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 - jurisprudential 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 possibilities 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.

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 20051 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 committed 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 protection, 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 Justice (2006), pp. 586-594; N. Roth-Arriaza, “Guatemala Genocide Case. Judgment No.STC 237/2005” 100 American Journal of International Law (2006), pp. PURL:207-213. https://www.legal-tools.org/doc/65afb8/ 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 jurisdiction 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 constitutionally 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 conceived 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 case7 stands as a jurisprudential bedrock in the sinuous path of the enshrinement of the principle of universal justice both in Spain and in an international 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 quaestio8 of the extraterritorial exercise of its criminal jurisdiction,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/jurisprudencia/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. 3 (case of forced boarding on the high sea against a Panamanian ship). Constitutional Court, judgment of 27 March 2000, no. 87/2000, FJ no. 4 (Italian request of extradition against a Spanish citizen for drug- traffi cking) referred by the Judgment 237/2005 of 26 September 2005, FJ. no. 3. 7 ) N. Roth-Arriaza, supra note 1. PURL: https://www.legal-tools.org/doc/65afb8/ 8 ) Santos Vara, supra note 1, at 1. 9 ) Roth-Arriaza, supra note 1 at 207. 780 De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808 in the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium ) 10 case, and continues to do so in the pending Certain Criminal Proceedings in France (Republic of the Congo v. France )11 and Questions Related to the Obligation to Prosecute or Extradite (Belgium v. Senegal ). 12 Yet, the progressive character of the Spanish model of “unconditional universal jurisdiction”13 has made it to be doc- trinally qualifi ed as “one of the most far-reaching in the world”14 as well as “one of the world’s most welcoming forums for cases based on universal jurisdiction over certain international crimes”.15 According to the Spanish Constitutional doctrine, only the res iudicata clause contained in Art. 23.2 C) LOPJ, as established by art. 23.5 LOPJ, restricts, at present, the full extraterritorial swing of the Spanish jurisdictional system approach to the judicial enforcement of the shared interests of the international community of states as a whole in a legal domain where the foundation of the principle of universal jurisdiction is presented as solely based on the nature of the crime. Despite the binding pre-eminence of the judgments of the Spanish Con- stitutional Court for all tribunals and judges, the absolute character of the principle of universal justice has, however, far from been undisputed in the ulterior case law involving Art. 23. 4 LOPJ at both the Supreme Court and the National Court’s levels. While formally respectful of the hierarchical supremacy of the constitutional doctrine in conformity with Art. 5.1 LOPJ, a number of judgments have attempted to restrain the scope of the Guatemala doctrine by challenging it on diff erent grounds. Th e most notorious example of this challenging practice is provided by the Supreme Court’s Judgment of 645/2006 of 20th June 2006 rendered on the Falun Gong case. In this judgment, the Supreme Court declared itself jurisdictionally competent, in conformity with the Guatemala doctrine that was recalled at the occasion as “the interpretation according to which Article 23.4 LOPJ must be interpreted without taking into consideration any possible articulation of this principle (the extraterritorial extension of the Spanish jurisdiction) with others of the legal system”.16 It did so following a complaint

10) International Court of Justice. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Judgment of 14 February 2002. 11) International Court of Justice. Certain Criminal Proceedings in France (Republic of the Congo v. France) information on the case and state of the proceedings is accessible at http://www.icj-cij.org/ docket/index.php?p1=3&p2=1&code=cof&case=129&k=d2 (last visited 5th May 2009) 12) International Court of Justice. Questions Related to the Obligation to Prosecute or Extradite (Belgium v. Senegal ) complete information on the case and state of the proceedings is accessible at http://www.icj-cij.org/docket/index.php?p1=3&p2=1&code=&case=144&k=5e (last visited 5th May 2009) 13) H. Ascensio supra note 4, at 589. 14) C.A.E. Bakker , Universal Jurisdiction of Spanish Courts over Genocide in Tibet: Can it Work? Journal of International Criminal Justice 4 (2006)pp. 595-601 at 601. 15) Roth-Arriaza, supra note 1, at 207. PURL: https://www.legal-tools.org/doc/65afb8/ 16) Tribunal Supremo, Sala II de lo Penal. Sentencia 645/2006, de 20 de junio. Fundamentos de Derecho 2.3. Accessible in Spanish at http://sentencias.juridicas.com/ (last visited 5 May 2009) De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808 781

fi led against fi ve Chinese offi cials to investigate the alleged crimes of genocide and terrorism against the Falun Gong religious movement perpetrated by Chinese authorities since 1990, but not without stressing that: “Th is decision does not prevent us from keeping the institutional and constructive dialogue which should prevail in the relationship between the Constitutional Court and the Supreme Court and, therefore, we invite it to a new analysis of the questions raised by the principle of universal jurisdiction.”17 Th e Supreme Court engaged par la suite in a long and very strong legal dispu- tatio18 which amounted to a complete re-arguing of all the arguments upheld by the Constitutional Court when it revoked the 2003 Supreme Court’s Judgment on the Guatemalan General case. 19 Acknowledging, nonetheless, the fact that it is constitutionally bound by Art. 5.1 LOPJ (“all judges and tribunals (…) would interpret and apply the laws and regulations in conformity with the constitutional precepts, in accordance with the interpretation that might result from the resolutions of the Constitutional Court in all sorts of constitutional processes”),20 the Spanish Supreme Court did allow the grounds for cassation, and ordered that the case be returned to the National Court where it currently proceeds its legal course. In far less challenging terms vis-à-vis the Constitutional doctrine in this domain pronounced itself the National Court when it rendered its order to commence proceedings on 10 January 2006 21 against former President Jiang Zemin, the ex Prime Minister Li Peng et al . in the Tibet Genocide 22 case. Yet, while the National Court, in application of the Guatemala Doctrine, considered itself competent to investigate the charges of genocide perpetrated in Tibet in the 80s and 90s, it did not so without putting forward a new criterion of “reasonability” in order to avoid “abuse of law” in the interpretation of Art. 23.4 LOPJ. In doing so, the National Court was echoing the doctrine established by the Plenary of the Criminal Hall of the National Court on 3 November 2005 in response to the judgment of the Constitutional Court 237/2005 of 26 September 2005.

17) Tribunal Supremo, Sala II de lo Penal. Sentencia 645/2006, de 20 de junio. Fundamentos de Derecho 2.3. Accessible in Spanish at http://sentencias.juridicas.com/ (last visited 5 May 2009) 18) Tribunal Supremo, Sala II de lo Penal. Sentencia 645/2006, de 20 de junio. Fundamentos de Derecho 2.-10. Accessible in Spanish at http://sentencias.juridicas.com/ (last visited 5 May 2009) 19) See among the commentaries of the case in Spanish; M. Llobet Anglí, “El alcance del principio de jurisdicción universal según el Tribunal Constitucional. Una discutible interpretación en la STS de 20 de junio de 2006” 4 Revista para el análisis del Derecho, (2006) pp. 1-21. 20) See Article 5.1. of Ley Orgánica 6/1985 de 1 de julio, del poder judicial (author’s translation) accesible at http://noticias.juridicas.com/base_datos/Admin/lo6-1985.l1t1.html (last visited 4 May 2009) 21) See Auto de la Audiencia Nacional (Sala de lo Penal), de 10 de enero de 2006. See Juan Santos Vara, Cronica sobre la aplicacion judicial del Derecho internacional público (enero-junio 2006) 12 Revista Electrónica de Derecho Internacional (2006), pp. 1-12, at 3-4. 22) For an introductory notice C.A.E. Bakker, supra note 14; seePURL: also https://www.legal-tools.org/doc/65afb8/ M. Chadwick “Modern Developments in Universal Jurisdiction: Addressing Impunity in Tibet and Beyond” International Criminal Law Review (2009) pp. 359-394 at 373. 782 De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808

Th e underlying rationale of this doctrine is that of unifying jurisdictional criteria in an attempt to avoid an avalanche of complaints on the grounds of genocide and crimes against humanity in all parts of the world, and it introduced a new requirement based on the idea of reasonability. According to it

“once ascertained that the requirements of the domestic legal system have been fulﬁ lled and the jurisdiction of the place of perpetration of the alleged crime and of the international community have been discarded, the jurisdiction as a rule should be accepted, except when it is appreciated the concurrence of an excess or abuse of law in view of the absolute foreign character of the matter because it tackles with crimes and places absolutely foreign and/or distant and because the person who have ﬁ led the complaint has not proven any direct interest or relationship with them”.23

A third example of an attempt at coming up with a restraining interpretation of the Constitutional Court’s Judgment 237/2005 of 26 September 2005 is provided by Judgment 1240/2006 of 11 December 2006. In it, the Supreme Court revoked the Order of the National Court of 8 March 2006 that has declined to investigate alleged crimes of war committed by the US army in ﬁ ring the Hotel Palestine in Baghdad that had resulted in the death of a Spanish journalist in 2003. Although not directly criticizing the Guatemala doctrine,24 this judgment does refer to the problems that the extra-territorial reach of the Spanish jurisdiction might bring to Spanish foreign policy. A comparative reference is made in that respect to the restrictions introduced to the principle of universal jurisdiction in neighboring countries, and to the fact that the Supreme Court based its decision on the existence of “a legitimating point of connection that might justify the extra-territorial extension of the Spanish jurisdiction, (…) insofar as one of the victims, (…) was a Spanish citizen”. Th ese remarks might be again interpreted as constituting an indirect veiled restriction to Judgment 237/2005 of 26 September 2005. Finally, in the Scillingo case, “one of the few cases worldwide to have completed trial and appeal in domestic courts for international crimes committed in a third country”,25 the Supreme Court rendered in cassation appeals its Judgment

23) Author’s translation, the literal text reads as follows: “Constatado que se cumplen los requisititos exigidos por el ordenamiento jurídico interno y descartada la actuación de la jurisdicción del lugar de comisión del presunto delito y de la comunidad internacional deberá, como regla, aceptarse la jurisdicción salvo que se aprecie exceso o abuso de derecho por la absoluta ajeneidad del asunto por tratarse de delitos y lugares totalmente extraños y/o alejados y no acreditar el denunciante o querel- lante interés directo o relación con ellos”. 24) See J.M. Sánchez Patrón , La competencia extraterritorial de la jurisdicción española para investigar y enjuiciar crímenes de guerra: el caso “Couso” 14 Revista Electrónica de Estudios Internacionales 1 (2007), at 16. See also J.M. Bautista Jimenez , Crónica sobre la aplicación judicial del Derecho internacional público (Julio-Diciembre 2007) 14 Revista Electrónica de Estudios Internacionales (2007), at 5-7. 25) R.J. Wilson, “Spanish Supreme Court Aﬃ rms Conviction of ArgentinePURL: https://www.legal-tools.org/doc/65afb8/ Former Naval Oﬃ cer for Crimes Against Humanity”, 12 ASIL Insight 1 (2008) available online at http://www.asil.org/ insights080130.cfm (last visited 5th May 2009) De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808 783

