Israel’s NSO Group sued in the United States and Spain over Pegasus spyware.

In 2019, WhatsApp brough a civil action against NSO before a US district court in California seeking injunctive relief and damages. Plaintiff claimed that Pegasus is a surveillance software designed to infect the mobile devices of selected WhatsApp users and secretly collect information. It works on Android, iOS, and Blackberry operating systems. Unable to break WhatsApp’s end-to-end decryption, NSO developed Pegasus in order to access messages and other communications after they were decrypted on the targeted mobile devices. Once installed, Pegasus is capable of intercepting communications and data sent and received through WeChat, Skype, Facebook, Messenger, emails, and others.

WhatsApp contended that NSO infringed the US Computer Fraud and Abuse Act and the California Penal Code § 502), as well as WhatsApp’s Terms of Service.    

NSO moved to dismiss asserting that it was entitled to sovereign immunity at common law (as opposed to FISA-based immunity). It was common ground that NSO only licenses Pegasus to state and state agencies (customers) after conducting an enhanced human rights due diligence process and taking other steps designed to mitigate, prevent, and address potential misuse.

NSO does not operate the technology, the customer itself does, nor does NSO have access to the customer’s data. Neither does NSO have any knowledge of the individuals whom states might be selecting for surveillance, nor the plot they are trying to thwart. Sovereign states normally are most unwilling to share this extremely sensitive information. In sum, states themselves operate Pegasus technology in the exercise of their sovereign powers.

Moreover, NSO’s exports must obtain a prior license by the Ministry of Defense of Israel, which conducts its own analysis of the countries of destination of the software from a human rights perspective.

According to a rule of customary international law, private entities, like NSO, are entitled to conduct-based sovereign immunity “to the extent they are entitled to perform and are actually performing acts in the exercise of sovereign authority of the State” (Article 2.1 (b) (iv) of the UN Convention on Jurisdictional Immunities of States and Their Properties). Although the United States did not adhere to this convention, most US scholars agree that it only codifies pre-existing rules of customary international law.  

The district court admitted that NSO was an agent of foreign governments that acted entirely within its “official capacity”. It denied, however, that NSO was entitled to conduct-base immunity.

NSO appealed to the circuit court of appeals, which affirmed the lower court’s decision. The appeal court upheld that NSO did not qualify as a foreign state under the FISA. NSO moved to the US Supreme Court and petitioned for a writ of certiorari, which was also denied.

In a joint amicus curiae submission to the Supreme Court, the Solicitor General and the Legal Advisor of the Department of State adhered to the appeal court’s arguments and opined that certiorari should be denied. This opinion may reveal some frictions between the current US administration and Israel, which are supposed to be close allies in the Middle East and defense issues. The United States themselves were known to be Pegasus’ customers.

NSO’s attorneys noted that in some post-FISA decisions, US courts erroneously treated the FISA, rather than the common law, as the source of conduct-based immunity. I am not a US qualified lawyer nor an expert in US law but would side with NSO’s attorneys on that.

For example, in Butters v Vance International [225 f.3d 462 (4 th Cir.2000)], the Fourth Circuit granted sovereign immunity to a private security firm for employment decisions it made while providing security services in the territory of the United States for and under the direction of Saudi Arabia. The Circuit’s decision makes sense since the acts of the private security firm were entirely attributable to the foreign state.

The relevant difference between Butters and our case appears to be that in the former the private firm was incorporated in the United States while in the latter NSO was not. Since said customary rule on sovereign immunity does not make any distinction as to nationality or place of incorporation of private entities, it is difficult to understand why US courts do. These ongoing proceedings have the potential to jeopardize foreign states’ legitimate intelligence operations and interfere with US foreign policy, circumstances that both the Solicitor General and the Legal Advisor at the State Department seemed to have ignored when submitting their joint amicus.

Criminal complaints in Spain

It is known that a number of criminal complaints have been filed against NSO in Spain.  

In one of them, a noted Catalan separatist lawyer, whose mobile device was reportedly infiltrated by Pegasus, accused a former director of the Spanish Intelligence Agency (CNI) and NSO of alleged unlawful data access and disclosure of secrets as defined in Article 197 of the Spanish Penal Code (roughly equivalent to the California Penal Code § 502).

In July 2022, the media reported that the court admitted the complaint against NSO based on the: “creation and provision of the Pegasus program to third parties”, as well as for all those “actions and omissions” of the company that could be susceptible to “contribute voluntarily and consciously to the verification of the infection, access and extraction of information” from the devices. The complaint and relating judicial documents are expected to be served on NSO’s domicile in Israel through rogatory letters transmitted by diplomatic channels.  

Other Catalan separatist leaders, who too allege that their mobile devices have been infected with Pegasus, have reportedly filed similar criminal complaints. Apparently, the different competent criminal courts are reluctant to join the proceedings. The separatists claim they were victims of a massive illegal espionage scheme, known in the media as the “Catalangate”, conceived to counter the Catalan independentist aspirations. They relied on a technical report on Pegasus’ capabilities and operational aspects prepared by a Canadian university that placed the blame of the alleged unlawful surveillance on the Spanish central government: “We also judge it unlikely that a non-Spanish Pegasus customer would undertake such extensive targeting within Spain…”.

The same report deduced that Spain’s CNI and Spain’s Ministry of Interior were Pegasus’ customers. For its part, the Spanish government assured that the CNI performs all its functions under the rule of law. They underscored that the selection of individuals for secret surveillance as well as the methods for carrying it out are subject to prior judicial approval by a special magistrate of the Spanish Supreme Tribunal (ST) in accordance with Organic Law 2/2002 (Sole article). The magistrate’s decisions are naturally classified.

