- The Washington Times - Thursday, December 9, 1999

Cuban President Fidel Castro last weekend canceled his second foreign trip in a week, prompting speculation on Capitol Hill that he fears an indictment and Pinochet-style extradition case if he travels abroad.
Mr. Castro said he had canceled a scheduled trip to Argentina because a dispute with the United States over the immigration status of a 6-year-old Cuban boy in Miami was taking all his time. But Cuban-Americans here are not accepting the explanation.
“It’s the Pinochet factor. Fidel is afraid to travel,” said Rep. Lincoln Diaz-Balart, Florida Republican, in a reference to the Spanish indictment of Gen. Augusto Pinochet that has kept the former Chilean president under house arrest in England for more than a year.
Mr. Diaz-Balart last month sent letters to 3,000 federal, state and local prosecutors urging that Mr. Castro be indicted in the killing of three American citizens whose light aircraft were shot down over the Florida Strait on Feb. 24, 1996.
Mr. Castro cited those letters as a factor in his decision not to attend the World Trade Organization summit last week in Seattle.
“He has canceled two trips now. He knows he is a fugitive from American justice,” said Mr. Diaz-Balart, who said that once indicted, Mr. Castro can be arrested in any country that has an extradition treaty with the United States.
Some legal experts say it would be much more difficult than that to bring Mr. Castro into an American court. But lawyers agree that the arrest of Gen. Pinochet in October 1998 on charges of genocide and torture in Chile has forever changed international jurisprudence.
“Accountability is a real issue now. It is eroding impunity if these people can’t travel. It is having an effect if someone like Fidel Castro has to change his travel plans,” said Elisa Massimino, director of the Washington office of the Lawyers Committee for Human Rights.
Experts say Mr. Castro could most easily be arrested and tried for torture, the same crime used to indict Gen. Pinochet.
In 1994, The United States ratified the 1984 U.N. Torture Convention making torture a crime even when it is committed against non-U.S. citizens outside the United States. It gives federal prosecutors the jurisdiction to indict and have arrested any torturer who sets foot on U.S. soil.
Mr. Castro would be vulnerable if, for example, he came to the United States to speak at the United Nations on behalf of Cuba.
“I’m sure Cuba would make the claim of diplomatic immunity, but there is nothing in the law that would exempt a person, even a head of state. There is no diplomatic immunity for [torture]. It is specifically directed at government officials,” said Ms. Massimino.
Torture under the U.N. convention must be performed or directed by a government official.
“Nobody has ever been prosecuted under this law [in the United States]. It has been sitting here unused since 1994,” said Ms. Massimino. Several human rights activists said the Justice Department has a “working group” looking into finding a case to prosecute as a test of the law.
The 1984 U.N. Torture Convention requires signers to “afford one another the greatest measure of assistance in connection with criminal proceedings” brought in respect to the charges of torture.
“In the case of torture, even one well-documented case is enough for an indictment and is enough to ensure global responsibility for pursuing the case,” said Carlos Salinas, Amnesty International’s advocacy director for Latin America and the Caribbean. “What the torture convention makes clear is the inescapable responsibility of states to pursue the violators.”
It was this clause in the Torture Convention that prompted England to hold Gen. Pinochet pending a decision on whether to extradite him to Spain on a warrant from Baltasar Garzon, a crusading judge in Spain.
Ironically, Mr. Castro was visiting Spain at the time of Gen. Pinochet’s arrest.
Some of the strongest evidence of torture attributable to Mr. Castro applies to events that occurred before the Torture Convention was ratified, meaning they cannot be used against him. Gen. Pinochet similarly cannot be extradited from England for events that happened before that country ratified the treaty in 1988.
These include the case of Armando Valladares, a Cuban poet who wrote movingly about almost daily torture during 22 years in prison before his release in 1982, and new evidence that Cuban military advisers tortured American POWs during the Vietnam War.
Nevertheless, human rights activists believe acts performed since the United States ratified the treaty in 1994 would be construed as torture. This includes the withholding of food and medicine from political prisoners as a form of punishment, which was documented in a recent Amnesty International report.
Following the Pinochet precedent, “theoretically … any citizen can bring evidence to any prosecutor, and any judge in any city can begin the proceedings,” said Mr. Salinas of Amnesty.
Other former and current heads of state who have to be careful of where they travel include former Ugandan dictator Idi Amin, who is living in Saudi Arabia; Ethiopia’s Mengistu Haile Mariam, who had to slip out of South Africa quietly this week to avoid possible arrest; Haiti’s Jean Claude “Baby Doc” Duvalier, who is in exile in France; and Yugoslav President Slobodan Milosevic.
“It would be possible to bring charges against some of these people. We could do the same with regard to Yeltsin in Chechnya, but we would never go get him. We can’t even get Milosevic,” said Bruce Fein, a constitutional and international lawyer who writes for The Washington Times.
The Center for Justice and Accountability, in San Francisco, which is filing civil suits against alleged torturers living in the United States, agreed.
“Theoretically, a state or federal prosecutor could bring charges, but there has been no prosecution under this law. It is uncharted territory,” said Shawn Roberts, legal director of the center.
There are real fears that the Torture Convention could be abused, indicting Margaret Thatcher for alleged crimes in Northern Ireland or President Clinton for the bombing of Kosovo. Sudan has already sought Western legal advice in the U.S. bombing of a Sudanese pharmaceutical factory in 1998.
“Of course the system could be abused,” said Mr. Salinas. “It makes a strong argument for the international court” established by a recent international treaty but opposed by the United States.

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