Good afternoon. I’ll try and speak slowly so the [0:09:20] translator won’t have too much trouble with me. I’d like to thank the School of Law and Anthony Geist [0:09:30] for the invitation that I was given to me a long time ago now to be here this afternoon with all of you [0:09:40] in my first time here in Seattle. This afternoon we’re going to reflect [0:09:50] a bit on some questions that may seem to some, probably not to the ones present here, [0:10:00] but to many that they aren’t relevant questions. That they aren’t questions [0:10:10] that take us to the actuality of the urgent global economic crisis.
[0:10:20] But I think that to talk about human rights, to talk of impunity, still in the [0:10:30] 21st century is something current, necessary, and something [0:10:40] that hits our democratic consciences. When it’s about [0:10:50] tackling the most horrible crimes that have been committed in the world and that are still committed. [0:11:00] Crimes against humanity, crimes of genocide, war crimes. [0:11:10] Something curious happens, something that calls attention and it’s that there is a large part of the [0:11:20] global society, a large part of leaders that justify these type of crimes. [0:11:30] It seems a contradiction that being the gravest crimes they are the ones treated [0:11:40] with the most complacency.
And the ones that are always set with the [0:11:50] most impunity through pardon laws, amnesty laws, reprieves, [0:12:00] etc. And for that it’s enough to look back [0:12:10] and to see how from Chile to Mexico, [0:12:20] from South Africa to Spain, from Spain to China, [0:12:30] passing through other countries in certain moments of their recent history [0:12:40] this same phenomenon has occurred. We’ve faced a decision [0:12:50] that’s sometimes difficult to opt to forget or for [0:13:00] the demand of penal responsibility. Central to the question [0:13:10] for me there is something fundamental that is forgotten a lot of times, and it’s [0:13:20] the issue of the victims.
If the 20th century has been characterized by anything [0:13:30] apart from being the most violent century in humanity, although I don’t know if this one is going to exceed it, has been because [0:13:40] a universal concept has formed of the victim. Since the [0:13:50] Nuremberg trials of 1945 and as a consequence of the [0:14:00] tradition that from the beginning of the century was forming itself in international humanitarian law [0:14:10] until today that it has acquired that universal conscience that because of the level [0:14:20]of the crimes the victims weren’t just immediate, the dead, [0:14:30] the disappeared, their families, the tortured, but any person in any part of the world. [0:14:40] So that if the crime is committed in Spain or the United States or in any other place [0:14:50] the victims are the direct ones but also the French, or the ones from Colombia, or from Uganda [0:15:00] as an example.
This is important to understand the following concept that has been also fundamental [0:15:10] in the last years in the last decade of the 20th century, and it’s been the formation [0:15:20] of the concept of universal penal justice, or universal jurisdiction. [0:15:30] So those crimes that by their nature of being horrendous crimes, crimes [0:15:40] against humanity, independent of the place where they have been committed, and the nationality of the victims [0:15:50] there’s an obligation on the part of all the democratic states of prosecuting [0:16:00] those crimes to the point of where if it’s not done, any other country, [0:16:10] any other judicial system should do it.
And that concept of universal [0:16:20] penal justice is fundamental because it is the last refuge [0:16:30] for the fight against impunity. In the international arena you also know [0:16:40] that in that very important last decade of the 20th century for the first time [0:16:50] international criminal courts were formed to judge genocidal crimes [0:17:00] and crimes against humanity in the ex-Yugoslavia, and Bosnia, and Rwanda. [0:17:10] And special courts like in Sierra Leone or like in Cambodia to prosecute [0:17:20] the genocide of the Khmer Rouge of Pol Plot, or Indonesia, or East Timor. [0:17:30] And also maybe the most important act the [0:17:40] approval of the Rome Statute that created [0:17:50] International Criminal Court.
