On February 9, 2012, the Supreme Court of Spain, 7-0, convicted Judge Baltasar Garzon of prevarication (knowingly making an unjust decision) in the case involving his authorization of police bugging of communications between individuals charged with corruption and their attorneys. Judge Garzon was sentenced to removal from the bench for 11 years and a fine of Euros 2,500. According to El Pais, there is no right of appeal from this decision.
The prior day, February 8, saw the end of the trial of the criminal case against Garzon arising out of his opening a criminal investigation into human rights violations by the Franco-regime. A decision in this case is expected within four weeks. On the last day, Garzon told the court that he opened the underlying case “in deense of the victims so that they would not be forgotten.” A lawyer for one of the private groups that brought this case against Garzon argued that Garzon had demonstrated bias favoring the Republican side of the Civil War when he used the Spanish amnesty law as the basis for dismissing a case against a Republican leader over a massacre of Franco supporters in that War.
These two cases were discussed in my February 7, 2012 post.
As we have seen in a prior post, Spanish Judge Baltasar Garzon was suspended from his judgeship in May 2010 after he was charged with a crime for allegedly exceeding his judicial powers when he initiated a criminal investigation of human rights violations during the the Franco regime. After these criminal charges were brought against Judge Garzon, he was hit with two other and apparently unrelated criminal charges.
We now examine these three criminal cases. In a subsequent post I will explore reactions to these cases.
Case Relating to Judge Garzon’s Franco-Era Investigation
In 2008 Judge Garzon approved a popular criminal complaint brought by groups of relatives of people allegedly killed and “disappeared” by the Franco regime in the 1930’s and 1940’s. The Judge in October of 2008 ordered exhumation of 18 mass graves and charged Franco and his associates of murder and disappearances of over 114,000 people. The Judge refused to apply a Spanish amnesty law that barred prosecution of any crimes of a political nature during the Franco era because under international law such amnesties are invalid fro crimes against humanity. The chief prosecutor, however, challenged this order as violating that amnesty law, and in late 1988 the Spanish Supreme Court reversed Judge Garzon’s order.
Thereafter two groups–Manos Limpias (Clean Hands) and Falange (the successor to Franco’s political party)–brought a popular criminal case against Judge Garzon for alleged prevarication (knowingly overstepping his authority) by refusing to apply the amnesty law.
Judge Garzon & His Attorney
The trial of this case opened on January 24, 2012, with a motion by Garzon and the public prosecutor to dismiss the case because of a doctrine in Spanish law that a criminal trial cannot be based only on a people’s complaint, especially when the public prosecutor also asks for dismissal, and because the judge in this case against Garzon had helped the attorneys for the private groups in amending their complaint to make it admissible. On January 27th, however, the Supreme Court, 4 to 3, denied the motion. (An article in el Pais said that four of the judges hearing this case were regarded as conservative while the other three are deemed to be progressive.)
The trial itself resumed on January 31st with testimony from Judge Garzon. On February 1st for the first time in history the court heard testimony from Franco-era victims and their families. Further hearings through early February are anticipated with a decision to follow.
Case Relating to Judge Garzon’s Authorization of Bugging Attorney-Client Communications
In this case Judge Garzon was accused of “prevarication” or “trespass” (knowingly making an improper decision) in February 2009 by approving police wire taps or bugging of attorney-client communications in a corruption investigation involving the political party of a former Spanish Prime Minister.
In the underlying corruption case, Judge Garzon was presented with evidence by the police that three of the men charged with corruption who were in pre-trial detention were continuing to launder money via third parties, including their attorneys, who visited them in prison. Judge Garzon, therefore, granted the police application for tapping these conversations. Subsequently the police edited the transcripts of those conversations to delete the portions about legal strategy for the upcoming criminal trials of the detainees before the transcripts were presented to Judge Garzon. Another judge was prepared to testify about his continuation of the taps with verification by two prosecutors, but this testimony was barred in the case against Judge Garzon.
This went to trial, January 17-19, 2012. We await the decision.
Case of Alleged Bribery of Judge Garzon
In the last of these three criminal cases, Judge Garzon is charged with bribery in his dismissal of a tax fraud case against a top executive of Spain’s Banco Santander. On February 3, 2012, Spain’s Supreme court indicted Garzon on this charge. The trail in this case has not been scheduled.
