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.

 

 

 

Continued Bad News about U.S. Policies Regarding Cuba

Bad news about U.S. policies regarding Cuba continues to accumulate. The U.S. refuses to budge from outdated hostility towards the island nation when the U.S., in my opinion, should be pursuing reconciliation with Cuba. One glimmer of hope for rationality on this subject was provided by William M. LeoGrande and Peter Kornbluh in The Nation magazine.

Bad News

First, on September 5, 2014, President Obama issued a terse memorandum to the U.S. Secretary of State to extend for another year or through September 14, 2015, the application of the U.S. Trading with the Enemy Act to Cuba for another year. This statute, which was enacted during World War I in 1917, gives the President authority to prohibit, limit or regulate trade with hostile countries in times of war. It is a statutory foundation on which the entire range of U.S. sanctions toward Cuba rests. In a statement for the Secretaries of State and of the Treasury, Obama labeled the move “in the national interests of the United States” without any explanation.

On September 8th  Cuba denounced this decision. Cuba said the main goal of the embargo or blockade is to cause “harm and suffering” to the Cuban people” despite the embargo’s having been denounced by the U.N. General Assembly on 22 consecutive occasions since 1992.

Second, as anticipated Cuba has announced that on October 28th it will offer at the U.N. General Assembly a new resolution on the need to end the U.S. blockade against Cuba. A Cuban report in support of the resolution stresses the blockade has been described as a genocidal policy by the international community since it prevents the island from acquiring medicines, reagents, spare pieces for medical equipment and other inputs, forcing it to trade with distant markets, thus increasing the costs. The Cuban report also alleges that the embargo/blockade has caused $116.8 billion of damages to the island’s economy.

Once again, this resolution is expected to be overwhelming approved by the General Assembly.

Third, there was good news that Latin American leaders are insisting that Cuban representatives be present at the next Summit of the Americas in Panama in April 2015. Last month the Panamanian Foreign Minister visited Havana to issue such an invitation personally to Cuban President Raúl Castro. Such an invitation is supported by other Latin American countries. As Uruguay’s Foreign Minister, Luis Almago, recently said, “The Latin American countries without exception formulated in the last Summit held in Cartagena that Cuba should be part of the 2015 Summit. Panamá has welcomed this desire and I believe that the invitation sent to Cuba is good news for the inter-American family.”

The U.S., however, is opposed to Cuban attendance. A State Department representative recently made the following rather innocuous comment on the subject:

  • “Panama is the host country for the summit, and as the host country they will make the decisions on invitations to that summit.  I think the invitations in a formal sense have not yet been made. . . [We] have said from the start that we look forward to a summit that can include a democratic Cuba at the table.  We also have said that the summit process, ever since Quebec in 2001, has made a commitment to democracy, and we think that’s an important part of the summit process.  But the decision about invitations is not ours to make, and obviously there’s been no invitations formally issued to the United States and other countries.  And so there is no acceptance or rejection yet called for or made.”

More vigorous opposition was expressed by U.S. Senator Robert Menendez, a Cuban-American and the Chairman of the Senate Foreign Relations Committee. In a letter to the Panamanian President, Menendez expressed “dismay” over Panama’s intended invitation. According to Menendez, “Cuba’s participation would undermine the spirit and authority of the Summit of the Americas as a space to reaffirm the principles enshrined on the Charter of the United Nations, the Charter of the Organization of American States, and the Inter-American Democratic Charter, as well as commitments made at past Summits.”

After railing against Cuba as “the hemisphere’s most enduring dictatorship,” Menendez concluded his letter by saying such an invitation “sends the wrong message about the consolidation of democracy in the Americas, will dramatically weaken the democratic credentials of the premier meeting of heads of state in the hemisphere, and ultimately will undermine the validity of the Summits’ declarations.” This proclamation was coupled with perhaps an implied threat of adverse consequences for Panama from the U.S. should Panama proceed with the invitation; Menendez said, “I remain committed to strengthening the partnership between the U.S. and Panama.”[1]

Fourth, Alan Gross, a U.S. citizen, remains in poor health in a Cuban prison after his conviction for violating Cuban laws. In my opinion, it clearly is in the interest of both Cuba and the U.S.to have him released from that prison and returned to the U.S. before he dies and thereby creates another obstacle to improving relations between the two countries. Cuba, however, by all reports is trying to negotiate an exchange of Gross for at one or more of the three remaining “Cuban Five” in U.S. prison.

