Several readers of this blog have sent me links dealing with the Baltasar Garzón case. Spanish judge Garzón is being subjected to proceedings that could result in a 20-year suspension from his functions. See, for example, The Guardian. Far-right organizations are behind the initiative, which says he abused his position by simply ignoring the 1977 amnesty legislation in order to proceed with an investigation into disappearances during the Spanish Civil War. Garzón deserves our support in his struggle for judicial independence.Certainly there is nothing abusive about pursuing this investigation. Moreover, Judge Garzón doesn’t disregard the 1977 amnesty law in Spain. Rather, he confronts it, referring to recent legal authority on amnesties, notably the ruling of the Special Court for Sierra Leone. The New York Times published a very supportive editorial a few days ago.
I’ve been interested in the case for some time because of the judgment itself, which presents some interesting legal features with respect to crimes against humanity. The judgment cites the definition from article 7 of the Rome Statute, noting that the crime of ‘unlawful detention’ and other punishable acts of crimes against humanity were covered by Spanish criminal law in 1936. Regrettably, it does not explore the difficult legal issues that make the finding to dramatic.
To my knowledge, Garzón’s decision on the case (there is only a Spanish-language version) is support for the existence of crimes against humanity as a punishable crime under international law prior to 1939. The Nuremberg judgment, of course, supports the existence of crimes against humanity, but only starting with the outbreak of the Second World War. Moreover, Nuremberg only recognizes crimes against humanity to the extent that there is a nexus with aggressive war. Thus, a finding of crimes against humanity in Spain prior to 1939 not only sets the clock back a few years in terms of the recognition of the concept, but it also is authority for crimes against humanity being punishable in a non-international armed conflict.
Of even greater significance is the recognition of crimes against humanity subsequent to the end of the Spanish Civil War, in 1939. This would be the earliest judicial recognition of crimes against humanity committed in peacetime.
This recalls a judgment of the European Court of Human Rights of a few years ago, in Kolk et al. v. Lithuania, dismissing an application challenging a conviction for crimes against humanity committed in the Soviet Union in 1949. Professor Antonio Cassese wrote a fascinating comment on the decision, lamenting the failure to address the issue of whether crimes against humanity could be committed in peacetime (‘Balancing the Prosecution of Crimes against Humanity and Non-Retroactivity of Criminal Law’, (2006) 4 Journal of International Criminal Justice 410). He said that in 1949 ‘the indispensable link between those crimes and war had not yet been severed. It is only later, in the late 1960s, that a general rule gradually began to evolve, prohibiting crimes against humanity even when committed in time of peace.’ Professor Cassese’s remark adds a useful nuance to the famous statement in the Tadic Jurisdictional Decision of 2 October 1995 (para. 14), which said
Of even greater significance is the recognition of crimes against humanity subsequent to the end of the Spanish Civil War, in 1939. This would be the earliest judicial recognition of crimes against humanity committed in peacetime.
This recalls a judgment of the European Court of Human Rights of a few years ago, in Kolk et al. v. Lithuania, dismissing an application challenging a conviction for crimes against humanity committed in the Soviet Union in 1949. Professor Antonio Cassese wrote a fascinating comment on the decision, lamenting the failure to address the issue of whether crimes against humanity could be committed in peacetime (‘Balancing the Prosecution of Crimes against Humanity and Non-Retroactivity of Criminal Law’, (2006) 4 Journal of International Criminal Justice 410). He said that in 1949 ‘the indispensable link between those crimes and war had not yet been severed. It is only later, in the late 1960s, that a general rule gradually began to evolve, prohibiting crimes against humanity even when committed in time of peace.’ Professor Cassese’s remark adds a useful nuance to the famous statement in the Tadic Jurisdictional Decision of 2 October 1995 (para. 14), which said
the nexus between crimes against humanity and either crimes against peace or war crimes, required by the Nuremberg Charter, was peculiar to the jurisdiction of the Nuremberg Tribunal. Although the nexus requirement in the Nuremberg Charter was carried over to the 1948 General Assembly resolution affirming the Nuremberg
principles, there is no logical or legal basis for this requirement and it has been abandoned in subsequent State practice with respect to crimes against humanity. Most notably, the nexus requirement was eliminated from the definition of crimes against humanity contained in Article II(1)(c) of Control Council Law No. 10 of 20 December 1945. (Control Council Law No. 10, Control Council for Germany, Official Gazette, 31 January 1946, at p. 50.).
