Credit: Stefan Schäfer, Lich
Last week, South Africa and Argentina took major steps forward in the investigation and prosecution of alleged perpetrators of human rights abuses in Zimbabwe and Spain, respectively. On October 30, the South African Constitutional Court unanimously ruled that the South African Police Service is obligated to investigate crimes against humanity, including torture, committed by Zimbabwean police in March 2007. [SALC News Release] On October 31, Argentine Judge Maria Servini de Cubria asked Spain to arrest and extradite 20 former Spanish ministers and other members of General Francisco Franco’s dictatorial regime, all of whom are suspected of committing torture and unlawful killings during the Spanish Civil War and Franco’s ensuing 36-year dictatorship. [Jurist: Argentina Judge]
Universal Jurisdiction
To pursue these prosecutions, both States are relying on the international doctrine of universal jurisdiction, which provides a basis for domestic courts to investigate and prosecute serious crimes against international law that occurred in the territories of other countries and were committed by non-nationals of the prosecuting State. These cases raise new issues relating to the scope of universal jurisdiction and the validity of a decades-old Spanish amnesty law.
South Africa criminalized war crimes and torture as a crime against humanity and empowered its courts to exercise universal jurisdiction in Section 232 of the Constitution of South Africa, the Prevention and Combating of Torture of Persons Act (Act No. 13 of 2013), and sections 4 and 5 of the Implementation of the Rome Statute of the International Criminal Court Act (ICC Act) of 2002.
Argentina criminalized crimes against humanity, war crimes, genocide, and torture and formally empowered its courts with universal jurisdiction in Article 118 of the Constitution of Argentina (Spanish only), articles 3 and 4 of the Rome Statute Implementation Law (Spanish only), and Article 144ter of Argentina’s Penal Code (Spanish only). See also Amnesty International, Universal Jurisdiction: A Preliminary Survey of Legislation around the World – 2012 Update, 25-26 (2012).
Reportedly, 166 of the 193 United Nations Member States have defined at least one of the four serious international law crimes (war crimes, crimes against humanity, genocide, and torture) as crimes under their national laws. Approximately 147 States have provided for universal jurisdiction over at least one of these crimes. Id. at 1-2. For more information on universal jurisdiction and torture, visit IJRC’s Online Resource Hub.
Addressing Election Violence in Zimbabwe
In March 2007, a year before the 2008 general elections and presidential run-off, Zimbabwean security agents allegedly tortured and killed political opponents of the Zimbabwe African National Union – Patriotic Front (ZANU-PF), Zimbabwe’s ruling party. Allegedly acting on ZANU-PF’s instructions, security agents tortured Zimbabwean citizens with electric shocks, beatings, and waterboarding. [Just Security] As many as 200 people were killed and 5,000 more were beaten or tortured. See Human Rights Watch, Perpetual Fear: Impunity and Cycles of Violence in Zimbabwe (2011), p. 20.
In 2008, the Southern Africa Litigation Centre (SALC) and the Zimbabwean Exiles Forum (ZEF), presented detailed evidence of State-sanctioned torture in Zimbabwe to the South African Prosecuting Authority (NPA) and South African Police Service (SAPS). They wanted to compel South Africa “to abide by its domestic and international legal obligations to investigate and prosecute high level Zimbabwean officials accused of crimes against humanity.” When NPA and SAPS refused to investigate the allegations, SALC and ZEF approached South African courts for help. [SALC News Release]
In May 2012, the North Gauteng High Court set aside NPA and SAPS’s decisions not to investigate, ruling instead that South African authorities had acted unconstitutionally and inconsistently with their obligations. The following November, the Supreme Court of Appeal upheld the High Court’s decision. It ordered South African authorities to investigate the allegations submitted by SALC and ZEF. SAPS appealed to the Constitutional Court of South Africa. [SALC News Release]
The Constitutional Court’s Decision
The South African Constitutional Court ruled that SAPS not only had a right to open a universal jurisdiction investigation, it also had an obligation to do so. [Opinio Juris] “There is not just a power, but also a duty” to investigate the allegations of torture, according to the Constitutional Court. Constitutional Court of South Africa, National Commissioner of the South African Police Service v. Southern African Human Rights Litigation Centre and Zimbabwe Exiles’ Forum, Case CCT 02/14, 30 October 2014, para. 55. Furthermore, the Court held that the absence of alleged perpetrators from the territory of South Africa should not prevent SAPS from initiating universal jurisdiction investigations. Instead, the Court held that “[a]n anticipatory investigation does not violate fair trial rights of the suspect or accused person.” Id. at para. 48.
