Practice Relating to Rule 158. Prosecution of War Crimes
Spain’s LOAC Manual (1996) states:
The Geneva Conventions and Additional Protocol I impose on States parties the obligation to adopt in their domestic legislation all the legislative measures necessary to determine adequate penal sanctions against those who commit, or order to be committed, any kind of grave breaches.
The manual further states: “Spain has complied with the obligation undertaken when ratifying the Geneva Conventions and dedicated Title II of Volume II of the Military Criminal Code to categorize and sanction the offences against the laws and customs of war.”
The manual also provides:
States have the obligation to search for persons accused of having committed, or having ordered to be committed, grave breaches, being obliged to make them appear before their own tribunals, regardless of their nationality. They can also agree to the extradition of those persons in order for them to be judged by other States, in accordance with the legal obligations which regulate the said extradition.
With regard to breaches that are not of a grave nature, the necessary measures must be taken for their immediate cessation.
Spain’s LOAC Manual (2007) states: “The law of armed conflict provides that governments must take all necessary legislative measures to establish the penal and disciplinary sanctions to be applied to those who commit or order others to commit violations of the laws and customs of war.”
The manual further states:
The most effective instrument for enforcing the law of armed conflict is the obligation binding on States party to the four Geneva Conventions of 1949 to prosecute offences that they define as grave breaches. To this end, they must establish appropriate criminal sanctions in general and military codes. Spain fulfils this obligation by criminalizing such breaches in … the 1985 Military Penal Code (crimes against the laws and customs of war) and … the 1995 Penal Code (crimes against protected persons and property in armed conflicts).
In the case of offences that are not classed as grave breaches, measures must be adopted immediately to suppress them.
Spanish domestic legislation, increasing the criminal protection of the victims of armed conflict, criminalizes simple infringements or acts contrary to the provisions of the Conventions in relation to the conduct of hostilities and the protection of the victims of armed conflict and cultural property.
However, minor infringements can be treated as military disciplinary offences.
Under Spain’s Law on Judicial Power (1985), Spanish criminal courts have jurisdiction over offences committed by Spanish nationals and aliens, on Spanish territory or outside it, which constitute genocide or any other offence that, according to international treaties or conventions, must be prosecuted in Spain.
Spain’s Law on Judicial Power (1985), as amended in 2009, states:
2. … [Spanish courts] have jurisdiction over acts that constitute offences according to Spanish penal law even if these were committed outside the national territory, as long as those criminally responsible were Spanish nationals or foreigners who had acquired Spanish nationality prior to the commission of the act, and if the following conditions are met:
c. That the offender has not been acquitted, pardoned or sentenced abroad or, in the latter case, has not completed his or her sentence abroad. If he or she only completed it partly, this will be taken into account in order to proportionally reduce the [sentence] which he or she must complete.
4. … Spanish courts have jurisdiction over offences committed by Spanish and foreign nationals outside the national territory, which constitute any of the following offences according to Spanish law:
h. Any other [act] that according to international treaties and conventions, in particular those Conventions on international humanitarian law and the protection of human rights, must be prosecuted in Spain.
Without prejudice to that disposed by the treaties and international conventions that Spain is a party to, in order for Spanish tribunals to have jurisdiction over the above-mentioned offences it must be demonstrated … that no other procedure leading to an investigation or effective prosecution, as the case may be, of the same punishable acts has been initiated in another country with jurisdiction or within an international tribunal.
The prosecution initiated before Spanish courts will be temporarily dismissed when it is established that another process on the denounced acts has been initiated in the country or tribunal referred to in the above paragraph.
5. If the prosecution is transferred to Spain according to the conditions in … paragraph 4, paragraph 2(c) of this article will in any case be applicable.
Spain’s Military Criminal Code (1985) contains a part on “Crimes against the laws and customs of war” and provides for the punishment of soldiers committing acts listed thereunder.
Spain’s Penal Code (1995), in chapters entitled “Genocide” and “Offences against protected persons and objects in the event of armed conflict”, criminalizes offences listed thereunder. Protected persons in the meaning of the chapter on “Offences against protected persons and objects in the event of armed conflict” are those protected by the 1949 Geneva Conventions and both 1977 Additional Protocols, as well as those falling within the scope of “whatever other international treaty to which Spain is a party”. The chapter contains several provisions regarding the punishment of certain acts “committed in the event of an armed conflict”.