The explanatory report (“exposición de motivos”) appended to that law explains that the government can only restrict the right of an individual to privacy when confronted with national security threats. Law 11/2002 also speaks of “threat or aggression against the independence or territorial integrity of Spain” (bold added).

It is unlikely that these criminal proceedings in Spain will get to the trial stage. It is surprising that the court did not reject that complaint “in limine” on its own motion. The acts performed by CNI directors as such are fundamentally non-justiciable and classified. The doctrine of political question (“acto político”) is applicable in civil law countries. In fact, the ST recently applied it to dismiss a criminal action.[1] It is intriguing to know what view did take the prosecutor on this.

While the CNI selects the persons for secret surveillance and the methods for carrying it out, intelligence policies and objectives are defined by the central government in an annual document called “Intelligence Directive” which will be classified (Article 3 Law 11/2002).

It must be said here again that NSO does not operate Pegasus, states themselves do so in the exercise of their sovereign powers. For the sake of brevity, I refer to the arguments on this specific issue set forth when discussing the WhatsApp V NSO case above.

Under the circumstances, it would be illogical and biased if the Spanish court dismisses the complaint against the former CNI director while it decides to proceed against NSO only.

Pre-sale human rights due diligence

In conducting its pre-sale human right due diligence, NSO most probably considered that Spain is an EU and NATO member, and a democratic country by all standards. Spain’s intelligence laws, namely Law 11/2002 and Organic Law 2/2002, although not perfect, conform to modern legislations patterns.

Organic Law 2/2002 expressly provides, as discussed, that any measure involving secret interception of electronic communications of an individual requires prior approval by the ST. The CNI’s requests for approval must contain a reasoned opinion as to the necessity and proportionality of the targeted interception.

Law 11/2002, for its part, provided for the establishment of a parliamentary commission with powers to oversee the CNI’s activities and examine relating classified documents, with a few named exceptions as for example the materials obtained from foreign intelligence agencies (Article 11). This commission was convened after the “Catalangate” with parliamentarians from Catalan and Basque secessionist political parties in attendance.

Nothing prevents those individuals who were victim of alleged unlawful interception (or those who have reasons to believe that they were) from submitting their case to that Commission but this can only take note of the situation without having any power to order any remedy or reparation for the injury caused (which is logical given the principle of separation of powers). My recommendation for the Spanish government would be to establish an independent commission with judicial office to provide adequate redress to potential victims’ complaints, in the fashion, for example, of the G-10 Commission in Germany.[2]

For its part, Organic Law 2/2002 also provides for (i) time limits for the duration of secret measures of surveillance, normally three months that can be renewed with the approval by the ST and (ii) the destruction of gathered data that is considered irrelevant for the required purposes.

After considering the political climate in Spain and these statute provisions, NSO surely concluded that (1) overall, the latter provided adequate safeguards to prevent abuses of power in detriment of the right of individuals to privacy and (2) the risks of potential misuse of its technology were low.

This case shows how a proper pre-sale human rights due diligence may become an effective defensive shield in court.

A potential move to the ECtHR

If these criminal actions are ultimately dismissed in their entirety (and local judicial remedies are exhausted), complainants can move to the ECtHR and attempt to blame Spain for breaching its positive obligations to protect the right of individuals to private life under Article 8 ECHR. Perhaps this is the ultimate intention of complainants as part of their efforts to internationalize the Catalan independence cause and expose Spain as a country that does care about human rights.  

However, as a matter of iron principle, the ECtHR consistently recognized that member states may restrict the right of individuals to privacy under Article 8 in the interest of national security. To this end, the ECtHR has laid down the safeguards that democratic states must observe when conducting lawful cyber intelligence operations.[3]

The ECtHR’s scope of review in these cases is quite narrow though. The ECtHR cannot and will not look into the merits and property of the alleged specific secret measures of surveillance raised in the complaint. The ECtHR in the first place will likely uphold that states can conduct secret surveillance for legitimate intelligence purposes.

Then the ECtHR will probably undertake a thorough examination of Spanish law in abstract and decide whether this provides adequate safeguards to prevent abuses of power in detriment to the right of individuals to privacy. This is to determine “the quality of the law” in the court’s own words. On this basis, the court normally decides whether a member state is complying with Article 8.

Under the circumstances, even if Spain is found in violation of Article 8, which seems unlikely in my view, the ECtHR’s judgment will have little practical effects beyond attracting media attention and reputational consequences. Complainants can also obtain costs and damages provided they were requested in the original complaint. The Spanish central government will also be under certain pressure to address the matter in future legislative reforms in order to avoid new negative human rights rulings in future.

Complainants may also argue that Pegasus is extremely invasive and that states using it would therefore be in violation of Article 8. My view is that the ECtHR will be unimpressed by this argument. The court cannot but conclude that states themselves operate Pegasus technology in the exercise of their sovereign powers.

In the well-known and recent “Big Brother v United Kingdom” case, the ECtHR ruled that bulk data interception was compatible with Article 8.[4] Here the United Kingdom conducted massive data interception with the assistance of the powerful PRISM and UPSTREAM systems, which are designed and operated by the United States National Security Agency (NSA). This issue came to the public knowledge after Edward Snowden’s revelations about NSA’s activities.

Then the ECtHR found that British law, specifically the 2000 Regulation of Investigatory Powers Act (RIPA), lacked an “independent body” to pre-authorize bulk interception of data and lacked “end to end” safeguards to ensure that interferences with Convention rights were necessary and proportional. On this basis, the ECtHR held that “there has been a violation of Article 8 of the Convention …”.  The court granted costs to complainants. For many, from the perspective of complainants and data privacy advocates, this outcome before the ECtHR can be considered at best a Pyrrhic victory.

