Practice Relating to Rule 100. Fair Trial Guarantees
Section B. Trial by an independent, impartial and regularly constituted court
Spain’s LOAC Manual (1996) states that “any tribunal shall offer guarantees of independence and impartiality” and that “depriving a person of his right to be tried impartially” is a grave breach of the 1949 Geneva Conventions.
Spain’s LOAC Manual (2007) states: “All courts must offer guarantees of independence and impartiality … [as] provided for under the Third Geneva Convention [1949 Geneva Convention III]”.
The manual also states that “sentences may only be passed and penalties may only be executed pursuant to a judgment delivered by an impartial court”.
Spain’s Law on the Victims of the Civil War and the Dictatorship (2007) states:
As an expression of all citizens’ right to moral reparation and to the restoration of personal and family memory, the radically unjust nature of all convictions [and] sanctions … suffered for political, ideological or religious reasons during the Civil War as well as during the Dictatorship is hereby acknowledged and declared.
The Law further states:
1. Tribunals, juries and every other criminal or administrative body established during the Civil War for the purpose of imposing personal convictions or sanctions for political, ideological or religious reasons and their decisions are hereby declared illegitimate.
2. Since they were unlawful and violated the most elementary rules enshrined in the right to a fair trial, the Tribunal for the Repression of Masonry and Communism, the Tribunal for Public Order, as well as the Tribunals for Political Responsibilities and Court Marshalls established for political, ideological or religious reasons in accordance with Article 2 of this law are hereby declared illegitimate.
3. Convictions and sanctions handed down for political, ideological or religious reasons by whichever criminal or administrative tribunal or body during the Dictatorship against those who defended the legality of the previous institutional framework and who strove to re-establish a democratic regime in Spain or who attempted to live in accordance with the rights and liberties recognised today by the Constitution are hereby declared illegitimate.
In 2009, in the Gaza case
, the Criminal Chamber of Spain’s National High Court was called upon to decide the appeal of the Prosecution Service in a case concerning a bombing in Gaza in 2002 by the Israeli Air Force. The Court referred to the facts of the case as falling under “offences against protected persons and objects in the event of armed conflict” in the Penal Code (1995).
The Court noted:
B) With regard to the principle of universal justice, established in Article 23(4) of the L.O.P.J. [Law on Judicial Power (1985)], its applicability is not to be considered absolute …
… Article 17 of the  … ICC Statute … lays down certain criteria on the admissibility and inadmissibility of hearing situations referred to it when certain conditions are met.
In order to determine the willingness or unwillingness [of a State] to act in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: … [t]he proceedings were not or are not being conducted independently or impartially.
In determining whether there has been a judicial process with the necessary guarantees, the court noted:
[Through] an overview of the proceedings that have been and are being conducted in Israel for the criminal and civil investigation of the acts that took place … it can be deduced that there has been a genuine and real procedure, first administrative and then judicial, to ascertain the possible commission of an offence …
In addition, calling into question the impartiality and the organic and functional separation of the Executive Power that the Israeli Military Prosecution Service, Israel’s State Prosecutor and the Investigative Commission named by the Government of Israel have, would be to ignore the evidence of the existence of the rule of law.
In 2010, Spain’s Supreme Court dismissed an appeal against the judgment of the National High Court and held:
B) The right to a … process with all the [judicial] guarantees – the infringement of which is denounced [in this appeal] – has a series of concrete manifestations: the right to an impartial judge predetermined by law …
C) … The appeal proceedings [of the National High Court], which also allowed and led to the present appeal, in no way detract from the procedural guarantees or result in the lack of a proper defence.