Practice Relating to Rule 2. Violence Aimed at Spreading Terror among the Civilian Population
Spain’s LOAC Manual (1996) prohibits acts or threats of violence which have as a primary objective the spreading of terror among the civilian population.
Spain’s LOAC Manual (2007) states: “Acts or threats of violence for the primary purpose of spreading terror among the civilian population are prohibited.”
The manual also states:
Combatants, whether lawful or unlawful, who employ methods of warfare that involve threatening or committing acts of violence against the civilian population or civilian objects in an indiscriminate manner, with a view to spreading terror, are war criminals and subject to prosecution under criminal law if captured.
Spain’s Penal Code (1995) punishes anyone who, during an armed conflict, makes the civilian population the object of “acts or threats of violence whose primary purpose is to terrorize them”.
In 2010, in the Couso case, the Criminal Chamber of Spain’s Supreme Court was called upon to decide an appeal in the case concerning the killing of a Spanish journalist in Baghdad on 8 April 2003 by troops of the United States of America. In deciding upon one of the issues raised in the appeal on breach of the law due to the failure to apply Article 611 of the Penal Code (1995), the Court noted:
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. … [M]akes the civilian population the object of … acts or threats of violence
the primary purpose of which is to spread terror”.
[emphasis in original]
The Court also referred to norms of IHL relevant to the case under review, including Article 51(2) of the 1977 Additional Protocol I.
In deciding on the issue concerning breach of the law, the Court 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.”