---

[1] Resolution (“auto”) of November 26, 2020. Second Chamber of the Supreme Tribunal. Case 20084/2020.

[2] ECtHR “Weber and Saravia v Germany” of 29 June 2006.

[3] For example, in situations of targeted interception “Weber and Saravia v Germany” of 29 June 2006; in situations of bulk interception “Big Brother Watch and Others v the United Kingdom” of 25 May 2021.

[4]  Big Brother Watch and Others v the United Kingdom, as in footnote 3.

US-Cuban Relations: Diplomacy with an Argentine Accent*

On Dec. 17, US President Obama and Cuban President Raul Castro announced the beginning of a process of normalizing diplomatic relations between their countries. The deal culminated 18 months of secret talks between the two countries under the Holy See’s good offices. Alan Gross, a US citizen and USAID’s worker detained in Cuba in 2009, was released and returned home to the US in a prisoner swap for three Cuban citizens detained in the US. Pope Francis’ personal involvement was instrumental in bringing the parties together and brokering the deal.[1]

In Jan. 2014 US Secretary of State John Kerry visited Vatican Secretary of State Archbishop Pietro Parolin and asked the Vatican to intercede for Alan Gross’s release on humanitarian grounds.  Following the meeting Kerry stated to the press “We talked about Cuba and the need to respect freedom of religion and respect for human rights. I raised the issue of Alan Gross and his captivity and we hope to be able to receive assistance with respect to that issue”.

In Jan. 2011, a Cuban court sentenced Gross to 15 years in prison having found him guilty of a crime against the Cuban state for bringing satellite internet equipment to Jewish communities in Cuba without the permit required under Cuban law. US-based Jewish groups have long been advocating for Gross’ release.[2]

Over 50 years ago, on Jan. 3, 1961, the US, in the last days of the Eisenhower administration, broke off diplomatic relations with Cuba. Tensions between the US and Cuba had been on the rise since Fidel Castro came to power in an armed revolt that overthrew dictator Fulgencio Batista in 1959.  John F. Kennedy inaugurated his presidency on Jan. 20, 1961. Shortly after, on Apr. 17, 1961, a militia of 1,400 Cuban exiles with the CIA’s support launched what became a botched invasion at Bay of Pigs on the south coast of Cuba. After this act of aggression, Castro did not wait long to show his commitment to communist ideology and seek military and financial support from the Soviet Union.

Under these critical circumstances, Kennedy secretly entrusted his friend and then Argentine President Arturo Frondizi with the mission of opening private channels of communication with Cuba’s authorities and mediating with them. It was a last-ditch diplomatic effort to reach an understanding between the US and Cuba and, failing that, find a formula to produce unity among hemispheric countries to give a forceful response to Castro and the threat of Soviet penetration in the hemisphere.[3]  A brief reference to this little known episode of shuttle diplomacy in the hemisphere would provide fresh insight into the matter of the US-Cuban relations.

Punta del Este I

In Aug. 1961, delegates from the American countries convened in Punta del Este (Uruguay) for discussing Kennedy’s Alliance for Progress. Among them was Ernesto “Che” Guevara in his capacity as minister of industry of Cuba.[4] Argentine and Brazilian diplomats endeavored to force an encounter between Ernesto “Che” Guevara and Kennedy’s special envoy Richard Goodwing. Both Guevara and Goodwing were guests to a reception hosted by the Brazilian delegate to the Latin American Free Trade Area (ALALC) in his residence in Montevideo. At a certain point, someone on behalf of Guevara handed to Goodwing a box of fine Cuban cigars (Goodwing was known to be a fan of them). Goodwing nodded his head sympathetically at Guevara. Next they were invited to an adjacent room where they could talk more privately. They accepted. The talk started in the wee hours of the morning of Aug. 17 and stretched for long hours, two high-ranking diplomats, one Argentine and the other Brazilian, were present as witnesses and interpreters.[5]

Guevara frankly told Goodwing that the Cuban revolution was facing major obstacles. Economic development was simply non-sustainable. Factories and industrial facilities naturally looked to the US for resources, especially technology and spare parts, and at times the shortage of them was making things very critical. The low level of hard currency reserves and absence of foreign finance made extremely difficult to import consumer goods. In sum, Guevara was well aware that the Cuban Revolution was failing to meet the basic needs of the people.

Guevara noted that an explicit understanding with the US would not be possible at the time, but he pledged himself to consider a particular status quo for Cuba which would include:

• Expropriated properties owned by US citizens or US corporations would not be given back to them but some sort of monetary compensation –though symbolic– would be paid to them instead

• Cuba would refrain from exporting its revolution to the rest of the countries in the hemisphere

• Cuba would refrain from making any political or military alliance with the East, in particular the Soviet Union and the Warsaw Pact

On the same day, just a few hours after that meeting ended, a small private airplane was standing by in the Montevideo Airport to take Guevara to Buenos Aires for a secret meeting with President Frondizi. They had a three-hour conversation that ended before noon. Guevara this time was even more explicit than with Goodwing. According to Guevara, there was no possibility of economic development for Cuba by embracing a closer relation with the Soviet Union and its satellites. The Soviet Union was definitively incapable of providing the financial resources and updated technologies that Cuba badly needed. Guevara admitted that he had barely obtained Soviet support to build a very modest steel manufacturing plant in Cuba. Economically speaking, the Soviet Union appeared only interested in the production of Cuban sugar.[6] It was evident that Cuba was undergoing severe economic stress and it was possible that other Cuba’s regime leaders were even more anxious for an accommodation with the US. Guevara said that he wished Cuba to remain within the Organization of American States (OAS) and agreed with Frondizi on the need for opening private channels of communication with the US for that purpose. [7]

