Joan Garces, Lawyer and Professor International Relations
This article originally
appeared in the magazine "Jueces para la Democracia. Información
y Debate," number 28, March 1997 in Madrid. It expands
upon the article published in Diario 16, also of Madrid, Oct.
On July 4, 1996 D. Miguel
Miravet, Prosecutor of the Valencia Superior Court of Justice,
as President of the Progressive Union of Prosecutors of Spain
filed a denunciation for presumed crimes against humanity,
genocide (national) and terrorism (national and international)
committed between 1973 and 1990 by Augusto Pinochet, Gustavo
Leigh and others. The denunciation identifies seven Spanish
citizens who were murdered or made to disappear by agents
under orders of the accused. Its legal foundations derive
from the Bilateral Extradition Treaty between Chile and Spain,
and International Criminal Law ratified by both States. Later,
the President Allende Foundation of Spain filed a complaint,
which identified a dozen Spanish citizens and descendants
of Spaniards, among the more than three thousand people murdered
and/or disappeared. The Central Trial Court accepted the complaint
and initiated judicial proceedings. After a favorable resolution
from the Justice Ministry, the Court declared that it had
competency to hear the crimes charged.
This case has awakened
hopes and the willingness to cooperate in many countries,
first of all, among the families of the victims. Several thousand
people have joined the lawsuit as plaintiffs or exercise popular
judicial action. They see in this case the possibility to
overcome the absolute impunity enjoyed by those responsible
for the crimes. International humanitarian law bodies, including
the experts at the International Court of The Hague who are
prosecuting crimes in the former Yugoslavia, |1|,
expressed solidarity and support for the confirmation of the
High Court's jurisdictional competency to judge crimes against
humanity that affected Spaniards and are still unpunished
in the country where the crimes were committed. Prosecutors
of Washington D.C. and FBI agents, who investigated the assassination
by agents of Pinochet of Orlando Letelier and Ronni Moffit,
offered to share their experience with the Spanish judge.
The initial studies published in universities of the United
States praise the way the case has developed.
The case, currently
underway in the Audiencia Nacional for crimes against humanity,
faces complex technical-legal and political-diplomatic problems.
Various different entities of the Spanish government and the
international community must collaborate to overcome these
problems. In this article, we analyze aspects of the principle
of double incrimination.
"Principles of Nuremberg"
On February 13, 1946
the United Nations General Assembly adopted resolution 3 (1),
which "takes note of the definition of war crimes, crimes
against peace and crimes against humanity as stated in the
Statutes of the Military Tribunal of Nuremberg on August 8,
1945." In its resolution 95 (I) of December 11, 1946, the
UN General Assembly "confirms the principles of International
Law recognized by the Tribunal of Nuremberg and by the Sentence
of that Tribunal." These
resolutions have the effect of enshrining as universal law
rights created in the Statute and Sentence of the Nuremberg
Tribunal. (Nur. U.S. Mil. Trib, 4 Dec. 1947, Justice Trial,
A.D., 1947, 282; Canada, High Court of Justice, 10 July 1989,
Regina v. Finta, I.L.R., 82, p. 441). Its application in Spain
was recognized previously by ratification of the Geneva Convention
of 12.VIII.1949 (BOE 5.IX.1952 y 31.VII.1979), which in its
art. 85 expressly refers to "Principles of Nuremberg" approved
by the UN General Assembly on 11.XII.1946. The
UN General Secretary's Report on the creation of an International
Tribunal to try persons responsible for crimes committed in
the former Yugoslavia since 1991, cites other conventions
that, in his opinion, have been incorporated as if common
law in International Law, as:
The Secretary General's confirmation
of the common law nature of these instruments is binding upon
all States in conformance with the art. 25 of the UN Charter,
as the Security Council approved the General Secretarys
Report without reservations (S/Res. 827, May 25, 1993, parag.
