Hi all,
En este blog y en numerosos medios de comunicación nos hemos hecho eco del revuelo montado por el llamado "Caso Garzón", de sobra conocido por todos. Hoy me gustaría aclarar con hechos probados aquello que en su día dije, que no era más que una estrategia política para sacar a la palestra a la derecha reaccionaria por parte de la izquierda para desacreditar al adversario político, tildándolo de "franquista". Como seguro que recordareis, un sector abundante en la izquierda dijo que no había otra razón para examinar la actuación Garzon to "prevent the Franco prosecute crimes." It is apparent that in 2009, the Government as progressive and as an advocate of "universal justice" (that is, to prosecute dictators in the world), signed with the PP, an agreement to limit (castrate, rather) the possibility of Spain to prosecute international criminals, especially after chest out saying that Garzón was "that Pinochet had put in jail," which, incidentally, is false, because the United Kingdom not to extradite former Chilean dictator .
To see this in more detail, place myself in two post what is this about universal justice and what has made the government to exterminate it by a short text (part of a larger work) I had the pleasure to prepare.
Note: paste the text of the word has changed the format of the introductory text and not change it. Please let me apologize.
Concept and rationale of the principle of universal jurisdiction
concept universal justice is not, in itself, created recently. Although as such does not appear until the Nuremberg Trials in 1945, can be found a history of ideas of international justice in the classics, as in the work De jure belli ac pacis Grotius (who talks about the legitimacy of the sovereign to punish, but not specifically concerning them, crimes involving serious violations of natural law or nations) or the more capital from Bonesana written by Cesare, Marquis of Beccaria, On Crimes and Punishments, in showing not have a good opinion of her, despite nursing divorce, assimilated to impunity 1 . Beyond the ideas of the classics, the first point of reference might well be considered as expressed in 1927 by the Permanent Court of International Justice, in his famous statement of Lotus Case 2 , which dealt with piracy (maritime, of course). In the words of CHINCHÓN ALVAREZ 3 :
" In that decision, although the Court appeared to opt for the existence of an absolute freedom to extend state court jurisdiction extraterritorially, with the exception of the existence of any particular prohibitory rule, the truth is that in a year bordering on the schizophrenic eventually base their final arguments over the existence of permissive rules on rigorous analysis of the existence of prohibitive requirements. Thus, even with regard to the particular case the Court's position was not accepted and the subsequent Geneva Convention on the High Seas of 1958, it is no exaggeration to note that in order this unique international legal contradiction seems to underlie general to the present, a circumstance that has caused some writers are inclined to support the initial thesis, namely the existence of a general justification for the State in its territory to exercise extraterritorial jurisdiction , which decay only if proven the validity of a rule prohibiting such an extension, while for others the conclusion to be drawn on the basis of practice and international standards would be the thesis of the necessity of a permissive rule authorizing States to extend its criminal jurisdiction beyond its territory, to be finally possible to find opinions que comparten en cierto modo ambas posiciones”.
Más tarde volveré sobre la legitimiación de la jurisdicción universal, especialmente cuando un Estado incorpora a su legislación interna el principio. Para completar este breve recorrido histórico, hay que mencionar de nuevo como referente indiscutible los Juicios de Nüremberg, que suponen una auténtica jurisdicción universal. Más modernamente, los procesos del Tribunal Penal para la Antigua Yugoslavia; del Tribunal Penal para Ruanda y los de la Corte Penal Internacional, aunque éste último ejerce una jurisdicción international but universal 4 , if we consider that the jurisdiction of the Court depends on the acceptance by States.
As to the nature of universal jurisdiction online general principle is clear that is an exception to the territoriality of jurisdiction, which is the general rule. The territoriality of criminal jurisdiction is related to the fact that the right to punish the intimate and directly related to the notion of sovereignty 5 , and this is certainly territorial 6. Therefore, if an exception to the territoriality, one must assume that this is a so-called titles criminal extraterritorial jurisdiction , or put another way, one of the reasons accepted by law to extend the jurisdiction of a State beyond its territory.
traditionally been understood that there are three degrees of extraterritoriality: the principle of nationality or personality active , the principle of nationality or personality passive and the principle of protection. For its explanation, could be interesting vision of the International Committee of the Red Cross 7 :
"is universally acknowledged that a State may exercise jurisdiction its own territory.
