This is one of three suits filed by families of men killed when the Cuban Air Force shot down two civilian aircraft on Feb. 24, 1996. The suits, filed on October 31, 1996, allege violations of the Foreign Sovereign Immunities Act and the Antiterrorism and Effective Death Penalty Act of 1996. The same counsel filed similar complaints on behalf of the families of Carlos Alberto Costa and Mario de la Pena, also killed in the incident.

 

 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

SOUTHERN DIVISION 

 

CASE NO 

 

MARLENE ALEJANDRE, individually 

and as personal representative of 

the Estate of ARMANDO ALEJANDRE, 

deceased, 

 

Plaintiff, 

 

vs. 

 

THE REPUBLIC OF CUBA; 

THE CUBAN AIR FORCE, 

 

Defendants. 

 

 

CIVIL ACTION COMPLAINT 

 

Plaintiff MARLENE ALEJANDRE, individually and as personal 

representative of the Estate of ARMANDO ALEJANDRE, sues THE 

REPUBLIC OF CUBA and THE CUBAN AIR FORCE and alleges as 

follows:  

 

 

PARTIES 

 

1. Plaintiff MARLENE ALEJANDRE is a national of the United States, 

and resides in the City of Miami, Florida.  

 

2. At the time of his death, Plaintiff's spouse, ARMANDO ALEJANDRE, 

was a national of the United States and resident in Miami.  

 

3. At all times material, Plaintiff MARLENE ALEJANDRE was, is and/or 

will be the duly appointed Administrator, Executor and/or Personal 

Representative of the Estate of ARMANDO ALEJANDRE, deceased.  

 

4. As Administrator, Executor and/or Personal Representative of 

decedent's estate, Plaintiff brings this action for the decedent's wrongful 

death in her representative capacity, on behalf of the following potential 

survivors and/or beneficiaries:  

 

a. Marlene Alejandre, wife of decedent; 

 

b. Marlene Victoria Alejandre, daughter of decedent.  

 

5. Defendant THE REPUBLIC OF CUBA ("CUBA") is a foreign state, as 

defined in 28 U.S.C. Sec. 1603, located in the Caribbean Sea, 

approximately 90 miles south of Key West, Florida.  

 

6. Defendant THE CUBAN AIR FORCE is a military entity which is a 

political subdivision of the government of CUBA. THE CUBAN AIR 

FORCE is the division of the Cuban military which conducted the acts of 

extrajudicial killing described herein.  

 

 

JURISDICTION AND VENUE 

 

7. This Court has jurisdiction over the subject matter of this action under 

28 U.S.C. Sec. 1330 and 28 U.S.C. Sec. 1331 in that Plaintiff's claims are 

brought pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. Sec. 

1602 et seq.  

 

8. CUBA and THE CUBAN AIR FORCE are subject to suit in the courts 

of the United States under and in accordance with the provisions of 28 

U.S.C. Sec. 1604 and Section 221(a) of the Antiterrorism and Effective 

Death Penalty Act of 1996, Pub. L. No. 104-132 (to be codified at 28 

U.S.C. Sec. 1605(7)).  

 

9. Venue is proper in this district under 28 U.S.C. Sec. 1391(f)(1).  

 

 

CUBA 

 

10. The government of CUBA is a totalitarian dictatorship known for its 

multiple human rights violations. Fidel Castro, the head of its dictatorship, 

is directly responsible for the conduct of CUBA in its affairs.  

 

11. CUBA both supports and engages in terrorist activities. These 

activities, as demonstrated by CUBA's attack on February 24, 1996 against 

two unarmed civilian aircraft flying over international waters, constitute 

violations of the law of nations and of at least the following international 

laws and agreements:  

 

a. The Convention on International Civil Aviation and the 1984 Montreal 

Protocol to the Convention;  

 

b. The 1973 Montreal Convention for the Suppression of Unlawful Acts 

Against the Safety of Civilian Aircraft, article 1;  

 

c. The 1966 International Convention on Civil and Political Rights, article 

6;  

 

d. The 1969 American Convention on Human Rights (Pact of San Jose), 

article 4;  

 

e. The General Assembly Resolutions on Measures to Prevent 

International Terrorism, G.A. Res. 40/61 (1985) and G.A. Res. 42/159 

(1987);  

 

f. The Universal Declaration of Human Rights, Dec. 10, 1948 G.A. Res. 

217A (III), U.N. Doc A/810, articles 3 and 5 (1948).  

 

12. In addition to formal treaties and international agreements, the 

prohibition against extrajudicial killing and similar forms of terrorism, 

particularly when directed against unarmed civilian aircraft, is a basic jus 

cogens norm of international law.  

 

13. Violation of a jus cogens norm subjects the perpetrator to universal 

jurisdiction.  

 

14. CUBA is currently designated by the United States as a state sponsor 

of terrorism under Sec. 6(j) of the Export Administration Act of 1979, 50 

U.S.C. App. Sec. 2405(j), and Sec. 620A of the Foreign Assistance Act of 

1961, 22 U.S.C. Sec. 2371. The designation is published at 61 Fed. Reg. 

