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).

Spanish Court Terminates Universal Jurisdiction Case Against Three U.S. Soldiers

On June 9, 2015, Judge Santiago Pedraz Gomez of Spain’s Audiencia Nacional (National Court) terminated Spain’s criminal investigation of three U.S. soldiers for the death of a Spanish cameraman who was killed in Iraq while covering the 2003 allied invasion of the country.

The reason for the termination was a 2014 statutory amendment narrowing Spain’s universal jurisdiction statute[1] 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.[2]

Judge Pedraz in his June 9th decision deplored this amendment, which “prevents the persecution of any war crime committed against a Spaniard save in the unlikely situation that the alleged culprits have taken refuge in Spain.” As a result, Spaniards will be legally unprotected in similar cases that might arise in future. The Judge said, “Faced with such a crime committed against [Spanish] journalists or persons considered to be part of the civilian population (such as aid workers), neither the relatives nor the prosecutors will be able to request the opening of proceedings [in Spain] to at least identify the victim, request an autopsy or other urgent procedure, or investigate the circumstances.”

Earlier, in March 2014, and immediately after the adoption of the amendment, Judge Pedraz decided that the amendment could not be applied to this case because, he said, it contradicted Spain’s obligations under the 1949 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War. Under that treaty, he said, Spain was obligated to “prosecute the crime (search for people and make them appear) regardless of the perpetrators’ nationalities and wherever they may be.” Therefore, “the judge must refrain from applying . . . [the new statutory amendment]. The rule of law requires the existence of independent bodies to protect the rights and freedoms of citizens, by impartially applying standards that express the people’s will and control the activities of public authorities.”[3]

This decision was appealed, and in October 2014 the 20 judges of the Criminal Chamber of the National Court allowed the case to proceed for a procedural error by the prosecution without a ruling on the merits.

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[1] 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.

[2] Spain’s 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.

[3] The earlier history of this case was discussed in another post.

 

The Birth of the Word “Genocide”

Raphael Lemkin
Raphael Lemkin

In the fall of 1944, the word “genocide” appeared for the very first time in the book “Axis Rule in Occupied Europe” by Raphael Lemkin, a Polish lawyer who lost most of his family in the Holocaust and who fled to the U.S. in 1941. The book, which was published by the Carnegie Endowment for International Peace, introduced the word as “A New Term and New Conception for Destruction of Nations.”[1]

Lemkin was inspired to create the term after listening to a 1941 radio speech by Winston Churchill, who talked about “the barbaric fury of the Nazis” and the world being “in the presence of a crime without a name.” Lemkin considered and then rejected terms like “barbarity,” “vandalism,” and “ethnocide.” Finally he created the word “genocide” by combining the Greek “genos” meaning “people” or “nation” with the Latin-derived suffix “-cide” for “killing.”

Lemkin then embarked on the mission of convincing governments to use the term to define a new crime under international law. In 1948 the United Nations General Assembly agreed with its approval of the Convention on the Prevention and Punishment of the Crime of Genocide. As of October 27, 2014, there are 146 states that are parties to this treaty.[2]

The treaty defines the crime of “genocide” as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; [or] (e) Forcibly transferring children of the group to another group.”

Now genocide is one of the crimes that is within the jurisdiction of the International Criminal Court and within the customary international law principle of universal jurisdiction whereby any state may prosecute an individual for the crime regardless of where the crime occurred.

A new documentary film, “Watchers of the Sky,” brings Lemkin’s creative process to the screen by animating pages of his notebooks and by telling the stories of contemporary crusaders like Samantha Power, the U.S. Ambassador to the United Nations and the author of a book about post-World War II commissions of genocide, “A Problem from Hell.”

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[1] This post is based upon the citations embedded above and upon Ben Zimmer, How ‘Genocide’ Was Coined, W.S. J. (Oct. 27, 2014). The Carnegie Endowment for International Peace was created by Andrew Carnegie in the early 20th century as discussed in a prior post.

[2] Although the Convention was unanimously adopted by the General Assembly in 1948 and signed two days later for the U.S. by President Harry Truman, it was not ratified by the U.S. until 1988 as discussed in a prior post.

Spanish Court Issues Decision on Use of Universal Jurisdiction

On October 3, 2014, the 20 judges of the Criminal Chamber (Sala de lo Penal) of Spain’s National Court (Audiencia Nacional) issued an important ruling on Spain’s use of universal jurisdiction (UJ). In order to understand this decision, we first must look at UJ under customary international law and at Spain’s incorporation of this principle into its statutory law.