798/2007 of 1 October 2007. In it, the Court raised the conviction from 640 years in prison to more than one thousand years 26 of the Argentinean former naval offi cer Adolfo Scilingo issued by the National Court’s Judgment 16/200527 of 2005 on grounds of crimes against humanity28 perpetrated at the Navy School of Mechanics between 1976 and 1983. In this judgment, the Supreme Court again raised the point that it considered “advisable” that there would “exist a point of connection with national interest to avoid disproportionate actions to suffi ciently justify the intervention of the organs of the Judicial Branch of one state in respect of acts which have taken place in the territory of a state submitted to the jurisdiction of another state” 29 in the application of the principle of universal justice. Although it mentioned the correction to the interpretation of the Judgment of the Supreme Court 327/2003 by the Guatemala Constitutional doctrine by expressly quoting its clear terms, (the “Organic Law of the Judiciary provides absolute universal jurisdiction since, in contrast with other criteria of correction or procedural requisites, and without any hierarchical order with respect to the rest of rules for attributing jurisdiction, the criteria for determining universal justice is based on the particular nature of the crimes being prosecuted”30 ) it did, nonetheless, insist that in “the current case the connection cannot be disputed”.31 Despite the attempts by lower tribunals to require “a link or connection between the events and a value or interest of the state that exercises jurisdiction” behind which lurks the Spanish courts’ attempts at coming up with “a reasonable criterion for self-restraint in order to avoid a proliferation of proceedings involving foreign and distant crimes”,32 the doctrine set by the Spanish Constitutional Court in the Guatemala Case was reaffi rmed again by the Spanish Constitutional Court in its STC 227/2207 of 22 October 2007. Th e almost literal reaffi rmation

26) Yet, as a general norm the maximum length to serve a sentence of prison of Spain is 20 years (Art. 36 of the Spanish criminal code), although it can, in exceptional cases established in Art. 76 amount to 25, 30 or even 40 years. 27) See Margalida Capella i Roig, “Los crímenes contra la humanidad en el caso Scilingo”, 10 Revista Electrónica de Estudios Internacionales 1 (2005) 28) For a legally grounded disputation of the reasoning used by the Spanish National Court in its fi nding of its jurisdictional basis on the crimes against humanity, see C. Tomuschat, “Issues of universal jurisdiction in the Scillingo case” 1 Journal of International Criminal Justice 3 (2005), pp. 1074-1081. 29) Sentencia Nº: 798/2007 1st October 2007 Fundamentos de Derecho Septimo at p. 42. (available in Spanish together with a very detailed documentation on the evolution of the case at http:// www.derechos.org/nizkor/espana/juicioral/doc/sentenciats.html#II.%20FUNDAMENTOS 30) Constitutional Court Judgment 237/2005, of September 26, 2005 Conclusions of Law 8.2. at p. 12 see supra note 1. PURL: https://www.legal-tools.org/doc/65afb8/ 31) Ibid. 32) Ibid., fi ndings of fact 2.e.4., at p. 6. 784 De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808 of its Judgment 237/2005 of 26 September 2005 33 was made on the occasion of the appeal for protection fi led before the Constitutional Court of a second complaint identical in scope, but now addressed to the former President of China Jiang Zemin, and a high ranking offi cial of the Chinese administration, on the grounds of crimes of torture and genocide committed against the Falun Gong movement since 1990. Th ese have been dismissed both by the National Court in its order of 20 November 2003, and lately by the Supreme Court’s Judgment 245/ 2005 of 18 March 2005 in application of the doctrine set by the Supreme Court’s Judgment 327/2003 of 25 February 2003.34 Although still not devoid of obstacles on all state levels – legislative, judicial and executive 35 - the Spanish practice of exercise of universal jurisdiction, that has placed Spain “in the vanguard of the persecution of the gravest crimes of international transcendence,”36 began with the complaints presented against those responsible from the Argentinean37 and Chilean38 military regimes in 1996. Although the almost lego-iconic character of the Pinochet case 39 might have obscured the rest of the Spanish practice in this area, since 1996 the Spanish Courts have been presented with a number of complaints. Broadly speaking this practice can be divided in two main categories dealing respectively with those complaints in connection to which the Spanish courts have ascertained their jurisdictional competence, and those complaints which have not been admitted. Th ose which have been rejected can be ordered by reference to the basis on which they have been so. While as evidenced by the Pinochet case, Spanish practice does not recognize the functional immunity (ratione materiae) of state representatives once they have abandoned

33) See STC 227/2007, de 22 de Octubre de 2007. Fundamentos Jurídicos 5, pp. 8-10 accessible (in Spanish) at http://www.tribunalconstitucional.es/jurisprudencia/Stc2007/STC2007-227.html (last visited 5 May 2009) 34) 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 5 May 2009) See also J.M. Bautista Jimenez, Crónica sobre la aplicación judicial del Derecho internacional publico (Julio- Diciembre 2007) 16 Revista Electrónica de Estudios Internacionales (2008), at 2-5. 35) See Amnistía Internacional, España: Ejercer la jurisdicción universal para acabar con la impunidad , Amnesty International Publications (2008) 36) A. Sánchez Legido “La práctica española en materia de jurisdicción universal”. Working papers Universidad de Castilla La Mancha, accesible at www.uclm.es/profesorado/asanchez/webdih/ 03Materiales/ARTÍCULOSPYBIL. (Last visited 5th May 2009) See previously in English A. Sánchez Legido, “Spanish Practice in the Area of Universal Jurisdiction” Spanish Yearbook of International Law, Nº 8, 2001-2002, pags. 17-53. 37) Denuncia de la Asociación Progresista de Fiscales de España con la que se inicia el juicio por los desaparecidos españoles en Argentina de fecha de 28 de marzo de 1996. Available online in Spanish at http://www.derechos.org/nizkor/arg/espana/inicial.html (last visited 1 May 2009) 38) Texto de la denuncia presentad en España contra el General Pinochet y otros por genocidio y otros delitos. Presentada en Valencia el 1 de julio de 1996. Accesible at http://www.derechos.org/ nizkor/chile/juicio/denu.html (last visited 1 May 2009) PURL: https://www.legal-tools.org/doc/65afb8/ 39) See Auto de la Audiencia nacional (Sala de lo Penal, Sección 3ª) of 4 November 1998 and Auto de la Audiencia Nacional (Sala de lo Penal, Sección 1ª) of 5 November 1998. Accesible at http:// www.derechos.org/nizkor/chile/juicio/denu.html (last visited 1 May 2009) De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808 785 offi ce or criminal acts in breach of international law, a number of complaints fi led against or involving heads of state have been regularly dismissed on grounds of the subsistence of the principle of personal immunity (ratione personae) of state representatives while in offi ce. Th ese cases include fi les presented against King Hassan II of Morocco 40, the President of Equatorial Guinea Obiang Nguema,41 the President of Cuba Fidel Castro,42 the President of Venezuela Hugo Chavez 43 a s well as the former Peruvian Presidents Alberto Fujimori and Alan García. In addition to this list there is also the more recent exclusion of President Kagame from prosecution because of the immunity he enjoys as an incumbent Head of State in the indictment issued by the National Court in connection with alleged international crimes committed in Rwanda between 1990 and 2002.44 Along these personal immunity-based denied cases, other complaints have been considered inadmissible on other grounds, such as the one presented against Colombian authorities to investigate genocide and terrorism on the border with Panama. Th is case was rejected on the basis that there were suffi cient guarantees that it would be judged in Colombia; the same justifi cation led to the non-admission of the complaint for torture during the repression of the uprising in Atenco in Mexico. As far as those cases where the Spanish Courts have considered themselves jurisdictionally competent to open probes into genocide and human rights abuses in other nations, in addition to the previously mentioned judgments dealing with crimes committed in Argentina (Scilingo and Cavallo cases), and thus related to Tibet and Falun Gong, Guatemala and the Couso case, mention should be made of a number of currently opened judicial proceedings before the Spanish judicial system on the basis of Art. 23.4 LOPJ. Th e latter category comprises the investigation opened by the National Court in October 2007 for alleged crimes of torture and genocide in the Western Sahara involving 32 high ranking members of the Moroccan government. Another example is the issuing of an indictment charging 40 current or former high-ranking members of the Patriotic Rwandese Front with international crimes including genocide, crimes against humanity, war crimes and terrorism from 1990-2002 on the basis of a complaint fi led by families of Spanish victims, later on expanded to include crimes committed against Rwandan and Congolese victims in February 2008 by the National Court. 45 A recent case is the one opened at the National Court on January 2009, following a criminal case fi led by the Human Rights Association of Spain and the Centre for

40) Auto de la Audiencia Nacional de 23 de diciembre de 1998. 41) Auto de la Audiencia Nacional de 23 de diciembre de 1998. 42) Auto de la Audiencia Nacional 4 de marzo de 1999. 43) Auto de la Audiencia Nacional de 24 de marzo de 2003. 44) Commentator, “Th e Spanish Indictment of High-ranking Rwandan Oﬃ cials”, Journal of International Criminal Justice 6 (2008), pp. 1003-1011. PURL: https://www.legal-tools.org/doc/65afb8/ 45) See for an overview of political reactions including the issuing by the Assembly of the African Union of a “Decision on the Report of the Commission on the Abuse of the Principle of Universal Jurisdiction” in June/July 2008 Commentator, supra note 44, at 1009-1011. 786 De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808

Justice and Accountability, against fourteen former offi cers, including the head of the Armed Forces Joint Chiefs of Staff , and the former Minister of Defense of El Salvador. Th ey are formally charged with crimes against humanity and state terrorism for their role in the “Jesuits Massacre” (including 5 Spanish priests) of 16 November 1989 at the Universidad Centroamericana in El Salvador. Additionally, during the course of the investigation, the judge reserved the right to indict the former Salvadoran President and Commander of the Armed Forces Alfredo Cristiani for his alleged role in covering up the crimes.46 Other cases in this list include the admission in 2008 by the National Court of a complaint fi led by Spanish victims against four offi cials of the Nazi regime for acts qualifi ed as genocide,47 or the opening of previous diligences in June 2008 (reaffi rmed on 4 May 2009) that the National Court admitted in June 2008 against the Israeli Defense Minister and six persons under his command for crimes against humanity alleged committed in Gaza in July 2002. A decision to continue investigation was reaffi rmed on 4 May 2009. As already mentioned, since the Order of 10 January 2006, a case dealing with the investigation of alleged genocide charges in the 80s and 90s in Tibet currently follows its course at the National Court. Another more recent complaint was admitted to the National Court on 5 August 2008, charging two Chinese Ministers and other high ranking members of crimes against humanity allegedly perpetrated in Tibet in 2008. Th e Court considered them to be part of “a generalized and systematic attack against the Tibetan population”.48 Finally, together with an incident which led to the fi nal release “by legal imperative and in absolute disconformity” of seven Somalian pirates by the National Court on 8 May 2009, 49 other recent judicial activity involving the principle of universal jurisdiction before Spanish Courts includes the development known by the Couso case with the issuing on 21 May 2009 of a new indictment against three members of the US forces accused of “crimes against the international community” in conformity with Chapter III, Title XXIV of the Spanish Criminal Code.50

