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The Swan Song of Universal Jurisdiction in Spain

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The Swan Song of Universal Jurisdiction in Spain International Criminal Law Review International Criminal Law Review 9 (2009) 777–808 brill.nl/icla Th e Swan Song of Universal Jurisdiction in Spain Ignacio de la Rasilla del Moral* Visiting “Global Governance, Law and Social Th ought” Fellow Th e Watson Institute for International Studies, Brown University, Providence, RI, USA Abstract On 29 April 2009 the Spanish National Court opened a cause against the “perpetrators, the instigators, the necessary collaborators and accomplices” of alleged tortures at the Guantanamo camp and other overseas detention facilities. Before examining how these and other causes currently opened in Spain under the principle of universal jurisdiction enshrined by Art. 23.4 of the Organic Law of the Judicial Branch (LOPJ) are likely to be aff ected by the legislative reform of that very provision approved by the Spanish Congress of Deputies on 25 June 2009, we will fi rst examine the sinuous - and now dramatically indicative in retrospect - jurispruden- tial evolution of the treatment of the principle of universal justice by Spanish Courts since the Constitutional Court enshrined a doctrine of unconditional universal jurisdiction in its widely celebrated Guatemala Genocide case in June 2005. Th is is complemented by an overview of the cases that, jurisdictionally based on the principle of universal justice enshrined by Article 23 of the LOPJ, are still currently open (from e.g., Tibet to Rwanda or Gaza) before Spanish Courts. In addition, set against the background provided by the release of the four so-called “torture memos” by the Obama Administration in April 2009, there is a brief examination of the pos- sibilities of jurisdictional prosecution of both the perpetrators and those who formulated the legal guidance authorizing the “enhanced interrogators techniques” in both the U.S. domestic law system and international legal jurisdictional settings, including at the ICJ level. Eventually, an examination of the hasty procedure through which the new relevant Spanish provision in this area has been adopted and the legal eff ects, with reference to cases currently opened before the Spanish courts, of the newly reformed article give place to a brief refl ection on the pros- pects of international law in the age of an emerging new international judiciary in view of the structural defi cit of mechanisms of participatory democracy on the domestic plane with rele- vance in the international realm as dramatically epitomized at this juncture by the Spanish legal system. Keywords universal justice ; Guantanamo; Spain; torture; democracy Omnes vulnerant, ultima necat * ) Ph.D. cand. in international law, Th e Graduate Institute of International and Development Studies, Geneva. Research Associate, Philosophy of Law Department, Seville University Pablo PURL: https://www.legal-tools.org/doc/65afb8/ Olavide of Seville. Visiting Researcher, Institute for Global Law and Policy, Harvard Law School, and Associate, Real Colegio Complutense in Harvard. Th e present work was updated until 26 July 2009. To the humanist goodwill of Bella. © Koninklijke Brill NV, Leiden, 2009 DOI 10.1163/156753609X12507729201354 Electronic copy available at: http://ssrn.com/abstract=1589677 778 De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808 1. Chronicle of an Announced Death? Constitutional Court v. Supreme Court In its Judgment 237/2005 of 26 September 2005 1 in the so-called Guatemala Generals case, also known as Menchú Tum et al. v. Moutt et al ., on the basis of the constitutional interpretative powers to it conferred by Art. 53 of the Spanish Constitution (CE) to contest the constitutionality of decisions for violation of human rights, the Spanish Constitutional Court expanded the so far prevailing judicial interpretation of the scope of the principle of universal jurisdiction in the Spanish legal system. In revoking the Supreme Court’s Judgment 327/2003 of 25 February 2003 2 on the grounds of its breach of the right to access to justice enshrined in Art.24.1 (CE), the Constitutional Court reversed the earlier judicial doctrine based on the interpretation of Article 23.4 of the 1985 Organic Law of the Judicial Branch (LOPJ) that required the existence of a number of points of connection for Spanish Courts to prosecute acts committed in third countries. Th ese judge-created nexuses or points of connection included the principle of jurisdiction over criminal conduct com- mitted against one’s citizens, the presence in Spanish territory of the alleged perpetrator and the need for “a point of connection with national interests” which is a requirement that overlaps, as the Constitutional Court had the occasion to recall in its motivated dismissal, with the scope of Art. 23.3 LOPJ that establishes the Spanish court’s jurisdiction for the protection of states’ “essential