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
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
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
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. At
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
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 of
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, Mirta Méndez.
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 instrument.
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
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 position estimates.
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 (emphasis added).
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
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
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 it.
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 State.
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,
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
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.
international responsibility of the cuban state
EXISTENCE OF 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
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 legal
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 motivation.
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 of
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: “Every
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
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
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 implemented.
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.
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 between agencies).
 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."
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 continues." Theodor
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 88.
 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
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 and 1132.
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,
 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.
de Justicia y Derecho Internacional de los Derechos Humanos (El Derecho a un
Central University of
Venezuela, Faculty of Legal and Political Sciences, 1992, pp. 61–62.
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.
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
Summary or Arbitrary Executions has defined arbitrary executions
“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, paragraph 66.)
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.