46) Audiencia Nacional, Diligencias Previas Procedimiento Abreviado 0000391/2008. Juzgado Central de Instrucción Nº 006, 12 January 2009. 47) Th e text of the complaint and a relevant research dossier is available on-line in Spanish http:// www.derechos.org/nizkor/espana/doc/querella.html (last visited 23 May 2009) 48) Juzgado Central de Instrucción Nº1 de la Audiencia Nacional. Diligencias Previas 242/2008- 10. Auto de 5 de agosto, pp. 1-3. 4 9 ) Juzgado Central de Instrucción Nº 4. Audiencia Nacional Madrid, Diligencias Previas Nº:127/2009 Auto of 8 May 2009. For a commentary vid., J.L.Rodríguez-Villasante y Prieto, “La represión del crimen internacional de piratería; una laguna imperdonable de nuestro Código Penal y, ¿por qué no?, un crimen de la competencia de la Corte Penal Internacional” Real Instituto Elcano accessible at http://www.realinstitutoelcano.org/wps/portal/rielcano/contenido?WCM_ GLOBAL_CONTEXT=/Elcano_es/Zonas_es/Defensa+y+Seguridad/ARI73-2009 (last visited 20 July 2009) 50) Vid. with extensive treatment of international law materials andPURL: references, https://www.legal-tools.org/doc/65afb8/ Audiencia Nacional, Juzgado Central de Instrucción, Sumario 27/2007 Auto de procesamiento, 21 de mayo 2009, pp. 1-9. De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808 787

Against this background of numerous causes opened, the Spanish legal system appears, therefore, at present, growingly attuned to the needs of what M. Delmas- Marty has defi ned as the model of “criminal law of inhumanity”51 and its “universal meta-ethics”52 as shown by its strong contribution “to build up the interplay of interactions between municipal law and international law”.53 As the next section will however, examine in detail, the current - and, thus, so referred - legal regime of universal jurisdiction in Spain is not bound to endure long after the initiation of a process of curtailment of its current character with the approval on 19 May 2009 by the Spanish Parliament of a pact of the legislative reform of Article 23 of the LOPJ and the later approval by the Congress of Deputies of a new article on 25 July 2009. Before tackling in Section 3, how the Section 1 of this article might thus, soon be seen as a chronicle of the announced death of the principle of universal jurisdiction in Spain, it may, however, be worthwhile to briefl y examine how the swan song of Spain’s universal jurisdiction has coincided in time with the latest chapter of one of the most strenuously examined and defi ning legal debates that have occupied the international legal doctrine in the fi rst decade of the 21 st century.

2. Guantanamo’s “Enhanced Interrogation Techniques” on Trial?

On 27 April 2009 Judge Garzón signed an judicial order to initiate proceedings against the “perpetrators, the instigators, the necessary collaborators and accomplices” for alleged torture at the Guantanamo camp and other overseas detention facilities of four prisoners - including a Spanish national - who had later been absolved of the charges of integration in the terrorist organization Al Qaeda by Spanish courts.54 Less than two weeks before the Spanish National Court’s writ on 16 April 2009, the U.S. Justice Department had de-classifi ed four legal memoranda issued by the Offi ce of Legal Counsel authorizing the “enhanced interrogation techniques” employed by U.S. offi cials against prisoners held outside the U.S. to meet a court-approved deadline in a lawsuit against the government in New York by the American Civil Liberties Union under the Freedom of Information Act. Th e immediate background of the release of the so called “torture memos” was the U.S. Supreme Court decision in Boumediene v. Bush55

51) Mireille Delmas-Marty, ”Violence and Massacres Towards a Criminal Law of Inhumanity?” 7 Journal of International Criminal Justice (2009), 5-16. 52) Ibid., at 7. 53) Ibid., at 16. 54) Procedimiento: Diligencias Previas 150/09. Delito: Torturas y otros. Juzgado de Instrucción. Número Cinco. Audiencia Nacional, Madrid. Auto. 27 de abril dePURL: 2009. https://www.legal-tools.org/doc/65afb8/ 55) 128 S.Ct. 2229 (2008); see John R. Crook (Ed.), “Contemporary Practice of the United States Relating to International Law” 102 American Journal of International Law (2008), at 863. 788 De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808 in June 2008 in which the Count ruled that the U.S. Constitution guaranteed Guantanamo Bay’s detainees the right to contest the legality of their detention by a writ of habeas corpus . Th is was the latest of a long chain of U.S. Supreme Court’s decisions,56 all of which had triggered a legislatively counter-reaction aimed at limiting their scope by the Bush administration - e.g., Rasul v. Bush in 2004 was followed by the Detainee Treatment Act of 2005,57 Hamdi v. Rumsfeld was followed by Military Commissions Act of 2006.58 Th e judicial aftermath59 of the Boudemiene’s decision, which fostered the return, release and transfer of prisoners from the Guantanamo naval base to other countries,60 has recently been paral- leled by the three executive orders issued by the U.S. President on 22 January 2009. Th ese executive orders, consisting respectively of the “Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities”, the “Review of Detention Policy Options”, and the “Ensuring (of) Lawful Interrogations”, 61 were addressed at changing the U.S. policy with respect to detention and the conduct of interrogation of individuals in U.S. custody in connection to its anti-terrorist policies. Among the measures adopted were the order of closing the detention facilities at Guantanamo “as soon as practicable and no later than 1 year from the date of this order”.62 On 17 March 2009, nearly one month before the declassiﬁ cation of the “torture memos”, a complaint had been presented before the Spanish National Court against six high-level Bush administration lawyers, including former U.S. General Attorney Alberto Gonzales pursuant Article 23 LOPJ on the grounds of devising, (in violation of international law), the legal framework that allowed the enhanced interrogation techniques of prisoners in Guantanamo Bay. Judge Garzón’s request for Spanish prosecutors to examine the case led to a starkly negative reaction by Spain’s Attorney General who declared that it was “fraudulent” and that “to accept it would amount to transforming universal jurisdiction into a toy in the hands of

56) See e.g. Hamdi v. Rumsfeld, 124 S Ct 2633 (2004) and Rasul v. Bush, 124 S Ct 2686 (2004). 57) Detainee Treatment Act, Pub. L.No.109-148 1005, 119 Stat. 2680, 2740-44 (2005). 58) Military Commissions Act Pub. L. No.109-366, 7, 120 Stat. 2600, 2635-36 (2006) (MCA) (Amending 28 USC 2241) 59) See “Federal Judges Order Release of Guantánamo Detainees” and “U.S. Judge Orders Release of Uighurs; Order Stays on Appeal” John R. Crook (ed.), “Contemporary Practice of the United States Relating to International Law” 103 American Journal of International Law 1 (2009), at 155- 156 and 156-157. 60) Th at has not been without raising legal scrutiny in the light of the prohibition to extradite to countries where the person would be in danger of being subjected to torture of Article 3.1 of the 1984 Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT)) 61) President Barack Obama , Executive Order of 22nd Jan. 2009, International Law In Brief (6 Feb. 6, 2009). PURL: https://www.legal-tools.org/doc/65afb8/ 62) President Barack Obama , Executive Order of 22nd Jan. 2009, Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities, International Law In Brief (6 Feb. 2009) “ at 2. De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808 789 persons looking for personal protagonism.”63 Soon after these statements, the National Court’s Public Offi ce Prosecutor issued a contrary report on the continuation of the proceedings. According to it, the ”drafting of the complaint, the scope of its object and the fact that it is exclusively addressed against those who elaborated legal reports” make the continuation of a cause legally diffi cult that would, furthermore, constitute a general cause against the detention centre and against the whole policy of President G.W. Bush, no matter how “reproach- able this might have been”.64 Although Judge Garzón has sought to have this complaint referred back to him for purposes of consolidation with the new investigation opened by its Order65 of 17 May 2009, the pursuance of the inves - tigation against those loosely known in international lego-academic milieu as the “Torture Team”66 (D. Addintong, J.S. Bybee, D. Feith, W.J. Haynes, J. Yoo and A.R.Gonzalez), was referred to another judge for him to decide whether or not the Spanish judiciary would allow the complaint to proceed further. As part of this decision process, on 5 May 2009 the Spanish judge issued an international interrogatory commission to the U.S. asking “whether the facts to which the complaint makes reference are or not being investigated or pursued” and if so, the “identifi cation of the concrete authority in charge of it.” 67 While the Spanish judge in charge of the cause has yet to decide whether the cause will or will not be discontinued, Judge Garzón’s attempt at consolidating both investigations is grounded on the references made in its Order of 17 May 2009 to a “systematic plan (that) confi gures the possible existence of a concerted action for the execution of a multiplicity of crimes of torture against persons deprived of freedom in Guantanamo and other prisons (e.g., Bagram, Afghanistan) that attains an almost offi cial nature and that, as a consequence, entails criminal liability in the diff erent structures of execution, command, design and authorization of that systematic plan of torture.”68 Th e latter statement is not the fi rst one that the Spanish judiciary has pronounced on the legality of Guantanamo Bay. In its sentence 829/2006 of

63) “Pumpido rechaza la querella contra los responsables de Guantánamo”, El Mundo , 16 April 2009, accessible at http://www.elmundo.es/elmundo/2009/04/16/espana/1239870857.html (last visited 20 July 2009) 64) “La Fiscalía rechaza abrir una ‘causa general’ contra Guantánamo”, El Mundo, 18 April 2009, accessible at http://www.elmundo.es/elmundo/2009/04/17/espana/1239969889.html (last visited 20 July 2009) 65) Procedimiento: Diligencias Previas 150/09. Delito: Torturas y otros. Juzgado de Instrucción. Número Cinco. Audiencia Nacional, Madrid. Auto. 27 de abril de 2009 66) See P. Sands , Torture Team: Deception, Cruelty and the Compromise of Law (2008); for a sum- marized perspective see P. Sands, “Torture Team: Th e Responsibility of Lawyers for Abusive Inter- rogation” 9 Melbourne Journal of International Law (2008), at 2. 67) Vid. for details of the report of the Public Oﬃ cer prosecutor and the international rogatory PURL: https://www.legal-tools.org/doc/65afb8/ comission, Juzgado Central de Instrucción Número VI, Audiencia Nacional, Madrid. Diligencias Previas nº 134 /2009. 68) Vid . supra note 63, at 8. 790 De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808

