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Corrigenda | Urgent Action
The Criminal Procedures against
Chilean and Argentinian Repressors
in Spain
A Short Summary
Revision One - Nov. 11, 1998
First we will kill all the subversives,
then we will kill their collaborators,
then their sympathizers,
then those who remain indifferent
and finally the indecisive
Gen. Iberico Saint Jean (Controller of Buenos Aires)
The recent arrest of General Pinochet in the UK has awakened great interest in the trials against Argentinian and Chilean repressors in Spain. While we have tried to make information about the trials abundant online, most of the information is available only in Spanish. This document is an attempt to summarize the factual, procedural and legal bases for the prosecution of the repressors in question in Spain. People who can read Spanish would be well-advised to consult the original materials - they are available at http://www.derechos.org/nizkor/arg/espana and http://www.derechos.org/nizkor/chile/juicio/. English language information is available at http://www.derechos.org/nizkor/chile/juicio/eng.html
This document was originally issued on Oct. 24th, 1998. This revision incorporates summaries of the extradition order made by Judge Garzon on Nov. 3rd, and the rulings of the National Audience of Spain on the jurisdiction of Spanish tribunals to try Chilean and Argentinian military for genocide and other crimes. There may be subsequent revisions that incorporate future material.
I. FACTS
The Argentinian Dirty War
During the early 1970s, large sectors of the Argentinian society were looking for social changes that would bring about greater equality to people, as well as satisfy basic necessities of food, shelter, education, health and human dignity. Among these, there were people oriented by Marxist ideologies as well as followers of Liberation Theology. Many of these people chose to work directly with the poor, providing education, health care and social work - as well as concientizing them about their situation -, others worked within the unions, universities and the political system. Some groups, however, had chosen the road of armed struggle, and engaged in terrorist activities: placing bombs and kidnaping political and business leaders. The Armed Forces were charged with fighting the subversion, and they - together with a right-wing death squad known as the Triple A and other civilian collaborators - initiated a period of systematic repression that was formalized with the military coup of March 1976. Military repression had earlier been characterized by the massive arrest, torture and imprisonment of people who were thought to be "subversive," and summary executions disguised as "armed confrontations with terrorist groups." After the coup, however, forced "disappearances" became the most common practice. Heavily armed task forces made up by members of the military and perhaps civilian accomplices, would kidnap people from the street, their jobs or their homes (if the latter, they would also steal as many goods as they could find). They were beaten, blindfolded, thrown into cars and driven into secret detention centers. There they would be tortured and sometimes questioned. The disappeared were often kept at one or more secret detention centers for months, under a regimen of periodic beatings and torture sessions, and constant inhumane conditions. Victims who survived the torture and inhumane conditions were generally ultimately executed - often by being thrown alive from planes into the ocean. Victims of disappearances included suspected terrorists, as well as known or suspected "subversives": people who espoused Marxist, communist or Liberation Theology ideologies, and/or who worked with the poor, in labor unions and the like, students who belonged to political organizations, journalists, lawyers, psychiatrists. Among the victims were pregnant women and small children; while small children were sometimes returned to their families, other times they were given to other families to raise. Pregnant women often gave birth while in captivity, and their children were then given to families close to the military to raise.
It's difficult to assess how many people were disappeared in Argentina - the military has so far refused to release the lists they compiled. It's estimated, however, that between 20,000 and 30,000 people were disappeared.
After democracy returned to Argentina, a National Commission, created to investigate the disappearances, issued a report summarizing what had taken place. Criminal procedures were initiated in civilian courts against many of the people responsible for the disappearances, murders and tortures. However, due to military pressure (which included a number of armed mutinies by military forces), the government passed two amnesty laws which stopped most of the investigations and prosecutions. While those laws were repealed in 1998, they were not annulled, and thus it seems unlikely that prosecutions could take place in Argentina against human rights violators during the dirty war. The amnesty laws did not apply to the top leaders of the military forces. These were tried on a number of crimes - though by no means all the ones they had committed - and some of them were convicted and sentenced. The charges, however, did not include genocide. The convicted leaders were pardoned by President Menem.
Chile under Pinochet
On September 11, 1973, the Chilean military under the command of General Augusto Pinochet carried out a coup d'etat against democratically elected president Salvador Allende. Allende, who was a socialist, was arrested and later killed himself or was murdered by the military. After the coup, the military junta in power embarked on a program of generalized repression. Hundreds of people were arrested and tortured, thousands more were executed or disappeared. These were taken to secret detention centers, where they were tortured and later killed. While most human rights violations of this kind took place between 1973 and 1977, they continued throughout the period of military rule.
To assure their impunity, Pinochet's government issued a decree in 1978 providing amnesty for all the crimes it had committed until March 1978. Pinochet finally stepped down in 1990, however, under military pressure the government issued a new constitution giving Pinochet the status of senator-for-life. He thus has immunity for prosecution, and cannot be tried in Chile for his crimes.
Operation Condor
By the 1970s , all the countries in the Southern Cone were living under military dictatorships. Stroessner had been ruling Paraguay since the 1950s; Brazil had become under military rule in 1964. Hugo Banzer initiated his right-wing dictatorship in 1971 in Bolivia and Uruguay's long-lived democracy came to an end with a coup in 1973. With military rule came general repression of the population, and the opposition in particular, which lead to millions of people fleeing their homes and looking for asylum abroad, mostly in bordering countries. Thus in the 1970's, thousands of people from Chile and Uruguay fled to Argentina, where already hundreds of thousands of Paraguayan refugees were living. Meanwhile, persecuted Argentinians fled to Bolivia and Paraguay seeking refuge.
