JURIST Guest Columnists Olga Martin-Ortega of the Centre on Human Rights in Conflict at the University of East London and Rosa Ana Alija Fernandez of the University of Barcelona argue that Argentina should exercise universal jurisdiction over claims brought by victims of the Franco regime in Spain…

The crimes committed during the Spanish Civil War (1936-1939) and the dictatorial regime of General Francisco Franco, which was in place until Spain’s first democratic elections in 1977, have never been criminally investigated by the Spanish judicial system. Until now, the general rule has been impunity for the perpetrators and neglect of the victims’ rights to truth, justice, and reparation for war crimes and crimes against humanity.

On 14 April 2010, a criminal claim for genocide and crimes against humanity was filed in the Argentinian Federal Chamber, asserting universal jurisdiction. This initiative comes in a judicial and political environment where, after decades of neglect, the Spanish victims of war crimes and crimes against humanity continue to face obstacles to addressing injustice in their home country. The election of Argentinian courts for jurisdiction is not coincidental. For many years, the Spanish courts gave the victims of the military junta an opportunity to seek justice. Now, the Spanish victims of the Franco dictatorship are similarly seeking justice, albeit one that the Spanish courts no longer seem able to provide.

The two claimants are both residents of Argentina are related to four victims: Severino Rivas, a town mayor assassinated in 1936 and buried in a mass grave until 2005, when, after years of searching, his remains were transferred to his family’s vault; Vicente Garcia Holgado, dissapeared; Elias Garcia Holgado, tortured and summarily executed in 1937; and Luis Garcia Holgado, executed on the side of a road and buried in a mass grave until the 1950s. The claim is also signed by a group of human rights and victims associations, including the Asociacion de Recuperacion de la Memoria Historica (Spanish Association for the Recuperation of the Historical Memory) and the Grandmothers of Plaza de Mayo. If the claim is successful, surviving members of the Franco regime and its supporting organizations could stand trial for the first time.

The claim describes how these individuals were victims of the ultranationalistic, right-wing extremist party Falange Espanola de las JONS (Spanish Phalanx) and other fascist and paramilitary groups, whose technique in the weeks following the fascist uprising of July 1936 was that of the paseo, or “stroll,” where individuals were kidnapped in their homes or taken from detention centers, shot in the back, and abandoned on the side of the road. Thousands of these victims remain buried in those ditches. These assassinations were part of a systematic, generalised, and deliberate plan to terrorize the civilian population, which supported the democratically-elected government, and to eliminate the government’s most representative figures. In bringing their claim, the claimants considered that the facts constitute crimes under the Argentinian Criminal Code, including genocide and/or crimes against humanity.

The claim based most of its factual interpretation and legal reasoning in Judge Baltasar Garzon’s judicial resolutions on the crimes of the Spanish Civil War and Franco’s regime (16 October and 18 November 2008). Garzon had held, among other things, that the acts committed during, and subsequent to, the civil war were forbidden by ius in bello, or laws of war. According to Judge Garzon, at the time of the acts’ commission, they were already considered to be crimes against the Laws and Customs of War and Laws of Humanity, as identified by the Multinational Commission on Responsibilities, Paris 29 March 1919. This would mean that international law is not being retroactively applied and that, therefore, the judge has been respectful of the principle of nullum crimen sine lege (no crime, no punishment without previous penal law). This argument could possibly support the recognition of crimes against humanity as a special category of war crimes as early as 1936 (using reasoning similar to that put forward by the International Military Tribunal of Nuremberg in 1946). The claim before the Argentinian courts also argued that the crime of genocide existed before the beginning of the Spanish Civil War in 1936. This argument is more difficult to sustain, considering that the concept of genocide wasn’t theoretically described by Raphael Lemkin until 1944 and legally established by the Convention on the Prevention and Punishment of the Crime of Genocide until 1948.

One of the claim’s central arguments concerns the validity of the Spanish Amnesty Law of 1977. This law predates the Spanish Democratic Constitution, and it is arguably contrary to the Spanish constitutional principles of justice and judicial remedy. But more importantly, it does not comply with international legal principles establishing victims’ rights to justice, truth, and reparation. This law should not be an obstacle to the trial of these crimes in Spain. In any event, the Spanish Amnesty Law does not affect the jurisdiction of judicial bodies in other countries. Therefore, not only does it not prevent the Argentinian judicial system from acting, as pointed out in the claim, but it allows it to do so while fully respecting the principle of non bis in idem, or “not twice for the same”, given that the facts have never been tried before.

Despite this support, the claim was dismissed on 7 May 2010 by the judge of the Federal Chamber in charge of the case, only a few days after the Prosecutor had reported against its admissibility. The core issue in this case was whether Argentinian courts have jurisdiction under the principle of universal jurisdiction, which is arguably implicit in Article 118 of the Argentinian Constitution. Article 118 provides that a special law will determine the place of trial for crimes against the ius gentium (law of nations), which were committed outside the borders of the Nation. According to the claimants, this requirement is met by law 26200, or the International Criminal Court Statute Implementation Law (ICC Statute), passed on 13 December 2006, which grants jurisdiction to the Argentinian Federal Courts to try crimes of the competence of the ICC (Article 5).

The invocation of the ICC Implementation Law might pose some problems for the assertion of universal jurisdiction by the Argentinian courts, though. Article 3 provides that the law applies to (a) crimes committed in a territory under Argentinian jurisdiction, (b) crimes committed abroad by Argentinian agents or authorities in their official duties or (c) by Argentinian citizens or residents in Argentina, and (d) in any other case where jurisdiction is provided by international treaties to which Argentina is a party. This last option seems to be the only one applicable to the case of the Spanish victims. While the claimants have alleged crimes against humanity and/or genocide, the treaties to which Argentina is a party only extend universal jurisdiction over crimes of genocide. As a result, while the possibility of universal jurisdiction over crimes against humanity was arguably admitted by the National Chember of Appeal on the Criminal and Federal Correctional, the Argentinian courts will presumably focus on the allegations of genocide.

If the Argentinian courts focus on genocide, a second legal obstacle might result from the claim’s broad interpretation of the groups protected against genocide on national grounds. The claim asserts that groups attacked on political grounds can be considered as protected by the Convention on the Prevention and Punishment of the Crime of Genocide. However, according to the Convention’s preparatory work, confirmed by Article 6 of the ICC Statute, this interpretation must be excluded. If the Argentinian court asserts jurisdiction based on option (d), it would be difficult for the claimants to support such an expansive interpretation of protected groups.

The grounds for exclusion of jurisdiction by the Argentinian court have still not been made public. However, it is very likely that the judge followed the Prosecutor’s report. In his report, the Prosecutor did not consider any of the arguments outlined above. Instead he stated that universal jurisdiction could not apply because trials for these crimes had already been carried out in Spain. According to the Prosecutor, Argentinian courts could only hear the case if the country with territorial jurisdiction had not done so. Given that avenues for justice were still open in Spain, the Argentinian courts could not exercise jurisdiction. Such criminal procedures, though, do not currently exist in Spain. Importantly, the claimant’s appeal against the dismissal has now been admitted, and the fight against criminal impunity continues.

Olga Martin-Ortega is a Senior Research Fellow for the Centre on Human Rights in Conflict at the University of East London. Rosa Ana Alija Fernandez is a Fellow in International Law & International Relations at the University of Barcelona.