Spanish Domestic Law of Universal Jurisdiction
In the extensive and sometimes heated arguments over universal jurisdiction, Judge Baltasar Garzon, and national courts such as those of Spain, often missing is much scholarly information on the actual evolution and state of Spanish domestic law on universal jurisdiction, certainly in English and accessible to English language scholars. Ignacio de la Rasilla del Moral, a Spanish academic (apparently currently in the US), has put up on SSRN a discussion of the evolution – rise and fall – of universal jurisdiction law in Spain, up to mid-2009 and proposed revisions to the Spanish law. The Swan Song of Universal Jurisdiction in Spain, 9 International Criminal Law Review (2009) 777-808. I have various disagreements with the way that the article treats international law aspects of crimes subject to universal jurisdiction, but overall it is a very helpful addition to the scholarship for English language scholars seeking to understand what it means inside domestic Spanish law. The abstract is below the fold.
On 29 April 2009 the Spanish National Court opened a cause against the “perpetrators, the instigators, the necessary collaborators and accomplices” of alleged tortures at the Guantanamo camp and other overseas detention facilities. Before examining how these and other causes currently opened in Spain under the principle of universal jurisdiction enshrined by Art. 23.4 of the Organic Law of the Judicial Branch (LOPJ) are likely to be affected by the legislative reform of that very provision approved by the Spanish Congress of Deputies on 25 June 2009, we will first examine the sinuous – and now dramatically indicative in retrospect – jurisprudential evolution of the treatment of the principle of universal justice by Spanish Courts since the Constitutional Court enshrined a doctrine of unconditional universal jurisdiction in its widely celebrated Guatemala Genocide case in June 2005. Th is is complemented by an overview of the cases that, jurisdictionally based on the principle of universal justice enshrined by Article 23 of the LOPJ, are still currently open (from e.g., Tibet to Rwanda or Gaza) before Spanish Courts.
In addition, set against the background provided by the release of the four so-called “torture memos” by the Obama Administration in April 2009, there is a brief examination of the possibilities of jurisdictional prosecution of both the perpetrators and those who formulated the legal guidance authorizing the “enhanced interrogators techniques” in both the U.S. domestic law system and international legal jurisdictional settings, including at the ICJ level. Eventually, an examination of the hasty procedure through which the new relevant Spanish provision in this area has been adopted and the legal effects, with reference to cases currently opened before the Spanish courts, of the newly reformed article give place to a brief reflection on the prospects of international law in the age of an emerging new international judiciary in view of thestructural deficit of mechanisms of participatory democracy on the domestic plane with relevance in the international realm as dramatically epitomized at this juncture by the Spanish legal system.