Español | Français

Equipo Nizkor communiqué concerning the verdict of crimes against humanity
in the Scilingo case.

Equipo Nizkor is issuing this communiqué following an analysis of judgement No. 16/2005 given in the Scilingo case which was published in the Audiencia Nacional (National Court) of Madrid on 19th April 2005 by the Third Section of the Criminal Division made up of Judges D. Fernando García Nicolás, President, D. Jorge Campos Martínez, and D.José Ricardo de Prada Solaesa, in charge of drafting the judgement.

The complete judgement has been digitalized and edited, with an index prepared by us and is now on line on our dedicated web page concerning "The Scilingo case". It will now be accessible for general interest and in particular for human rights defenders and organizations dedicated to the defence of human rights and peace.

Although it is no more than a historical coincidence, we should bear in mind that this judgement concerning crimes against humanity was published on 19th April, the date on which the world remembers the victims of the Warsaw Ghetto Uprisings. It also coincides with various ceremonies in memory of the 60th anniversary of the liberation of the National Socialist extermination camps where, as in this case, Spanish nationals also numbered among the victims. We take the opportunity here to pay homage to all of them.

With those two considerations in mind we wish to state the following:

With respect to the judgement:

1) The judgement, which finds that crimes against humanity were committed in this case, represents an important advance in the history of law in Spain in that, for the first time, it applies principles of international law in a manner which is systematic, rational and, in many ways, uniquely important.

2) The judgement considers in detail the elements of this kind of crime and enables a precise understanding of its significance and of how this category of crime should be used in internal state jurisdictions; in other words, how crimes against humanity apply in domestic law.

3) The judgement defines these crimes on the basis of the jurisprudence developed in cases dealt with by the International Criminal Tribunal for the former Yugoslavia. This court has produced an updating and systematization of international law in the area of crimes against humanity and war crimes.

4) The judgement sets out a well-developed basis for the application of the principle of individual criminal responsibility in ordinary state jurisdiction which affects those who are responsible for the commission of these crimes.

5) We believe that it constitutes a precedent in the defence of human rights and of international human rights law and in the struggle against models of impunity.

With respect to the sentence:

6) The judgement states that the evidence did not prove that Adolfo Scilingo was a member of the Task Force of ESMA and that therefore there was no need to consider the principle of criminal organization. It therefore convicts the accused only of those crimes in which he directly participated, albeit finding that those crimes constitute crimes against humanity. Although we understand the reasons that led to this decision, we continue to believe that the defendant is responsible for the acts of this operations group.

We think it is necessary to clarify here that this line of argument was raised solely by the popular accusation of the Argentinian Association for Human Rights in Madrid, represented by lawyer Antonio Segura (and was later supported by the popular accusation of the IU and the private accusation of Graciela Palacios de Lois, at the time that the oral statements of final conclusions were due). The argument was expressly opposed by the remaining popular and private accusations in the case. This is apparent in the official minutes of the 43rd session of the trial as well as the written statements of closing arguments submitted by the parties. The full text of these documents are all available on the Equipo Nizkor's dedicated web page concerning this trial.

7) We agree completely with the analysis of the crime of genocide as explained in the judgement and we express our firm conviction that this type of international law offence is not sustainable in the light of the proven facts, given that it is impossible here to prove the required mens rea for this category of offence and also bearing in mind that this type of crime exists to deal with criminal racial law of the kind used by National Socialism to justify some of its crimes.

We also wish to stress that, after crimes of aggression or crimes against peace, which are the most serious in the scale of international crimes, the commission of crimes against humanity constitutes the most serious offence recognised in international law and includes genocide as well as other crimes and offences. It is false to argue otherwise and has the result of confusing both the victims and public opinion.

8) We agree with the court's analysis of the crime of terrorism; although states can commit terrorist acts, those cases of systematic repression such as that which occurred in Argentina and other countries constitute crimes against humanity; to use the definition of terrorism to apply in this case would confuse the categories of crime and the responsibilities of a state when confronted with acts of this nature. To accept this reasoning would have meant an unacceptable devaluation of the concept of serious human rights violations.

With respect to the victims:

9) We believe that the judgement not only sets out an efficient form of protection for victims of crimes against humanity but also provides a precedent in its application of international criminal jurisdiction within a national jurisdiction, thereby constituting an useful instrument in the struggle against impunity.

10) We agree with the assessment of Antonio Cassese, referred to in the judgement, that "in an analysis of the categorisation of crimes, it is important that the classic principle of criminal and penal law nullum crimen, nulla poena sine lege, is expressed in international law as nullum crimen sine iure, which allows a much wider interpretation of the requirements of this principle such that a crime could be categorised as such in international law even if it were not considered a crime in internal law".

11) We agree with the assessment that "Complementary to and perhaps pursuant to a different line of argument, we believe that it is helpful to refer to the text of Article 7 of the European Convention on Human Rights concerning the principle of criminal law that establishes the following: '1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according the general principles of law recognized by civilized nations'.

12) If it were not possible to convict for these types of crimes in internal law, we would be in the absurd situation where the perpetrators would be immune from prosecution simply by crossing a border. We believe that the principle of nullum crimen sine lege should not prevail when its application would constitute a greater immorality, that is, to allow certain particularly egregious offences to go unpunished.

13) We would point out that this judgement is not final and that an application for cassation may be filed in the Second Division of the Spanish Supreme Court, this being the likely action taken by the defendant in the exercise of his legitimate right to a defence.

Our involvement:

14) Equipo Nizkor digitalised the record of criminal proceedings of "Sumario 19/97", and photographed in full the principal part of the record comprising 104 volumes. It also photographed a selection of documents from the 183 volumes which make up the Pieza Separada (Separate evidentiary record) of the proceedings. These photographs were taken following an analysis of the record by a team of experts in international human rights law and war crimes, led by Equipo Nizkor. These volumes were not available to the parties until the investigation phase of the proceedings were concluded. In total more than 30,000 files were made.

15) Equipo Nizkor prepared the only accusation submitted which characterised the offences as crimes against humanity based on international human rights law and we also prepared the documentary evidence supporting the accusation. We are therefore very pleased by the outcome and would particularly like to express our gratitude for the assistance of the members and volunteers of our organization without whose efforts, support and solidarity we could not have achieved our objective.

Madrid, 20th April 2005
Nizkor Team

Tienda de Libros Radio Nizkor On-Line Donations

Juicio oral en España
small logoThis document has been published on 21Abr05 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.