Customary International Law Regarding Universal Jurisdiction

Under customary international law and certain treaties, a nation state’s courts have 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’s Statutes Regarding Universal Jurisdiction

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.

In 2009 Spain amended this statute to add these additional crimes for universal jurisdiction: crimes against humanity; illegal trafficking or illegal immigration of persons; and female genital mutilation (FGM). In addition, the amendment specified that these conditions or limitations had to be established for such jurisdiction: the alleged perpetrators were in Spain; or the victims were of Spanish nationality; or there was another connecting link to Spain.

The 2009 amendment also specified that for such Spanish jurisdiction to exist, another country or international tribunal had not started a process involving an investigation and successful prosecution of such offenses; if there were such another process, then the Spanish court should suspend or stay its case until the other investigation and prosecution has been concluded. The latter provision is referred to as the subsidiary principle.

In March 2014, Spain’s legislature (los Cortes Generales), approved another amendment to this statute (Article 23.4 of the 1985 Organic Law of the Judicial Power, as amended).[1] Here are the principal provisions of the amendment that have been at issue in the October 3, 2014, decision by the Criminal Chamber of the National Court and in other recent judicial cases:

  • For genocide, crimes against humanity and war crimes, universal jurisdiction exists only if 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.
  • For torture and disappearances, universal jurisdiction exists only if the prospective defendant is a Spanish citizen, or the victims were (at the time of the events in question) Spanish citizens and the person accused of the crime was in Spanish territory.
  • Certain crimes were added for universal jurisdiction, including war crimes (crimes against persons or goods in armed conflict); torture and crimes against moral integrity; and crimes covered by the Council of Europe Convention on the prevention and combatting of violence against women and domestic violence.[1]

The Criminal Chamber’s Decision Regarding Universal Jurisdiction

The October 3, 2014, Criminal Chamber’s decision concerned use of UJ in (i) the Jesuits Massacre Case; (ii) the Guatemala genocide case; (iii) the case against American service members for alleged murder of a Spanish cameraman in the Iraq war; (iv) the case against U.S. personnel for alleged torture of detainees at Guantanamo Bay; and (v) cases involving alleged Female Genital Mutilation (FGM).[2]

Jesuits Massacre Case.[3] The Chamber unanimously decided that Spain had UJ over the lower court’s criminal investigation of the November 1989 murders in El Salvador of the Spanish Jesuit priest, Ignacio Ellacuria, five fellow Jesuit priests and their cook and her daughter. Although the statutory amendment imposed limits on UJ for crimes against humanity, such charges could be considered in this case because they are related to the murder charges for which there is clear UJ.

The Chamber further explained that upon having asserted jurisdiction over a set of criminal facts that constitute the state terrorism crime, Spanish Judges have jurisdiction over all other crimes connected to the facts investigated, even if that crime is a crime against humanity.

The Chamber’s decision was a result of an appeal from a decision by Judge Eloy Velasco, who handled the Jesuits case and who previously had indicted 20 Salvadoran military officials for murder, terrorism, and crimes against humanity. Velasco rejected the crime against humanity claim and decided to continue only with the terrorism claim. The appeal was brought by the U.S.-based Center for Justice & Accountability and the Spanish Pro Human Rights Association.

Guatemala Genocide case.[4] The Chamber also decided that investigations in the Guatemala Genocide case involving claimed UJ could proceed for the moment, but the Chamber did so on procedural grounds without reaching the merits.

The Chamber’s decision was the result of an appeal from the May 2014 decision by Judge Santiago Pedraz Gomez of the National Court. He decided that the case could proceed for two reasons. First, the charges include terrorism—a crime that falls within Spanish extraterritorial jurisdiction whenever there are Spanish victims. Second, the charges of terrorism, genocide, and other atrocities are all based on the same facts. Under Spanish law, as in many European countries, a court’s jurisdiction extends to all criminal charges that arise from the same acts. Because the Court has jurisdiction over the terrorism offenses, Judge Pedraz announced that he will investigate the other connected crimes.

Judge Pedraz’s rationale appears to be the same as the Chamber’s in allowing the Jesuits case to proceed on the merits.