The Norms of The Hague, 1907,
Statutes of the 1945 International
Military Court of Nuremberg ,
Convention against the crime
of genocide, 1948,
The Geneva Conventions of
Geneva Conventions are in force in Spain and Chile:
Geneva Conventions I and
II, of 12.VIII.1949 (RCL 1952/1193 y NDL 15192), and the
Additional Protocol I of June 8, 1977 (RCL 1989/1646,
Geneva Convention III, of
August 12, 1949 (RCL 1952/1251 and NDL 24622), and Additional
Protocol I of 8.VI.1977 (RCL 1989/1646, 2187 and 2197),
Geneva Convention of 12.VIII.1949
(RCL 1952/1184 and NDL 15379), Additional Protocol I of
1977 (RCL 1989/1646, 2187 and 2197),
Additional Protocols I and
II to the Geneva Conventions of 12.VIII.1949, regarding
the protection of victims of international and non-international
armed conflicts, drafted in Geneva 8.VII.1977 (BOE 26.VIII.1989,
Convention II of The Hague
of 29.VIII.1899 (on congressmen and persons who accompany
them), and Additional Protocol II of 8.VI.1977 (RCL 1989/1946,
2187 and 2197), also incorporated in Spanish Criminal
Code (cap. III, art. 608 and ss).
Also incorporated in
Chilean national law are conventions prior to those of Geneva,
with equivalent principles of International Law. These include
the 1925 Military Justice Code; the regulations and principles
of The Hague Conventions of 1899 and 1907; the 1863 Lieber
Code; the 1874 Brussels Declaration on laws and practices
of war; the Geneva Convention of 1864; the St. Petersburg
Declaration of December 1864.
In Article 3, the four
Geneva Conventions of 12.VIII.1949 establish fundamental provisions
applicable to all armed conflicts, including non-international
or internal conflicts that prohibit "at any time and at any
place" the following acts:
a) To take a life
and affect the physical well-being of persons, and all forms
of murder, mutilation, b) taking of hostages;
c) violation of the dignity of persons, especially
humiliating and degrading treatment...
In all Conventions the
list of violations includes premeditated murder, torture,
inhumane treatment, including biological experimentation,
intentional infliction of suffering or physical injury and
conditions injurious to health.
Convention IV prohibits
collective convictions, intimidation, looting, reprisals (art.
33). A war crime may also
be a crime against humanity if motivated and directed against
persons for political, racial or religious reasons, as underscored
by the French High Court in its Sentence of 20.XII.1985 (Barbie
case), and The International
Law Commission (Rapport C.D.I., 1987, doc. UN A/42/10, p.
Resolutions 1074 (XXXIX) and
1158 (XLI) of the UN Economic and Social Council, July 28,
1965 and August 5, 1966, refer to the punishment of war
criminals and individuals guilty of crimes against humanity.
of the crime against humanity
The Statutes of the
Nuremberg Tribunal, in art. 6.c) define as crime against humanity:
submission to slavery, deportation, and any other inhumane
action committed against any civilian population, before or
during a war, any politically motivated persecution, or racial
and religious persecution, even when such actions or persecutions
are not a violation of internal law of the country where they
have been committed, constitute a crime under the competency
of the Tribunal
courts applied this article after 1945, and, subsequently,
the following courts did also:
a) The concept of incrimination
derives from international repressive policy that transcends
national borders. b) It also stems from the
adhesion of France to this policy of repression, c)
the enshrining through UN General Assembly resolution 13.II.1946
of the definition of crimes against Humanity as set forth
in the Nuremberg Court Statutes, and, d) the recommendation
in this UN resolution to member States to prosecute or extradite
authors of such crimes. The legal basis rests in article 15.2
of the International Pact on Civil and Political Rights of
19.12.1966 (and art. 7.2 of the European Convention on Rights
of Man), that states that the principle of non-retroactivity
of criminal laws is not contrary to the prosecution and conviction
of persons for actions qualified as "criminal according to
general principles of law recognized by the community of nations."
were it so to the non-retroactivity of criminal
law has been applied in the penal prosecution against an individual
accused of hijacking an airplane when this action is not punishable
for the ius fori at the time it was committed (Sri Lanka,
Cr. of App., 28.5.1986, Ekanayake case, I.l.R., 87, p. 298).
In 1961, the Jerusalem District
Court and the Supreme Court of Israel (Eichmann case.
