Armando Alejandre Jr., Carlos Costa, Mario de la Pena y Pablo Morales v. Republica de Cuba, Case 11.589, Report No. 86/99, OEA/Ser.L/V/II.106 Doc. 3 rev. at 586 (1999).
ARMANDO ALEJANDRE JR., CARLOS COSTA,
MARIO DE LA PEÑA, AND PABLO MORALES
September 29, 1999
On 25 February 1996, the Inter-American Commission on Human Rights
(hereinafter “the Commission” or “the Inter-American Commission”) received
several complaints brought against the Republic of Cuba (hereinafter “the
State,” “the Cuban State,” or “Cuba”) according to which a MiG-29 military
aircraft belonging to the Cuban Air Force (FAC) downed two unarmed civilian
light airplanes belonging to the organization “Brothers to the Rescue.”
According to a report issued by the International Civil Aviation Organization
(ICAO), the incidents occurred on 24 February 1996 at 3:21 p.m. and 3:27 p.m.,
respectively, in international airspace. The air-to-air missiles fired by
the MiG-29 destroyed the civilian light aircraft, immediately killing Armando
Alejandre Jr. (45 years old), Carlos Alberto Costa (29), Mario Manuel de la
Peña (24), and Pablo Morales (29). The complaint concludes with the Commission
being requested to begin proceedings in accordance with Articles 32 et
seq. of its Regulations and to declare Cuba responsible for failing to
comply with its international obligations contained in the American Declaration
of the Rights and Duties of Man (hereinafter “the Declaration” or “the American
Declaration”) for violating the right to life and the right to a fair trial
as set forth in Articles I and XVIII of said international instrument.
After receiving several complaints regarding the same incident and
persons, the Commission combined them, as provided for in Article 40(2) of
its Regulations, as file Nº 11.589.
Thus, the petitioners in the case at hand are the direct relatives of the
victims (Marlene Alejandre, Marlene Victoria Alejandre, Mirta Costa, Osvaldo
Costa, Miriam de la Peña, Mario de la Peña, and Eva Barbas), Dr. Haydeé Marín
(Institute of Human and Labor Rights at Florida International University),
Dr. Claudio Benedí (Cuban Patriotic Council), and Mr. José J. Basulto (Brothers
to the Rescue).
Since the start of proceedings in this case on 7 March 1996, the Cuban
State has not replied to the Commission’s repeated requests for information
regarding the admissibility and merits of the matter. Therefore, based on
an exhaustive analysis of the legal and factual grounds and in accordance
with Article 42 of its Regulations,
the Commission believes that the complaint meets the formal requirements for
admissibility as set forth in the Regulations and concludes that the Cuban
State is responsible for violating the rights enshrined in the American Declaration
as reported by the petitioners in their complaint of 25 February 1996..
Based on the analysis and conclusions of this report, the Commission recommends
that the Cuban State conduct an exhaustive investigation into the incidents
in question, prosecute and punish the individuals responsible for the different
violations described herein, and make adequate and timely amends to the victims’
direct relatives, including the payment of fair compensatory indemnification.
PROCEEDINGS BEFORE THE COMMISSION
The Commission, by means of a note dated 7 March 1996, began proceedings
in this case, asking the Cuban State to provide the relevant information on
the incidents described in that note, along with any evidence indicating whether
or not the remedies available under domestic law had been exhausted. Following
that date the case has been processed in accordance with Article 32 et
seq. of the Commission’s Regulations. As stated above, at no time between
the start of proceedings and the present did Cuba reply to the requests for
information, in spite of being warned on repeated occasions and being informed
about the application of Article 42 of the Commission’s Regulations.
In fact, the Cuban State was notified on 7 March and 19 April 1996;
4 February and 25 September 1997; 21 and 30 January 1998; and 12 June 1998.
its meeting Nº 1432, on May 5, 1999, during the 103rd session, the Commission
adopted Report Nº 81/99, pertaining to this case, in accordance with Article
53, paragraphs 1 and 2, of its Regulations. In a note dated May 19,1999, the
Commission transmitted the report to the Cuban State, granting it a period
of two months in which to implement the report’s recommendations.
On July 19, 1999, when that period expired, the Cuban State had not
presented any observations on the Commission’s report.
POSITIONS OF THE PARTIES
THE INCIDENT. Alejandre, Costa, De la Peña, and Morales were members
of the “Brothers to the Rescue” organization, based in the city of Miami,
Florida, United States of America. On the morning of 24 February 1996, two
of the Brothers to the Rescue Cessna 337 airplanes departed Opa Locka airport
in south Florida.
Costa was flying one airplane, and he was accompanied by Pablo Morales, a
Cuban citizen who had fled the country on a raft. De la Peña was at the controls
of the second plane, with Alejandre as his passenger. Before departing, the
two aircraft notified air traffic controllers in both Miami and Havana of
their flight plans, which were to take them south of the 24th parallel.
Parallel 24 is located a good distance to the north of Cuba’s 12-mile
territorial waters and it serves as the northernmost limit of the Havana Flight
Information Region. Commercial and civilian aircraft routinely fly in this
area, and aviation practice requires that they notify Havana air traffic control
when they move south of parallel 24. Both Brothers to the Rescue airplanes
complied with this custom by communicating with Havana, identifying themselves,
and giving their position and altitude.
While the two aircraft were still north of the 24th parallel, the Cuban
Air Force ordered the scrambling of two military aircraft, a MiG-29 and a
MiG-23, operating under the control of a military station on Cuban soil. The
MiGs were carrying artillery, short-range missiles, bombs, and rockets, and
they were flown by members of the FAC.
Extracts from the radio communications between the MiG-29 and the military
control tower in Havana detail what transpired next:
MIG-29: OK, the objective is in sight; the objective is in sight. It is a small airplane. Copied; small airplane in sight.
OK, we have it in sight, we have it in sight.
The objective is in sight.
Control: Go ahead.
The objective is in sight.
Control: Airplane in sight.
Is it coming again?
It is a small airplane, a small airplane.
It is white; white.
Control: Color and registration of the
Hey, the registration as well?
Control: What type and color?
It is white and blue.
White and blue, at low altitude, a small airplane.
Give me instructions.
Hey, give me authorization . . .
If we overfly it, things are going to get complicated. Let’s overfly
it. There are some vessels coming that way, so I’m going to overfly it.
Talk to me; talk to me.
I’ve got a lock; I’ve got a lock.
We’re locked on. Give us the authorization.
MIG-29: It’s a Cessna 337. That one, that one. Hell, give us the authorization.
Hell, give us the authorization! We got it!
Control: Authorized to destroy.
We copy. We copy.
Control: Authorized to destroy.
MIG-29: Understood; I had already received it. Leave us alone for a minute.
Control: Don’t lose him.
We blew his balls off! We blew his balls off!
Wait; look and see where he went down.
Yes! Yes! Shit, we hit him! Jesus!
Mark the place where we took him down.
We’re on top of him. He won’t give us any more fucking trouble.
Control: Congratulations to the pair
Mark the place.
. . .
We are climbing and coming home.
Control: Stay there, circling above.
Above the objective?
Jesus, we told you, buddy.
Control: Correct; the objective is marked.
Military Control: OK, climb to 3200, 4000 meters above the destroyed objective and keep a low speed.
Control: I need you to stay . . .
there. What direction did you fire in?
