The value of laws
according to the Spanish parliament
On May 19th, we woke up
with the news that the PP [conservatives]
and the PSOE [socialists] had banded
together to limit application of Universal
Justice. Even though this had been foreseen,
such a degree of nonsense was a harsh
surprise. Even though the Minister of
Foreign Affairs had announced, with
considerable unease and in response to the
demands of an extreme right-wing Israeli
minister, that the Law would be modified to
limit application of Universal Justice. In
view of recent Israeli military actions in
Gaza, the permanent embargo and the
formation of an even more extreme right wing
government in Israel, we thought that the
law would not be amended as announced, and
certainly not at this point in time, as any
change in the law would immediately be seen
as a letter of impunity. There is no room
for speculation regarding this matter,
and the simple
truth is that the case filed in respect to
the Gaza bombings is what caused the
government and the conservative opposition
to try to modify Spanish law so as to allow
assassins and war criminals all over the
world to sleep in peace.
And we refer to war
criminals because neither the Israeli
authorities nor the Spanish public
prosecutor, who is opposed to investigation
by the National High Court of the Al Daraj
massacre in Gaza, have argued that the said
criminals are not war criminals, but merely
that Spain is not competent to try the case.
And since Spain, pursuant to the 4th Geneva
Convention, to article 96.1 of the
Constitution, to section 23.4 of the General
Judiciary Act, and to Constitutional Court
judgement 327/2003, (Guatemala case), cannot
avoid application of the Law in respect to
these criminals, and since pursuant to the
rules arising from its own parliament, it is
competent, the deputies of the PP and
the PSOE cannot simply change the law to
give these criminals, and all those who have
committed such horrendous crimes,
impunity. Let us not forget that
Universal Jurisdiction for these crimes, and
not for all offences, for the most serious
crimes against humanity, humanity which
includes all of us.
The matter is of such a
serious nature that if we change the crime
for which impunity is intended, it would
amount to saying that since the Prime
Minister of a state, X, let us say, was
caught trafficking with narcotics, our
deputies have joined forces to change the
law regarding drug traffic, or to changing
the criminal code to provide impunity to the
president of an autonomous region in Spain
considered guilty of using public funds for
his personal benefit.
It is obvious that these
measures would not only entail lack of
respect for the parliament which at one
point in time passed legislation which
deputies currently want to amend, but
furthermore, and this is the fundamental
issue, they could even constitute an
offence, since it is clear that they are
legislating in order to give impunity to
delinquents, neglecting all national and
international rules that make it obligatory
to judge said crimes. This kind of action,
even though it is taken by the deputies of a
parliament, is also classified in our
Criminal Code. Deputies must be reminded of
this fact; deputies who probably voted
without being fully aware of what they were
doing, incited by the desire to not bother
the powerful and to let those who have no
capacity to defend themselves die with total
impunity. Deputies who acted in this manner
should delete from their resumes any
reference to the defence of democratic and
social values, and of human rights. Such
incredible hypocrisy is unacceptable.
Article 451 of our
Criminal Code, currently in force,
which our deputies should know, or should
modify (perhaps they are also considering
doing so) states as follows:
“Anyone who is aware
that an offence has been committed, and who
has not intervened in said offence as
perpetrator or accomplice, but who
intervenes after the offence has been
committed in the one of the following ways,
shall be sentenced to a prison term of six
months to three years:
1. Helping the
perpetrators or accomplices to profit from
the benefit, product or price of the
offence, with no intention to profit
him/herself.
2. Concealing,
altering or rendering useless the body,
effects or instruments of an offence to
impede that it be discovered.
3. Helping the
alleged perpetrators of an offence to avoid
investigation by the authorities or their
agents, or to elude being persecuted or
captured, provided any of the following
circumstances occur:
1. That the
concealed act constitute treason, homicide
of the King, any of his ascendants or
descendents, of the Queen consort or of the
Queen’s consort, of the Regent or of any
member of the Regency, or of the Crown
Prince, genocide, crimes against
humanity, crime against persons and property
protected in case of armed conflict,
rebellion, terrorism or homicide.
2. That the
favourer has acted in breach of a public
function. In this case, the sentence shall
include, in addition to a prison term,
special disqualification for public
employment or office for two to four years
if the offence covered up is not very
serious, and absolute disqualification for
six to twelve years if the offence is
serious.”
Introduction of the first
circumstance, which refers to covering up
actions considered as crimes against
humanity or against protected persons or
property, was approved in November 2003, and
is exactly what Parliament intends to do by
modifying the law.
In the event this
modification of section 23.4 is approved,
not only would they be giving impunity to
some criminals, and covering them up, and in
consequence committing an offence pursuant
to the laws approved by that same
Parliament; they would also be breaching the
Geneva Conventions, of which Spain is a
signatory, and is thus obliged to respect
and enforce, and demand respect and
enforcement thereof. This is exactly what
the first article of the 4th Geneva
Convention states. Without forgetting the
obligations contracted within the framework
of the United Nations General Assembly,
which impedes them from adopting that kind
of legislative measure: the obligations
contracted in Resolution 3074 (XXVIII) of
the General Assembly of December 3rd 1973,
(which established the principles of
international cooperation for the
identification, detention, extradition and
punishment of persons guilty of war crimes,
or crimes against humanity) state, under
point 8: “ The States shall not adopt
legislative provisions or other types of
measures that may infringe the international
obligations they have contracted with
respect to the identification, detention,
extradition and punishment of persons guilty
of war crimes or crimes against humanity”.
This is precisely what our Parliament, with
all of the deputies of the PSOE and the PP,
intends to do.
In consequence, in
approving such legislative amendment our
deputies become real delinquents, in the
domestic and international sphere, giving
impunity to the criminals and abandoning
their victims. This is why they should not
give in to pressures by those who are more
powerful and adopt said amendment, not only
out of respect for human rights, respect for
our own country and of our sovereignty;
instead, out of respect for the dignity of
each individual deputy, they should retract
the vote which they cast so light-heartedly
and so quickly, to the surprise of the
defenders of human rights and rights of
peoples and to the despair of those who saw
in Spanish courts the only consistent path
to fight against the impunity of Israeli
criminals and of all others throughout the
world, at present and in the future.
As far as we are
concerned, we will not cease in our efforts
to avoid that laws be passed, like in the
Middle Ages, in the shadows of and at the
service of the powerful. These laws are of
no value if they are conceived for that
purpose; and neither are laws that are
constantly changed in response to
illegitimate pressures, since the mere fact
of permanent change produces the
defencelessness of the entire population
that must abide by such laws.
Antonio Segura. Lawyer,
author of the Gaza, Guantanamo and Spaniards
in Mauthausen lawsuits, amongst others.