This is the system broadly speaking of [0:18:00] international justice, international criminal justice. In the beginning universal justice is [0:18:10] there for everything that doesn’t fit in that system of international criminal justice for those [0:18:20] countries that haven’t ratified the statute. For those acts that are before [0:18:30] 2002 which is when the said statute came into effect. [0:18:40] And for all those that bring us here together. [0:18:50] In every country like I said before the question of investigation, [0:19:00] prosecuting, sanctioning, and penalizing this type of crimes [0:19:10] has had clearly defined phases. In the first place, the [0:19:20] self-protection of the regime that produces them, dictatorships [0:19:30] during, and immediately after committing these acts and finishing its period [0:19:40] has dictated systematically certain norms for its protection afterward [0:19:50] so that the advent of a democratic regime doesn’t look back. [0:20:00]
They’ve established norms for pardon, official oblivion imposed, [0:20:10] they’ve undertaken to erase the people’s collective and individual memory. [0:20:20] They’ve even prosecuted those that have tried to clarify [0:20:30] what they’ve done or to investigate those acts. I could put my own personal example, [0:20:40] probably later in the debate this might come out. Because I was investigating those crimes [0:20:50] I’m being investigated. For saying that the Spanish amnesty law shouldn’t apply [0:21:00] to crimes against humanity I’m being investigated. For saying [0:21:10] that the crimes committed during the Spanish Civil War and the years after of [0:21:20] Franquismo, illegal detentions, the forced disappearance of people to this day [0:21:30] I’m being investigated. But I’m not even original enough to be the only one. [0:21:40]
Unfortunately if I were the only one I’d draw a lot of attention, exotic, like my country, [0:21:50] and that be it. But no there have been other cases. I remember a case of a [0:22:00] colleague in Peru in 1995. A valiant judge who tried to not apply [0:22:10] the amnesty laws of self-amnesty by Fujimori and she was prosecuted, investigated, [0:22:20] expelled, and she even had to leave her country for her own safety. [22:30] Later on March 14th, 2001 the Inter-American Court of Human Rights [0:22:40] declared null the amnesty laws in Peru. In the Barrios Altos case [0:22:50] and La Cantuta two massacres done by the Colina group and [0:23:00] aided by the dictator Fujimori who after fleeing and having been turned in through extradition [0:23:10] has been judged and convicted for these acts.
That’s one case [0:23:20] of the many that there are. Judge friends of mine from Guatemala who’ve dared recently [0:23:30] to make those investigations and break the cloak of impunity that the dictator [0:23:40] Ríos Montt who is still protected parliamentary immunity. [0:23:50] They’ve also been persecuted although today those barriers have also eased, [0:24:00] and that the possibility that the genocide of 200,000 [0:24:10] citizens of Mayan ethnicity can mainly be seen as objects of investigation and sanction, [0:24:20] and later I will make a reference on the importance that international action can have in helping [0:24:30] investigations in other countries.
In Chile the Judge Guzman Tapia who investigated [0:24:40] Augusto Pinochet simultaneously with the investigation we were doing in Spain [0:24:50] also was prosecuted for not applying the amnesty laws and he was even close to being tried [0:25:00] and his professional career was shortened. In Argentina [0:25:10] there were prosecutors like that also like my good friend Hugo Marc Cañón prosecutor from Bahía Blanca [0:25:20] that didn’t apply the pardon laws, and to the pardoned [0:25:30] that Carlos Menem in 1989 approved and they were also prosecuted and many others. [0:25:40] Finally on July 14th, 2005 the Argentine Supreme Court [0:25:50] annulled the Obedience Laws and finally the Impunity Laws. [0:26:00] Today there are more than 600 open cases against [0:26:10] military and civilians and some religious people as the authors of crimes [0:26:20] against humanity.
So we see that in one regard that [0:26:30] in an immediate way the impunity laws are taken on [0:26:40] or are allowed and with the passing of time they are studied again and in many cases annulled. [0:26:50] Why? Why does this happen? It’s understandable that immediately [0:27:00] after an authoritarian period of a dictatorship and with the change to [0:27:10] a democratic system the line is very weak. The institutions, [0:27:20] the strength of the institutions is very fragile and it probably has the justification [0:27:30] of not applying those norms immediately because a regression can result. [0:27:40] That’s what happened in Argentina.
