Practice Relating to Rule 157. Jurisdiction over War Crimes
Spain’s LOAC Manual (1996) provides: “States have the obligation to search for persons accused of having committed, or having ordered to be committed, grave breaches, being obliged to make them appear before their own tribunals, regardless of their nationality.”
Spain’s LOAC Manual (2007) states:
Under the Geneva Conventions, States have the right to exercise universal jurisdiction over war crimes in their courts, even when the crime is committed outside their national territory and the accused is not a national of that State. States have a duty to search for those suspected of having committed or having ordered others to commit grave breaches and try them in their own courts, regardless of their nationality.
Under Spain’s Law on Judicial Power (1985), Spanish criminal courts have jurisdiction over offences committed by Spanish nationals and foreigners, whether on Spanish territory or abroad, in particular genocide or other offences which according to international treaties or conventions, must be prosecuted in Spain.
Spain’s Law on Judicial Power (1985), as amended in 2009, states:
4. … Spanish courts have jurisdiction over offences committed by … foreign nationals outside the national territory, which constitute any of the following offences according to Spanish law:
h. Any other [act] that according to international treaties and conventions, in particular those Conventions on international humanitarian law and the protection of human rights, must be prosecuted in Spain.
Without prejudice to that disposed by the treaties and international conventions that Spain is a party to, in order for Spanish tribunals to have jurisdiction over the above-mentioned offences it must be demonstrated … that no other procedure leading to an investigation or effective prosecution, as the case may be, of the same punishable acts has been initiated in another country with jurisdiction or within an international tribunal.
The prosecution initiated before Spanish courts will be temporarily dismissed when it is established that another process on the denounced acts has been initiated in the country or tribunal referred to in the above paragraph.
5. If the prosecution is transferred to Spain according to the conditions in … paragraph 4, paragraph 2(c) of this article will in any case be applicable.
In 2007, in the Couso case, which concerned the killing of a Spanish journalist in Baghdad by US troops on 8 April 2003, the Criminal Chamber of the Supreme Court of Spain overturned the finding of lack of jurisdiction by a lower court. The Criminal Chamber of the Supreme Court stated:
[T]his Court’s delimitation in the well-known judgments of 25 February 2003 (RJ 2003/2147) and 20 May 2003 (RJ 2003/3910) (the so-called Guatemala and Peru cases, respectively) … stipulated the need for a legitimate link [in order to exercise jurisdiction] since the absence of such a link could be correctly considered as an excessive broadening of national criminal jurisdiction, in particular if we take into account that our domestic legal framework does not admit the opportunity principle and, at the same time, does admit the possibility of bringing forward a “popular action” [that allows any Spanish citizen to bring to court a criminal case without the need for a connection to the crime].
[T]he intervention of Spanish Courts regarding acts committed outside their territory can undoubtedly cause conflicts from the point of view of Spain’s international relations. This is something which falls under the competence of the Government (see Article 97 of the Constitution) and is thus not part of the judicial function, but which the Courts cannot completely ignore.
The Court further held:
The Constitutional Court has stated that “the ultimate basis for … [the] rule granting jurisdiction is the universalization of States’ and state bodies’ jurisdiction over certain acts whose prosecution and punishment is of concern to all States…” [RCL 1985/1578. 2635]. In this respect, it has stated that “Article 23.4 of the Organic Law on the Judiciary [LOPJ] entails, in principle, a very broad understanding of the principle of universal justice, given that the only express limitation included in the law is that of res judicata”. The Court, which has the last word regarding constitutional guarantees (see Art. 123 Constitution), subsequently concluded that “the LOPJ establishes an absolute universal jurisdiction” (cf. STC 237/2005; F 3rd).
In any event, it must be acknowledged that in the present case there is a legitimate link that would justify exercising Spanish extra-territorial jurisdiction in accordance with scholarly opinions included in judgment STS of 25 February 2003 (RJ 2003/2147) [Argument 8, Guatemala Case], given that one of the victims, journalist Rogelio, was a Spanish national.
