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By Peter Polack
In July 2002 the International Criminal Court was created by the Rome Statute under the auspices of the United Nations which forbade acts of genocide and crimes against humanity.
The relevant provisions of the statute in relation to any government officials that forced maritime refugees of all ages in fragile boats back to sea under threat of return to a Marxist authoritarian regime, many of whom perished or sustained injuries, were:
Article 6 Genocide
For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(e) Forcibly transferring children of the group to another group.
Article 7 Crimes against humanity
For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
(b) “Extermination” includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;
(d) “Deportation or forcible transfer of population” means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law;
(e) “Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;
(g) “Persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;
The economic well-being of Cuba worsens the further one travels from Havana to the countryside making the popular song Guantanamera hollow among guajiros or country folk.
Many of the Cuban refugee boats that arrived in the Cayman Islands are from Manzanillo in southwest Cuba.
The efficient Cuban Coast Guard turn a blind eye to those leaving, but not those approaching the coast.
In September 1997, after the number of Cuban refugees that arrived by boat to the Cayman Islands reached nearly four hundred in the previous month alone, the then Governor Michael Gore announced he would begin repatriation of Cuban refugees to their home country.
This action was hastened by a failure in negotiations with the United States government to accept these refugees at their Guantanamo Bay facility.
The declaration by the United Kingdom appointed Governor led to urgent negotiations with the government of Cuba culminating in agreement to a short three page memorandum of understanding signed by then Chief Secretary of the Cayman Islands James Ryan and Ambassador Dr. Jose Peraza Chapeau on 15 April 1999.
Future treatment of Cuban refugees in the Cayman Islands was prescribed by this MOU which specified the prompt return of Cuban refugees arriving illegally to the Cuban authorities while providing that the detainees were not allowed to return with any effects or money obtained during their stay in the Cayman Islands.
Whilst the Cayman Islands government demanded that the detainees not be charged with any arrival or other tax there was no mention of a ban on persecution or imprisonment for their illegal departure from Cuba.
The onerous terms of the agreement, for refugees, required:
Notification by the Cayman Islands government to the Cuban government within seven days of arrival of refugees of ‘their names, surnames and alleged addresses”.
That a follow up list be sent in as short a time as possible to the government of Cuba of “ street name, house number, municipality and province, as well as a photograph of each person and the place and date of their illegal arrival in the Cayman Islands”.
“in the interests of their security, the Cuban citizens repatriated to Cuba should be escorted by officials from the Government of the Cayman Islands”.
The Government of the Cayman Islands to repatriate “Cuban citizens who arrive illegally in the Cayman Islands and directly from Cuba” and “these citizens shall be repatriated air via Jose Marti International Airport in Havana”.
“The persons repatriated to the Republic of Cuba shall be able to bring with them only the belongings which they had on their illegal arrival in the Cayman Islands directly from Cuba. They shall not be able to return with any money from other countries or other effects of any kind”.
There was no provision for asylum which had been previously granted to Cuban refugees on an ad hoc basis in the Cayman Islands post-revolution.
Residents of the Cayman Islands were prohibited from assisting the refugees in any way under threat of arrest.
In one controversial incident, Cayman Islands government immigration officers slapped biscuits from the hands of charitable Caymanians from the West Bay district at a dock from where Cuban refugees were being forced to leave.
What followed from this disastrous event, until a revised treaty was signed in April 2015, was a series of landings in various coastal spots of the Cayman Islands by desperate Cuban migrants in flimsy, unseaworthy vessels.
They were given a stark choice to either leave immediately or be put on a plane back to Cuba to face Cuban authorities, angry about their rejection of the revolution.
Those who returned to the unforgiving sea then headed four hundred miles across open ocean to Honduras and by land to the United States border. Neither the Cayman Islands or Cuban governments track disappearances by maritime Cuban refugees or release any statistics.
The Cuban policy at the time was that those who left Cuba illegally were no longer citizens of Cuba.
In a 24 January 2023 report, the United Nations International Organization for Migration’s Missing Migrants Project, documented at least 321 deaths and disappearances of migrants in the Caribbean in 2022 – the highest number recorded since the Project started in 2014, and a drastic leap compared to 180 registered in 2021.