Case Against American Servicemembers for Alleged Murder of a Spanish Cameraman. The lower court has been investigating a case under UJ against American soldiers in the Iraq war for the alleged murder in 2003 of a Spanish cameraman. The Chamber also allowed it to proceed for a procedural error by the prosecution without a ruling on the merits.

The Chamber’s decision was the result of an appeal from a March 2014, decision by the lower court’s Judge Santiago Pedraz Gómez. He held that the amendment could not be applied to this case because, he said, the amendment contradicted Spain’s obligations under the 1949 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War. The judge stated that the Geneva Convention obliges Spain to “prosecute the crime (search for people and make them appear) regardless of the perpetrators’ nationalities and wherever they may be.” Therefore, the court’s decision said, “The judge must refrain from applying . . . [the new statutory amendment]. The rule of law requires the existence of independent bodies to protect the rights and freedoms of citizens, by impartially applying standards that express the people’s will and control the activities of public authorities.”

Case Against American Personnel for Alleged Torture of Guantanamo Detainees.[5] Another lower court judge has been investigating under UJ the alleged torture by American personnel of Guantanamo detainees. The chamber also allowed it to proceed because of a procedural error by the prosecution without the Chamber addressing the merits.

This decision occurred in an appeal from the March 2014 lower court’s Judge Pablo Ruz’ order. He concluded that under the new amendment “torture and war crimes cannot be pursued . . . because the target of the procedure is not a Spaniard or a resident of Spain.” These restrictions, however, are trumped, held the judge, by international treaties ratified by Spain–the Geneva Conventions and the Convention Against Torture–which force signatory countries to pursue crimes.

Judge Ruz also pointed out that the new amendment stipulates that crimes cannot be pursued in Spain if they are already being investigated by an international court or by the country where they were committed. Therefore, Judge Ruz this March renewed his request to the U.S. Government for information about U.S. investigation of this case. This blogger is not aware of any U.S. response to date to this request.

FGM Cases. The Chamber also unanimously decided that UJ could be used for criminal investigations and prosecutions of alleged Female Genital Mutilation (FGM) where the victims or perpetrators have some connection to Spain. This decision was based, in part, upon Spain’s August 1, 2014, ratification of the Council of Europe Convention on preventing and combating violence against women and domestic violence, which requires Spain to prosecute such crimes. The case involved the FGM of a young woman in Gambia in 2005

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[1] Other provisions of the original 1985 statute and the 2014 amendment are covered in a prior post.

[2]This post is based upon prior posts that are embedded above; the Spanish court’s announcement of the decision; Perez, The new universal justice can pursue ablation, El Pais (Oct. 3, 2014); Center for Justice & Accountability, Spanish National Court Upholds Spanish Jurisdiction To Investigate 1989 Massacre of Jesuit Priests in El Salvador (Oct. 3, 2014); Center for Justice & Accountability, Spain Presses Ahead with Guatemala Genocide Case Despite New Limits on Universal Jurisdiction (May 22, 2014). The text of the actual decision by the Criminal Chamber should become available online. Corrections or elaborations of this post by lawyers more knowledgeable about Spanish law are especially welcome.

[3] Some of the filings in the Jesuits case are available online.

[4] Some of the filings in the Guatemala case are available online.

[5] Many of the documents In the Guantanamo torture case are available online.

 

 

 

Argentina’s Exercise of Universal Jurisdiction Thwarted by Spain

An Argentine court has invoked universal jurisdiction over a case brought by relatives of people who were victims of torture and other crimes committed in Spain during the Spanish Civil War (1933-1939) and the Franco regime (1939-1975).[1]

In September 2013 the Argentine court issued an international warrant for the arrest of four suspects in that case. Two of them are residents of Spain; the other two are deceased.[2]

Spain’s High Court’s Denial of Extradition

One of these suspects who lives in Spain, Jesús Muñecas, earlier this month appeared in Spain’s High Court to contest the Argentine court’s request to have him extradited to Argentina to face charges that while a Spanish Civil Guard captain in August 1968, he tortured and beat an individual at a Spanish prison. Muñecas’ opposition to extradition was supported by the Spanish prosecutor on the ground that the statute of limitations had expired on these charges.

On or about April 25th Spain’s High Court denied the extradition request. It said the Argentine charges did not reveal any facts that could be construed as genocide – a crime without a statute of limitations – and that even if torture were proven, Spain’s 10-year statute of limitations for torture had expired and, therefore, barred the case.

