Accountability or Posturing? Preparing for Cuba’s Fourth Universal Periodic Review
The UN Human Rights Council (UNHRC) began the fourth cycle of the Universal Periodic Review (UPR) in November 2022, and over the course of four and a half years, will evaluate the human rights record of each UN member state. At the council’s upcoming 44th session, to be held from November 6 to 17, 14 countries, including Azerbaijan, Canada, Colombia, Germany, Russia, Turkmenistan, and Cuba, will be evaluated. Each one of these countries can improve its human rights record and a few of them will make real efforts to do so. Some will go through the motions of the review without much prospect of change; and others, like Cuba, will try to paint themselves as defenders of human rights when the grim reality is that they systematically commit widespread violations.
The Third Cycle of the UPR in 2018
The UPR is the only international human rights mechanism Cuba participates in, as the government refuses to engage in the more rigorous and less politicized Inter-American human rights system. Not only is Cuba being evaluated in November, but the country is itself also a member of the Human Rights Council (recently reelected to another two-year term on October 10). As a member of the council, Cuba must “uphold the highest standards in the promotion and protection of human rights.” The last time the UNHRC evaluated Cuba was during the UPR’s Third Cycle in 2018. The government’s national report submitted ahead of that review lists the human rights achievements it claims to have made since the second cycle. In particular, the Cuban government said it had taken steps to prevent torture, that recourse to habeas corpus was available, that all prison facilities provide medical care, mass media in the country facilitates access to truthful and timely information, and civil society organizations have broad powers and proactive capacity.
Despite this claimed progress, the third cycle of the UPR yielded 339 recommendations for improving Cuba’s human rights record. The government stated that it would support 226 of the recommendations; would take note of 83 others and would not support 30 of the recommendations because they were “politically biased and based on false premises.” Those 30 recommendations were all made by democratic countries, and consisted of measures to end specific human rights violations, such as the arbitrary arrest of human rights defenders and media workers as well as peaceful demonstrators, releasing political prisoners, ending restrictions on freedom of expression and assembly, and enacting reforms that would allow for genuine free and fair multiparty elections. Many of the recommendations that Cuba did accept were made by allies Bolivia, China, Iran, Nicaragua, Russia, and Venezuela, and by other paragons of human rights like Syria, Yemen, Sudan, North Korea, and Myanmar. Ahead of the 44th session, an examination of the Cuban government’s claims as well as the practices identified in previous recommendations is warranted.
Developments in Cuba since 2018
A series of important changes began affecting Cuba only a month before the end of the last UPR cycle. These included a new president, new laws and decrees coming in effect, the adoption of a new constitution, the Covid-19 pandemic, and a deepening economic crisis. These events, together with a long history of political repression, along with limited economic and social opportunity, culminated in an series of historic and spontaneous nationwide protests on July 11, 2021.
After decades of leadership by the Castro brothers, the National Assembly elected Miguel Díaz-Canel as president in April 2018. Little known in Cuba, Díaz-Canel lacked the Castros’ credentials as a revolutionary leader. Only days after taking office, however, he proved he was a new face with old habits. The president issued Decree 349, which made it illegal for anyone to engage in artistic activities in public or private spaces without prior approval from the Ministry of Culture, essentially muzzling artists or forcing them to self-censor.
Cuba approved a new constitution in February 2019, promising structural changes in the economic, political and social model. The Cuban people found hope in the establishment of a two-term limit for presidents, the limited recognition of private property rights, as well as the protection of freedom of expression and other fundamental guarantees. However, the constitution ruled out the possibility of political pluralism by recognizing the Cuban Communist Party as the only political force directing the activities of the state. Upon closer inspection, the constitution subordinates the rights it contains to other Cuban laws, meaning rights such as freedom of assembly, the right to protest, as well as the principle of habeas corpus exist only in so far as they are limited by other laws.
In August 2021, Díaz-Canel issued Decree 35 on telecommunications, which seriously restricted freedom of expression online and represents a privacy threat for internet users. The National Assembly introduced a new penal code in December 2022, which some have argued will only further erode human rights on the island. It retains crimes such as “disobedience,” “public disorder,” “resistance,” from the previous law, but increases the penalties if convicted. The law severely constrains freedom of expression and of assembly by leaving open to interpretation the crime of “threatening the constitutional order” or the “normal functioning of government.” It makes it illegal for civil society organizations, activists, artists, journalists, or anyone to receive funding if the state believes the purpose is to engage in “activities against the state and its constitutional order” (author’s translation), among other restrictions.