I have another aircraft in sight.
We have another aircraft.
Control: Follow it. Do not lose the other
We have another aircraft in sight. It is in the area where [the first
plane] came down. It’s in the area where it came down.
We have sight of the airplane.
Control: Stay there.
Buddy, it’s in the incident area, where the objective came down. They
are going to give us authorization.
Hey, SAR isn’t necessary. There’s nothing left. Nothing.
Control: Correct, follow the plane. You
are going to remain above it.
We are above it.
Control: Correct . . .
Is the other one authorized?
Marvelous. Let’s at it, Alberto.
Understood; we are now going to destroy it.
Control: Do you still have it in sight?
We have it, we have it; we are working. Let us do our job.
The other one is destroyed; the other one is destroyed. Homeland or
death, you bastards! The other one is also down.
The MiG-29’s air-to-air missiles disintegrated the Brothers to the
Rescue airplanes, killing their occupants instantaneously and leaving almost
no recoverable remains. Only a broad slick of oil marked the place where the
planes were downed. At no time did the FAC notify or warn the civilian airplanes,
try to use other interception methods, or give them an opportunity to land.
The MiGs’ first and only response was the intentional destruction of the civilian
airplanes and their four occupants. This actions were a clear violation of
established international rules, which require all measures to be exhausted
before resorting to aggression against any airplanes and utterly forbid the
use of force against civilian craft.
In addition, agents of the Cuban State violated several basic human rights
set forth in the American Declaration of the Rights and Duties of Man.
THE VICTIMS. Armando Alejandre was 45 years old at the time of
his death. Although born in Cuba, Alejandre made Miami, Florida his home at
an early age and became a naturalized U.S. citizen. Alejandre served an eight-month
tour of duty in the Vietnam War, completed his college education at Florida
International University, and worked as a consultant to the Metro-Dade Transit
Authority. He was survived by his wife of 21 years, Marlene Alejandre, and
his daughter Marlene, a university student.
Carlos Alberto Costa was born in the United States in 1966 and lived
in Miami. He was only 29 years old. Always interested in aviation and hoping
to someday oversee the operations of a major airport,
Costa earned his bachelor's degree at Embry-Riddle Aeronautical University
and worked as a Training Specialist for the Dade County Aviation Department.
He was survived by his parents Mirta Costa and Osvaldo Costa and by his sister,
Mario Manuel De la Peña was also born in the United States and was
24 years old at the time of his death. De la Peña was in his last semester
at Embry-Riddle Aeronautical University, working toward his goal of being
an airline pilot, when he was killed. During that semester he had obtained
a coveted and highly competitive position with American Airlines. The university
granted De la Peña a posthumous bachelor's degree in professional aeronautics.
He was survived by a younger brother, Michael De La Peña, and by his parents
Mario T. De la Peña and Miriam De la Peña.
Pablo Morales was born in Havana, Cuba, on 16 May 1966. On 5 August
1992 he fled the island on a raft and was rescued by the Brothers to the Rescue
organization. As a result, he joined the organization as a volunteer and flew
as copilot. Morales studied cartography and graduated as a geodesist.
According to the petitioners, the responsibility of the Cuban State
lies, first, in that the unprovoked firing of deadly rockets at a defenseless,
unarmed civilian aircraft undoubtedly comes within the scope of “extrajudicial
execution.” That term is defined in reference to its use in the Torture Victim
Protection Act (TVPA), which states that the term “extrajudicial execution”
means a deliberated killing not authorized by a previous judgment pronounced
by a regularly constituted court affording all the judicial guarantees set
forth in international human rights instruments and, in particular, in the
American Declaration of the Rights and Duties of Man. Cuba’s actions in this
case come within that definition. The occupants of the two unarmed civilian
planes received no warning of any type regarding their imminent destruction.
The FAC was acting as an agent of Cuba when it committed the killings.
The evidence presented shows how the pilots of the Cuban MiGs obtained authorization
from state officials prior to downing each plane and received hearty congratulations
from those officials after the planes were destroyed.
The incidents in which the victims were killed occurred in international
airspace. The ICAO concluded that the aircraft were over international waters
when they were shot down. The first plane was 18 miles off the Cuban coast
when it was destroyed by FAC missiles; the second was 30.5 miles away from
Cuba. These numbers place the airplanes a good distance from the 12 miles
of territorial waters Cuba is allowed under international law.
Furthermore, the evidence provided by the crew and passengers of the Majesty
of the Seas, a cruise ship that was in the vicinity, and of the Tri-Liner,
a private fishing vessel, indicated that the civilian aircraft were flying
in international airspace toward Florida and away from Cuba when they were
destroyed by the agents of the Cuban State.
The practice of summary execution has been roundly condemned by the
global community. Many international human rights conventions and declarations
enshrine the right of all individuals to freedom from arbitrary or unjustifiable
deprivation of life.
The consensus against extrajudicial executions is so extended that each instrument
or agreement that has tried to define the scope of international human rights
law has enshrined the right of due process for protecting that right. The
forbidding of extrajudicial executions thus raises to the level of imperative
law a provision of international law that is so basic that it is binding on
all members of the international community. The human rights rules that have
been generally accepted and that therefore have been incorporated into national
law cover such basic rights as the right not to be murdered, tortured, or
in any way submitted to cruel, inhuman, or degrading punishment and the right
of freedom from arbitrary arrest. The ban on summary executions is universal
and binding on states. A state violates international human rights law if,
as state policy, it practices, encourages, or condones murder or allows the
disappearance of individuals. Consequently, the extrajudicial killings of
De la Peña, Costa, Alejandre, and Morales committed by agents of the Cuban
State make that State’s internationally responsible for violating the right
to life set forth in Article I of the American Declaration of the Rights and
Duties of Man. And by refusing justice, the Cuban State is responsible for
ignoring the right to a fair trial enshrined in Article XVIII of that international
B. The State
The Cuban State did not reply to the Commission’s repeated requests
for information and for its comments on the admissibility and merits of the
complaint. The Commission also notes that to date the State has not disputed
the facts set forth in the complaint, in spite of the series of notes asking
it to do so. Consequently, the period of time allowed in the Commission’s
Regulations for the State to provide information on the case at hand has expired
by a wide margin.
Competence of the Commission and formal requirements for admissibility
The Commission is competent ratione
materiae to hear the case at hand since it involves violations of rights
enshrined in the American Declaration of the
Rights and Duties of Man.
Its competence stems from provisions of its Statute and Regulations
and of the OAS Charter. Under the Charter, all member states pledge to respect the
essential rights of individuals. In
the case of states not parties to the Convention, the rights in question are
those established in the American Declaration, which is a source of international
obligations. In its Statute, the Commission is instructed
to place special emphasis on the observance of the human rights recognized
in that Declaration's Article I (life, liberty, and personal security), Article
II (equality before law), Article III (freedom of religion and worship), Article
IV (freedom of investigation, opinion, expression, and dissemination), Article
XVIII (fair trial), Article XXV (protection from arbitrary arrest), and Article
XXVI (due process of law).
The Commission has processed this case in compliance with the provisions
of Chapter III of its Regulations and Articles 1, 18, and 20 of its Statute.