I.L.R., 36, p. 39-42, 45-48,288, 295),
in 1971, courts of Bangladesh
in the request for extradition to India by Pakistani officials
"for acts of genocide and crimes against humanity " (C.I.J.
Annuaire 1973-1974, p. 125),
In 1981, the Netherlands
Supreme Court in the Menten case (N.Y.I.L., 1982, p. 401
In 1983, by the High Court
of France in the Barbie case, drew from art. 6.c) with
the following criteria (subject to application in Spain
Essayists Andre Huet and Renee
Koering-Joulin [Droit Penal International, Presses
Universitaires de France, Paris, 1993, p. 52] sustain:
In 1989, by the Ontario Superior
Court of Justice (Canada) in the Finta case (10.5.1989,
I.L.R., 82, 438 s.).
"This class of crimes
(...) is broader than war crimes (...) and is susceptible
to be committed by States against their own citizens (...)."
For D. Thiam, UN International
Law Commission Special Observer,
"An inhuman act committed
against a single person may constitute a crime against Humanity
if considered in the context of a systematic pattern or if
the execution forms part of a plan, or if repetitive in nature
and leaves no doubt about the intentions of the author. (
An individual act may constitute a crime against Humanity
if it ascribes to a context of a coherent and repeated set
of acts committed under the same motive: political, religious,
racial or cultural" (Rapport C.D.I., 1989, p. 147, parag.
147). Likewise, "the
characteristics of a crime against humanity" may be ascribed
not to one single case of forced disappearance but rather
to the "systematic practice" of forced disappearances.
(A/Res. 47/133, Dec. 18, 1992, preamble, clause 4). The
Nuremberg Court Statute states in its,
"In all cases in which the Tribunal
has proclaimed the criminal nature of a group or an organization,
authorities shall have the right to compel any individual
to appear before the courts (...), on the basis of membership
in this group or organization. This principle holds that the
criminal nature of the group or organization shall be considered
as proven and no further discussion on this point shall be
Art. 6, leaders who have
participated in a plan designed to commit crimes against
humanity are responsible for the acts others commit in
execution of that plan,
Art. 7,established that
the position of Head of State or any other high-ranking
official does not grant immunity from prosecution nor
does any government office serve as extenuating circumstances
Art. 10 states
The "National Intelligence
Directorate" (DINA) was termed a "criminal organization
" by the Sentence handed down by the Supreme Court of Chile
on May 30, 1995 (Letelier case).
of the International Criminal Court on the former Yugoslavia.
Created in 1993, its
art. 10 provides that the non bis in idem rule does not prevent
the court from trying a person who already stood trial in
another State, if in that State, that event is not deemed
to be a violation of common law, or if the proceeding appears
to deny justice. The unequivocal nature of this exception
makes it possible to prevent the accused from shielding himself
behind pro forma proceedings. In
sum, whenever there is agreement on criteria on the serious
and massive nature, and political, racial, religious, social
or cultural motivated acts, crimes against humanity consist
However, motive is not a determining
factor in all crimes that affect peace and security of humanity.
The International Law Council of the UN considers in this
class of crime the "systematic or massive violation of the
rights of man," persecution for political, racial or
religious reasons, but also persecution for " social or cultural
reasons" (proposal for Criminal Code on crimes against the
security of humanity, art. 21); as well as crimes that are
"systematic or massive violations of the rights of man"
premeditated murder, torture, imprisonment, rape,
forced disappearances, slavery - according to art. 5 of Statutes
of the Court on the former Yugoslavia.
art. 6; Statues of the Court on the former Yugoslavia,
art. 5.a), homicide (Tokyo, art. 5.c),
art. 6.c; Statutes of the Court on the former Yugoslavia,
art. 6.c; Statutes of the Court on the former Yugoslavia,
of the Court on the former Yugoslavia, art. 5.d),
Any other inhuman act
committed against any civilian population (Nuremberg,
art. 6.c; Statutes of the Court on the former Yugoslavia,
Persecution for political,
racial, or cultural motives (Nuremberg, art. 6.c;
Statutes of the Court on the former Yugoslavia , art.
