A. Factual Background
1 In 1997, Adolfo Scilingo, a former navy captain during the military junta which ruled Argentina from 1976 to 1983, volunteered a statement before judge Baltazar Garzón in Spain under proceedings filed in 1996 regarding human rights atrocities that took place in Argentina and Chile during the late 1970s and early 1980s (International Criminal Law). In his testimony, Scilingo said he had witnessed and participated in the so called vuelos de la muerte (death flights)—consisting in throwing prisoners alive but sedated—from military airplanes into the open sea.
2 Scilingo was a mid-ranking officer and had not been prosecuted in the trials of junta members in Argentina in 1985, nor in the aborted proceedings that followed. Like most individualized human rights abuses in Argentina, his case was banned from investigation or prosecution by the impunity laws—Punto Final (full stop law) and Obediencia Debida (due obedience law)—enacted in 1986 and 1987 respectively.
3 According to Scilingo’s testimony to the press in Argentina, he had written to former military president of the junta Jorge Rafael Videla giving details of the flights he participated in, and demanding that Videla assume full responsibility for the approximately 2,000 detainees who, while being held at Escuela de Mecánica de la Armada (‘ESMA’), were killed through this procedure (Criminal Responsibility, Modes of; Individual Criminal Responsibility). Scilingo’s revelations received attention from the press and civil society in general, though military and governmental reaction was rather dismissive. In this context of reluctance by both military and governmental spheres to take any step forward, Scilingo decided to travel to Spain and give testimony before judge Garzón, where he was arrested and put on trial (see also Arrest Warrant Case [Democratic Republic of the Congo v Belgium]).
B. History of Proceedings
4 The proceedings against Argentinean military officers in the Spanish jurisdictions started in March 1996 when a local non-governmental organization—Unión Progresista de Fiscales—pressed charges for the commission of crimes against humanity, genocide, torture, and terrorism (Torture, Prohibition of). In addition, similar charges were brought against the Chilean regime. Eventually, both investigations were joined in a single case (Sumario 19/97) following evidence that both military regimes had collaborated in the so called Operación Condor (Condor Operation), a secret systematic repression strategy across borders aimed against perceived enemies of each regime (Intervention, Prohibition of).
5 In 1997 after Scilingo revealed the truth about the fate of many disappeared prisoners, acting judge Garzón ordered Scilingo to surrender his passport and prohibited him from leaving Spanish territory (Passports). Despite several international arrest warrants issued by Spanish authorities, no other accused person has been arrested since then, other than Cavallo and Pinochet (Cavallo Case; Pinochet Cases). Since the Spanish legal system may not impose penalties without the presence of the accused—iustitia in absentia—the case filed in 1996 seemed to be coming to a dead end (Fair Trial, Right to, International Protection). In addition, Argentine and Chilean authorities refused to collaborate, and the Spanish executive branch was openly hostile, all of which foreshadowed a failure of the Spanish attempt to bring justice. In 1998, however, the arrest of General Pinochet in London pursuant to a warrant by judge Garzón, suddenly afforded great visibility and impulse to the case. Although Pinochet was not ultimately extradited to Spain, his case signalled a turning point in the development of new international mechanisms to fight impunity (Extradition).
6 In 2001, Garzón ordered Scilingo to be held in unconditional preventive detention (see also Detention, Arbitrary). In 2004 the Supreme Court confirmed the Spanish jurisdiction to try Scilingo for the crimes of genocide, terrorism and torture (Sentencia del Tribunal Supremo español denegatoria del recurso interpuesto por Adolfo Scilingo Decision No 1362/2004). After a highly charged trial, on 19 April 2005 the national court Audiencia Nacional (‘AN’) reached a verdict on Scilingo’s criminal responsibility on multiple counts of crimes against humanity and sentenced him to 640 years in prison, automatically reduced to the Spanish maximum of 30 years (Sentencia por crímenes contra la humanidad en el caso Adolfo Scilingo Decision No 16/2005).
C. Reasoning of the Court
7 Two main parts can be distinguished in the AN’s judgment as having a direct relationship with international law issues. The first deals with the jurisdictional issue of the legitimacy of the Spanish exercise of criminal jurisdiction over crimes committed abroad, by and against citizens of other countries (Criminal Jurisdiction of States under International Law). The other aspect concerns the substantive issue of the qualification of the charges against the accused.