Spain’s High Court’s Invitation to Argentina To Start a Case in Spain

 In denying extradition of Senor Muñecas, the High Court added that Argentina could try to get the case opened in Spain. According to the High Court, “This would give the victims the possibility to access proceedings and, in some way, satisfy their desire for justice.”

This invitation is utterly disingenuous and ironical as shown below.

Baltasar Garzón
Baltasar Garzón

Previously Spain’s High Court had opened a criminal investigation of certain crimes committed during the Spanish Civil War and Franco regime, but the investigation was quashed in May 2010. Simultaneously the judge who initiated that investigation, former High Court Judge Baltasar Garzón, was charged with a crime for doing so and suspended from his judicial service.

In February 2012, this criminal case against Garzón was dismissed when Spain’s Supreme Court decided that he had not abused his judicial power in initiating the investigation even though, according to the Court, he had overstepped his authority and “exceeded himself in the interpretation of the law” in doing so.

In the meantime, however, two other criminal cases were brought against Garzón.

One of these prosecutions resulted in his February 2012 conviction for prevarication (knowingly making an unjust decision) in a case involving his authorization of police bugging of communications between individuals charged with corruption and their attorneys. For this conviction, Judge Garzón was removed from the bench for 11 years and fined Euros 2,500.[3]

These three criminal cases against Garzón and his conviction in one of them have been widely condemned as motivated by the Spanish government’s desire to punish him for his Franco-era investigation as discussed in posts of February 10, 11 and 14, 2012.

One of the criticisms of his conviction came from the European Magistrates for Democracy and Freedom (EMDF), an organization with 15,000 members from 11 states of the European Union. They petitioned the Spanish courts for a pardon of Garzón because the organization believes his conviction and sentence affects the entire international judicial community and runs the risk of limiting judicial independence, especially in countries trying to construct a democratic system of justice. Judges must have the freedom to render their own legal interpretations, said this organization, and the Garzón case could be used to curb judges’ independence and autonomy.

In late February 2014, Spain’s Supreme Court opposed the EMDF’s petition for such a pardon on the ground that it did not satisfy certain legal criteria. The court also said it was inappropriate to reinstate Garzón as he maintains that he was within his rights to order the recordings of the attorney-client communications. Said the court, “In the request there is no indication that he has expressed remorse, and this court is not aware of his having done so.” Moreover, according to the court, Garzón had displayed “indifference” to his suspension “as a way of reaffirming his position prior to the sentence.”

Now Spain’s Ministry of Justice will make the final decision on the request for pardon. As of April 27th, the prosecution apparently had advised the Ministry that there were no reasons of justice, fairness or public interest to grant such a pardon.

Meanwhile in reaction to the Supreme Court decision opposing his pardon, Garzón said it was “not legal” for the Court to demand he show remorse. “This is not a legal requisite,” he said. Nor, he added, does the fact that it was EMDF that had requested the pardon reflect his “indifference.” Garzón reasserted his innocence and said, “I believe that this offense was created with the express purpose of punishing me, and that I am within my rights to disagree and to resort to another court, as I have done in Strasbourg [the European Court of Human Rights], in order to evaluate whether the Supreme Court has violated my fundamental rights.”[4]

Finally Spain High Court’s invitation for Argentina to start a case in Spain is ironic. Argentina decided to exercise universal jurisdiction over crimes committed during Spain’s Civil War and the Franco regime only after Spain quashed its own investigation of such crimes, the one initiated by Garzón. 

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[1]This post’s discussion of the Argentine proceedings is based upon Fabra, Ex-Civil Guard officer fights extradition to Argentina to face torture charges, El Pais (In English) (April 3, 2014); Fabra, High Court refuses to extradite former Franco-era Civil Guard accused of torture, El Pais (In English) (April 25, 2014).

[2] The other living suspect and Spanish resident, Juan Antonio González Pacheco, alias Billy the Kid, also is opposing his extradition to Argentina. He is a former police inspector who faces 13 charges of torture.

[3] The other criminal case against Judge Garzón involving alleged corruption was dismissed as being barred by the statute of limitations.

[4] In March 2011 Garzon brought a case before the European Court of Human Rights challenging the legality of his criminal prosecution, conviction and sentence on his approving the prosecution’s bugging of communications between certain criminal defendants and their lawyers. This case apparently is still pending.

Spanish Court Refuses to Apply New Amendment to Spain’s Universal Jurisdiction Statute

On March 15th Spanish High Court Judge Pablo Ruz refused in two cases to apply Spain’s new amendment to its universal jurisdiction statute.[1] This is the subject of a report in Spain’s leading newspaper, El Pais.