Out of the total, 66 were women, 64 men, and 28 boys, girls, and adolescents, while 163 remain unidentified.
“Over 51 per cent of the people who died on migration routes in the Caribbean last year could not be identified,” said Patrice Quesada, IOM’s Regional Coordinator for the Caribbean.
“This means hundreds of families have no news on the whereabouts of their loved ones.”
Most of the migrants who died or went missing were from Haiti (80), Cuba (69), the Dominican Republic (56) and Venezuela (25).
The main cause of death was drowning, mainly due to bad weather conditions that make navigation difficult, and the use of makeshift vessels in poor condition or that are not designed to cross the high seas.
26 June 2014 29 June 2014
28 August 2014 19 November 201414 December 2014
24 January 2015
Between 2005 and 2013 the Cayman Islands Government spent about CI$2 million (US$2.4 million) on refugee expenses.
The current budget of the Cayman Islands mostly from the offshore financial industry is approaching one billion United States dollars.
Caymanian police records revealed in 2013 that there were 129 maritime refugee incidents in the previous ten years.
There is no record of the numbers, believed to be equally significant or greater of vessels, that by passed landing in the Cayman Islands or landed secretly.
Landings by Cuban refugees usually occur due to unseaworthy boats, illness of passengers or bad weather.
Cuban refugee boat oar from construction steel November 2014
Some were not so lucky to be rescued. On Saturday, 3 January 2015, as many residents of the Cayman Islands enjoyed the weekend in blustery conditions, a frail Cuban vessel with four refugees began to be monitored by the Cayman Islands authorities as it sought landfall on the Southwest coast of Grand Cayman.
No effort was made by the authorities to assist the vessel in distress or rescue the occupants.
Three of the four managed to make it ashore with the help of local surfers and two inner tubes on to the beach beside a luxury condominium near South Church Street after their boat came apart. The remaining Cuban refugee, Manuel Marino, drowned.
All of the men were from Santa Cruz del Sur on the Southeastern coast of Camaguey.
The relevant responsible Cayman Islands government officials on that day were:
Helen Kilpatrick Governor
Alden McLaughlin Premier and Minister of Home Affairs
Franz Manderson Deputy Governor
David Baines Commissioner of Police
Brad Ebanks Police Marine Unit
Bruce Smith Acting Chief Immigration Officer
Garfield Wong Head Immigration Enforcement
front row – left: Franz Manderson right: Helen Kilpatrick backrow – right: Alden Mclaughlin
David Baines ACCBrad Ebanks RCIPSBruce Smith CBC
Article 27 (1) of the Rome Statute refers directly to the irrelevance of official capacity and states:
This Statute shall apply equally to all persons without any distinction based on official capacity.
In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.
Legal difficulties began for the antiquated MOU with the introduction of the 2009 Cayman Islands Constitution which introduced human rights provisions for the first time in the Cayman Islands some ten years after the two governments met to decide the fate of Cuban refugees coming ashore in the Cayman Islands.
The Constitution introduced a Human Rights Commission that subsequently received a complaint about the treatment of Cuban refugees to the Cayman Islands in 2011.
The complaint was that the official prevention of assistance “to provide the basic necessities of life” to Cubans passing the Cayman Islands on their way to other destinations was a breach of the Constitutional provisions against inhumane treatment.
Increasing numbers of Cuban refugees have been arriving in overcrowded vessels despite liberalization initiatives by the Cuban Government.
Some Cuban boat people were rescued by cruise ships while adrift in the Caribbean such as the Carnival Paradise rescue in March 2014.
The Cayman Islands had unwittingly become a pawn in the implementation of Cuban domestic policy. As the closest competitor to Cayman tourism, Cuba had also foisted a potential public relations disaster on a popular tourist destination.
There are no available statistics on the number of Cuban refugees who died, drowned or were injured between 1999-2015, many children, the elderly and women, after being refused assistance due to the policy of the Cayman Islands government.
This great injustice cries out for further investigation.
The Cayman Islands Government announced on several occasions that the proposed re-negotiation of their refugee agreement with Cuba was expected to take place but the postponements continued, due to a reluctant Cuban government, until it was resolved in April 2015.
Cayman Islands government news release: Cuba, Cayman Islands Sign MOU
The Third Round of migration talks between the Government of Cuba and the Government of the Cayman Islands took place at the Government Administration Building, Grand Cayman on 16 – 17 April 2015.