12927 (1996).  

 

15. Under 28 U.S.C. Sec. 1605(7), the sovereign immunity of a foreign 

state is waived when a U.S. national plaintiff seeks money damages in 

United States courts for acts of extrajudicial killing for which the foreign 

state is responsible.  

 

16. In an unprecedented act of cowardice, CUBA engaged in a willful and 

deliberate act of extrajudicial killing on February 24, 1996 by shooting 

down two unarmed, civilian aircraft flying over international waters on a 

humanitarian search and rescue mission.  

 

 

THE CUBAN AIR FORCE 

 

17. Plaintiff realleges and reasserts paragraphs 1 through 16 as if fully set 

forth herein.  

 

18. THE CUBAN AIR FORCE actively and knowingly participated in the 

acts of extrajudicial killing described herein. The jurisdictional and related 

principles described above apply with equal force to the liability of THE 

CUBAN AIR FORCE.  

 

 

FACTS OF THE CASE 

 

19. Plaintiff's decedent was a volunteer aiding a Miami-based 

humanitarian organization engaged in search and rescue operations in the 

Straits of Florida.  

 

20. On Saturday, February 24, 1996, decedent departed from Opa Locka 

Airport in Florida aboard an unarmed civilian aircraft, registration number 

N5485S. Two other unarmed and defenseless civilian aircraft 

accompanied this aircraft on a humanitarian mission.  

 

21. The decedent was flying a humanitarian mission, identical to many 

hundreds flown since 1991, and posed no threat whatsoever to the 

government of CUBA, THE CUBAN AIR FORCE, or the Cuban people.  

 

22. The civilian aircraft notified air traffic controllers as to their flight 

plans, which would take them south of the 24th parallel and close to 

Cuban airspace. International law provides a nation with airspace over the 

12-mile territorial sea.  

 

23. The response of Fidel Castro's dictatorship to decedent's lawful flight 

was to scramble two MiG fighter jets from a Havana airfield.  

 

24. At approximately 3:21 p.m., the pilot of one of the Cuban MiGs 

received permission and proceeded to shoot down civilian aircraft # 

N2456S over international waters, outside Cuban airspace .  

 

25. At no time did the pilots of the Cuban MiG fighters nor Havana air 

traffic controllers make any effort to establish radio communication or 

contact with civilian aircraft, # N2456S, nor attempt any other 

internationally accepted means of interception, prior to the grant of hostile 

authorization and subsequent killing of innocent, unarmed civilians.  

 

26. Approximately six minutes later, the pilot of the Cuban fighter jet 

received permission and proceeded to shoot down civilian aircraft # 

N5485S over international waters, outside Cuban airspace.  

 

27. At no time did the pilots of the Cuban MiG fighters nor Havana 

controllers make any effort to establish radio communication or contact 

with civilian aircraft, # N5485S, nor attempt any other internationally 

accepted means of interception, prior to the grant of hostile authorization 

and subsequent killing of innocent, unarmed civilians.  

 

28. The civilian aircraft shot down by CUBA and THE CUBAN AIR 

FORCE never entered Cuban airspace on February 24, 1996.  

 

29. There were no survivors of the attack on these aircraft. Plaintiff's 

decedent perished in the attack.  

 

30. The Cuban dictatorship, if it truly felt threatened by the flight of these 

unarmed aircraft, could have and should have pursued other peaceful 

options as required by international law.  

 

31. The response chosen by Fidel Castro, the use of lethal force, was 

completely inappropriate to the situation presented to the Cuban 

Government, making such actions a blatant and barbaric violation of 

international law and tantamount to cold-blooded murder.  

 

32. On or about February 27, 1996, the United Nations Security Council 

issued a statement strongly deploring "the shooting down by the Cuban 

Air Force of the Two Civilian airplanes on 24 February, 1996." United 

Nations Security Council: Statement on the Shooting Down by the Cuban 

Air Force of the Two Civilian Aircraft, 35 I.C.M. 493 (1996).  

 

33. On March 1, 1996, President Clinton issued Proclamation 6867, which 

states that "Cuban military aircraft intercepted and destroyed two unarmed 

U.S.-registered civil fan aircraft in international airspace north of Cuba." 

Proclamation 6867 also indicates that "the Government of Cuba has 

demonstrated a ready and reckless willingness to use excessive force, 

including deadly force, in the ostensible enforcement of its sovereignty."  

 

34. on March 6, 1996, the Council of the International Civil Aviation 

Organization ("ICAO") adopted a Resolution directing the Secretary 

General to initiate an investigation of the incident in its entirety to 

determine all relevant facts and technical aspects. The Council further 

directed that these findings were to be reported to the ICAO Council.  

 

35. on June 27, 1996, the Council of the ICAO adopted a Resolution 

reaffirming its condemnation of the use of lethal force against civil aircraft 

in flight and declaring such practices incompatible with the rules of 

customary international law.  