22 June 2006 in the Hamed Abderrahman Ahmed case (Findings of Law V), the Spanish Supreme Court deemed it appropriate to note that “the detention of hundreds of persons, among which the “claimant”, without being charged, without guarantees, and therefore, without control and limitations, in the base of Guantanamo guarded by the U.S. army, amounts to a situation which cannot be possibly explained and even less justifi ed from the legal and political reality within which it is embedded. It might well be said that Guantanamo is a true “limbo” in the Legal Community which becomes defi ned by a multiplicity of treaties and conventions signed by the international community, and thus constituting a per- fected example of what some or other scientifi c doctrine has defi ned as the “criminal law of the enemy” (…). Th e National Court’s order of 17 May 2009 to commence proceedings against the “perpetrators, the instigators, the necessary collaborators and accomplices” does, on the other hand, make reference in fi ne to certain case law precedents that grant the jurisdictional competence of the Spanish courts in the following - and now surely more familiar - terms: “ In view of the facts and the referred doctrine, this would be a case of universal criminal justice pursuant Spanish law (Art. 23.4 LOPJ) and the jurisprudence of the Spanish Constitutional Court (STC of 26 September 2005 for all “Guatemala cases” later reaffi rmed in Sentence 227/07 in the Falun Gong case of 22 October) and in the sentence of the Supreme Court of 11 December 2006 (Case “Couso”).69 Th e initiation of these judicial proceedings on the basis of universal jurisdiction in Spain can be interpreted as an judicial attack against the model of “the criminal law of the enemy”.70 Th e extension of this model was manifestly encouraged, as noted by Delmas-Marty, by the attacks of 11 September, thus resulting in “a militarization of American criminal law that involves both the de-individualiza- tion and de- judicialization of repression”.71 Th e release of the so-called “torture memos” has been, furthermore, recently compounded by the declassifi cation of the “Inquiry into the Treatment of Detainees in U.S. Custody”. In this report, fi nalized on 20 November 2008 by the U.S. Senate Armed Services Committee, it is examined “the involvement of high-ranking Bush administration offi cials in subscribing to severe and inhumane interrogation and detention procedures used by the U.S. forces against terrorist suspects”. 72 Th is stage is the latest instalment of a multidimensional longstanding international legal debate originating in the post-9/11 “genesis of the extra-ordinary circumstances doctrine” that resulted, in jurisdictional terms, in the U.S. federal courts declining to entertain suits alleging

69) Ibid., at 10. 70) Ibid., at 9. 71) Ibid., at 10. 72) See “Inquiry Into the Treatment of Detainees in U.S. CustodyPURL: (U.S. https://www.legal-tools.org/doc/65afb8/ Senate Armed Services Committee, Nov. 20, 2008)2 at International Law in Brief, American Society of International Law, May 1, 2009. De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808 791 torture and other conditions of confi nement of prisoners held in Guantanamo Bay. Th is was due to a polyhedral legal regime construed upon the unifying ele- ments of “extraterritorial location”, the designation of the prisoners as “unlawful combatants”, the enhanced war powers’ authority vested in the U.S. President and the foreign nationality of prisoners,73 otherwise a legal “Bush administration’s stonewalling” that critical voices have seriously doubted that should be interpreted as an “exceptional phenomenon” that might be overcome just “by having “international law scale its heights”.74 As expressly noted by the “Inquiry into the Treatment of Detainees in U.S. Custody”, the declassifi ed Memorandum of 7 February 2002 was, in “stating that the Th ird Geneva Convention did not apply to the confl ict with al Qaeda and concluding that Taliban detainees were not entitled to prisoner of war status or the legal protections by the Th ird Geneva Convention”, the root for later abuses of detainees in U.S. custody. In agreement with this latter assessment, the very latest chapter of this long debate has ulti- mately focused on the examination of both the criminal accountability for government offi cials who carried out interrogations allegedly amounting to torture upon legal advice and those who formulated the legal guidance authorizing them. Although Article 12(3) of the Rome Statute would permit Cuba, which holds the “ultimate sovereignty”75 over the Guantanamo naval base, to accept the jurisdiction of the ICC on an ad hoc basis retroactive to 1 July 2002,76 the likelihood of ICC jurisdiction over this “course of conduct involving the multiple commission of acts”77 is, to say the least, rather dim. Th e unlikelihood of a Security Council’s referral of the case to the ICC, the non-ratifi cation of the ICC Statute by either the U.S. (as the state of which the suspects are nationals) or Cuba (as the state on whose territory the crime was allegedly committed), has led the doctrine to examine the jurisdictional basis for prosecution of both CIA interrogators and U.S. government lawyers under U.S. law,78 other international jurisdictional settings and to pay attention to the open cases that, on the basis of the principle of universal jurisdiction, are currently being investigated before the domestic courts

73) See among the myriad of contributions which have attempted to pierce the polyhedral legal regime set up by the Bush administration in this respect e.g. James Th uo Gatthi, “Torture, Extraterritoriality, Terrorism and International Law” 67 Albany Law Review (2004) 335-370, at 345. 74) Fleur Johns, “Guantánamo Bay and the Annihilation of the Exception”, 16 Th e European Journal of International Law 4 (2005) pp. 613-635, at 614. 75) Agreement of the Lease to the United States of Lands in Cuba for Coaling and Naval Stations, 23 Feb 1903, US-Cuba T.S. No. 418. 76) W. Schabas, War Crimes and Human Rights: Essays on the Death Penalty, Justice and Accountability (Cameron May Publishers 2008) at 411. 77) See Article 7.2 of the ICC Statute. PURL: https://www.legal-tools.org/doc/65afb8/ 78) A.S. Weiner, “Th e Torture Memos and Accountability” 13 ASIL Insight 6 (2009), available online at http://www.asil.org/insights090515.cfm (last visited 18 May 2009) 792 De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808 of other states. A promising basis in this respect is to be found in the Presidential executive order “Ensuring Lawful Interrogations” of 22 January 2009 that expressly noted that, from this day forward, agents of the U.S. government “may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation (…) issued by the Department of Justice between September 11, 2001, and January 20, 2009”, 79 which “are revoked to the extent of their inconsistency with this order”.80 To the latter, it might be added that, although not without precedents,81 the U.S. Administration has recently admitted that “waterboarding“ amounts to torture and that the combination of similar “stress and duress” interrogation techniques than those authorised as “enhanced interrogation techniques” had already been considered to amount to forbidden inhuman and degrading treatment by the European Court of Human Rights in its 1976 case Ireland v. United Kingdom . 82 Against this prima facie legally promising background, the truth remains that, under U.S. domestic law, CIA interrogators at - what the English Court of Appeals once deﬁ ned as - the legal “black hole” 83 of Guantanamo Bay, dispose of a strong defense against any prosecution under the exception provided to the principle ignorantia legis nihil excusat on the grounds of both the common law and Model Penal Code’s reasonable-reliance doctrine, also known as Entrapment by Estoppel.84 Th e strong character of the defense available to the CIA interrogators is strengthened by the fact that the latter doctrine has been associated, through a number of U.S. Supreme Court’s rulings, to the “due process clause”, and might well be compounded by the fate of certain precedents at the U.S. Federal Appeals court’s level that “had already ruled against a set of former Guantanamo’s detainees on all claims, even after assuming their allegations of torture and illegal detention to be true”.85 As the doctrine has noted, “at present neither a rule of customary international law nor a treaty rule directly

79) President Barack Obama, Executive Order, “Ensuring Lawful Interrogations” (22 Jan. 2009), International Law In Brief (6 Feb. 2009) American Society of International Law, at 3. 80) Ibid., at 1. 81) D.M. Amman , Th e Committee Against Torture Urges an End to Guantánamo Detention 10 ASIL Insight 8 (2006) available online at http://www.asil.org/insights060608.cfm (last visited 18 May 2009) 82) Ireland v. United Kingdom, 25 Eur.Ct. H.R. (ser. A) 25, 66 (1976) 83) See R (on the application of Abbasi et al) v Secretary of State for Foreign and Commonwealth Aff airs (2002) EWCA Civ 1598 at para. 32. 84) According to this doctrine “a person is excused for committing a criminal off ense if he reasonably relies on an offi cial statement of the law, later determined to be erroneous, obtained from a person or public body with responsibility for the interpretation, administration, or enforcement of the law defi ning the off ense”. One of the defi nitions of “statement of the law” commonly portrayed as exemplary in this regard is that of “an offi cial, but erroneous, interpretation of the law, secured from a public offi cer in charge of its interpretation, administration, or enforcement, such as the Attorney General of the state or, in the case of federal law, of the UnitedPURL: https://www.legal-tools.org/doc/65afb8/States”. 85) See J.A. Menon, “Guantánamo Torture Litigation” 6 Journal of International Criminal Justice (2008) pp. 323-345, at 324. Th is article examines in depth the case Shafi q Rasul et al. v. Richard Myers, Air Force General et al . (512 F3d 644(C.A.D.C, 11 January 2008) De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808 793 obliges a U.S. court to fi nancially compensate victims of violations of human rights law or international humanitarian law, even if those violations are grave or serious.”86 To further complicate this picture, despite the fact that the War Crimes Act, especially since the revocation of the Military Commissions Act,87 that allows the U.S. government to prosecute U.S. nationals or members of the U.S. armed forces for conduct either within or outside of the U.S. for certain breaches of the Geneva and Fourth Hague Conventions,88 the U.S. President has declared that although the new American Administration repudiates the employment of these techniques, they should not result in criminal prosecution of “those who carried out their duties relying in good faith upon legal advice from the Department of Justice”.89 Th is declaration has been accompanied by the offi cial assurances of the U.S. Attorney General Eric Holder according to which “the government would provide free legal representation to CIA employees in any legal proceeding or congressional investigation related to the program and would repay any fi nancial judgment”.90 Th e strong position enjoyed by the CIA investigators vis-à-vis the likelihood of criminal prosecution before U.S.’ courts is not, however, equal to the defense position enjoyed by the U.S. government lawyers who authorized the employment of enhanced techniques of interrogation. To the fact that the U.S. President has indicated that his assurances of non-prosecution did not necessarily extend to “those who formulated these legal decisions”,91 should be added that if the techniques they authorized were subsequently deemed to constitute torture, the government lawyers would not be able to rely on the “reasonable reliance” defense. While this proviso might seem, prima facie, to open a door for the feasibility of their criminal prosecution, it should not be, however, forgotten that in order to “convict a lawyer for conspiracy or aiding and abetting torture, it is likely that the prosecution would have to prove that the purpose of the lawyer’s advice was to facilitate conduct that the lawyer knew to be criminal” and that “evidence of such knowledge or belief - emails, meeting minutes, other offi cial’s testimony - may be quite diffi cult to adduce”.92 Th e U.S. administration’s declared commitment to not prosecute CIA interrogators, and the uncertainty surrounding the feasibility