Guevara, despite his overgrown beard and wearing green fatigues, was a pragmatic man. He is now an icon. He used to play to the gallery but in private was a down-to-earth man. Frondizi sensed that the issue of the Soviet Union’s role in the Cuban revolution meant an incipient but widening line of disagreement between Guevara and Fidel Castro. Guevara, no doubt, made many mistakes and held radical views but he had a courage that Fidel did not. Fidel, in fact, did not hesitate to get rid of Guevara when the latter gave signs of frustration by the meager changes that the revolution brought about for the Cuban people. Guevara had become a major threat for the regime. In 1965 Guevara left Cuba to export the revolution to dangerous territories where his death was but inevitable.

Implications of the Goodwing – Guevara meeting

In the months following the Goodwing-Guevara meeting, Argentine and Brazilian diplomats, with Kennedy’s knowledge, made every effort to maintain Cuba within the inter-American system. They even considered a “neutralization” of Cuba modelled on Finland’s special relationship with the Soviet Union during the Cold War.[8] A relationship of this kind, often called “finlandization”, describes a situation where one powerful country strongly influences a smaller neighboring country, while allowing the latter to keep its independence and own political system. There the tacit understanding was that Finland would not challenge its powerful Soviet neighbor and, in exchange, would keep its independence and sovereignty.

Despite these conciliatory efforts, Castro moved ahead with his policy of self-exclusion from the inter-American system while clearly leaning towards the Soviet Union. Tension continued to escalate in the region. Colombia, Peru and Guatemala considered that the Soviet penetration in Cuba qualified as an “aggression of extra-continental powers” under the Inter American Treaty of Reciprocal Assistance (TIAR or Rio Pact).

On this basis, on Nov. 9, 1961, Colombia requested a meeting of the “Meeting of Consultation of Foreign Ministers” of the OAS to adopt appropriate measures to maintain peace and security in the hemisphere. Behind Colombia’s request was an intention to sanction Cuba and expel it from the OAS forthwith. By that time, unfortunately, chances of reaching an understanding between the US and Cuba were reduced to nil. Castro took full control of Cuba’s foreign policy affairs whilst Guevara had been sidelined.

On Dec. 4, 1961, the Permanent Council of the OAS granted that Colombia’s request and directed that the Meeting of Consultation of Foreign Ministers would convene on Jan. 10, 1962 (later postponed for Jan. 21) in Punta del Este (“Punta del Este II”). The setting of the date for the meeting prompted a new round of frantic negotiations and filibustering.

The TIAR was signed in 1947. TIAR’s central principle, contained in its Article 3.1, is that an armed attack or threat of aggression against any member state in the hemisphere will be treated as an attack against them all. Similar to NATO Treaty’s Article 5, TIAR was meant to provide for a collective defense mechanism to deter a Soviet aggression.

By its part, the OAS is a Pan-American intergovernmental organization founded in 1948 for purposes of regional cooperation and solidarity among its member states. Article 65 of the OAS Charter provides that said Meeting of Consultation of Foreign Ministers of the OAS will also function as TIAR’s organ of consultation. This organ of consultation takes its decisions by a vote of two-thirds of its members (Article 17 of TIAR). Very importantly, unlike the UN Charter, the OAS’ explicitly requires that the political organization of its member states be based on the effective exercise of “representative democracy”.

Kennedy and Frondizi met in Palm Beach

On Dec. 6, 1961 Kennedy invited Frondizi for urgent talks in view of finding common ground for the upcoming meeting of OAS foreign ministers. A bloc of large Latin American countries –including Brazil, Mexico and Chile– were known to stand close to Argentina’s position.

Kennedy’s invitation found Frondizi in the course of a long presidential trip to many countries in Asia and the Far East. After his last scheduled state visit, to Japan’s Emperor Hirohito, the Argentine presidential aircraft headed towards the US and landed in New Orleans on Dec. 24, 1961. There was standing by the Air Force 1 to take Frondizi and a few of his advisers to Palm Beach, Florida. Kennedy and Frondizi met in the former’s residence in that location and conferred alone for almost 2 hours (only an Argentine diplomat acting as interpreter was with them).[9]

Kennedy explained Frondizi that the Cuban issue had become a focal point of debate for the US public opinion and media. Kennedy made clear that an OAS’ failure to give a forceful response to Castro would entail grave consequences for the future of his democrat administration. Frondizi replied that he, too, was subject to internal pressures, actually a far-right faction of the Argentine army was conspiring to overthrow him since he met Guevara on Aug. 17. Frondizi voiced his deep dissatisfaction to Kennedy (i) for the CIA-sponsored invasion at Bay of Pigs and (ii) for not having prevented that Colombia’s haste request for the meeting of OAS foreign ministers –which had the potential of precipitating the split of the inter-American system and the outbreak of the Cold War in the hemisphere. Kennedy assured Frondizi that he had no involvement in Colombia’s request, but once this request had been made his administration had no option but to endorse it for the sake of not being seen as endorsing Castro.[10]