U.S. Detainees Case

One case has U.S. Government officials in its sights. It involves alleged torture by U.S. officials of five individuals from the moment of their initial detention in various countries (Afghanistan, Pakistan and Gambia) and subsequent detention at Guantanamo Bay, Cuba. On March 15th Judge Ruz renewed his request to the U.S. Government for information about U.S. investigation of these cases.

The Judge concluded that under the new amendment “torture and war crimes cannot be pursued . . . because the target of the procedure is not a Spaniard or a resident of Spain.” These restrictions , however, are trumped by international treaties ratified by Spain–the Geneva Conventions and the Convention Against Torture–which force signatory countries to pursue crimes.

The new amendment also stipulates that crimes cannot be pursued in Spain if they are already being investigated by an international court or by the country where they were committed. This is why Judge Ruz is insisting on securing information from US authorities regarding the status of any investigation there.

Western Saharan Genocide Case

The other case involves claims of genocide against several members of the Moroccan military in connection with Western Sahara, a disputed territory that Morocco claims as its own.

Judge Ruz asserts that the court has jurisdiction because the alleged crimes were committed between November 1975 and February 1976 when Western Sahara was still a Spanish colony. Thus, the court concluded, the alleged crimes must be considered to have been committed on Spanish territory for legal purposes.

The Judge also says he has the power to keep open this investigation because it involves alleged genocide.

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[1] A prior post discussed the amendment added earlier this year to the universal jurisdiction statute while comments thereto talked about initial reaction to the amendment. Another post involved the court’s refusal to apply the new amendment in a case involving the Geneva Conventions while a subsequent post talked about the High Court’s following the new amendment in drug-trafficking cases.

Amending Spain’s Universal Jurisdiction Statute

Spain currently is in the process of adopting an amendment to its statute regarding universal jurisdiction for one of its courts. This post will examine that forthcoming amendment after looking at the background of that amendment.

Background

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. (This was discussed in a prior post.)

Spain implemented this principle in 1985 in its own domestic statutory law by conferring such jurisdiction on its National Court (La Audiencia Nacional) for the following crimes: (a) genocide; (b) terrorism; (c) piracy and hijacking of aircraft; (d) falsification of foreign currency; (e) prostitution and corruption of minors or incompetents; (f) trafficking in illegal, psychotropic, toxic and narcotic drugs; and (g) any other crimes under international treaties or conventions that should be prosecuted in Spain.

In 2009 Spain amended this statute to add these additional crimes for universal jurisdiction: crimes against humanity; illegal trafficking or illegal immigration of persons; and female genital mutilation (FGM). In addition, the amendment specified that these conditions or limitations had to be established for such jurisdiction: the alleged perpetrators were in Spain; or the victims were of Spanish nationality; or there was another connecting link to Spain.

Finally the 2009 amendment specified that for such Spanish jurisdiction to exist, another country or international tribunal had not started a process involving an investigation and successful prosecution of such offenses; if there were such another process, then the Spanish court should suspend or stay its case until the other investigation and prosecution has been concluded. The latter provision is referred to as the subsidiary principle.

The New Amendment

On February 11, 2014, Spain’s Congress of Deputies (Congreso de los Diputados), the lower house of the country’s bicameral legislature (los Cortes Generales), approved another amendment to this statute (Article 23.4 of the 1985 Organic Law of the Judicial Power, as amended).[1] Since the same political party (Party Popular) also controls Spain’s Senate, it is anticipated that the Senate will pass the bill as well. Here are the principal provisions of the amendment:

  • The following specific crimes were added for universal jurisdiction: (i) war crimes (crimes against persons or goods in armed conflict); (ii) torture and crimes against moral integrity; (iii) crimes under the Convention on the Physical Protection of Nuclear Material; (iv) crimes covered by the Council of Europe Convention on the prevention and combatting of violence against women and domestic violence; (v) offenses of corruption between private or international economic transactions; and (vi) crimes of enforced disappearances under the International Convention for Protection of All Persons from Enforced Disappearances.
  • Greater specificity was provided for offenses other than piracy covered by the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and its Protocol; offenses other than hijacking of aircraft under the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation and its Supplemental Protocol; crimes against sexual freedom committed on children; and trafficking in human beings.
  • For genocide, crimes against humanity and war crimes, universal jurisdiction exists only if 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.
  • For torture and disappearances, universal jurisdiction exists only if the prospective defendant is a Spanish citizen, or the victims were (at the time of the events in question) Spanish citizens and the person accused of the crime was in Spanish territory.
  • Only public prosecutors and victims may initiate criminal proceedings under universal jurisdiction; other private individuals or groups (acusaciones populares) may not do so.
  • Pending cases under the universal jurisdiction provision would be stayed and thereafter dismissed if they could not satisfy these new conditions.

