La Demanda: The People of Cuba vs. the U.S. Government
by William Schaap
[Cuba; blockade; terrorism]
In Cuba, it is known simply as la demandaóthe legal complaint.
On May 31, 1999, a lawsuit for $181 billion in wrongful death and personal injury damages was filed in Havana Provincial Civil Court against the government of the United States. The plaintiffs are eight national organizations, on behalf of their members, representing nearly the entire population of the island.1
The complaint describes, in considerable detail, forty years of U.S. acts of aggression against Cuba, and specifies, often by name, date, and particular circumstances, each person known to have been killed or grievously wounded as a direct victim of this campaign. In all, 3,478 people were killed and an additional 2,099 seriously injured. (These figures do not include any indirect victims of the economic pressures, the blockade, the difficulties in obtaining medicine and food, all due to deliberate U.S. policy.)
The complaint was served upon the United States through the appropriate diplomatic channels: from the Court, to the Cuban Ministry of Foreign Affairs, to the United States Department of State. As expected, the U.S. chose not to respond, and twenty days later was declared by the Court to be in default, in accordance with Cuban law.
Nevertheless, under Cuban law, as in most jurisdictions, a default by the defendant does not, by itself, authorize a judgment in the amount of damages requested. The plaintiff must still prove the two elements of such an action, that the defendant caused the damages and that the damages were in the amount claimed. Consequently, on July 5, 1999, what was ultimately to be a 13- day trial with testimony from 196 witnesses commenced in the large, elegantly marbled chamber where the Supreme Court of Cuba once sat. The trial ended on July 21, 1999, and the five- judge court recessed to prepare its judgment. As of this writing, the decision has not yet been announced.
The Nature of the Charges
The case was, in legal terms, very narrowly drawn. It was for the wrongful death of individuals, on behalf of their survivors, and for personal injuries to those who survived extremely serious wounds, on their own behalf. No unsuccessful attacks were deemed relevant, and consequently there was no testimony regarding the many hundreds of unsuccessful assassination attempts against Cuban President Fidel Castro and other high officials,2 or even of bombings in which no one was killed or injured. Damages to crops, livestock, or the Cuban economy in general were also excluded, so there was no testimony about the introduction into the island of swine fever or tobacco mold, or about the U.S. embargoes on direct and indirect trade with Cuba.3
The complaint4 describes nine discrete aspects of the U.S. campaign against Cuba, roughly chronologically. The first deals with the formal beginnings of the covert war campaign almost immediately after the triumph of the Revolution, relying in large part on declassified U.S. government documents, most significantly, “Program of Covert Actions Against the Castro Regime,” approved by President Eisenhower on March 17, 1960, and “The Cuba Project,” issued by Edward Lansdale on January 18, 1962.
The vast body of declassified documents5 is essential to the crux of the complaint, that the U.S. government is responsible for the damages claimed, because it confirms the ultimate legal responsibility of the U.S., regardless of the status of the individual perpetrators of the murderous acts. Indeed, the evidence of direct, official U.S. involvement in training, paying, supplying, and directing the actual perpetrators of the fatal bombings, shootings, arson, and torture is, in most cases, overwhelming.
The complaint then describes the campaign of air and naval attacks against Cuba that commenced in October 1959, when Eisenhower approved a program that included bombings of sugar mills, machine- gun attacks on Havana and even on passenger trains, and the burning of sugar fields. The campaign was coordinated in detail by the Central Intelligence Agency. In mid- 1961, the CIA’s Inspector General noted that the CIA station in Miami overseeing the campaign had grown from 40 people in January 1960 to 588 people by April 16, 1961. It was becoming “one of the largest branches of the Clandestine Services.”