This jurisdiction includes the power to make rules (legislative jurisdiction), the power of
interpret or apply rules (compulsory jurisdiction) and the power to intervene to
meet the standards (enforcement jurisdiction). However, although the implementation of the
enforcement jurisdiction is generally limited to national territory under international law
is recognized that in certain circumstances, a State may legislate for
events that occur outside its territory (extraterritorial jurisdiction) or judge.
In criminal law, several principles have been invoked to support this
extraterritorial jurisdiction, including jurisdiction should be noted the actions (i)
committed by people who have the same nationality forum (
principle nationality or active personality) (ii) committed against nationals of the forum ( principle of passive personality
) and (iii) that affect the security of the state (principle of protection).
Although both in theory and in practice these principles are varying degrees of
support, all require that there be some link between the act committed and the State
exercising jurisdiction. "
For active personality in Spain is reflected in the art. 23.2 LOPJ; in the passive, which requires conventional bra can be seen in the various Conventions convinced and cited throughout these responses, all ratified by Spain, the protection is January l art. 23.3 LOPJ. These principles can be add to belligerence , based on the Law of Armed Conflict, which leads us away from our interest.
However, in my opinion, justice and universal jurisdiction can not identify with any of the above, since they involve only the exercise extraterritorial of jurisdiction or whatever it is, make up only a mere extension of sovereignty beyond the territory of a State by this 8. Universal jurisdiction in its historical and current design is not based on the theoretical structure of sovereignty, but on customary international law forged through the practice of States, with support in treaty law. In the words of Garcia Aran 9, "[universal justice] is a connection between state sovereignty and the norms of international law when the facts injure certain legal rights recognized throughout the Community International and whose protection is concerned. " This, and nothing else, is what allows an internal rule of law or a state to enable him to exercise universal jurisdiction, since the possibility of exercise is not based on state sovereignty 10 and the standard itself, but in international law, so that the national rule does nothing to declare who is going to provide and under what conditions 11 12.
Again you might want to read what it says Red Cross 13 on universal jurisdiction for crimes against international humanitarian law, based on conventional and customary law:
" The exercise of universal jurisdiction over war crimes is based both on the
treaty law and customary international law.
Law of Treaties
regard to treaties, the four Geneva Conventions of 1949 introduced
the application of universal jurisdiction for violations of the Conventions that qualify
of serious offenses. Under the relevant section of each Convention, States have
the obligation to search for persons alleged "whatever their nationality" and should
them before their own courts or hand them over for trial to
other Contracting Party. While the Conventions do not explicitly state that the jurisdiction
must be exercised irrespective of the place where the infringement has been understood as
general establishing universal jurisdiction. For this reason is one of the
first examples of universal jurisdiction in the law of treaties.
Conventions fall into the category of mandatory universal jurisdiction - force
States to exercise jurisdiction. States are not necessarily obliged to
judge defendants, but if they do are required to give people another
Contracting Party that has reasonable assumptions. Since this over to another State
may not be possible, States should always have a criminal law
them to judge the accused, irrespective of their nationality or place who committed the
infringement.
The Conventions do not expressly limit the exercise of jurisdiction the defendants
found in the territory of the state - in other words, not merely provide a
universal jurisdiction territorial . In a sense, this implies that states can and
indeed should, order inquiries or initiate proceedings against the accused out of his
territory - at least when its legal system has these procedures.
customary international law
While the relevant provisions of law treaties are limited to
serious offenses, can be said that in customary international law
universal jurisdiction covers all violations of the laws and customs of war
constitute war crimes. Of these, some serious violations of the rules
to means and methods of warfare which are not considered serious offenses. It is
increasingly accepted the idea that serious violations of international law
humanitarian law committed in international armed conflicts are also
war crimes. Therefore, also these violations, including violations
serious Common Article 3 and Additional Protocol II are subject to the jurisdiction
universal optional.
Unlike what happens with the law of treaties does not seem to be arguments
to conclude that customary international law requires to States
exercise jurisdiction but rather establishes a universal jurisdiction. For
Therefore, in regard to war crimes that constitute violations
serious, states can decide whether or not to exercise universal jurisdiction. "
If we sum over, dropping genocide, disappearances, torture, etc ... is inevitable reference to the abovementioned Convention on the Prevention and Punishment of the Crime of Genocide of December 9, 1948, 1949 Geneva Conventions and its Protocols of 1977 and the Convention against Torture of 10 December 1984 are In addition, customary international law, under the Declaration also cited the International Court of Justice in 1971.
