In early November 2007, the Spanish Supreme Court's Criminal Chamber ("Supreme Court") released its judgment upholding, by a vote of 11-4, the conviction of former Argentine naval officer Adolfo Scilingo for his involvement in murders and illegal detentions in Argentina. Scilingo was convicted by a trial chamber of the Audiencia Nacional ("Audiencia"), Spain's special court for serious international crimes. The Supreme Court concluded that Scilingo's crimes amounted to crimes against humanity under international law. This decision represents the first by an appellate court in Spain following a full trial under universal jurisdiction principles, and one of the few cases to have completed trial and appeal in domestic courts for international crimes committed in a third country.
The Court overturned the Audiencia's conviction of Scilingo on charges of torture, genocide and terrorism. Although he was found guilty of 30 killings, one arbitrary detention and 225 other arbitrary detentions as an accomplice, Scilingo will serve 25 years imprisonment, with credit for extensive pre- and post-trial detention. The decision constitutes another chapter in the tangled history of efforts by Spanish courts to interpret domestic and international law to charge individuals who fall within Spanish universal jurisdiction law with extraterritorial crimes.
In the highly formalistic civil law tradition of Spain, it is quite extraordinary for the Supreme Court to find criminal responsibility for crimes against humanity in customary international law without a previously defined provision for that offense in the criminal code of Spain. No offense of crimes against humanity was on the books in Spain, either at the time of the offenses in question or the time of commencement of proceedings. Nevertheless, the Supreme Court upheld the conviction as consistent with the principle of legality. Further, as a corollary to Scilingo's criminal responsibility, the court reached out to impose a sentence for crimes against humanity without any legislative guidance as to the parameters for such a sentence. This decision, which adopts the reasoning of the lower courts on crimes against humanity, has encouraged further criminal prosecutions in Argentina for crimes against humanity. Finally, the decision constitutes an acceptance by the Supreme Court, however grudging, of the Spanish Constitutional Court's earlier expansion of Spain's approach to universal jurisdiction.
A December 2003 Insight described developments in the Spanish courts on what then appeared to be the eve of the trial of Scilingo and another mid-ranking naval officer, Ricardo Miguel Cavallo (also known as Miguel Angel Cavallo), for crimes committed during the Argentine "dirty war" between 1976 and 1983. The trial of Scilingo actually began on January 14, 2005; Cavallo's trial has not yet commenced. The delays in both cases were due in part to the complex procedural maneuverings by the defense, as well as two political and legal developments in Argentina and Spain.
First was the dramatic September 2005 reversal by the Spanish Constitutional Court, a court which ranks higher than the Supreme Court, of the Supreme Court's decision in the Guatemala Genocide case. That case involved claims by Nobel laureate Rigoberta Menchu and others of massive crimes by leaders of the military government against the Mayan indigenous peoples of Guatemala. The Constitutional Court's decision reversed the finding by the Supreme Court Criminal Chamber, which had held in February 2003, that prosecutions for acts committed in third countries required "a point of contact with national interests," and that the Organic Law of the Judicial Branch (LOPJ), Article 23.4, the jurisdictional statute involved, required only that the person accused had not previously been convicted, found innocent, or pardoned abroad. The Constitutional Court noted that jurisdiction over such crimes under the universal jurisdiction principle "transcend the harm to the specific victims and affect the international community as a whole. Therefore, prosecution and punishment are not only a shared commitment, but a shared interest of all states. . ." The holding in the Guatemalan Genocide case permitted introduction in the Scilingo trial of evidence of his involvement in wrongdoing against persons other than those of Spanish ancestry only, evidence of which the trail and reviewing courts found overwhelming.
Second was the decision by the Argentine Supreme Court, on June 14, 2005, declaring void all immunity laws previously adopted in that country, thus raising at least the possibility that Cavallo might be extradited back to Argentina for trial.
The trial of Adolfo Scilingo was held continuously between January and March 2005 before three judges of the Audiencia Nacional, a trial court with extraordinary jurisdiction over domestic and extraterritorial crimes of terrorism, narcotics and crimes against the Crown. The Audiencia's decision resulted in conviction of Scilingo for crimes against humanity, which had not been charged originally by investing Judge Baltazar Garzón. The Audiencia dismissed genocide and terrorism charges, as well as a charge of torture as a common crime. At the time, the decision drew both praise and criticism from the academic community, and some of the trial court's reasoning is reflected in the extensive and detailed -- though arguably inconsistent -- analysis by the Supreme Court.