1. Qualification of the Crimes Charged as Crimes against Humanity
8 As regards the latter, the judgment finds the category of crimes against humanity applicable to the facts before the Court. The AN dismisses the charges of genocide, torture and terrorism applied in earlier decisions, considering instead that all such offences are subsumed in the general notion of crimes against humanity. At the time of the arrest of the defendant, the Spanish legal system did not enshrine in its criminal code the category of crimes against humanity. It was, therefore, necessary to make a broad interpretation of the existing category of genocide. The application of the crime of genocide to both the Argentinean and Chilean cases was from the beginning legally complicated as the conventional concept of genocide as set forth in the Convention on the Prevention and Punishment of the Crime of Genocide (1948) (‘Genocide Convention’), as well as in Article 137 bis of the old Spanish Criminal Code—now Article 607 Spanish Criminal Code—did not include the notion of a political group as the target of the violent acts. The AN, however, had already asserted in 1998 that the definition of genocide in the Genocide Convention could not exclude, according to its fundamental purposes, the notion of ‘distinguished national groups’ (Auto de la Sala de lo Penal de la Audiencia Nacional confirmando la jurisdicción de España para conocer de los crímenes de genocidio y terrorismo cometidos durante la dictadura Argentina Appeal No 84/98). Consequently, with the amendment of the criminal code during the proceedings in 2003—in force since 1 October 2004—and the following incorporation of Article 607 bis defining crimes against humanity, the AN decided that the proven facts were better classified as that type of crime.
9 The decision goes on to explain why the use of the newly codified Article 607 bis Spanish Criminal Code would not amount to a breach of the legality principle, more specifically of the tempus regit actum rule (i.e. an act performed according to the law in force at the time of performance is valid). In order to bring its decision within local requirements of the legality principle, the AN draws a distinction between the nullum crimen and the nulla poena sine lege principles (Nulla poena nullum crimen sine lege). In relation to nullum crimen sine lege, the AN argues that Article 607 bis simply incorporates a pre-existing rule of international law into the domestic legal system (International Law and Domestic [Municipal] Law). The ruling emphasizes that in international law nullum crimen–sine lege shall be interpreted as nullum crimen–sine iure, requiring that the crime be provided in a norm, irrespective of whether it is a written—statutory or conventional—or unwritten—customary—norm (Interpretation in International Law). In addition, the AN attributes a ius cogens character with erga omnes binding force to this pre-existing international rule, both regarding the criminal offence and the application of its consequences (Obligations erga omnes). Despite this international and peremptory character, the AN believes that international criminal ius cogens norms are not self-executing, and require a domestic norm to become applicable by local courts. However, once a domestic enactment turns into law an existing ius cogens international criminal rule, there is no reason why this norm cannot cover acts that at the time of commission were internationally proscribed.
10 In support of this reasoning, the AN relies on Article 15(2) International Covenant on Civil and Political Rights (1966)(‘ICCPR’) as well as on a similar provision included in Article 7(2) Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’; European Convention for the Protection of Human Rights and Fundamental Freedoms [1950]). After asserting the legality principle and its content, Article 15 ICCPR declares that: ‘Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations’. In addition, the AN cites a decision of the European Court of Human Rights (ECtHR) that declared that Article 7(1) ECHR establishing the nullum crimen, nulla poena sine lege rule includes unwritten law, and consequently that such provision would not be violated if at the time the criminal acts were committed, they also constituted offences defined with sufficient accessibility and foreseeability by the rules of international law on human rights protection (Streletz, Kessler and Krenz v Germany).
11 Regarding the nulla poena sine lege principle, the AN states that, since international customary rules regarding crimes against humanity do not provide a fixed penalty, they are inapplicable by domestic courts until a national law establishes such penalty (Customary International Law). For this reason the Spanish judiciary had to rely on crimes such as genocide, torture and terrorism until 2004 when the national legislator codified and fixed a penalty to the crime against humanity in the Spanish legal system.
2. Jurisdiction of Spanish Courts
12 With respect to the jurisdictional aspect, the judgment declares that Spain’s legitimacy to hear the case relies on the principle of universal jurisdiction (Jurisdiction of States). However unlike previous lower court rulings (e.g., the Pinochet Case) and following partially the Supreme Court judgment in the Guatemala Genocide Case (Sentencia del Tribunal Supremo sobre el caso Guatemala por genocidio Decision No. 347/2003), in Scilingo, the AN restricts Spain’s exercise of universal jurisdiction to the forum deprehensionis principle (presence of the accused in its territory) and the nationality of the victims.