86) Bardo Fassbender, “Can Victims Sue State Offi cial for Torture? Refl ections on Rasul v. Myers from the Perspective of International Law?” Journal of International Criminal Justice 5 (2008), pp. 347-369 at 359. See also Menon, supra 77 at 330-333. 87) See J.A. Menon, “Guantánamo Torture Litigation” 6 Journal of International Criminal Justice (2008) pp. 323-345, at 344. 88) 18 USC 2441. 89) See Amnesty International, Mixed messages: Counter Terror and Human Rights: President Obama’s fi rst 100 days available at http://www.amnesty.org/en/library/info/AMR51/043/2009/en (last visited 12 May 2009) PURL: https://www.legal-tools.org/doc/65afb8/ 90) Ibid. 91) Ibid. 92) A.S. Weiner, supra note 70. 794 De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808 of probing the domestic criminal accountability of the government lawyers who provided the legal framework authorizing the “enforced interrogation techniques” has, consequently, led the doctrine to examine whether not doing so would compromise the international responsibility of the U.S. government. At least two legal grounds have been pointed out in this respect. Th e fi rst one is the aut dedere aut punire clause of Article 7 of the 1984 Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT), 93 ratifi ed by the United States in 199094 followed by the 1994 enactment of the Torture Convention Implementation Act.95 Th e latter makes, on the other hand, provision for the exercise of universal jurisdiction by the very same American courts96 that have not hesitated to consider the fi gure of the torturer “like the pirate and the slaver before him, hostis humani generis – an enemy of all man- kind” 97 when such an alleged torturer happened to be a government offi cial from other nations. Th e second source of international legal responsibility is the common Article 3 of the Geneva Conventions following the Supreme Court judgment of 29 June 2006 in Hamdan v. Rumsfeld, 98 in which the Supreme Court deemed Common Article 3 applicable to a global confl ict with a non-state actor, al-Qaeda, taking place within the territory of a country party to the Geneva Conventions. Th is position was reaffi rmed by one of the three executive orders issued by the U.S. administration on 22 January 2009 where it is noted that “No individual currently detained at Guantánamo shall be held in custody or under the eff ective control of any offi cer (…) except in conformity with all applicable laws governing the conditions of such confi nement, including Common Article 3 of the Geneva Con ventions”. 99 Th e Geneva Conventions respectively incorporate in their Articles 49(I), 50(II), 129(III), and 85(1)(IV) an extradite or prosecute provision in relation to grave breaches of the Convention. Th is can be supplemented

93) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Adopted and opened for signature, ratifi cation and accession by General Assembly resolution 39/46 of 10 December 1984 entry into force 26 June 1987, in accordance with Article 27 (1) accessible at http://www.unhchr.ch/html/menu3/b/h_cat39.htm (last visited 15th May 2009) 94) Th e President signed the treaty on 19 April 1988, and the Senate gave its advice and consent to ratifi cation with certain conditions on 27 October 1990; 136 Cong. Rec. 36, 198 (1990) 95) Torture Convention Implementation, Pub. L. No. 103-236, 108 Stat. 463 (1994) 96) J.D. van der Vyver, “Torture as a Crime Under International Law” 67 Albany Law Review (2004) pp. 427-463, at 434-435. 97) J.Waldron , “Torture and Positive Law: Jurisprudence for the White House”, 105 Columbia Law Review (2005) pp. 1681-1750. 98) Geneva Convention relative to the Treatment of Prisoners of War Adopted on 12 August 1949 by the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War, held in Geneva from 21 April to 12 August, 1949; entry into force 21 October 1950. 99) President Barack Obama, Executive Order of 22nd Jan. 2009,PURL: Review https://www.legal-tools.org/doc/65afb8/ and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities, International Law In Brief (Feb. 6, 2009) “ at Sec. 6, at 4. De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808 795 by Article 131 of the Th ird Geneva Convention relative to the Treatment of Prisoners of War (“No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article”), where a list of graves breaches including torture and inhuman treatment are given. It should be, in this respect, noted that although the recognized applicability of Common Art. 3 Genera Convention does not necessarily lead to the applicability of the Grave Breaches Regime that would only apply to an international armed confl ict, it would fall within the competence of a Court in the examination of its basis of jurisdiction to qualify the nature of the armed confl ict. Th e United States has accepted the competence of the Committee against Torture under Article 21 to receive and consider communications to the eff ect that a State Party claims that another State Party is not fulfi lling its obligations under the Convention which scope is confi ned to instances of state or state sanc- tioned torture.100 Yet, the U.S. has not accepted the competence of the Committee pursuant Article 22 that would have established the competence of the Com- mittee to receive and consider communications from, or on behalf of, individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention,101 nor has it ratifi ed the Optional Protocol to the Convention aiming “at establish(ing) a system of regular visits undertaken by independent international and national bodies (…)”.102 Despite these limitations, the monitoring Committee of the Torture Convention has long been call- ing for the closing of the Guantanamo Bay detention facility103 and to “ensure that perpetrators of acts of torture are prosecuted and punished appropriately”.104 Notwithstanding the absolute character of the ban on torture that it is not dero- gable in any circumstances in accordance with Article 2 of the Convention - where it is also noted that “an order from a superior offi cer or a public authority may not be invoked as a justifi cation of torture” - there have been attempts at grounding a legal distinction regarding the consistency of the decision not to

100) See the diff erent scope of the defi nition of torture as defi ned for purposes of ICC Jurisdiction in Article 7 of the ICC Statute in e.g. J.D. van der Vyver, “Torture as a Crime Under International Law” 67 Albany Law Review (2004) pp. 427-463, at 437-438. 101) Reservation made by United States of America to the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, available online at: http://www.unhchr .ch/tbs/doc.nsf/Statusfrset?OpenFrameSet (last visited 24 May 2009) 102) Article 1 of the Optional Protocol to the Convention against Torture, adopted 18 December 2002, entered in force 22 June 2006. 103) D.M. Amman, Th e Committee Against Torture Urges an End to Guantánamo Detention 10 ASIL Insight 8 (2006) available online at http://www.asil.org/insights060608.cfm (last visited 18 May 2009) 104) See Committee against Torture, Consideration of the second periodicPURL: https://www.legal-tools.org/doc/65afb8/ report submitted by the United States. Conclussions and recommendations, UN Doc. CAT/C/USA/CO/2 of 25 July 2006 available online. 796 De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808 prosecute with the Torture Convention on whether such a decision would be based on policy or prudential grounds, or on the availability of a strong defense in conformity with the reasonable reliance doctrine. According to this interpretation, policy or prudential grounds are not allowed as an exception by the Torture Convention and the decision of the Government to not lead a prosecution before U.S. domestic courts on this basis, would be inconsistent with U.S. obligations under the Convention. Instead, it is argued, Article 7.2, that establishes that “authorities shall take their decision in the same manner as in the case of any ordinary off ence of a serious nature under the law of that State” might allow a decision not to prosecute based on the rationale of the existence of a strong defense according to the U.S. law to be interpreted as consistent with U.S. obligations under the Convention. Th is latest interpretation of the U.S.’ obligations under the Torture convention is not shared by the UN Special Rapporteur on Torture who has stressed that not seeking the prosecution of the CIA interrogators would compromise the international legal responsibility of the U.S. because “like all other states that are part of the UN Convention against Torture, the U.S. is committed to conducting criminal investigations of torture and to bringing all persons against whom there is sound evidence to court”.105 Against this background, it should be recalled that the International Court of Justice has witnessed a recent “revival in the use by states of the institution of diplomatic protection” that, unlike in the past, “has had as its main object and purpose the protection of the rights of the individual”.106 Th e very evidence of the increasing link between human rights and diplomatic protection can precisely be found in recent ICJ cases brought against the U.S. such as the Breard case, 107 LaGrand cases, 108 and the Avena case 109 (followed by the Request for Interpretation of the Judgment of 31 March 2004),110 against the U.S. for violations of the Vienna Convention on Consular Relations. In view of the latter, it would not only detract from the underlying theoretical thrust of the argument111 but would,

105) Amidst the extended press coverage see e.g. http://news.bbc.co.uk/2/hi/americas/8006597.stm (last visited 18 May 2009) For a transcript of Manfred Nowak’s interview see http://www.salon .com/opinion/greenwald/2009/04/25/nowak/ (last visited 18 May 2009) 106) E. Milano “Diplomatic Protection and Human Rights Before the International Court of Justice: Re-Fashioning Tradition”, XXXV Netherlands Yearbook of International Law (2004), pp. 85-142, at 89. 107) Vienna Convention on Consular Relations (Paraguay v. United States of America) International Court of Justice (ICJ), Application instituting proceedings of 3 April 1998. 108) LaGrand (Germany v. United States of America) International Court of Justice (ICJ), Judgment of 27 June 2001. 109) Avena and Other Mexican Nationals (Mexico v. United States of America), International Court of Justice (ICJ), Judgment of 31 March 2004. 110) Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals ( Mexico v. United States of AmericaPURL: ) ( Mexico https://www.legal-tools.org/doc/65afb8/ v. United States of America ) International Court of Justice (ICJ) Judgment of 19 January 2009. 111) Vid. conclusion infra in ﬁ ne. De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808 797 in fact constitute the logical corollary of this parallel line of lego-practical analysis to tackle the chances of seeing the International Court of Justice examining a case brought to its attention at this regard. Yet, before examining the possibility of contentious proceedings before the ICJ, it is worthwhile recalling that the ICJ possesses the power to render advisory opinions on legal questions referred to it by any of the 21 United Nations organs and agencies authorized to request an advisory opinion. Moreover, there is the proviso that, while the UN Security Council and General Assembly can request advisory opinions on any legal question, other organizations may only request advisory opinions on legal questions arising within the scope of their activities pursuant to the UN Charter and the Statute of the ICJ. 112 Despite the advantages for the protection of human rights that the use of advisory proceedings might have in view of the fact that the practice reveals an approach by the ICJ to the exam of its competence which is not diﬀ erent depending on whether the case concerns fundamental human rights or not, one can, nonetheless, realistically discard that a request for an advisory opinion be made in this regard by the General Assembly,113 not to mention by the Security Council of the United Nations. Th e jurisdictional clause of Article 30(1) of the Convention on Torture establishes that, after having met certain preconditions, any state party may refer any dispute concerning the interpretation or application of this Convention “to the International Court of Justice by request in conformity with the Statute of the Court”.114 Yet, the fact that the U.S. has made a reservation according to which