The Constitutional Court did, however, decide that limitations apply to the exercise of universal jurisdiction by South African courts. First, the judges wrote that the principle of subsidiarity calls for “a substantial and true connection between the subject-matter and the source of the jurisdiction.” Id. at para. 40. The Constitutional Court held that South Africa should investigate international crimes committed abroad only if the State with jurisdiction is unwilling or unable to prosecute and if the investigation is restricted to South Africa’s territory. Id. at para. 61. The tribunal concluded, “Simply put, we may not investigate or prosecute international crimes in breach of consideration of complementarity and subsidiarity.” Id.
A second limitation to the exercise of universal jurisdiction by South African court is one of “practicability.” Id. at para. 63. Investigations into extra-territorial international crimes should be “reasonable and practicable in the circumstances of each particular case.” Id. The Court identified a series of factors to determine whether a universal jurisdiction investigation is appropriate. The primary considerations are:
- whether the investigation is likely to lead to a prosecution;
- whether the alleged perpetrators are likely to be present in South Africa on their own or through an extradition request;
- the geographical proximity of South Africa to the place of the crime;
- the likelihood of the suspects being arrested for the purpose of prosecution;
- the prospects of gathering the evidence needed to satisfy the elements of a crime; and
- the nature and extent of the resources required for an effective investigation.
Id. at para. 64.
The Constitutional Court held that there was a substantial connection due to the “international and heinous nature of the crime,” and that a South African investigation would not offend the principle of non-intervention. Furthermore, the Court noted that there was no evidence that Zimbabwe had launched or professed a willingness to launch an investigation of its own. Finally, the Court found there was a reasonable possibility that SAPS could gather evidence satisfying the elements of torture that allegedly had been committed in Zimbabwe. Id. at para. 78.
Addressing Human Rights Violations in Franco-Era Spain
The Spanish Civil War lasted from 1936 to 1939 and as many as 114,000 people were disappeared, many having been buried in unmarked graves. [Global Policy Forum] Hundreds of thousands more were killed or disappeared during the subsequent dictatorship. [Reuters] Children of left-wing and unwed mothers numbering in the hundreds of thousands were also kidnapped. [Guardian] To date, no one has been prosecuted for these crimes. [BBC: Argentine Court]
In 1977, two years after Franco’s death, Spanish leaders signed an amnesty law prohibiting the investigation and prosecution of crimes committed during the civil war and Franco’s dictatorship in order to restore democracy and avoid “a spiral of score-settling.” [BBC: Amid scars] In spite of demands by the UN that the amnesty law “be scrapped,” Spanish authorities continue to invoke the law to avoid investigating any Franco-era atrocities. [Guardian]
In 2007, Spain’s formerly Socialist government passed a Historical Memory Law to help find and exhume mass graves. [BBC: Amid scars] Yet when the Partido Popular (Popular Party) rose to power in 2011 it opposed the Historical Memory Law and slashed funding to the program. [Reuters]
In 2008, Spanish Judge Baltasar Garzόn, famous for his involvement in the extradition case against Chilean General Augusto Pinochet in 1998, disregarded the amnesty law and issued an order to exhume 19 mass graves in Spain. [Jurist: Argentina Appeals Court] In response, the Spanish Supreme Court charged Judge Garzόn with abuse of power. Judge Garzόn was ultimately acquitted of the abuse of power charge by a 6-1 decision of the Spanish Supreme Court in 2012. [Jurist: UN rights experts] He was convicted, however, of ordering illegal wiretaps in prisons and received an 11-year suspension from the practice of law. [Jurist: Spain High Court]
The UN Office of the High Commissioner for Human Rights expressed concern over the trial of Judge Garzόn, stating: “Judges should not be subject to criminal prosecution for doing their job … Spain is obliged under international law to investigate past serious human rights violations, including those committed during the Franco regime, and to prosecute and punish those responsible.” [UN News Centre]
In 2009, the United Nations (UN) Human Rights Committee urged Spain to repeal the 1977 amnesty law, take legislative measures to make sure domestic courts recognize the non-applicability of a statute of limitations to crimes against humanity, consider establishing a truth commission, and allow families to exhume victims’ bodies and provide them with compensation where appropriate. Concluding observations of the Human Rights Committee: Spain, UN Doc. CCPR/C/ESP.CO/5, 13-31 October 2008, para. 9.