If there were such bribery, this would be a serious charge against the Judge. But it appears that neither the executive nor the bank paid anything to Judge Garzon personally.
Baltasar Garson @ NYU
Instead, the bank and New York University (NYU) were partners in a Strategic Collaboration on Global Education whereby the bank’s gift of Euros 300,000 to NYU financed selected NYU undergraduates’ foreign study, NYU graduate fellowships in Spanish creative writing, NYU student internships at the bank and NYU’s hosting international visiting faculty (presumably including Judge Garzon, who for nine months in 2005 held NYU’s King Juan Carlos I of Spain Chair and was a Fellow at the NYU School of Law’s Center on Law and Security).
Assuming the latter is a correct summary of the evidence, it is difficult for me to see how this is a valid basis for the criminal charges against Judge Garzon.
Conclusion
As a U.S. lawyer, I find these cases difficult to understand, especially through rough English translations of articles from a major Spanish newspaper, and I plead for comments by those more knowledgeable about Spanish law and procedure to clarify or correct my accounts of these cases.
At least the Franco-era case against the Judge is being tried by seven judges on the Supreme Court of Spain. This is contrary to U.s. practice as justices of the U.S. Supreme Court do not try cases, and almost all trials, criminal and civil, are conducted by a single trial-court judge. This Spanish procedure, therefore, seems strange and made me wonder whether the Judge would have any right to appeal any adverse decision in these cases.
Wikipedia says Spain’s Supreme Court has 74 judicial positions organized into five chambers, one of which is the criminal chamber. Presumably each chamber has 14 or so judges, potentially leaving seven other judges of that chamber to hear any appeal. An article in el Pais, however, said that crimes allegedly committed by individuals with privilege like judges are tried by the Supreme Court’s Criminal Chamber without any appeals.
Thus, I still wonder if Garzon has any right of appeal from an adverse decision. If not, this seems to me to be a denial of what we in the U.S. call due process of law.
Another feature of Spanish law and procedure that is difficult for this U.S. lawyer understand is the ability in Spain of private citizens or groups to act as criminal prosecutors, especially over the objections of public prosecutors. This does not happen in U.S. law with a few exceptions not relevant here.
If a U.S. trail court judge in a position equivalent to Judge Garson commits errors in the conduct of a case, as sometimes happens, the remedy is to seek appellate court review and reversal of the erroneous decisions. In rare instances, it might be appropriate to seek discipline of the judge by the agency that regulates their conduct under rules of judicial ethics. It is difficult, if not impossible, however, to imagine situations in which a U.S. trial court judge would be subject to judicial discipline or criminal sanctions for doing things similar to what Judge Garzon did in the first two of these cases in which he has been charged with crimes.
As I understand these cases, Judge Garson had legitimate legal reasons for doing what he did. He did not make decisions that totally “were off the wall,” to use an American slang phrase. Most significantly, in the Franco-era case, there is abundant international law that amnesties may not immunize people for genocide, crimes against humanity and war crimes (all of which are now well defined in international law). Therefore, Judge Garzon’s conclusion that Spain’s amnesty law did not bar the instigation of the criminal case regarding the Franco-era abuses was supported by law. There certainly are some counter arguments to this legal conclusion, but, in my opinion, they are weak.
I pray that Judge Garzon is acquitted of all of these charges and that he will return to the bench to continue to be an independent jurist who seeks to apply Spanish and international law in an objective and fair manner to crimes of the gravest concern to the international community.
As mentioned in a prior post, on January 19, 2012, two human rights organizations–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 Spanish judges handling three criminal cases against U.S. officials. These allegations were in a complaint the organizations filed with the United Nations Human Rights Council’s Special Rapporteur on the Independence of Judges and Lawyers.
Now we examine the specifics of these allegations. Afterwards we will take a quick look at the role and function of the Special Rapporteur to understand the context in which these accusations are being made.
The Allegations
The complaint to the Special Rapporteur alleges that U.S. officials have breached the right to an independent and impartial judiciary by interfering with the exclusive authority of the Spanish judiciary to determine these cases without restrictions, improper influences, pressures, threats or interference. These actions by U.S. officials allegedly sought to deprive victims of serious crimes, including torture, of the right to an impartial proceeding and the right to redress.
With respect to Spanish officials, it is alleged that they improperly cooperated with the U.S. officials and that the Spanish prosecutors breached their legal duty to act fairly and impartially.