5.h) and social or cultural motives (proposal
for penal code on crimes against the security of humanity,
Genocide (1948 Convention,
Apartheid (1973, Convention
n 10 enacted by the Allied Control Council in Germany,
1945, art. II, 1.c; (Statutes of the Court on the former
Torture (Law n 10
enacted by the Allied Control Council in Germany, 1945,
art. II, 1.c, Statutes of the Court on the former Yugoslavia,
Rape (Law n 10 enacted
by the Allied Control Council in Germany 1945, art. II,
1.c, Statutes of the Court on the former Yugoslavia, art.
The systematic practice
of forced disappearances (Resolution 47/133 of the
UN Gen. Assembly, 18.XII.1992),
The use of atomic weapons
in determined circumstances (Sentence of the International
Court of Justice, 1996).
of application ratione personae.
Regarding the victims,
unlike war crimes, crimes against humanity exist independent
of bonds of nationality or other kind that the author of the
crime may share with the victim
application of criminal law in crimes against humanity.
The International Pact
on Civil and Political Rights, 19.XII.1966, ratified by Chile
and Spain (BOE 30.IV.1977), in art. 15 incorporates the principle
of "national o international" nullum crimen sine
lege, but adds in its paragraph 2:
"Nothing set forth in
this article shall preclude trial or conviction of a person
for acts or omissions that, when committed, were criminal
actions according to general principles of law recognized
by the international community."
Such is also the case
in art. 7 of the Convention for the protection of Human Rights
and Fundamental Freedoms, Rome, 4.XI.1950 (BOE 10.X.1979 and
Neither statutes of limitation
nor amnesty laws are applicable.
International Law generally
does not admit statutes of limitation. And crimes against
humanity must comply with the greater legal framework,
in other words, International Law. The following texts establish
the inadmissibility of statutes of limitation:
- the UN General Assembly
Declaration on forced disappearance of persons, approved
by consensus on 18.XII.1992 (A/Res. 47/133),
- Art. 1 of the Europe Council
Convention 25.I.1974, on lack of applicability of statutes
of limitation in war crimes and crimes against humanity,
- Resolution 291 (XXIII)
of the UN General Assembly, approved Dec. 9, 1968, on
the non application of statutes of limitation to war
crimes and crimes against humanity, "confirms that
no time limit for prosecution is set in the solemn declarations,
agreements or conventions related to the prosecution
and restraint of crimes of war and crimes against humanity."
Its art. I.b) states:
"Regardless of the date
committed, (...) crimes against humanity, whether committed
in time of war or time or peace (...), are not subject to
statues of limitation, even if such acts do not violate internal
law in the country committed, are not subject to statutes
Its article III establishes
the obligation to allow extradition.
This Convention came
into effect on Nov. 11, 1970.
The Criminal Code of
Spain establishes that "the crime of genocide shall never
be subject to statutes of limitation." (Art. 131).
It is the opinion of
Mertens [in "L'imprescriptibilité des crimes de
guerre et contre l'Humanité",Univ. de Bruxelles, 1974,
"Laws of oblivion (such
as amnesty laws) are considered not permissible for crimes
perpetrated against a community, nations, and humanity. By
their nature, such crimes are not subject to statutes of limitation.
If for technical reasons related to the current status of
the evolution of positive law, such crimes cannot be repressed
beyond the internal arena, then they must be repressed in
accordance with international law, recognizing it preeminence
over national law".
is due obedience an exception.
Such is established
in the following documents:
Art. 8 of the Statutes of
the International Nuremberg Military Court,
Resolution 95 (I) of the
UN Gen. Assembly, December 11, 1946,
Art. 2.3 of the United Nations
Convention Against Torture, 10.XII.1984,
Art. 7.3 of the International
Penal Court for the former Yugoslavia,
Art. 6 of the UN General
Assembly Declaration, 18.XII.1992, on protection against
UN International Law Commission,
in the formulation of the Principles of Nuremberg in 1950
(Y. bk. of the I.L.C., 1950, II, pp. 374-378), as well
as its proposals for Penal Codes for crimes against peace
and security of humanity, 1954 (art.4) and 1991 (art.
Rapport C.D.I., 1991, p.