Once exposed (briefly) the historical development of the concept and its basis in international law standards, a good time to provide the definition. Of the many that can be found, I SELECTED follows:
- The resolution adopted by the International Law Institute in Krakow on August 26, 2005 defines universal jurisdiction in criminal matters such as jurisdiction of a State to pursue and, if found guilty, punish suspects, regardless of where the crime was committed and regardless of any link active or passive nationality or other criteria of jurisdiction recognized by international law.
- Legido provides two definitions SÁNCHEZ 14 : a) Define its effects or consequences: it is a title of jurisdiction empowers the State authorities to know of special relationship or nexus of union with the prosecution of which it is made from the point of view of the place of commission, the nationality of perpetrators or victims or legally protected interests or injured. b) Definition of its foundation: A degree of operational jurisdiction for domestic repression particularly heinous crimes would undermine important interests of mankind and / or the international community.
As an end, my personal opinion on true universal concept of justice is identified with the definition given by the Institute of International Law, in particular I very much agree with terms the links, then, as I said earlier, if necessary seek such, it is no longer universal jurisdiction, extraterritorial jurisdiction but which are different things, even make them look for some one to appear to be 100% combat against impunity for international criminals responsible for crimes of genocide, torture, etc.
1 Chapter XXI, dedicated to the Nursing Home, Beccaria argues that "Some have argued that whenever a criminal act or an action contrary the law, the offender may be punished as if the subject was indelible character, synonymous, and even worse, the slave, as if one could be subject of a domain and live in another, as if their actions can not contradiction, be subordinated to two sovereigns and two often conflicting codes. Some also believe that a cruel action, committed in Constantinople, for example, may be punished in Paris by abstract reason that he who offends humanity deserves to have an enemy to humanity, the universal execration, as if judges were Vindicators of the sensitivity of men, but rather of the agreements that bind them together. El lugar de la pena es el lugar del delito, pues solamente en él, y no en otros lugares, los hombres se ven forzados a ofender a un particular para prevenir la ofensa pública.”
2 Vid. Asunto Lotus, P.C.I.J. Series A, núm. 10.
3 Vid. CHINCHÓN ÁLVAREZ, J.: Análisis formal y material de la reforma del principio de jurisdicción universal en la legislación española: De la «abrogación de facto» a la «derogación de iure», LA LEY 13345/2009, disponible en
http://www.laley.es/Content/Documento.aspx?params=H4sIAAAAAAAEAO29B2AcSZYlJi9tynt/SvVK1+B0oQiAYBMk2JBAEOzBiM3mkuwdaUcjKasqgcplVmVdZhZAzO2dvPfee++999577733ujudTif33/8/XGZkAWz2zkrayZ4hgKrIHz9+fB8/IorZ7LOnb3bo2d17sLe7+wsv87opquVnezs7D3c+3buHD4rz66fV9M31Kv/sPCub/Bfmk6p6G7z3+5v2/w+zRbolUQAAAA==WKE#tDT0000127211_NOTA11
4 disagree on this doctrinal distinction here between absolute universal jurisdiction and universal jurisdiction limited. The only true universal justice is one that allows the prosecution of crimes against international humanitarian law by any country or international body created for that purpose (such as the International Criminal Court) without obstacles or conditions that have to do with her consent or with points connection. As I shall explain below , these "hotspots" or consent to the community snatch entire international opportunity to defend their interests, because if it is necessary that the state of the offender has given his consent or that have jeopardized national interests to act, is not defending international law, but are defending interests purely domestic. To speak of universal jurisdiction limited is made to do a pipe dream for those only interested in saving face and not to call things by their name.
5 Vid. SÁNCHEZ Legido, A. op. cit. , Pg. 24.
6 Kelsen argued that "the territory is the space that limits the validity of the law of a State," Kelsen, H. : General Theory of State, 1934, pg. 183, cited in SÁNCHEZ Legido, A. op. cit. , Pg. 27.
7 Report of February 24, 1999, universal jurisdiction over war crimes, available http://www.icrc.org/web/spa/sitespa0 .nsf/html/5TDMR2
8 In the same vein, vid. CHINCHÓN ALVAREZ, J., op. cit., when it states: "It is common to find the statement of three principles of attribution of extraterritorial criminal jurisdiction, as are the active and passive nationality, protective and universal jurisdiction ; be worth noting that in the field of international law has been sought and identified the foundation of the first one in the population as a component of the state, and second in political organization and its essential interests, while the third is, in principle, regarded as arising from the own nature of crimes under international law. " Not be forgotten that the people and the political organization of state, together with the territory, are fundamental elements of the state and are closely linked to sovereignty.
