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The Federation of Associations of Defense and Promotion of Human Rights (Spain) would like to publicly express its support for the cases before the National Spanish Audience (Audiencia Nacional Española) about the disappeared Spanish citizens during the last military dictatorships in Argentina and Chile.
In March 1996, the Progressive Union of Prosecutors (Unión Progresista de Fiscales) filed a complaint before the National Audience against the members of the Military Junta in Argentina that usurped the democratic rule of that country from the year 1976 until 1983, for alleged crimes against humanity, including genocide and terrorism. Afterwards, in July 1996, the same association filed a complaint against the members of the Chilean Military Junta for similar crimes committed under their rule between 1973 and 1990.
The favorable resolution of these cases would be an important contribution in the struggle against impunity as they would prove the incontestability of the existence of a universal criminal jurisdiction. Now, facing the obstacles that are being found and that are due, on the one hand, to the non-compliance with Judicial Assistance Treaties , and on the other, to certain reticence taking place within the Spanish apparatus of administration of justice itself, concretely, from the Direction of the Prosecution Office of the National Audience, the Federation would like to point out the following:
1. The internal criminal tribunals, in this case the Spanish National Audience, are competent to hear cases for alleged crimes against humanity committed by the Argentine and Chilean dictatorships based on the principles of universal criminal jurisdiction and of passive personality, which exist under domestic and international law.
The Spanish constitution, in its articles 10.2 and 96.1, recognizes that international human rights law is of obligatory use in the interpretation of the corresponding constitutional norms; the norms contained in international treaties such as those of international humanitarian law (Geneva Conventions of 1949 and their additional protocols of 1977), the Convention on the Prevention and Punishment of the Crime of Genocide (1948), and the International Covenant on Civil and Political Rights (1966), the Convention Against Torture (1984), among others, having been published in the Official Bulletin of the State, they form part of the domestic Spanish law. These instruments have also been ratified by the Chilean and Argentine States. (1)
ii. Art. 23.4 of the Organic Law of Judicial Power (LOPJ) establishes Spanish jurisdiction on acts committed by Spanish or foreign citizens outside of the national territory, as long as these acts can be typified as, among others, genocide or terrorism.(2)
2. There is credible evidence that the officers of the Argentine and Chilean Armed Forces committed acts of genocide, extermination, murder, forced disappearances, torture, persecution based on political ideas and prolonged detentions, and that individually and as a group have violated norms of jus cogens. All of this constitutes the figure of crimes against humanity according to international customary law, law that is applied internally in Spain. With respect to the crime of terrorism, international customary law recognizes it as one. Let us not forget that in the Chilean case, the Chilean Supreme Court declared DINA as a "criminal organization." The UN General Assembly itself has expressly condemned this crime (UN Doc. A/49/185 and A/50/186 of December 24 1994 and 1995 respectively).
3. It cannot be considered either that these crimes have been subject to trials in the countries where they took place, and thus the clause contained in art. 23.2 c) of the LOPJ, that would preclude the exercise of Spanish jurisdiction to investigate in those procedures where the accused had been found innocent, pardoned or sentenced abroad, does not apply. Even when both in Argentina and Chile there have been criminal procedures against some of the members of the military mentioned in the criminal complaints, such procedures lack effectiveness as they have not been concluded, because their authors were pardoned or amnestied under the so-called laws of punto final, due obedience or amnesty, enacted under coercion by the same members of the military that were mentioned in the complaint. Thus these norms cannot be invoked as a defense to the universal jurisdiction foreseen for these crimes and in addition they have been declared by the Inter-American Commission on Human Rights of the OAS as contrary to art. 1.1 of the American Convention on Human Rights. It cannot be alleged either that, as the LOPJ was passed on 1985, only the crimes committed from that date on can be considered. As to this argument, Spanish law and jurisprudence establish that, when a PROCEDURAL norm is enacted (as is the Organic Law of the Judicial Power of 1985), this also applies to procedures began after it, even if they relate to crimes committed before the enactment of the PROCEDURAL law - unless there is an express decree to the contrary, which is not the case here. In fact, the LOPJ 6/1985 has been applied by the Supreme Tribunal to try crimes committed BEFORE July 1985.
