Mr Dermot Ahern, TD,
Minister for Foreign Affairs,
80 St Stephen's green,
Dublin 2.
2 January 2008
Your Ref: POL070718
Dear Minister,
Your private secretary, Sinéad Ryan, was kind enough to respond to my letter of 10 December 2007 by including a parliamentary answer you gave on 18 December 2007 to a question raised by Finian McGrath, TD, in relation to the Miami Five.
Whilst this in no way answers the substance of my letter, I regret to advise you that you may have inadvertently mislead the house and a correction to the Dáil record will be required. A detailed explanation of the nature and extent of misrepresentation of fact contained in your statement is outlined below.
It is a matter of concern that our briefing material, which would have corrected most, if not all, of these inaccuracies, remains, evidently, unread by those you rely upon to draft your statements on this issue. Given the calibre and number of staff involved in your Human Rights Unit, it begs the question as to whether their talents are being engaged to brief you on the case at all.
Furthermore, as the general stance is so conspicuously at odds with your publicly stated, and oft repeated, commitment to the whole field of human rights and in conflict with the signed international agreements under which this country's foreign policy ordinarily operates, I fear that our standing within the human rights community may already be compromised. Every major US and international human rights organisation has condemned the US government for its handling of this case, yet the Irish government continues doggedly to see nothing wrong.
For reasons of clarity and to simplify the distribution of this information electronically, I will use capitals to represent your erroneous statements to the Dáil and follow immediately with the factual position.
"THE CASE TO WHICH THE DEPUTY REFERS RELATES TO FIVE CUBAN CITIZENS WHO WERE CONVICTED IN THE US IN 2001 ON CHARGES RANGING FROM ESPIONAGE TO FIRST DEGREE MURDER."
Two of the five, Antonio Guerrero and René Gonzalez, are US citizens [1]. None were convicted of espionage. None were convicted of murder in the first, second or any other degree. There was no evidence entered into court to support either charge. In fact, three of the men were convicted of conspiracy to commit espionage and one of conspiracy to commit murder in the first degree (both crimes to be committed at some future date undetermined by the court) [2]. All received the maximum allowable sentence on each charge, the sentences to be served consecutively.
"A PANEL OF THREE JUDGES FROM THE 11TH CIRCUIT COURT OF APPEALS IN ATLANTA OVERTURNED THE 2001 CONVICTIONS ON 9TH AUGUST 2005 AND ORDERED A RETRIAL BASED ON NEW EVIDENCE."
No new evidence relating to any of the convictions was considered by the Court of Appeal. The convictions were overturned solely on the basis that the selection of the trial venue, Miami, was unfair to the defendants as it presented them with a "perfect storm" of prejudice. [3]
"THE (IRISH) GOVERNMENT HAS NO STANDING IN THIS MATTER, WHICH IS A BILATERAL CONSULAR QUESTION BETWEEN THE US AND THE CUBAN AUTHORITIES AND, CONSEQUENTLY, I DO NOT INTEND TO PURSUE THE MATTER."
As a signatory to the United Nations Covenant on Civil and Political Rights, Ireland, along with all signatory nations, is required to uphold the basic legal right to fair process regardless of what jurisdiction any given criminal trial takes place in, or what consular arrangements may be involved. As Ireland, no more that all other signatory nations, cannot be expected to investigate each and every case brought to its attention, the United Nations has established a Working Group on Arbitrary Detention to investigate such trials and report directly to UNHCHR. The UN Working Group have found the five to be illegally detained following an unfair trial. [4]
Even in the absence of friendly relations, adequate legal standing would exist under article 41 of the Covenant on Civil and Political Rights for Ireland to take this matter up directly with the United States. [5] Both countries are signatory nations.
"... VISAS HAD NOT BEEN GRANTED TO THE WIVES OF TWO OF THE CONVICTED MEN ON THE STATED GROUNDS OF US NATIONAL SECURITY"
There is absolutely no evidence to suggest that either woman presents any threat whatsoever to the security of the United States. In fact, two US generals, one US admiral and the advisor the President of the United States, all testified under oath during the original trial that not one of the convicted men, let alone their wives, presented any threat to the national security of the United States.[6] Both wives have been detained by the US immigration authorities since their husbands were arrested yet neither have faced charges in connection with any crime, and certainly not with threatening the national security of the USA.[8] Furthermore, the Archbishop of Havana has agreed to accompany the women to the jails involved and to enlist the help of his US counterpart, the archbishop of Miami, in guaranteeing any conditions of travel, secrecy, media silence, etc., that the US authorities wish to impose on the visit. The World Council of Churches has offered similar pastoral accompaniment.[7]
"AGAIN, I DO NOT BELIEVE THAT THIS (the denial of visas) IS A MATTER ON WHICH I HAVE ANY STANDING AND I DO NOT INTEND, THEREFORE, TO RAISE IT WITH THE US AUTHORITIES OR AT UN LEVEL"
Amnesty International has intervened on behalf of the wives pointing out that the failure to allow a visit by a spouse is a violation of the International Convention on Torture to which the United States is a signatory.[8]
As a signatory to the Convention, the Irish government has legal status to bring a complaint directly to the United States under the procedure laid out in article 21 of the International Convention on Torture. [9]
Minister, you have adequate legal standing to do what deputy McGrath is urging you to do. You have done it before for other Cubans and on the basis of significantly lesser standing or evidence. In fact, you have made a point of it. Never once have you shown the slightest reticence in commenting on trials conducted in Cuba, unless, alas, they relate to a certain notorious US facility located there.
