138. Memorandum From the President’s Assistant for National Security
Affairs (Kissinger)
to President Nixon1
2
Washington, December 3, 1972.
SUBJECT:
- Secretary Rogers to See
Swiss Ambassador to Cuba on Monday to Hand Him U.S. Draft Proposal
on Hijacking
Secretary Rogers has sent you a
memorandum (at Tab A) informing you that he has asked the Swiss
Ambassador to Havana to come to Washington on Monday, when he intends to
give the Ambassador, for transmittal to the Government of Cuba, the U.S.
response to the draft agreement on hijacking proposed by Cuba. Tab B is
the text of the U.S. response to the Cuban draft. Briefly the background
is the following:
After the last incidents involving hijackers of a clearly criminal
nature, the Cuban Government issued a statement indicating its
willingness to enter negotiations with the U.S. on the air piracy
problem. In response the U.S. indicated its willingness to hold
discussions through the Swiss but stressed that this represents no
change in our overall policy toward Cuba. At the first meeting between
Cuban and Swiss officials in Havana on November 25, Cuban officials
presented a draft agreement, a translation of which is attached for your
information at Tab C.
Previous attempts at negotiating an agreement with the Cubans on this
problem have foundered over Cuban insistence that any such agreement
also cover the return of illegal exiles, including those already in the
U.S., and prohibition of any acts of piracy against Cuban territory by
émigré groups. The present Cuban draft proposal continues to cover these
points but provides for exemption from the provisions of the agreement
for cases of political asylum.
The major differences in the draft the U.S. will propose are:
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- --to agree to give serious consideration to extraditing hijackers
instead of prosecuting them in the country in which they
land;
- --to rule out retroactive action against acts of piracy thereby
protecting Cuban émigrés in the U.S.;
- --to stiffen the sentence for aircraft piracy;
- --to return any funds or property obtained illegally.
Bill Timmons has no objection to the proposed agreement but recommends
State consult with the leadership of the Foreign Affairs Committee and
the Foreign Relations Committee in Congress before public announcement
of any final agreement. John Dean’s office also sees no problem with the
proposed draft agreement. The Justice Department concurs in the
draft.
Tab A
Washington, December 2, 1972
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MEMORANDUM
Subject:
For several years the United States has been attempting to interest
the Cuban Government in a reciprocal agreement for the return of
hijackers. Cuban agreement to return or to prosecute hijackers could
represent a major deterrent to future hijackings. Following the two
recent cases in which one person was murdered and a plane was nearly
lost, Castro has expressed
interest in an arrangement dealing with hijackers of ships and
aircraft and certain other crimes of interest to Cuba.
There is attached the response to the draft agreement proposed by
Cuba that I intend to forward to the Government of Cuba through the
Swiss in Havana. To facilitate agreement we have followed the Cuban
text as closely as possible, but certain changes were necessary to
eliminate lesser offenses and to conform with United States laws.
While Cuba proposed only that each party prosecute hijackers
reaching its territory, we have suggested in keeping with our
worldwide policy, an option to return or prosecute them.
Under this arrangement, the United States would promise no more than
to apply its own laws. The understanding could be included in an
exchange of notes between the Swiss Embassy in Havana and the Cuban
Foreign Ministry. No treaty or implementing legislation would be
necessary. The Department of Justice concurs in this draft.
In view of the difficulties of communicating with Havana, I have
asked the Swiss Ambassador who represents our interests there to
come to Washington on Monday.
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Attachment
The Embassy of Switzerland presents its compliments to the Ministry
of Foreign Relations and, in its capacity of representative of the
interests of the United States in the Republic of Cuba, has the
honor to refer to the recent talks between the Embassy and
representatives of the Government of Cuba regarding airplane
hijackings and other offenses.
The Embassy also has the honor to set forth below the English and
Spanish texts, which shall be equally authentic, of the Memorandum
of Understanding agreed to in the said conversations:
Memorandum of Understanding on Airplane Hijackings and other
offenses
The Government of the Republic of Cuba and the Government of the
United States of America, on the basis of equality and strict
reciprocity, hereby agree as follows:
Article 1. Any person who by force or threat of force hereafter
unlawfully seizes, takes control of, appropriates or diverts from
its normal route an aircraft or commits similar piratical acts
against a vessel, that is registered under the laws of one of the
parties, and reaches the territory of the other party shall either
be returned to the first party or
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be prosecuted by the other party in
accordance with its laws for crimes punishable, in the case of
aircraft piracy by sentences ranging from imprisonment for not less
than 20 years to death, and in other cases by sentences up to life
imprisonment, according to the circumstances and seriousness of the
acts. In addition, the other party shall take all necessary steps to
facilitate without delay the continuation of the journey of the
passengers and crew of the aircraft or vessel in question with their
belongings, as well as the journey of the aircraft or vessel itself
with all property brought with it, including any funds obtained by
extortion or other illegal means, or the return thereof to the
territory of the first party; likewise it shall take steps to
protect the physical integrity of the aircraft or vessel, and all
property brought with it, including funds obtained by extortion or
other illegal means, and the physical integrity of the passengers
and crew and their belongings, while they are in its territory as a
consequence of or in connection with the acts to which this Article
refers.
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Article 2. Each party shall investigate and prosecute strictly in
accordance with its laws any person who within its territory
hereafter conspires to promote, or prepares, or takes part in an
expedition carried on from its territory that carries out acts of
violence or depredation against aircraft or vessels of any type or
registration coming from or going to the territory of the other
party, or who within its territory hereafter conspires to promote,
or prepares, or takes part in, an expedition carried on from its
territory that carries out such acts or similar unlawful acts in the
territory of the other party.
Article 3. Each party shall apply strictly its own laws with respect
to any person, particularly those having committed common crimes,
who, coming from the territory of the other party, enters its
territory, violating its laws as well as national and international
requirements pertaining to immigration, health, customs, and the
like.
Article 4. The country exercising its responsibility with regard to
the perpetrators
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of the
acts described in Article l may take into account the mitigating
circumstances in cases in which the perpetrators were being sought
for strictly political reasons and were in real and imminent danger
of death, without a viable alternative for leaving the country,
provided there was no extortion or physical injury to the
passengers, members of the crew, or other persons having
responsibility with respect to the aircraft or vessel used. In any
case involving such extortion or injury and in cases where the
perpetrators had previously committed serious crimes of violence in
the territory of one party, the party to whose territory they flee
shall give serious consideration to returning the perpetrators to
the territory of the party from which they came for prosecution
under its laws.
Final Provisions:
This Agreement may be amended or expanded by decision of the
parties.
This Agreement shall be in force for five years; it may be renewed
for an equal term by express decision of the parties.
Either party may inform the other of its decision to terminate this
agreement at any
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time
while the agreement is in effect by written denunciation submitted
six months in advance.
The Embassy has the honor to propose that, if the agreements
described in the Memorandum of Understanding set forth above are
acceptable to the Ministry of Foreign Relations, this note and the
Ministry’s reply concurring therein shall constitute acceptance by
the Government of the United States and the Government of Cuba of
the terms of the Memorandum of Understanding, which will enter into
force on the date of the reply.