interests”. In standing against all these jurisdictional restrictions to the principle pro actione, that impedes any interpretation or implementation of the law which would set unjustifi ed limitations on the right to judicial pro- tection, the Constitutional Court admitted the appeal for protection (recurso de amparo) thus overturning the STS 327/2003 of 25 February 2003 despite the partial allowance of the grounds for cassation contained in it. Th e latter, in turn, had partially overruled the even more restrictive interpretation contained in the Order of 13 th December 2000 where the National Court had declined its jurisdiction to investigate the original complaint fi led with it in December 1 ) Spanish Constitutional Court Judgment 237/2005 of September 26, 2005 Findings of Law d.7. accessible in English at the website of the Spanish Constitutional Court at http://www .tribunalconstitucional.es/jurisprudencia/Stc_ing/STC2007-237-2005.html (last visited 5th May 2009) See for a detailed analysis in Spanish, J. Santos Vara, “La jurisdicción de los tribunales espa- ñoles para enjuiciar los crímenes cometidos en Guatemala” 11 Revista Electrónica de Estudios Internacionales 1 (2006), pp. 1- 21. See for a detailed analysis in English, H. Ascensio “Th e Spanish Constitutional Tribunal’s Decision in Guatemalan Generals” 4 Journal of International Criminal PURL: https://www.legal-tools.org/doc/65afb8/ Justice (2006), pp. 586-594; N. Roth-Arriaza, “Guatemala Genocide Case. Judgment No.STC 237/2005” 100 American Journal of International Law (2006), pp. 207-213. 2 ) Tribunal Supremo Sala II de lo Penal. Sentencia 327/2003, de 25 de febrero. Accessible in Spanish at http://sentencias.juridicas.com/docs/00184214.html (last visited 5th May 2009) Electronic copy available at: http://ssrn.com/abstract=1589677 De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808 779 1999. 3 Th e Constitutional Court did so by stressing the “absolute character” of the principle of universal jurisdiction enshrined in Art. 23.4 LOPJ, as mod- ifi ed by the 11/1999 Organic Law of 30 April 1999, the 3/2005 Organic Law of 8 July 2005 and later on by 13/2007 Organic Law of 19 November 2007 in starkly adamant terms: We must affi rm that this radically restrictive interpretation of the principle of universal juris- diction set forth in Art.23.4 LOPJ, which would be better described as a teleological reduction (since it surpasses the grammatical sense of the precept), exceeds the limits of what is consti- tutionally admissible from the perspective of the framework of the right to eff ective protection of the courts guaranteed in Art. 24.1 CE, to the extent that it implies a contra legem reduction based on corrective criteria that cannot even implicitly be considered as being present in the law and which, moreover is contrary to the purpose on which the institution is inspired, alter- ing the principle of universal jurisdiction to the point of its being unrecognizable as it is con- ceived in international law, and having the eff ect of reducing the scope of the application of the precept to the point of constituting a de facto repeal of Art. 23.4 LOPJ. 4 Th e proceedings for crimes committed by military governments between 1978 and 1986 against the Mayan population presently continues on its course once it was sent back in reinstating the claims in their entirety to the Spanish National Court. 5 While this was not the fi rst case in which the Spanish Constitutional Court had pronounced on the principle of universal jurisdiction, 6 the Guatemala genocide case 7 stands as a jurisprudential bedrock in the sinuous path of the enshrinement of the principle of universal justice both in Spain and in an inter- national legal comparative realm where not few backlashes to its evolving path had occurred. Th e Spanish one is far from being the only domestic legal system engaged in the vexata quaestio 8 of the extraterritorial exercise of its criminal juris- diction, 9 a subject matter that has also occupied the International Court of Justice 3 ) Th e presence of victims of Spanish nationality in two events had led the Supreme Court by a narrow majority of an 8-7 vote, to affi rm its jurisdiction with respect to only those events, while dismissing all the charges brought against non Spaniards, vid. Spanish Constitutional Court Judgment 237/2005 of September 26, 2005 Findings of Law d.7. available in English online the website of the Spanish Constitutional Court at http://www.tribunalconstitucional.es/jurispruden- cia/Stc_ing/STC2007-237-2005.html (last visited 5th May 2009) 4 ) Ibid. 5 ) On the ulterior evolution of the case see briefl y N. Roht-Arriaza and A. Bernabeu , “Th e Guatemalan Genocide Case” Center for Latin American Studies , U.C. Berkeley (2008) available online at http://clas.berkeley.edu/Publications/articles/fall2008/other/BRLAS-Fall2008-Bernabeu. pdf (last visited 6 May 2009) 6 ) See Constitutional Court, judgment of 10 February 1997, no. 21/1997, at FJ no.
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