Spain’s Penal Code (1995), as amended in 2003, states:
Anyone who in the event of an armed conflict uses or orders the employment of means or methods of combat that are prohibited … shall be punished with ten to 15 years’ imprisonment, without prejudice to the penalty for the results of such acts.
Spain’s Penal Code (1995), as amended in 2010, provides:
Anyone who, in the event of an armed conflict, commits or orders to commit any of the following violations or acts in breach of the international treaties to which Spain is a signatory and relating to the conduct of hostilities, the regulation of the means and methods of war, the protection of the wounded, sick and shipwrecked, the treatment of prisoners of war, the protection of civilians and the protection of cultural property in the event of armed conflict, shall be sentenced to six months to two years’ imprisonment.
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 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 …
a) In the legal framework, Article 23(23.4) of the L.O.P.J. establishes a first limitation, as Spanish courts have jurisdiction over offences committed by Spanish and foreign [nationals] outside the national territory, which may constitute acts that, according to international treaties and conventions, must be prosecuted in Spain (Article 23(4)(i)); in the analyzed case [these fall under] offences against the international community under the modality of offences against protected persons and objects in the event of an armed conflict established in Articles 608(3), 611(1) and 613(1)(b) and (e) of the PC [Penal Code (1985)], in relation with 1949 IV Geneva Convention and 1977 Additional Protocol I … However, this is the case provided that the offender has not been acquitted, pardoned or sentenced abroad or, in the latter case, has not completed his or her sentence or has only completed it partly (Article 23(2)(c) of the L.O.P.J.).
The Court further stated:
a) The S.T.C. 237/05 [Constitutional Court judgment] of 26 September 2005 (Guatemala case) and STC 227/07 [judgment] of 22 October 2007 (Falun Gong case) have established the following criteria on the matter:
2. … The common compromise (at least in principle) of all States being the prosecution of atrocious offences affecting the international community, priority should be granted for procedural, political and penal reasons to the jurisdiction in which the offence was committed.
In 2010, in the Couso case, which concerned the killing of a Spanish journalist in Baghdad on 8 April 2003 by troops of the United States of America, the Criminal Chamber of Spain’s Supreme Court held:
E) Even admitting for purely dialectic purposes that doubts could exist … concerning the rational indications of an offence found by the examining magistrate, it would still be probable that an offence was committed, which would thus have to be determined in an oral trial.
F) The  IV Geneva Convention and its  Additional Protocol I, incorporated to our legal system through Article 96(1) CE [1978 Spanish Constitution], which establishes the protection of persons defined as “civilians” (in particular journalists) … and the obligation of aut dedere aut iudicare
have been manifestly unfulfilled … by the US.
[emphasis in original]
On the issue raised in the appeal concerning breach of the law, the Court noted:
1. … [T]he application … of Article 611(1) and 608(3) PC [Penal Code (1995)], and failing this of Article 614 PC, on their own or in combination with the offence of homicide in Article 138 or of manslaughter in Article 142 PC, in so far as they concern civilians “protected” by the  IV Geneva Convention and its  Additional Protocol, is claimed [by the appellants].
2. Article 611 of the PC effectively punishes
“anyone who in the event of an armed conflict commits [any of the following acts], without prejudice to the penalty for the results of such acts, shall be punished with ten to fifteen years’ imprisonment:
1. Carries out or orders an indiscriminate or excessive attack or makes the civilian population the object of attacks, reprisals or acts or threats of violence the final purpose of which is to spread terror.”
Meanwhile, Article 614 PC provides that:
“Anyone who, in the event of an armed conflict, commits or orders the commission of any of the following violations or acts in breach of the international treaties to which Spain is a signatory and relating to the conduct of hostilities, the protection of the wounded, sick and shipwrecked, the treatment of prisoners of war, the protection of civilians and the protection of cultural property in the event of armed conflict, shall be sentenced to six months to two years’ imprisonment”.