The UN General Assembly
Declaration on extradition of individuals guilty of crimes
of war and crimes against humanity, adopted 3.XII.1973 (resolution
3074, XXVIII), establishes in its Art. 9:
"When States cooperate
in the discovery, arrest, and extradition of individuals against
whom there is evidence of having committed crimes against
humanity, and when States collaborate in the punishment of
these individual if found to be guilty, the States are acting
in conformance with the provisions of the UN Charter and the
Declaration on the principles of international law related
to friendly relations and cooperation between States."
And its Art. 5 states
"When evidence exists
that individuals have committed war crimes and crimes against
humanity, they must be brought before the Courts and if found
guilty, they must be punished, as a general rule, in the countries
where these crimes were committed. States shall cooperate
in the extradition of these individuals for this purpose."
Consequently, no "exclusive"
jurisdiction has been established. Jurisdictional competence
is subordinate to special regulations such as multilateral
treaties, which in this case include Spain and Chile and bilateral
treaties such as the Extradition Treaty of 14.04.1992
which is governed by the principle of 'aut dedere aut punire'.
Thus, in the case of the illegal arrest, torture and assassination
of the Spaniard Carmelo Soria by agents of the Military Junta,
the Convention of 14.XII.1973 (on the prevention and punishment
of crimes against internationally protected persons, including
diplomatic functionaries, N.York, 14.12.1973), which Spain
ratified 26.07.1985 (BOE 7.02.1986) and Chile ratified 21.01.1977,
applies. Art. 3 of this Convention states:
"This Convention shall
not exclude any penal jurisdiction exercised in accordance
with national legislation."
The Extradition and Judicial
Assistance Treaty between Spain and Chile. 14.04.1992 (BOE
10.01.1995), should be interpreted in conjunction with the
later General Treaty of Cooperation and Friendship between
Chile and Spain, of 19.10.1990 (BOE 17.09.1991), particularly
its art. 1 a), b), d) and h), that states:
Art. 1 "The Parties
promise to coordinate efforts internally and internationally
in order to foster the full effectiveness of the following
principles and objectives: "
The extradition and judicial assistance
treaty between Spain and Chile of 14.04.1992, establishes:
a) The free determination
of peoples, the non intervention, peaceful resolution
of conflicts, judicial equality of the States, international
cooperation for the development and struggle for peace
and international security.
b) Defense and respect for
human rights in the context of a constitutional state,
guarantees for dignity, and security of citizens.
d) The firm condemnation
of all forms of violence, authoritarianism or intolerance.
h) Support for international
actions intended to eradicate terrorism.
Art. 3: "Shall allow
for extradition, also in accordance with the present Treaty,
of crimes included in multilateral agreements of which both
countries are parties."
Therefore, in the case presently
before the High Court (Audiencia Nacional) the following apply:
1. In the crime of Genocide,
the 1948 Convention, ratified by Chile on 3.06.1953 and by
Spain (BOE 8.02.1969), as per art. VII "each State party to
this agreement is obligated to grant extradition in accordance
with laws and treaties in effect,"
2. In the crime of torture,
the Convention on la Torture of 10.12.1984, ratified by Spain
19.10.1987 (BOE 9.11.1987) and subscribed by Chile 23.09.1987,
in which art. 4 and 5 extend jurisdiction to the State of
which the victim is citizen, even though the crime may have
been committed in another State.
If such is the case
in torture, no regulation explicitly states that the same
principle of universal jurisdiction shall not be applied in
the most serious of crimes, genocide. Or in the case of piracy,
as stated by UN Special Rapporteur B. Whitaker, in his Report
of July 1985 on the Convention against Genocide (E/CN.4/sub2/1985/6/p.38).
Torture is also prohibited:
of Human Rights, 1948, art. 5,
International Pact on
Civil and Political Rights, 19.XII.1966, art. 7, ratified
by Chile and Spain (BOE 30.IV.1977),
Convention against Torture
and other punishments, or cruel, inhuman and degrading
treatment, 10.12.1984, ratified by Spain on 19.10.1987
(BOE 9.11.1987) and subscribed by Chile on 23.09.1987,
in which art. 1 includes torture committed by "public
agents or any other person who acts in official capacity
or on his instigation, or with express or tacit consent."