Taking the example again of the Ibero-American country. When in [0:27:50] 1985 and after realizing an exemplary exercise [0:28:00] of how after immediately after the ending of the dictatorship in December, 1983[0:28:10] they prosecuted and put on trial the principal individuals responsible for the Argentinean military juntas [0:28:20] and they were convicted. But in 1985 the president of the [0:28:30] Republic of Argentina had to acknowledge the need [0:28:40] to allow the approval and sign Laws of Obedience of Life and period. And he affirmed [0:28:50] that he did it using a figure very close to reality when Raul Alfonsin [0:29:00] said, ‘I do it with a gun pointed at my stomach.’ It’s been 30 years [0:29:10] and the crimes are being investigated.
Today there’s a second moment, [0:29:20] and it’s that in the transition there tends to be a mix [0:29:30] of a transitional justice that develops and there’s an extenuating penal response [0:29:40] or an alternative search for penal justice. That’s the principal case [0:29:50] for the named truth commissions, memory commissions, [0:30:00] reconciliation commissions, etc. But there’s an error when it’s about [0:30:10] substituting the response of the penal justice for these type of [0:30:20] commissions. There’s a very important resolution in the [0:30:30] Inter-American Human Rights Commission of December 22nd, 1999. In the case of the [0:30:40] massacre of the Jesuits in El Salvador. Spanish Jesuits and El Salvadorians. [0:30:50] The Inter-American Human Rights Commission establishes than in no case [0:31:00] do the truth commissions, the reparation commissions exclude the actions by the justice, [0:31:10] but it warns it, and makes it necessary.
The correct interpretation [0:31:20] except for the case of South Africa that also had judicial responses in many cases, [0:31:30] is the confluence of the non-judicial reparation system [0:31:40] and the judicial reparation and the penal justice. There are [0:31:50] more current examples: Colombia, there is the called Law of Justice and Peace [0:32:00] of June, 2005. It’s a very controversial law. [0:32:10] At the moment it has helped for the demobilization of 36,000 paramilitaries and [0:32:20] members of the FARC at about 24,000 and [0:32:30] 11,000 each approximately respectively. This law establishes some penal sanctions, the maximum is eight years of [0:32:40] prison, and it establishes an obligation to tell the truth. Of confessing [0:32:50] the massacres and if that confession is incorrect or its proven incomplete [0:33:00] the benefit of less years in jail is lost, and the regular system is applied that carries [0:33:10] with it sentences of up to 60 years in jail.
But as you can see in the transitional justice systems [0:33:20] there is a response, more or less large balance between [0:33:30] the penal response and the reparation response. But what happens in other systems and that includes the Spanish system [0:33:40] is that transitional justice didn’t exist. There was a political transition [0:33:50] from the dictatorship to the democracy, and there was a norm [0:34:00] of an amnesty law in 1977 before the democratic constitution [0:34:10] that established the impossibility of prosecuting the crimes of political intentions. [0:34:20] Watch out here because it’s what we say in my land the crux of the matter. [0:34:30] Here is the real point of inflection. What is understood by crimes [0:34:40] of political intention?
Any crime committed before or during the era [0:34:50] of the dictatorship, or those crimes that the opposition of the regime was judged [0:35:00] and persecuted for political reasons or opinion, of assembly, [0:35:10] of association or including more or less violent opposition to the regime? [0:35:20] Independent of how you respond to this question we should turn to when [0:35:30] it’s about crimes against humanity, or crimes that can be considered crimes [0:35:40] against humanity, not only to local legislation, but also international legislation. [0:35:50] The one that by application of constitutional precepts [0:36:00] in Spain it’s the Article 96 of the Constitution, and also in the Republican Constitution of 1932 [0:36:10] they were the Articles 7 and 65 established the obligation [0:36:20] of the treaties that Spain belongs to and the obligation of the application of those norms [0:36:30] especially when they refer to crimes against international humanitarian law. [0:36:40]
Crimes of genocide, war crimes, crimes against peace, [0:36:50] crimes against humanity. And what do the treaties tell us? The treaties [0:37:00] over the history of the 20th century and since the Martens Clause of [0:37:10] 1899 which in Spain was ratified in 1900 in [0:37:20] the Hague Conventions later reiterated in the Conventions of 1907. That were [0:37:30] used to establish the ability to persecute the crimes of the Armenian genocide [0:37:40] in 1915. That were completed with the Treaty of Versailles in 1919. [0:37:50] That continued with the Sevres Treaty of 1921. [0:38:00] That followed with the Declaration of Paris of 1928. That passed on to the laws established at the [0:38:10] Nuremberg Trials and Tokyo. Laws that established that [0:38:20] the scope of the application of the jurisdiction of the trial extended [0:38:30] back until January 30th, 1933.