As can be seen, Professor Cassese's comment in the 2006 article goes beyond suggesting the nexus in the Nuremberg judgment is 'peculiar' to the Tribunal, and suggests that it was actually part of customary international law until at least the 1960s.
Judge Garzón actually cites the Kolk ruling of the European Court. This is the google translate version of what he says:
The European Court of Human Rights in its admissibility decision in the case and Petr August Kalk Kislyiy against Estonia, January 17, 2006, recognized the universal validity of the principles concerning the documentation of the deportation as a crime against humanity, although The Nuremberg Tribunal was established to prosecute crimes that were committed during and before World War II (the European Axis countries) the Court stated that crimes against humanity were confirmed, inter alia, the resolution of the Assembly 95 UN General December 11, 1946 and later by the International Law Commission. Consequently, the responsibility for crimes against humanity can not be limited only to certain countries and national acts only in time of the Second World War. In this context, the Court emphasized that it is expressly enshrined in Article I (b) of the Convention of non-applicability of statutory limitations to war crimes and crimes against humanity "at the time of its commission and whether they were committed in wartime or peacetime.
I think Judge Garzón is oversimplifying things a big, as Professor Cassese confirms in his comment on the Kolk decision. But I wish him well in his battle with the forces of darkness who, far from resenting the 'retroactivity' of prosecuting crimes against humanity, are nostalgic for the 1930s.
Thanks to Mercedes Melon, Edel Hughes and Chema Arraiza.
Thanks to Mercedes Melon, Edel Hughes and Chema Arraiza.
Thank you for your post on this interesting case.
ReplyDeleteI find two aspects of this case fascinating. First, the idea that national amnesties, issued by a national authority, can be disregarded based on international case-law to the effect that international courts will not give effect to such national grants of amnesty. Even assuming there is a consensus that national amnesties should not carry over and have effect in international tribunals (which I find dubious - even the Lome decision characterised the norm at issue as 'crystalising'), there is a big difference between asserting that the international legal community should or will not give effect to amnesties, versus asserting that national courts, with jurisdictions limited by national law, will similarly not give effect to amnesties. Garzons willingness to examine these alleged crimes against humanity is laudable, but to me, the reliance on international law by Judge Garzon is entirely misplaced. Has anyone examined the issue of the relationship between national and international amnesties in depth and come to a different conclusion?
Second, the intertemporal issues raised by this case are, as you point out in your post, woth commenting on. It is interesting to note that Garzon is careful to deal with this issue with repect to the crimes against humanity issue, but not with respect to the amnesty issue. This is a question that has been dealt with in the literature on amnesties (my own opinion coming down, albeit regrettably, on the side of applying the law at the time of the grant of amnesty), but im wondering if anyone has any comments on the appropriate timeframe within which to examine the legality of the Spanish amnesty. Should Judge Garzon have looked to relevent law in 1970's, or contemporary times?
Dear Professor Schabas. When talking to my girlfriend about this retroactive use of the concept of crimes against humanity she reminded me about the case Blake vs. Guatemala of the Inter-American Court of Human Rights. In a nutshell, the Court decided that the violations of human rights prior to the beggining of the jurisdiction of the Court could be acknowledged by it, if the effects of the violation could still be felt by its victims. The case was about forced disappearance of persons which, according to the Court, constitutes a multiple and continuous violation of various rights protected by the Convention. The Court used the characteristic of “continuance” of the violation of forced disappearance of persons to affirm its jurisdiction over the case, although the facts have occurred before the recognition of the Courts jurisdiction by the Guatemalan State. Thank you for this space. I'm from Brazil and I'm a fan of your blog which I find a great source for us who search for news in the field of the international criminal law.
ReplyDelete