3. In the case of Carmelo
Soria, assassinated in Santiago July 14, 1976 while employed
by the UN, the 'Convention of 14.xii.1973 on the prevention
and punishment of crimes against internationally protected
persons, including diplomatic agents 14.12.1973, applies and
its art. 8 establishes:
"1. To the extent that
crimes outlined in article 2 are not listed among the cases
of extradition in treaties current between the party States,
these shall be considered as included in those treaties."
"4. For the purposes of extradition between party States,
crimes shall be considered to have been committed not only
in the place where they took place but also within the territory
of the States obligated to established their jurisdiction
according to paragraph 1 of article 3."
4. In experimentation
of the lethal gas "sarin" on persons in detention by agents
or functionaries under authority of the defendants, the Nuremberg
regulations previously described shall take effect as well
the Convention on the prohibition of the development,
production and storage of biological weapons and toxic substances,
and above all, the destruction of these, in London, Moscow,
and Washington on April 10, 1972 (BOE 11.VII.1979), subscribed
by Chile on 10.IV.1972.
The Hague International Court
of Justice interpretation of the convention against genocide
"The principles on which
the Convention [for the prevention and repression of genocide]
are based are recognized by civilized nations as binding upon
the States, even beyond all conventional bonds " (C.I.J.,
Rec. 1951, p. 23).
These principles have
been codified to a certain extent in Convention 9.XII.1948,
which is "considered today as part of customary international
law " (Report of the UN General Secretary prepared in keeping
with parag. 2 of Res. 808 (1993) of the Security, UN/S/25704,
May 3, 1993, p. 13, parag. 45).
The most authoritative
and recent UN interpretation of the Convention against Genocide
and "internal" genocide is that by Special Rapporteur M. B.
Whitaker, in "Study on the Issue of Prevention and Repression
of the Crime of Genocide " (commissioned by UN, ECOSOC, E/CN.4/Sub.2/1985/6,
July 2, 1985), who states:
"Genocide does not necessarily
imply the destruction of an entire group... The term 'partial'
in art. 2 appears to indicate a fairly high number in relation
to the total members of a group, or also a significant percentage
of that group, and its leaders " (p. 19),
"Opinions differ in
determining to what extent the terms national
or ethnic group include minorities (...). The
group of victims may in fact be minority as well as a majority
of the country; (...) the definition does not exclude a case
in which victims belong to the same group as those who perpetrate
the violation. The United Nations Rapporteur on the assassination
in Kampuchea has termed this massacre "self-genocide", a term
that implies a massive destruction within a group of a significant
number of its members (E/CN.4/SR.1510)" (p. 20). "During debate
[on the 1948 Convention] the delegate from France predicted
that if in the past crimes of genocide were racially or religiously
motivated, it was evident that in the future, such crimes
would be committed essentially for political reasons. This
idea found broad acceptance among the other representatives
[Chile United States, etc.].
According to Pieter
Drost, in The Crime of State, II: Genocide, (Leyden, A.W.
Sythoff, 1959), "the most serious form of the crime of genocide
is destruction of the physical lives of human beings, taken
individually because they form part of any kind of human group".
"For crimes committed
against a certain number of individuals to be considered genocide,
such crimes must be aimed at the group or factions of a group,"
(p. 23). A rt. 8 of the Nuremberg Court Statutes clearly establishes
that an accused may not evade prosecution for having followed
orders from superiors, even if the court eventually views
this obedience as reason to issue a lighter sentence."
(p. 28). "Individual responsibility does not necessarily include,
however, in certain cases collective responsibility of the
State to its victims, even in the case of compensation or
reparations." (p. 29) "The Special Rapporteur believes
that States or at least States party to the Convention, must
change their internal legislation to permit extradition of
the guilty parties if these States fail to prosecute them.