112) U.N. Charter Art. 96 and I.C.J. Statute, Arts. 65-68. Yet since the establishment of the International Court of Justice, this practice of request has led to a total 25 advisory opinions being delivered, and one rejected, by the ICJ, since 1947 (at the request of the General Assembly in six- teen occasions once by the Security Council, two by the ECOSOC, three by the Committee for Review of Administrative Tribunal Judgments, one by the UNESCO, two the WHO and in one case the IMO) which is less than did the Permanent Court of International Justice that rendered 27 advisory opinions between 1922 and 1940 although under the Covenant of the League of Nations only the two principal organs of the organization were entitled to do so. Should the Court be so requested, it should, nonetheless, be recalled that its advisory competence a “unitary one” and that the constant practice of the ICJ in applying article 65 of its Statute is that of dividing the jurisdiction phase of the proceedings in two sections. In the fi rst one, the Court seeks to answer whether it has jurisdiction in proper sense to give the advisory opinion requested. Th is implies, fi rst, that it examines whether the body which requested the advisory opinion was authorized for doing so and, second, it examines whether the question posed is a legal question. Having ascertained its jurisdiction, the ICJ would then proceed to examine whether it exist any “compelling reason” for it to exercise its discretionary power to decline its jurisdiction. See further, S. Rosenne, Th e Law and Practice of the International Court, 3rd Ed (1997), at 698. See as example of case law, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. International Court of Justice, Advisory Opinion of 9 July 2004, at 44. 113) M. Ruff ert, “Special Jurisdiction of the ICJ in the Case of Infringements of Fundamental Rules International Legal Order?” in C. Tomuschat and J.-M. Th ouvenin (eds.),PURL: https://www.legal-tools.org/doc/65afb8/ Th e Fundamental Rules of the International Legal Order , pp. 295-310 (2006). 114) Vid., supra note 93. 798 De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808 it does not consider itself bound by Article 30(1),115 might appear to preclude the matter from any realistic consideration. It constitutes a long-standing established jurisprudence that “there is a fundamental distinction between the question of the acceptance by a State of the Court’s jurisdiction and the compatibility of particular acts with international law; the former requires consent; the latter question can only be reached when the Court deals with the merits after having established its jurisdiction and having heard full legal arguments by both parties.” 116 Th is procedural distinction between jurisdiction and substance that is grounded on the scope of the consensual principle of jurisdictional settlement of disputes before the ICJ, has furthermore, been recently extended in explicit terms to cover applicant’s claims involving both erga omnes obligations and jus cogens on the merits.117 Th is has furthermore been reaffi rmed again in the 2007 Genocide Case where the ICJ restated the jurisdictional constraints that condi- tion its power to rule “on alleged breaches of obligations under peremptory norms or obligations which may be owed erga omnes”. 118 Yet, jurisdictional bar- riers do not, however, interfere with the legal window of opportunity provided by the possibility that an applicant state might, nonetheless, decide to test the international legal resolve of the new Obama administration at a time in which the latter has made public a set of human rights commitments and pledges in support of the U.S. candidacy for membership in the United Nations Human Rights Council to which it was eff ectively elected on 13 May 2009.119 Th is window of opportunity is compounded by the fact that the U.S. “reserves the right specifi cally to agree to follow this or any other procedure for arbitration in a particular case”.120 Having briefl y examined the jurisdictional realm as one defi ned by the sacrosanct character of the classic bilaterally-minded structural traits of the ICJ rules of jurisdiction even in cases where violations of ius cogens are at stake,121 it might be worthwhile looking at the distinct question of ius

115) Vid., U.S. reservations, declarations, and understandings, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Cong. Rec. S17486-01 (daily ed., Oct. 27, 1990) accessible at http://www1.umn.edu/humanrts/usdocs/tortres.html (last visited, 10 May 2009) 116) Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda ) 117) Ibid. at (ref. en p. 175) 118) Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), International Court of Justice, Judgement 27 February 2007, paras. 147 and 148, 2007. 119) See United States Human Rights Commitments and Pledges (27 April 2009), American Society of International Law, International Law in Brief, (1 May 2009) 120) Vid. supra note 115. 121) Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction of thePURL: Court https://www.legal-tools.org/doc/65afb8/ and Admissibility of the Application, Judgement of 3 February 2006, International Court of Justice, General List. No.126. For a fairly critical perspective, see I.de la Rasilla del Moral, “Nihil Novum Sub Sole Since the De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808 799 standi of the claim by a possible applicant state, be it an injured state or a third state in defense of community interests. Th e ILC Draft Articles on Diplomatic Protection were adopted by the ILC in its 58th session (2006) who recommended the elaboration of a convention on the basis of the draft articles to the General Assembly.122 According to them, the exercise of diplomatic protection “consists of the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility”.123 In examining the question of ius standi by an injured state on the basis of the exercise of diplomatic protection, it is ﬁ rst worthwhile noting that despite the 2 nd ILC Special Rapporteur’s eﬀ orts “to explore and develop the emerging human rights dimension of diplomatic protection”, 124 and his consonant attempts at inserting “by way of progressive development a provision that would envisage a duty for the state to exercise diplomatic protection for its national under certain circumstances”,125 the ILC Draft Articles on Diplomatic Protection126 continue to uphold the classical view according to which the exercise of diplomatic protection is discretionary upon the state’s will. Notwithstanding the domestic legal obligations that a State might have vis-à-vis its own nationals according to its domestic law regarding diplomatic protection, Article 14 of the Draft articles therefore conditions the possibility of presenting an international claim respecting an injury to a national127 to the application of the rule of the exhaustion of local remedies except in cases provided as exceptions to that rule in Article 15.128 As for states other than the injured

West-Africa Cases?.On Ius Standi, the ICJ and Community Interests” 10 International Community Law Review , Nº. 2, 2008, pp. 171-197. 122) Res. 61/35 of 4 December 2006 Took note of the draft articles on diplomatic protection, presented by the Commission, and invited Governments to submit comments concerning the recom- mendation by the Commission to elaborate a convention on the basis of the articles. 123) Article 1. Note also however article 8 which extends the possibility that, under certain circumstances, a State may exercise diplomatic protection in respect of a stateless person or a refugee. 124) E. Milano “Diplomatic Protection and Human Rights Before the International Court of Justice: Re-Fashioning Tradition” XXXV Netherlands Yearbook of International Law (2004), pp. 85-142, at 101, vid. pp. 94-101. 125) Ibid., at 94. 126) Draft articles on Diplomatic Protection 2006, Text adopted by the International Law Com- mission at its fi fty-eighth session, in 2006, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session. Th e report, which also contains commentaries on the draft articles, appears in Offi cial Records of the General Assembly, Sixty-fi rst Session, Supplement No. 10 (A/61/10). Available on-line at http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/9_8_2006.pdf (last visited 27 May 2009) 127) “or other person referred to in draft article 8”. See Article 14 in fi ne, supra note. 128) Otherwise Article 15 Exceptions to the local remedies rule (a) ThPURL: ere are https://www.legal-tools.org/doc/65afb8/ no reasonably available local remedies to provide eff ective redress, or the local remedies provide no reasonable possibility of such redress; (b) Th ere is undue delay in the remedial process which is attributable to 800 De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808 one, the fact that it is accepted today that “ICJ proceedings constitute a “right of protection” fl owing from an erga omnes concept” and that “fundamental rights can in general be opposed erga omnes , justifi es affi rming ius standi of any state for the defence of these rights129 ”. In light of this, the theoretical possibility exists that the application of a multilateral treaty (erga omnes contractantes ) that confers the right to enforce that obligation that such a third party could claim ius standi before the ICJ. Th e other available option could be an exercise of actio popularis for a violation of an erga omnes norm under the conditions established by Article 48 of the Draft articles of state responsibility130 including the rule of exhaustion of local remedies. Despite the recent successful use by applicant states of Article 38.5 of the Rules of the Court,131 any state that attempted to test the human rights resolve of the U.S. by presenting a case before the ICJ in this regard, would be confronting the high price of seeing its diplomatic relationships with the U.S. severely strained.132 Th is structural situation will only begin to be overcome when domestic constitutional mechanisms provide for a more state will constraining developed means of international diplomatic protection and when, among others, constitutional advancements provide domestic citizenry with the collective constitutionally enforceable right to see international law respected in case of gross violations of peremptory norms of international law by jurisdictional means at the international level.133 Th is present general lack of mechanisms to allow meaningful citizen participations in matters of foreign policy, and the contemporary executive government’s virtually exclusive control over the availability of international the State alleged to be responsible; (c) Th ere was no relevant connection between the injured person and the State alleged to be responsible at the date of injury; (d) Th e injured person is manifestly precluded from pursuing local remedies; or (e) Th e State alleged to be responsible has waived the requirement that local remedies be exhausted. 129) Christian J. Tams, Enforcing Obligations Erga Omnes in International Law , Cambridge University Press (2005), 186. 130) Responsibility of States for Internationally Wrongful Acts 2001. Text adopted by the Commission at its fi fty-third session, in 2001, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session. Th e report, which also contains commentaries on the draft articles, appears in Yearbook of the International Law Commission, 2001, vol. II (Part Two). Text reproduced as it appears in the annex to General Assembly resolution 56/83 of 12 December 2001, and corrected by document A/56/49(Vol. I)/Corr.4. available on line at http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/9_6_2001.pdf (last visited 24 May 2009) 131) See Ruiz Fabri and Sorel, supra note 75, at 988. 132) A case in point is the legislative reform carried forward by the Belgian Parliament in connection to the scope of universal jurisdiction for Belgian courts in 2003 after the U.S. threatened to pull funding out of NATO headquarters in Brussels and to boycott future meetings, see e.g. M.Chadwick “Modern Developments in Universal Jurisdiction: Addressing Impunity in Tibet and Beyond” International Criminal Law Review (2009) pp. 359-394 at 373. PURL: https://www.legal-tools.org/doc/65afb8/ 133) I. de la Rasilla del Moral, “Nihil Novum Sub Sole Since the West African Cases. On the ICJ, Ius Standi and Community Interests” 10 International Community Law Review Nº.2, 2008, pp. 171- 197, at 195-197. De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808 801

remedies, brings us back to the core question lurking behind the legislative reform of the principle of universal jurisdiction in Spain. Needless to say, that structural gap should not merely be identiﬁ ed with the action of the two major Spanish political parties that have arguably sought to avoid the normal process of public scrutiny in coming up with a hastily drafted amendment, by rushing it through the legislature and bundling such a far-reaching reform into a mundane regula- tory bill.