The factual basis for these allegations is a collection of 28 U.S. diplomatic cables from the period July 2004 through May 2009 that subsequently were put into the public record by WikiLeaks. The following, I believe, fairly summarizes the complaint’s account of these cables:
The U.S. officials who were involved in these communications were the U.S. Ambassador to Spain, two Republican U.S. Senators (Judd Gregg of New Hampshire and Mel Martinez of Florida) and U.S. diplomatic staff in Spain.
The Spanish officials who were so involved held various positions in the government’s executive branch, including the Vice President, the Foreign Minister, the Attorney General and the Chief Prosecutor along with lower-level people in the Spanish government.
Very significantly, in my opinion, there is no mention in the complaint of U.S. or Spanish officials’ allegedly communicating directly with the Spanish judges who were involved in these three cases in any way. There is no allegation that the U.S. or Spain threatened the judges or tried to bribe them to halt the cases. Nor is there any claim that the Spanish officials had improper and ex parte communications with the judges.
In many of these communications, the Spanish officials stressed that the Spanish judiciary was independent of the government, and I think that the previous summaries of these three cases demonstrates that independence. The complaint to the Special Rapporteur, however, argues, in my opinion, that these Spanish statements show that all participants were aware that their communications were improper. I do not find this argument persuasive.
The substance of the communications was the U.S. extreme displeasure with the Spanish courts’ processing these cases and the potential adverse consequences for the overall U.S.-Spain relationship from continuation of the cases. The U.S. kept pressing the Spanish officials to try to stop these cases, but the consistent Spanish response was their inability to control that decision because the courts were independent.
Moreover, as we have seen in prior posts, the three cases continue to be processed by the Spanish courts. The cases are not over.
I am not an expert on U.S. or other countries’ diplomatic practices, but these communications are what I would expect to occur when two countries have a problem. Diplomats and other officials for one country express their displeasure with something the other country is doing and try to persuade that other country to change its behavior.
Therefore, although I regard myself as an international human rights advocate and want these cases against U.S. officials to proceed on the merits and although I have great respect for the two human rights organization pressing this complaint, I am not persuaded there was improper conduct by the U.S. or Spain as alleged in the complaint. Here especially I invite comments indicating I may have missed or misinterpreted some of these diplomatic cables or their significance for this complaint to the Special Rapporteur.
In a subsequent post I will discuss the Spanish criminal charges now pending against Judge Baltasar Garzon, who was a judge in two of these cases against U.S. officials and whether the charges against the Judge are related to the alleged U.S. and Spanish improper attempts to interfere with the Spanish judiciary.
The Special Rapporteur on the Independence of Judges and Lawyers
In 1994 the U.N. Commission on Human Rights created this position after it noted “the increasing frequency of attacks on the independence of judges, lawyers and court officials and the link which exists between the weakening of safeguards for the judiciary and lawyers and the gravity and frequency of violations of human rights.” The initial period for this position was three years, but it has been extended by the Commission and since 2006 by its successor, the U.N. Human Rights Council.
This Special Rapporteur, among other duties, is required to “inquire into any substantial allegations transmitted to him or her and to report his or her conclusions and recommendations thereon.”
This Special Rapporteur is one example of the 33 thematic mandates of the Human Rights Council. They constitute one way that the Council seeks “to examine, monitor, advise and publicly report on . . . major phenomena of human rights violations worldwide.”
The term “rapporteur,” by the way, is a French term that is used in international and European legal and political contexts to refer to a person appointed by a deliberative body to investigate an issue or a situation.
Conclusion
The complaint to the Special Rapporteur and the Spanish criminal cases against U.S. officials and against Judge Garzon are important unfinished matters. We all should make special efforts to stay abreast of further developments, especially since the U.S. media does not provide persistent coverage of these matters.
Spain’s National Court (Audiencia Nacional), as mentioned in a prior post, has three criminal cases on its docket involving allegations of illegal conduct by U.S. officials with respect to U.S. interrogation of foreigners and war crimes. The Spanish court is involved because it has exercised its right under the international law principle of universal jurisdiction for a national court to exercise jurisdiction over such cases even if the crimes did not occur on its territory. We now look at the third of these three cases.