The Supreme Court Criminal Chamber Decision
The Supreme Court's decision began by carefully documenting the actions by the Argentine military, after its 1976 coup against president Isabel Perón, to "design, develop and carry out a systematic criminal plan of kidnapping, torture, disappearance and, finally, physical elimination of all of that part of the citizenry who were reputedly suspected of being 'subversive' . . . fundamentally for political or ideological motives, although ethnic and religious views would carry some influence." The summary of facts affirms, in all respects, the evidence and factual conclusions reached at trial.
The most significant aspect of the Court's reasoning was its decision to uphold Scilingo's conviction for crimes against humanity. Reversing the usual order of analysis, the Chamber discussed the application of the statutory provision on crimes against humanity before it discussed jurisdiction over the matter. The key to the court's reasoning, lies in its interpretation of Article 607 bis of the Spanish Criminal Code, which incorporates crimes against humanity into the domestic code, but which did not enter into force until October 1, 2004, after Spain adopted the Rome Statute of the International Criminal Court ("ICC"). Scilingo's lawyers argued strenuously that his conviction for such crimes violated the legality principle, which requires adequate notice to the accused and normally makes such laws non-retroactive.
Principle of Legality
The Chamber acknowledged that the legality principle requires lex previa, stricta, scripta and certa - that is, a thorough written description and definition of the prescribed conduct, adopted prior to when the conduct takes place. However, after examination of the history of international criminal law from the Nuremberg Statute through the ad hoc international criminal courts, the ICC, and national prosecutions such as Barbie in France, Menton in the Netherlands, and Finta in Canada, (and noting the removal of the requirement of nexus to armed conflict for crimes against humanity along the way), the Chamber found that Article 607 bis incorporated previously established norms of customary international law. The majority further noted that Article 10.2 of the Spanish Constitution of 1978 required it to interpret domestic law in light of international human rights law. The Chamber concluded that while custom cannot create a "complete criminal offense" applicable in the Spanish courts, given this constitutional requirement, the courts cannot, "in the interpretation and application of internal law," ignore "the norms of customary International Criminal Law, insofar as they refer to offenses against the hard core [nucleo duro] of essential Human Rights." This is especially so, the Court noted, where those international norms have acquired the status of jus cogens. In this sense, the court could not "accept that the accused appellant could not foresee the criminal character of his acts in the moment of their commission and the consequent possibility that a penalty would be imposed."
Scilingo could not be found guilty of torture, the Court reasoned, because that offense did not appear in Spanish Law until its incorporation into the Penal Code through article 204 bis on July 17, 1978, and his alleged torturous acts all took place before that date. By contrast, the conviction for crimes against humanity was sustained because: Article 607 bis is defined as an offense against the international community; it contains the essential elements of murder and illegal detention, which were well-established crimes under prior law; and it adds the statutory requirement that those crimes be "committed as part of a widespread and systematic attack against the civilian population or part of it, or as well when they are committed by reason of the membership of the victim in a group or collective persecuted on political, racial, national, ethnic, cultural or related grounds, or other grounds universally recognized as unacceptable in international law." Thus, the crimes of murder and unlawful detention, which constitute ordinary crimes under domestic law, also "constitute crimes against humanity according to International Criminal Law." Finally, the court briefly disposed of the issue of prescription of these crimes by concluding that even the narrowest of statutory limitations to prosecution, 20 years, did not apply because that amount of time had not run from the time of the alleged acts until the initial complaint.
Application of Universal Jurisdiction Statute
On jurisdiction, the court turned to interpretation of Article 23.4 of the LOPJ, and in an apparent critique of the Constitutional Court's decision in the Guatemalan Genocide case, the Supreme Court noted that it would be "advisable" to read the jurisdictional statute to require a connection or link to some national interest. The provisions of Article 23.4 explicitly address the crimes of genocide, terrorism, some other specific crimes, and "other [crimes] which, according to international treaties or convention, should be pursued in Spain." Crimes against humanity are not mentioned in the statute, but the Court found that the jurisdictional provision can be read to extend to war crimes under the Geneva Conventions, to which Spain is a party. The Court concluded that crimes against humanity are included within Spanish jurisdiction because they are "offenses essentially identical in their nature and gravity" to those of genocide, crimes against peace (aggression), and war crimes, and that "all of these pertain to the core of the most serious attacks on basic Human Rights." Notably, this appears to be the first mention by the court of jurisdiction over war crimes, albeit in dicta. The court concluded that jurisdiction over Scilingo's acts was proper, with three judges dissenting.
