Spanish legal
background regarding the persecution of
war crimes committed in the Palestinian Territories
International
jurisdiction of Spanish courts in case of war crimes and genocide
·
On the other hand, the
1985 law on the judiciary indicates that the jurisdiction of Spanish courts may
extend to offences committed by anybody anywhere, if the acts in question can
be classified under Spanish criminal law as offences that should be prosecuted
in Spain pursuant to international treaties and conventions. It should also be
noted that no adverse distinction is made in regard to situations covered by
Protocol II and that, on the contrary, they seem to be fully integrated in the
articles governing armed conflict in general. Further, these articles are among
the provisions grouped under the heading "Delitos contra la Comunidad
internacional".[2]
Judicial
System Organic Law (Ley Organica del Poder Judicial 6/1985, del 1 de julio)
permits the exercise of Spanish criminal jurisdiction “although the offence may
have been committed outside of national territory, if committed by a national
or foreigner”. The L.O.P.J. gives Spanish courts jurisdiction over acts
committed outside Spain where the conduct would violate Spanish law if committed
in Spain or violates obligations under international treaties. The law gives
Spain courts jurisdiction over other offences which international treaties
require Spain to prosecute, including genocide, terrorism and where treaties
require Spain to prosecute such crimes.
In fact,
art. 23.4.g) specifies : “And any offence that, according to the international
treaties or convenants, must be prosecuted”.
·
Article
23 of the Organic Law of the Judicial Power (OLJP) establishes that Spanish
courts shall have jurisdiction over crimes committed by Spanish or foreign
citizens outside of Spain when such crimes can be typified, according to
Spanish criminal law, as genocide and terrorism, among others, as well as
"any other [crime] which according to international treaties or
conventions must be prosecuted in Spain[3].
In other words, the law gives Spanish
courts jurisdiction over genocide, terrorism and other offences which
international treaties require Spain to prosecute regardless of the citizenship
of the ones who commit the offences.
“Each High
Contracting Party shall be under the obligation to search for persons alleged
to have committed, or to have ordered to be committed, such grave breaches, and
shall bring such persons, regardless or their nationality, before its own
courts. It may also, if it prefers, and in accordance to the provisions of its
own legislation, hand such persons over for trial to another High Contracting
Party concerned, provided such High Contracting Party has made out a prima
facie case”
·
Spain has signed the
four Geneva Conventions as well as the protocols. Regarding the ICC 42 nations
have already signed the Rome Treaty. Among these nations is Spain[4].
War crimes according the Spanish criminal law
Art. 608: Protected
people:
Injured, sick, religious and medical persons
(according to the I and II Geneva Convention and I Protocol). War prisoners
(III Geneva Cv.and I Protocol).
Civilian
population and civilian people (IV Geneva Cv.and I Protocol).
People
external to the combat and personel of the Protected Power (Geneva Cv.and I
Protocol).
Parliament
members and acompaniants (IIHague Convention).
Any other
with such condition when the II Protocol or any other international treaty
requires it.
Art. 609: Those who,
on the occasion of an armed conflict, mishandle or risk the life, health or the
integrity of any protected people, including torture or inhuman treatment will
be punished with the prison of 4 to 8 years. That treatment includes the
biological experiments and any other medical act not prescribed for the person
welfare nor according to the generally recognised medical rules that the
responsible Party would apply, in similar circumstances, to its own national
people not deprived of freedom. Adding to that the punishment for the results
committed.
Art. 610: Those
who, on the occasion of an armed conflict, use or order to use methods or war
measures forbidden or addressed to provoke unnecessary suffers or superfluous
damages as well as those conceived to provoke large, lasting and severe
environmental damages, compromising the health or survival of the population,
will be punished with the prison of 10 to 15 years. Adding to that the
punishment for the results committed.
Art. 611: Those
who, on the occasion of an armed conflict, will commit any of the above listed
actions, will be punished with the prison of 10 to 15 years:
1.Indiscriminate
or excessive attacks as well as attacks, retaliation or violent and threatening
actions whose main purpose is to terrorise the civilian population.
2.Unnecesary
destruction or damage of any non military ship or plane belonging to a
belligerent or neutral Party, against the International Law rules in armed
conflicts.
3.Those
who force a war prisoner or civilian person to serve, in any form, within the
Army of the Adverse Party. The same for those who deprive a war prisoner or
civilian person from his/her right to a fair trial (regular and impartial).
4. Those
who deport, forcefully transfer, take hostages or commit illegally detention of
any protected person.
5. Those
who transfer and settle population from the occupant Party in occupied
territory in order to let them settle (reside) permanently.