Article 51 of the IACHR Regulations states that the Commission “shall
receive and examine any petition that contains a denunciation of alleged violations
of the human rights set forth in the American Declaration of the Rights and
Duties of Man, concerning the member states of the Organization that are not
parties to the American Convention on Human Rights.”
The procedure applied to this case was the one set forth in Article
52 of the Commission’s Regulations, to wit: “The
procedure applicable to petitions concerning member states of the Organization
that are not parties to the American Convention on Human Rights shall be that
provided for in the General Provisions included in Chapter I of Title II,
in Articles 32 to 43 of these Regulations, and in the articles indicated below.”
The presentation of the petition meets the formal requirements for
admissibility contained in Article 32 of the Commission’s Regulations, in
that the procedure described in its Article 34 has been exhausted. Moreover,
the claim is not pending any other international settlement procedure, nor
does it reproduce any other petition that the Commission has previously examined.
The Commission is also competent ratione
personae, since Article 26 of its Regulations provides that "[a]ny
person or group of persons or nongovernmental entity legally recognized in
one or more of the member states of the Organization may submit petitions
to the Commission, in accordance with these Regulations, on one's own behalf
or on behalf of third persons, with regard to alleged violations of a human
right recognized, as the case may be, in the American Convention on Human
Rights or in the American Declaration of the Rights and Duties of Man."
In this context, the Commission must reiterate that the Cuban State's
failure to respond in these proceedings is a breach of its international legal
obligation to provide information in response to petitions and other communications
containing allegations of human rights violations.
The Commission has already stated on numerous occasions that the intent
of the Organization of American States in its "Exclusion of the Present
Government of Cuba from Participation in the Inter-American System"
was not to leave the Cuban people without protection. The exclusion of that government from the regional system in
no way means that it can fail to meet its international obligations in matters
of human rights. Consequently,
the Commission bases its analysis on the evidence at its disposal and on Article
42 of its Regulations.
In terms of its competence ratione
loci, clearly the Commission is competent with respect to human rights
violations that occur within the territory of OAS member states, whether or
not they are parties to the Convention.
It should be specified, however, that under certain circumstances the
Commission is competent to consider reports alleging that agents of an OAS
member state have violated human rights protected in the inter-American system,
even when the events take place outside the territory of that state.
In fact, the Commission would point out that, in certain cases, the
exercise of its jurisdiction over extraterritorial events is not only consistent
with but required by the applicable rules.
The essential rights of the individual are proclaimed in the Americas
on the basis of equality and nondiscrimination, "without distinction
as to race, nationality, creed, or sex." Because
individual rights are inherent to the human being, all the American states
are obligated to respect the protected rights of any person subject to their
jurisdiction. Although this usually refers to persons who are within the
territory of a state, in certain instances it can refer to extraterritorial
actions, when the person is present in the territory of a state but subject
to the control of another state, generally through the actions of that state's
In principle, the investigation refers not to the nationality of the
alleged victim or his presence in a particular geographic area, but to whether,
in those specific circumstances, the state observed the rights of a person
subject to its authority and control.
The European Commission on Human Rights has ruled on this matter in
the case brought by Cyprus against Turkey following the Turkish invasion of
that island. In its complaint,
Cyprus alleged that the European Convention had been violated in the part
of its territory occupied by Turkish forces.
Turkey, for its part, maintained that, under Article 1 of the European
Convention, the competence of the Commission was limited to the examination
of actions allegedly committed by a state party in its own national territory
and that Turkey could not be found to have violated the Convention since it
had not extended its jurisdiction to Cyprus.
The European Commission rejected that argument, as follows:
Article 1 of the Convention, the High Contracting Parties undertake to secure
the rights and freedoms defined in Section 1 to everyone “within their jurisdiction”
(in the French text: “relevant de leur jurisdiction").
The Commission finds that this term is not, as submitted by the respondent
Government, equivalent to or limited to the national territory of the High
contracting Party concerned. It
is clear from the language, in particular of the French text, and the object
of this article, and from the purpose of the Convention as a whole, that the
High contracting Parties are bound to secure the said rights and freedoms
to all persons under their actual authority and responsibility, whether
that authority is exercised within their own territory or abroad.
In the case sub lite, the
petitioners stated that their allegations were guided by the provisions of
the American Declaration of the Rights and Duties of Man.
The Commission has examined the evidence and finds that the victims
died as a consequence of direct actions taken by agents of the Cuban State
in international airspace. The
fact that the events took place outside Cuban jurisdiction does not limit
the Commission's competence ratione
loci, because, as previously stated, when agents of a state, whether military
or civilian, exercise power and authority over persons outside national territory,
the state's obligation to respect human rights continues--in this case the
rights enshrined in the American Declaration.
The Commission finds conclusive evidence that agents of the Cuban State,
although outside their territory, placed the civilian pilots of the "Brothers
to the Rescue" organization under their authority. Consequently, the Commission is competent ratione loci to apply the American Convention extraterritorially to
the Cuban State in connection with the events that took place in international
airspace on February 24, 1996.
As regards the requirement that domestic remedies be exhausted, Article
37(1) of the Commission’s Regulations states that “for
a petition to be admitted by the Commission, the remedies under domestic jurisdiction
must have been invoked and exhausted in accordance with the general principles
of international law.” In this regard, the Inter-American Court of Human Rights
has stated that:
recognized principles of international law indicate, first, that this is a
rule that may be waived, either expressly or by implication, by the State
having the right to invoke it, as this Court has already recognized (see Viviana
Gallardo et al., Judgment of November 13, 1981, Nº G 101/81. Series A, para.
26). Second, the objection asserting the non-exhaustion of domestic remedies,
to be timely, must be made at an early stage of the proceedings by the State
entitled to make it, lest a waiver of the requirement be presumed.
In the present case, the Cuban State made no objection asserting that
domestic remedies had not been exhausted upon receiving formal notification
of the petition and thus opposing its admissibility; neither did it respond
to the Commission’s repeated requests for information during processing of
the case. In consideration of this, and with no evidence other than that contained
in the case documents, the Commission concludes that the Cuban State has tacitly
declined to make an objection asserting the nonexhaustion of domestic remedies.
B. Evidence in the
case at hand
The Commission will now present the documents and other evidence, which
have been thoroughly examined and which provide indications for reaching a
decision regarding the events of the afternoon of 24 February 1996, when the
four civilian pilots from Brothers to the Rescue lost their lives, allegedly
as a result of actions taken by agents of the Cuban State. Thus, the documents
and other evidence submitted to the Commission — which it has carefully processed,
analyzed, and assessed — include: (1) the report of the International Civil
Aviation Authority (ICAO) of 28 June 1996; (2) a descriptive summary of the
incident drawn up by the victims’ relatives; (3) a written transcript of the
testimony given to the IACHR by the victims’ relatives on 3 March 1997; (4)
a leaflet with biographies and photographs of the four dead pilots, along
with other general information; (5) the report of the United Nations Special
Rapporteur for Cuba; (6) the final judgment against the Republic of Cuba handed
down in a civil suit by Judge King of the United States District Court, South
Florida; (7) the testimony given by Capt. Charles F. Leonard, aviation expert,
during the civil trial in the U.S. courts; (8) the testimony given by Prof.