Someone could say [0:38:40] they’re applying retroactively and that’s impossible in penal rights. What the Nuremberg Trial [0:38:50] in principle no crime without the international axis was the one who governed [0:39:00] in other words no crime is possible if it isn’t established within the international legislation. And that international legislation [0:39:10] that had been forming since 1899 until that moment is precisely [0:39:20] what gave the Nuremberg Trial coverage to dictate its principles, its seven principles of Nuremberg [0:39:30] in which all the subsequent international legislation had been forming [0:39:40] along the same line. So if we analyze the dates we have [0:39:50] that Spain ratifies in 1900 and enters this bloc of countries that are affirming this international legislation. [0:40:00] We get to the constitution of 1932 where the validity is established [0:40:10] and the preferred application of the international treaties.
We continue [0:40:20] with the alleged crimes that in the current definition would qualify as crimes against humanity [0:40:30] so they are committed in the context of those crimes that were already defined in [0:40:40] the international legislation as crimes against humanity. Denomination that appears for the first time in the Nuremberg Trial [0:40:50] and that continues as continual or permanent crimes [0:41:00] until today. And later I will say why it’s that way, or why I think it’s that way. [0:41:10] Following that evolution of international legislation there are some fundamental norms [0:41:20] that all of you that are interested in this subject know. The Pact of Civil and Political Rights of December, 1966. [0:41:30] The declaration against torture of ’74, or ’75 I think. [0:41:40]
The Convention against Torture of 1984 of which [0:41:50] Europe refers of the 1987. The Declaration of the General Assembly of the United Nations [0:42:00] on enforced disappearances of people of 1992. The Inter-American Convention on forced [0:42:10] disappearance of people of 1994 that came into effect on ’96. [0:42:20] And finally among others the Convention on enforced disappearances of people of the United Nations on [0:42:30] December 26th, 2006.
Because of all these norms and [0:42:40] because of the analysis of them the crimes in which from the power or organizations protected [0:42:50] by the authoritarian or democratic power just the same, that are committed against citizens [0:43:00] in the forms of massive killings, extrajudicial executions, [0:43:10] summary executions, torture, illegal detentions, enforced disappearances [0:43:20] of people, when they’re realized in a systematic way against certain sectors [0:43:30] of the population or with a general character, and of course genocide when this is the case these type of crimes [0:43:40] according to the norms that I have previously cited, and to not make too heavy the discussion I avoid [0:43:50] the articles, can’t have ever the characteristic of political crime or political intention. [0:44:00]
And also they are excluded from any norm of amnesty or [0:44:10] general pardon. That is the base that supports all of these [0:44:20] resolutions that I’ve cited that are complemented infinitely more with [0:44:30] judgments from the Human Rights Inter-American Court and I’ve mentioned the one of Barrio Altos [0:44:40], the international crime court for the ex-Yugoslavia, the Frunhidla case of 1998 [0:44:50] is the most paradigmatic but not the only one, the European court of Human Rights [0:45:00], and an infinite amount of judgments. Almost all of them referring to Turkey about [0:45:10] the disappearance of persons, but also with respect to other countries. Judgments from the special court [0:45:20] of Sierra Leone already mentioned. And like that successively.
