Mr President of the Spanish Government,
The International Federation for Human Rights (FIDH) and its member organisations from the countries involved in universal and extra territorial judicial proceedings in Spain are seriously concerned about a resolution aiming at limiting the law of universal jurisdiction to cases where the victims are Spanish or where the suspect is present on the Spanish territory, and which was adopted by the Spanish Parliament on 19 May, 2009.
Victims of the most serious crimes under international law, such as genocide, crimes against humanity and war crimes, from countries all over the world, will suffer the consequences if the proposed amendments to Spain’s Organic Law on Judicial Authority do become law.
Our organisations consider that the proposed changes are contrary to jurisprudence established by Spain’s Highest Tribunal, and by the Constitutional Tribunal’s ruling of 26 September 2005 on the Guatemala genocide, in which the Court expressly confirmed the principle of universal jurisdiction in Spain. Article 23.4 of the Organic Law on Judicial Authority in Spain specifies the international crimes to be prosecuted in Spain. The Article 23.4.i) provides for the possibility to extend the list of crimes to other crimes which "according to international treaties and conventions... should be prosecuted in Spain", states the Constitutional Tribunal. This is an obligation under international law which has to be implemented independently of the provisions of Article 23.4 of the Organic Law on Judicial Authority in Spain. Consequently, the Constitutional Tribunal has thus confirmed that the existence of a link with Spain in order to establish the Spanish tribunals’ jurisdiction, would be contrary to the spirit of the principle of universal jurisdiction.
Our organisations recall that, during the International Summit on Democracy, Terrorism and Security held in Madrid one year after the March 2004 terrorist attacks, the conclusions adopted by this summit recommended, inter alia, « taking effective measures to make impunity impossible either for acts of terrorism or for the abuse of human rights in counter-terrorism measures ».
The adoption of the proposed changes to this legislation - which has until today constituted a mile stone in the fight against impunity for serious international crimes - will equally send a signal of impunity to potential perpetrators of such crimes.
In this regard, Spain must not let diplomatic considerations prevail over the rule of law and the need for accountability and justice. The current Spanish legislation on this matter does not only belong to Spain but is a great asset to humanity in the support of victims of impunity. This current legislation should not only be maintained but also be taken as a model by others. In 1936, democratic activists from around the world supported Spain in the defence of its democracy as a universal asset for humanity. Spain is now again a reference in the denunciation of those who remain unpunished, without jeopardize its interests.
Our organisations therefore urge you, Mr. President of the Spanish Government, to take a strong position to preserve the existing Spanish law in order to maintain Spain’s leading role in the fight against impunity, in accordance with Spain’s obligations under international law.
Souhayr Belhassen,
President of the International Federation for Human Rights (FIDH)
with :
– La Asociación Pro Derechos Humanos de España (ADPHE), España
– The Center for Constitutional Rights (CCR), United States of America
– El Centro para la Acción Legal en Derechos Humanos (CALDH), Guatemala
– El Centro de Estudios Legales y Sociales (CELS), Argentina
– La Comisión de Derechos Humanos de Guatemala (CDHG), Guatemala
– La Comisión Cubana de Derechos Humanos y Reconciliación Nacional (CDHRN), Cuba
– El Comité de Acción Jurídica (CAJ), Argentina
– La Corporación de Promoción y Defensa de los Derechos del Pueblo (CODEPU), Chile
– The International Campaign for Tibet (ICT), Tibet/China
– La Liga Argentina por los Derechos del Hombre, Argentina
– The Palestinian Centre for Human Rights (PCHR), Gaza
– The Public Committe against Torture in Israël (PCATI), Israël