Stephen J. Schnably, expert in international law, during the civil trial in
the U.S. courts; (9) a copy of the USA’s 1996 Anti-Terrorism and Effective
Death Penalty Act; (10) a copy of the USA’s 1976 Foreign Sovereign Immunities
Act; (11) an article from Times
magazine, 11 March 1996, titled “The Cold War is Back”; (12) EFE newswire,
dated 5 March 1996: Decisión de derribo
se tomó para evitar nueva humillación [Decision to shoot down taken to
prevent further humiliation]; (13) EFE newswire, dated 5 March 1996: Piloto admite que exclamó frase despectiva en el derribo
[Pilot admits to exclaiming derogative phrase during downing]; (14) transcriptions
of interviews with Gen. Rubén Martínez
Puente, commanding officer of the Cuban Antiair Defense Force, broadcast by
Cubavisión, Havana, on 6 March 1996; (15) audio tape of the flightdeck recorder
from aircraft 2506, 24 February 1996; and (16) scale models of the Cessnas
and MiGs involved in the shootdown.
C. Analysis of the evidence
with regard to the material perpetrators of the incident
After assessing the evidence, the Commission must analyze the events
of 24 February 1996 and determine whether they cause the Cuban State to incur
in international responsibility for the alleged violation of rights enshrined
in the American Declaration of the Rights and Duties of Man. In other words,
the Commission must ascertain whether the Cuban State is responsible for the
death of the four civilian pilots and, consequently, whether the three elements
that cause a State to be internationally responsible are present, namely (i)
whether there existed an action or a failure to act that violated an obligation
enshrined in a rule of international law currently in force, which in this
case would be the American Declaration; (ii) whether that action or a failure
to act can be attributed to the State in its capacity as a juridical person,
and (iii) whether harm or damage was caused as a result of the illicit act.
One of the pieces of evidence that casts light on the substance of
the complaint is the report by the International Civil Aviation Organization
(ICAO), which is included in the file on this case. Following the incident,
during its 147th session on 6 March 1996 the ICAO Council adopted a resolution
regarding the downing of two private U.S.-registered civilian aircraft by
Cuban military airplanes on 24 February 1996. The ICAO studied this issue
in response to a request made by the United Nations Security Council on 27
February 1996 and in consideration of the requests made by the governments
of the USA and Cuba for an exhaustive investigation of the incident to be
conducted. In compliance with that request, on 28 June 1996 the ICAO presented
the Security Council with a report titled “Report of the Investigation into
the Shooting Down of Two U.S.-Registered Private Aircraft by a Cuban Military
Plane on 24 February 1996”.
With regard to the events, the ICAO report establishes that the Brothers
to the Rescue pilots and followers met at a hangar at Opa Locka airport, located
in south Florida, in the morning of 24 February 1996, and that at 9:12 a.m.
the pilot of the Cessna 337C, registration N2456S, who was the organization’s
flight operations chief, began presentation of the flight plans according
to visual flight rules (VFR) prior to conducting a rafter rescue flight. However,
due to other commitments on the part of some of the pilots, the flight did
not leave at 10:15 a.m. as had been planned. The pilots returned to the hangar
after 11:00 a.m. and decided to have lunch before taking off. At 1:01 p.m.
the three Cessna 337 aircraft — registration numbers N2506 (José Basulto,
Arnaldo Iglesias, Andrés and Silvia Iriondo), N2456S (Carlos Costa and Pablo
Morales), and N5485S (Mario De La Peña and Armando Alejandre) — took off to
the west at 1:11, 1:12, and 1:13 p.m., respectively. Once in the air, the
three Cessnas contacted Miami AIFSS (call sign Miami Radio) to activate their
flight plans. At 2:39 p.m. Cuban air defense radar detected aircraft to the
north of Parallel 24N. At 2:43 p.m. two military interception airplanes were
immediately prepared at the San Antonio de los Baños airbase. These airplanes
— a two-man MiG-29 UB and a MiG-23 ML — were armed with heat-seeking air-to-air
missiles and machineguns. They took off at 2:55 p.m. to patrol around 15 to
20 km north of the coast at altitudes of between 200 and 500 meters.
The ICAO then concluded, inter alia,
At 15:21 hours on 24 February 1996, N2456S was destroyed by an air-to-air
missile fired by a Cuban MiG-29 military aircraft.
At 15:27 hours on 24 February 1996, N5485S was destroyed by an air-to-air
missile fired by a Cuban MiG-29 military aircraft.
The recorded positions and track of the Majesty
of the Seas, the observations by its crew and passengers, the position
of the Tri-Liner relative to the
Majesty of the Seas, and the resulting
estimated locations of the shootdowns were considered to be the most reliable
No corroborative evidence of the position of the Majesty of the Seas was obtained. With this qualification and based
on the recorded positions of the Majesty
of the Seas, N2456S was shot down approximately at position 23°29N 082°28W,
9 NM outside Cuban territorial airspace and N5485S was shot down approximately
at position 23°30.1N 082°28.6W, 10 NM outside Cuban territorial airspace
Means other than interception were available to Cuba, such as radio
communication, but had not been utilized. This conflicted with the ICAO principle
that interception of civil aircraft should be undertaken only as a last resort.
During the interceptions, no attempt was made to direct N2456S and
N5485S beyond the boundaries of national airspace, guide them away from a
prohibited, restricted or danger area or instruct them to effect a landing
at a designated aerodrome.
In executing the interception, the standard procedures for maneuvering
and signals by the military interceptor aircraft, in accordance with ICAO
provisions and as published in AIP Cuba, were not followed.
The Protocol introducing Article 3-bis into the Chicago Convention
had not entered into force. Neither Cuba nor the United States had ratified
The rule of customary international law that States must refrain from
resorting to the use of weapons against civil aircraft applies irrespective
of whether or not such aircraft is within the territorial airspace of that
The ICAO also notes: “There were several eyewitnesses to the event.
Personnel and passengers on board the Majesty
of the Seas and the crew of the fishing boat Tri-Liner
observed the destruction of an aircraft (N2456S) as well as the later destruction
of another aircraft (N5485S). An
observer on duty in an observation post on shore in Havana and the yachtsman
on the sailing boat heard and saw one event, but neither of them was able
to tell whether he saw the destruction of the first or the second aircraft.”
According to ICAO, the
Majesty of the Seas had an automatic system for recording the time, position,
velocity, direction, relative wind, and depth every five minutes, based on
an international system for determining position (GPS) and other sensors.
Regarding the witnesses, the ICAO states that the watchkeeping staff
on the bridge of the Majesty of the Seas, at 15:23 hours, observed an explosion
in the air and the debris that fell into the sea.
Several passengers and other members of the crew also saw the explosion
and the falling debris. The occurrence
was recorded in the ship’s log. The
ICAO further notes that a crewman of the fishing boat Tri-Liner
heard and saw the explosion directly overhead and called the master, who was
below deck. Both observed the
aircraft fall into the sea in flames, from 200 to 400 yards astern of their
vessel. In addition, a military-type
aircraft was seen. The fishing
boat turned around, approached the place of the impact, and observed some
small debris and an oil slick. A
1.5 ft square orange-colored box or float, with a yellow line attached, was
seen but not recovered. The boat
remained on the scene for about 10 minutes; no other items came to the surface.
The Tri-Liner then resumed
its course to the north. The
master later estimated the time of the explosion as 15:15 hours and the position
as 23 30N 082 17W.
