII of
the American Declaration. The Special Rapporteur of the Sub-Commission
on Prevention of Discrimination and Protection of Minorities of the
United Nations Commission on Human Rights, Theo Van Boven, analyzed
the question of impunity in the following terms:
Perpetrators of human rights violations, whether civilian or military,
become all the more
irresponsible if they are not held to account before a court of
law.... It may therefore be concluded that in a social and political
climate where impunity prevails, the right to reparation for victims
of gross violations of human rights and fundamental freedoms is likely
to become illusory. It is hard to perceive that a system of justice
that cares for the rights of victims can remain at the same time
indifferent and inert towards gross misconduct of perpetrators.[36]
ATTRIBUTION OF THE
ACTION OR FAILURE TO ACT TO THE STATE
50. After
showing that the first element causing the international
responsibility of the Cuban State--the actions that violated the
American Declaration of the Rights and Duties of Man--was present in
the case at hand, the Commission also believes it has been clearly
proven that those illicit actions were attributable to the State, in
that the responsible agents were officers of the Cuban Air Force and
were thus acting in performance of official functions. This is
confirmed by the eye-witnesses’ reports, the International Civil
Aviation Organization’s investigation, and the transcript of the radio
exchanges between the Havana control tower and the aircraft pilots who
perpetrated the actions. Consequently, the events of 24 February 1996
are attributable to the Cuban State.
THE DAMAGE CAUSED BY
THE ILLICIT ACTIONS
51. The final
element giving rise to the international responsibility of the Cuban
State is the damage caused as a result of the illicit actions carried
out by its agents on the afternoon of 24 February 1996. In the
Commission’s opinion, the damage caused by the illicit actions of the
Cuban State involved the following: (a) irreparable physical damage,
consisting of the deaths of the four occupants of the civilian
aircraft; (b) moral and psychological damage inflicted on the victims’
relatives, consisting of emotional suffering over the loss of their
loved ones, the trauma arising from the incident and from the
impossibility of recovering the bodies to give them a decent burial,
combined with the knowledge that justice has not been served--in other
words, that the deaths caused by the agents of the Cuban State remain
unpunished; and (c) material damage, consisting of loss of earnings
and consequential damages.
52. The
Inter-American Commission therefore believes that the Cuban State is
obliged to: (i) investigate the incident, (ii) take appropriate steps
in this regard, (iii) begin proceedings against the State agents
and/or other authorities responsible for the incident, and (iv)
provide the victims’ families with adequate reparations.
V. CONCLUSIONS
53. Cuba is
responsible for violating 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 on the
afternoon of 24 February 1996 while flying through international
airspace.
54. Cuba is
responsible for violating the right to a fair trial (Article XVIII of
the American Declaration of the Rights and Duties of Man) to the
detriment of the relatives of Carlos Costa, Pablo Morales, Mario De La
Peña, and Armando Alejandre, in that to date the Cuban authorities
have not conducted an exhaustive investigation with a view toward
prosecuting and punishing the perpetrators and have not indemnified
those same relatives for the damage they suffered as a result of those
illicit acts.
VI.
RECOMMENDATIONS
Based on the analysis
and conclusions contained in this report, the Inter-American
Commission on Human Rights recommends that the Cuban State:
1. Conduct a
complete, impartial, and effective investigation to identify,
prosecute, and punish the agents of the State responsible for the
deaths of Carlos Costa, Pablo Morales, Mario De La Peña, and Armando
Alejandre in the incident occurring in international airspace on 24
February 1996.
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