Genocide may also be construed to be an issue of universal
jurisdiction: aut dedere aut punire, as is the case in the
crime of piracy." (p. 38) (...) In the Report of 4.VII.1978,
the Special Rapporteur had already concluded that the principle
of universal jurisdiction allowed for the options of extradition
or suppression of the crime by the State in which territory
the guilty party has been located. (E/CN.4/Sub.2/416, parag.
are accepted in our Judicial Branch Procedural Law 6/1985,
July 1, art. 23.4.a), as well as the Bilateral Extradition
Treaty between Chile and Spain of 14.04.1992, art. 3.
Whitaker continues in his UN Report on genocide:
"Genocide may be considered
an issue no less serious than torture, therefore we recommend
assuming a position analogous to that established in art.
8 of the Convention against Torture, 10.XII.1984" (p. 39).
was implemented by internal Spanish legislation, cited previously,
which established universal jurisdiction in the case of genocide,
and art. 3 of the Bilateral Extradition Convention between
Chile and Spain.
of common law incrimination in the case of genocide.
Art. V of the 1948 Convention
against Genocide asks States to adapt their internal legislation
to assure application of the Convention (which was done in
Spain). However, if incrimination on the basis of this Convention
were not directly applicable (which it is, according to the
International Court of Justice), this would not mean that
incrimination for genocide could be founded on the rights
of Nuremberg. The latter is directly applicable in the judicial
order of States that have recognized it (all United Nations
member States, resolution 95 (I) of 11.XII.1946 of the General
Assembly of the UN). All the more so as the crime of genocide
may be "committed in times of peace" as set forth
in art. 1 of the same 1948 Convention. The
rights of Nuremberg, and resolutions of the UN General Assembly,
which have confirmed its existing effectiveness, have been
invoked as precedent in both internal State jurisdiction as
well as doctrine, by the following:
Upon creation of the International
Criminal Court on the former Yugoslavia, no question arose
on the direct applicability in that territory of crimes set
forth in international humanitarian law and common law (Report
of Secretary General prepared with parag. 2 of resolution
808 (1993) of the Security Council, Doc. GNU S/25704, 3.V.1993,
Supreme Tribunal of The
Netherlands, J.K v. Public, Public Ministry, 27.X.1981,
N.Y.I.L., 1983, p. 427,
Cour d'Appel of Paris, Touvier
case, 27.X.1975, A.F.D.I. 1976, p. 924,
Cour de Cassation of France,
Leguay case, 21.X.1982, A.F.D.I., 1983, p. 844,
Hans Kelsen in "Will the
Judgment in the Nuremberg Trial become a Precedent in
International Law?" I.C.L.Q., 1947, p. 153.
jurisdiction to hear crimes of genocide and terrorism committed
by persons accused before the High Court of Spain (Audiencia
Nacional), art. 23.4 of the LOPJ, applicable criminal internal
and international norms and jurisprudence of our Supreme Court
on universal jurisdiction in crimes listed in art. 23.4 of
the LOPJ (in relation to art.3 of the bilateral extradition
treaty with Chile) apply. We must add that universal jurisdiction
is supported by the same Convention of 1948. Eric David, in
" Principes de Droit des Conflits Armés"
(Brussels, ULB Law School, 1994, p. 621) concludes that
"Art VI of the Convention
against genocide (1948) establishes as priority jurisdiction
the Court of the place where the crime was committed, but
in no way excludes the jurisdiction of other States,"
S. Glaser reaches the
same conclusion in "Droit international penal conventionnel"
(Brussels, Bruylant, 1970, p. 108). So does the commentary
on the "Eichmann case" in the International Law
Review, 36, pp. 303-304; and "US Senate Report" on
ratification of the 1948 Convention by the United States,
July 18, 1981, in I.L.M., 1991, p.9.
Regarding the obligation
established in the first part of Art. VI, analysis by the
1948 Convention itself confirms this interpretation. The Report
on the Sixth Commission of the UN General Assembly stated:
"Thus, [the first part
of art. VI] does not affect the right of any State to bring
any of its own citizens before its own courts for actions
committed outside its territory."
The International Court
of Justice of The Hague has not taken an explicit position
on this point. However, it has declared that "all States party
to the Convention have accepted the obligation to prevent
and punish the crime of genocide" ("Application of the Convention
against genocide, precautionary measures, resolution 8.IV.1993."
C.I.J., Recueil des Arrêts, 1993, p. 22, pár.
