Spain Invokes Universal Jurisdiction for Three Criminal Cases Against U.S. Officials and Soldiers

As discussed in a prior post, under customary international law and certain treaties, a nation state has universal jurisdiction over certain crimes of international concern regardless of where the crimes were committed or the nationality of the victims or perpetrators. These crimes of international concern are (a) piracy; (b) slavery; (c) war crimes; (d) crimes against peace; (e) crimes against humanity; (f) genocide; and (g) torture.

Spain has implemented this principle in its own domestic law and has invoked it in significant cases, including the attempt to prosecute Augusto Pinochet, the former President of Chile, for alleged human rights violations in his home country and Spain’s pending prosecution of former Salvadoran military officers for the November 1989 murder in El Salvador of six Jesuit priests and their housekeeper and her daughter (the Jesuits case).

We also have seen that torture is illegal under international law and that the U.S. is a party to the multilateral treaty against torture. As a result, the U.S. has submitted reports about its compliance with the treaty to a U.N. committee.

All of these elements come together in three pending criminal cases in Spain against certain U.S. officials for their alleged involvement in torture allegedly committed by U.S. citizens who were employees of the U.S. military or government:

• One relates to the alleged use of torture at the U.S. detention facility at Guantanamo Bay, Cuba. It is directed at “members of the American air forces or military intelligence and all those who executed and/or designed a systemic torture plan and inhuman and degrading treatment against prisoners in their custody.”
• Another case is against six members of the George W. Bush Administration who were involved in drafting legal memoranda that allegedly facilitated the torture of detainees at Guantanamo Bay and other U.S. detention facilities around the world (the so-called “Bush Six” case)  .
• The third case concerns the killing of a Spanish journalist-cameraman in Baghdad, Iraq on April 8, 2003, by a U.S. tank’s firing on a hotel where the man was staying.

Each of these three cases will be the subjects of subsequent posts.

On January 19, 2012, another front in these battles was opened with the filing of a complaint with the United Nations Human Rights Council’s Special Rapporteur on the Independence of Judges and Lawyers. On the basis of U.S. diplomatic cables released by WikiLeaks, the Center for Constitutional Rights of New York City and Berlin’s European Center for Constitutional and Human Rights alleged that U.S. and Spanish senior governmental officials improperly have attempted to interfere with the judicial process in these three cases. This important development also will be discussed in a subsequent post.[1]

——————————————————————

[1] The issue of judicial independence under international law is currently being litigated in a case against Ecuador.