By: Arturo Lopez-Levy and Luis Carlos Battista
Following the intention of Presidents Barack Obama and Raul Castro, expressed on December 17, to restore relations between the US and Cuba, there are many issues to be addressed. Rebuilding relations between the two countries that since 1961 are characterized by the absence of regularized contacts and limited cooperation between governments, it must also include legal aspects.
Since 1959, numerous fugitives from Cuba and the US have found refuge in the territory of the other state due to non-implementation of commitments relating to Extradition Treaty signed in 1904 between the governments of Tomas Estrada Palma and Theodore Roosevelt and ratified in 1905. Unfortunately, discontinuing the treaty has led treatment as political refugees or tolerance to many criminals and violent actors on both sides of the Florida Straits. The time has come to change that practice.
The extradition treaty between Cuba and the US should be revitalized with the negotiation-as executive agreement, of the details from a new implementation, under current historical conditions, particularly the addition of a reciprocal formula outlawing political violence regardless of their motivation, and disqualify its author to be received as a political refugee.
Through extradition treaties, a person accused or convicted of a felony by the commission, is returned to the State claiming him to be prosecuted or execute the sentence has already been imposed by a competent court. According to general principles and customary international law, extradition is not performed for committing less serious crimes whose conviction or punishment is less than two years’ imprisonment. Nor it would be extradited when the subject is wanted for political offenses or military offenses, since these do not pose a danger to society. Similarly, a State may refuse extradition when the subject claimed could face the death penalty in the country that requested or there is concern that some erga omnes rule could be violated or ignored, including the absence of due process.
As international practice, states do not extradite their own nationals, and this is endorsed both by Article V of the said Treaty on Extradition of 1904 and Article 6.1 of the Cuban Penal Code in force. In relation to this, the government of the island, interpreting Article 31 in fine of the 1976 Constitution does not recognize dual citizenship. Therefore, when implemented, only the Cuban nationality will be recognized to those with two or more citizenships.
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For those Cubans who have committed crimes in the United States and are currently in the island, the US authorities should ask the Cuban courts to prosecute and punish, through diplomatic and proper channels of evidence. That is why cooperation between the two countries should be strengthened, including the fight against transnational crime and smuggling; trafficking in persons, drugs and weapons; and money laundering. It will be suitable for both governments that impunity is eliminated.
Another important deterrent against criminal behavior is deportation. Studies have shown that the crime rate is higher among migrants, not only international but within the country. More than 35,000 Cubans have been found deportable for committing serious crimes in the United States. It should be noted that while this might be an edge part in the talks for a possible normalization of relations, is primarily a migration issue. These Cuban citizens are not claimed by the authorities of the island and have served their punishment on US soil.
In relation to those claimed by committing violence in their country of origin, which were recognized as political refugees on the other side, they are unlikely to be returned. Both countries defend their legitimate right to grant political asylum to those persecuted in other states for their fight against prevailing systems considered degrading to human dignity. The granting of several such asylums to fugitives of Cuba and the US is difficult to understand without the existence of hostility between the two governments for decades.
That legacy of confrontation is difficult to solve at once. Apart from interpretations of who is listed as political persecuted, an eventual compliance with the Treaty of 1904 does not apply to those who have fled from justice while the agreement were suspended. For the revitalization of the Treaty, the principle of non-retroactivity of the law be respected, or what is the same, that would not be returned subjects who committed felonies prior to re-entry into force of the agreement.
Resolving this issue will require patience from both governments. It is also important to create a watershed from which hostile practices that reverse diplomatic relationship into a downward spiral are discontinued. International law provides a standard for both states that can generate positive dynamics if both governments agree to accept it as a guide in their relationships and behaviors. An important precedent is the “Memorandum of Understanding” for the return of people involved in the hijacking of aircraft and naval vessels signed by the governments of Cuba and the United States in 1973. Through this agreement numerous subjects claimed by both countries were returned.
The signing of this type of agreements could regulate the return in specific cases that are of interest to both countries as soon as possible. That way you can go partially reviving the extradition treaty simply relying on the principle of reciprocity between states. With use of such mechanisms could find a workaround for confrontation crime.
Any future agreement on extradition between the two countries should distinguish the peaceful political dissent, its manipulation to justify violence, particularly terrorism and kidnapping. A non-violence as a requirement for eligibility for political refugee clarify the separation between human rights activists on one side, and those subjects that even if they may be classified as political commit acts of violence or bordering the criminal offense.
Cuba and the US must move from discrete and incidental judicial and police cooperation subject to the systematization of dialogue and cooperation between judicial authorities and of order. An optimal way to achieve that goal today is to revitalize the extradition agreement of 1904. Constitutionally, it would require only executive action, because having a treaty signed and ratified; the serious question is purely administrative to negotiate how to put it into effect. This step of distension would be a breakthrough that would not require congressional approval, and contribute to progress further undermining supporters of isolation and hostility between the two nations. In politics, although intangible, is very important to remove from the rival the will to win.