In May 2003, the mother (Maria Isabel Permuy Lopez) and other family members filed a criminal complaint with the Central Criminal Court for Preliminary Criminal Proceedings No. 1 at the Audiencia Nacional in Madrid. The subject of the case is the April 8, 2003, killing of her son, Jose Couso Permuy, who was a cameraman for a Spanish television station, in Baghdad, Iraq by a shell fired by a U.S. tank. The defendants are three U.S. infantrymen involved in the shelling.
On October 19, 2005, Judge Santiago Pedraz opened a preliminary investigation in light of the failure of the U.S. to provide responses to the Spanish court’s requests for information. The Judge also issued three international arrest warrants for the three U.S. infantrymen on charges of murder and war crimes.
On March 10, 2006, the case was closed by the Criminal Division of the National Court, but nine months later (December 2006), the Spanish Supreme Court reversed the dismissal.
Judge Pedraz in January 2007 reactivated the three arrest warrants and requested a freeze on the defendants’ assets. He also asked the U.S. to provide contact information for the defendants for an INTERPOL Red Notice, but the U.S. Ambassador to Spain advised the Spanish Attorney General that the U.S. would not respond to the request.
The next round was the April 2007 indictment of the defendants by Judge Pedraz for aggravated murder and crimes against the international community by attacking journalists. However, in May 2008, this was reversed by the Criminal Division of the National Court on an appeal by the National Court Chief Prosecutor.
The case, however, was not yet over. In May 2009 on the basis of new evidence Judge Pedraz issued new indictments for murder, crimes against humanity and violations of the Geneva Conventions. There also was another indictment in November 2011.
In summary, this case is still pending.
Collaterally the Couso family has asked the Spanish government for an investigation of the integrity of the Spanish criminal investigation of this case following the WikiLeaks release of certain U.S. diplomatic cables. This request has faced procedural problems and has not reached a final conclusion.
Spain’s National Court (Audiencia Nacional) has three criminal cases on its docket involving allegations of illegal conduct by U.S. officials with respect to U.S. interrogation of foreigners and war crimes. The Spanish court is involved because it has exercised its right under the international law principle of universal jurisdiction for a national court to exercise jurisdiction over such cases even if the crimes did not occur on its territory.
On March 17, 2009, the Spanish Association for the Dignity of Prisoners filed a 98-page criminal complaint in the Spanish court against six officials of the George W. Bush Administration: (i) David Addington (former Counsel to, and Chief of Staff for, former U.S. Vice President Cheney); (ii) Jay S. Bybee (former Assistant Attorney General, Office of Legal Counsel (OLC), U.S. Department of Justice (DOJ)); (iii) Douglas Feith (former Under Secretary of Defense for Policy, U.S. Department of Defense (DOD)); (iv) Alberto R. Gonzales (former Counsel to former U.S. President George W. Bush, and former U.S. Attorney General); (v) William J. Haynes (former General Counsel, DOD); and (vi) John Yoo (former Deputy Assistant Attorney General, OLC, DOJ).
The six officials are alleged to have participated in, or aided and abetted, the torture and other serious abuse of persons detained at U.S. run-facilities at Guantánamo and other overseas locations, all in violation of international law, including violations of the Geneva Conventions and the Convention Against Torture.
On March 28, 2009, Judge Baltasar Garzon decided that the complaint met jurisdictional requirements and opened a preliminary investigation.
On April 16, 2009, Spain’s Attorney General raised objections to the continuance of the case, and the next day, Spain’s Public Prosecutor filed a request that the complaint be dismissed and responsibility for investigating the matter be referred to a different judge. The latter was done on April 23rd with Judge Eloy Velasco being assigned.
On May 4, 2009, Judge Velasco, pursuant to the US-Spain Treaty on Mutual Assistance in Criminal Matters, sent a formal request (Letters Rogatory) to the U.S. asking it to state “whether the facts to which the complaint makes reference are or not now being investigated or prosecuted.” If there had been an affirmative response to this question, the Spanish court undoubtedly would have closed its investigation.
Nearly two years later, on March 4, 2011, the U.S. finally responded to the Letters Rogatory. It stated that the U.S. had clear jurisdiction over the case and asking that the case be sent to the U.S. for further review and investigation.
On April 13, 2011, Judge Velasco temporarily stayed the case in Spain and transferred the case to the U.S. Department of Justice with a request for the U.S. to indicate the time frame for U.S. action on the complaint.