In its analysis of the law of genocide, the Court concluded that "political groups" are not within the groups defined under the Genocide Convention, stating that "the doctrine is practically unanimous on the subject". The court also affirmed the reasoning of the Audiencia trial chamber on state terrorism. On sentencing, it determined that later-adopted sentencing provisions applied to the benefit of the accused, resulting in a 25-year sentence for the combined offenses. The issue of immunity did not arise anywhere in the proceedings.
The Cavallo Case
The Ricardo Miguel Cavallo case has followed a more circuitous and convoluted procedural path than Scilingo's. The two cases, originally joined, were severed before trial. Cavallo had been extradited to Spain from Mexico in June of 2003. After the 2005 decision by the Argentine Supreme Court that jurisdiction over crimes committed during the "dirty war" lies in that country, Cavallo's strategy appears to have been to have the charges dropped in Spain and return to Argentina for trial, perhaps hoping for more favorable treatment in his home jurisdiction. On July 18, 2007, the Spanish Supreme Court reversed a December 2006 decision by the Audiencia in which it found that it was without jurisdiction to try Cavallo and asking Argentine authorities to seek his extradition. Cavallo, who had been freed by the decision of the Audiencia in late January of this year because Argentina had not proceeded on the extradition request, voluntarily appeared only one day later before another judge of the Audiencia charged with control over the extradition process. He was promptly re-arrested. Thus, he was in custody at the time of the Supreme Court's decision in his case.
Although Cavallo continues to be detained in connection with the extradition process, and he can be tried for his crimes in Argentina by virtue of the Court's July decision, his pre-trial detention time will run soon, perhaps before officials can arrange for his trial to begin. If Cavallo is released, there is little hope that his trial will proceed, and he is more likely to return to Argentina, voluntarily or not. This would contravene the explicit order of the Mexican Supreme Court, which, in ordering his extradition to Spain, barred his return for trial to Argentina.
Since the Supreme Court's decision in the Scilingo case in October, the Spanish Constitutional Tribunal ruled in the Falun Gong case on October 22, 2007, and reaffirmed its finding that universal jurisdiction under Article 23.4 of the LOPJ is "absolute," permitting investigation to proceed against China's ex-president, Jiang Zemin, and Luo Gan, head of the Falun Gong Unit within the Chinese government. In the Audiencia, new investigations have begun in cases involving Tibet and Western Sahara, thus affirming the Spanish courts' view of their global reach and responsibility. The Spanish Congress is also acting to further extend the extraterritorial jurisdiction of the Spanish courts. In 2005, the Congress added the offense of female genital mutilation to those for which extraterritorial jurisdiction lies, and another amendment is now pending to implement the UN Convention against Transnational Organized Crime, which Spain ratified, by adding the offense of illegal immigration or clandestine trafficking in persons on the high seas, a significant problem for Spain in recent years.
Finally, in a related action in the United States, the Department of Immigration and Customs Enforcement (ICE) arrested Ernesto Guillermo Barreiro, alleged to have served as Chief Interrogator at "La Perla," a clandestine detention and torture facility in Argentina during the "dirty war". Barreiro faces criminal charges of visa fraud in the U.S., to be followed by removal proceedings which could result in his deportation to Argentina to face further criminal charges there.
About the Author
Richard J. Wilson, an ASIL member, is Professor of Law and Director of the International Human Rights Law Clinic at American University's Washington College of Law. Prof. Wilson wishes to thank Antonia Macias, Hugo Relva and Gregorio Dionis for their review of drafts and provision of materials for this Insight.
The decision ("Decision") is available in Spanish on the website of Equipo Nizkor, at http://www.derechos.org/nizkor/ espana/juicioral/doc/sentenciats.html, visited on Nov. 24, 2007. That website has complete documentation, with some English translations, on the procedural history of the Scilingo case and other important cases involving the application of universal jurisdiction in the Spanish courts. All translations from Spanish are the author's, unless otherwise indicated.
See, e.g., Linda Keller, Belgian Jury to Decide Case Concerning Rwandan Genocide, with Addendum, ASIL Insights, May 2001.
Richard J. Wilson, Argentine Military Officers Face Trial in Spanish Courts, ASIL Insights, December 2003.
Naomi Roht-Arriaza, Guatemala Genocide Case. Judgment No. STC 237/2005.Here, Constitutional Tribunal (Second Chamber). September 26, 2005, 100 Am. J. Int'l L. 207, 210 (2006).
