Issue #5 The Imperfect Migration Accords At Work

The Bush Administration set domestic politics aside and sent a strong signal against hijacking and illegal migration when it turned over to Cuban authorities a dozen Cubans who last week commandeered a vessel and attempted to reach the United States.

This was a rare case of a high-profile Cuba policy action where the Administration pleased the Cuban government and left Cuban-American Republican legislators seething in anger.

The events unfolded as follows.

• On Tuesday, July 15, at the port of Nuevitas on the northern shore of Cuba’s Camaguey province, twelve Cubans took control of the Gaviota 16, a 36-foot exploration vessel belonging to the Cuban state enterprise Geocuba. With three security guards aboard, the boat left port and headed north toward Bahamian waters.
• Cuba called the event a hijacking, while U.S. officials discounted that explanation. “Unless there are extenuating circumstances, I don’t think there is going to be a return for prosecution to Cuba,” one official told The Miami Herald on July 16.
• Cuban and American authorities monitored the vessel’s movement. Late Wednesday, July 16, the vessel, headed slowly toward Miami, was boarded by the U.S. Coast Guard in international waters.
• The next day, FBI agents interviewed the 15 passengers aboard a U.S. Coast Guard cutter and learned that the vessel was taken from Cuba by force. The State Department later said that the hijackers resisted Coast Guard efforts to seize the vessel, and some “assaulted” Coast Guard personnel as they boarded.
• Following conversations between U.S. and Cuban diplomats, the vessel was returned to Cuba on Thursday, July 17.
• Cuban-American legislators pressed the Administration not to return the migrants to Cuba. Recalling Cuba’s April 11 execution of three men who attempted to come to the United States by hijacking a passenger ferry, they warned the Administration not to become an “accomplice” in an “illegal execution by the Castro dictatorship.”
• The diplomatic conversations continued through the weekend. U.S. officials were mindful that the twelve, if returned, could also face the death penalty.
• Cuban diplomats told the State Department that if the men were returned, any penalty would be limited to ten years imprisonment. This statement was made orally, then in a formal diplomatic note.
• With that commitment in hand, the United States returned the 15 passengers to Cuba on Monday, July 21. On that day, Cuba’s foreign ministry issued a statement reiterating the ten-year maximum penalty, which it said would be achieved by use of clemency if a judicial decision initially provided a stronger punishment. Cuba also said the men would be charged not with hijacking, but with armed robbery and kidnapping.

On July 21, the U.S. government’s Radio Marti website used this illustration beside the story of the repatriation of the twelve Cubans who seized a vessel by force and later, according to the State Department, “assaulted” U.S. Coast Guard personnel.

The Administration’s action is a clear signal that those who seek to migrate illegally from Cuba – especially by engaging in hijacking or violence – will not succeed.

The State Department acted, its spokesman said, according to U.S. “obligations under international law, our migration accords with Cuba and our commitment to ensuring a coherent migration policy that protects our borders.” Under migration accords negotiated by the Clinton Administration, the Administration returned the 15 Cubans aboard the Gaviota 16 by following an established procedure under which thousands of Cuban migrants interdicted at sea have been repatriated if U.S. officials determine that they cannot establish a fear of persecution that would be the basis for an asylum claim. [For more on the U.S.-Cuba migration accords, see www.lexingtoninstitute.org/pdf/CubaRelations.pdf

The most unusual aspect of the repatriation was the connection between U.S. action and Cuba’s pledge to limit punishment to ten years imprisonment. Having criticized Cuba’s judicial system for a lack of due process, the Administration delivered a dozen Cubans back to Cuba where they will certainly be tried under that system. The Administration says Cuba’s commitment to limit sentences to ten years was “volunteered,” not made as part of a negotiation where the United States agreed in advance to a conviction in Cuban courts. Nonetheless, the Cuban American National Foundation called the repatriation a “betrayal” by the Administration; Rep. Lincoln Diaz-Balart called it a “condemnable monstrosity.”

In contrast, Cuba’s July 21 statement praised the “valuable contribution by U.S. authorities to the fight against air and maritime hijacking for illegal emigration using violence and force.” The statement omitted the routine vitriolic criticisms of U.S. migration policy. That evening, Cuban media read a statement by a U.S. diplomat in Havana warning against illegal migration and urging Cubans to use the legal channels of immigration that are provided under the accords.

It is impossible to predict whether this action will set a new pattern in U.S. treatment of similar cases. The Gaviota 16 case was unique; for example, the State Department spokesman pointed out that because of the hijackers’ violent actions in Cuba and, later, against U.S. Coast Guard personnel, “those that stole the vessel were disqualified for consideration as refugees under U.S. law.” He added that because the vessel was under a Cuban flag, “it was not possible under governing U.S. law, or international law to bring charges with respect to the assault that had taken place, or any other acts of violence.”

This case aside, the migration issue is likely to remain contentious between the two countries, with each side claiming the other violates aspects of the migration accords. The United States claims that Cuba refuses to grant exit visas to hundreds of Cubans approved for emigration. Cuba complains that the United States policy of accepting all Cuban migrants who reach U.S. shores creates an incentive for Miami families to pay alien smugglers to transport their relatives from Cuba. (This policy is carried out purely at the Administration’s discretion; it is not required by the Cuban Adjustment Act of 1966.) Cuba also complains that the United States this year is failing to meet the agreed-upon target of 20,000 immigrants from Cuba.

The migration accords will continue to be controversial within the United States. The accords are an imperfect instrument intended to deter illegal migration – and its attendant death toll in the Florida Straits – while creating opportunities for Cubans to emigrate legally and safely to escape persecution or to seek economic opportunity. They are accompanied by procedures whereby the United States avoids the repatriation of Cubans who are intercepted at sea but seem to have the basis for an asylum claim. Those who criticize the accords on moral grounds do not offer general policy alternatives, nor do they explain how, in a case such as the Gaviota 16, it would serve U.S. interests to admit violent hijackers.

Radio Marti, the Miami-based U.S. government broadcast to Cuba, failed to give the Gaviota 16 story prominent coverage. On the day of the repatriation, the hour-long 6:00 p.m. and 11:00 p.m. news broadcasts covered the story with only a few sentences read by the announcer. The day after, the same treatment was augmented by an account of the State Department spokesman’s comments. No interviews were presented, pro, con, or neutral. No indication was given that the repatriations or the migration policy in general are the subject of debate. On both days, Radio Marti’s main hour-long news discussion program ignored the repatriation story. European Union statements about Cuba, the visit of the Czech prime minister to Miami, and the funeral services of Celia Cruz all received in-depth coverage. In sum, the coverage of this story followed a pattern where Radio Marti ignores or downplays subjects that are controversial in Miami.