Practice Relating to Rule 1. The Principle of Distinction between Civilians and Combatants
Section C. Attacks against civilians
Spain’s LOAC Manual (1996) prohibits military operations directed against civilians.
The manual further states that “intentionally attacking the civilian population or individual civilians” constitutes a grave breach.
Spain’s LOAC Manual (2007) states: “The civilian population may not be the direct, intentional object of attack, as long as they do not take a direct part in hostilities.”
Spain’s Royal Ordinance for the Armed Forces (1978) emphasizes the obligation to pay due attention to the protection of the civilian population.
Spain’s Penal Code (1995) punishes “anyone who, during an armed conflict, … makes the civilian population the object of attack”.
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 attacks
[emphasis in original]
The Court further referred to norms of IHL relevant to the case under review, including Article 51(2) of the 1977 Additional Protocol I.
The Court also restated Articles 57(5) and 85(3)(a) of the 1977 Additional Protocol I.
In deciding on the issue concerning breach of the law, the Court 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.
… [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 …
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 … 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 1988, Spain protested against direct attacks on the civilian population during the Iran–Iraq War.
The Report on the Practice of Spain considers that, in general,
the Spanish Government has tended to condemn all attacks directed against the civilian population … whether the armed conflict was internal or international. This was its position in the civil war in Liberia, the Gulf War, the conflict in the former Yugoslavia, the civil war in Sudan, the war in Chechnya, and the Turkish attacks against the Kurds in northern Iraq.