By 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. 9-14 1996.

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. |2|.

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.

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 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 1949.

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 Secretary’s Report without reservations (S/Res. 827, May 25, 1993, parag. 2).

The 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, 2187, 2197),

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, 7.XI.1989, 9.X.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. 31).

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.

Codification of the crime against humanity

The Statutes of the Nuremberg Tribunal, in art. 6.c) define as crime against humanity: "...Murder, extermination, 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…"Allied courts applied this article after 1945, and, subsequently, the following courts did also:

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 and s.),

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 and Chile):

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." This exception —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 1989, by the Ontario Superior Court of Justice (Canada) in the Finta case (10.5.1989, I.L.R., 82, 438 s.).

Essayists Andre Huet and Renee Koering-Joulin [Droit Penal International, Presses Universitaires de France, Paris, 1993, p. 52] sustain:

"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,

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

"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 entertained ".

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).

Statutes 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 of:

Murder (Nuremberg, art. 6; Statues of the Court on the former Yugoslavia, art. 5.a), homicide (Tokyo, art. 5.c),

Extermination (Nuremberg, art. 6.c; Statutes of the Court on the former Yugoslavia, art. 5.b),

Slavery (Nuremberg, art. 6.c; Statutes of the Court on the former Yugoslavia, art. 5.c),

Deportation (Nuremberg, art. 6.c),

Expulsion (Statutes 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, art. 5.i),

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, art. 21),

Genocide (1948 Convention, art.4),

Apartheid (1973, Convention art. II),

Imprisonment (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.5.e),

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, art. 5.e),

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. 5.g),

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).

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.

Range 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

Retroactive 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 30.IX.1986).

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 of limitation."

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, p. 226]:

"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".

Nor 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 forced disappearance,

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. 12)

Rapport C.D.I., 1991, p. 279.

Extradition.

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: "

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.

The extradition and judicial assistance treaty between Spain and Chile of 14.04.1992, establishes:

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:

Universal Declaration 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 establishes:

"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". (p. 22).

"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. 627)."

Both recommendations 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.

Special Rapporteur 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).

This recommendation 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.

Applicability 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:

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.

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, p. 10.).

Universal Jurisdiction

Regarding independent 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 stated:

"Burgstaler |3| 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, p. 981).

Civil 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."

Final Notes.

1. Article in The New York Times and the International Herald Tribune, October 25, 1996.

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 D.C.

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.