In addition, Article 608 of our PC [Penal Code (1995)] … entitled “Offences against Protected Persons and Objects in the Event of Armed Conflict” within the … [Title] dedicated to “Offences against the International Community” specifies that
“for the purposes of this chapter, protected persons are understood as: …
3. The civilian population and individual civilians protected by the IV Geneva Convention of 12 August 1949 or Additional Protocol I of 8 June 1977”
[emphasis in original]
The Court also referred to norms of IHL relevant to the case under review, including Article 146 of the 1949 Geneva Convention IV on the obligation to prosecute or extradite those having ordered the commission of grave breaches on grave breaches, and Article 147 of the 1949 Geneva Convention IV listing grave breaches of the Convention.
The Court upheld the appeal concerning breach of the law and held:
The appealed decision declared the termination of the proceedings … as it considered that the “facts [of] the case did not constitute an offence
” … [H]owever, the proceedings carried out do not permit sharing the conclusions of the first instance tribunal; rather, the facts [denounced] merit being subsumed under the cited penal provisions and the aforementioned norms of International Humanitarian Law.
[emphasis in original]
The Court upheld the appeal against the order of 23 October 2009 by the Third Section of the Criminal Chamber of the Spanish National Court, which declared the termination of the proceedings, and held that “the proceedings must continue, and the outstanding preparatory enquiries must be undertaken, as well as any others arising from the clarification of the events under investigation.”
In 2011, in the Tibet Committee case, the Criminal Chamber of Spain’s Supreme Court was called upon to decide whether there was a sufficient link to Spain to invoke Spain’s universal jurisdiction. The Court, holding that there was an insufficient link and dismissing the appeal, found:
II: Legal reasoning
According to the appellant the decision appealed violates the right of the appellants to a judicial remedy both by erroneously applying international treaties ratified by Spain, from which Spain derives the jurisdiction to hear the facts complained of, and on the basis of the existence of links connecting the case to Spanish jurisdiction, a requirement that derives from … paragraph 4 of article 23 of the LOPJ [Law on Judicial Power (1985)].
B) The current paragraph 4 of article 23 of the LOPJ with regard to the extension of Spanish jurisdiction, drafted in accordance with the amendment introduced by Law 1/09 of 3 November (published in the Boletín Oficial del Estado [official gazette] on 4 November 2009 and which entered into force the day after its publication), as stated in the explanatory memorandum introducing the legislation, was introduced to effect
a change in the treatment of what has come to be known as “universal jurisdiction”, through the amendment of article 23 of the Law on Judicial Power to, on the one hand, include categories of crimes not previously included, the prosecution of which is protected by the conventions and customs of international law, such as crimes against humanity and war crimes. On the other hand, the amendment adapts and clarifies the provision in accordance with the principle of subsidiarity, the doctrine of the Constitutional Court, and the jurisprudence of the Supreme Court.
The stipulated provision pertinently provides … as follows:
4. … Spanish courts have jurisdiction over offences committed by Spanish or foreign nationals outside the national territory, which constitute any of the following offences according to Spanish law:
h. Any other [act] that according to international treaties and conventions, in particular those Conventions on international humanitarian law and the protection of human rights, must be prosecuted in Spain.
Without prejudice to the provisions of international treaties or conventions that Spain is a party to, in order for Spanish courts to have jurisdiction over the above-mentioned offences it must be demonstrated that the alleged perpetrators are in Spain, or that there are victims of Spanish nationality, or establish some relevant link connecting the act to Spain and, in any case, [it must be established] that no other procedure leading to an investigation or effective prosecution, as the case may be, of the same punishable acts has been initiated in another country with jurisdiction or before an international tribunal.
The criminal proceeding initiated before Spanish courts will be provisionally dismissed if it is established that another proceeding of the alleged facts has been initiated in a country or tribunal referred to in the above paragraph. …
C) In the present case, the plaintiff “dissected” the different types of offences ratione materiae (crimes against humanity, torture, war crimes) … in order to invoke various related public international law treaties, emanating from the so called (and widely developed doctrinally and jurisprudentially) “Customary International Law” … . In particular, … the  Geneva Conventions and the Statutes of the International Criminal Tribunals of Nuremberg [1945 IMT Charter (Nuremberg)], Tokyo [1946 IMT Charter (Tokyo)], the former Yugoslavia [1993 ICTY Statute] and Rwanda [1994 ICTR Statute], and the  Statute [of] the International Criminal Court and concordant resolutions, and of international tribunals with jurisdiction on penal matters (see ECHR [European Court of Human Rights]).