4. Similarly, the application of criminal law to crimes against humanity committed before it entered into force, is legally possible because such crimes had already been included under general international law. Thus 1) the International Covenant on Civil and Political Rights of 1966, ratified by Spain, Chile and Argentina, which in art. 15 invokes the principle of nullum crimen sine lege"national or international" adds that "[n]othing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations."; 2) see also art. 7 of the European Convention on Human Rights.
5. There can be no amnesties or statutes of limitations on crimes against humanity (art. 1 of the Convention of the European Council of 25.I.1974, A/Res.47/133, among others), and they do not admit the defense of due obedience; in the Spanish case, art. 131 of the Penal Code also states that the crime of genocide does not prescribe in any case.
6. To conclude, principle no. 20 of those contained in the Final Report of the Special Rapporteur on Impunity on Civil and Political Rights, Mr. Joinet [E/CN. 4/Sub. 2/1997/20/Rev.1] states: "[t]he jurisdiction of foreign courts may be exercised by virtue either of a universal jurisdiction clause contained in a treatyin force or of a provision of domestic law establishing a rule of extraterritorial jurisdiction for serious crimes under international law."
Both possibilites con be said of the procedures followed before the Spanish National Audience, as the crimes in question are included under the generic definition of grave crimes under international law, which would include crimes of war and crimes against humanity (including genocide and grave violations of international humanitarian law). Let us not forget that the Convention on the Prevention and Punishment of the Crime of Genocide was only the specification of one of the criminal figures treated in Nüremberg.
The struggle against impunity is essential to the idea of democracy, and thus, it is directed to assure the rights that this concept encompasses: the right to truth, the right to justice and the right to reparation.
The cases pending in the Spanish National Audience obey the necessity that our societies have of having seeing such rights satisfied.
1. In its resolution 95 (I) of December 11, 1946, the UN General Assembly "confirms the principles of international law recognized by the Nüremberg Tribunal and by the Sentence of that Tribunal". The effect of these resolutions is to recognize as universal the law created in the Statute and the Sentence of the Nüremberg Tribunal. Its force in Spain has already been recognized with the ratification of the Geneva Convention of 12.VIII.1949, which in article 85 refers expressly to the "Principles of Nüremberg" approved by the UN General Assembly on 11.XII.1946. In its report about the constitution of an International Tribunal charged with trying the persons allegedly responsible for grave violations of international humanitarian law committed in the territory of the ex-Yugoslavia since 1991, the UN Secretary General has enumerated several conventions that in his opinion form part of international customary law, they are: a) The Hague Rules of 1907; b) The Statute of the International Military Tribunal of Nüremberg of 1945; c) The Convention on the Prevention and Punishment of the Crime of Genocide of 1948; d) The Geneva Conventions of 1949. The establishment by the Secretary General of the customary character of these instruments is of high probatory value as to their mandatory character for all the States according to art. 25 of the UN Charter, in as much as the Security Council approved the Report of the Secretary General without reservations (S/Res.. 827, May 25, 1993, par. 2)]
2. A much recognized recent interpretation by the UN on the Convention on the Prevention and Punishment of the Crime of Genocide and "domestic" genocides is that of M.B. Whitaker, special speaker on the "Study on the question of the prevention and the repression of the crime of genocide" (requested by the UN, ECOSOC, E/CN.4/Sub.2/1985/6, 2 July 1985), which states: "Genocide does not necessarily imply the destruction of a whole group (...) The "partial" expression of art. 2 seems to indicate a high number in relation to the effective totals of the group, or also an important faction of that group, such as their leaders" (p. 19).]
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