There currently are 12 cases under this jurisdictional provision pending in Spanish courts, and presumably they all will be dismissed under this new amendment. They are the following:

  1. Genocide in Tibet. In 2006 the court commenced an investigation against five former Chinese Communist leaders, including former President Jiang Zemin, for alleged genocide in Tibet. In November 2013, the court issued arrest warrants for these individuals, and in early February 2014, the court rejected the prosecutor’s motion to quash the warrants. As a result, the court on February 10th asked INTERPOL to issue international arrest warrants for the Chinese individuals.
  2. Genocide in Guatemala. In 2003 the court commenced an investigation of eight former senior Guatemalan officials for alleged genocide, terrorism and torture.
  3. Genocide in Sahara. In 2006 a NGO commenced a case against 31 Moroccan military officers for alleged genocide in the Sahara Desert.
  4. Genocide in Rwanda. In 2005 an investigation was commenced against 69 senior Rwandan officials for alleged genocide and murder, and in 2008 arrest warrants were issued for 40 Rwandan soldiers.
  5. Holocaust. In 2008 a case was commenced by Spanish survivors of the Holocaust against four SS guards, and in 2009 international arrest warrants were issued for three of these guards.
  6. Murder of Spanish Diplomat. In 2012 the court commenced an investigation against seven Chilean officials for alleged participation in the 1976 kidnapping and assassination of a Spanish diplomat, Carmelo Soria. Last year a Chilean court rejected Spain’s request for the arrest of the officials.
  7. Persecution of Falun Gong. In 2006 the court started an investigation of alleged persecution of Falun Gong practitioners by the Chinese government between 1999 and 2002.
  8. Israeli Attack on “Freedom Flotilla” to Gaza. In 2010 the court started an investigation of Israeli officials for alleged war crimes and crimes against humanity for an armed assault on ships with materials for Palestinians in Gaza.
  9. Murder of Spanish Journalist. In 2003 the court started an investigation of alleged U.S. military personnel in the 2003 death of a Spanish journalist, Jose Couso, in Iraq.
  10. Torture of Detainees on CIA Flights. In 2006 the court started an investigation of possible violations by CIA or other U.S. personnel with respect to detainees on CIA flights stopping at an airport in Spanish territory.
  11. Iraqi attack on Iranian refugee camp. In 2009 the court started to investigate an alleged Iraqi military attack on an Iranian refugee camp in 2008.
  12. Murder of the Jesuit priests. In 1999 the court commenced to investigate the 1989 murders of six Jesuit priests in El Salvador, and in 2011 the court ordered the arrest of 20 former Salvadoran military officials.

The immediate precipitating causes for the Spanish government’s seeking and obtaining approval of this amendment at this time are widely seen as the Spanish court’s issuance of arrest warrants, and seeking INTERPOL arrest warrants, for high officials of the Chinese Communist Party, including a former president of the country, for alleged genocide in Tibet; China’s vehement protests of these developments; and the Spanish government’s desire for a friendly economic relationship with China.

Indeed, on February 11th, China’s Foreign Ministry said, “China is extremely dissatisfied with and resolutely opposed to the wrong actions of the relevant Spanish [court] taken while ignoring China’s solemn position. Whether or not this issue can be appropriately dealt with is related to the healthy development of ties. We hope that the Spanish government can distinguish right from wrong.”

Human rights groups opposed the current proposed amendment. Amnesty International, Human Rights Watch, the Center for Justice and Accountability and 14 others argue that under multilateral treaties ratified by Spain it has a legal obligation to prosecute any suspected offender of those treaties—regardless of where the crime was committed,[2] who is found in Spain. Moreover, these groups say, the International Court of Justice explained in the case Belgium v. Senegal, this duty to prosecute arises “irrespective of the existence of a prior request for the extradition of the suspect” and requires States to adopt legislation giving its courts the necessary jurisdiction.