The apellant omitted that on the basis of the present wording of the above provision, which is binding on Spanish courts, the extension of Spanish jurisdiction is contingent, as a “conditio sine qua non” (and this “without prejudice to provisions of international treaties and conventions signed by Spain …”), upon the existence of a relevant link with Spain.
It is this … undefined legal concept that needs to be determined in this case. This provision, in accordance with the line of reasoning previously adopted by this chamber … corrects the “broad view” adopted by judgments of international courts, which does not correspond to the requirements of universal jurisdiction.
In the written claim, the appellant … substantiates the link [to Spain] in terms of:
1) The dual criminality of the facts alleged … [T]his claim lacks consistency with the intended objective.
2) The existence of a Spanish victim … Without prejudice to the proof or not of this fact, or of its adequacy, it is acknowledged in the written submission of the appellants that the acts committed against him are the subject of a pending lawsuit in another proceeding … As such, it is clear that this link fails in the present circumstances.
3) In the third place, the appellants plead general submissions regarding the bilateral relations between Spain and China … It is clear that … the rigour required by … criminal law means that such a submission fails.
THE COURT HOLDS:
The appellant’s motion for leave to appeal in cassation IS DISMISSED[.]
In 2009, in its written replies to the Committee against Torture concerning its fifth periodic report, Spain stated:
167. … [W]ith regard to a possible conflict between the  Amnesty Law and the obligations of the Spanish State under article 5 of the  Convention against Torture concerning the establishment of jurisdiction over the crime of torture and the [duty to] prosecute or extradite persons accused of inflicting acts of torture, it should be mentioned that the Convention against Torture … entered into force on 26 June 1987, while the Law of 1977 refers to acts that took place before the adoption of the former law. Having mentioned this, however, the efforts undertaken in the last years by the Spanish State with regard to the victims of the civil war and the dictatorship must be emphasized.
169. Nonetheless, the non-applicability of the statute of limitations in the 1977 Amnesty Law for acts of torture that resulted in “grave violence to life and person” applies to acts committed between 15 June 1976 and 15 December 1977; with regard to the [acts] prior to the first of these dates, paragraph a) of article 1 of the above-mentioned law, applies.
In 2010, in its report to the UN General Assembly on the status of the 1977 Additional Protocols, Spain stated:
Members of the armed forces who contravene the aforementioned principles [of IHL] will be punished in accordance with the Military Criminal Code, adopted through Basic Act 13/1985 and amended by Basic Act 3/2002. The Military Criminal Code also gives precedence to “crimes against the laws and customs of war”, described in Title Two of … the Book of Crimes. Articles 69 to 78 set out the penalties for violating the principles of international humanitarian law, in order of the seriousness of the acts committed.
States have the primary responsibility to investigate and prosecute ICC [International Criminal Court] crimes. ICC is a court of last resort. Ideally, it should have no cases. We must, however, acknowledge that for many States there is a lack of resources and capacity to exercise criminal law proceedings for such complex and large-scale crimes as genocide, crimes against humanity and war crimes. …
… Victims of war crimes, crimes against humanity and genocides, wherever they are found, deserve justice. While we must do our best to encourage all States to live up to their obligations to investigate and prosecute, the International Criminal Court was created to take up the cases when States were not able or willing to do so.
A new Act on Criminal Responsibility for Genocide, Crimes against Humanity and War Crimes will enter into force on 1 July 2014. The act replaces the Genocide Act (1964:169) and the provision on international crime in the Penal Code that will cease to apply. The new act strengthens the protection against war crimes committed in non-international armed conflicts since the predominant part of the regulation concerning war crimes is applicable in international as well as non-international armed conflicts.