The Commission has also been able to verify that the extracts from
the radio communications exchanged by the MiG-29 and the military control
tower in Havana, as supplied by the petitioners, agree with those contained
in the ICAO report, as do the adjectives used by the FAC pilots before shooting
down the civilian aircraft and the orders they received from their superiors
in Havana, Cuba.
The International Civil Aviation Organization described the damage
done to the civilian pilots and their aircraft in the following terms:
pilot and the other occupant of the Cessna 337C, N2456S [Carlos Costa and
Pablo Morales], are missing and presumed fatally injured. The pilot was a
citizen of the United States, and the other occupant was a legal resident
of the United States.
pilot and the other occupant of the Cessna 337B, N5485S [Mario De La Peña
and Armando Alejandre], are missing and presumed fatally injured.
Both occupants were citizens of the United States.
Cessna 337C, N3456S, and the Cessna B, N5485S, were each destroyed by one
air-to-air missile fired from a Cuban MiG-29 military aircraft. Both Cessna
aircraft broke up in the air from the explosions of the missiles, the wreckage
impacted the sea and sank.
As regards the pilots of the Cuban Air Force MiGs that were involved
in the 24 February 1996 incident, the ICAO noted the following:
of the MiG-29.
The pilot of the MiG-29 was qualified in accordance with existing Cuban
Anti-Aircraft Defense/Air Force regulations.
The pilot, male, 44 years of age, held the rank of Lieutenant Colonel.
His total flying experience was over 1,000 hours, of which about 500 hours
were in MiG-29 aircraft. He had been flying MiG aircraft for 19 years and
had participated in three international assignments, including 74 combat missions.
of the MiG-29.
The co-pilot of the MiG-29 was qualified in accordance with existing
Cuban Anti-Aircraft Defense/Air Force regulations. The co-pilot, male, 44
years of age, held the rank of Lieutenant Colonel.
His total flying experience was over 1,800 hours.
He had been flying for 26 years and had participated in international
assignments, including over 30 combat missions.
of the MiG-23.
The pilot of the MiG-23 was qualified in accordance with existing Cuban
Anti-Aircraft Defense/Air Force Regulations. The pilot, male, 35 years of
age, held the rank of Major. His total flying experience was over 800 hours.
He had been flying MiG aircraft for 15 years, and had participated
in two international assignments, including some combat missions.
The Inter-American Commission, based on the above considerations and
on the evidence made available to it, offers the following clarifications
regarding the events of 24 February 1996:
The incidents described in the petitioners’ complaint, together with
the evidence they provided, agree in full with the investigations conducted
by the International Civil Aviation Organization (ICAO) in their factual description
of the events and of the persons directly behind them.
The destruction of the two civilian aircraft in international airspace
and the death of their four occupants at the hands of agents of the Cuban
Air Force constitute flagrant violations of the right to life.
The fact that weapons of war and combat-trained pilots were used against
unarmed civilians shows not only how disproportionate the use of force was,
but also the intent to end the lives of those individuals. Moreover, the extracts
from the radio communications between the MiG-29 pilots and the military control
tower indicate that they acted from a superior position and showed malice
and scorn toward the human dignity of the victims.
There is abundant evidence in this case to indicate the presence of
the three elements that would make the Cuban State internationally responsible
for the deaths of the four pilots in the afternoon of 24 February 1996.
D. The international
responsibility of the cuban state
AN ACTION OR FAILURE TO ACT THAT VIOLATES AN OBLIGATION ENSHRINED IN A PROVISION
OF CURRENT INTERNATIONAL LAW
RIGHT TO LIFE: The first article of the American Declaration of the
Rights and Duties of Man enshrines the right to life by stating that “every
human being has the right to life, liberty and the security of his person.”
In addition, the Inter-American Commission has also ruled that the right to
life is “the
foundation and basis of all other rights,”
can never be suspended. Governments may not use, under any circumstances,
illegal or summary execution . . . This type of measures proscribed
by the Constitutions of the states and is the international instruments that
protect the fundamental rights of persons.
The Commission has also stated that “the obligation of respecting and
protecting human rights is an obligation erga
omnes, i.e., one that the Cuban State must assume--like all other member
states of the OAS, whether or not they are signatories of the American Convention
on Human Rights--toward the inter-American community as a whole, and toward
all individuals subject to its jurisdiction, as direct beneficiaries of the
human rights recognized by the American Declaration of the Rights and Duties
In this regard, the Inter-American Court of Human Rights has indicated
that for the states "the American Declaration is a source of international
obligations. The fact that the
Declaration is not a treaty should not lead one to conclude that it has no
Furthermore, the public law doctrine regarding international human
rights law is very broad in analyzing states’ obligations of ensuring respect
for the right to life. For example, Héctor Faúndez Ledesma, a Venezuelan jurist
and professor at the Central University of Venezuela, has stated that:
the right to life seeks to protect the citizen from the capricious act by
one who has state power and who, abusing that power, may feel the temptation
to dispose of those who may disturb him . . .
. . . it
should be observed that the right to life implies two distinct obligations
on the state: first, the obvious consequence is that the state authorities,
and in particular the police and military forces, should abstain from causing
arbitrary deaths; and second, this guarantee implies the state’s duty to protect
persons from acts of private persons that may constitute an arbitrary attack
on their life, punishing them so as to deter or prevent such attacks.
In this regard, the Commission believes that in this case the presence
of the first element giving rise to the international responsibility of the
Cuban State has been adequately proven: the existence of actions originating
with its agents that violated the first obligation set forth in the American
Declaration--the right to life of Carlos Costa, Pablo Morales, Mario De La
Peña, and Armando Alejandre in the course of the events of 24 February 1996.
Neither can the Commission fail to refer to the ICAO’s conclusions
that the agents of the Cuban State made no effort to use means other than
lethal force to guide the aircraft out of the restricted or danger area. The
Commission believes that the indiscriminate use of force, and particularly
the use of firearms, is an affront to the right to life and personal integrity.
In this particular case, the military airplanes acted irregularly: without
prior warning, without evidence that their actions were necessary, without
keeping things in their correct proportion, and without the existence of due
The United Nations Special Rapporteur on Extrajudicial, Summary or
Arbitrary Executions has stated that “if an agent of the services of repression
uses force in excess of that necessary to attain his legitimate goal and a
person is killed, that would equate to an arbitrary execution.”
In the case at hand, the pilots of the civilian light aircraft posed no danger
to Cuba’s national security, to the Cuban people, or to the military pilots.
Regarding the disproportionate use of force and the arbitrary taking of lives,
the Inter-American Court of Human Rights has stated that:
question, the State has the right and duty to guarantee its security. It is
also indisputable that all societies suffer some deficiencies in their legal
orders. However, regardless of the seriousness of certain actions, the power
of the State is not unlimited, nor may the State resort to any means to attain
its ends. The State is subject to law and morality. Disrespect for human dignity
cannot serve as the basis for any State action.
In the same regard, the European Court of Human Rights has stated that:
. . .
soldiers [trained] to continue shooting once they opened fire until the suspect
was dead. . . . Against this background, the authorities were
bound by their obligation to respect the right to life of the suspects to
exercise the greatest of care in evaluating the information at their disposal
before transmitting it to soldiers whose use of firearms automatically involved
shooting to kill.