On April 19, 2011, the Spanish Association for the Dignity of Prisoners filed an appeal of Judge Velasco’s order staying the case. That appeal is still pending.
In summary, the case is still pending in Spain with unresolved issues.
In the meantime, the body responsible for monitoring compliance with the multilateral treaty against torture (the Committee Against Torture or CAT) has severely criticized U.S. treatment of detainees in the so-called “war on terrorism” and the U.S. purported legal justification of such treatment through so-called “enhanced interrogation” techniques.
As set forth in a prior post, Spain has implemented the principle of universal jurisdiction in three pending criminal cases against certain U.S. officials for their alleged involvement in torture. When reviewing these three cases, the reader needs to be aware that under Spanish law, unlike U.S. law, ordinary citizens and NGO’s may initiate criminal cases as a popular prosecutor by filing a criminal case with the court, as was done in all three of these cases.
The first of these cases against U.S. officials 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.”
Audiencia Nacional
This case began on April 27, 2009, when Judge Garzon at the Audiencia Nacional initiated a preliminary investigation of U.S. interrogation and treatment of four former detainees at Guantanamo, all of whom had been acquitted of Spanish criminal charges because of their having been tortured and subject to other abuses while at that facility. This decision did not name potential defendants and instead indicated it was directed at “possible material and instigating perpetrators, necessary collaborators and accomplices.” These facts, said the court, amounted to violations of the Geneva Conventions and the Convention Against Torture.
On May 15, 2009, Judge Garzon issued a formal request (Letters Rogatory) to the U.S. and the U.K. asking whether there were any criminal investigations regarding the treatment of these four men. Neither country responded. If there had been such investigations in the U.S. or the U.K., then the Spanish court would not proceed.
On January 27, 2010, Judge Garzon determined that the court had jurisdiction over the case because two of the men were a Spanish citizen or resident and because the violations constituted crimes against humanity as well as violations of multilateral human rights treaties to which the U.S. was a party.
In May 2010 Judge Garzon was suspended from judicial service and removed from this case after a criminal case had been brought against him for initiating a criminal case regarding atrocities of the Spanish Civil War and the Franco regime. Judge Pablo Rafael Ruz Guitierrez took over the handling of this case.
On April 6, 2011, an appellate court (the Plenary of the Criminal Division of the Audiencia Nacional) affirmed that the Spanish courts were competent to hear this complaint while dismissing an appeal by the Public Prosecutor’s Office that had requested dismissal.
On January 12, 2012, Judge Ruz issued a decision noting that the court had not received any responses to the letters rogatory to the U.S. and U.K. and affirming that the Spanish court had jurisdiction over the case.
In summary, the case is still pending and is not yet resolved.
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]
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[1] The issue of judicial independence under international law is currently being litigated in a case against Ecuador.
Under customary international law, a nation state’s courts have jurisdiction over crimes where there is some link, usually territorial, between that state and the crime. In addition, under customary international law and certain treaties, a state has universal jurisdiction 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.[1]
Amnesty International recently released a comprehensive review of domestic statutes regarding criminal jurisdiction in the 193 members of the United Nations. It found that 75% of the members provided for universal jurisdiction over one or more of the above crimes. Yet there are many obstacles to effective use of these jurisdictional statutes. States often incorporate incomplete or incorrect definitions of such crimes into their domestic codes. Another obstacle is incorporation of defenses that are inconsistent with the international law for these crimes: following superior orders; statutes of limitation; amnesty laws; pardons; and immunities.[2]
On the other hand, this study found only 19 states have actually invoked universal jurisdiction since World War II. They are Argentina, Austria, Australia, Belgium, Canada, Denmark, Finland, France, Germany, Israel, Netherlands, Norway, Paraguay, Senegal, Spain, Sweden, Switzerland, the United Kingdom and the U.S.[3]
As we have seen, one of these 19 states–Spain–currently is invoking its domestic statute that implements the principle of universal jurisdiction for its criminal prosecution of former Salvadoran military officers for the November 1989 murders of the six Jesuit priests and their cook and her daughter at the Universidad de Centro America in San Salvador.[4] Spain’s statute provides that its National Court (La Audiencia Nacional) has universal jurisdiction for war crimes, genocide, crimes against humanity and torture.[5]
In 2009 Spain adopted an amendment that added the following conditions or limitations on such jurisdiction: (1) the alleged perpetrators are in Spain; or (2) the victims are of Spanish nationality; or (3) there is another connecting link to Spain. In addition, the 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 is 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.[6]
This amendment has been seen by some as a significant and regrettable limitation on universal jurisdiction in Spain.[7] In my opinion, however, the amendment is a reaffirmation of Spain’s implementation of such jurisdiction, and the limitations are reasonable to make efficient use of Spanish judicial resources. Moreover, the subsidiary principle is similar to the International Criminal Court’s notion of complementarity whereby the ICC does not take a criminal case if there is a good faith criminal investigation or prosecution in a national court system or a good faith decision by a state not to prosecute.[8] The same considerations find expression in the U.S. notions of comity or forum non conveniens whereby a civil case in an U.S. court is stayed or dismissed if it makes more sense for the case to be litigated in another country.