The third section of the complaint, which was supported by days of testimony and dozens of witnessesómany in their 70s and 80sódescribed the armed terrorist groups, los banditos, who ravaged the island for five years, from 1960 to 1965, when the last group was located and defeated. These bands, most numerous in the central Escambray region but operating throughout Cuba, terrorized small farmers, horribly torturing and killing those considered (often erroneously) active supporters of the Revolution, men, women, and children. Children who saw their fathers or mothers murdered before their eyes testified, as did elderly parents who watched their children tortured and killed. Young volunteer literacy campaign teachers were among the victims.
Although the actual totals were, after so many years, impossible to tally, the plaintiffs’ attorneys presented documentation attesting to 549 murders and 200 maimed survivors.
The most notorious and most fully documented U.S. attack on Cuba was the Bay of Pigs invasion, in April 1961. Although the entire incident lasted less than 72 hours, 176 Cubans were killed and 300 more wounded, 50 of them permanently disabled.
The complaint then described the unending campaign of major acts of sabotage and terrorism that included the bombing of ships in Havana harbor and of stores and offices in town, of attacks on ships and planes. Some of the most horrific examples of the brutality of this war were described here, including the 1976 bombing of a Cubana airliner off Barbados in which all 73 people on board were killed, as well as the murder of Cuban diplomats and officials around the world, including one such murder on the streets of New York City in 1980. This campaign has continued to the present, with the murders of Cuban policemen, soldiers, and sailors in 1992 and 1994, and the 1997 hotel bombing campaign.
While the retention and use of Guantanamo Naval Base by the U.S. is well- known, the extent to which it has been used provocatively as part of the campaign against Cuba is less understood. Aside from serving as a safe haven for fugitives from Cuba, in the 1960s several Cuban workers were tortured and murdered there, and a number of Cuban border police were shot by U.S. troops within the base, with eight killed or “disappeared” and 15 maimed for life.
The complaint also describes in detail those aspects of the chemical and biological warfare waged against Cuba that have involved human victims, most significantly the creation of an epidemic of hemorrhagic dengue fever in 1981,6 during which, in only a few weeks, some 340,000 people were infected and 116,000 hospitalizedóthis in a country which had never before experienced a single case of the disease. In the end, 158 people, including 101 children, died.
Finally, the complaint makes reference to the Cuban Missile Crisis of 1962, which brought the world to the brink of nuclear war, and describes the costs to Cuba of defending against all of the previously described warfare, conventional and unconventional.
It is difficult to convey the poignancy and power of the personal testimony of the hundreds of eyewitnesses who recounted these horrors. In describing the five- year war against the bandits in the countryside, men and women now in their 80s told of seeing their children tortured and killed before their eyes. Likewise, children, now in their 40s or 50s, described the deaths of their parents at the hands of the bandits. Aging veterans of the peasant militiaómany of whom had never held a weapon until they took up arms against the banditsóshowed the court, and the Cuban television audience, their horrible wounds, their maimed or missing limbs. Some spoke of suffering mental illness for decades, of nightmares and insomnia.
While the terror in the country was aimed primarily at peasants who supported the land reform program of the new revolutionary government, another target was the sweeping literacy campaign, with ultimately nearly 100,000 volunteers throughout the island, many of them teenagers, teaching the people to read and write.7 Several of these young teachers, along with a number of their adult pupils, were murdered by the bandits. These martyrs received huge state funerals, and their names have been known ever since to all Cubans. The mother of one such young hero testified, asking for justice against the nation that trained and armed the people who killed her son 38 years before.