From the circumstances surrounding the events of 24 February 1996,
from the disproportionate and indiscriminate use of lethal force applied to
the civilian aircraft, from the intensity of that force, and from the way
in which the authorities at the Havana military control tower congratulated
the MiG-29 pilots after they had carried out their orders, the Commission
finds sufficient evidence that Carlos Costa, Pablo Morales, Mario De La Peña,
and Armando Alejandre were arbitrarily or extrajudicially executed at the
hands of agents of the Cuban State.
Consequently, the Cuban State is responsible for violating the right to life,
as enshrined in Article I of the American Declaration of the Rights and Duties
RIGHT TO A FAIR TRIAL: The American Declaration sets forth the remedies
to which all individuals who believe their rights to have been violated by
state authorities shall have access. Thus, Article XVIII stipulates that:
person may resort to the courts to ensure respect for his legal rights. There
should likewise be available to him a simple, brief procedure whereby the
courts will protect him from acts of authority that, to his prejudice, violate
any fundamental constitutional rights.”
In the case documents there is no evidence to indicate that the victims’
families attempted to exhaust domestic Cuban law in order to secure the prosecution
and punishment of the perpetrators of the incident at hand. Nevertheless,
the Inter-American Commission has always maintained that in the case of crimes
of public action, and even in those which may be prosecuted by a private actor,
it is not valid to demand exhaustion of domestic remedies of the victim or
the victim's relatives, for the state has a duty to maintain public order,
and therefore it has an obligation to set the criminal law system into motion
and to process the matter until the end. In other words, the obligation to
investigate, prosecute, and punish the persons liable for human rights violations
is a non-delegable duty of the state. One consequence is that public employees,
unlike private persons, have a legal obligation to denounce all crimes of
public action that they come to learn of in performing their duties. The preceding
statement is confirmed in those procedural regimes that deny the victim or
victim's relatives any standing, as the state monopolizes the ability to press
criminal charges. And where such standing is provided for, its exercise is
not compulsory, but optional for the person who has suffered harm, and does
not take the place of state action.
Neither do the documents contain any evidence to indicate that the
Cuban State, since 24 February 1996, has made any effort to investigate the
incident, identify responsibilities, and punish either the air force pilots
who executed the victims or the authorities who authorized the use of lethal
force against defenseless civilian aircraft. In this regard, the European
Court of Human Rights has stated that:
general legal prohibition of arbitrary killing by the agents of the State
would be ineffective, in practice, if there existed no procedure for reviewing
the lawfulness of the use of lethal force by State authorities. The obligation
to protect the right to life under this provision, read in conjunction with
the State's general duty under Article 1 of the [European] Convention to “secure
to everyone within their jurisdiction the rights and freedoms defined in [the]
Convention”, requires by implication that there should be some form of effective
official investigation when individuals have been killed as a result of the
use of force by, inter alios, agents
of the State.
The fact that in more than three years no exhaustive investigation
was begun under Cuba’s domestic laws to study the legitimacy of the force
used against the civilian aircraft, that neither the perpetrators nor the
individuals who gave the orders from the military control tower have been
brought to trial, and that fair reparations have not been made to the relatives
of the victims makes the Cuban State responsible for violating the right to
a fair trial as set forth in Article XVIII of the American Declaration. The
Special Rapporteur of the Sub-Commission on Prevention of Discrimination and
Protection of Minorities of the United Nations Commission on Human Rights,
Theo Van Boven, analyzed the question of impunity in the following terms:
of human rights violations, whether civilian or military, become all
the more irresponsible
if they are not held to account before a court of law....
It may therefore be concluded that in a social and political climate
where impunity prevails, the right to reparation for victims of gross violations
of human rights and fundamental freedoms is likely to become illusory.
It is hard to perceive that a system of justice that cares for the
rights of victims can remain at the same time indifferent and inert towards
gross misconduct of perpetrators.
ATTRIBUTION OF THE ACTION OR FAILURE TO ACT TO THE STATE
After showing that the first element causing the international responsibility
of the Cuban State--the actions that violated the American Declaration of
the Rights and Duties of Man--was present in the case at hand, the Commission
also believes it has been clearly proven that those illicit actions were attributable
to the State, in that the responsible agents were officers of the Cuban Air
Force and were thus acting in performance of official functions. This is confirmed
by the eye-witnesses’ reports, the International Civil Aviation Organization’s
investigation, and the transcript of the radio exchanges between the Havana
control tower and the aircraft pilots who perpetrated the actions. Consequently,
the events of 24 February 1996 are attributable to the Cuban State.
THE DAMAGE CAUSED BY THE ILLICIT ACTIONS
The final element giving rise to the international responsibility of
the Cuban State is the damage caused as a result of the illicit actions carried
out by its agents on the afternoon of 24 February 1996. In the Commission’s
opinion, the damage caused by the illicit actions of the Cuban State involved
the following: (a) irreparable physical damage, consisting of the deaths of
the four occupants of the civilian aircraft; (b) moral and psychological damage
inflicted on the victims’ relatives, consisting of emotional suffering over
the loss of their loved ones, the trauma arising from the incident and from
the impossibility of recovering the bodies to give them a decent burial, combined
with the knowledge that justice has not been served--in other words, that
the deaths caused by the agents of the Cuban State remain unpunished; and
(c) material damage, consisting of loss of earnings and consequential damages.
The Inter-American Commission therefore believes that the Cuban State
is obliged to: (i) investigate the incident, (ii) take appropriate steps in
this regard, (iii) begin proceedings against the State agents and/or other
authorities responsible for the incident, and (iv) provide the victims’ families
with adequate reparations.
Cuba is responsible for violating the right to life (Article I of the
American Declaration of the Rights and Duties of Man) to the detriment of
Carlos Costa, Pablo Morales, Mario De La Peña, and Armando Alejandre, who
died as a result of the direct actions of its agents on the afternoon of 24
February 1996 while flying through international airspace.
Cuba is responsible for violating the right to a fair trial (Article
XVIII of the American Declaration of the Rights and Duties of Man) to the
detriment of the relatives of Carlos Costa, Pablo Morales, Mario De La Peña,
and Armando Alejandre, in that to date the Cuban authorities have not conducted
an exhaustive investigation with a view toward prosecuting and punishing the
perpetrators and have not indemnified those same relatives for the damage
they suffered as a result of those illicit acts.
Based on the
analysis and conclusions contained in this report, the Inter-American Commission
on Human Rights recommends that the Cuban State:
Conduct a complete, impartial, and effective investigation to identify,
prosecute, and punish the agents of the State responsible for the deaths of
Carlos Costa, Pablo Morales, Mario De La Peña, and Armando Alejandre in the
incident occurring in international airspace on 24 February 1996.
Ratify the Protocol to the International Civil Aviation Convention
(Article 3-bis), an international instrument of which Cuba has been a signatory
since 7 December 1944.
Take the steps necessary to ensure that the victims’ families receive
adequate and timely compensation, including full satisfaction for the human
rights violations described herein and payment of fair compensatory indemnification
for the monetary and nonmonetary damages suffered, including moral damages.
In a note dated May 19, 1999, the Commission transmitted to the Cuban
State its Report Nº 81/99, pertaining to this case, and granted it a period
of two months in which to implement the recommendations contained therein,
pursuant to Article 53, subparagraphs 1 and 2, of its Regulations.
The Cuban State neither presented any observations nor implemented
the Commission’s recommendations.
