In depth
Spain and the International Criminal Court
Antoni Pigrau
The Spanish delegation at the Rome Conference, led by the Ambassador Juan Antonio Yáñez-Barnuevo, Spain's current Permanent Representative to the United Nations, played a very active part in the group of countries who promoted what became the final agreement in the creation of the Court.
The Spanish Government ratified the Rome Statute of the International Criminal Court (ICC) on 19 October 2000. The Spanish Parliament had previously authorized the ratification, in accordance with constitutional stipulations, by means of Constitutional Law 6/2000, of 4 October (Official State Bulletin of 5 October 2000). Spain made a declaration by virtue of the option allowed by subsection b) of paragraph 1 of article 103 the ICC Statute, which stated that: "Spain declares that when the time comes, it will be willing to receive individuals condemned by the International Criminal Court, on condition that the length of the sentence imposed does not exceed the longest sentence stipulated for any crime according to Spanish legislation." This takes into consideration the possibility that the ICC might impose life sentences, which are not provided for by current Spanish criminal legislation.
The ICC Statute came into force on 1 July 2002, for the first 60 States that ratified it. There are now 111 States Parties.
To bring into full force the complementary nature that is established between the ICC's jurisdiction and the national jurisdictions, it is necessary for each State Party to ensure that its legislation imputes the jurisdiction to judge the crimes included in the Rome Statute to its national jurisdiction, and that its criminal material laws classify all the offences listed in the Statute as punishable. In the case of Spain, these legislative changes have been made mainly by means of the Constitutional Law 15/2003, which amended the Penal Code (Official State Bulletin of 26 November 2003). The most significant aspects of this law, as regards the ICC, are the changes in the limitation periods for crimes, the definition of torture, the inclusion of crimes against the administration of justice by the ICC, the inclusion of crimes against humanity and some war crimes and the inclusion of the responsibility of superiors and the effects of their orders for crimes committed by their subordinates.
In order to state the various material and institutional aspects necessary to articulate the co-operation between the ICC and Spanish courts, Constitutional Law 18/2003 of 10 December, concerning Cooperation with the International Criminal Court, was adopted (Official State Bulletin of 11 December 2003). Among other stipulations, the Law makes provision for cases in which it is proper to apply for a restriction on the Prosecutor of the ICC, if he/she is considering undertaking an investigation according to article 18 of the Rome Statute, and has exercised or is exercising criminal jurisdiction in Spain as a result of being aware of certain events that presumably constitute crimes under the Rome Statute, or to challenge the competence of the ICC or the admissibility of a case according to article 19 Rome Statute. It also states that only the executive, by agreement of the Council of Ministers, may ask the Prosecutor of the ICC to open an investigation, thereby denying the possibility of initiative to any Spanish legal authority. The law also includes a provision (article 7.2) which has nothing to do with cooperation with the ICC, but instead is an attempt to limit the universal jurisdiction in Spain, by preventing Spanish legal bodies and prosecutors from opening - ex officio or after an accusation or action - any proceedings covering events occurring in other States when the presumed perpetrators are not Spanish nationals, if the ICC is competent to judge them, and only provides the initial urgent ruling for which it may be competent.
This measure was completed by Constitutional Law 1/2009 of 3 November, "complementary to the Law for procedural legislation reform for the implementation of the new legal Office, amending Constitutional Law 6/1985, of 1 July, concerning the Legal Power" (Official State Bulletin of 4 November 2009), which severely restricted the possibilities for action which article 23.4 of the Constitutional Law on Legal Power of 1985 conferred on the Spanish High Court in the sphere of the universal prosecution of crimes within the competence of the ICC. Indeed, the current wording says that in order for Spanish courts to be able to become involved, "there must be proof that the presumed perpetrators are located in Spain or that their victims are of Spanish nationality, or have some significant connection with Spain, and in any event, that another competent country and the International Court have not begun proceedings involving an investigation and effective prosecution, where appropriate, of the punishable acts."
As a result, the International Criminal Court can expect very little cooperation from the Spanish jurisdiction when it needs it most, i.e. with regard to the prosecution of crimes involving the authorities of States that are not Parties to the Rome Statute, committed in their own territories and against their own nationals.