The testimony relating to the 1981 dengue fever epidemic was both scientific and personal. On the one hand, a number of doctors and public health officials enumerated all the reasons that the epidemic appeared artificially induced and described the history of secret U.S. research on mosquito- borne diseases. A portion of the transcript of a 1984 federal criminal trial in New York was submitted, in which the head of the anti- Cuba terrorist organization Omega 7 testified under oath that, shortly before the outbreak of the epidemic, the CIA had given members of his group “some germs” to be taken to Cuba.8
On the other hand, the parents of young children who died from the fever, often in a matter of days, also testified. One mother described how she held her four- year- old daughter in her arms as she looked up and said, “Mommy, I think I’m going to die.” The current Minister of Public Health, who was the head of the Havana Pediatrics Group at the time, described the frantic efforts of the government to combat the epidemic which, in areas with poor health care, can be fatal in 40 to 50 percent of the cases. That only 158 people died, out of some 116,000 who were hospitalized, was an eloquent testimony to the remarkable Cuban public health sector.9
An Unending War
Although many of the incidents described, many of the wrongful deaths alleged, happened in the 1960s and 1970s, the campaign is by no means ancient history, even if the role of the U.S. government is harder to prove the more recent the incident. Cubans, government officials and ordinary citizens, are still being killed in actions strikingly similar to those of the early years of the struggle.
In the early 1990s, Cuban soldiers, police, and civilians were murdered by would- be, and occasionally successful, hijackers. In 1997, seven bombs were set in Havana hotels, killing one foreigner, in a campaign alleged to have been coordinated by Cuban exile agents of the CIA. Only last year, a group of exiles were charged with plotting to assassinate President Castro, and are facing trial in Puerto Rico.10
Throughout the decades in question, the formal role of the United States is sometimes clear and sometimes vague, sometimes obvious and sometimes subtly twice or thrice removed. That role, of course, is fundamental to this lawsuit, and some critics, even if they deplore the terrorist acts against Cuba, argue that it is paranoid to assume that every such act has been directed by the powers that be in Washington. The extremist wing of the Cuban exile community, they note, contains a fair share of lunatics capable of acts of terrorism without any prompting from the White House or Langley.
That may well be, but it has been the explicit policy of the U.S. since 1959 to destabilize, hopefully to overthrow, the Cuban government. And part of that policy has been to use the exile community however possible. Every government document that has surfaced, that has been declassified, has confirmed that policy.
None of the claims in la demanda are far- fetched. Witnesses described, for example, planes from the U.S. with U.S. pilots airdropping weapons and supplies made in the U.S. to the bandits in the mountains. Intelligence experts read into the record the recently declassified October 1961 report of the then CIA Inspector General, Lyman Kirkpatrick, that described in detail CIA support to the bandits. It noted that, in 12 drops during the six months ending March 1961, known as Operation Silence, “151,000 pounds of arms, ammunition, and equipment were transported by air.“12
Does that not suggest that the widow of a peasant murdered by one of the bandits who received his weapon in one of those airdrops has a decent wrongful death claim against the U.S. government? Does the fact that that bandit was not a formal U.S. government employee in any way lessen that claim?
Certainly, no high official at Fort Detrick has yet admitted that they sent mosquitoes infected with type- 2 dengue fever virus to Cuba in 1981. And yes, no report has yet been released in which the CIA admits it helped Luis Posada Carriles fund the terrorists who bombed the Havana hotels two years ago. Still, the last 40 years of U.S.- Cuban relations suggest that it is almost impossible to be paranoid about Washington’s potential for ill intentions toward Cuba.
What Does It All Mean?
No one in Cuba is wasting time planning how to spend the $181 billion that the lawsuit demands. No one in Cuba thinks they are really going to collect a dime on their default judgment victory. But that hardly makes this case either foolish or irrelevant.
For one thing, it has enormous historical importance for the people of Cuba, the majority of whom were not even born when most of these events took place. The testimony of all the witnesses, many of whom had never before spoken publicly, was transcribed, recorded, and videotaped. Most of it will be published soon.
But beyond the preservation of a nation’s history, there is a moral imperative to this detailed demonstration of forty years of an unconscionably murderous and unquestionably illegal war against Cuba. The U.S. (along with most of its western allies) has the audacity to say that Cuba does not respect human rights, that Cuba is “undemocratic” and must have U.S. free- market capitalist democracy imposed upon it.