On the basis of those considerations, and pursuant to Article 53, subparagraphs
3 and 4, of its Regulations, the Commission has decided to reiterate the conclusions
and recommendations set forth in this report, to publicize it, and to include
it in the Commission’s Annual Report to the OAS General Assembly. In fulfillment
of its mandate, the Commission will continue to evaluate the measures taken
by the Cuban State regarding those recommendations, until they have been fully
The Commission has decided to transmit this report to the State of
Cuba and to the petitioners, pursuant to 53(4) of the Regulations.
Done and signed at the headquarters of the Inter-American Commission
on Human Rights, in the city of Washington, D.C., on September 29, 1999.
(Signed): Robert K. Goldman, Chairman; Hélio Bicudo, First Vice-Chairman;
Claudio Grossman, Second Vice- Chairman; Commissioners Jean Joseph Exumé,
Alvaro Tirado Mejía and Carlos Ayala Corao.
 “Brothers to the Rescue,” also known as Hermanos
al Rescate, is a nonprofit organization founded by citizens, mainly
civilian pilots, on 12 May 1991, and registered as a not-for-profit corporation
in the public records of the State of Florida, United States of America.
For more than eight years they have been patrolling the Straits of Florida
to assist the "rafters" (boat people).
 Article 40(2): Separation and Combination of Cases.
When two petitions deal with the same facts and persons, they shall be
combined and processed in a single file.
 Article 42: The facts reported in the petition whose
pertinent parts have been transmitted to the government of the State in
reference shall be presumed to be true if, during the maximum period set
by the Commission under the provisions of Article 34 paragraph 5, the
government has not provided the pertinent information, as long as other
evidence does not lead to a different conclusion.
 See first paragraph of this report.
 A third Brothers to the Rescue Cessna 337 also left
on this mission. This aircraft returned unharmed.
 See Transcripts of Cuban Military Radio Communications, International Civil Aviation Organization (ICAO), Report on the shooting down of two U.S.-registered private civil aircraft by Cuban military aircraft on 24 February 1996, C-WP/10441, June 20, 1996, pp. 35 ff., United Nations, Security Council, S/1996/509, July 1, 1996.
 These rules
have been set forth in several international documents. See, for example,
the International Civil Aviation Convention, 7 December 1944, 61 Stat.
1180, 15 U.N.T.S. 295 (both the USA and Cuba are parties to this convention).
The ban on the use of force against civilian aircraft applies even if
they have entered the airspace of a foreign country. See, for example,
Kay Hailbronner, Freedom of the
Air and the Convention on the Law of the Sea, 77 Am. J. Int'l. L.
490, 514 (1983), (“Even if an order to land is deliberately disregarded,
a civil unarmed aircraft that intrudes into foreign airspace may not be
fired upon.”). Common sense dictates that the insignificant threat that
civil airplanes may pose does not justify a potential loss of life.
 The Cuban Air Force is clearly an agent of the Cuban
state, as it acts on Cuba's behalf and is subject to Cuba's control. See
Archer v. Trans/American Servs., Ltd., 834 F. 2d 1570, 1573 (11no. Cir.
1988); Redefinition (Second) of Agency & 1 (1958) (defining the relationship
 The rules governing territorial waters and their permissible
limits can be found in the United Nations Convention on the Law of the
Sea, 7 October 1982, Art. 3, U.N. Doc. A/CONF 62/122 (1981), reprinted
in 21 I.L.M. 1261 (1982).
 The many international human rights instruments that
forbid extrajudicial executions include the following: the Universal Declaration
of Human Rights, 10 December 1948, Art. 3, G.A. Res. 217A (III), U.N.
Doc. A/810; the International Covenant on Civil and Political Rights,
16 December 1966, Art. 6(1), G.A. Res. 2200, U.N. GAOR, 21st Sess., Supp.
No. 16, U.N. Doc. a/6316, 999 U.N.T.S. 171; American Declaration of the
Rights and Duties of Man, 2 May 1948, Art. I, OEA/ser.L/V/II.23, doc.21,
rev. 6 (1979). Moreover, the international community’s commitment to resolving
disputes peacefully is a fundamental part of the structure of the United
Nations Charter and of other international instruments. U.N. Charter,
Articles 1, 2, 33, 39; see also Charter of the Organization of American
States, Articles 24-27, 3 paragraph I.
Inter-American Court of Human Rights, Advisory Opinion OC-10/89, July
14, 1989, Interpretation of the
American Declaration of the Rights and Duties of Man within the Framework
of Article 64 of the American Convention on Human Rights, paragraphs
43 to 46.
Third operative paragraph of resolution VI of the Eighth Meeting of Consultation
of Ministers of Foreign Affairs of the OAS, Punta del Este, Uruguay, OEA/Ser.F/II.8,
doc. 68, pages 14-15.
Charter, Article 3.k. See
American Declaration, Article II.
See also Inter-American Conference on Problems of War and Peace,
Resolution XL (1945), which indicates that one of the aims of instituting
a regional human rights system was to eliminate violations of the principle
of "equality between nationals and aliens."
 For example,
"Where agents of the state, whether military or civilian, exercise
power and authority (jurisdiction or de
facto jurisdiction) over persons outside national territory, the presumption
should be that the state's obligation to respect the pertinent human rights
Meron, in Extraterritoriality of
Human Rights Treaties, 89 A.J.I.L. 78 (1995) 78, 81.
See also n. 7, citing T. Buergenthal, "To Respect and Ensure:
State Obligations and Permissible Derogations," in The International Bill of Rights: The Covenant on Civil and Political
Rights 72, 74 (Louis Henkin ed. 1981).
Instances in which the Commission has dealt with extraterritorial
actions of a state, under the terms of its Statute and the American Declaration,
can be found in IACHR, Report on the Situation of Human Rights in Chile,
OEA Ser.L/V/II.66, doc. 17, 1985 (referring to the murder of Letelier
in Washington, D.C.); Second Report on the Situation of Human Rights in
Suriname, OEA Ser.L/V/II.66, doc. 21, rev. 1, 1985 (on allegations that
Surinamese residents of Holland have been harassed and/or assaulted by
agents of Suriname); Case 1.983 (opened on the basis of allegations of
extraterritorial actions; set aside for another reason); Report on case
9.239, United States, published in the 1986-87 Annual Report of the IACHR,
OEA Ser. L/V/II.71, doc. 9 rev. 1, September 22, 1987, p. 184 (in which
the case pertaining to actions by United States forces in Grenada is found
admissible; case settled, see Report 3/96, published in the 1995 Annual
Report of the IACHR, OEA/Ser.L/V/II.91, doc. 7 rev., February 28, 1996,
p. 201); Report 31/93, Case 10.573, United States, published in 1993 Annual
Report of the IACHR, OEA/Ser.L/V/II.85, doc. 9, rev., February 11, 1994,
p. 312 (in which the case pertaining to actions by United States forces
in Panama is found admissible).
European Court Human Rights, Lozidou
v. Turkey A 310 paragraphs 56-64 (1995).
European Commission of Human Rights X
v. UK No. 7547/76, 12 DR 73 (1977); Bertrand
Russell Peace Foundation Ltd. v. UK, No. 7597/76, 14 DR 117 at 124
(1978); Mrs. W v. UK No. 9348/81, 32 DR 190 (1983).