3. Th e Reform of Universal Jurisdiction in Spain

We have briefl y tackled the likelihood of criminal prosecution in the U.S. domestic law system and international settings of the perpetrators and those who formulated the legal guidance authorizing the “enhanced interrogators techniques” as well as the ensuing questions of jurisdictionalibity concerning the international responsibility of the U.S triggered by its non-compliance with its duties under existing “aut dedere aut judicare” binding clauses. Attention should now be paid to the possibility that individual CIA interrogators and lawyers might yet be subjected to investigations and criminal prosecution by other States on universal jurisdiction grounds. Spain, as already noted, has been defi ned as “one of the world’s most welcoming forums for cases based on universal jurisdiction over certain international crimes”134 on behalf of the international community. Cur- rently there is a decision pending before Spanish Judges whether to proceed on the basis of a claim presented against six high-level Bush administration lawyers including former U.S. General Attorney Alberto Gonzales. Th e decision is subject to the outcome of the international interrogatory commission addressed at the U.S. Government. Th ere is also a writ by Judge Garzón to initiate proceedings against the “perpetrators, the instigators, the necessary collaborators and accomplices” for alleged tortures at the Guantanamo camp and other overseas detention facilities. In view of the latter, it might well be expected that the Spanish judicial system might contribute to tackling the referred jurisdictional loopholes even if only at a symbolic level. Th e jurisdictional basis of the Spanish legal system in this regard are twofold; fi rst, by reference to crimes of war, if it is considered that the facts were committed in the context of an armed confl ict (Art. 608 and ff . of the Spanish Criminal Code) in reference to prisoners protected by the Th ird Geneva Convention of 12 August 1949, or by the Additional Protocol of 8 June 1977. Second by reference to crimes against humanity (Arts. 607 bis 8. of the Criminal Code related to torture) in respect of which the Spanish legal system (Arts. 96 CE and Arts. 23.4 i) LOPJ) authorizes a direct invocation before the Spanish courts persuant the principle of universal PURL:jurisdiction https://www.legal-tools.org/doc/65afb8/ in accordance

134) Roth-Arriaza, supra note 1, at 207. 802 De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808 with the Spanish ratifi cation in 1987 of the Torture Convention of 1984 and, in 2002 of its Optional Protocol. Yet, as already noted, the days of the Spanish legal system as the champion of the principle of universal justice in international law are numbered. First, there was the approval of the Spanish Parliament by bipartisan consensus (339 votes in favour, 8 against, and one abstention) of one of the 45 resolutions to the Debate of General Politics on the State of the Nation on 19 May 2009. Th is resolution was contained in Amendment 7 of the “Amendments to the Project of the Law of Procedural Legislation for the Implementation of Judicial Offi ce”. 135 On 25 June 2009, the Congress of Deputies (lower house of the Spanish Parliament), passed by majority vote (with merely 2 votes against and 3 abstentions), Project 121/000028 of Complementary Organic Law of the Law of Reform of the Procedural Legislation for the Implementation of the New Judicial Offi ce in conformity with Article 81 of the Spanish Constitution, by which it modifi ed the Organic Law 6/1985 of 1 July of the Judicial Branch.136 In the Preamble of the latter, it is noted that “the spirit of modernization that fosters the Project for the reform of the procedural legislation for the implementation of the New Judicial Offi ce has introduced in the public debate a fruitful refl ection on the convenience of projecting it to other related domains. As a consequence of this refl exive dialogue, generated within and outside the Parliament, it has been deemed appropriate to introduce some changes in the Organic Law of the Judicial Branch with the purpose of accompanying that implementation and to assist in the development of certain technical improvements long requested. Among the latter, there are a series of reforms addressed at the smoothing of justice that have as their goal the optimization of resources and the amelioration of the manner in which justice is provided as a public essential service”. 137 It is in the context provided by this Preamble that the reform of the principle of universal jurisdiction in Spain has been addressed. Th e modifi cation of Article 23 of the LOPJ is expressly designed to “incorporate types of crimes which were not included and in which prosecution is covered in international conventions and customary international law as crimes against hum anity and crimes of war. On the other hand, the reform allows

135) Enmiendas al proyecto de Ley de reforma de la legislación procesal para la implantación de la ofi cina judicial, at 17-18. 136) 121/000028 Proyecto de Ley Orgánica complementaria de la Ley de Reforma de la Legislación Procesal para la Implantación de la Nueva Ofi cina Judicial, por la que se modifi ca la Ley Orgánica 6/1985, de 1 de julio, del Poder Judicial. Boletín Ofi cial de las Cortes Generales. Congreso de los Diputados, IX Legislatura. Serie A: Proyectos de Ley 6 de Julio de 2009. Núm- 28-3. 137) Preámbulo 121/000028 Proyecto de Ley Orgánica complementaria de la Ley de Reforma de la Legislación Procesal para la Implantación de la Nueva Ofi cina Judicial, por la que se modifi ca la Ley Orgánica 6/1985, de 1 de julio, del Poder Judicial.Boletín Ofi cial de las Cortes Generales. Congreso de los Diputados, IX Legislatura. Serie A: Proyectos de Ley 6 de JulioPURL: de 2009. https://www.legal-tools.org/doc/65afb8/ Núm- 28-3. Boletín Ofi cial de las Cortes Generales. Congreso de los Diputados, IX Legislatura. Serie A: Proyectos de Ley 6 de Julio de 2009. Núm- 28-3. De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808 803 the adaptation and clarifi cation of that article in accordance with the principle of subsidiarity and the doctrine surged from the Constitutional Court and the jurisprudence of the Supreme Court”.138 Alongside the reform of Arts. 23.4 and 23.5 of the LOPJ (universal jurisdiction), other provisions of the Organic Law of the Judicial Branch aff ected by the very same reform are Art. 82 (tackling the competence of the Provincial Courts in Criminal Law), Art. 311 (vacancies in the magistrates’ corps), Art. 334 (idem.), Art. 347 bii. (creation of judges of territorial adscription), Art. 371 (holidays for Judges and magistrates) and Art. 453 (judicial secretaries). After its approval by the Spanish Congress of Deputies on 25 June 2009, the bill of legislative reform was forwarded to the Senate for approval. In accordance with Art. 81 of the Spanish Constitution as developed by the Standing Orders of the Congress of Deputies139 ( Title V, Chapter III, “Special rules of legislative procedure”, Section I “Organic Bills”: Arts. 130-132), the Senate “might exercise its veto or make amendments to an Organic Bill”. According to Art. 106 of the Standing Orders of the Senate, 140 the latter disposes of two months of its ordinary period of sessions whether to approve it, exercise its veto or make amendments to it.141 Th e reformed provision will enter in vigour the day following its publication in the Offi cial Bulletin of the State, in all likelihood, before the end of 2009. As a result of the reform, Article 23.4) and Article 23.5) of the Organic Law of the Judicial Branch142 would soon read as follows:

138) Ibid. 139) Standing Orders of the Congress of Deputies, available in English at http://www.congreso.es/ portal/page/portal/Congreso/Congreso/Informacion/Normas/standing_orders_0.pdf (last visited 21 July 2009) 140) Reglamento del Senado, available in Spanish at http://www.senado.es/reglamen/index.html (last visited 22 July 2009) 141) Although one should not discard the possibility of amendments to the fi nal text in the Senate, the possibility remains unlikely. On the one hand, it should be recalled that the reform, a long standing request of the conservative party, is the result of a pact of legislative reform by bipartisan consensus of the two main political parties with the Senate currently dominated by a majority of the conservative party (123) followed by the socialist party (104) out of a composition of 264. Furthermore, should any amendment be passed, the legislative preeminence of the Lower House of the “Cortes Generales” (Parliament) vis-à-vis the Senate conceived as territorial chamber is clearly established in the Spanish constitution. A reading of Art.132 of the Standing Orders of the Congress of Deputies is revealing in this respect. “If the Senate exercises its veto or makes amendments to an Organic Bill, the rules for the ordinary legislative procedure shall be observed, with the following two exceptions: 1. Th e ratifi cation of the initial text, and the consequent lifting of the veto, shall in all cases require the affi rmative vote of the overall majority of Members of Congress. 2. Th e text resulting from the inclusion of amendments made by the Senate and passed by the Congress shall be put to the vote as a whole. If the overall majority of Members of the House vote in favor, it shall be defi nitively passed as it stands. If not, the initial text adopted by the Congress shall be ratifi ed and all the amendments proposed by the Senate shall be rejected”. 142) Th e only divergence between the earlier Amendment and thePURL: fi nal https://www.legal-tools.org/doc/65afb8/ text is the inclusion of “crimes of war” in Art. 23.4.a). Compare Enmiendas al proyecto de Ley de reforma de la legislación procesal para la implantación de la ofi cina judicial, at 17-18. 121/000028 Proyecto de Ley Orgánica 804 De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808

Article 23.4) Spanish courts will equally have jurisdiction over acts committed by nationals or foreigners outside the national territory that can be classifi ed, according to Spanish Criminal Law, as one of the following crimes a) Genocide, crimes against humanity and crimes of war b) Terrorism c) Piracy and illicit seizure of aircraft d) crimes related to prostitution and cor- ruption of minors or the handicapped e) illegal traffi cking of psychotropic, toxic and narcotic drugs f) Human Traffi cking and clandestine immigration of persons, whether or not workers g) Th ose related to female genital mutilation, if the responsible are in Spain h) any other crimes that, under international treaties or agreements, must be prosecuted in Spain. Notwithstanding whatever may be provided in other treaties and international conventions ratifi ed by Spain, the Spanish courts shall only have jurisdiction over the above crimes when it has been duly shown that their alleged responsible are present in Spain, or that the victims are of Spanish nationality, or that there is some demonstrated relevant link with Spain and that, in any event, there is no other competent country or international tribunal where proceedings have been initiated that constitute an eff ective investigation and prosecution, in the event, of the punishable facts. Th e criminal process initiated before the Spanish jurisdiction shall be provisionally superseded when there exist a proof of the beginning of other process over the denounced facts in the country or by the court to which the preceding paragraph makes reference. Article 23.5) If a criminal cause was opened in Spain in cases regulated in the previous sections 3 and 4, it will be in all cases of application what it is disposed in letter c) section 2 of the present article.