We must continue to work against impunity for serious violations of international humanitarian law and human rights; persons suspected of war crimes, genocide and crimes against humanity must be held accountable. Each state has a duty and a responsibility to investigate and prosecute such crimes. It is primarily at the domestic level that solutions to the impunity gap must be found. The International Criminal Court is a court of last resort and is of great importance to uphold international humanitarian law and human rights law and to end impunity for mass atrocity crimes.
Women and especially girls are particularly exposed to violence in conflict. Violence against women affects a third of all women globally. The violence is often amplified in areas affected by conflict. …
The fight against impunity for sexual and gender-based violence is … crucial. Each state has a duty and a responsibility to investigate and prosecute such crimes. It is primarily at the domestic level that solutions to the impunity gap must be found.
[T]here is still a lack of accountability for violations of international law committed against children in armed conflict. The fight against impunity and assuring the victims’ access to justice are crucial. Crimes against children must be independently and impartially investigated and prosecuted to the full extent of the law. Individual responsibility must be upheld and this means that all perpetrators must be held accountable and punished accordingly, regardless of their status or capacity.
The  Geneva Conventions and their  Additional Protocols have rules that protect medical personnel and civilians. According to international law, concerned states have a responsibility to investigate if alleged war crimes have been committed. This is also valid in situations such as that of Kunduz.
In 2011, in the Genaro case, the Administrative Chamber of Spain’s Supreme Court was called upon to decide an appeal against the decision of the Administrative Division of the High Court rejecting asylum in Spain to the appellant. Dismissing the appeal and upholding the decision of the lower court, the Court held:
Fifth. – The ground of appeal cannot succeed.
Article 1.F) of the Geneva [Refugee] Convention of 1951 provides the following:
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; …
In the current case, the specific reason for refusal of asylum by the Spanish administration was the determination that the asylum seeker, the appellant [in this case], fell within the grounds for exclusion on the basis of the existence of substantial grounds to believe that he committed crimes against humanity.
With regard to the characterisation of these crimes against humanity we can take, as a starting point, what was stated in the decision of the Second Chamber of this Supreme Court on 1 October 2007 … which provides:
The norms of International Criminal Law, fundamentally customary [in nature], refers to crimes against the core of fundamental human rights, in practice recognised by all cultures as they derive directly from human dignity. They primarily originate from conduct carried out in times of war, as well as from the necessity for protection from, and as a reaction against, those acts committed against civilians of a country by the State, or by a similar structure, and the serious difficulties consequently encountered in prosecuting them. They have been translated into descriptions of types of conduct, encompassed in the notions of war crimes, crimes against the peace (the crime of aggression), crimes against humanity and genocide. The definition of these crimes has not always reached the necessary precision, especially with regard to questions relating to their form, in particular with respect to the crime of aggression, but the essence of the most relevant prohibited conduct as regards violations of individual human rights has been sufficiently established. These are particularly serious acts such as murder, assassination, illegal detention, forced disappearances, torture and other similar acts, always carried out, as previously stated, by organised State power structures or similar structures, which are taken advantage of by perpetrators not only to facilitate the execution of the crimes but also to procure impunity. These crimes generally occur in the context of the persecution of individuals or groups for political or political-economic reasons linked to some form of abuse, and therefore illegitimate use, of power.
Put in this perspective, various instruments of international law have provided definitions of crimes against humanity. Thus, the London Charter of 8 August 1945, establishing the Nuremburg Tribunal, defines crimes against humanity in article 6 …
Later the Statute of the International Criminal Tribunal for the Former Yugoslavia, in 1993, provided [a definition] in article 5 …
And finally, the Rome Statute of 1998, establishing the International Criminal Court, provided in article 7 an even more comprehensive definition of crimes against humanity …
As we have seen, the 1951 Geneva [Refugee] Convention excludes from its scope of protection those persons with respect to whom “serious reasons” exist for considering that they have committed such crimes. The rationale for this exclusion clause is that it contemplates criminal conduct of such gravity that it fundamentally excludes the possibility that those responsible receive protection from a Convention such as the Geneva [Refugee Convention] of 1951, [which was] adopted precisely to provide protection … to the victims of these crimes and not to their perpetrators, who must account for their crimes before a competent court and should not hope that precisely through the institution of asylum they can avoid accountability before the law.