Kennedy and Frondizi were nonetheless able to agree on two basic points (1) the communist regime, characterized by a single political party, as embraced by Cuba, was incompatible with the tenet of representative democracy prescribed by the OAS Charter and (2) the Soviet penetration in Cuba posed a threat for peace and security in the entire hemisphere. But Frondizi relied on a sound legal opinion upholding that the meeting of OAS foreign ministers did not have powers to expel Cuba from that organization. The OAS Charter did not in fact provide for any mechanisms for expulsion. Then Frondizi’s formula to move forward was to amend the OAS Charter by empowering the OAS General Assembly to expel member states, and then consider Cuba’s exclusion by subsequent action of the same organ. Kennedy seemed amenable to Frondizi’s formula inasmuch as it would secure Cuba’s exclusion from the OAS by a unanimous (or a broad consensus) vote of the hemispheric countries.[11]

Punta del Este II

The meeting of OAS foreign ministers convened on Jan. 21, 1962, in Punta del Este.[12] Colombia, as expected, pushed for a decision seeking (i) to condemn Cuba for embracing communism and calling the Soviet Union for financial and military support (ii) to sanction Cuba and expel it from the OAS forthwith. Peru and a number of small Central American countries supported Colombia’s stance. On the other hand, Argentina, Brazil, Chile, Ecuador, Mexico, and Uruguay were ready to endorse a strong political declaration on the incompatibility of Cuba’s regime with OAS democratic principles, but were against Cuba’s outright expulsion from the OAS on the basis of the legal obstacles raised by Frondizi in that meeting with Kennedy in Palm Beach.

Kennedy was startled about Colombia’s hard line stance. Even if a decision like that pushed for Colombia obtained the two-thirds of the votes (as required by Article 17 TIAR), the negative vote, or the abstention, by that six-country bloc led by Argentina would be devastating for the unity of the hemispheric system and for his Alliance of Progress. On Jan. 30, Secretary of State Dean Rusk from Punta del Este wrote to Kennedy in a secret diplomatic cable:

“Colombia is leading Central American and rightist LA group but Colombian Foreign Minister is taking exceedingly stubborn position that this meeting must make executive decision to exclude Cuba from OAS now. Colombian FM is making no effort to find formula to produce unity on this point…”[13]

A few hours later, Kennedy telephoned Colombian President Lleras Camargo in an attempt to moderate his views and reach a resolution with the broadest possible support. Another secret cable reports that Kennedy said Lleras Camargo on the telephone as follows:

“I feel an agreement on incompatibility of Cuba with principles of OAS, exclusion of Cuba from Inter-American Defense Board and establishment special watch dog committee plus agreement in principle appropriate steps to be taken to exclude Cuba from OAS would add up to successful conference”.[14]

Kennedy and Rusk apparently were striving to implement the understanding reached with Frondizi in Palm Beach. Colombia’s position, however, remained inflexible. Said Kennedy’s telephone call did not help much to change Lleras Camargo’s mind. On Jan. 31, a group of ministers submitted a draft decision consisting of nine resolutions. Among them, “Resolution VI” directed (i) the exclusion of the Cuban government from participating in the OAS (ii) ordered that this exclusion would be implemented “without delay”. Put to vote, Resolution VI obtained the required two-third majority thanks to Haiti’s last-minute change of position and vote in favor of it (apparently in exchange for an unclear promise of receiving some important infrastructure investments). Mexico voted against it whilst Argentine, Brazil, Chile, Ecuador, and Uruguay abstained.

Many argue that Resolution VI did not technically deprive Cuba of OAS’ membership but rather prevented Cuba’s regime from participating in the organism. This was a legalistic distinction that retained little, if any, practical significance. Rusk, in vain, intended to present the defeat as a victory for the US public opinion. That resolution meant a serious blow for hemispheric unity and Cuba’s regime is still profiting from it.

Kennedy and Frondizi’s views on hemispheric issues

Argentina, led by President Frondizi, seemed to be the model for the Kennedy administration’s new Latin American policy. Elected in 1958 in part on the strength of his promises to accomplish the social goals of the Peronist movement while opening Argentina to foreign investment and capitalism.[15] Kennedy, soon after took office, sought informal consultations with Frondizi on the shaping and implementation of the Alliance for Progress (AP) across the hemisphere.

As part of these efforts, President Frondizi sought a much closer relation with Brazil with the aim of establishing a geostrategic Buenos Aires-Sao Paulo corridor that would create a new regional power and facilitate the dialogue with Kennedy’s administration.[16]

Frondizi’s view was that the AP’s initial efforts and financial resources should be focused on the establishment and development of basic industries and services. Industrialization across the continent was the first step towards a greater and equitably shared prosperity. Traditional foreign aid –solely focused on social services infrastructure like schools, hospitals and health care, sewage, waste disposal– in many cases had served but to accentuate poverty and corruption in developing countries. In other words, industrialization should come first and social services infrastructure would then come about as well.[18] Frondizi warned Kennedy that economic development would also be most effective to deter the rise of incipient leftist guerrilla movements throughout the continent.

Kennedy and Frondizi met twice, firstly on Sep. 26, 1961 in New York and then on Dec. 24, 1961 in Palm Beach. Most of their correspondence regarding the Cuban issue was channeled through a private contact provided by Kennedy, outside normal diplomatic channels and the Department of State.[19] In Palm Beach, as discussed already, they worked together towards developing a formula to produce unity among OAS states and give a forceful response to Cuba’s regime and the threat of Soviet penetration of the hemisphere. But Kennedy did not have full grip of all the levers of state power. In Oct. 1962, only eight months after Cuba was expelled from the OAS, the Soviet Union intended to plant strategic nuclear missiles in Cuba giving place to the “Cuba Missile Crisis”, which was history’s most dangerous crisis. A divided hemispheric system encouraged Khrushchev and Castro to defy the US and spread the Cold War throughout the hemisphere. The US has been the greatest economic and military power since the Roman Empire, yet Americans have shown themselves unable to match Romans’ ability to forge alliances and build consensus with foreign peoples and groups.

