Translated and edited by Walter Lippmann for CubaNews.
Twenty-one years have passed since the return to the homeland, on June 28, 2000, of that six-year-old boy kidnapped in Miami by distant relatives in collusion with the Cuban-American mafia, after losing his mother in the shipwreck of a boat that was trying to reach the U.S. coasts, as a consequence of the irregular migration encouraged by the Cuban Adjustment Act.
He was returned to Cuba under the guardianship of his father seven months after his kidnapping, after the mobilization of all the people of Cuba and a long judicial process, in violation of international law and U.S. laws themselves, since both legislations recognize that the jurisdiction over these cases belongs only to the courts of the country of origin.
Elián González Brotons was just a six-year-old pionero when, on November 22, 1999, his mother tried to smuggle him out of Cuba. The shipwreck of the boat in which they were traveling caused the death of 11 of the occupants except for Elián and two others. The boy, clinging to a tire, was rescued by fishermen and taken to U.S. territory, where he became, after the just demands of his father, the center of the battle of an entire people during seven months for his return.
Upon arrival in Florida, the child was placed in the care of Lázaro González, his paternal great-uncle living in Miami, who soon after, in open complicity with the anti-Cuban mafia, opposed any attempt to return him to Cuba.
Elián’s father, Juan Miguel González, was unaware of his son’s departure from Cuba and immediately requested his repatriation, an act that was supported by the Cuban Government and all its people.
In spite of the opposition of Elián’s distant relatives to his return to his country, on January 5, 2000, the Immigration and Naturalization Service (INS) of the United States recognized Juan Miguel’s parental rights over his son.
The decision was endorsed by U.S. Attorney General Janet Reno and President William Clinton, and the child was scheduled to be returned by January 14. But relatives and anti-Cuban groups in Miami appealed the decision and took the case to the U.S. courts.
On January 21, Elián’s grandmothers traveled to the United States to look for their grandson. Five days later, after multiple steps, they were able to see him, but only for a few hours, and they had to return alone to Cuba.
Faced with the silence of the U.S. authorities, on December 5, young people from the Technical Youth Brigades (BTJ) protested in front of the U.S. Interests Section in Havana (SINA), against the child’s detention.
The action was the prelude to what would later turn out to be a wave of mass demonstrations, including marches of hundreds of thousands of people -the Marches of the Combatant People-, combative Open Tribunals in different cities of the country and the beginning of the Battle of Ideas.
On December 23, 1999, in front of a group of children who guarded the U.S. Interests Section in Havana on the occasion of the march for the child Elián González, in the José Antonio Echeverría social circle, the Commander in Chief, Fidel Castro, said: “What is beginning today is the second stage of the battle of the masses that we have been waging since Sunday, December 5. It has been and is a battle of ideas, of national and international public opinion, of legal, ethical and human principles, between Cuba and the empire, which in our Homeland is supported by one of the largest and most combative mobilizations that has taken place throughout our history”.
What the SINA officials could not foresee at that time is that this would be the most prolonged and massive popular movement, of those that had taken place since January 1st, 1959, up to the present day.
Elian’s father, Juan Miguel González, traveled to Washington on April 6, but it was not until 16 days later that he was reunited with his son after a federal operation rescued the boy from the kidnappers. The maneuvers reached the Atlanta Court, which in two instances rejected demands for political asylum for Elián, but not an injunction preventing his return.
On Monday, June 26, 2000, the U.S. Supreme Court, in just two days, settled a case that had lasted more than seven months and denied all legal remedies to the abductors. On June 28, 2000, the boy and his father returned to Cuba.
“I feel happy in Cuba, that the result of that struggle led by the Cubans to which the American people and many personalities joined, led by Fidel, gave me the possibility to grow up here, to know him, to be his friend and it is my greatest pride,” Elián said on May 12, 2016.
In July 2010, Elián made public statements in which he thanked the people of Cuba and the United States for having achieved his release and supported his father Juan Miguel at all times; he also declared he did not to hold a grudge against his Miami relatives, protagonists of the kidnapping.
On December 6, 2018, the then President of the Councils of State and Ministers of Cuba, Miguel Díaz-Canel Bermúdez, congratulated Elián through his Twitter account on his 25th birthday, and recalled that the battle for his freedom, led by Fidel, showed how many challenges can be overcome together.
His hometown awarded, on December 29, 2019, the young industrial engineer Elián González the title of Illustrious Son of Cárdenas, conferred during the provincial act of Matanzas for the 61st anniversary of the Triumph of the Revolution. The title of Illustrious Son given to the already militant of the Union of Young Communists coincided with the 20th anniversary of the emergence of the Battle of Ideas.
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First, the U.S.-Cuba Joint Communiqué on Cuba-U.S. Migration, New York City, September 9, 1994 established that both countries agreed to procedures and measures “to ensure that migration between the two countries is safe, legal, and orderly.” The agreement established that, “The United States and the Republic of Cuba recognize their common interest in preventing unsafe departures from Cuba which risk loss of human life. The United States underscored its recent decisions to discourage unsafe voyages. Pursuant to those decisions, migrants rescued at sea attempting to enter the United States will not be permitted to enter the United States, but instead will be taken to safe haven facilities outside the United States. Further, the United States has discontinued its practice of granting parole to all Cuban migrants who reach U.S. territory in irregular ways.”
In 1995 both countries signed the Companion Agreement on Migration by which the US government agreed to return to Cuba all those who were intercepted at sea, if they did not reach the US mainland. This is known as the “wet feet you go back, dry feet you stay” (in the US). The 1994 agreement also established that “The Republic of Cuba will take effective measures in every way it possibly can to prevent unsafe departures using mainly persuasive methods.”
