Practice Relating to Rule 150. Reparation
Spain’s LOAC Manual (1996), in a chapter dealing with the consequences of “incorrect behaviour” of members of the armed forces, notes:
In the event of non-compliance with the rules [of the LOAC], the State is liable insofar as it has the obligation to pay compensation in accordance with any resolutions condemning the acts in question or to adopt any other measures agreed on by the international community.
The manual also states: “The State and … international organizations may commit illicit acts. However, the responsibility which they incur is not of a criminal nature but compensatory, and is materialized in the obligation to pay an indemnification (art. 91 [of the 1977 Additional Protocol I]).”
In a further provision entitled “Payment of compensation for war”, the manual states: “The belligerent party which violates the rules of the LOAC can be obliged to compensate where appropriate.”
Spain’s LOAC Manual (2007), in a section dealing with the consequences of misconduct in combat by its armed forces, states:
In the event of failure to comply with the established rules [of the LOAC], the State is liable to pay any compensation awarded and adopt any measures agreed by the international community. States are therefore responsible for all criminal acts committed by their armed forces.
The manual also states
When a State that is party to a conflict violates the provisions of the Conventions, it is liable, if the case demands, to pay compensation. The State is responsible for all acts committed by persons forming part of its armed forces and is therefore liable to pay any compensation awarded for violations committed by such persons.
The manual further states:
The State and international organizations can commit unlawful acts. They are not, however, held criminally responsible, but are liable to pay compensation. Whether individuals accused of war crimes are successfully prosecuted or not (by international or national courts) does not affect the responsibility of the State, which is liable to pay compensation in the form of reparation. Any party to a conflict that violates treaty-law provisions relating to armed conflict is liable to pay compensation and is responsible for all acts committed by the persons forming part of their armed forces. The proper channels for enforcing this responsibility are diplomatic protests or international legal proceedings.
Spain’s Military Criminal Code (1985) provides: “The State is the civil authority with subsidiary liability for any offences that are committed by members of the armed forces in the line of duty and that are considered as such by the court.”
Spain’s Penal Code (1995) provides:
The State, the autonomous community, the province, the island, the municipality or another public authority, depending on the case, has subsidiary liability for damage caused by a person who has committed a fraudulent or culpable act, provided that the person in question is a representative, agent or employee of said authority, or an official acting in the line of duty, that the damage caused was a direct consequence of running the public services entrusted to that person, and that there can be no duplication of the compensation awarded. The aforesaid is without prejudice to the liability associated with the normal or faulty functioning of such services, in keeping with the rules of administrative procedure.
The Code also provides: “If the civil liability of a representative, agent or employee of a public authority, or of an official, is being examined in legal proceedings, a claim must be lodged simultaneously against the administration or public authority presumed to have subsidiary liability.”
In 2008, in its written replies to the Human Rights Committee concerning its fifth periodic report, Spain stated with regard to the reparation measures that have been granted to victims of torture:
[N]ote should be taken of the recent adoption of Act. No. 52/2007 of 26 December 2007, which recognizes and extends rights and introduces measures in favour of victims of persecution or violence during the civil war and the dictatorship … [including] compensation for victims of the Franco period (including victims of torture).