…

Current state of affairs in the matter: the Castros, Obama, Pope Francis, and the Internet  

The Soviet Union collapsed. The Cold War is long over. Cuba has lost its geopolitical importance. Fidel Castro’s regime –which once was capable of supplying military and financial aid to various leftist guerrilla movements in Latin America and Africa– is almost broke. Venezuela, badly hurt by Chavez’s death and plummeting oil prices, cannot longer afford to bail Cuba out. Promoting respect for human rights and democratic change for 11 million Cubans, however, matters.

Cuba continues to be an implacable dictatorship today. Fidel kept himself in power until age and strength permitted. In 2008, he chose his brother Raul to succeed him. Cuba’s regime is far from meeting the prescribed democratic criteria of the OAS Charter. A detailed analysis of Mr. Alan Gross’ trial and ensuing conviction would be outside the scope of this reference. It can be said, however, that the installation of satellite internet equipment can only be defined as a crime against a state when you are in a country ruled by tyrants and oppressors.

For long decades, the US-Cuba disagreement developed against the background of the Cold War. Fidel Castro and Khrushchev brought the Cold War to the region, it is true, but the US policy of endorsing far right dictators in various Latin American countries only made things worse and largely contributed to the dynamic of conflict.

Today a considerable part of the international community (in particular in Latin America and Western Europe) remains sympathetic to the Castros in large part because Fidel rose to power in open antagonism towards the US and they managed to keep power in the island despite US embargo and sanctions.

Much of that sympathy, however, has been based on symbols and stereotypes that distort reality. For over fifty years, media sectors gave broad coverage to the Castros and portrayed them as a kind of epic heroes standing up for the oppressed of Latin America against the Yankee imperialist. It is about time to undo this. The Castros are ruthless tyrants struggling not to lose one inch of their complete and oppressive power over Cuba’s citizens.

Pope Francis’ good offices

Pope Francis, when he was Jorge Mario Bergoglio, a Jesuit leader, happened to be a first-hand witness to Argentina’s Cold War-related conflict that began in the early 1970s, known as the “Dirty War” (“Guerra Sucia”). There the military dictatorship implemented a systematic policy of abductions, torture and death of leftist dissidents (“desaparecidos”) that shocked the conscience of the world. Pope Francis, not surprisingly, is interested in building bridges between the US and Cuba and healing the wounds of the Cold War across the hemisphere. John Paul II chose Bergoglio to accompany him in his pastoral visit to Cuba in 1998. A few months later, John Paul appointed Bergoglio as Archbishop of Buenos Aires, and two years later would appoint him as a Cardinal, no doubt John Paul had kept an eye on him.

The Argentine pontiff knows that the Cuban issue has been a lingering obstacle to integration and progress in the hemisphere. He made a bold move in accepting Kerry’s request to intercede for Gross’ release on humanitarian grounds. His predecessor Benedict XVI had undertaken a similar assignment during his March 2012 visit to Cuba, where he raised the matter of Gross’ release both with Fidel and Raul separately with no success.[2o] The Castros snubbed Benedict’s humanitarian request and, in turn, Benedict snubbed Cuba’s dissidents by failing to meet them because of his “tight schedule”.

But Pope Francis’ approach to Gross’ issue was radically different. Francis has the charisma, mental vigor, knowledge of the region, and commitment to human freedom and world peace that his aged German predecessor did not. The Holy See hosted seven meetings between US and Cuban diplomats in the course of the secret negotiations. A senior US official said Time: “the appeal from Pope Francis was very rare and unprecedented… Pope Francis personally issued an appeal in a letter that he sent to President Obama and to President Raul Castro calling on them to resolve the case of Alan Gross and the cases of the three Cubans who have been imprisoned here in the United States and also encouraging the United States and Cuba to pursue a closer relationship”.[21]

And Pope Francis will continue giving his support to the ongoing US-Cuba talks: “… the Holy See will continue to assure its support for initiatives which both nations will undertake to strengthen their bilateral relations and promote the well-being of their respective citizens”.[22]

US priorities in establishing relations with communist regimes

In the past the US has established full diplomatic relations with communist regimes not characterized for their respect for human rights. In 1933 President Roosevelt moved to recognize and establish diplomatic relations with the Soviet Union. Roosevelt had two main reasons for that decision: the recognition of the Soviet Union would serve to deter Japanese expansionism in Asia, and the Soviet economic activity would provide new opportunities to US businesses straggling with the effects of the Great Depression.

Another notable example is China in 1972. There President Nixon sought a rapprochement with Beijing for the sake of geopolitical interests, and the ensuing cooling of relations between Beijing and Moscow was instrumental for the collapse of the Soviet Union. The US also opened diplomatic relations with Vietnam, a country with a much worse human rights record than Cuba.

Based on the foregoing, many argue that the US should establish relations with Cuba as well. For them, the US cannot hold hypocritical double standards when it comes to establishing diplomatic relations with foreign powers. This reasoning, however, is not persuasive. It is not a matter of double standard. It is a matter of pragmatism. China, Vietnam and Cuba represent very different realities and interests for the US.

Obama and Kerry are to be praised for seeking Gross’ release. But they cannot disregard the influential voice of Cuban-Americans across Florida and other states of the Union. The large majority of them, naturally, wants to see Raul Castro’s commitment to respect human rights and bring about credible democratic changes for Cuba’s citizens before moving ahead with additional political and economic concessions.