But it is the U.S. that bombs Cuba, not Cuba that bombs the U.S. It is the U.S. that uses chemical and biological warfare against Cuba, not the reverse. It is the U.S. that prevents food and medicine from reaching Cuba, a blatant violation of the Geneva Conventions. And it is Cuba, not the U.S., that has completely free health care, completely free higher education. It is in Washington, not in Havana, that homeless people die of exposure just blocks from the White House.
If the Cuban people have chosen to demonstrate, by the testimony in this trial, that the United States government is hypocritical, lying, and criminal, that is not just their right, that may well be their obligation.
The trial received almost no media coverage in the U.S., even though the Associated Press and Cable News Network were there and filed material every day. While their reporters in Havana may have seen the significance of the testimony, the editors and publishers back home, mesmerized as always by forty years of propaganda, rejected, almost subconsciously, anything that did not parrot the conventional wisdom.
The very notion of such a case was rejected as ludicrous by the same people who see nothing strange about a Yugoslavia War Crimes Tribunal that only charges Serbs. More to the point, it was dismissed by the same media pundits who thought that the case brought in Florida against Cuba by relatives of the Brothers to the Rescue pilots was righteous and self- explanatory. Yet that case, which received saturation coverage in the U.S., is much less defensible in terms of both national and international law.
Until the latter half of the twentieth century, nations were absolutely immune from suits, civil or criminal, brought in the courts of other nations.12 Over the course of time that principle of international law changed, but only to a certain extent, with two exceptions to state immunity generally recognized by international law. Under modern international law and as reflected in the domestic statutes of many countries, foreign states can be sued in the courts of another state for only two categories of wrongs: acts emanating from commercial activities, like breach of contract claims, and tortious acts actually committed by the foreign state within the territory of the other state. Thus, when Orlando Letelier and his co- worker Ronni Moffitt were murdered by agents of the Chilean government in 1976 in Washington, D.C., Chile itself could be sued in the courts of the United States. However, if Letelier, or any U.S. citizen for that matter, had been killed by agents of Chile outside the United States, Chile could not be sued for that act in the courts of the United States.
The case being tried in Cuba meets these standards of international law; the actions carried out by the U.S. against Cuba were carried out within Cuba or were meant to have an effect inside Cuba. The United States does not have sovereign immunity for such acts. The Brothers to the Rescue case does not, however, meet these international standards; the downing of the plane, apart from other defenses the Cuban government has, occurred outside the territory of the United States. Even if one believes the U.S. claim that the plane was in international waters when shot down, that would not establish U.S. court jurisdiction under international law.
So how could that case have been brought in federal court in Florida? Congress passed a special law in April 1996 that purports to give federal courts jurisdiction over certain countries that commit torture, murder, aircraft sabotage, or hostage taking outside the United States.13 The law probably does not pass muster under international law, but so far it has been upheld in U.S. courts, under the doctrine, astonishing as it sounds, that an act of Congress overrides inconsistent international law, even preexisting treaties ratified by the United States.14
Aside from its arrogance and its contempt for generally accepted principles of international law, what is particularly pernicious about this law is that it does not apply to every state that commits one of the prohibited acts; it only applies to those countries that the State Department designates “state sponsors of terrorism.” You can guess who is and who is not on the list. There are only seven such countries, and, of course, Cuba is one of them.15 So we have selective “justice” of the worst kind. A Cuban exile group in Miami can use the federal courts in this fashion, while a group of Kurdish exiles, for example, could not sue the Turkish government in our courts. Whatever the legality under international law of allowing such suitsóand it is doubtfulóit is certainly illegal to do so with a rule of law that applies to some countries but not to all.
And there is yet another taint to this case. The Brothers to the Rescue plane was shot down in February 1996; the law permitting the suit was passed two months later, in April 1996. Yet the court in Miami upheld its application to conduct that occurred before the law was passed, because Congress stated that the law should be applied retroactively. There is nevertheless a strong presumption16 in U.S. law that such statutes should not apply to past conduct, but when it comes to Cuba, the lawsóboth international and domesticóare made to be broken.