In 2009, in the Gaza case, the Criminal Chamber of Spain’s National High Court was called upon to decide the appeal of the Prosecution Service on whether Spanish courts have jurisdiction to hear a case concerning a bombing in Gaza in 2002 by the Israeli Air Force on the basis of the principle of universal jurisdiction. The Court noted:
B) With regard to the principle of universal justice, established in Article 23(4) of the L.O.P.J. [Law on Judicial Power (1985)], its applicability is not to be considered absolute, as several legal provisions and jurisprudence have added nuances to it.
a) In the legal framework, Article 23(23.4) of the L.O.P.J. establishes a first limitation, as Spanish courts have jurisdiction over offences committed by … foreign [nationals] outside the national territory, which may constitute acts that, according to international treaties and conventions, must be prosecuted in Spain (Article 23(4)(i)); in the analyzed case [these fall under] offences against the international community under the modality of offences against protected persons and objects in the event of an armed conflict established in Articles 608(3), 611(1) and 613(1)(b) and (e) of the PC [Penal Code (1985)], in relation with 1949 IV Geneva Convention and 1977 Additional Protocol I … However, this is only the case provided that the offender has not been acquitted, pardoned or sentenced abroad or, in the latter case, has not completed his or her sentence or has only completed it partly (Article 23(2)(c) of the L.O.P.J.).
In addition, Article 17 of the  … ICC Statute … offers certain criteria on the admissibility and inadmissibility to hear situations referred to it when certain circumstances are met.
In order to determine the willingness or unwillingness [of a State] to act in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: a) The proceedings were or are being undertaken or the national decision was made with the purpose of shielding the concerned person from criminal responsibility for crimes within the jurisdiction of the Court; (b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with the intention to bring the concerned person to justice; (c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with the intention to bring the person concerned to justice.
b) In jurisprudence, the principle of universal jurisdiction has also been qualified by important nuances.
a) The S.T.C. 237/05 [Constitutional Court judgment] of 26 September 2005 (Guatemala case) and STC 227/07 [judgment] of 22 October 2007 (Falun Gong case) have established the following criteria on the matter:
1.- On the extension of the principle of universal justice, it is indicated that Article 23(4) of the L.O.P.J. entails, in principle, a very broad understanding of the principle of universal justice, given that the only express limitation included … is … that the offender has not been acquitted, pardoned or sentenced abroad. In other words, in a literal interpretation of the principle … one must conclude that the L.O.P.J. establishes an absolute principle of universal jurisdiction … It adds, however, that this does not definitely imply that the aforementioned is the only canon of interpretation of this principle, … [instead] other regulatory criteria could even restrict its scope of application. …
2.- Concerning the tension between the principle of concurrence and the principle of subsidiary [jurisdiction], it is noted that there are important reasons … that have resulted in the prioritization of the locus delicti, which is part of the body of International Criminal Law. Based on this fact, … it is true that … the principle of subsidiarity should not be seen as a rule opposed to, or diverging from, that which introduces the principle of concurrence as, in view of concurrent jurisdictions and in order to avoid the eventual duplication of processes and the infringement of the principle of ne bis in idem, the introduction of a rule of prioritization is indispensable. The common compromise (at least in principle) of all States being the prosecution of atrocious offences affecting the international community, priority should be granted for procedural, political and penal reasons to the jurisdiction in which the offence was committed.
b) S.T.S. 645/06 [Supreme Court judgment] of 20 June 2006 (Tibet case) … establishes the following:
2.- On the alleged absolute character of the principle of universal justice, the T.S. maintains that it has only been deduced from the fact that the text [of Article 23(4) of the L.O.P.J.] does not mention any express limitations. However, the Constitutional Court affirmed … that this is not the only canon for applying the principle … In other words, it is an “absolute” universal principle that can nonetheless be relativized [by other criteria] in order to “restrict its scope of application”.
3.- The principle of universal jurisdiction must not be understood as an absolute principle that cannot be limited by other principles of International Law. It should be noted that the doctrine of Public International Law, in general, makes the jurisdiction of a State over extraterritorial acts conditional upon the existence of a given connection between the acts and the concerned State. In this sense, it has been specified that there must be a “legitimate”, “substantial” or “authentic link”, a “legitimizing contact” or a “contact so closely connected with the acts that it would be compatible with the principles of non-intervention and proportionality” [to exercise jurisdiction].