Obama’s new Cuban policy and the Internet

Obama placed the matter of expanding Internet access on the island at the core of his new Cuban policy.[23] Cuba has an Internet penetration of about five percent –one of the lowest rates in the world. The cost of telecommunications in Cuba is exorbitantly high, while the services offered are extremely limited. Obama will ease the embargo in this economic sector. As a result, US telecommunication providers will be allowed to establish the necessary mechanisms, and infrastructure, in Cuba to provide commercial telecommunications and internet services.[24]

A Raul Castro’s positive and credible response to Obama’s intention of helping Cuba to improve telecommunications infrastructure and expand unrestricted internet access on the island would be the litmus test that the regime is prepared to make any significant concessions on fundamental freedoms and democratic change.

Andres Oppenheimer, a Miami Herald’s noted columnist, said that the biggest test to the US-Cuban talks will not be whether the parties will agree on opening embassies in their respective capitals nor whether there will be an avalanche of US tourists to the island, but whether Cuba will accept that US help to expand internet access on the island. However he is skeptical that the Castros will allow that internet access expansion to happen.[25]

That scepticism is well founded. Expanding unrestricted internet access on the island poses a threat to the regime. Today the Web enables everyone on the planet to participate in a free flow of knowledge, ideas, collaboration and creativity. It is essential to education, development, empowerment, and the protection of individual rights. It must be nurtured and protected, not restricted. Libertarian movements linked to the Arab Spring were started by individuals connecting to one another through Twitter (though many of these movements were later overtaken by radical factions).

In addition, Oppenheimer quoted a reputed Brazilian political analyst who said that Cuba’s regime is working out a list of economic sectors to be opened to foreign investments which includes tourism, oil, renewable energy, biotech, and food, however the sector concerning telecommunication infrastructures to expand internet access on the island does not appear in that list.[26] What’s more, Raul Castro, on his announcement of Dec. 17, did not even mentioned the word “Internet”.

The Castros deny unrestricted internet access to 95 percent of Cubans and blame the US embargo for that. And Obama takes the blame: “Unfortunately, our sanctions on Cuba have denied Cubans access to technology that has empowered individuals around the globe”.[27] This statement if anything epitomizes Obama’s broken and pusillanimous foreign policy. That low rate of internet penetration on the island is consequence of the Castros’ deliberate policy of restricting internet access to most Cubans.

The US embargo is not the cause of the catastrophic state of Cuba’s economy. After all, Cuba has no restrictions to trade with the rest of the world and receives nearly three million tourists per year, mainly from Canada and Western Europe. Mismanagement and the fact that “command economy” models does not work lie at the root of Cuba’s economic misery. Despite the existence of the embargo, the US is Cuba’s sixth-largest trading partner and biggest food supplier.

The US embargo does not render Cuba’s regime a respectable government either, nor does it provide an exemption to violate the most basic human rights of the Cuban people with blatant impunity. Unfortunately the OAS’ General Assembly readmitted Cuba in 2009 without taking into consideration the human rights situation in the island, let alone assessing whether the regime met the criteria of a representative democracy required by the OAS’ Charter (AG/Res 2483/09).

Obama and Raul Castro are due to meet in the upcoming Summit of the Americas, in April in Panama. Carlos Gutierrez, a Cuban born and Secretary of Commerce in the Bush Administration, said Time: “… Raúl Castro will be the man of the hour. President Obama will be comfortable, with the Latinos cheering him on, but the real test really happens after the summit, and the standing of the U.S. in the hemisphere after the U.S. has given so many concessions and not received anything in return”.[27]

Gutierrez’s remarks are in place. So far Cuba’s regime has only released Alan Gross, who was wrongly imprisoned by all standards of international criminal law, and other 53 political detainees serving long-term sentences. This was not too costly for the regime which seems to be relying less on long-term sentences to punish political dissent and more on arbitrary detentions and short-term imprisonment. Human Rights Watch (HRW) reports an astonishing number of 3,600 arbitrary detentions in 2013 compared to approximately 2,100 in 2010.[29]

Obama focused the negotiations on expanding internet access on the island rather than regime change. All the evidence suggests, however, that the Castros will continue to snub every US demand conducive to expanding  internet connection or promoting other basic freedoms in the island. The Castros expect to advance the bilateral talks on the basis of US unilateral concessions. In the meantime they will gladly use the cash generated from the US relaxations of travel restrictions and remittances to the island to ensure the continuation of their regime. That cash will help to make up for Venezuela’s sudden inability to continue funding the island’s beleaguered economy. Raul Castro urges Obama to preempt embargo with executive action but gives nothing in return. This is the Castros’ new approach to the issue. And many fear that Obama, in view of his foreign policy precedents, will capitulate to them.

By way of conclusion

In 1961 President Kennedy entrusted Argentine President Frondizi with the mission to mediate with Cuba’s leadership, in a last-ditch effort to prevent the split of the hemispheric system and the outbreak of the Cold War in the hemisphere.

Over 50 years later, the Argentine pontiff is committed to supporting the ongoing diplomatic effort seeking the normalization of bilateral diplomatic relations between the US and Cuba and the healing of the wounds of the Cold War across the hemisphere.

It appears that Pope Francis is more committed to influence the Castros to make internet and other freedom concessions than Obama himself. But Pope Francis will not favour the entry of savage capitalism in the island either. The sort of capitalism that followed up the Soviet Union’s collapse is blatantly inequitable and only serves to widen the gap between the rich and the poor.

It is about time for the US to resolve the Cuban issue and start a new brilliant era for hemispheric relations, which should include a re-foundation of the OAS and its tenet of representative democracy for the hemispheric countries.