The record indicates that the child was found at sea, he never reached the US mainland on his own. Moreover, fishermen found him and turned him over to the US Coast Guard. If this is the case, then the child has to be returned, as the 1994-1995 Migration Agreement establishes.
Second, the 1994 agreement has a section on “Alien smuggling” between Cuba and the United States. It reads, “The United States and the Republic of Cuba reaffirm their support for the recently adopted United Nations General Assembly resolution on alien smuggling. They pledged their cooperation to take prompt and effective action to prevent the transport of persons to the United States illegally.”
The Coast Guard, the US media and the State Department spokesman have stated that this was an illegal smuggling operation. In fact two of the survivors stated that they paid to get into the boat that would bring them to the United States.
If this is the case, then, the Migration Agreement has been violated as well. It should be noted that the 1994 agreement established that, “The United States and the Republic of Cuba are committed to directing Cuban migration into safe, legal and orderly channels consistent with strict implementation of the 1984 joint communiqué.”
Third, the United States has signed the Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980, which established the legal rights and procedures for the prompt return of children who have been wrongfully removed from one country to another, or retained in one country. Cuba has not signed the Convention but has the right to accede to it. Under The Hague convention children who have been wrongfully removed or retained abroad are to be returned promptly.
No one has denied that the child was removed by his mother without the consent of his father or of Cuba’s authorities. Nor that the father has requested that the child be returned to him.
Fourth, the U.S. Congress has ratified the International Convention on Child Abduction. In fact the Congress has declared that, “(1) The international abduction or wrongful retention of children is harmful to their well-being. (2) Persons should not be permitted to obtain custody of children by virtue of their wrongful removal or retention. (3) International abductions and retentions of children are increasing, and only concerted cooperation pursuant to an international agreement can effectively combat this problem.” (See: Section 1 of Pub. L. 100-300 or the International Child Abduction Remedies Act.)
Fifth, if the issue of custody is raised, then a custody jurisdiction dispute between the United States and Cuba (a country that has not ratified The Hague Convention) is to be handled in accordance with the Uniform Child Custody Jurisdiction Act or the Uniform Child Custody Jurisdiction Enforcement Act of the U.S. It should be noted that the federal legislation establishes under Section 105. INTERNATIONAL APPLICATION OF [ACT] that the court “shall treat a foreign country as if it were a State of the United States for the purpose of applying the law. That means that the rules that apply to another state in the United States also applies when it comes to the foreign country. That means that ” (c), a child-custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this [Act] must be recognized and enforced under [Article] 3.” U.S. federal law is consonant with the International Convention, which, under Article 3 recognizes that “the law of the State in which the child was habitually resident immediately before the removal or retention” is the one that applies in the case.
It has been argued that the mother’s intent of taking the child to the United States should be respected. However, the law says otherwise. The moment when the child was removed, it has been argued, constitutes a “loss of residence” even if a new habitual residence has not been established. But U.S. Court of Appeal for the 6th Circuit concluded otherwise. (Friedrich v. Friedrich, No 92-3117, 983 F.2d 1396, decided 22 January 1993)
Sixth, the 1999 Florida Statutes also support the father’s claim. The following sections are pertinent to this case:
A mere physical presence of the child in the state is not sufficient to confer jurisdiction on a court of the state to make a child custody determination. (FLORIDA STATUTES 1999, HISTORY: s. 4, ch. 77-433; s. 326, ch. 95-147.)
Seventh, the very fact that the child has been held in Florida without the consent of the father, the only surviving parent may constitute kidnapping as defined by the Florida Statutes, TITLE XLVI, Chapter 787. Kidnapping refers to the confining of a child under 13 “against her or his will” meaning, confinement “without the consent of her of his parent or legal guardian.” (See: Section 787.01b). The Florida courts have not yet determined who the legal guardian is; but the Cuban courts state it is his father..
Eighth, it remains to be determined whether in fact there has been a concerted effort to interfere with the custody of the child’s father. ( See Section 787.03, (1) Whoever, without lawful authority, knowingly or recklessly takes or entices, or aids, abets, hires, or otherwise procures another to take or entice, any child 17 years of age or under or any incompetent person from the custody of the child or incompetent person’s parent, his or her guardian, a public agency having the lawful charge of the child or incompetent person, or any other lawful custodian commits the offense of interference with custody and shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084; (2) In the absence of a court order determining rights to custody or visitation with any child 17 years of age or under or with any incompetent person, any parent of the child or incompetent person, whether natural or adoptive, stepparent, legal guardian, or relative of such child or incompetent person who has custody thereof and who takes, detains, conceals, or entices away that child or incompetent person within or without the state, with malicious intent to deprive another person of his or her right to custody of the child or incompetent person, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s.775.084.)
Ninth, the United Nations Convention on the Rights of the Child ratified by Cuba and the United States in its Article 11 declares that “States Parties shall take measures to combat the illicit transfer and non-return of children abroad” and “to this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements.” Article 35 calls for “all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale or traffic in children for any purpose or in any form.”
Tenth, human decency, family love and common sense dictates that this child and his father should be together.
At the time of this writing Prof. Nelson P Valdés was a full professor of Sociology at the University of New Mexico, director of the Program of Academic Research on Cuba of the Latin American and Iberian Institute at UNM, and president of the Cuba Research and Analysis Group – a nonprofit organization in Albuquerque, New Mexico.
Note: The Elian affaire was initiated prior to Fidel Castro participating at the WTO conference in Seattle. At the time the CANF had a major campaign to get Fidel Castro arrested if he landed on US soil. See: https://socialistaction.org/1999/11/01/fidel-castro-expected-to-attend-cuba-solidarity-conference-and-wto-meeting-in-seattle/