After 65 Months, Trump Administration Returns Cuba To List Of State Sponsors Of Terrorism
/Countries determined by the Secretary of State to have repeatedly provided support for acts of international terrorism are designated pursuant to three laws: section 6(j) of the Export Administration Act, section 40 of the Arms Export Control Act, and section 620A of the Foreign Assistance Act. Taken together, the four main categories of sanctions resulting from designation under these authorities include restrictions on U.S. foreign assistance; a ban on defense exports and sales; certain controls over exports of dual use items; and miscellaneous financial and other restrictions.
Designation under the above-referenced authorities also implicates other sanctions laws that penalize persons and countries engaging in certain trade with state sponsors. Currently there are three countries designated under these authorities:
Republic of Cuba added 1 March 1982 removed on 14 April 2015 returned on 11 January 2021
Democratic People’s Republic of Korea (North Korea) on 20 November 2017
Islamic Republic of Iran on 19 January 1984
Syrian Arab Republic on 29 December 1979
Baker & McKenzie
Chicago, Illinois
12 January 2020
“On January 11, 2021, the US State Department published a press release announcing Cuba’s designation as a State Sponsor of Terrorism (“SST”) for allegedly providing support for acts of international terrorism in granting safe harbor to terrorists. Cuba was originally designated as an SST in 1982 but was delisted in 2015 by President Barack Obama. Cuba’s SST designation follows increasingly stringent sanctions imposed by the US Government including restriction on remittances to Cuba and further restrictions on travel.
Legal Implications of the SST Designation- Cuba’s SST designation triggers the following sanctions and restrictions: A licensing requirement for exports or reexports of goods or technology that could significantly enhance Cuba’s military capability or ability to support terrorism; A prohibition on exports and reexports to Cuba of defense articles and defense services and related technology under the International Traffic in Arms Regulations; A requirement for the United States to oppose loans to Cuba by the World Bank and other international financial institutions; A prohibition on any assistance to Cuba under the Food for Peace, Peace Corps, and Export-Import Bank programs; A prohibition on US Persons (i.e., entities organized under US laws and their non-US branches; individuals and entities physically located in the United States; and US citizens and permanent resident aliens, wherever located or employed) from engaging in financial transactions with the Cuban government without a license from the Treasury Department’s Office of Foreign Assets Control, under the Terrorism List Governments Sanctions Regulations; and An exception to sovereign immunity that would allow individual US Persons to bring claims against the Cuban government in US courts for personal injury and death resulting from terrorism or material support for terrorism.
The legal implications of Cuba’s SST designation are likely to be limited. Many of the above activities have remained prohibited by US sanctions or export controls even after Cuba was delisted as an SST in 2015. For example, an SST designation normally triggers a change under the Export Administration Regulations to claim US jurisdiction over non-US items that incorporate more than 10% controlled US content rather than the 25% de minimis threshold used for most other countries. However, the Trump Administration imposed the 10% de minimis threshold on Cuba in October 2019 (see here) even though Cuba was not then an SST.
Increased Scrutiny for US-Listed Companies from the US Securities and Exchange Commission- Cuba’s SST designation may lead to increased scrutiny for US-listed companies if they engage in dealings with Cuba. Specifically, the Office of Global Security Risk (“OGSR”) within the US Securities and Exchange Commission may periodically request information from US-listed companies regarding material dealings with SST countries if such dealings have not been previously disclosed in a company’s regular annual and quarterly filings. Accordingly, US-listed companies that receive OGSR inquiries can now expect them to ask about Cuba transactions.”
LINK To Congressional Research Service (CRS) Terrorism Report
LINK To 2019 Country Reports on Terrorism
Country Reports on Terrorism 2019: Cuba
Overview: Cuba was designated as a State Sponsor of Terrorism in 1982 because of its long history of providing advice, safe haven, communications, training, and financial support to guerrilla groups and individual terrorists. This designation was rescinded in 2015. Cuba maintains close and collaborative ties with designated state sponsors of terror such as Iran and North Korea. The Cuban regime continues to host ELN leaders associated with now-defunct peace talks to reside in Cuba, despite Colombia’s repeated requests for their extradition. Cuba also continues to harbor multiple fugitives who committed or supported acts of terrorism in the United States. The U.S. Department of State certified Cuba as “not cooperating fully” with U.S. counterterrorism efforts for 2019, the first such certification of Cuba since 2015.
2019 Terrorist Incidents: There were no terrorist attacks in Cuba in 2019.
Legislation, Law Enforcement, and Border Security: Citing peace negotiation protocols, Cuba refused Colombia’s request to extradite 10 ELN leaders living in Havana after that group claimed responsibility for the January 2019 bombing of a Bogota police academy that killed 22 people and injured 87 others. On October 11, Colombia filed extradition requests for ELN leaders Victor Orlando Cubides (aka “Pablo Tejada”) and Isreal Ramirez Pineda (aka “Pablo Beltran”) with the Cuban government, which has pointedly not responded. Though Cuba’s government denies allowing ELN members to plan terrorist attacks from its territory, fugitive ELN terrorists continue to live in Havana, shielded by the Cuban regime, while ELN members continue to attack, kidnap, and murder in Colombia.
In addition to ELN terrorists, there was credible reporting that FARC dissidents who abandoned the peace process in Colombia traveled to Havana to seek the regime’s support. On July 28 during the closing remarks of the Sao Paolo Forum in Caracas, Nicolas Maduro stated that Iván Márquez and Jesús Santrich – former FARC leaders who fled Colombia after abandoning the peace process and announced a return to terrorist activities – were both welcome in Venezuela. Cuba is a key supporter of Maduro’s narco-regime and is an active participant in maintaining Maduro’s authority.
Cuba also harbors several U.S. fugitives from justice wanted on charges of political violence, many of whom have resided in Cuba for decades. For example, the Cuban regime has refused to return Joanne Chesimard, aka Assata Shakur, a fugitive on the FBI’s Most Wanted Terrorists List, who was convicted of executing New Jersey State Trooper Werner Foerster. Cuba also has refused to return William “Guillermo” Morales, a fugitive bomb maker for the Armed Forces for National Liberation (FALN), who is wanted by the FBI and escaped detention after being convicted of charges related to domestic terrorism; Ishmael LaBeet, aka Ishmael Muslim Ali, who received eight life sentences after being convicted of killing eight people in the U.S. Virgin Islands in 1972 and hijacking a plane to flee to Cuba in 1984; Charles Lee Hill, who has been charged with killing New Mexico state policeman Robert Rosenbloom in 1971; and Ambrose Henry Montfort, who used a bomb threat to hijack a passenger aircraft and fly to Cuba in 1983. Cuba is also believed to host or have hosted U.S. fugitive terrorists Catherine Marie Kerkow and Elizabeth Anna Duke. The Cuban government provides housing, food ration books, and medical care for all of the fugitives residing there.
Countering the Financing of Terrorism: Cuba is a member of the GAFILAT. Its FIU, the Dirección General de Investigación de Operaciones Financieras, is a member of the Egmont Group. There were no significant updates in 2019.
Countering Violent Extremism: Cuba conducted no CVE efforts in 2019.
International and Regional Cooperation: Cuba is an inactive member of the OAS and is not a member of NATO or the OSCE.