Operation Condor was organized by the head of the Chilean National Intelligence Directorate (DINA) as a way to collect and exchange intelligence information related to leftist, communist and Marxist activists, so as to facilitate the "elimination of communism" and defend the "Western-Christian" society. In the framework of Operation Condor, mutual-aid agreements were accorded by the Intelligence Services of Argentina, Bolivia, Chile, Paraguay and Uruguay - with the added participation of Brazil and Peru. The agreements facilitated the free acting of intelligence services throughout the region, and the execution of common repressive operations. The agreement also allowed for the deployment of special task forces to countries party to the agreement that would eliminate opposition politicians, subversives and suspected subversives.
Dozens of Chileans, Uruguayans, Paraguayans, Brazilians and Bolivians who had sought refuge in Argentina were captured by their own Intelligence Forces in Argentina; others were directly killed. In addition, Chilean political activists were arrested by the Argentinian police and handed to the DINA; many of these disappeared.
II. PROCEDURAL HISTORY
The idea of trying Argentinian repressors abroad was not originated by Spain. The Italian League for the Rights and Liberations of People began to consider such trials in the early 1980s. Criminal procedures against Argentinian military accused of disappearing Italian citizens were initiated in 1983, though they were put on hiatus for several years after Argentina returned to democracy and prosecuted human rights violators itself. Criminal procedures were re-started in Italy after the amnesty laws were passed. This has been an extremely slow process, however, which faced strong political opposition from the Prosecutor's office. The process is out of the instructing phase, however, and hearings are set to start against seven Argentinian military members sometime soon.
Meanwhile, France tried Argentinian Navy Captain Alfredo Astiz in absentia for the murder of two French nuns, whom he had been responsible for disappearing. He was found guilty and sentenced to jail. Argentina has refused to extradite him and an international arrest order has been issued.
With these precedents in mind, human rights activists began to study the possibility of initiating criminal procedures in Spain. There follows a series of meetings, seminars, and consultations with jurists, lawyers and prosecutors which ultimately resulted in the presentation of criminal complaints against both Chilean and Argentinian military.
Popular Action
In1996 the Progressive Union of Prosecutors decided to file criminal complaints against the Argentinian and Chilean military for the disappearance of Spanish citizens in those countries. Those complaints were followed by the exercise of the popular action by private groups and individuals. Spanish law allows private citizens (and private organizations) to initiate criminal proceedings before instructing courts. To do so, they do not need the approval of the public prosecutor's office, and they need not be the victims of the crime in question. Several organizations exercised the popular action on these two cases, and thus began the criminal investigations.
Argentina
A popular action naming a number of Argentinian military as responsible for crimes of genocide and terrorism was accepted by Judge Baltazar Garzon of the Central Instructing Court of the National Audience in Spain on June 10, 1996. On June 28th, Garzon ruled that the court had jurisdiction to investigate the facts denounced by the popular action and to prosecute any of the crimes committed by the accused and others responsible for the crimes. Judge Garzon thus initiated the instruction. Numerous witnesses - including survivors of the repression, ex-disappeared, relatives of the victims, politicians, prosecutors from the trials in Argentina and even the ex-President of Argentina Isabel Peron - have testified and provided information about the repression in Argentina. Hundreds of documents, including those previously filed with the Argentinian courts, have been filed with his court. His criminal investigation has probably been the most extensive that has taken place so far vis-a-vis human rights violations in Argentina during the dirty war. He has also investigated Operation Condor as outlined above.
As a consequence of his investigation, Garzon has charged many more Argentinian military and civilian collaborators (from those who were named in the original complained), and has issued international arrest orders for a number of them. In October 1997 he issued an arrest order that included Argentine Navy Captain Adolfo Scilingo. Scilingo had willingly testified before Garzon as to the organization of the repressive action in Argentina, and his role in it. The public prosecutor then appealed this arrest order arguing that the court did not have jurisdiction. The court separated the issue of jurisdiction from that of the arrest of Scilingo and asked the Prosecutors to present their arguments as to their claims of lack of jurisdiction. This they did in January 1998.
In March 1998, the Court issued a 20-page ruling re-affirming its jurisdiction, and detailing its basis in Spanish and International law. This resolution was appealed by the Prosecutor, and in May 1998, the Court once again re-affirmed its jurisdiction. The court's order was then appealed by the Prosecutor's office to the National Audience, which has yet to rule on the matter.
In October 1998, upon hearing that Pinochet was present in England, Izquierda Unida (United Left, one of the parties exercising the popular action) asked the court to interrogate General Augusto Pinochet about his role in Operation Condor. It also requested that General Pinochet, and other named Chilean military, be charged for the disappearance and kidnapings of named people. At the same time, the Agrupacion de Familiares de Detenidos y Desaparecidos de Chile (Chilean Group of Relatives of Detained and Disappeared People) requested that Pinochet and other named military be charged with genocide, terrorism and torture. On October 16th, Judge Garzon accepted these requests. That same day he ordered the arrest of General Pinochet and issued an international arrest order against him. He requested extradition of General Pinochet to Spain based on the Law of Criminal Procedure, the 1957 European Convention on Extradition, the UK-Spain Extradition Treaty and the Principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity .
The Public Prosecutor appealed the arrest order against Pinochet to the National Audience, alleging lack of jurisdiction and res judicata.