[1] David Weissbrodt, Fionnuala Ní Aoláin, Joan Fitzpatrick, and Frank Newman, International Human Rights: Law, Policy and Process, at 572-86 (4th ed. 2009); Princeton Project on Universal Jurisdiction, Princeton Principles on Universal Jurisdiction (2001). Especially noteworthy is a blog exclusively devoted to universal jurisdiction: http://ergaomnesnet.wordpress.net.
[2] Amnesty Int’l, Universal Jurisdiction: A Preliminary Survey of Legislation Around the World (Oct. 2001 [“AI Study”]; van Schaack, Amnesty International Universal Jurisdiction Study, IntLawGrlls (Nov. 30, 2011).
[4] Post: International Criminal Justice: Spanish Court’s Case Regarding the Salvadoran Murders of the Jesuit Priests (Aug. 26, 2011); Post: International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests (May 31, 2011); Post: International Criminal Justice: Developments in Spanish Court’s Case Regarding the Salvadoran Murders of the Jesuit Priests (Aug. 26, 2001); Post: Spain Requests Extradition of Suspects in Jesuits Case (Dec. 3, 2011).
[5] AI Study at 105; Human Rights Watch, Universal Jurisdiction in Europe, ch. XII (June 27, 2006). The Criminal Division of the Spanish National Court in Madrid has six chambers. An instructing (or investigative) judge presides over each chamber. Once an instructing judge accepts a criminal case, that judge initiates an investigation. After the completion of the investigation, the instructing judge closes the case and transfers it within the court to a panel usually of three judges who will preside over the trial or “oral phase” of the case. Such criminal cases are commenced by ordinary citizens filing a criminal complaint. If a victim files the complaint directly with an instructing judge, then the victim becomes a party to the case for further proceedings. This is known as a private prosecution (acusacion particular). (Center for Justice & Accountability, The Spanish National Court: An Overview of La Audiencia Nacional, http://www.cja.org/article.php?id=342&printsafe=1.)
[6] Spain, Government Gazette No. 266, Law I/2009, First Article (Nov. 4, 2009) (amendment to Article 23.4 of Organic Law 6/1985) (Google English translation); Burnett & Simons, Push in Spain to Limit Reach of the Court, N.Y. Times (May 20, 2009); Burnett, Spain Votes on Changes to Inquiry Law, N.Y. Times, (June 26, 2009); Assoc. Press, Spain Shortens Long Arm of Justice, N.Y. Times (Oct. 15, 2009).
[7] Center for Justice & Accountability, Bill Restricting Spain’s Universal Jurisdiction Law Passes First Round of Voting, http://cja.org/article.php?id=666 (circa June 25, 2009); Human Rights Watch, The world needs Spain’s universal jurisdiction law (June 27, 2009).
[8] Post: International Criminal Court: Introduction (April 28, 2011).
