Règle correspondante
Spain
Practice Relating to Rule 89. Violence to Life
Spain’s LOAC Manual (1996) provides that a person who has participated in hostilities and who does not benefit from prisoner-of-war status and who does not benefit from a better treatment under the 1949 Geneva Convention IV is entitled to a minimum of guarantees, inter alia, “the prohibition at all times and in all places of the following acts, whether they are committed by civilians or soldiers: attacks on life, health and physical integrity, in particular homicide”.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 8.2.c.
According to the manual, “wilful killing” committed by medical personnel is a war crime.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 9.2.a.(2).
The manual also states that soldiers must respect the lives of surrendered or captured combatants.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, §§ 7.3.a.(7) and 10.8.f.(2).
Spain’s LOAC Manual (2007) states:
[N]o person who is captured or detained in relation to an armed conflict remains unprotected under the law of armed conflict and is entitled, at all times, to minimum guarantees. [These include] … prohibition of the following acts at any time and in any place, whether committed by civilian or military agents: … violence to the life, health or physical or mental well-being of persons, in particular … murder.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 8.2.c; see also § 1.4.
The manual further states with regard to captured combatants: “Under no circumstances must there be any violence to their life”.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 7.3.a.(7).
According to the manual, “wilful killing” committed by medical personnel is a war crime.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 9.2.a.(2).(b).
Spain’s Military Criminal Code (1985) punishes military personnel for “wilful killing” of the wounded, sick and shipwrecked, prisoners of war or the civilian population.
Spain, Military Criminal Code, 1985, Article 76.
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 held:
[T]he application … of Article 614 PC [Penal Code (1995)] on its 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 [1949] IV Geneva Convention and its [1977] Additional Protocol, is claimed [by the appellants].
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(II), Sexto, § 1, p. 11.
[emphasis in original]The court also referred to norms of IHL relevant to the case under review, including Article 147 of the 1949 Geneva Convention IV.
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(II), Sexto, § 2, p. 13.
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.
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(II), Sexto, § 2, p. 16.
[emphasis in original]The court further held:
1. It is held that the last indictment order qualified the acts as the offence of homicide according to Article 138 PC in combination with an offence against the international community according to Article 611(1) PC.
It is also understood that the participation in the death of Mr. Carlos Jesús by the accused Sergeant Bruno, Captain Horacio and Lieutenant Coronel Rubén has even been admitted by several extra procedural documents that have been handed over … by the US authorities. The classification of the victims as protected civilians, in accordance with the IV Geneva Convention and its Protocol are also not called into question. All of the above sets forth the legal basis for the indictment order …
2. Due to its similarity with the previous issue [raised in the appeal], the current [issue] must be assessed through the reasoning adopted in the former.
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(II), Séptimo, §§ 1–2, p. 16; see also Sexto, § 2, p. 16.
[emphasis in original]The court also 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.
…
… [I]t 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, such as 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 … [T]here is no doubt that in the case of the [current] proceedings [the acts] can be classified as the offence of homicide according to Article 138 PC.
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(III), Octavo, §§ 1–2, pp. 17–18.
[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.”
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section III, pp. 20–21.
