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Transitional Justice, the Coming Case of The People of Cuba v. The Castro Regime

Although Pope-bashing by pundits on his recent trip to Cuba may have generated web traffic for the chattering class and headlines for the politicians, its time to move on to more constructive commentary on U.S.-Cuba policy matters. There are a few prickly issues that US-Cuba policy planners need to start discussing in a more focused manner. These issues are like political chemotherapy — they will hurt and make folks feel uncomfortable in the short-run; however, the transition process will be all the better for it as the regime starts to fade from memory.

A few weeks ago I wrote about one of these issues, claims against the government of Cuba by US persons. This is the third rail of U.S.-Cuba policy and CNBC’s Michelle Cabrera-Caruso deserves kudos for jumping in to this political bramble.  Resolving the claims matter and related issues such as addressing Cuba’s external debt problem is critical to Cuba’s transition to a free and democratic system. Who would want to invest in a country where debt is out of control and private property rights and court judgments cloud the marketplace?

Just as important, and some would argue more so than pending claims or external debt matters, is what to do about the crimes committed by the regime against Americans, Cubans, and others during the last five decades. These days academics and legal scholars talk about transitional justice; however, societies have been holding law breakers accountable in transition governments for centuries. And how this is implemented is very important for a country’s future political well-being.

Cuba’s Communist Party has managed to stay in power through brute force and little regard for human life. Laws? They drafted and enforced whatever suits them. Political murder, torture, drug trafficking, terrorism, money laundering, and gross human rights abuses are some of the crimes that Fidel Castro, Raul Castro, and those at the top who have supported them, will need to be held to account for. There are also a large number of mid-level Communist Party officials who also have committed atrocious crimes. Where to start? Who should be tried and how low in the leadership should the process go?  Will witnesses be allowed? Will the Communist Party be placed on trial, party leaders, both? Should there be a trial at all or a series of trials? There are many more questions to study and ponder.

The US Government has already done a cursory review. During the Bush Administration, for example, as part of the Commission for Assistance to a Free Cuba in 2004 and 2006, planners state the obvious: Castro’s “esbirros” (henchmen) need to fear justice. The U.S. Government reports, and other like them by academics and private groups, begin to lay a foundation for future study and preparation. One non-profit – Cuba Archives – has even started to document  the “deaths and disappearances resulting from the Cuban revolution” and is well worth a visit if you want to learn more about the victims of Cuban Communism and other governments. The Cuba Archives has been at this project for more than decade. There are others.

How a transition government deals criminals and human rights a will set a tone that, for example, can help minimize the most certain individual retributive actions that will ensue when the Communists are not longer a viable political power. Cuba’s recent efforts such as legalizing certain careers, a type of home ownership, as well as small businesses is for naught. It is based on a failed legal and political system that has no idea how difficult things are going to get. Add to this process the property claims and Cuba’s external debt issues, as well as the retributive psyche of a transition economy, and you have the recipe for a political disaster that no serious foreign investor will want to dabble in.

International law and jurisprudence has evolved since the Nuremberg trials at the end of WWII, but the principal canons are centuries old. Try as they might, the Cuban Communist Party will not escape some kind of response by the people of Cuba for what they have done to that island during the course of the last half century. And they will have plenty of modern day processes to study and adapt to their efforts. For example, there is a great deal of precedence from a post-liberated Iraq and how their henchmen were tried. The Obama Administration and the Congress should impanel a commission to review this question and balance U.S.-Cuba foreign policy goals and national security interests.

The U.S. will play a pivotal role in Cuba’s transition to free markets, rule of law, and democracy. To help it out of the Communist abyss and its current Potemkin existence, we need to offer future Cuban leader tools to make key decisions in rather short order.

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