Chile
In April 1996, the Union of Progressive Prosecutors filed a complaint against Pinochet and other Chilean military for genocide, terrorism and crimes against humanity . Even though that action was enough to set the criminal process in motion, it did not constitute an official public decision to prosecute. The later private criminal action was filed by the Salvador Allende Foundation, who was joined by Izquierda Unida and thousands of Chilean citizens. The Prosecution Ministry issued a report supporting the jurisdiction and Judge Manuel Garcia-Castellon of the Central Instructing Court Number 6 of the National Audience in Spain accepted jurisdiction in July 1996.
In March 1998 the Public Prosecutors asked the Court to close the instruction arguing lack of jurisdiction. The court proceeded to close the instruction immediately. The popular action appealed to the National Audience which in July 1998 ordered the lower court to consider the question of whether it has jurisdiction to prosecute the Chilean military on the merits. In September 1998 the lower court considered the issue on its merits and ruled that it had jurisdiction. In October 1998, the court asked the government of the UK to detain Pinochet so that he could be interrogated about the crimes of which he is accused. On October 20, Garcia Castellon closed the proceedings on the case before him arguing that only one genocide has occurred and that Pinochet could not be tried twice for what happened in Chile and Argentina. He thus order the transfer of the case to the Court Number 5. Judge Garzon accepted the consolidation of the two cases.
Combined Chile-Argentina cases
The National Audience considered en banc the question of Spanish jurisdiction on two separate hearings for the Argentinian and Chilean cases on October 29, 1998. It issued a ruling on October 30th accepting jurisdiction in both cases. The argumentation for the ruling in the Argentinian case was issued on November 4th, and for the Chilean case on November 5th.
On November 3, Judge Garzon, who is now instructing the combined Argentinian and Chilean case, issued an arrest and extradition order against Pinochet and other Chilean military, based on the crimes of genocide, terrorism and torture that took place in Chile (note, the previous order was for crimes committed in relationship to the Operation Condor). The extradition request was sent to the Ministry of Justice, to be sent to England via diplomatic means. The Council of Ministers passed the extradition request to England on November 6th.
III. JURISDICTION ISSUES
The key issue in these procedures has been whether the Spanish courts have jurisdiction to investigate and try foreign military for crimes committed in foreign soil. In its two jurisdictional decisions of March and May 1998, Judge Garzon discussed at length the grounds on which the court claim jurisdiction. These are summarized below. Judge Garzon's legal arguments were directed towards the situation in Argentina, and thus the arguments needed originally to be extrapolated into Chile's situation. The jurisdictional decision by Judge Garcia Castellno did not go into great detail as to the grounds for genocide.
In accepting the jurisdiction of Spanish courts, the National Audience took a different interpretation of the applicable norms that Garzon originally had. The National Audience ruling will be summarized below Garzon's.
Spanish Law
Article 23 of the Organic Law of the Judicial Power (OLJP) establishes that Spanish courts shall have jurisdiction over crimes committed by Spanish or foreign citizens outside of Spain when such crimes can be typified, according to Spanish criminal law, as genocide and terrorism, among others, as well as "any other [crime] which according to international treaties or conventions must be prosecuted in Spain.
The OLJP, however, was only passed in 1985 - while most of the crimes in question have taken place between 1973 and 1983. The Prosecutor, appealing the jurisdiction, has thus argued that this law should not be applied. While Garzon has ruled that the article in question of the OLJP is strictly procedural and thus subjected to the principle of "tempus regit actum," the Spanish constitution prohibits the retroactive application of any norm that would restrict individual rights. Given that the right to be tried by a competent court is an individual right, Garzon finds that a grant of jurisdiction restricts this right and cannot be applied retroactively. However, Garzon then goes on to look at the predecessors of the OLJP. He finds that under such laws Spanish courts would have hard jurisdiction to try the accused for the crimes in question, and thus no right is infringed by the application of the OLJP on this matter.
With respect to genocide, Garzon finds that the precursor of the 1985 OLJP, the 1870 OLJP, while not directly granting courts jurisdiction on cases of genocide, gives Spanish courts jurisdiction to try crimes committed outside of Spain against the exterior security of the State. Genocide, which was incorporated in 1971 to the Spanish penal code as a crime against the rights of people, was included among crimes against the exterior security of the State. Garzon finds that the Spanish legislators meant for genocide to be subject to universal jurisdiction - and following the French Court which tried Klaus Barbie finds that the charge of genocide belongs to "an international repressive order to which the notion of borders is fundamentally foreign." He finds that as genocide is such a fundamental threat to the international community, it must be pursued in any country, independently of where it was committed, and that the fact that genocide is included as a crime against the exterior security of the state shows the recognition of this principle by the Spanish legislators.
With respect to terrorism, Garzon finds that the 1870 OLJP did not include terrorism abroad as one of the crimes subject to Spanish jurisdiction. However from 1973 to 1988 (when the penal code was reformed) crimes of terrorism fell outside the Penal Code. Indeed the 1971 modifications to the Code of Military Justice granted jurisdiction to military courts for terrorist activities committed by would-be-permanent groups or organizations. Article 17 of the Code of Military Justice establishes that: "They shall be tried in Spain by the Military courts Spanish or foreign citizens who commit in a foreign country one of the crimes included in this Code or in the military criminal laws." As Spain had jurisdiction under this law to try people accused of terrorism, their constitutional rights would not be violated if they were to be tried under the new OLJP.
