Saturday, February 16, 2008

Break from formalism opens path to conviction for crimes against humanity

Á propos of the post this week by Jaya Ramji-Nogales on the alacrity with which Spanish courts apply universal jurisdiction:
Check out this "Spanish Supreme Court Affirms Conviction of Argentine Naval Officer for Crimes Against Humanity." In this recent ASIL Insight our colleague, Richard J. Wilson, provides a detailed discussion of the November 2007 judgment affirming the conviction of Adolfo Scilingo, a former officer in the Navy of Argentina (flag above), for crimes against humanity stemming from his role "in murders and illegal detentions in Argentina." Wilson notes that the Criminal Chamber of the Supreme Court of Spain (flag below) overturned the lower court's convictions on 3 other grounds, torture, genocide, and terrorism. He adds that the decision, still available only in Spanish,
constitutes another chapter in the tangled history of efforts by Spanish courts to interpret domestic and international law to charge individuals who fall within Spanish universal jurisdiction law with extraterritorial crimes.

Other chapters include the Guatemala Genocide Case of 2005 (about which, as Wilson notes, IntLawGrrl Naomi Roht-Arriaza published a casenote at 100 American Journal of International Law 207 (2006)), actions against officials of China, and the litigation against Rwanda that was the subject of Jaya's post.
Still, the Scilingo decision is a landmark. Following examination of the post-Nuremberg status of the nullum crimen sine lege, or legality, principle (an issue about which IntLawGrrl Beth Van Schaack has posted here) Spain's Supreme Court did something that was not to be expected. In Wilson's words:
In the highly formalistic civil law tradition of Spain, it is quite extraordinary for the Supreme Court to find criminal responsibility for crimes against humanity in customary international law without a previously defined provision for that offense in the criminal code of Spain.

1 comment:

said...

Criminal Against Humanity = War Loser
Hero For Humanity = War Winner

The terrorists always win because only terrorists play those parts.

You blog is most fine.

Best Reagards,
Tor Hershman