A war criminal and human rights abuser announced this week that he would no longer serve as head of the Cuban Communist Party or serve any formal role in ruling the communist island nation. Fidel Castro’s announcement should change nothing with regards to U.S. policy toward Cuba and we can expect more of the same from the Cuba’s ruling elite. On these two latter issues, there shall be plenty of debate for days and weeks to come yet for naught. Under U.S. law, the U.S. will not recognize a transition government as long as either Castro brother remains in power, among other things.
Fidel Castro’s stepping down, however, does present a unique opportunity for the U.S. or for the scores of victims of Cuban Communism residing outside of Cuba who await justice for crimes committed against them through political incarceration or other means. Since Fidel Castro is no longer a head of state, some argue, the time has come for him to face his accusers for decades of injustice. Probably so, if he can survive until such a thing were to happen.
For example, if Fidel Castro or some of his cadre were to be tried in an international tribunal it will likely be for crimes against humanity. Pursuant to the Rome Statute of the International Criminal Court, war criminals can be tried for “other serious violations of the laws and customs applicable in armed conflicts not of an international character,” but for a series of crimes against its own peoples. See Article 8 (2) (e) of the Rome Statute. Also see Prosecutor v. Dusko Tadic a/k/a Dule (1995).
One of the more daunting questions that U.S. policy-makers and even some forward-thinking leaders on the island must be asking is what to do with the scores of war criminals who have been at the helm of Cuba’s repressive apparatus for so many years? The decision about how to hold these people accountable for their crimes ultimately remains with the Cuban people who must decide how to try these people in a post-communist Cuba.
There has been talk about a tribunal format, similar to what was done in Iraq, the Iraqi Special Tribunal. Other mechanisms include the International Criminal Court (ICC) and the Organization of American States (OAS), the latter has yet to handle or manage such a system. And, the U.S. federal courts are available for certain crimes against U.S. citizens and some Cuban nationals should they seek to avail themselves of these processes. In the end, the process could involve some or all of these legal systems.
As was the case in the former Eastern Communist Bloc and in other countries that have gone through changes from dictatorial regimes, the future short-term success of transition efforts hinges making sure that those who committed crimes while in power are held accountable. For the long-term, how this process is handled is also looked at by foreign investors and others who seek to assist a new and free government chart its future, among other things. It is no trivial or secondary matter that can wait, it is quite the opposite.
One thing for now is clear, Fidel Castro is leaving power on his own terms. The last thing he or his supporters would have wanted is for him to end up in some cell at the Hague, only to die there like Slobodan Milosevic. It would have been a most un-climatic end for the life of the most brutal dictator that the Western Hemisphere has ever seen.
Whatever format or combination of processes is ultimately selected to hold other law breakers accountable, if any, the question of justice for the victims of Cuban communism should figure prominently in any forthcoming discussions about U.S./Cuba policy. One war criminal, the primary one, has stepped down, yet scores remain. No doubt that these people are thinking about what fate the future holds for them – more so than any other issue that may be pending between the U.S. and Cuba. It may be time that we, as the leader of the free world and guardians of liberty, gave these people something to think about other than the usual U.S./Cuba policy fare such as economic sanctions or travel.
Copyright © Jason Poblete, All Rights Reserved