In September, Cuba again took the moral offensive, charging very publicly that the U.S. campaign against it, including the trade embargo, constituted genocide.17 This is an escalation in rhetoric fraught with dangers, but there is, in fact, a strong case to be made. U.S. efforts to block the importation by Cuba of food and medicine can only have the primary effect of worsening the health of every Cuban, raising mortality rates in every area. What is this if not attempted genocide?
Whether la demanda or these new charges will have a significant effect on Cuban- American relations remains to be seen. The influence, vastly disproportionate to their numbers, that rightwing Cuban exiles have had on American politics is waning, as some of the more virulent leaders die off. Small cracks appear in the wall of the blockade, such as the recent easing of some restrictions on food and medicine, marginally better communications, increased airplane flights, etc. La demanda shows not that the blockade is stupid or immoral, but that the war of which it has been a part is inhuman and illegal.
William H. Schaap attended the first week of the trial in Havana as a legal observer. Michael D. Ratner provided the material on international law.
1._The Central Trade Union of Cuba, the National Association of Small Farmers, the Federation of Cuban Women, the Federation of University Students, the Federation of Middle- level Education Students, the Jose Mart� Children’s Organization, the Committees for the Defense of the Revolution, and the Association of Combatants of the Cuban Revolution.
2._The complaint does note that there have been 637 attempts to assassinate President Castro. The U.S. Senate, it points out, has investigated and verified just eight of them. And Cuban diplomats have indeed been assassinated, in Portugal, Argentina, and, in 1980, in New York City, when Felix Garc�a Rodr�guez of the Cuban U.N. delegation was gunned down in broad daylight on a crowded city street.
3._Damages due to the economic costs of defending against murderous military and paramilitary attacks were, however, relevant. For a general overview, see Jane Franklin, “The War Against Cuba,” CovertAction Quarterly, No. 66 (Fall 1998), p. 28.
4._The text of the complaint was published in Spanish in Cuba, Demanda del Pueblo de Cuba al Gobierno de Estados Unidos por Da�os Humanos (Havana: Editora Pol�tica, 1999), and in English in Australia, Washington on Trial: The People of Cuba vs. The Government of the United States of America (Melbourne: Ocean Press, 1999).
5._A copy of every document referred to in the complaint and in the trial was presented to the Court.
6._See Bill Schaap, “The 1981 Cuba Dengue Fever Epidemic,” CovertAction Information Bulletin, No. 17 (Summer 1982), p. 28.
7._Cuba, which, before the revolution, had one of the lowest literacy rates in the hemisphere, has, for many years now, had one of the highest in the world.
8._See relevant portion of the transcript printed at CovertAction Information Bulletin, No. 22 (Fall 1984), p. 35.
9._For details of the dengue testimony in the Havana proceeding, see “Genocide of 101 children through CIA- introduced dengue epidemic,” Granma International, Special Edition, July 18, 1999, p. 4.
10._See Franklin, op. cit., n. 3.
11._Quoted in the Complaint, op. cit., n. 4.
12._This applied to foreign governments, not foreign individuals, although a sitting head of state has always had immunity. This defense, head of state immunity, was raised by Manuel Noriega, but rejected when the court accepted the U.S. government’s argument that he was not a “legitimate” head of state.
13._28 U.S.C. � 1605(a)(7).
14._Whitney v. Robertson, 124 U.S. 190 (1888).
15._Even though the State Department’s Human Rights Reports on Cuba do not even allege that Cuba is sponsoring terrorism.
16._And, for criminal statutes, a constitutional prohibition against such ex post facto laws. U.S. Constitution, Art. I, Sec. 10.
17._The National Assembly passed a resolution to this effect, and Cuba’s Foreign Minister made this the major theme of his speech to the United Nations General Assembly.