The cases Papon for example [0:45:30] vs. France, Stutler vs. Germany, a series of judgments that like I say were very [0:45:40] broad where systematically it’s established that first [0:45:50] an impartial investigation has to intervene and it has to be independent of the judicial authority of the judge [0:46:00] so that a possible amnesty can be established or forgiveness. [0:46:10] In Spain for example after the Spanish Constitution the general pardons and amnesty [0:46:20] are prohibited constitutionally. Why did I say that [0:46:30] crimes committed in 1936, ’37, and successive years can [0:46:40] still be valid in 2010? Many people can say look [0:46:50] although this happened this way none of the responsible are alive, [0:47:00] therefore if none of the responsible are alive it can’t be investigated. [0:47:10]
The response is varied but it’s subject to legal debate. [0:47:20] Any criminal investigation has as its objective to determine the crime, [0:47:30] the investigation of the possibly responsible, and reparation to the victims. [0:47:40] An absolutely positivist stance says what I had previously affirmed that if the responsible are not alive it can’t be investigated. [0:47:50] A stance more in accordance with the international rules of comprehensive protection [0:48:00] for the victims, in accordance with the principles of the United Nations of the fight [0:48:10] against impunity, and the protection of the victims of April, 2005 that impose [0:48:20] or establish the right of the victims to an effective recourse to an impartial investigation and a [0:48:30] comprehensive reparation in which is included the penal response [0:48:40] and indicate that possibly those criminal acts have to be investigated.
That’s on one aspect, [0:48:50] on another they are crimes with a permanent character, continual. What does this mean? [0:49:00] It means, and all the international jurisprudence agrees that when it’s about crimes [0:49:10] of forced disappearance of persons, of illegal detentions without knowing about them again [0:49:20] what has happened to the victim, it can’t be permitted to fall into the presumption of failure, [0:49:30] to the victims, or to the relatives, instead it’s an obligation of the state [0:49:40] and those that were responsible of the disappearance who are obligated [0:49:50] to investigate, establish, and discover where those people or their bodies are, [0:50:00] and to guarantee their recovery.
Not only to [0:50:10] guarantee the rights of the victims, but also because it constitutes essential evidence for the [0:50:20] criminal investigation. Because until that moment doesn’t arrive the crime continues to be committed. [0:50:30] And that’s another one of the arguments for which along with the ones previously mentioned about amnesty laws [0:50:40] that doesn’t fit as a political crime when it’s against humanity if it keeps on being committed [0:50:50] after the amnesty law is in effect since it is [0:51:00] in effect it isn’t applicable. The crime gets renewed, it keeps getting committed, and since [0:51:10] the norm is in effect it is also prosecutable.
Definitely [0:51:20] with this reflection what is manifested is that all [0:51:30] this issue that is decontextualized and not relevant brings us [0:51:40] to the point that the whole field internationally speaking [0:51:50] agrees that these type of acts these type of crimes can’t be forgotten, [0:52:00] can’t fall under the category of forgotten acts. [0:52:10] Because while the victims aren’t compensated in their right there exists the obligation [0:52:20] to compensate them. But also in the Spanish case one of the objectives [0:52:30] of the investigation that was raised weren’t only the fallen victims [0:52:40] in the Civil War. I’m not going to pick sides. Victims are victims [0:52:50] and in any case it’s the obligation of the state to compensate them.
What happens is [0:53:00] some were compensated during 40 years and for others it was impossible for them to have access to that [0:53:10] compensation for obvious reasons. But there are acts that are [0:53:20] known like the lost children of Franquismo. A number of several thousand [0:53:30] of people, of children of a young age that were apparently according to the data [0:53:40] and documents separated sometimes by legal methods and other times by illegal methods [0:53:50] from mother, family, and all contact from their biological family [0:54:00] was interrupted because it was considered that the influence [0:54:10] of that family environment was highly harmful to the new ideology [0:54:20] of the victorious regime of the Civil War.