The National Audience took a different position that Garzon's. It found that Article 23 of the OLJP was a procedural norm, and that "it is not applied retroactively when the claimed jurisdiction is exercised during the time the norm is in force - as it happens in this case, independently of when the acts on trial took place". Penal laws, rather than procedural norms, restrict rights and the principle of legality of the Spanish constitution should be understood to prohibit the application of penal laws that came into force after the commission of the crime, not the application of jurisdictional or procedural norms. Thus the National Audience did not feel it was necessary to invoke the previous procedural laws.
Genocide
The crime of genocide was defined by the 1948 Genocide Convention. Spain ratified the convention in 1968 and genocide was incorporated into the penal code in 1971. The 1971 definition of genocide, however, defined genocide as being committed with the intent to destroy a "national ethnic, social or religious group". Note the lack of a comma between "national" and "ethnic", and the substitution of "social" for "racial". The penal code was reformed in 1983, and the definition of genocide was changed to conform to the Convention definition.
The first issue that Garzon has to analyze is whether the lack of a comma between "national" and "ethnic" was a deliberate attempt by the Spanish legislator to restrict the definition of genocide to national groups of an ethnic nature. He finds that the 1978 Spanish Constitution provides that norms related to fundamental rights will be interpreted in conformity with the international treaties and conventions on fundamental rights. The 1971 definition of genocide survived the Constitution for five years, before it was reformed in 1983. He reasons that thus the 1971 definition must be interpreted in relationship with this constitutional norm, and thus a comma must be read to appear between "national" and "ethnic". He finds that while the crimes in question had been mostly committed prior to 1978, this interpretation is valid as the majority of the crimes are kidnapings, which are permanent crimes, which convert genocide into a permanent crime itself, and because the crime of genocide continues while actions directed towards the total or partial destruction of a group are committed - which in Argentina took place until 1983.
National Group
The second issue that Garzon considers is whether the actions carried out by the Argentinian military were taken against a "national group." He finds that under international practice "national group" refers mostly to a "group of a common national origin," and that it is a comprehensive definition that includes groups with same citizen and nationality, groups of the same ethnic origin, national minorities as well as groups of different nationalities within a nation - all definitions that were rejected as being too restrictive in the preparations of the Convention on Genocide. Garzon finds that in the context of genocide, the idea of national group is used to identify permanent groups of peoples with a common origin. He states:
[I]n the crime of genocide the group to be destroyed totally or partially serve for determining the specific subjective element, motive or intention pursued with their destruction. The genocide conduct is not only realized with the intention of destroying a group, but, also, because of its belonging to a nation, ethnicity, race or religion. This idea does not exclude, obviously, from the genocide of national groups, the destruction of groups of common origin, but differentiated within a same nation, this understood as a territorial ambit or the whole of the inhabitants ruled by the same government. It is evident that there are such groups with national identity within one nation. Generally, in these cases, the cohesion of the group is ethnic, which would explain the restrictive Spanish legislation prior to 1983, racial or religious, but other differentiating marks such as territory, history or language, for example, would not be foreign to it. To totally or partially destroy Scots, Catalans, Basques or Corsicans for the lone fact of being it, would be, undoubtedly, a genocide of national groups not necessarily ethnic, independently of whether this was done because of their language, their traditions, their territorial pretensions, or their ideology - as what is decisive is that the destruction of the group would have been caused, precisely, because they belonged to such a national group made cohesive around any permanent differentiating common trait.
In the same manner, the definition of national group that does not exclude the cases in which the victims belong to the same group than the transgressor, that is to say, the alleged cases of "autogenocide", as is the case of the mass murders in Cambodia.
Garzon goes on to cite the Whitaker report (Study on the Question of the Prevention and Repression of the Crime of Genocide, undertaken by the Special Rapporteur of the Sub-Commission, Mr. Benjamin Whitaker) for the propositions that the group in question need not be destroyed fully, that the victims be a majority group in the country in question, and that they belong to the same group as the author of the violation. Garzon then acknowledges that the destruction of political groups as a form of genocide was left out explicitly from the Convention, though he says:
This does not mean that the destruction of groups for political purposes be left outside [the concept of] genocide. More precisely what it means is that these political motives must fall on a national, ethnic, racial or religious group for the conduct of their total or partial destruction be able to constitute genocide.
Garzon then passes to analyze the Argentinian genocide. He notes that the Nazi genocide was the result of "a policy calculated of collective death by a State and supposed the 'structural and systematic destruction of innocent people by the bureaucratic apparatus of this State'". He goes on to note the similarities of this with the Argentinian genocide, where the Military Junta imposed a "regimen of terror based on the calculated and systematic elimination from the State, throughout several years, and disguised as a war against subversion, of thousands of people ... violently."
The finality of such systematic action is to achieve the establishment of a new order - as Hitler pretended in Germany - in which certain types of people did not fit - those who did not conform with the established cliche of nationality, westernness and Christian-western morality-. That is to say, all those that, according to the dominant Hierarchy, did not defend a concept of society of ultranationalism with fascist undertones, obeying 'international consignations such as marxism or atheism'."
Garzon finds that the persecution of people in Argentina was primarily based on their belonging to specific sectors or groups of the Argentinian nation which the military considered contrary to the aims of the "Process of National Reorganization" (the name that the military juntas used to denote their regime). People were to be persecuted not only on the basis of their political ideology, but for belonging to groups that interfered with the "national" concept.