6.Those
who realise, order to realise or keep on going racial segregation or any other
inhuman and degrading practices to any protected person.
7. Those who avoid or delay, with no justification,
the release of repatriation of war prisoners or civilian population.
Art. 612. Those
who, on the occasion of an armed conflict, will be punished with prison of 3 to
7 years if they commit any of the following actions:
1.Violation
on purpose of the due protection to health units and health vehicles, prisoners
camps, health areas, security declared areas, neutralised areas or places where
the civilian population will be interned, localities with no defence and
demilitarised areas duly signalised.
2.Those
who execute violence on sanitary or religious staff or on members of the
medical mission or relief societies.
3.Those
who severely injure, deprive or not bring the indispensable feed or the
necessary medical care, humiliate, force to prostitution or not inform in due
time and comprehensively above his situation to any protected person. As well
as those who execute collective punishments for individual actions or violate
the rules about lodging of women and families o special protection accorded to
women and children in the International Treaties signed by Spain.
4.Misuse
of the protected symbols and signals established and recognised in the
International Treaties signed by Spain, specially those of the Red Cross or the
Red Crescent.
5. Misuse
of symbols, flags, uniform or any distinction of neutral States, United Nations
or any other States not involved within the conflict.
6.Misuse
of flag of Parliament or surrender. Attempt against the inviolability or
improperly retain any parliament member or any person escorting him/her, any
one from the Occupant Power or, just in case, its substitute.
7. Deprive
of its goods a corpse, injured, sick, shipwrecked, war prisoner or any interned
civilian person.
Art. 613. 1. Those
who, in the occasion of an armed conflict, will commit any of the below listed
actions, will be punished with prison of 4 to 6 years:
a) Attack, retaliate
or commit hostility actions to cultural goods or religious places clearly
recognised, which constitute the cultural or spiritual heritage or the
populations and that had previously accorded protection in special agreements.
This always when there will be large destruction of the goods an that these
goods be not in the vicinity of military targets or not being used as support
of the military effort of the Adverse Party.
b) Attack, retaliate
of commit hostility actions to civilian goods of the Adverse Party, provoking
its destruction when, taking into account the circumstances of the case, this
does not mean a determinant military advantage nor that this does not
effectively contribute to the military action of the Adverse Party.
c) Attack, destroy,
thieve or make unusable the indispensable goods for the survival of the
civilian population unless the Adverse Party uses those goods as direct support
for a military action or exclusively as subsistence way for its Army members.
d) Attack, retaliate
the works or installations that contain dangerous forces, when these attacks
must provoke the release of those forces and, subsequently, make important
losses for the civilian population, unless such works or installations be used
as regular, important and direct support to military operations and such
attacks be the only way to put an end to that support.
e) Destroy, damage or
take, without military necessity, goods or stuff that not belong to them, force
anyone to render them or commit any other thievery.
2.In the
case when these are cultural goods under special protection, or in extremely
grave cases, the punishment may be established in its superior grade.
Art. 614. Those
who, on the occasion of an armed conflict, executes or orders to execute any
other offence or acts against the rules of the international Treaties signed by
Spain and related to the war/conflict procedures, protection of injured and
sick persons, treatment for war prisoners, protection of civilian people and
protection of cultural goods in armed conflict, will be punished with prison of
6 months to 2 years.
Genocide
according Spanish criminal law
PENAL CODE- BOOK II, TITLE XXIV Crimes against the International
Community,
Chapter II: Crimes of genocide - Article 607
·
Those
who, with the intention to total or partially destroy a national, ethnic,
racial or religious group, perpetrate the following acts, will be punished:
1) With the prison sentence of fifteen to twenty years, if they killed
to some of its members. If the fact two or more aggravating circumstances
concurred in, the greater punishment in degree will prevail. 2) With the prison
of fifteen to twenty years, if they sexually attacked to some of members [of
the group] or produced some of the injuries anticipated in article 149.3)
With prison sentence of eight to fifteen years, if they subjected the group or
anyone of its individuals to conditions of existence that put their lives in
danger or seriously disturbed their health, or when they produced some to them
of the injuries anticipated in article 150.4)
With the same punishment, if they carried out [unavoidable] displacements of
the group or their members, they adopted any measurement that tend to prevent
their sort of life or reproduction, or transferred by force individuals from a
group to another one.5) With imprisonment of four to eight years, if they
produced any other injury different from the ones indicated in numbers 2) and
3) of this section.2. The diffusion by any means of ideas or doctrines that
deny or justify the crimes [tipificados] in the previous section of this
article, or tries the rehabilitation of regimes or institutions which they
protect generating practices of such, will be punished with a prison sentence
of one to two years.
