MURDER IN THE SKIES ABOVE INTERNATIONAL AIR-SPACE  

The following excerpts were taken from Report No. 86/99, Case ll.589 of September 29, 1999 of the Inter-American Commission on Human Rights. The transcript dated 2/27/96  (Associated Press) of radio traffic relating to Saturday’s downing of U.S. civilian Cessna aircraft by Cuban air force MiGs was released in English by U.S. Ambassador to the UN Madeleine Albright.

On 25 February 1996, the Inter-American Commission on Human Rights received several complaints brought about against “the Cuban State” according to which a Mig-29 military aircraft belonging to the Cuban Air Force (FAC) downed two unarmed civilian light airplanes belonging to the organization “Brothers to the Rescue,” 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).

On the morning of February 24 1996, two of the Brothers to the Rescue Cessna 337 airplanes departed Opa Locka airport in south Florida. A third Brothers to the Rescue Cessna 337 also left on this mission. This aircraft returned unharmed.

Carlos Costa was flying one airplane, and he was accompanied by Pablo Morales, a Cuban citizen who had fled the country on a raft. Mario de La Pena was at the controls of the second plane, with Armando Alejandre Jr. as his passenger. Before departing, the two aircraft notified air traffic controls in both Miami and Havana of their flight plans, which were to take them south of the 24th parallel.

Parallel 24TH 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 24TH. 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 MiG23, 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:

Cessna 1 (to Havana): Good morning, crossing parallel 24th (about 55
miles north of Cuba), right about now we’re going to remain in this area 5 hours.
Havana (to Cessna 1): Verify code and responder.
Cessna 1 (to Havana): With 1224. (The responder code transmitted by the
Cessna assists Havana in identifying it on radar.)
Havana (to Cessna 1): In what zone are you going to do your work?
Cessna 2 (to Havana): Responding 1223. Crossing 25th parallel in 5
minutes.
Havana (to Cessna 2): Received.
Cessna 3 (to Havana):  (Pause) For your information, the area of our
operations is to the north of Havana today. So we will be in your area
in contact with you. Give him cordial greetings from Brothers to the
Rescue, from its president, Jose Basulto, who is talking.
Havana (to Cessna 3): Sir, be informed that the zone north of Havana is
activated, (garble) you, danger behind 24 north parallel.
Cessna 3 (to Havana): We are aware that we are in danger each time we
cross the area to the south of the 24th but we are willing to do it as
free Cubans.
Havana (to Cessna 3): Thanks, copy that information.

- - -

MIG-29: OK, the objective is in sight; the objective is in sight, it is
a small airplane.
   Copied; small airplane in sight.
MIG-29:  OK, we have it in sight, we have it in sight.
MIG-29:  The objective is in sight.
Military Control: Go ahead.
MIG-29:  The objective is in sight.
Military Control: Airplane in sight.
MIG-29:  Is it coming again?
MIG-29:  It is a small airplane, a small airplane.
MIG-29:  It is white; white.
Military Control: Color and registration of the airplane?
MIG-29:  Hey, the registration as well?
Military Control: What type and color?
MIG-29:  It is white and blue.
MIG-29:  White and blue, at low altitude, a small plane.
MIG-29:  Give me instructions.
MIG-29  Instructions!
MIG-29  Hey, give me authorization . . .
MIG-29: 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.
MIG-29:  Talk to me; talk to me.
MIG-29:  I’ve got a lock; I’ve got a lock.
MIG-29:  We’re locked on. Give us the authorization!
MIG-29:  It’s a Cessna 337. That one. Hell, give us the authorization. Military Control: Fire!
MIG-29:  Hell, give us the authorization! We got it! Military Control: Authorized to destroy.
MIG-29:  We copy. We copy.
Military Control: Authorized to destroy.
MIG-29: Understood; I had already received it. Leave us alone for a minute.
Military Control: Don’t lose him.
MIG-29  First shot.
MIG-29  We blew his balls off!  We blew his balls off!
MIG-29  Wait; look and see where he went down.
MIG-29  Yes! Yes! Shit, we hit him!
MIG-29  Mark the place where we took him down.
MIG-29 We’re on top of him. He won’t give us any more fucking trouble. Military Control: Congratulations to the pair of you.
MIG-29  Mark the place.
- - -
MIG-29  We are climbing and coming home.
Military Control: Stay there, circling above.
MIG-29  Above the objective?
Military Control:  Correct.
MIG-29:  Jesus, we told you, Buddy.
Military Control: Correct; the objective is marked.
MIG-29  Go ahead.
Military Control: OK, climb to 3200, 4000 meters above the destroyed objective and keep at low speed.
MIG-29  Go ahead.
Military Control: I need you to stay . . . there. What direction did you fire in?
MIG-29:  I have another aircraft in sight.
MIG-29:  We have another aircraft.
Military Control: Follow it. Do not lose the other small aircraft.
MIG-29: 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.
MIG-29: We have sight of the airplane.
Military Control: Stay there.
MIG-29: Buddy, it’s in the incident area, where the objective came down. They are going to give us authorization.
MIG-29: Hey, SAR isn’t necessary. There’s noting left. Nothing!
Military Control: Correct, follow the plane. You are going to remain above it.
MIG-29: We are above it.
Military Control: Correct . . .
MIG-29: What for?
MIG-29: Is the other one authorized?
Military Control: Correct.
MIG-29 Marvelous. Let’s get it, Alberto.
MIG-29 Understood; we are now going to destroy it.
Military Control: Do you still have it in sight?
MIG-29: We have it, we have it; we are working. Let us do our job.
MIG-29: 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 not time did the FAC notify our warning 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.

These 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 Alexander, and his daughter Marlene, a university student, survived him.

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 Mendez.

Mario Manuel de la Pena was also born in the United States and was 24 years old at the time of his death. De la Pena 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 Pena a posthumous bachelor’s degree in professional aeronautics. He was survived by a younger brother, Michael De la Pena, and by his parents Mario T. De la Pena and Miriam de la Pena.

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 geodesist.

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 FAC missiles destroyed it; 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 global community has roundly condemned the practice of summary execution. 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 basis 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 Pena, Costa, Alejandrre, 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 an Article XVIII of that international instrument.

End.

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