The delegation from the Republic of Cuba was headed by Ambassador Rafael Dausá Céspedes, Director of Consular Affairs and Cuban Residents Abroad, Ministry of Foreign Affairs.
The delegation from the Cayman Islands was headed by the Deputy Governor, Honourable Franz Manderson, Cert. Hon., JP.
The talks concluded on the afternoon of Friday, 17 April 2015 with the signing of a 2015 Memorandum of Understanding on Migration, which outlines a more efficient repatriation process for irregular Cuban migrants.
The delegations also agreed on an annual review of the operation and effectiveness of the Memorandum.
Both delegations agreed that the discussions during the course of the two days had been most productive and were conducted in a warm spirit reflective of the relations between the two countries.
Deputy Governor Honourable Franz Manderson, Cert. Hon., JP (left) shakes hands with Cuban Ambassador Rafael Dausá Céspedes, Director of Consular Affairs and Cuban Residents Abroad, Ministry of Foreign Affairs, following the signing of an MOU at Government Administration Building, Friday, 17 April 2015. GIS
A telling report came shortly before the second MOU was signed in April 2015 by the Caribbean News Now outlet on 26 January 2015 that was also carried by BBC Monitoring and later sent to Deputy Governor Franz Manderson on 2 February 2015 without response:
Cayman Islands authorities turn away boat with 29 Cuban migrants
Cayman Islands A Cuban boat with 29 persons aboard that included five women, which arrived at an East End dive resort on Grand Cayman on Saturday morning, was directed to move on by Cayman Islands immigration and police officials.
The vessel departed at 9:00 am. According to the immigration officers, Deputy Governor Franz Manderson had ordered that no Cuban boat was allowed to land or receive assistance from local residents.
Attempts by local residents to provide fuel and water were prevented by the police officers present. Local residents and visiting tourists at the resort expressed outrage at the position of the Cayman Islands government, believed to be the result of pressure by the Cuban government.
Local activist Billy McLaughlin expressed the view that the Cayman Islands faced a backlash from tourists due to failure to help the Cuban vessels that pass through the Cayman Islands.
Following the creation of a Human Rights Commission under the 2009 Cayman Islands Constitution, the Bill of Rights finally came into effect in 2012.
This was followed by the creation of refugee asylum related institutions such as the Immigration Appeals Tribunal and the Refugee Protection Appeals Tribunal , the latter having been tellingly created under the Customs and Border Control Act.
The chairman of the Refugee Protection Appeals Tribunal appointed by the Governor was Langston Sibblies, the former Director of Public Prosecutions of Grenada during the Marxist pro-Cuban regime between 1981-83, that ended in the killing of Maurice Bishop.
Sibblies himself was guilty of crimes against humanity by the unlawful detention of hundreds of democratic leaning, opposition figures under depraved conditions that also involved torture.
This was confirmed by documents seized by the United States Army during the Grenada Invasion in 1983.
The Rome Statute is regrettably, not retroactive.
Peter Polack was a former criminal lawyer in the Cayman Islands for several decades. He is the author of The Last Hot Battle of the Cold War: South Africa vs. Cuba in the Angolan Civil War (2013), Jamaica, The Land of Film (2017) and Guerrilla Warfare: Kings of Revolution (2018).
He was a contributor to Encyclopedia of Warfare (2013) and worked as a part-time reporter for Reuters News Agency in the Cayman Islands 2014-19 but now lives in Canada. His work has been published in Small Wars Journal, Defence Procurement International, American Intelligence Journal, U.S. Army John F. Kennedy Special Warfare Center magazine, Military Times, Foreign Policy News, EU Today, Radio Free Europe, VOA Portuguese, South Africa Times, History Cooperative, INews Cayman, Jamaica Gleaner, Miami Herald, Reuters, Toronto Star and The New York Times.
His latest book entitled Soviet Spies Worldwide: Country by Country, 1940–1988 will be published by McFarland. He is presently researching Cayman Islands: Treatment of Cuban Refugees a Crime Against Humanity.
Cubans on homemade boat get refuge from high seas in Cayman Islands Reuters
Cubans on homemade boat win refuge from rough seas in Cayman Islands