The popular action in Spanish law
The Guatemalan case and the subsidiary
principle
Example case of Israel war crimes against the Palestinian population
Palestine Ministry of
Information
January 15, 2001
http://www.minfo.gov.ps/statements/est_1501.htm.
Dear Senator Mitchell and Esteemed Members of the
Sharm El-Sheikh Fact-Finding Committee:
Re: Israeli Government Policy of Assassinations
of Palestinians
As you are undoubtedly aware, Israel has been
engaged in a systematic and willful policy of targeted killings of
Palestinians, which has become widely implemented during the latest
crisis. In the past, the Israeli
government had pointedly refused to deny involvement in extra-judicial
executions and willful killings of Palestinians. The lack of any international outcry against what can only be
called state-sponsored terrorism, however, has now resulted in an open
declaration by Israeli officials of Israel’s illegal policies. The latest Palestinian to be assassinated,
Dr. Thabet Thabet, was an open advocate of reconciliation between Palestinians
and Israelis, but was nevertheless gunned down by an Israeli death squad as he
left his home on New Year’s Eve. This
Israeli policy violates all international norms and must stop immediately.
Israeli Prime Minister Ehud Barak, Deputy Defense
Minister Ephraim Sneh and the Chief of the General Staff Lt.-Gen. Shaul Mofaz
have all confirmed that the government of Israel is carrying out a policy of
extra-judicial executions. According to
members of the Knesset, Barak admitted the assassination policy at a recent
meeting of the Foreign Affairs and Defense Committee. Sneh told Israel Radio last week that “[i]f anyone has committed
or is planning to carry out terrorist attacks, he has to be hit….It is
effective, precise and just.” Mofaz
told the Knesset Foreign Affairs and Defense Committee this week that security
forces have permission to eliminate Palestinian “hostile elements.”
Israel’s policy, besides constituting a major
escalation of the aggression against Palestinians, is also a clear breach of
international humanitarian law and international criminal law. Israel’s openly advocated policy of
murder constitutes a grave breach of the Fourth Geneva Convention, a war crime that has been outlawed since the Lieber Code of 1863, as well as a
violation of internationally acknowledged human rights standards. Furthermore, the policy is a manifest
violation of Israel’s Basic Law as interpreted by the Israeli Supreme
Court.
The international community has now made it clear,
particularly through the precedents of the International War Crimes Tribunals for the
Former Yugoslavia (“ICTY”) and Rwanda (“ICTR”), that all of those involved in
the planning, instigation, ordering, or commission of grave breaches or who
otherwise aid and abet in the planning, preparation or execution of grave
breaches must be held individually responsible for the crime. This
remains true whether those responsible are soldiers, government officials or
even if they are the head of a state or government.
Barak has implemented this policy despite its
illegality and despite opposition from members of the Israeli Knesset and
Barak’s own cabinet. Naomi Chazan, a
member of the Knesset, was quoted by the Washington Post on January 8,
2001, as noting that Barak’s assassination policy is “totally illegal according
to any international criteria or law…it’s immoral….[and] it’s stupid.” Dan Meridor, chairman of the Knesset’s
Foreign Affairs and Defense Committee told a Knesset hearing that it was
illegal for the state to carry out extrajudicial killing of political
activists.
Barak’s policy is predicated on the continued silence
of the international community and the belief that Israeli death squads, unlike
those which have operated in El Salvador, Guatemala, or elsewhere, are immune
from any form of legal retribution.
Yet, recent events such as the indictment of Augusto Pinochet in Spain, the indictment and arrest
of alleged war criminals
from the former Yugoslavia including former Bosnian Serb President and Member
of the Supreme Command of the Bosnian Serb Armed Forces Biljana Plavsic, and
numerous civil suits successfully brought in the United States against
governments and individuals (including one just last month confirming that
assassinations or extrajudicial killings violate the law of nations), indicate
that no one has immunity from prosecution for international crimes – even if he
is the Prime Minister of Israel. On the contrary, under Article 146 of the
Fourth Geneva Convention, each state party to the Convention is “under the
obligation to search for persons alleged to have committed…. grave breaches,
and shall bring such persons, regardless of their nationality, before its own
courts.”
While this Committee is not expected to take legal
action, it nevertheless must recognize the impossibility of either having
constructive peace talks or bringing an end to the current violence while such
a gross violation of international law continues to take place and, in fact, is
bragged about by Israeli leaders.
Israel must be reminded that international law applies to all nations
and all individuals - even Israelis.
