Practice Relating to Rule 146. Reprisals against Protected Persons
Section E. Civilians in general
Spain’s LOAC Manual (1996) lists among the persons against whom the taking of reprisals is prohibited “civilian persons and objects”. It refers, however, to Article 46 of the 1949 Geneva Convention I (relative to the prohibition of reprisals against the wounded, the sick and medical personnel protected under the Convention).
Spain’s LOAC Manual (2007) lists “civilians” among the persons against whom the taking of reprisals is prohibited.
Spain’s Penal Code (1995) provides for the punishment of “anyone who [in the event of armed conflict] should … carry out or order … reprisals or violent acts or threats in order to terrify [the civilian population]”.
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 [Penal Code] 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 … reprisals
[emphasis in original]
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 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.”