Conclusion

Although I regard myself as an human rights advocate and have great respect for Amnesty International and the other NGOs that have opposed the amendment, I dissent from their objections.

In my opinion, the amendment is a reaffirmation of Spain’s implementation of such jurisdiction. Indeed, as noted above, but not acknowledged in the NGOs’ objections, the amendment expands the crimes that are subject to universal jurisdiction and provides greater specificity for some of the crimes previously covered by the statute. This is important for future use of the statute and for due process notice to individuals who may be charged with such crimes in the future.

The main objection appears to be the amendment’s requirement for universal jurisdiction in some instances for an accused foreigner to be present (habitually resident or found) in Spain. This is akin to the U.S. constitutional due process requirement for a defendant to be present in the jurisdiction in order for personal jurisdiction in civil cases to exist, and I believe it is a reasonable requirement for criminal cases in Spain under its universal jurisdiction provisions.

Moreover, in many, if not all, of the previously mentioned 12 pending cases in Spain, the defendants have never been in Spain, and this has lead to the Spanish court’s unsuccessful efforts to enforce its own arrest warrants or the INTERPOL international arrest warrants. As a result, actual criminal prosecutions in these 12 cases have not even been commenced.

I know this is true in the case against 20 former Salvadoran military officers for their alleged involvement in the horrendous murders of the six Jesuit priests and their housekeeper and her daughter in El Salvador in November 1989. I think it is outrageous that these 20 individuals so far have not faced any criminal accountability or punishment for their alleged complicity in this awful crime and thus have de facto immunity or impunity for their actions, and I had hoped that the criminal case in Spain under its universal jurisdiction statute would bring them to justice. But unfortunately that has not happened. (Other posts on Spain’s case regarding the Jesuits’ murders, 6/15/11 and 8/26/11.)

Objection also has been made to the amendment’s imposing a requirement for universal jurisdiction in some instances for Spain to have denied a request for extradition. But at least as I read the English translation of the amendment, this requirement exists only for those foreigners who are temporarily in Spain and does not apply to foreigners who habitually reside in the country. For the passers-by this seems like a due process concern. How would you like while on holiday for one week on the Costa Brava to be charged with a serious crime  by a Spanish court for something you allegedly did in the U.S. 10 years ago?

Furthermore, the amendment’s limitations also appear to be reasonable to make efficient use of Spanish judicial resources.

Finally, the Spanish government, in my opinion, has a legitimate interest in its efforts to have friendly economic relations with China as Spain continues to struggle to emerge from its economic difficulties, including high unemployment. Pursing justice for horrible crimes committed elsewhere is a laudable purpose and goal, but it is not the only purpose and goal of the Spanish government or any country’s government.

As an U.S. scholar stated, “With unemployment at 25 percent, Spaniards would be right to wonder why their officials were using taxpayer resources for other peoples’ problems and simultaneously risking even more Iberian jobs.”


[1] This summary of Spain’s new amendment by a retired U.S. lawyer who is not an expert on Spanish law is based upon the English translation of the new law (Proposed Law on Universal Justice to amend the Organic Law 6/1985 of 1 July on the Judiciary on universal justice, No. 122/000136) and of Spain’s Congress’ press release about the bill and the following English-language sources and translations (from Spanish): Perez, High court to follow through on arrest warrants against top Chinese officials, El Pais in English (Feb. 7, 2014); Amnesty Int’l and 15 other Human Rights Organizations, Spanish Lawmakers Should Reject Proposal Aimed at Closing the Door on Justice for the Most Serious Crimes (Feb. 10, 2014);   Yardley, Spain Seeks to Curb Law Allowing Judges to Pursue Cases Globally, N.Y. Times (Feb. 10, 2014); Moffett, Spain’s Lower House Approves Law to Limit Judges’ Reach, W.S.J. (Feb. 11, 2014);  The twelve causes of ‘universal justice,’ El Mundo (Feb. 11, 2014); Molto, Tibet to universal justice: Chronicle of an announced impunity, El Pais (Feb.11, 2014); Kassam, Spain moves to curb legal convention allowing trials of foreign rights abuses, Guardian (Feb. 11, 2014).

[2] These treaties include the Geneva Conventions; the U.N. Convention against Torture; the International Convention for the Protection of All Persons from Enforced Disappearances; the Hague Convention for the Suppression of Unlawful Seizure of Aircraft; and the Convention on the Physical Protection of Nuclear Material.