Practice Relating to Rule 158. Prosecution of War Crimes
Section B. Granting of asylum to suspected war criminals
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.