Deputy McGrath, and many other Irish legislators from all parties within Dáil Eireann, are entirely right to ask that if you declare yourself a champion of victims of human rights violations and torture, that you should at least be consistent when it comes to the case of the Miami Five.
We will be unrelenting in our efforts to hold you to account in this regard.
Yours sincerely,
Simon McGuinness,
Coordinator,
Cuba Support Group,
Dublin.
CC Mr Eamon MacAodh, Director, Human Rights Unit, Dept of Foreign Affairs.
Mr Colin O'Gorman, Director Designate, Amnesty International, Irish Section, Fleet St., Dublin 2.
Members of the Oireachtas
SOURCES
========
1. US Dept of State, International Information Programs: http://usinfo.state.gov/xarchives/display.html?p=pubs-english&y=2007&m=July&x=20070712120209atlahtnevel0.7962915), 4th sentence, 5th paragraph. "...including the other two members of the “Cuban Five,” Antonio Guerrero and René Gonzalez, who are U.S. citizens."
2. Antonio Gurerro's defense attorney, Leonard Weinglass, interview with Pat Kenny on RTE Radio 1, 6 Dec 2007, "What the government said to the jury is ‘we do not have the evidence of espionage, however a conspiracy is an unlawful agreement, and it is our position that these five men must have agreed amongst themselves that at some unspecified time in the future, they would commit espionage’, and that was enough for a Miami jury." Full transcript provided to Dept of Foreign Affairs on 10 Dec 2007: http://groups.yahoo.com/group/CubaNews/message/76562
3. Published opinion of the US Court of Appeal, 11th Circuit dated 9 August 2005: "... a new trial was mandated by the perfect storm created when the surge of pervasive community sentiment, and extensive publicity both before and during the trial, merged with the improper prosecutorial references." http://www.ca11.uscourts.gov/opinions/ops/200117176.pdf
4. UN Working Group on Arbitrary Detentions, Opinion No. 19/2005 (United States of America): "The deprivation of liberty of Messrs. Antonio Guerrero Rodríguez, Mr. Fernando González Llort, Mr Gerardo Hernández Nordelo, Mr. Ramón Labañino Salazar and Mr. René González Sehweret is arbitrary, being in contravention of article 14 of the International Covenant on Civil and Political Rights and corresponds to category III of the applicable categories examined in the cases before the Working Group.
Having issued this opinion, the Working Group requests the Government [of the United States] to adopt the necessary steps to remedy the situation, in conformity with the principles stated in the International Covenant on Civil and Political Rights." http://www.freethefive.org/updates/Solidarity/SLUNJudgement_052705.htm
5. UN International Covenant on Civil and Political Rights, entry into force: 23 March 1976, http://www2.ohchr.org/english/law/ccpr.htm
"Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms," ...
Article 41(1) "A State Party to the present Covenant may at any time declare ... that another State Party is not fulfilling its obligations under the present Covenant."
Article 41(1)(a) "If a State Party to the present Covenant considers that another State Party is not giving effect to the provisions of the present Covenant, it may, by written communication, bring the matter to the attention of that State Party. Within three months after the receipt of the communication the receiving State shall afford the State which sent the communication an explanation, or any other statement in writing clarifying the matter which should include, to the extent possible and pertinent, reference to domestic procedures and remedies taken, pending, or available in the matter."
6. Leonard Weinglass, US defense attorney, RTE Radio 1, 6 Dec 2007, transcript: http://www.cubasupport.com/LeonardWeinglassRTEInterviewhtml.html
7. World Council of Churches: "WCC to continue pastoral accompaniment of relatives of five Cubans arbitrarily imprisoned in the US" http://64.233.183.104/search?q=cache:vV9CN2x1HMwJ:www.oikoumene.org/en/news/news-management/all-news-english/display-single-english-news/browse/2/article/4139/wcc-to-continue-pastoral.html%3Ftx_ttnews%255Bcat%255D%3D93%252C26%26cHash%3D7a82a3bb7a+cuban+five&hl=en&ct=clnk&cd=1
8. Amnesty International: "Unnecessarily punitive -- Amnesty International calls for temporary visas to be granted to two wives of the ‘Cuban Five’: http://www.amnesty.org/en/alfresco_asset/1ab62e9d-a2cb-11dc-8d74-6f45f39984e5/amr510132007en.html
9. UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment - entry into force: 26 June 1987: http://www2.ohchr.org/english/law/cat.htm
Article 21 (1). "A State Party to this Convention may at any time declare ... that another State Party is not fulfilling its obligations under this Convention. ...
(a) "If a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may, by written communication, bring the matter to the attention of that State Party. Within three months after the receipt of the communication the receiving State shall afford the State which sent the communication an explanation or any other statement in writing clarifying the matter, which should include, to the extent possible and pertinent, reference to domestic procedures and remedies taken, pending or available in the matter;"