The fact that under the former political regime of Saddam Hussein government authorities and their personnel committed acts clearly falling within this category of offences and which therefore can be classified without reservation as crimes against humanity, is something which at this point in time can be considered a “notorious fact”, which the appellant does not really deny or dispute. What the appellant contends is not that the crimes were not committed but that there is no evidence of his personal involvement in them, if you do not take as proof … the simple fact that he occupied a high-ranking military post. He also claims that the exclusion clause of the  Geneva [Refugee] Convention must be interpreted and applied in a restrictive manner and insists that he cannot be refuted in stating that there are no facts from which it can be inferred that he personally participated in crimes of this nature.
These claims cannot be accepted. Certainly, the application of the asylum protection exclusion clauses provided for in the …  Geneva [Refugee] Convention must be applied in a well-considered and rigorous way, as required by their nature as norms that restrict or limit rights. For this reason, article 1.f) legitimises the application of the exclusion clause only when there are “serious grounds” – that is, [grounds] of sufficient strength, and not based on mere suspicion or conjecture – to consider that the asylum seeker has committed one of these crimes. However, it should be noted that the aforementioned article 1.f) does not refer only to persons formally accused or convicted of the commission of these crimes but also to persons with respect to whom “serious grounds for considering” that they have committed such crimes exists, so that the relevant fact is not written confirmation of the existence of a formal charge by a criminal court, or a guilty verdict for the commission of the crime, but rather an evaluation of the existence of sufficiently verified objective facts that lead to the conclusion, with the necessary level of conviction, that the asylum seeker participated in the criminal conduct, whether or not formally prosecuted or convicted for it. On the other hand, it is clear that the scope of application of this clause includes not only direct and immediate perpetrators of the crimes, but also accomplices, given that in the end both the former and the latter are responsible for the crime; and that perpetrators include not only direct perpetrators, but also, with equal evidence, those who incite or provide necessary cooperation.
In the current case, the court of first instance arrived at the conclusion that, effectively, the appellant fell within the scope of the [exclusion] clause for having been responsible in some way for crimes against humanity. This conclusion, far from seeming arbitrary or irrational, is logical and reasonable, as demonstrated by the fact that the UNHCR arrived at the same conclusion after conducting an interview. We find ourselves before one of the highest ranking members of the Iraqi military, appointed to the Chiefs of Staff of Saddam Hussein, with the assignment of political indoctrination, who developed a “brilliant” career during the Saddam regime by which [the appellant] was, in his own words, highly appreciated, and continues to be loyal to the party that supported that regime. [The appellant] does not show dissociation from or disagreement whatsoever with that Government or those who ran it, nor does he show regret or remorse for the facts which took place in those years. To the contrary, he says he lived peacefully during those years in which conduct clearly falling within the offences of crimes against humanity was constantly occurring. And when UNHCR interviewed him about the circumstances of his life and professional trajectory, he was elusive and uncooperative towards the interviewer, who in the end highlighted that his responses lacked credibility.
It is against this background that we insist that the conclusion reached by the court of first instance was logical and reasonable given the characteristics of the dictatorial regime of Saddam Hussein, as highlighted in the pre-trial brief and the report issued by the UNHCR, which refer to his participation as leader, organiser and supreme commander of the Iraqi military, involved in acts of war and repression by the regime. It is rationally unthinkable that someone such as the appellant remained at the margin of the actions of this regime, as if he were detached from them. To the contrary, it is logical to conclude that a person with a professional career and a position such as that of the appellant could only reach and maintain this position through loyalty and support of the then regime and active collaboration in its strategy and actions. The assertions of the appellant do not allow for a contrary conclusion, especially in light of his failure to cooperate with the interviewer of the UNHCR and the lack of credibility of his responses during the interview.
The conclusions of the court of first instance regarding the link of the appellant to these crimes against humanity being, as we said, logical and reasonable, it must be recalled that according to established jurisprudence the findings of the lower court regarding the current facts cannot be reviewed in this extraordinary appeal in cassation, except in exceptional circumstances that, for the foregoing reasons, have not been met [in this case].
For the reasons set out the appeal in cassation must be dismissed.