The common denominator of the thousands of people disappeared by the repression, among whom we must count those people who came from other countries and that formed national groups or families - Spaniards, Italians, Uruguayans, French, Chileans, etc. - it was their belonging to the same national group: Argentina. They all integrated the national group, they were all Argentinian; and all were eliminated because of their dispensability - decided by the repressors - for "the new Argentinian nation." The theory is not original at all, as it has its roots in the most Hitlerian of doctrines, though the methods were more sophisticated and covered by certain appearances with which to cover the eventual international responsibilities.
Religious Group
In addition to the grounds discussed above, Garzon has also found that the Argentinian military organized and carried out a genocide based on the destruction of a religious group. He finds that the destruction of a group based on religious motivations is equivalent to the destruction of a religious group. Furthermore, by examining international documents he finds that the terms "religion" or "belief" include theistic, non-theistic and atheistic convictions:
To destroy a group because of its atheism or its common non-acceptance of the Christian religious ideology is . . . the destruction of a religious group, inasmuch as, in addition, the group to be destroyed also technically behaves as the object of identification of the motivation or subjective element of the genocidal conduct. It seems, in effect, that the genocidal conduct can be define both in a positive manner, vis a vis the identity of the group to be destroyed (Muslims, for example), as in a negative manner, and, indeed, of greater genocidal pretensions (all non-Christians, or all atheists, for example). This idea concludes, thus, that the total or partial, systematic and organized destruction of a group due to its atheist or non-Christian ideology, that is to say, so as to impose a Christian religious ideology, constitutes genocide.
Garzon discusses the methods and doctrine behind the repression at length both in the March 1998 ruling, and more extensively, in the May 1998 ruling. He analyzes the proclamations of leading members of the military (statements such as Almirante Mendia's exhortation to the officers under his command that they "combat everything which goes against the western and Christian ideology" or President Videla's affirmation that "A terrorist is not only considered as such for killing with a weapon or putting a bomb, but also for acting through ideas that go contrary to our western and Christian civilization") and the role of the Church in the repression (which included the forced baptism of the children of the disappeared born in captivity and forced evangelization in the secret detention centers), and concludes that "one of the ends pursued by the Military hierarchy that carried out the Coup d'Etat ... was the pure and simple destruction through violence of everything that was contrary to that doctrine [of western-Christian morality]." "In conclusion, it is a true philosophy which moves the repressive action; it is a "crusade" against everyone who shares the atheist or non-western or non-Christian ideology." He concludes that the Argentinian military carried out a genocide against the religious group comprised by anyone who did not share their western-Christian religious beliefs.
Chile
The rulings establishing the Court's jurisdiction on the Chilean case (that we have had access to) discuss Spain's jurisdiction to try cases of genocide, terrorism and torture. However, they do not explain how the actions that Pinochet and the others are accused of committing fall within these crimes. However, the analysis made by Garzon in Argentina might apply to the factual situation in Chile as well.
In his ruling ordering the arrest of Pinochet, Judge Garzon found that the Armed Forces of Argentina and Chile, among other countries, collaborated in repressive actions though Operation Condor. Furthermore, he found that Pinochet, as the leader of the Armed Forces and the Chilean state, imparted orders for the execution, torture, kidnapings and disappearance of Chileans and other people in different countries within the context of Operation Condor. He finds that this may constitute genocide (and terrorism) under Spanish law. In a following ruling, he expands on the different crimes ascribed to Mr. Pinochet that show his involvement in Operation Condor, and the extent of Operation Condor.
He further finds that an armed organization was created, based on the military structure and the usurpation of power, to institutionalize a terrorist regime that subverted the constitutional order so as to effectively carry out a plan of systematic disappearance and elimination of members of national groups.
National Audience Rational
Having found that Spain had jurisdiction to try foreigners for crimes of genocide committed abroad, the National Audience went on to decide whether the acts for which the accused were accused could be typified as genocide. The National Audience approach differed markedly from that of Judge Garzon. Because of the importance of the National Audience decision with respect to this issue, we offer a translation of the Fifth section of the National Audience decision on the Argentinian case (the decision in the Chilean case is very similar and based on the same argumentation).
On whether the alleged facts may be considered, according to Spanish penal law, as genocide.
Article 23, section four, of our Organic Law of the Judicial Power, states that Spanish courts will have jurisdiction to hear cases where the acts committed by Spanish or foreign citizens outside of the national territory can be typified, according to Spanish penal law, as any of the crimes enumerated in the article, starting with genocide (letter a), continuing with terrorism (letter b), and finally including any other crime that "according to international treaties or agreements must be prosecuted in Spain" (letter g).
Genocide is a crime which consists of the destruction in whole or in part, of a race or human group, through death or the neutralization of its members. This is how it's socially understood, without needing a typical formulation. It is a concept felt by the international community - individuals, States and International Organizations. Genocide has been suffered throughout history by many communities, and technology put in the service of the faithful recuperation of the past, has allowed humanity to put itself before the concrete horrors of the persecution and holocaust of the Jewish people during the Second World War, once the war ended. Genocide, thus, becomes real or a supposed known, understood, socially felt. In 1946, the General Assembly of the United Nations (Resolution Number 96) accepts the recommendation of the VI Commission and recognizes that genocide is a crime of jus cogens, whose main authors and their accomplices, be they private people, officials or official representatives of the State, must be punished.