10 In the English case, vid. in this sense, the SSTC 87/2000 of 27 March and 237/2005 of 26 September.
11 To date, the ICJ has not ruled on the legality of the jurisdiction of foreign national courts, so The debate is open. While it is true that we must remember that just as there is no international standard that obliges them to adopt into domestic law the principle of universal justice, there is no rule that forbids it ..
12 The International Law Commission itself in its work on the draft Code of Crimes against the Peace and Security of Mankind said that the principle of universal justice is a pre-existing customary right.
LITERATURE CITED AND CONSULTED
• CHINCHÓN ALVAREZ, J.: Analysis of procedural and substantive reform of the principle of universal jurisdiction in English law: In the "de facto abrogation "
to" repeal jure, 13345/2009 LAW, available at
http://www.laley.es/Content/Documento.aspx? Params = H4sIAAAAAAAEAO29B2AcSZYlJi9tynt/SvVK1
B0oQiAYBMk2JBAEOzBiM 3mkuwdaUcjKasqgcplVmVdZhZAzO2dvPfee + + +999577733
ujudTif33/8/XGZkAWz2zkrayZ4hgKrIHz9 + + ws
fB8/IorZ7LOnb3bo2d17sLe7 buHD4rz66fV9M31Kv/sPCub/Bfmk6p6G7z3 v87opquVnezs7D3c +3 +5 v2 / w + zRbolUQAA == AA
WKE # tDT0000127211_NOTA11
• Diez de Velasco, M.: Public International Law Institutions, 14 th edition,
Tecnos, Madrid, 2004
• Garcia Aran, M. / LÓPEZ GARRIDO, D. (Coordinators): International Crime and
universal jurisdiction. The Pinochet case, Tirant Lo Blanch, Valencia, 2000
• Gómez Colomer, JL / ESPARZA Leiber, I.: stream-gauging
Treaty jurisprudential process, Tirant Lo Blanch, Valencia, 2009
• JORGE URBINA, J.: Crimes of War universal jurisdiction and immunities
criminal jurisdiction of the organs of State, published in the Law Library
Virtual Institute for Legal Research at the Universidad Autonoma de Madrid,
available http://www.juridicas.unam.mx
• WHEEL Miaja, A.: The genocide, international crime,
English Journal of International Law , 1951, vol. IV, 2 PEREZ-PRAT
• DURBAN, L.: The international responsibility, "Crimes of State and / or individuals
?, In Yearbook of the Faculty of Law at the Universidad Autonoma de Madrid, 2000
• REGUERA GÓMEZ, FJ : Crisis of universal jurisdiction, 12 May 2010, available at http://www.diariojuridico.com/opinion/crisis-de-la-jurisdiccionuniversal
.
html
• SÁNCHEZ Legido, A.: Universal Criminal Jurisdiction and International Law, Tirant Lo Blanch
, Valencia, 2004
• SANTOS VARA, J.: A Chronicle of the judicial application of international law Public
in Spain, Electronic Journal of Studies International, No. 17, 2009, available at www.reei.org/reei17/doc/cronica/cronica_SANTOS_Juan.pdf
• SEGURA HERNANDEZ, A. / MAILLE, R.: In defense of universal jurisdiction. A
step backwards for democracy, a great way to impunity,
30 April 2009, available at http://www.webislam.com
• SIMON, JM: Jurisdiction universal. The perspective of public international law,
available in Electronic Journal of International Studies, n º 4, 2002, available at
http://www.reei.org/reei4/Simon.PDF
28
• Legal Dictionary, Thomson-Aranzadi, 4 th
edition • Report of the International Committee of the Red Cross February 24, 1999,
universal jurisdiction over war crimes, available at
http://www.icrc.org/web/spa/sitespa0.nsf/html/5TDMR2
• Introduction to the Report of the Public Prosecutor of the Year 2008, available at
http://www.fiscal.es
• Universal jurisdiction: Fourteen principles fundamental for the effective exercise of universal jurisdiction
, May 1999, AI Index: IOR 53/01/99, available at
https: / / www.es.amnesty.org/
• A step by step approach the exercise of jurisdiction (criminal) universal
countries of Western Europe, published by the International Federation of Human Rights,
No. 522, April 2009, available at http://www.fidh.org/
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