An Open Letter Regarding Judge Garzon and “Continuing Crimes”

by Kevin Jon Heller

My friend and colleague Gerry Simpson has, along with other international-law luminaries, just published an open letter in The Guardian defending Judge Garzon’s actions.  Here it is (emphasis mine):

As teachers and practitioners of international law we note that the validity and effect of an amnesty granted by national law in respect of international crimes has been addressed by regional human rights and international criminal courts (Spanish judge suspended, 15 May). The subject is complex. But there is ample authority under international law for the conclusion that such amnesties can have no effect in the courts of a third state. There is also international support for the view that a national prosecutor or investigating judge is entitled to seek to go behind a national amnesty in respect of international crimes in his or her own country, even where the crimes were committed long ago (as is the case in relation to Spain‘s 1977 amnesty law). To assert that it is a crime for a national prosecutor or investigating judge to act in this way, particularly where the allegation being investigated concerns the disappearance of persons and has continuing effects, is obviously wrong and is detrimental to the rule of law. It undermines the independence of the prosecutor or investigating judge. It is inconsistent with one of the central tenets of modern international law, namely that there can be no impunity for grave international crimes.

Prof Laurence Boisson de Chazournes University of Geneva, Prof James Crawford University of Cambridge, Prof Pierre-Marie Dupuy and Prof Marcelo Kohen Graduate Institute of International and Development Studies, Geneva, Ken Macdonald QC Former DPP, Paul Reichler Foley, Hoag & Eliot, Washington DC, Prof Philippe Sands QC University College London, Prof Gerry Simpson University of Melbourne, Ambassador Alberto Szekely Mexican member, Permanent Court of Arbitration

I think the letter’s emphasis on the “continuing effects” of the Franco-era disappearances is particularly important.  The Spanish government has never identified (whether because it can’t or won’t) the fate of all of the people disappeared by the Franco regime, which means that the unresolved disappearances are “continuing crimes” — crimes that are still being committed today.  Courts in Latin America and the Inter-American Court of Human Rights have specifically held that enforced disappearance is a continuing crime, and that position has been endorsed by the OHCHR Working Group on Involuntary or Enforced Disappearance.  Here are some excerpts from the Working Group’s General Comment on the Declaration on the Protection of All Persons from Enforced Disappearance:

1. Enforced disappearances are prototypical continuous acts. The act begins at the time of the abduction and extends for the whole period of time that the crime is not complete, that is to say until the State acknowledges the detention or releases information pertaining to the fate or whereabouts of the individual.

[snip]

3. Thus, when an enforced disappearance began before the entry into force of an instrument or before the specific State accepted the jurisdiction of the competent body, the fact that the disappearance continues after the entry into force or the acceptance of the jurisdiction gives the institution the competence and jurisdiction to consider the act of enforced disappearance as a whole, and not only acts or omissions imputable to the State that followed the entry into force of the relevant legal instrument or the acceptance of the jurisdiction.

[snip]

7. Where a statute or rule of procedure seems to negatively affect the continuous violation doctrine, the competent body ought to construe such a provision as narrowly as possible so that a remedy is provided or persons prosecuted for the perpetration of the disappearance.

8. In the same spirit, reservations that exclude the competence of such a body for acts or omissions that occurred before the entry into force of the relevant legal instrument or the acceptance of the institution’s competence should be interpreted so not to create an obstacle to hold a State responsible for an enforced disappearance that continues after this.

The fact that the unresolved Franco-era disappearances are continuing crimes is obviously important, because Spain’s 1977 amnesty law only covers crimes committed prior to December 1976.  The unresolved disappearances began prior to December 1976, but they are still being committed.  They are thus at least arguably not covered by the amnesty.

http://opiniojuris.org/2010/05/31/an-open-letter-regarding-judge-garzon-and-continuing-crimes/

7 Responses

  1. I often wondered about the problem of continuing crimes, especially with respect to the temporal jurisdiction of the ICC.
    However, in such cases there is a simple and effective defence for the defendant – however morbid that may sound – to simply admit murder, because then the act would fall outside the temporal jurisdiction of the court.

  2. Tamas,

    I’m not sure that would solve the problem.  It might eliminate jurisdiction for murder, but the disappearance would still have postdated the entry into force of the Rome Statute.

    That said, I am very skeptical that the Court will hold that it has jurisdiction over continuing crimes (unlike the ICTR), given that doing so would undermine the point of it not having retroactive jurisdiction — wiping the slate clean for states that ratify the Rome Statute.  I think that would, in fact, probably be the right call.

  3. Kevin,

    I agree with you on the point that it is highly unlikely that the ICC would expand its jurisdiction in such way. However, I still think that if somebody is charged with the enforced disappearance of a certain person, then admitting murder would solve the jurisdictional conundrum, since the crime would not be enforced disappearance but murder from that moment.

  4. The ECtHR Varnava decision from last Sep provides an interesting discussion about temporal bars to jurisdiction stemming from disappearances. A good portion of that discussion involves when death may be presumed and what if any effect that has on what is otherwise disappearances as a continuing violation.  There is an interesting comparison to a line of Russian cases from  Chechnya in which death was established and thus no temporal jurisdiction when that death occurred prior to ratification of the European Convention.

    As to Tamas’ point, I think admitting a murder now that occurred prior to ratification might deprive the court of jurisdiction for the murder, but there would be that period of time from ratification until the admission where death was not established and the continuing obligation to investigate the disappearances, and the violation of the Convention for not doing so, would exist.

    http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=varnava&sessionid=54599216&skin=hudoc-en

  5. Jenks,

    This is an interesting case, indeed, but I think it is only relevant in the ECHR context, as lack of investigation is not an international crime. It might violate a human rights convention, i.e. create state responsibility, but surely not incur individual criminal responsibility.

  6. The continuing crime of enforced disappearances includes an element concerning notification. The crime is not just the physical disappearance but the lack of information provided to the relatives etc. as well.

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