Practice Relating to Rule 151. Individual Responsibility
Spain’s LOAC Manual (1996) provides: “Each person is subject to personal responsibility for the acts he is committing in breach of the rules of armed conflicts and which are qualified as disciplinary offences, criminal offences or war crimes.”
Spain’s LOAC Manual (2007) states that “individuals are subject to individual responsibility for acts that constitute a violation of the rules of armed conflict, which can be classed as a disciplinary offence, a criminal offence or a war crime”.
The manual also states: “All individuals bear individual responsibility for any violations of the law of armed conflict that they commit. They bear criminal responsibility if it is a serious violation classed as a criminal offence or a war crime.”
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 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) contains chapters entitled “Genocide” and “Offences against protected persons and objects in the event of armed conflict” and provides for the punishment of offences listed thereunder. Protected persons in the meaning of the latter 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 2010, states:
Anyone who, in the event of an armed conflict, commits … 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 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, the court noted:
1. … [T]he application … of Article 611 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 attacks 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 Articles 146 and 147 of the 1949 Geneva Convention IV on grave breaches.
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 further held:
1. It is understood that jurisprudence only requires that there be a belief that an offence has been likely committed in order to institute proceedings, without it being necessary to certify that the accused persons are the authors of the offence, as determining the certainty of the existence [of an offence] is the responsibility of the sentencing tribunal. …
2. Due to their similarity with this matter, we must refer to what has been said in relation to the fifth and sixth issues raised by the previous appellants concerning the existence of rational indications of the commission of an offence which violate the ius in bello, namely the norms of International Humanitarian Law that must be observed by belligerents.
… As Section II of the Chamber has held, it would be implausible and therefore inadmissible to invoke error [to exclude criminal responsibility] when [the acts] concern “offences of a natural or elementary character that are evidently, and as a matter of general knowledge, prohibited” (STS 71/2004 of 2 February).
Nevertheless, it is important to note that the principle of self-defence cannot be applied even in the case of military operations that are supposedly defensive or in response to real prior aggressions … when a belligerent commits any of the actions classified as contrary to the Law of War, attacking in any of the described manners those considered to be “protected persons” according to Article 608 of the PC, regardless of the penalty for the results of such acts as provided in Article 611(1) of the same code, which there is no doubt that in the case of the [current] proceedings can be classified as the offence of homicide according to Article 138 PC.
In addition, as criminal responsibility is purely personal, the military doctrine known as “shock and awe”
consisting of acts such as the bombardment of protected persons and objects in the event of armed conflict … results in the criminal responsibility of the person exercising control over the specific direction of the military operations.
[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 2010, in its report to the UN General Assembly on the status of the 1977 Additional Protocols, Spain stated:
The framework guaranteeing that members of the armed forces will conduct themselves in accordance with international humanitarian law is constituted by … article 56 [of the Royal Ordinances for the Armed Forces (2009)] on Serious Criminal Liability for Crimes against International Humanitarian Law.
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.