Frank Calzon, the Executive Director of the Center for a Free Cuba, however, has issued what, in my opinion, is a counterproductive suggestion. He says, “There . . . comes a time when something more [than negotiating through diplomatic channels] is needed. That time is now in Cuba. Only when U.S. government raises the stakes — the political and economic risks facing Cuba — will Alan Gross be allowed to come home, and only then will Havana have to think twice before taking another hostage.

Fifth, in 1976 then U.S. Secretary of State Henry Kissinger in the Gerald Ford Administration was in charge of a top-secret group of senior officials that developed plans to conduct, after the 1976 presidential election, air strikes on Cuban ports and military installations and to send Marine battalions to the United States Navy base at Guantánamo Bay to “clobber” the Cubans. The plan also included proposals for a military blockade of Cuba’s shores. Fortunately with Jimmy Carter’s victory in the 1976 election, this plan never was implemented,

Kissinger instigated this planning because he personally was infuriated that Fidel Castro in late 1975 had sent Cuban troops to newly independent Angola to help in its repelling attacks from South Africa and right-wing guerrillas and thereby ignored Kissinger’s behind-the-scenes effort to improve U.S. relations with Cuba.

These revelations are in documents, now available online, that recently were declassified by the Gerald R. Ford Presidential Library.

Glimmer of Hope

BackChannel book

William M. LeoGrande (Professor of Government at American University’s School of Public Affairs) and Peter Kornbluh (Director of the National Security Archive’s Cuba and Chile Documentation Projects) have published a new book, Backchannel to Cuba: The Hidden History of Negotiations Between Washington and Havana, which I want to read. [2] This book forms the basis for their recent article in The Nation magazine, Six Lessons for Obama on How to Improve Relations with Cuba. Here are those lessons.

  • Even at moments of intense hostility, there have always been reasons and opportunities for dialogue.
  • Cuban leaders instinctively resist making concessions to US demands, but they are willing to take steps responsive to US concerns so long as those steps come at Havana’s initiative.
  • Cuban leaders have had a hard time distinguishing between U.S. gestures and concessions.
  • An incremental approach to normalizing relations has not worked. It is slow and easily disrupted by other events. “Incremental steps do not fundamentally change the relations and, therefore are easily reversed.” Every incremental step gives U.S. opponents of reconciliation the opportunity to obstruct the process. Instead, the “alternative is a bold stroke that fundamentally changes the relationship (even if it doesn’t resolve every issue) and leaves opponents facing a fait accompli. Nixon’s trip to China is the paradigmatic example.”
  • Domestic politics is always an issue on both sides.
  • Cuba wants to be treated as an equal, with respect for its national sovereignty.

 Conclusion

Although I do not have the depth of knowledge of LeoGrande and Kornbluh I endorse their lessons as should be evident from this blog’s many posts on the subject of U.S.-Cuba relations.

Perhaps the bold stroke they mention as the way towards improved relations could be made by a third party—another country or an international organization or a nongovernmental organization—stepping forward with a public announcement of a desire and commitment to serve as a mediator to resolve the many issues between the two countries and inviting them to send representatives at a set time and place to discuss the procedures for such a mediation. Such an initiative, in my judgment, to have any chance of success would have to be by an entity that was neutral, that was respected by both sides and the world at large, that had the resources to be engaged in such a process for a long time and that would not be discouraged by any initial negative responses by either country. This blog made such a suggestion in 2011 and 2012.

Such a mediation would remove the desire of at least the U.S. to avoid taking the first step toward normalization. It also, in my opinion, would be in the national interest of both countries.

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[1] A rebuttal to the Menendez letter was issued by the Center for Democracy in the Americas.

[2] LeoGrande and Kornbluh have been interviewed about the book.