Legal Proceedings in Argentina
Following the calls of Argentine relatives of three Spaniards and an Argentine killed during the civil war, a lawsuit was opened in Buenos Aires in April 2010 to examine allegations of crimes against humanity and genocide. [Global Policy Forum; Jurist: UN rights experts] In May, Argentine state prosecutor Federico Delgado recommended that all Argentine lawsuits related to the alleged Spanish war crimes be dismissed because they were “being dealt with” in Spain. In spite of this recommendation, an Argentine appeals court reopened the investigation into the alleged crimes and issued a “diplomatic request” to Spain to determine what action the State was taking to investigate crimes committed between 1936 and 1977. [BBC: Argentine Court Reopens Franco Probe]
After visiting the country in September 2013, the UN Working Group on Enforced or Involuntary Disappearances noted that it was “regrettable the situation of impunity for cases of enforced disappearances that occurred during the Civil War and the dictatorship. There is no ongoing effective criminal investigation nor any person convicted.” [OHCHR Press Release]
The same month, Judge Servini issued warrants for four former Spanish officials – Jesus Munecas Aguilar, Celso Galvan Abascal, Jose Ignacio Giralte Gonzalez, and Antonio Gonzalez Pacheco – all of whom were suspected of torturing political prisoners. [Jurist: Argentina Judge] Two of the men were made to appear before Spanish courts for an extradition hearing, but the State ultimately declined to extradite them. [Guardian; BBC: Argentina asks Spain]
Then, last week, Judge Servini issued arrest and extradition warrants for 20 Spanish officials, including several former ministers. She also issued a request to Interpol, a cross-border police agency, to demand that Spanish authorities preemptively detain the suspects “with a view to extradition.” [Guardian]
Two of the most prominent individuals targeted for prosecution are Rodolfo Martín Villa, who was a senior official under Franco and became interior minister after his death, and José Utrera Molina, who was housing minister under Franco. Villa allegedly ordered a police raid on protesting workers who were sheltering in a church in 1976; five people were killed. Utrera allegedly signed the execution order for Salvador Puig Antich in 1974, a Catalan anarchist accused of killing a policemen. [Guardian]
It is uncertain how the Spanish government will respond to the arrest and extradition warrants. Several factors may influence its decision. One such factor is that Spain and Argentina entered a bilateral Extradition Treaty in 1881, each agreeing to the “reciprocal surrender of individuals taken refuge from one of the two countries in the other, who were convicted by the competent courts, as perpetrators or accomplices of [specific] crimes.” [ICRC] It remains to be seen what part this treaty will play in Argentina’s attempts to prosecute the crimes, and how it operates in relation to the 1977 amnesty law. Another factor is that Spain might claim preferential jurisdiction over the cases, despite there having been little to no investigation or prosecution of the crimes. [Global Policy Forum]