Israel’s assassination policy specifically violates
the following legal norms:
Despite Israel’s traditional argument to the
contrary, it has been universally recognized in numerous UN Security Council
Resolutions and Conferences of the High Contracting Parties to the Convention
that the Fourth Geneva Convention is applicable to Israel’s occupation of the
Occupied Palestinian Territories. This applicability extends to all areas
occupied in 1967 including East Jerusalem and “Areas A”.Under the current
conditions, Israel has argued that an armed conflict exists. Its policy of assassination is planned and
systematic and directed against specific Palestinian officials and local
leaders, all of whom are “civilians” under the Fourth Geneva Convention. Under these conditions, Israel’s policy of
systematically targeting Palestinian local and national leaders for willful
killing violates Articles 27, 32, and 33 of the Fourth Geneva Convention:
Article 27: Protected persons are entitled,
in all circumstances, to respect for their persons, their honour, their family
rights, their religious convictions and practices, and their manners and
customs. They shall at all times be
humanely treated, and shall be protected especially against all acts of
violence or threats thereof and against insults and public curiosity.Article
32: The High Contracting Parties
specifically agree that each of them is prohibited from taking any measure of
such a character as to cause the physical suffering or extermination of
protected persons in their hands….Article 33:
No protected person may be punished for an offence he or she has not
personally committed. Collective
penalties and likewise all measures of intimidation or of terrorism are
prohibited.In addition, these acts are considered “grave breaches” under
Article 147 of the Fourth Geneva Convention, and as such are subject to
universal jurisdiction in accordance with Article 146.The Protocol Additional
to the Geneva Convention of 1977 provides guidance in interpreting
international humanitarian law concerning assassination and arguably reflects
customary law. Attacks on persons
considered activists, or allegedly involved in encouraging resistance to
Israel’s occupation, clearly contravene the Protocol, which identifies such
actions as war crimes:
Article 51 (Sec. 2): The civilian population as
such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary
purpose of which is to spread terror among the civilian population are
prohibited.Article 51 (Sec. 3):
Civilians shall enjoy the protection afforded by this section, unless
and for such time as they take a direct part in the hostilities.Article 51
(Sec. 6): Attacks against the civilian
population or civilians by way of reprisals are prohibited.Article 75 (Sec.
2): The following acts are and shall
remain prohibited at any time and in any place whatsoever, whether committed by
civilian or by military agents: (a) violence to the life, health, or physical
or mental well-being of persons, in particular: (i) murder….Article 75 (Sec. 4):
No sentence may be passed and no penalty may be executed on a person
found guilty of a penal offence related to the armed conflict except pursuant
to a conviction pronounced by an impartial and regularly constituted court
respecting the generally recognized principles of regular judicial
procedure….Article 85 (Sec. 3a): In
addition to the grave breaches defined in Article 11, the following acts shall
be regarded as grave breaches of this Protocol, when committed willfully, in
violation of the relevant provisions of this Protocol, and causing death or
serious injury to body or health: (a) making the civilian population or
individual civilians the object of attack; …(e) making a person the object of
attack in the knowledge that he is hors de combat….Article 85 (Sec. 5): Without prejudice to the application of the
Conventions and of this Protocol, grave breaches of these instruments shall be
regarded as war crimes.
The abhorrence of international humanitarian law for
assassination was first codified in Article 148 of the Lieber Code of 1863 and remains true
even today:
The law of war
does not allow proclaiming either an individual belonging to a hostile army, or
a citizen, or a subject of the hostile government, an outlaw, who may be slain
without trial by any captor, any more than the modern law of peace allows such
intentional outlawry; on the contrary, it abhors such outrage. The sternest retaliation should follow the
murder committed in consequence of such proclamation, made by whatever
authority. Civilized nations look with
horror upon offers of rewards for the assassination of enemies as relapses into
barbarism.
This judgment on the immorality and illegality of
assassination was re-articulated in Article 23(b) of the 1907 Hague Convention
which provided that it is “especially forbidden…to kill or wound treacherously
individuals belonging to the hostile nation or army.” This article, along with other specific military codes of
conduct, has generally acknowledged the absolute prohibition on assassination
no matter what the motive or military benefit.
Israel’s acknowledged policy of assassination
is also a breach of well-established principles of international criminal law. The 1945 Charter
of the International Military Tribunal in Nuremberg (Article 6), considered
assassinations to be both war
crimes and crimes against humanity.
