The Americanization of Facilitation in Sanctions Regimes Against Cuba: Considering Secretary Rubio’s Meeting with Eastern Caribbean and Bahamas Heads of Government

 

Pix credit here (US Embassy Nassau)

Facilitation and complicity are two quite distinct concepts (useful basic discussion here). The law has been most interested in the concept of complicity. It has however also treated facilitation, at least at its edges.  Criminal facilitation is built on the bedrock of mens rea--essentially, in a variety of different versions of knowingly providing substantial assistance to a person intending to commit a felony, and the felony or a close enough variation was actually committed with the assistance so provided. It is to be distinguished from complicity or accomplice liability where the accused is essentially a principal. Facilitation, like complicity and conspiracy has been joined by another term--circumvention (see eg here).

But facilitation, like complicity, has also acquired a new life, and a potent one potentially--not within the narrow confines of the criminal law but within the civil sphere as law, and as a social or political expectation with consequences. One has already seen this expansion blossom in the field of business and human rights.  In the UN Guiding Principles for Business and Human Rights, issues of complicity are deeply embedded in its human rights due diligence systems. UNGP Principle 17's Commentary notes the connection between legal regimes and the criminal law of complicity.  It also explains that what the UNGP refer to as "complicity"  has a broader meaning outside the criminal law. "As a non-legal matter, business enterprises may be perceived as being “complicit” in the acts of another party where, for example, they are seen to benefit from an abuse committed by that party." It also suggests that evidence of facilitation may serve as a basis for civil liability. (see also here).

It is in the cations of State organs operating in private markets that the notions of facilitation, and its consequences, have been more readily apparent. This has been well developed in the practices (and quasi-jurisprudence) pf the Ethics Council as part of the administration of Norway's Sovereign Wealth Fund, its Pension Fund Global.

  Facilitation has become a potent theoretical vehicle for the rapid expansion of the concept of complicity from one narrowly constructed in law, to one that may reach to the ends of supply and production chains, and the regulator sees fit. In this sense there is a tight connection between compliance based regulatory structures like the EU Corporate Sustainability Due Diligence Directive and its related regulatory schemes with the notions of risk and responsibility crafted through an broadened notion of responsibility through facilitation. (here; generally Cognitive Cloaks, Complicity, and the Art of Engaging with Warfare Without Engaging in War: Norwegian Pension Fund Global Excludes Weichai Power Co Ltd [China] , Adani Ports & Special Economic Zone Ltd (APSEZ) [India], and L3Harris Technologies Inc [US]).

In US policy facilitation has appeared as part of the palette of U.S. sanctions programs. And, indeed, one might thin about sanctions programs as enterprises the purpose of which is not merely to prevent  or limit the identified principles but to bring within the net of sanctions anyone and anything that might in some way be used to reduce the sting of the sanction against the targeted person, institution, or State. See, e.g.,

§ 560.208 Prohibited facilitation by United States persons of transactions by foreign persons. Except as otherwise authorized pursuant to this part, and notwithstanding any contract entered into or any license or permit granted prior to May 7, 1995, no United States person, wherever located, may approve, finance, facilitate, or guarantee any transaction by a foreign person where the transaction by that foreign person would be prohibited by this part if performed by a United States person or within the United States. (31 CFR § 560.208)

§ 542.210 Prohibited facilitation. Except as otherwise authorized, United States persons, wherever located, are prohibited from approving, financing, facilitating, or guaranteeing a transaction by a foreign person where the transaction by that foreign person would be prohibited by §§ 542.206, 542.207, 542.208, or 542.209 of this part if performed by a United States person or within the United States.

But, it might have been argued, the application of facilitation regimes to the Cuba sanctions regime was at best unclear.

Unlike many other sanctions programs, the Cuba sanctions program does not include an explicit prohibition on “facilitation” (which generally means a US person providing goods, financing or services to a non-US person to assist the non-US person’s transaction with a sanctioned person or country). As a result, it has been theorized in the past that US persons could facilitate a transaction with Cuba without triggering a violation. However, any such argument has effectively been negated in the past few years, as OFAC has pursued multiple violations against US persons for facilitating trade with Cuba. (here)

Pix credit here

That follows the pattern evolving from the time of the Obama Administration without substantial change (except in targets and a little in its narrative expression) of instrumentalizing trade, human rights, and other policies (sometimes written into law as normative goals) in the service of sanctions initiatives. In this respect that facilitation now appears to be morphing into an instrument of policy and policy response justification in this respect may suggest a refinement, certainly, of that technique to provide more flexibility in reaching targets.  And it has become what appears to be an important element of U.S. foreign policy.  Hints of this possibility were set out in the readout: Secretary Rubio’s Meeting with Eastern Caribbean and Bahamas Heads of Government. 