The Cuban economy has been moribund for decades, but in recent years has suffered a series of shocks reminiscent of the conditions from the so-called special period. Generating an estimated $7 billion in annual revenue, the Cuban government’s top source of income used to be its much-vaunted international medical missions, where as many as 30,000 Cuban medical workers were sent abroad. This income declined sharply when the missions were revealed to be exploiting the medical personnel, with cases of human trafficking being brought in U.S. courts in 2018, and political shifts in receiving countries. Cuba once relied on close political ally Venezuela for billions of dollars of crude oil in exchange for doctors and military advisors, but the political and economic crisis in Venezuela has reduced that flow significantly.
Covid-19 completely halted tourism in the country, the second-largest source of income for the government, and large businesses closed. Covid-19 also affected the flow of remittances from the Cuban diaspora in the United States because of an increase in unemployment there. In addition, the Trump administration imposed new sanctions, which forced Western Union to close its offices in Cuba, significantly reducing remittances to the island (though this was eased by the Biden administration in June 2022). As a result, the island’s GDP contracted by 10.9 percent in 2020 and only grew by 1.5 percent in 2021. In 2021 President Díaz-Canel ended the dual currency system, leading to a sharp devaluation and parallel increase in prices. The country and its citizens are suffering from a severe shortage of food, medicine and other basic goods; 88 percent of Cubans live in conditions of extreme poverty, while 86 percent disapprove of the government's management, according to recent research from the Cuban Human Rights Observatory. These conditions are driving the largest emigration in Cuba’s history, mostly to the United States.
This is the background against which unprecedented and spontaneous protests erupted across the island on July 11, 2021. Citizens took to the streets shouting for freedom and calling for President Miguel Díaz-Canel to resign. Those demonstrations and subsequent ones, led the Cuban authorities—over the following days, weeks, months and years—to detain a total of 1,875 individuals as of October 24, 2023, for engaging in protests, 784 of whom are still in jail. The courts have handed down excessive prison sentences, with at least 496 protesters given more than 5-year sentences, over 200 with sentences of between 10 and 19 years; and at least 7 with terms of 20 to 30 years. The number of detainees fluctuates over time with numbers increasing when the government feels it needs to send a strong deterrent message by making an example of some detainees and decreases in periods of less activism. Other detainees are arrested and released multiple times, like Bertha Soler, leader of the opposition group Ladies in White, who has been detained at least 42 times since 2021.
Regardless of the means or the context, however, Cuba's prisons are a testament to the government's brazen violation of rights. While its constitution proclaims to repudiate discrimination, the regime also keeps Brenda Diaz, a transgender woman, in the men's section of the prison. Cuba also claims to respect freedom of thought, but sentenced Maykel Castillo Perez (known as Maykel Osorbo), a musician and member of the San Isidro Movement to 9 years in prison for insulting the symbols of the homeland, disrespect, and public disorder, among other crimes, most of which, if codified, would be misdemeanors in other countries.
Cuba’s constitution also includes language on protecting women from all types of violence and wherever it may occur, but there are detailed accounts of widespread sexual violence in its prisons. Independent newspapers have reported stories of women such as Gabriela Zequeira, who was 17 years old when she was arrested and subsequently tortured and sexually assaulted. Her story resonates with those of other women, such as Diasniurka Salcedo, who have denounced the systematic use of sexual violence, including rape, to intimidate and silence women.
The disproportionate government response to the July 11 protests was deliberate and intentional; its objective was to instill fear to prevent any further large-scale demonstrations against the government at a moment of regime transition and fragility. The fact that the new leader did not have the gravitas and revolutionary pedigree of his predecessors contributed to the scale of the protests and the severity of the repression.
Reaction from the Human Rights Community
Since 2021, a drumbeat of reports from international human rights bodies have exposed Cuba’s flouting of key civil, political, and social rights.
The Inter-American Commission on Human Rights concluded in its 2022 Annual Report on Cuba that the human rights situation worsened in 2021 and 2022, beyond the conditions it had outlined it its 2020 Country Report on Cuba. The 2022 commission found that “the State has committed or is committing massive, serious and widespread violations of human rights.” A particularly damning sentence in the report is the conclusion by a former member of the Cuban justice system: “to the police, investigators, and prosecutors, legality is irrelevant.”