 

36. The Report of the ICAO Fact-Finding Investigation, issued in June 

1996 ("ICAO Report"), concluded that civilian aircraft N2456S and 

N5485S were both shot down over international waters outside of Cuban 

territorial airspace.  

 

37. The ICAO Report concluded that means other than interception were 

available to Cuba, such as radio communication, but had not been utilized. 

The Report further concluded that this conflicted with the ICAO principle 

that interception of civil aircraft should be undertaken only as a last resort.  

 

38. The ICAO Report concluded that in executing these attacks, the Cuban 

military pilots did not follow universally accepted international aviation 

procedures, in accordance with ICAO provisions and as published in 

Cuba, for maneuvering and signaling by military interceptor aircraft.  

 

39. The government of CUBA and THE CUBAN AIR FORCE have 

acknowledged their direct participation in and responsibility for the 

deliberate destruction of the civilian aircraft on February 24, 1996, and 

therefore, for the death of ARMANDO ALEJANDRE, on whose behalf 

Plaintiff brings this action.  

 

40. The government of the United States as concluded and affirmed that 

CUBA bears full responsibility, through its own acts and those of its 

political subdivision, THE CUBAN AIR FORCE, for the deliberate 

destruction of the civilian aircraft.  

 

 

COUNT I 

Wrongful Death 

(Against THE REPUBLIC OF CUBA and THE CUBAN AIR FORCE)  

 

41. Plaintiff realleges and reasserts paragraphs 1 through 40 as if fully set 

forth herein.  

 

42. Defendants' actions, for which they are jointly and severally liable, 

caused the deliberate and wrongful death of ARMANDO ALEJANDRE 

by causing the willful and premeditated destruction of the civilian airplane 

in which he was flying on February 24, 1996.  

 

43. Such acts were in violation of the law of nations and numerous 

international agreements and treaties, including, but not limited to, the 

agreements listed in paragraph 11 These egregious acts also constituted 

violations of jus cogens norms of international law, and applicable 

common law.  

 

44. As a direct and proximate result of the shootdown, Defendants are 

liable to the Plaintiff for all damages to which the estate, or the survivors 

and/or beneficiaries are entitled, including, as applicable law may provide, 

but not limited to:  

 

a. pain and suffering of the decedent prior to death;  

 

b. pain and suffering of the survivors, beneficiaries and heirs of decedent;  

 

c. lost society, companionship, guidance, and services of the decedent to 

the survivors, beneficiaries and heirs;  

 

d. loss of support in money or in kind; 

 

e. lost net accumulations; 

 

f. lost value of life; 

 

g. any and all other damages to which Plaintiff, the survivors and/or 

beneficiaries may be entitled.  

 

WHEREFORE, Plaintiff demands judgment against THE REPUBLIC OF 

CUBA and THE CUBAN AIR FORCE for compensatory damages, plus 

interest and costs.  

 

 

COUNT II 

PUNITIVE DAMAGES 

(Against THE CUBAN AIR FORCE) 

 

45. Plaintiff realleges and reasserts paragraphs 1 through 40 as if fully set 

forth herein.  

 

46. The extreme and outrageous acts of the defendant, THE CUBAN AIR 

FORCE, in shooting down the unarmed civilian aircraft and killing their 

occupants were intentional, willful and/or wantonly reckless acts.  

 

47. Pursuant to 28 U.S.C. Sec. 1606, Plaintiff is entitled to recover 

punitive damages from Defendant, THE CUBAN AIR FORCE, for this 

extreme and egregious conduct.  

 

WHEREFORE, Plaintiff, MARLENE ALEJANDRE, demands judgment 

against THE CUBAN AIR FORCE for punitive damages pursuant to 28 

U.S.C. Sec. 1606.  

 

Respectfully Submitted, 

 

FRANK ANGONES, ESQ. 

ANGONES, HUNTER, MCCLURE LYNCH & WILLIAMS, P.A. 9TH 

FLOOR, CONCORD BUILDING 66 WEST FLAGLER STREET 

MIAMI FL 33130 (305/371-5000)  

 

-and- 

 

ROBERTO MARTINEZ, ESQ. 

JUAN CARLOS CAMPOS, ESQ. 

GREENBERG, TRAURIG, HOFFMAN, LIPOFF, ROSEN & 

QUENTEL, P.A. 1221 BRICKELL AVENUE MIAMI, FL 33131 

(305/579-0050)  

 

-and- 

 

PODHURST, ORSECK, JOSEFSBERG, EATON, MEADOW, OLIN & 

PERWIN, P.A. 25 West Flagler Street, Suite 800 Miami, Florida 33130 

(305) 358-2800 / Fax (305) 358-2382  

 

By: /s/ 

AARON S. PODHURST 

VICTOR M. DIAZ, JR. 

XAVIER MARTINEZ 

Fla. Bar Nos. 063606, 

503800 and 0059498