One particular summary passage stands out:

Secretary Rubio urged our partners to make responsible, transparent decisions when selecting vendors and contractors for critical infrastructure projects, ensuring they are not vulnerable to privacy and security risks and exploitation by malign actors like the Chinese Communist Party. He also reaffirmed our commitment to holding accountable Cuban regime officials, foreign government officials, and those involved in facilitating the regime’s forced labor scheme, including Cuba’s medical missions. (Secretary Rubio’s Meeting)

 There are two points beyond the obvious built into this passage. The first is trade vulnerability and dependence should U-S. partner States  corrupt their systems with competitor product. The second, and for our purposes here, is the more interesting. The Secretary spoke to holding foreign leaders to account for human rights related adverse impacts (forced labor, as  the concept has been transposed into national legal orders) as well as "those involved in facilitating" what the American's call Cuba's forced labor scheme. This picks up a policy thread from the 1st Trump Administration (The American Pivot Toward Latin America--A Regional Approach to Cutting Cuba Off From its Most Dependable Sources of Hard Currency;Interview/Entrevista: Yuri Gonzalez Hernandez on "Cuban doctors and medicines in the fight against pandemic"/"Medicos y medicamentos cubanos en la lucha contra pandemia"; The Socialist Multinational in Global Context: My Presentation at the International Conference--Cuba Futures: Past / Present). But it also expands it--potentially. That expansion targets facilitation--those who facilitate.

But that raises more questions than it answers,  Certainly it suggests that the U.S. will cast a very broad net against  what it views as Cuban labor exploitation (and certainly of the sort that is a principal source of hard currency for the State).  Nonetheless the contours of the net remains mysterious.  It might include those who knowingly providing substantial assistance (but that begs the question of the each of those words will be filled with meaning). That becomes more difficult if the answer is the product of exercises of administrative discretion (e.g. OFAC; In this respect it has been  noted that "This means that OFAC will not hesitate even for a moment while bringing out law enforcement against cases of first impression and against activities that OFAC believes are violation the essence of this sanctions program in any way possible." (here)). While the focus had been on facilitation of travel services for the most part (and indirectly tourism), it now appears to be used to target specific objectives--in this case labor exploitation.  How it is formalized, or if not formalized, then realized through the current apparatus will be quite interesting to watch. 

The text of Secretary Rubio’s Meeting with Eastern Caribbean and Bahamas Heads of Government follows below.

Secretary Rubio’s Meeting with Eastern Caribbean and Bahamas Heads of Government

Readout

Office of the Spokesperson

May 6, 2025

The below is attributable to Spokesperson Tammy Bruce:  

Today, Secretary of State Marco Rubio met with the heads of government from the Eastern Caribbean and the Bahamas to underscore the urgent need for enhanced regional cooperation to combat drug and firearms trafficking and illegal migration – key drivers of violence and instability.  He encouraged Caribbean partners to strengthen intelligence-sharing, security cooperation, and border security through initiatives like the Caribbean Basin Security Initiative. 

Secretary Rubio urged our partners to make responsible, transparent decisions when selecting vendors and contractors for critical infrastructure projects, ensuring they are not vulnerable to privacy and security risks and exploitation by malign actors like the Chinese Communist Party.  He also reaffirmed our commitment to holding accountable Cuban regime officials, foreign government officials, and those involved in facilitating the regime’s forced labor scheme, including Cuba’s medical missions. 

With hurricane season less than one month away, Secretary Rubio announced the reactivation of two U.S.-administered programs to strengthen early warning systems and provide rapid, life-saving assistance across the Caribbean. 

Participants in the meeting included Prime Minister Ralph Gonsalves of Saint Vincent and the Grenadines, Prime Minister Roosevelt Skerrit of Dominica, Prime Minister Gaston Browne of Antigua and Barbuda, Prime Minister Philip Davis of The Bahamas, Prime Minister Philip J. Pierre of Saint Lucia, Prime Minister Dickon Mitchell of Grenada, and Prime Minister Terrance Drew of Saint Kitts and Nevis.