More recently, the same was codified and elaborated in Article 7
and 8 of the Charter for the International Criminal Court; in Articles 2, 5, and 7 of the Statute for the
ICTY; and in Articles 3, 4, and 6 of the Statute for the ICTR. Although the latter two courts do not have
jurisdiction over the crimes committed by Israel against Palestinians, their
Statutes reflect international acceptance of what constitutes an international crime. Most relevant to those Israeli officials and soldiers
involved in any capacity in the commission of these grave breaches,
international law - as recognized by these courts - attaches individual criminal responsibility to each
person involved:
ICTY
Article 7 (1): A person who planned,
instigated, ordered, committed or otherwise aided and abetted in the planning,
preparation or execution of a crime
referred to in articles 2 to 5 of the present Statute [including willful
killing and murder when committed in armed conflict, whether international or
internal in character, and directed against any civilian population], shall be
individually responsible for the crime.
ICTY
Article 7 (2): The official position of any accused person, whether as
Head of State or Government or as a responsible Government official, shall not
relieve such person of criminal
responsibility nor mitigate punishment.
ICTR
Article 6 (1): A person who planned,
instigated, ordered, committed or otherwise aided and abetted in the planning,
preparation or execution of a crime
referred to in articles 2 to 4 of the present Statute [including willful
killing and murder when committed in armed conflict, whether international or
internal in character, and directed against any civilian population], shall be
individually responsible for the crime.
ICTR
Article 7 (2): The official position of
any accused person, whether as Head of State or Government or as a responsible
Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.
International human rights law also
specifically prohibits extrajudicial, summary or arbitrary executions. The Universal Declaration of Human Rights
clearly states that “[e]veryone has the right to life, liberty and security of
person.” The International Covenant on
Civil and Political Rights codifies this right and adds that “[n]o one shall be
arbitrarily deprived of his life.” This
promotion and protection of the right to life is not just a domestic concern
but has become a matter of international concern. The United Nations appointed a Special Rapporteur on
Extrajudicial, Summary or Arbitrary Executions specifically to examine
situations such as the one currently taking place in the Israeli Occupied
Palestinian Territories. The Special Rapporteur is charged with responding
effectively to information brought before it, and issuing urgent appeals to
governments such as Israel’s, involved in such violations of international
human rights law.
Moreover, the
assassinations are considered illegal under Israeli law. While Israel does not posses a written
constitution, Section II of the
Israeli Basic Law -- Human Dignity and Freedom, provides for a general
protection of the right to life under the Israeli legal system. The Israeli High Court has relied on this
Section to conclude the illegality of the death sentence under Israeli
law.
Furthermore, the assassinations are particularly
considered illegal under the “Black Flag” doctrine established by Israeli case
law. As elaborated following the infamous massacre carried out by the IDF at Kafr-Qassem in
1956, the doctrine sets the scope for “command responsibility” to include the criminal liability of IDF
soldiers carrying out manifestly unlawful orders that effectively “wave like a
black flag above the order given, as a warning saying: “forbidden’”.
Accordingly, the current IDF policy of assassinations
constitutes a “black flag” that annuls the Israeli
soldiers’ duty to obey orders and renders them criminally responsible for their
actions. The policy amounts to a
summary execution or “killing without a trial”, and therefore is a manifest
violation of basic due process requirements under Israeli law. It falls squarely under the Israeli case law
observation that:
[a] reasonable soldier can distinguish a manifestly illegal
order on the face of it, without requiring legal counsel and without perusing
the law books. These provisions impose
moral and legal responsibility on every soldier, irrespective of rank.
It is worth noting that leading Israeli human rights
organizations are in agreement on the illegality of the current assassinations
under Israeli law. A case at point is
the Association for Civil Rights in Israel (“ACRI”) which sent a letter to
Prime Minister Barak, dated January 3, 2001, condemning the assassinations as a
flagrant violation of Israeli law, and calling upon him to issue clear orders
that prohibit the IDF from carrying out any further assassinations.
http://www.google.com/search?q=cache:pQ9vtUDZBAc:www.crimesofwar.org/expert/pin-marguerite2.html+Spain+war+crime+&hl=es
Marguerite
Feitlowitz
A LEXICON OF
TERROR: Argentina and the Legacies of Torture (Oxford University Press),
[2] http://www.icrc.org/icrceng.nsf/5cacfdf48ca698b641256242003b3295/24b6ade22d1c17904125660100534863?OpenDocument
Individual criminal responsibility
for violations of international humanitarian law committed in non-international
armed conflicts
by Thomas Graditzky
[6] Margaret
SwedishReligious Task Force on Central America and Mexicowww.rtfcam.org
[7] The Law Office of Jose Pertierrahttp://www.eecs.umich.edu/~pavr/harbury/archive/2000/20000322b.html
[9] Jeremy Nelsonhttp://www.google.com/search?q=cache:x735gByDt0M:www.rtfcam.org/report/volume_21/No_1/article_8.htm+war+crime+Spain+genocide+Guatemala+Menchu&hl=es