Spanish Court Dismisses Criminal Investigation of Alleged Torture at U.S. Detention Facility at Guantánamo Bay Cuba

On July 17, 2015, Spain’s National Court’s Judge Jose de la Mata terminated Spain’s criminal investigation of alleged torture of detainees at the U.S. detention facility in Guantânamo Bay Cuba. [1]

The reason for the termination was a 2014 statutory amendment narrowing Spain’s universal jurisdiction statute [2] and Spain’s Supreme Court’s May 2015, decision upholding that amendment in its affirmance of the dismissal of a case investigating alleged genocide in Tibet.[3]

More specifically the dismissal of the Guantánamo case was required, said the judge, because the investigation was not directed against a Spanish citizen or a foreigner who was habitually resident in Spain or a foreigner who was found in Spain and whose extradition had been denied.

An appeal from this decision has been taken by the U.S. Center for Constitutional Rights and the European Center for Constitutional and Human Rights. One of the points of the appeal is the assertion that the court ignored evidence of the participation of Spanish police officials in some of the interrogations at Guantánamo. [4]

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[1] Poder Judicial España, El juez propone archivar el ‘caso Guantánamo’ por “no ser competencia española” (July 17, 2015).

[2] Under customary international law and certain treaties, a nation state’s courts have universal jurisdiction (UJ) over certain crimes of international concern regardless of where the crime was committed or the nationality of the victim or perpetrator. 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 implemented this principle in 1985 in its own domestic statutory law by conferring such jurisdiction on its National Court for certain crimes, including genocide; terrorism; and any other crimes under international treaties or conventions that should be prosecuted in Spain. The March 2014 amendment of this statute, among other things, restricted universal jurisdiction for war crimes to cases where the accused individual is a Spanish citizen or a foreign citizen who is habitually resident in Spain or a foreigner who is found in Spain and whose extradition had been denied by Spanish authorities.

[3] Spain’s Audiencia Nacional (National Court) in June 2014 decided to terminate its investigation of alleged genocide in Tibet because of the amendment to the statute. Plaintiffs then appealed to Spain’s Supreme Court, which in May 2015 rejected that appeal.

[4] Center for Constitutional Rights, Former Detainees and Human Rights Groups Appeal Spain’s Decision to Discontinue Guantánamo Investigation (July 23, 2015).

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As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

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