The Cuban Five trial is the only judicial proceeding in U.S. history to have been condemned by the U.N. Human Rights Commission. On 27 May 2005 the United Nations Committee on Arbitrary Detention declared that “The deprivation of liberty of Mr. Antonio Guerrero Rodríguez, Mr. Fernando González Llort, Mr. Gerardo Hernández Nordelo, Mr. Ramón Labaniño Salazar and Mr. René González Schweret is arbitrary, being in contravention of article 14 of the International Covenant on Civil and Political Rights...” and requested the United States Government to adopt the necessary steps to remedy the situation, in conformity with the principles stated in the International Covenant on Civil and Political Rights [ii].
In the intervening years the case has been tied up in the US justice system, going to appeal three times. In August 2005 a three-judge panel ruled on one issue, that of venue [iii], and agreed with the UN committee, overturning the convictions and ordering a retrial in a place other than Miami [iv]. Bush’s administration was quick to appeal, and a full bench of the same appeal court saw the convictions re-instated in August 2006 [v]. The remaining nine issues of appeal were decided in June 2008 [vi], when all convictions were upheld but the sentences of Ramón Labañino, Antonio Guerrero, Fernando González were annulled, and sent back to the original judge, Justice Lenard, for resentencing. There were dissenting opinions to both the 2006 and 2008 decisions, emphasising the complexity of the issues and the lack of consensus as to how the law should be interpreted and/or applied.
As Bruce Nestor, a past president of the National Lawyers Guild said following the 2006 decision, “The decision really gives tremendous power to the government to bring politically motivated prosecutions and to then select a favorable location where community prejudice will favor the government and allow the government to obtain a conviction where the evidence did not support a conviction.” He went on to say that the decision of the en banc panel, which essentially deferred to the judgment of the trial court, basically eliminated the potential for effective independent review.
The extent of international concern about the legal issues raised by the case of the Cuban Five was reflected in the record number of Amicus Briefs filed in support of a review, the petitioners including ten Nobel laureates, a former U.N. High Commissioner for Human Rights, numerous U.S. and foreign bar associations and human rights organizations, hundreds of parliamentarians, and several ex-Presidents, including two former Presidents and three current Vice-Presidents of the European Parliament.
In March 2009, Miguel d'Escoto Brockmann, President of the U.N. General Assembly, made a strong plea before the U.N. Human Rights Council in Geneva, "We are very hopeful about meaningful and credible change being brought by the new U.S. Administration. The immediate ex-incarceration of the five Cubans would help strengthen our confidence that the promised change is for real," he said.
A Supreme Court review was widely seen not only as the last chance for the Cuban Five to receive justice at the hands of the US system, but also as the last chance for the US justice system to redeem itself in the eyes of the world.
Now that the Court has declined its opportunity to work towards that goal, a Presidential decree is one of the few remaining options, to ensure US observance of article 14 of the International Covenant on Civil and Political Rights, and justice for the Cuban Five.
Can Barack Obama match his rhetoric with action, and demonstrate the kind of commitment to human rights and international law that this case epitomises? Only the immediate release of Gerardo Hernández, Ramón Labañino, Antonio Guerrero, Fernando González and René González will suffice to show that the US did not yesterday add ‘justice’ to the list of blockaded ítems.
[i] In the 90’s Gerardo Hernández, Ramón Labañino, Antonio Guerrero, Fernando González and René González infiltrated Miami-based terrorist organisations responsible for numerous deadly attacks against Cuban tourist and other installations, preventing at least 170 further strikes. They were arrested in September 1998, held in solitary confinement for 17 months, and in 2001 were tried, convicted, and sentenced in Miami, hotbed of rabid anti-Castro hysteria. For more info see
[ii] Pg 65 Para 32[iii] The issue of venue was central to the ability of the Five to receive a fair trial, and the first judgement by the three-judge panel in 2005 subjected this aspect to close scrutiny, with wide-reaching implications not only for the Cuban Five, but for defendants everywhere. Leonard Weinglass, Defence Attorney said after the 2005 decision “...the Court analyzed in great detail virtually every facet of the case of the community, of the publicity, the attitude of the jurors, the actions of the prosecutor, and the motions that were made during trial and after trial. It is as extensive and factual in detailed an analysis on the issue of venue that I have ever seen in a written opinion by any court anywhere.”
[iv]. [v]. [vi]