In May 2022, the UN Committee against Torture urged the Cuban government to end the harassment, arbitrary arrests, intimidation, imprisonment, and reprisals against human rights defenders, and emphasized the importance of an independent and impartial judicial system. In an extensive report published in May 2023, Cuban Prisoners Defenders, an NGO based in Spain, documented 181 cases of torture or maltreatment among 1,277 political prisoners from April 2022 to March 2023.
For its part, the UN Committee on the Rights of the Child expressed its concern that “several children, some as young as 13 years old, [were] violently detained, taken from their homes overnight without their families being informed of their whereabouts, and [were] held incommunicado” after they participated in the July 11 protests. It also highlighted the criminal prosecution of children, several of whom were convicted and sentenced to between 5 and 15 years in prison.
In its semiannual report from April 2023, the Inter-American Press Association decried the lack of freedom of expression, explaining that there are fewer independent journalists because many have fled since the new penal code was approved. Ahead of the UPR, Amnesty International concluded that “Cuba has ramped up its sophisticated machinery of control over freedom of expression and assembly in a way not seen in almost two decades.” When controlling dissidents or journalists is not enough, the Cuban government shuts down the internet, especially during protests.
Robert F. Kennedy Human Rights, along with Cubalex, Justicia 11J, and Civil Rights Defenders, also presented a report in July 2023 that, among other things, belies the Cuban government’s claims that civil society organizations have broad powers and proactive capacity. They explain that legally registered organizations must adhere to a system of strict control, monitoring, and surveillance that compromises their autonomy and independence; placing them, de facto, under state control.
Also in July, the European Parliament forcefully called out the abuses of the Cuban government, condemning the systematic human rights violations and abuses against protesters, political dissidents, religious leaders, human rights activists and independent artists. The parliament further called for the urgent examination of the Cuban government’s breaches of the Political Dialogue and Cooperation Agreement (PDCA) which could lead to a suspension of the agreement and threaten EU trade and development assistance to the island.
Conclusion and Recommendations
The government of Cuba has plainly failed to live up to its human rights claims; in fact, the situation on the Island, post-July 11, is the worst it has been in many years. President Díaz-Canel’s statement to the UN General Assembly on September 19 that “promotion and protection of human rights is a common ideal that demands a genuine spirit of respect and constructive dialogue between states” rings hollow when his government rejects the serious recommendations from the UPR’s third cycle, which call out the government’s practices to instill fear and ensure control over its population. Unfortunately, the government will likely reject any new serious recommendations during the 44th UPR cycle. It will not be held accountable for its post-July 11 crackdown, and will continue to posture, presenting itself as a defender of human rights, revealing flaws in the UPR mechanism.
As a result, while civil society organizations and the democratic international community must continue to shine a spotlight on Cuba’s abysmal record and demand that it respect human rights, new avenues for encouraging change on the island need to be explored. These should include increased support for Cuban civil society organizations both on and off the island; increasing their connections with civil society in other parts of the Americas and Europe, especially with activists in other authoritarian states to exchange experiences regarding promoting democratic change in hostile environments, continued efforts to demystify the supposed achievements of the Cuban government, like the medical missions, and increasing Cuban citizens’ access to the internet. Practical initiatives such as encouraging greater use of virtual private networks in Cuba would allow greater freedom of expression without government prying, at least while the internet remains on.
Economic leverage and new sanctions for human rights violations should also be considered. If not a suspension as intimated by the European Parliament, the European Union could leverage its trade, investment, and development cooperation with Cuba under the PDCA to support reforms through the inclusion of independent civil society voices in the EU-Cuba Human Rights Dialogue, an unmet requirement of the PDCA. Also, while both the European Union and Canada have imposed Magnitsky-type sanctions against China, Nicaragua, North Korea, Russia, and Venezuela, for instance, neither has imposed any sanctions for human rights violations against the Cuban leadership, despite the merits of the case and given requests to do so from civil society organizations and activists.
The measures above cannot be the only response by the international community. Carefully calibrated incremental incentives need to be discussed, with the goal of encouraging the leadership to loosen restrictions and allow Cuban citizens to exercise their political, social, and economic rights.
Christopher Hernandez-Roy is the deputy director and senior fellow with the Americas Program at the Center for Strategic and International Studies (CSIS) in Washington, D.C. Andrea Michelle Cerén is an intern with the Americas Program at CSIS.