The National Court of Spain is processing a criminal case against 20 former Salvador military officers for the November 1989 murders of six Jesuit priests and their cook and her daughter.[1]
On December 2nd the Spanish Government approved the request of Spanish Judge Eloy Velasco to issue requests for extradition of 15 of the men charged in this case.[2]
The government of El Salvador will receive 13 of the requests. Whether or not to grant the request will be a matter for the country’s Supreme Court. A Salvadoran defense attorney says that there will be no extradition because El Salvador already tried a criminal case involving this crime.[3]
The government of the U.S. will receive the other two requests. One will be for extradition of Inocente Orlando Montano, who is living in Massachusetts, has denied the Spanish charges. In the federal court in Boston he is now facing criminal charges of perjury and making false statements on U.S. immigration forms. The other will be for Hector Ulises Cuenca Ocampo, who is believed to be living in California.[4]
Five other former Salvadoran military officers are facing criminal charges in the Spanish case. One is reported to be cooperating with the Spanish court; another is said to be willing to do so; two have not been located; and the last is deceased (General Rene Emilio Ponce).[5]
[1] Post: International Criminal Justice: Spanish Court’s Case Regarding the Salvadoran Murders of the Jesuit Priests (June 15, 2011); Post: International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests (May 31, 2011); Post: International Criminal Justice: Developments in Spanish Court’s Case Regarding the Salvadoran Murders of the Jesuit Priests (Aug. 26, 2011).
[2] Assoc. Press, Spain Asks U.S. and El Salvador to Extradite Murder Suspects, N.Y. Times (Dec. 3, 2011).
[3] Guzman, Court awaiting extradition request, lapagina.com.sv (Dec. 2, 2011(Google English translation);Guzman, The extradition of former soldiers to Spain will never give, according to defense, lapagina.com.sv (Dec. 2, 2011(Google English translation).
[4]EUA also asked to send, laprensagrifica.com (Dec. 3, 2011)( Google English translation); Immigration fraud, a former soldier Montano faces 5 years in prison, lapagina.com.sv (Nov. 30, 2011)( Google English translation); Salvadoran ex-officer faces Mass. Perjury charge, http://www.boston.com (Nov. 29, 2011); Criminal Complaint, U.S. v. Montano, Case No. 11m-5193-I6D (D. Mass. Aug. 22, 2011).
[5] Lemus, Spain calls on El Salvador extradition of military slaughter processed by Jesuit, http://www.elfaro.net/es (Dec. 2, 2011)( Google English translation);The judge asked the government to claim 13 soldiers for the killing of Jesuit, http://www.elmundo.es (Nov. 8, 2011) (Google English translation).
On September 8th the ICC Prosecutor announced that he is requesting INTERPOL to issue a “Red Notice” to arrest Muammar Gaddafi for the alleged crimes against humanity of murder and persecution that have been charged by the ICC. The Prosecutor also is seeking such Red Notices for the other two Libyans facing ICC charges.[1] On September 9th INTERPOL isssued these Red Notices. (Nordland, INTERPOL Issues Qaddafi Arrest Warrant as More Libyan Officials Flee, N.Y. Times (Sept. 9, 2001).)
The ICC Press Release says that an “INTERPOL Red Notice seeks the provisional arrest of a wanted person with a view to extradition or surrender to an international court based on an arrest warrant or court decision.” Such notices go to all 188 countries that are members of INTERPOL.
This statement also stands as an implicit rebuke to the recent erroneous decision of El Salvador’s Supreme Court that a Red Notice only called for information about the location of individuals named in such notices, not their arrests.[2]
In another ICC development, on August 30, 2011, the Philippines deposited its instrument of ratification of the Rome Statute with the U.N. Secretary General. It will become the 117th State Party to the Statute.[3]
[1] ICC Press Release, ICC Prosecutor Requesting INTERPOL Red Notice for Gaddafi (Sept. 8, 2011). See Post: International Criminal Court and the Obama Administration (May 13, 2011); Post: International Criminal Court: Libya Investigation Status (May 8, 2011); Post: International Criminal Court: Three Libyan Arrest Warrants Sought (May 16, 2011); Post: International Criminal Court: Issuance of Libyan Arrest Warrants and Other Developments (June 27, 2011); Post: International Criminal Justice: Libya, Sudan, Rwanda and Serbia Developments (July 4, 2011); Post: International Criminal Court: Possible Arrests of Three Libyan Suspects (Aug. 22, 2011).
[2] Post: International Criminal Justice: Developments in Spanish Court’s Case Regarding the Salvadoran Murders of the Jesuit Priests (Aug. 26, 2011); Comment [to that Post]: Salvadoran Supreme Court’s Decision on INTERPOL RED NOTICE Was Erroneous (Aug. 28, 2011).
[3] ICC Press Release, The Philippines becomes the 117th State to join the Rome Statute system (Aug. 30, 2011).