What characterizes genocide, according to the cited Resolution 96, is the destruction of a group for racial, religious, political or other reasons. This is according to an inescapable understanding of genocide that convulsed the consciences. Without distinctions, it is a crime against humanity the execution of actions destined to destroy a human group, whatever the distinguishing characteristics of the group. In the same line that the Statute of the Nuremberg Tribunal, "crimes against humanity, that is to say, murder, extermination, subjection to slavery, deportation and other inhuman acts committed against any civilian population, before or during the war, or persecutions for political, racial or religious reasons..." (Article 6). In 1948, the Convention for the Prevention and Punishment of the Crime of Genocide . . ., was opened for signatures of the UN members. The Convention considers genocide a crime under international law, contrary to the spirit and ends of the United Nations, condemned by the civilized world. The Preamble expresses the recognition that in all periods of history genocide has inflicted great losses to humanity and the conviction that to free humanity of such an odious scourge international cooperation is needed.
Article 1 of the convention states: "The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish." And article 2 contains the definition of genocide, as "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such." And those acts committed with the purpose of destruction of a group are, according to the abovementioned article 2 of the Convention to which we are referring, killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group, forcibly transferring children of the group to another group. Horrible actions that justify the qualification as odious scourges made in the Preamble of the Convention. The description of conducts is associated with this social conception - understood, felt - of genocide to which we alluded above. The necessary intent to destroy the group in whole or in part, is already inherent in the manners of acting upon the group. In 1968 Spain adhered to the Convention, and in 1971, by virtue of Law 44/71, of November 15th, the crime of genocide was incorporated into the Penal Code then in force, in article 137 bis, as a crime against jus cogens, defined in these terms: "Those who, with the purpose of destroying, in whole or in part, a national ethnic, social or religious group commit any of the following acts...". And the Spanish Penal Code of the time went on to talk about the concrete acts of genocide (murder, injuries, infliction of conditions of life that put life in danger or gravely affect health, forced displacement and others).
Observe that the word "social" - in discordance with the definition of the 1948 Convention - responds to what we call the social conception or understanding of genocide - a concept that is socially understood without the need for a typical formulation. Note that the idea of genocide is incomplete if the characteristics of the groups that suffer the horrors and the destructive action are limited. In addition, the lack of a comma between "national" and "ethnic" cannot lead us to conclusions of the limitation of our internal law, until the Penal Code of 1995, as to the figure of genocide in relationship to the international conception of such.
In 1983 - partial and urgent reformation of the Penal Code - the word "social" was substituted in the article 137 b cited above, for the world "racial", though the lack of a comma between "national" and "ethnic" remained, and in 1995 - the last but one reformation of the repealed Code - the crime of apologia of genocide was punished.
The new Penal Code includes the crimes among the crimes against the international community, in its article 607, genocide, defining it in accordance with the 1948 Convention, as characterized by the "intent to destroy, in whole or in part, a national, ethnic, racial or religious group." The appellants state that the acts alleged in the summary cannot constitute genocide, because the persecution was not directed against any national, ethnic, racial or religious group, and that the repression in Argentina by the dictatorship from 1976 to 1983 had political motivations.
What has been discussed up to now in this article, will allow the Court to have previous references in support of the consideration as genocide of the alleged facts that will be developed.
The plural and pluri-personal alleged actions, in the terms that appear in the file, are the acting against a group of Argentinians or Argentine residents able to be distinguished and that, without doubt, was distinguished by the craftsmen of the persecution and the harassment. And the actions of persecution and harassment consisted of deaths, prolonged illegal detentions, in many cases it has not been able to be determined what was the fate of the detainees - abruptly taken from their homes, suddenly expelled from society, and forever -, thus giving life to the uncertain concept of "disappeared," tortures, detentions in clandestine detention centers, without respect for the rights recognized by any legislation to the detainees, prisoners, or sentenced in penitentiaries, without the families of the detainees knowing their whereabouts, the stealing of the children of detainees to give them to other families - the forced transfer of children of the persecuted group to another group. In the alleged facts in the summary, the object of investigation, the idea of the extermination of a group of the Argentinian population, without excluding similar residents, is present in an unescapable manner. It was an action of extermination, not done by chance, in an indiscriminate manner, but that responded to the will of destroying a determinate sector of the population, a very heterogenous, but distinctive, group.
The persecuted and harassed group was composed of those citizens that did not fit the type preestablished by the promoters of the repression as necessary for the new order to be established in the country. The group was composed of citizens contrary to the regime, but also by citizens indifferent to the regime. The repression did not try to change the attitude of the group with respect to the new political system, but wanted to destroy the group, through detentions, killings, disappearances, stealing of children from families of the group, intimidation of the members of the group.
These alleged facts constitute a crime of genocide. We know that in the 1948 convention the term "political" or the words "or others" do not appear, when it relates in article 2 the characteristics of the groups object of the destruction proper of genocide. But silence is not the equivalent of unfailing exclusion. Whatever the intentions of the writers of the text were, the Convention acquires life by virtue of the successive signatures and ratifications of the treaty by member of the United Nations who shared the idea of genocide as an odious scourge that they should commit themselves to prevent and sanction. Article 137 bis of the repealed Criminal Code, fed by the worldwide concern that funded the 1948 Convention, cannot exclude from its typification acts as those alleged in this case. The sense of the force of the necessity felt by the countries party to the 1948 Convention of responding criminally to genocide, avoiding its impunity, for considering it to be a horrible crime against international law, requires that the term "national group" not mean "group formed by people who belong to a same nation", but simply a national human group, a distinct human group, characterized by something, integrated to a larger community. The restrictive understanding of the type of genocide that the appellants defend would stop the qualification as genocide of such odious actions as the systematic elimination by the power or by a band of AIDS patients, as a distinct groups, or of the elderly, also as a distinct group, or of the foreigners who reside in a country, who, even though they are of different nationalities, can be considered a national group in relationship to the country where they live, differentiated precisely for not being nationals of that state. That social conception of genocide - felt, understood by the community, in which it founds its rejection and horror for the crime - would not permit exclusions such as those pointed out. The prevention and punishment of genocide as such genocide, that is to say, as an international crime, as an evil that affects the international community directly, in the intentions of the 1948 Convention that appear from the text, cannot exclude, without reason in the logic of the system, certain distinct national groups, discriminating against them for others. Neither the 1948 Convention or our Penal Code, nor the repealed code, expressly exclude this necessary integration.