13 A clear and broader notion of universal jurisdiction is included in Article 23(4) Ley Orgánica del Poder Judicial (‘LOPJ’; Spanish Law on the Organization of the Judiciary). According to this provision, Spanish courts may exercise criminal jurisdiction for crimes committed abroad regardless of the nationality of the victims or the perpetrator, when such crimes qualify as genocide, terrorism, or piracy, among others. But the strict listing of Article 23(4) LOPJ was not amended together with the inclusion of the crime against humanity in Article 607 bis Spanish Criminal Code. Therefore, in relation to crimes against humanity, the AN finds that Spanish courts would not have legitimacy, at least in the light of the domestic legal system, to exercise jurisdiction under the universal jurisdiction principle.
14 The AN tries to bypass this obstacle by applying an intricate interpretation comprised of three basic arguments. Firstly, the expansive interpretation put forward by the AN in relation to the definition of genocide includes all the acts attributed to Scilingo as crimes against humanity, which allows Spanish courts to exercise universal jurisdiction, since Spanish law does allow for universal jurisdiction in respect of genocide. Secondly, the ius cogens character of the crimes imposes erga omnes obligations on the international community as a whole to investigate and prosecute such offences. In other words, the AN assumes that the legitimacy of universal jurisdiction for crimes against humanity in current international law is undeniable. Thirdly, the AN justifies its jurisdiction by the lack of prosecutions in the territorial forum—Argentinean judiciary in this case. All these three elements—i.e., an authoritative national provision, an international permissive rule, and the inactivity of the territorial forum—should be enough to authorize legitimate exercise of universal jurisdiction in its broader sense. Nevertheless, the AN also links jurisdiction to the presence of the accused in the Spanish territory and to the existence of Spanish nationals among the victims. With regard to this last element, the AN applies a broad notion of the nationality or passive personality principle: though the existence of Spanish victims of Scilingo’s actions is not established, the AN takes judicial notice of the existence of many Spanish victims of Argentinean repression in general.
D. Assessment and Relevance
15 Academic views on this unprecedented judgment have been rather ambiguous. While some have directly supported this decision without many observations, others have objected to it on different grounds (Tomuschat (2005) 1076–81; Gil Gil (2005) 1089–91; Pinzauti (2005) 1105). At first glance, the AN seems to believe that it is acting under the universal jurisdiction principle. However, a closer look suggests that the Court actually grounds its jurisdiction under the aut dedere aut iudicare (obligation to extradite or prosecute) rule and the passive personality principle. With regard to the latter, the judgment appropriately adopts a broad notion considering as a reasonable connection the existence of national victims in the general repressive system, irrespective of whether each victim can be traced to the acts of each perpetrator.
16 As for the legality principle, the AN engages in a lengthy and not very clear explanation of how the existence of an international criminal law rule whether written—treaty—or unwritten—custom—at the time of the commission of the crime is sufficient to guarantee the non-violation of the nullum crime sine lege principle. Unfortunately, the AN refuses to go further by declaring international norms self-executing and instead requires their domestic incorporation, at least for jurisdictional purposes and at a minimum before sentencing (Treaties, Direct Applicability).
17 This is the first conviction in Spanish courts of a foreigner for crimes against humanity. Scilingo is only one of the numerous defendants in the mega case (Sumario 19/97) instituted by Spain’s judiciary, which includes dictators such as Pinochet and Videla. Both Argentina and Chile have shown reluctance to surrender their nationals to the Spanish authorities (Mutual Legal Assistance in Criminal Matters). Nevertheless, the Scilingo Case together with the Cavallo and Pinochet Cases are all a clear indication that former repressors face likely arrest as soon as they leave their national territory.
18 Despite argumentative misgivings, the AN makes a meritorious effort to overcome the flaws of Spanish domestic legislation by using both international substantive criminal law —i.e., crimes against humanity, not embodied in Spanish or Argentine legislation at the time of the commission of the crimes—and international procedural criminal law—i.e., universal jurisdiction, not contemplated in Article 23.4 LOPJ for crimes against humanity.
![Max Planck Encyclopedia of Public International Law [MPEPIL]](/view/covers/epil.jpg)