Women, mothers, that were imprisoned [0:54:30] and that were later executed or that later recovered their liberty in many cases their new born children, [0:54:40] or children that were born in prison were given to adoption or separated [0:54:50] from their family and in many cases were never able to recover them. Or the reunion after arduous [0:55:00] investigations has happened years after. The last one was practically one week ago. People who had a different identity [0:55:10] and haven’t reunited with brothers, sisters until many years after. That was another one of the points [0:55:20] of the investigation. And also that investigation compels the [0:55:30] Council of Europe in its decision of April 2005 where it calls attention [0:55:40] to Spain and tells it that it needs to investigate this case.
Also United Nations Committee on Human Rights [0:55:50] in its resolution of October 27th, 2008 warns [0:56:00] Spain that it should repeal the amnesty law. These cases [0:56:10] are of tremendous relevance. Okay, I’m going to conclude this part [0:56:20] and then we can enter the discussion, and I’ll respond to whatever questions you may have. [56:30] To summarize all of this I would say that the universal conscience that has been forming along [0:56:40] the last decade of the 20th century and the first of the 21st century has shown [0:56:50] the need that the norms that regulate international humanitarian rights [0:57:00] and human rights isn’t something outdated, nor is it something [0:57:10] that shouldn’t be in the agendas of those that govern, but the complete opposite.
Currently [0:57:20] we’re seeing applications of the contrary on a permanent basis. [0:57:30] To follow the margins of legality, to impose as the only [0:57:40] limit the will of the person governing at that time, without following the norms [0:57:50] that prohibit the type of acts like torture in detention centers [0:58:00] without subjection to legality, the existence of secret jails, that have a specific article [0:58:10] in the United Nations Convention of Enforced Disappearance of Peoples of 2006 that prohibiting this exactly [0:58:20] and the circumstances that still, that acts that are still open in so many countries [0:58:30] imposing and demanding that the universal victim be [0:58:40] the center of attention and protection as the weakest part[0:58:50] in these type of acts.
It doesn’t mean taking not even one guarantee from those responsible, [0:59:00] the more guarantees the better. As an example I’ll give you the terrorist issue, as you know there are [0:59:10] two visions, one is to eliminate rights and to consider this as a combat, or a war. [0:59:20] Another is to consider terrorism as a criminal act and that it should be investigated as such a criminal act. [0:59:30] We are in this moment, historically it’s been a couple of years that these two stances [0:59:40] struggle with each other. I can tell you that in Spain’s case, and here you’ll permit me [0:59:50] to say something positive, Spain has many positive things, but in others… [1:00:00] Spain has been fighting terrorism for 40 years and most recently [1:00:10] it also suffered the impact of jihadist terrorism, international terrorism [1:00:20] on March 11th, 2004.
Despite this large massacre in which 191 people died [1:00:30] by the bombs placed on four trains in Madrid and one more [1:00:40] when the seven people possibly directly involved sacrificed themselves blowing themselves up [1:00:50] in an apartment in a Madrid locale. Despite this tremendous impact and the [1:01:00] thousand more dead by terrorist actions [1:01:10] of autonomous organizations the law that authorizes the [1:01:20] investigation, prosecution, and the judgment of terrorist crimes hasn’t been modified. And the effectiveness [1:01:30] I assure you is very high. Including [1:01:40] since 2006 we applied a protocol with even greater control [1:01:50] of detention in terrorism cases. The detention is filmed, the assistance of a family doctor [1:02:00] is allowed, at all times until the judge receives the person there is a control. [1:02:10]
And with that what we’ve been able to obtain on one part that the torture complaints have practically [1:02:20] disappeared, and that the effectiveness of the police and judicial actions have increased. [1:02:30] And I assure you when I initiated, we initiated some colleagues and I this new phase [1:02:40] some media weren’t favorable to us said [1:02:50] that we were going to destroy the fight against terrorism, and it hasn’t been that way, it’s been the complete opposite. Also, the rights [1:03:00] from my point of view are elementary to face terror and any other sphere [1:03:10] that I’ve spoken to you about this afternoon and that it forms part of that community, in that global village that I like [1:03:20] to call universal but of human rights. Thank you. [1:03:30] [1:03:40]