And in these terms, the acts alleged in the summary constitute genocide, with the consequent application to the case of article 23, section four, of the Organic Law of the Judicial Power. At the time of the acts and in the country of the acts they tried to destroy a distinct national group, those who did not fit into the project of national reorganization or whom those who practiced the persecution believed did not fit. There were among the victims foreigners, especially many Spaniards. All the victims, real or potential, Argentinian or foreigners, comprised a distinct group in the nation, which they wanted to exterminate.
Terrorism
Terrorism charges apply under Spanish legislation to those who "acting in service or collaborating with armed bands, organizations or groups whose purpose be to subvert the constitutional order or gravely altering public peace, commit" one of the listed crimes including the kidnaping, injuring and killing of people.
A first objection that the Prosecutor expressed was that the "public order" and "public peace" to which the law refers, is the Spanish public order. Judge Garzon rejected this argument as this would forbid the prosecution of all crimes of terrorism committed outside of Spain, in clear contradiction to the universal jurisdiction for crimes of terrorism proclaimed by the OLJP.
A second objection was that the crimes had not been committed by an armed band - as the Argentinian state and armed forces as a whole cannot be considered as such. Garzon notes that it is not alleged that the State has committed terrorism - but rather that those people who were the highest authorities in the State, used the Armed Forces, its members and economic and paramilitary group, to form a terrorist organization that undertook systematic terrorist actions.
National Audience Rational
The National Audience did not feel it was necessary to consider whether the acts alleged could be typified as terrorism, as it had already established its competence based on genocide, but nonetheless proceeded to do so. It noted that article 23 of the OLJP defines it as a crime of international prosecution, and that as said above this norm is applicable as it is procedural in nature. It further said that the fact that the alleged acts can be typified as genocide, does not hinder them from also being typified as terrorism. The National Audience found that the intention to subvert the national order, required for typifying the crime as terrorism, is in relationship to the "juridical or social order of the country where the crime of terrorism is committed, or which is directly affected as the target of the attack", and that the fact that the country in question was not Spain is immaterial. Further, the National Audience found that the crimes committed (murders, injuries, illegal detentions, etc.) were clandestine and are characteristic of armed bands acting outside of any institutional functions that their members might also carry.
Torture
The crime of torture presents more problems and thus Judge Garzon has not heavily relied on it as an independent ground of jurisdiction. While torture is prohibited by a international law, the crime of torture was only incorporated into the Penal Code in 1978. As discussed above, the Spanish constitution states the principle of legality and the non-retroactivity of norms that restrict individual rights. In his rulings concerning jurisdiction in the Argentinian case, Garzon suggests that to avoid constitutional problems the crime of torture should be considered as an element in the crime of genocide rather than as an independent ground for jurisdiction.
Garzon mentions torture as one of the grounds for the arrest order against Pinochet, however, though he does not seem to suggest that this forms his bases for jurisdiction. Several of the crimes for which Pinochet is accused were committed after 1978. In his ruling, however, Garzon only deals with those crimes committed in the context of Operation Condor.
Garcia Castellon, however, did rely on torture as one of the grounds for jurisdiction on the Chilean case. The Prosecutor has argued that Spain does not have jurisdiction to try cases of torture committed abroad because the Convention Against Torture establishes that the country where the act was committed shall have jurisdiction to prosecute it. The judge answers that torture was introduced to the Penal Code in 1978 as a crime against the interior security of the State, that it is prohibited by the International Convention on Civil and Political Rights (ratified by Spain in 1977), and that the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (ratified by Spain in 1987), establishes that every state will do whatever is necessary to establish its jurisdiction in the crime of torture when the victim is a national of that state. Torture is also prohibited by the Geneva Conventions, which also leaves little doubt to the fact that the crime is contemplated by the penal code.
The judge, however, does not discuss whether the court claims jurisdiction based only on crimes of torture committed in Chile against Spanish citizens and/or after 1978.
National Audience Rational
The National Audience found that the claims of torture would be part of the larger crime of genocide and terrorism, and thus it was not needed to analyze if Spanish law in conjunction with international law allowed for jurisdiction for crimes of torture. The Audience reasoned that if Spain has jurisdiction to prosecute crimes of genocide and terrorism that took place abroad, it will necessarily reach the crimes of torture that formed part of genocide - and not only vis a vis Spanish victims, as might be the case if the Convention against Torture was to be applied.
Case against Pinochet
On November 3rd, after the National Audience had issued its decision confirming jurisdiction on the case of Pinochet - but before the grounds of its decision were known at least publicly - Judge Garzon issued an order requesting the extradition of Pinochet to Spain on the grounds of genocide, terrorism and torture. The first part of the order is a summary of the criminal acts that constitute the genocide and terrorism for which Pinochet is charged. The second part is the legal reasoning for the request of extradition of Pinochet to Spain, and includes an answer to the High Court decision to grant Head State immunity to Pinochet. Both will be summarized here.
