The universal jurisdiction is curtailed in Spain

Antoni Pigrau Solé
Professor, Department of Public International Law. Rovira i Virgili University
Antoni Pigrau

Antoni Pigrau Solé

Spanish law, by means of Article 23.4 of the Judicial Power Organic Act, has acknowledged the principle of the universal jurisdiction for crimes of varying severity for some years, and it is particularly applicable to the most serious crimes (genocide, war crimes and crimes against humanity). In Spain, anyone with Spanish nationality can bring a penal action, even if they are not the direct victim of the crime. This has led to Spain becoming the jurisdiction of choice for numerous victims from various countries when making claims which would not be heard in their countries of origin.

As a direct result of political pressure from countries including China, the United States and Israel, which have been affected by several cases opened in the Audiencia Nacional Court, the Spanish Government, with the support of other parliamentary groups, has reformed article 23.4, with the sole objective of restricting the scope of the universal jurisdiction. The reform, was approved by the Congress on 7 June and by the Senate on 7 October, with some minor amendments. It is pending publication in the Official State Bulletin.

This development can be criticised from many perspectives, which cannot all be considered in detail here. They can be summarised as follows:

  • The reform was carried out surreptitiously, during the approval of a law which has little to do with this subject - the Law reforming the procedural legislation for the establishment of the new Judicial Office.
  • In technical terms, the reform was hasty, and mixed up different penal principles, including those of the State's passive personality and its protective principle. It also failed to consider the consequences for other crimes such as drug trafficking and piracy, as it will also restrict the pursuit of perpetrators of these crimes. Furthermore, the wording is extremely inadequate in some points, which means that a challenge on the grounds of unconstitutionality is possible, due to its incompatibility with obligations assumed in the past under the terms of various international treaties.
  • As regard the contents, it severely limits the scope of the universal jurisdiction in two ways. The first of these is the requirement that "the alleged perpetrators must be proven to be in Spain or there must be proven victims with Spanish nationality, or some proven significant connection with Spain". The second is the stipulation that a case cannot be heard in Spain if proceedings concerning the same events have begun in another competent country or in an international court, and it must be closed in Spain when there is evidence of other proceedings concerning the events reported beginning in another competent country or in an international court. This is at variance with the priority given to States vis-à-vis the International Criminal Court (ICC).

At this point, it is vital to stress that genocide, war crimes and crimes against humanity are always unacceptable under all circumstances, even when they take place elsewhere in the world and even when there are no victims or perpetrators from the country concerned. No means of pursuit is superfluous in an international situation in which the prevailing norm in these cases is to turn a blind eye to what is taking place.

Despite the fact that the reform has not completely closed off all avenues to the universal jurisdiction, some cases that are open and which have been built up after a great deal of effort and no little risk to the judges, lawyers and victims concerned, will be dismissed. In short, with this law Spain will have increased the impunity and facilitated the freedom of movement of alleged criminals, and satisfied the countries that protect them. This is precisely the opposite of Spain's stated intention when it ratified the ICC Statute.