These criteria should be taken into account particularly when it concerns the prosecution of acts carried out within the sovereignty of another State. …
c) The STS 1382/04 [Supreme Court judgment] of 15 November 2004 (procedural aspects of the Schilingo Case) … concerning the preference or concurrence of jurisdiction in offences affecting the international community, held with reference to the STS [judgment] of 20 May 2003 that it must be accepted that the exercise of jurisdiction according to the principle of universal justice is excluded when the territorial jurisdiction is effectively prosecuting the offence of a universal character that was committed in its own country. … The application of this principle determines that competence should as a priority be granted to the territorial jurisdiction when there is concurrence between it and another that would be exercised on the basis of the principle of universal justice. This criterion does not exclude the application of what is provided in Article 23(4) of the L.O.P.J. which establishes as an exigency for admitting a dispute based on universal jurisdiction that there is complete confirmation of the inactivity or inefficiency of the criminal prosecution by the territorial jurisdiction. This requirement would effectively devoid the principle of universal prosecution of its significance, as it would be practically impossible to ensure this … In order to admit the complaint, … as with other acts that allegedly constitute universal offences, it is [only] necessary to offer serious and reasonable indications that the denounced grave crimes have not been effectively prosecuted to date by the territorial jurisdiction for whatever reason … Finally, as a complement to the mentioned principles, the jurisprudence of this Chamber recognizes the importance that the existence of a connection with a national interest could have as a legitimizing element in the context of the principle of universal justice [by] modulating the extension [of universal jurisdiction] with criteria of rationality and respect for the principle of non-intervention.
d) Finally, the different Sections that compose the Criminal Chamber of the National High Court have recently had the occasion to pronounce themselves on the controversial matter [and] have granted preference, in several proceedings in which Spanish intervention was being called for by virtue of the legally established principle of universal jurisdiction, to the territorial principle through the application of criteria of rationality, [and] efficiency … In this regard, [one can look to] the order of 19 October 2006 … (Fotea Dimieri case) … ; the order of 4 April 2008 … (Cavallo case) … and the order of 14 January 2009 … (case concerning the agents of the Municipal Police of San Salvador de Ateneo, State of Texcoco, Mexico) …
Fourth.- The absence of the absolute character of the principle of universal jurisdiction in Spain, in which it is generally considered that the criteria of subsidiarity has priority over the criteria of concurrence and that the principle should be modulated in each specific case to the logical rules of rationality, proportionality and self-restraint that will ensure its effective use in those cases where there is a risk of impunity of the alleged detestable offences committed, has been noted … [I]t is now time to examine the documentation produced by [court] orders in order to extract from them how the State of Israel has investigated and is investigating the acts described in the formulated complaint. Such proceedings would definitely deactivate the principle of concurrent jurisdiction in the case currently under analysis …
Fifth … [Through] an overview of the proceedings that have been and are being conducted in Israel for the criminal and civil investigation of the acts that took place … it can be deduced that there has been a genuine and real procedure, first administrative and then judicial, to ascertain the possible commission of an offence. …
It cannot be claimed that an effective criminal investigation did not take place in the State of Israel based on the documentation provided by the Israeli authorities. … [T]here does not seem to be malicious or unjustified procedural delays that could interfere with the legitimate expectations of the parties to a fair and founded decision on the issues submitted to a judicial decision.
In addition, calling into question the impartiality and the organic and functional separation of the Executive Power that the Israeli Military Prosecution Service, Israel’s State Prosecutor and the Investigative Commission named by the Government of Israel, would be to ignore the evidence of the existence of the rule of law …
In relation to the above, … the State of Israel [has the competence] to investigate and … prosecute the acts subject to verification … [b]y virtue of … [the fact that] an offence is committed both where the action originates and is developed (Israel) as well as where it produces a result (Gaza). … Transferring the above … to the current proceeding, it is obvious and evident that it is the Israeli judicial bodies that have been investigating the facts of the complaint.
The Court reversed the decision of the lower court and decided to “[u]phold
the appeal formulated by the Prosecution Service against the order of 4 May 2009, which dismissed the request by the Prosecution Service to declare the incompetency of the Spanish jurisdiction to hear the facts of the case”.
(emphasis in original)
In 2010, Spain’s Supreme Court accepted the reasoning of the National High Court on universal jurisdiction and held that “it would not uphold
the appeal formulated by the appellants”.
(emphasis in original)
The facts object of the complaint are limited to the alleged crimes committed as a consequence of the domination of the People's Republic of China in Tibet, and its military occupation, between 1950 and 1979.
II. LEGAL REASONING
[T]he question arises as to whether Spanish jurisdiction should apply to investigate and try cases on the basis of Law 1/2014 of 13 March 2014. This Law covers the scope and interpretation of applicable provisions (mainly international treaties signed by Spain) and establishes whether events that occurred in the territory of another country, under the sovereignty of another State, and are consequently unaffected by the general principle of territoriality in Spanish criminal law, can be tried in Spain.