45). In 1970 it acknowledged that genocide was outside legality,
and norms related to fundamental personal rights, including
slavery, and racial discrimination, are erga omnes obligations.
In other words, "all States may be considered as having judicial
interest in protecting these rights." (C.I.J., Recueil des
Arrêts, 1978, p. 32).
Genocide is a crime
against humanity and also a crime of terrorism magnified.
Numerous conventions establish universal jurisdiction against
terrorism (eg, the European Convention of 27.1.1977, and the
UN General Assembly 9.XII.1985, A/Res. 40/61), therefore,
it is coherent that there should exist universal jurisdiction
to repress genocide.
The destruction of a group for
political or ideological beliefs is a crime against humanity.
This is established
in arts. 6.c) of the Nuremberg Statutes, art. 5.c) of the
Tokyo International Military Court Charter, art. 2.1. c) of
Law N. 10 enacted by the Allied Control Council in Germany
in 1945, art. 5 of the Statutes of the Court for the former
Yugoslavia, art. 21 of the proposal for a Code on Crimes against
the security of humanity, drafted by the UN International
Law Commission. These treaties incriminate "politically,
racially or religiously motivated persecution. "
Double incrimination and retroactivity
in extradition proceedings.
The Audiencia Nacional
sought the opinion of magistrate D. Jose Luis Manzanares Samaniego
as to the extradition of individuals who bear maximum responsibility
for genocide committed in Chile from 1973 to 1990. It is interesting
to note that he confirms the doctrine in Spain on the application
of a basic concept of extradition procedure. This basic concept
is that the extraditable crime must be codified both in legislation
of the State seeking the extradition and in the laws of the
country in which the defendant is located. The magistrate
poses an interesting issue. A case complies with requisites
for double incrimination at the time the decision that is
made on the extradition petition, but not when the crimes
were committed. Supported by Schultz and Linke, the author
believes that the lack of punishability weakens the extradition
from the standpoint of the State that requests extradition,
but not when it is only a part of the law of the State which
is requested to extradite the individual. The solution appears
correct if we consider that this is not an example of the
ius puniendi of the State to which the extradition petition
is directed, but a form of judicial support." (La Ley, 1986-2,
action for reparation
The right to reparations
in crimes against humanity is founded on the International
Pact of Civil and Political Rights 19.XII.1966 (BOE 30.04.1977),
in which art. 9.5 states: "All persons who have been illegally
arrested or imprisoned shall have the right to obtain reparation."
This is also stated in the Penal Code (arts. 109, 116), the
Criminal Trial Law (arts. 112, 113) and the y bilateral extradition
treaty between Spain and Chile.
A case involving crimes
against humanity may be filed by family members of the disappeared
and murdered persons, survivors of detention or concentration
camps, or torture centers, internal exiles, persons expelled
from the country, and persons whose property was confiscated,
regardless of nationality or place of residency. Finally,
we must mention that the Convention on dual citizenship between
Spain and Chile of May 24, 1958 (BOE, November 14), in art.
7 establishes that "Spaniards residing in Chile and Chileans
residing in Spain who are not included in the benefits granted
this Convention, shall continue to enjoy the rights and benefits
granted by Chilean and Spanish law, respectively. Consequently,
they shall have access to government authorities and courts
of justice under the same conditions as citizens. The exercise
of these rights shall be subject to law of the country in
which these rights are exercised."
1. Article in The New
York Times and the International Herald Tribune, October 25,
2. For example, the
article printed in January 1997 in the ACLU Int'l Civil Liberties
Report, entitled "Spanish Criminal Prosecutions Use International
Human Rights Law to Battle Impunity in Chile and Argentina",
by Prof. Richard J. Wilson, Director of International Law
Consultation on Human Rights, American University, Washington
3. Burgstallerr (Manfred):
"Das europäische Auslieferungsübereinkommen und
seine Anwendung in Österreich", in Zeitschrift für
Rechtsvergleichung, 1970, p. 11. Schultz (Hans): Das
Schweizerische Auslieferungsrecht, Basel, 1953, vol. 7
of Schweizerischen Criminalistischen Studien, p. 100.