Like most people commenting on the plight of the Cuban Raul Garcia who has been “resident” here for the past 15 years, I have no familiarity with the individual or, indeed, with the circumstances of his detention since I was resident abroad around the time he was incarcerated here.
This detail is perhaps of little relevance since the situation he now finds himself in should be assessed based on an appreciation of his current status in Barbados, along with relevant international principles that guide the treatment of people by this and other states. It is noteworthy that his status as a convicted drug trafficker has thus far not been identified as a basis for his ill-treatment and this speaks volumes about our national maturity.
The facts surrounding Garcia present our authorities with a peculiar case that arises from the nature of the global village we inhabit. While unfortunate, we can perhaps take this opportunity to let our legal and political systems adapt to the changing nature of global relations that will invariably give rise to such an incident again.
This gentleman was born in Cuba, “raised” in the United States and was arrested and detained here. The Cuban government now claims that he has lost his right to return to Cuba and we normally deport persons (upon their release) who commit offences here but are not Barbadian. Under normal circumstances, Garcia would be returned to Cuba, but he is technically no longer a Cuban.
He is also not a Barbadian, since his non-immigrant status would have long since expired. He is not American since he presumably never acquired American citizenship and that country has been routinely deporting criminals like him to the place of their birth, at any rate.
People like Garcia are not uncommon in the complex world we inhabit, and the legal definition that comes closest to describing him would be that of a “stateless person”.
Statelessness though is more commonly associated with a group of persons’ failure to acquire nationality, as distinct from Garcia’s situation where he appears to have individually “lost” his.
This is a situation that is globally recognized as being undesirable to the point where international conventions have focused exclusively on its elimination.
However, Barbados is not party to any of these, largely because this type of thing has never impacted on this homogeneous society. If therefore one were to look to international law or convention to solve this problem, we would need to go beyond the concept of statelessness for several reasons.
If we seek guidance elsewhere within the context of international law, it would seem logical to look to the International Convention on Civil and Political Rights, or the Inter-American Convention on Human Rights, both of which Barbados has signed.
The specifics are, in my opinion, not terribly important here.
However, the general gist of both of these conventions is that unlawful detention is frowned upon and we have therefore agreed not to unlawfully detain people, which is exactly what we are doing in the case of Garcia.
It could be argued that we are not intentionally violating Garcia’s rights since he was lawfully detained here and moreover, he was released from our prison into what approximates to our local detention facility. He is, however, now effectively incarcerated again and this is clearly not lawful since it does not satisfy two critical tests that would satisfy international legal standards.
The first of these speaks to his incarceration as punishment for a crime which we agree is no longer relevant, while the second is more subjective since it relates to the extent to which there is a “reasonable” prospect of his being deported to some state.
At this time there is clearly no such prospect.
Against this background therefore, even if we were to release Garcia into some type of detention facility that is as comfortable and relaxed as the Paragon facility where the Africans were housed, we would still appear to be violating his rights, since there is no reasonable prospect that he will be emancipated from that facility any time soon and deported elsewhere.
Since there is no basis for Garcia’s legal detention and there is similarly no prospect that he can be deported with dispatch, it would appear that the most logical option is for us to create a special dispensation that would allow him to be integrated into Barbadian society.
This would, of course, run afoul of our immigration laws, but we can more easily relax these in light of the extenuating circumstances to allow Garcia the opportunity to pursue some variety of immigrant status here while he explores options to return to the United States, if, indeed, there is any such option available to him.
It now appears as though Garcia is prepared to end his hunger strike if such an option is offered. The possibility therefore exists that such a deal can be struck; however, other issues will inevitably now arise.
The issues of how Garcia will support himself and where and with whom he will live are likely to be contentious. There is also the question of his health care and associated costs since we are often reminded that only citizens and permanent residents are entitled to free health care here. These are, however, issues that can be resolved with some amount of flexibility and creativity on the part of the authorities and Garcia’s representatives.
In all of this, I also think it is important that we exploit all diplomatic channels available to draw the Cuban representatives here into this issue in the hope they would share some of the “burden” associated with Garcia’s plight.
It is ironic that his legal representative has thus far been more anxious to pounce on the Americans, who would technically have less reason to be interested in Garcia than the Cubans would. This is perhaps not surprising since America-bashing has always been fashionable within left-wing communities.