Th is article enshrines the legislative rebuff of the Guatemala Doctrine by herald- ing a project of legislative reform of Article 23.4 informed by the principles of iudex aprehensionis – otherwise, cases in which the alleged perpetrators are already in Spain – the subsidiary principle – so to cover only those cases where non judicial process is in course in the state of the delicti commissi - and the principle of passive personality, which includes the necessary existence of Spanish victims to prosecute crimes committed in foreign countries. It does also establish that any criminal case initiated before the Spanish jurisdiction will be “provisionally superseded” the moment there is proof that the same facts are being “judged in the country where the criminal deeds were committed or by an international tribunal”. To this set of jurisdictional conditions one should add the requirement established by the res judicata clause of Article 23(2) of the LOPJ as declared applicable to the exercise of universal jurisdiction by Article 23(5). While the reform is not retroactive per se, it does include procedural modifi cations, an aspect that implies that the rule most favourable to the accused will be applied, thus determining the dropping of a number of open causes based on the previous interpretation provided in the Guatemala’s doctrine by the Constitutional Court of Article 23.4 LOPJ. Yet, not all of the causes currently opened on the basis of universal jurisdiction before the Spanish National court will be equally aff ected

complementaria de la Ley de Reforma de la Legislación Procesal para la Implantación de la Nueva Ofi cina Judicial, por la que se modifi ca la Ley Orgánica 6/1985, dePURL: 1 de https://www.legal-tools.org/doc/65afb8/ julio, del Poder Judicial. Boletín Ofi cial de las Cortes Generales. Congreso de los Diputados, IX Legislatura. Serie A: Proyectos de Ley 6 de Julio de 2009. Núm- 28-3. De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808 805 by the reform. By the time the reform by the Spanish government restricting the National court’s jurisdiction comes into force, it would mean the dismissal of fi ve international investigations—three dealing with China and two with Israel. As for the Guantanamo’s investigations, they will remain opened only as far as the Spanish national, Mr. Hamed Abderraman Ahmed, is aff ected.

4. Conclusion

Th e eff ort to “end the culture of impunity” embodied by the fi eld of international criminal law – in a strongly expansionary basis since the early 1990s and greatly boosted within international humanitarian law by the former Yugoslavia’s war experience -143 stands as one of the fl agships of the universalization of the rule of law, otherwise the “renewed urge today to think about international politics in terms of domestic categories”.144 As a historical legal phenomenon not devoid of dark sides,145 the extension of the rule of law to the international plane has not been without attracting criticism related to the very development of international criminal justice. If some years ago, a participant in the drafting of the Statute of the International Criminal Court could arguably claim “reader, imagine our exhaustion when we observe our innovation, our jurisdictional novelty con- structed in the prevailing conceptions of power and structure”,146 others, such as M. Koskenniemi have thoroughly examined the manner in which a trial such as that of Milosevic in Th e Hague “does automatically reinforce the hegemony of a contested, political interpretation of the international world.”147 Th e development of the fi eld of international criminal justice has also in parallel contributed to the “growth in the number of international courts, the expansion of their jurisdiction powers and dockets and the renewed interest in the application of international law by some national courts”,148 otherwise to the gradual emergence of a “new international judiciary with a new ethoi,” now arguably addressed to “norm advancement and regime maintenance”.149 Indeed, it is currently argued that a

143) T. Meron ,”War Crimes Comes at Age” 92 American Journal of International Law, 1998, 462. 144) M. Koskenniemi “Between impunity and show trials” Max Planck Yearbook of United Nations Law, Volume 6, 2002, pp. 1-35, at 2. See, also, M. Koskenniemi, “Entre impunité et procès spec- tacle” in M. Koskenniemi, La Politique du droit international, (Introduction critique by Emmanuelle Jouannet), Editions A. Pédone, 2007, pp. 227-262. 145) Vid. e.g, recently, U. Mattei & L. Nader , Plunder: When the Rule of Law is Illegal, Wiley- Blackwell, 2008. 146) I. Talgren, “We Did it? Th e Vertigo of Law and Everyday Life at the Diplomatic Conference on the Establishment of an International Criminal Court” 12 Leiden Journal of International Law , 1999, pp. 683-707, at 695. 147) Ibid. at 227. 148) Y. Shany, “No Longer a Weak Department of Power? Refl ectionPURL: on https://www.legal-tools.org/doc/65afb8/ the Emergence of a New International Judiciary” 20 European Journal of International Law 1, 2009, pp. 73-91, at 90. 149) Ibid. at 81. 806 De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808 number of national courts in democratic states are engaging in an “inter-judicial interaction (that) has at least the potential of both providing an eff ective check on executive power at the national and international levels alike and promoting the ideals of the rule of law in the global sphere”.150 Whether critical or descriptive, the truth remains that this set of exemplary lego-scholarly considerations appear to loom very far away from the character adopted by the domestic debate on the reform of the principle of universal jurisdiction in Spanish quarters. A stock-taking of arguments favourable to the legislative reform oriented at coming up with “a reasonable criterion for self-restraint in order to avoid a proliferation of proceedings involving foreign and distant crimes”151 does include, fi rstly, pragmatic considerations dealing with the waste- ful of resources and personnel in an over-burdened and slow judicial system. Secondly there is a stress on the actual ineff ectiveness of the jurisdictional mechanisms because Spanish judicial investigations have so far resulted in only one (Scillingo) conviction. Th irdly, there is an implicit acknowledgement of the existence of diplomatic and economic pressures from powerful countries and Western allies alike, behind which lurks a realpolitik strategic conception of the role of Spain in the international plane as a rising power with economic, political and cultural interest worldwide. Th is assessment is epitomized by both the President of the General Advisory Council of the Judicial Power and the Supreme Court according to whom “Spain cannot become the judicial police of the world”.152 Fourthly, there exist political stress on the need for curtailing the vehicle of undue political public-media exposure that the principle of universal jurisdiction has provided to a number of star-judges as echoed by Spain’s Attorney General.153 Finally, the socialist government has, furthermore, defended the convenience of the reform as agreed to by the main opposition party by stressing that the new article introduces benefi cial modifi cations to help fi ght impunity e.g., the addition of crimes against humanity and crimes of war to the list of admissible crimes. Th e government has also stressed that the reform will set the ground for a better adaptation of the Spanish practice to the work on the common standards on this realm by the EU and other neighboring countries.154

150) E.Benvenisti and G.W.Downs, “National Courts, Domestic Democracy, and the Evolution of International Law” 20 European Journal of International Law 1, pp. 59-72, at 60. 151) Ibid. Findings of fact 2.e.4., at p. 6. 152) El Mundo, 5/05/2009, “Dívar, sobre la jurisdicción universal: ‘No somos los gendarmes del mundo” accessible at ‘ http://www.elmundo.es/elmundo/2009/05/04/espana/1241452393.html (last visited the 15th July 2009) 153) Vid., supra note 63. 154) Th e path taken by the European Union to come to terms withPURL: the African https://www.legal-tools.org/doc/65afb8/ Union, as reﬂ ected in the April 2009 AU-EU Expert Report on the Principle of Universal Jurisdiction . De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808 807

Although “as with many other complex social phenomena or institutions any criminal justice system operates in a world of likelihoods, possibilities and beliefs that does not easily submit itself to empirical truths or critical analysis”,155 one is, yet, left with the impression that the forthcoming defi cit of Spanish practice in the fi eld of universal justice will not help international criminal justice to be made more eff ective in pursuing its, otherwise, disputed 156 “rational and utilitar- ian” purpose: the “prevention and suppression of criminality” in face of the more atrocious state-sponsored crimes in the world, or in the words of K. Annan in helping humanity to “strike back”.157 Th e latter is, in fact, the perspective that appears to underlie the joint communiqué of human rights organizations that have qualifi ed the day of the legislative reform as “a day of mourning for international justice”158 and a number of manifestos against the curtailment of the scope of Article 23.4 LOPJ.159 Yet, amidst all these criticisms by which Spain is now shamefully portrayed as a country that will very soon be possessing “one of the most restrictive systems of universal jurisdiction worldwide”,160 no word has been addressed to the structural legal limitations of the political system of almost exclusive representative democracy forms prevailing in Spain. Th e fact remains that no mechanisms of control based on forms of direct democracy of foreign policy decisions – as epitomized by the extremely limited reach of the popular legislative initiative or the institution of the referendum as conceived by the Spanish legislator161 – exist in Spanish law. In the same manner that was high- lighted in connection with the unlikelihood of the initiation of international law proceedings against those allegedly responsible for Guantanamo’s tortures on the international plane, the work of international law in the face of inhumanity will

155) I. Talgren , “Th e Sensibility and Sense of International Criminal Law” 13 European Journal of International Law 3, 2002, pp. 561-595, at p. 570. 156) M. Koskenniemi, supra note 144. 157) Address by the UN Secretary General on 15 June 1998, quoted in I. Talgren, supra note 137, at 683. 158) “Día de luto para la justicia universal” Comunicado conjunto de Amnistía Internacional y otras siete organizaciones, 25 de junio 2009, accessible at http://www.elpais.com/elpaismedia/ ultimahora/ media/200906/25/espana/20090625elpepunac_1_Pes_PDF.pdf (last visited 21 July 2009). 159) Vid., e.g. “Justicia Universal - Manifi esto contra la impunidad”, 14 July 2009 available at http:// www.es.amnesty.org/noticias/noticias/articulo/manifi esto-contra-la-impunidad/ (last visited 22 July 2009) Vid also “Manifi esto sobre la reforma legislativa que introducirá limitaciones al ejercicio de la justicia universal”, 2 de junio 2009, accessible at http://www.elpais.com/ elpaismedia/ultimahora/ media/200906/02/espana/20090602elpepunac_2_Pes_PDF.pdf (last visited 21 July 2009) 160) Ibid. (1). 161) For the most incisive lego-oriented work on the limitations of the model of representative democracy in Spain, Vid. Ramón Soriano & Luis de la Rasilla, Democracia vergonzante y ciudadanos de perfi l, (Biblioteca Comares de Ciencia Jurídica, Ed. Comares,PURL: 2002). https://www.legal-tools.org/doc/65afb8/ Vid. also R.Soriano et al. (eds.) Repensar la Democracia, Aconcagua Libros, 2004. 808 De la Rasilla del Moral / International Criminal Law Review 9 (2009) 777–808 also be arguably better prepared to react against domestic legislative drawbacks such as the one represented by the reform of universal justice in Spain in the future should domestic legal mechanisms allowing forms of democratic participa- tion on the international plane in accordance with new dynamic conceptions representation become gradually established in domestic legislations throughout the twenty-fi rst century, thus enhancing a more profound relationship between democracy and international law.

PURL: https://www.legal-tools.org/doc/65afb8/