Id. at 211, translation by Prof. Roht-Arriaza.
That decision can be found, in Spanish, at http://www.derechos.org/nizkor/arg/doc/nulidad.html, visited on Nov. 24, 2007. See also, Peter A. Barcroft, The Slow Demise of Impunity in Argentina and Chile, ASIL Insights, January 2005 (describing developments in each country and anticipating the June decision by the Argentine Supreme Court).
The decision of the Audiencia Nacional on April 19, 2005, is reported, in Spanish, at http://www.derechos.org/nizkor/espana/juicioral/doc/sentencia.html, visited on Nov. 24, 2007.
See, e.g., Symposium - The Scilingo Case and Its Implications: Issues of Universal Jurisdiction in the Scilingo Case, 3 J. Int'l Crim. Just. 1074 (2005).
That section states as follows: "Provisions relating to the fundamental rights and liberties recognized by the Constitution shall be construed in conformity with the Universal Declaration of Human Rights and international treaties and agreements thereon ratified by Spain." Unofficial translation found on the website of the Spanish Constitution, as translated into English, at http://www.constitucion.es/constitucion/lenguas/ingles.html#1, visited on Nov. 24, 2007.
Decision, Fundamentos, Septimo, Octavo) The Court did not address whether its analysis as to the existence of a "partial" offense of crimes against humanity under customary international law, could apply to the torture charge as well.
Decision, Fundamentos, Sexto, ¶ 9. The Court makes no mention of a change in domestic law, adopted in 2003 [Ley Orgánica 15/2003, de 25 de noviembre], which eliminates all limitations on prosecution of genocide, war crimes and crimes against humanity.
Decision, Fundamentos, Septimo, ¶ 1. In a decision last year, the Criminal Chamber of the Supreme Court reviewed another dismissal by the Audiencia of an action filed by several followers of Falun Gong in China. In its decision of June 20, 2006, the court is blunter about its disagreement with the Constitutional Tribunal: "In conclusion, it seems clear that nothing is further from international judicial thinking than the idea of an absolute principle of universal jurisdiction, such as [the Guatemalan Genocide case] has established." The court then reversed, holding that the Audiencia must follow the Constitutional Tribunal's mandate. Tribunal Supremo, Sala II de lo Penal, Sección 1, Sentencia n° 645, 2006, 20 de junio de 2006 (on file with author).
Decision, Fundamentos, Sexto, ¶ 3 and Septimo, ¶ 4.
The court fails to note the predicate language of subsection 4 of Article 23, which provides that universal jurisdiction lies for offices outside of national territory that are "susceptible to codification, under Spanish penal law, such as some of the following offenses". That inclusive language would allow, in this author's view, the broader reading ascribed to Spanish jurisdiction without requiring the analogy to war crimes.
The dissents did not share common reasoning, but instead focused on a particular point of disagreement by each of the three justices.
That decision is available in Spanish at http://www.derechos.org/nizkor/espana/juicioral/doc/ guevara.html, visited on Nov. 24, 2007.
These procedures are described in English at The procedural machinations of the AN result in the release of Miguel Angel Cavallo, responsible for crimes against humanity, Equipo Nizkor, at http://www.derechos.org/nizkor/espana/juicioral/doc/cavalloen.html, visited on Nov. 24, 2007.
A similar result occurred with the only other Argentine military official in custody awaiting trial in Spain, Juan Carlos Fotea Dimieri, documented in Spanish at http://www.derechos.org/nizkor/espana/ fotea/fotea11.html, visited on Nov. 24, 2007.
Tribunal Constitucional, Sala Segunda, STC 227/2007, de 22 de octubre de 2007.
Christine A.E. Baker, Universal Jurisdiction of Spanish Courts Over Genocide in Tibet: Can It Work?, 4 J. Int'l Crim. Just. 595 (2006)
Juzgado Central de Instrucción No. 5, AUTO, Diligencias Previas Proc. Abreviado 362/2007, 29 Oct. 2007 (on file with autor).
Boletín Oficial, LEY ORGÁNICA 13/2007, de 19 de noviembre, para la persecución extraterritorial del tráfico ilegal o la imigración clandestina de personas, 20 Nov. 2007 (on file with author)
U.S. Authorities Arrest and Charge Argentine and Peruvian Former Officers Implicated in Serious Human Rights Abuses, Contemporary Practice of the United States Relating to International Law (John R. Cook ed.), 101 Am. J. Int'l L. 657 (2007).
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