(This section is not currently available - it will be incorporated into this document in the next revision).
IV- OTHER LEGAL MATTERS
Other types of arguments have been advanced against the Spanish prosecution of crimes against humanity in Argentina and Chile. Most of these do not deserve much consideration, but they will be mentioned here nonetheless.
International Tribunal
The Public Prosecutor has argued that the Genocide Convention gives exclusive jurisdiction over crimes of genocide to an international criminal tribunal. However, most jurists recognize the validity of universal jurisdiction for crimes of genocide; this is established in Spanish law, and there is no international tribunal that can claim jurisdiction over these crimes.
National Audience Rational
The first issue that the National Audience considered vis a vis genocide was whether the Convention Against Genocide prohibited national courts from countries other than where the crimes were perpetuated from exercising jurisdiction. Article 6 of the Convention Against Genocide establishes that person accused of genocide under the Convention shall be tried by a competent court in the state where the crime was committed or by a competent international tribunal. The prosecutor had argued that the Convention thus precluded any other tribunal from exercising jurisdiction.
The National Audience finds that Article 6 does not preclude jurisdiction by other national tribunals - that it merely announces an International Tribunal and imposes the obligation on states where a genocide has been committed to try those accused of the crime. It further finds that a contrary reading would go against the spirit of the convention, which intends that the crime of genocide should not remain impune. It finds that the fact that the contracting parts to the convention did not agree to the universal prosecution of the crime in each one of their national jurisdictions does not impede any State party to the convention from establishing such jurisdiction. It states that the court could not find otherwise, as a contrary reading would prohibit the contracting states from applying the principle of active personality, and thus forbid Spain from trying a Spanish citizen who had committed genocide outside of Spain. The court, however, acknowledges that international law establishes that any claims to jurisdiction by national tribunals would be subsidiary to those of the jurisdictions called for in the Convention, and thus if the accused were under trial for genocide before an international court or a court of the countries were the crimes took place, the Spanish courts should defer to them.
Res Judicata and Litis Pendentia
With respect to Argentina, the argument presented is that the Punto Final law (which set a very short statute of limitations on when criminal complaints could be filed against Argentinian repressors) and the Due Obedience law (which gave an absolute defense to all repressors but those at the very top of the military hierarchy) constitute res judicata in the criminal procedures in Spain
Though Judge Garzon ruled that this was not the correct procedural moment to plead such defenses: 1) the amnesty laws did not cover the crimes of genocide or terrorism, and these cannot prescribe, 2) amnesty laws cannot bind the Spanish justice and their juridical order prohibits general pardons, 3) the penal code and the doctrine of the Supreme Tribunal does not admit the defense of due obedience as a justification for following illegal orders, and 4) the laws in question violate international treaties Argentina has ratified.
National Audience Rational
The National Audience decisions vis a vis the prosecutors claim of res judicata were also similar in the cases of Chile and Argentina - where amnesty-like laws have been applied to human rights violators.
In the case of Argentina, the Audience noted that the Due Obedience and Punto Final laws had been repealed, though they have already been applied and their effects continue because of the principle of applying the most beneficial law. Independently of the fact that these laws can be considered contrary to jus cogens and that they violate the international treaties Argentina is party to, the laws in questions are depenalizing norms, as they stop the exercise of penal law after a period of time or because of the condition of the accused. They depenalize conducts, and thus their application cannot be considered by other countries as the equivalent of an acquittal or a pardon, but as non-punishable conducts in the country where the acts were committed - which is irrelevant to the application of extra-territorial jurisdiction by Spain on matters of universal protection or persecution vis a vis Article 23 of the OLPJ.
In the Chilean case, the Prosecutor alleged both res judicata and litis pendencia, based on the fact that the acts in question have already been tried in Chile and that there are current criminal procedures for these same acts pending before the Appellant Court in Chile, vis a vis two complaints against Pinochet for crimes of multiple homicide and kidnappings. Spanish law establishes that Spanish courts do not have jurisdiction in cases where the criminal "has been exonerated, pardoned or punished abroad."
The cases cited by the Prosecutor involve the disappearance of a Spanish priest and a pregnant woman and the murder of Spanish diplomat Carmelo Soria. The three cases were dismissed by the Chilean tribunals, who applied the law passed by the Pinochet government in 1978 which gave amnesty to those responsible of crimes committed from September 11, 1973 to March 10th, 1978 (with some exceptions). As in the Argentinian case, the National Audience finds that the amnesty law is a depenalizing norm and thus does not prohibit the application of Spain's extra-territorial jurisdiction.
Sovereign Equality
In both the Argentian and Chilean case the prosecutors had alleged that article 2, section one of the UN Charter, which states that the UN is based in the principle of sovereign equality between natures, prohibits Spanish courts from exercising jurisdiction on these cases. The National Audience found that the article in question is not a juridical norm, and that Spain is not invading the sovereignty of the state where the acts were committed, but exercising its own sovereignty vis a vis international crimes.
This article was written by Margarita Lacabe (marga@derechos.org), Executive Director of Derechos Human Rights (http://www.derechos.org) . Translations were made by the author. Care has been taken to summarize the arguments accurately and completely - however this work reflects the interpretation and editorial choice of the author, and there may be mistakes. Please send questions, comments and requests for clarifications. Erros present in this document will be corrected in future versions. Please see Corrigenda at http://www.derechos.net/marga/papers/corri.html