 Inter-Am.Ct.H.R., Velásquez Rodríguez Case, Preliminary
Objections, Judgment of 26 June 1987, Series C, No. 1, OAS, p. 38, paragraph
 According to the ICAO report, Page 13, footnote 18: According to the ICAO report: “The MiG-29 UB is a two-seat
combat trainer that has been in production since 1982. It is powered by
two Tumansky R-33D turbo-fan engines.
It has one 30 mm gun, infra-red sensor, laser rangefinder and underwing
pylons for six close-range air-to-air missiles.
Maximum speed is Mach 2.3, service ceiling 17,000 m, take-off distance
240 m and landing distance 600 m.
The MiG-29 carried six R-73 air-to-air missiles.
The R-73 is a close-range solid propellant air-to-air missile with
infra-red homing guidance. It
has a canard configuration with small cruciform control surfaces in tandem
with nose foreplanes and cruciform rear mounted wings.
This configuration provides high manoeuvrability with a minimum
range of under 500 m. The
R-73 missile is 2.90 m long, 17 cm in diameter, has a mass of 105 kg and
a maximum range of 20 km. The
missile has both a contact and a proximity fuse. It has a 7.4 kg explosive
charge that creates a ring shape of shrapnel that moves forward and outwards.
The MiG-23 ML is a single-seat variable geometry air combat fighter
that was in production from 1973 to the mid-1980s.
It is powered by one Tumansky R-35F-300 turbojet with afterburner.
It has one 23 mm gun; J band multi-mode radar; head-up display;
pylons for air-to-air missiles, bombs, rocket packs or other external
stores. Maximum speed is Mach 2.35, service ceiling 18,000 m, take-off
distance 500 m and landing distance 750 m.” International Civil Aviation Organization (ICAO), Report
on the shooting down of two U.S.-registered private civil aircraft by
Cuban military aircraft on 24 February 1996, C-WP/10441, June 20,
1996, p. 18, paragraphs 220.127.116.11, 18.104.22.168, and 22.214.171.124, in United Nations,
Security Council, S/1996/509, July 1, 1996.
 Both Cuba and the USA are parties to the International
Civil Aviation Convention (Chicago, 7 December 1944). On 10 May 1984,
the ICAO Assembly, attended by 107 states parties, including Cuba and
the United States, unanimously adopted a Protocol regarding an amendment
of the International Civil Aviation Convention [Article 3-bis]. This Protocol
reads as follows: “[a] The contracting States recognize that every State
must refrain from resorting to the use of weapons against civil aircraft
in flight and that, in case of interception, the lives of persons on board
and the safety of aircraft must not be endangered. This provision shall
not be interpreted as modifying in any way the rights and obligations
of States set forth in the Charter of the United Nations. [b] The contracting
States recognize that every State, in the exercise of its sovereignty,
is entitled to require the landing at some designated airport of a civil
aircraft flying above its territory without authority or if there are
reasonable grounds to conclude that it is being used for any purpose inconsistent
with the aims of this Convention; it may also give such aircraft any other
instructions to put an end to such violations. For this purpose, the contracting
States may resort to any appropriate means consistent with relevant rules
of international law, including the relevant provisions of this Convention,
specifically paragraph (a) of this Article. Each contracting State agrees
to publish its regulations in force regarding the interception of civil
aircraft. [c] Every civil aircraft shall comply with an order given in
conformity with paragraph (b) of this Article. To this end each contracting
State shall establish all necessary provisions in its national laws or
regulations to make such compliance mandatory for any civil aircraft registered
in that State or operated by an operator who has his principal place of
business or permanent residence in that State. Each contracting State
shall make any violation of such applicable laws or regulations punishable
by severe penalties and shall submit the case to its competent authorities
in accordance with its laws or regulations. [d] Each contracting State
shall take appropriate measures to prohibit the deliberate use of any
civil aircraft registered in that State or operated by an operator who
has his principal place of business or permanent residence in that State
for any purpose inconsistent with the aims of this Convention. This provision
shall not affect paragraph (a) or derogate from paragraphs (b) and (c)
of this Article."
Nations, Security Council, ICAO Report, op.
cit., pp. 92–93, S/1996/509, 1 July 1996.
Nations, ICAO Report, op. cit.,
p. 10, paragraph 1130.
 Ibid., p. 8, paragraph 1118.
 Ibid., pp. 10–12, paragraphs 1131
Nations, ICAO Report, op. cit.,
p. 15, paragraphs 122, 123, and 131.
 Ibid., p. 16, paragraphs 154, 155,
 IACHR, Ten Years of Activities 1971–1981, General Secretariat
of the Organization of American States, Washington D.C., 1982, p. 331.
 IACHR, Report No. 47/96, Case 11.476, Victims of the
Tugboat “13 de Marzo” vs. Republic of Cuba, OEA/Ser.L/V/II.93, Doc. 32,
16 October 1996, p. 20, paragraph 77.
Inter-American Court of Human Rights, Advisory Opinion OC-10/89, July
14, 1989, Series A: Judgments and Opinions, Interpretation
of the American Declaration of the Rights and Duties of Man within the
Framework of Article 64 of the American Convention on Human Rights,
paragraphs 45 and 47.
Faúndez Ledesma, Administración
de Justicia y Derecho Internacional de los Derechos Humanos (El Derecho
a un Juicio Justo), Central University of Venezuela,
Faculty of Legal and Political Sciences, 1992, pp. 61–62.
in O’Donell, Daniel, Protección
Internacional de los Derechos Humanos, Andean Commission of Jurists,
Lima, Peru, 1983, p. 52.
Neira Alegría et al. vs. Republic
of Peru, Judgment of 19 January 1995, paragraph 75.
Court of Human Rights, Strasbourg, Decisions and Reports, Judgment of
27 September 1995, No. 17/1994/464/545, McCann and Others vs. The United
Kingdom, p. 263.
 In his
report for the year in which the incident occurred, the United Nations
Rapporteur for Cuba at the time stated that “the shooting down of these
aircraft was a premeditated act and that it constituted a violation of
the right to life . . . the manner in which the events
took place, particularly the fact that approximately six minutes elapsed
between the shooting down of one aircraft and that of the other, irrefutably
indicates that the act did not represent the reflex of some confused pilots,
but that there had been enough time for them to receive precise orders
to act as they did.” (United Nations, General Assembly, Report on the
Situation of Human Rights in Cuba, A/51/460, 7 October 1996, p. 13,
paragraph 32.) Similarly, the United Nations Special Rapporteur on Extrajudicial,
Summary or Arbitrary Executions has defined arbitrary executions as “the arbitrary deprivation of life
as a result of the killing of persons carried out by the order of a government
or with its complicity or tolerance or acquiescence without any judicial
or legal process”. (United Nations, Doc. E/CN.4/1983/16,
Court of Human Rights, McCann and Others vs. United Kingdom, op.
cit., p. 56, paragraph 161.
Nations, Commission on Human Rights, Sub-Commission
on Prevention of Discrimination and Protection of Minorities, 45th session,
Study Concerning the Right
to Restitution, Compensation and Rehabilitation for Victims of Gross Violations
of Human Rights and Fundamental Freedoms, Final Report submitted by
Mr. Theo Van Boven, Special Rapporteur, paragraph 130, p. 58, E/CN.4/Sub.2/1993/8,
2 July 1993.