But, unless a miracle, or some kind of divine intervention in human affairs, the Castros are not prepared to relinquish one inch of their complete and oppressive power over the Cuban people. The stakes are very high however. It will be intriguing to see how Obama, Raul Castro and Pope Francis interact with one another and how the talks develop in the short and long term. For sure Pope Francis is not there to appease the Castros. Pope Francis has become a respected and influential world leader and the Castros will not probably dare to snub him.

Photograph: President Kennedy and President Frondizi (seated in the center) in Palm Beach on Dec. 24, 1961

* In preparing this reference, I cannot but mention Prof. Emilia Edda Menotti who taught me Argentine history when I was a student in the final year of high school (bachillerato) in Buenos Aires. She is President of the Sociedad Bolivariana Argentina, a non-profit organization founded in 1942 and committed to promoting Simon Bolivar’s tenets of liberal democracy and integration across the Western Hemisphere, from the United States to Tierra del Fuego, on the basis of the principles laid down in the Congress of Panama in 1826. Prof. Menotti is to be commended for her commitment to excellence, justice, austerity, democracy and ethical values. She is a prominent Argentine historian and was a close aide to former Argentine President Dr. Arturo Frondizi for many years, before, during and after his presidency, in fact until his death. She wrote extensively on the life and public work of Dr. Frondizi. In the early 1990s Prof. Menotti gave me an opportunity to assist Dr. Frondizi in the task of cataloguing his extensive work files and personal library in the Buenos Aires-based Centro de Estudios Nacionales (CEN), where I had the privilege of knowing better this notable man and his work, in particular in foreign affairs matters. Prof. Menotti’s hard work inspired me to prepare this paper. I must say, however, that any omission, inaccuracy or mistake is of my exclusive responsibility.

[1] Jorge Mario Bergoglio was born in Buenos Aires on Dec. 17, 1936. His parents were Italian immigrants from Asti, Piedmont, Italy. He is very fond of his Italian roots and culture. When he was a child, his family used to gather every Saturday to listen to an Italian opera radio audition and her mother would explain him the vocabulary and plot of each opera. Vatican specialists say that his Italian ancestry smoothed his appointment as Pope. He led the Jesuit order in Argentina. In addition to the US-Cuba issue, in 2012 Pope Francis acted decisively to prevent an imminent aerial attack of western countries led by the US on Syria’s regime. In June 2014 he called Israeli President Shimon Peres and Palestine Authority President Mahmoud Abbas to Rome to pray for peace in the Middle East.

[2] The Times of Israel, Dec. 19, 2014, please see on http://www.timesofisrael.com/pope-benedict-helped-free-alan-gross-from-cuba/

[3] Arturo Frondizi was born in Paso de los Libres, Argentina, on Oct. 30, 1908. His parents were Italian immigrants from Gubbio, Umbria, Italy. Her mother was a fervent Roman Catholic whilst his father taught him the tenets of secularism that permeated the Italian “Risorgimento” and the Italian Unification in the 19th century. He was a soccer player and obtained a degree as a lawyer from the Universidad de Buenos Aires. He was Argentine President from 1958 to 1962, when he was ousted by a military cop d’etat (in 1958 he won presidential elections for a 6-year period and was therefore due to be in office until 1964). He died in 1994. Frondizi, both in domestic and foreign affairs, always stood up for the observance of human rights and the rule of law. In addition to Kennedy, Frondizi cultivated fruitful relations with other world leaders at the time, including Pope John XXIII, Japanese Emperor Hirohito, Charles De Gaulle, and Konrad Adenauer. He laid the foundations for the creation of Mercosur. Though an internationalist, Frondizi was very jealous of Argentine self-determination and did not hesitate to open profitable trade relations with the Soviet Union and China. He was a key player in the negotiation and conclusion of the Antarctic Treaty in 1959 which in practice meant the first ever arm control mechanism agreed upon by the US and the Soviet Union.  During his presidency, Israeli agents kidnapped Nazi leader Adolf Eichmann in Buenos Aires and smuggled him to Israel to stand trial for war crimes and crimes against humanity committed during WWII. Frondizi addressed a diplomatic complaint to Israel for that violation of Argentine sovereignty and took the case to the UNSC, which adopted a resolution urging Israel to provide “appropriate reparation” to Argentina (UNSC Resolution 138/1960). Israel offered its apologies to Argentina and Argentina accepted them and the parties declared the matter closed. Argentina did not request the return of Eichmann back to its territory. That  understanding between the two countries was embodied in a joint declaration which later proved to be crucial for upholding the legality of Eichmann trial in Israel. It is known that Argentina during Peron’s presidency gave shelter to numerous Nazi war criminals and Frondizi was most interested to change that image of his country.

[4] Ernesto Guevara de la Serna was born on June 14, 1928 in Rosario, Argentina. He was of an Irish-Spanish ancestry. His father, during the Spanish Civil War, created a committee to give support to Republican fighters and welcomed many of them to his house. He was a rugby player and obtained a degree as a physician from the University of Buenos Aires. He had a reputation as an adventurer and travelled through Argentina and Latin America with an old bike. He joined the Cuban insurgency in 1956 and was instrumental for Fidel Castro to seize power. In 1965 he left Cuba to promote the revolution in Africa and then throughout Latin America. He was killed in Bolivia in 1967 when he was in charge of a small insurgent militia in that country.

[5] Goodwing submitted a secret memorandum on his meeting with Guevara to the Secretary of State, memorandum which has been declassified, please see Foreign Relations of the United States 1961-1962, Volume X Cuba. Department of State. Washington DC. For a different yet consistent source, please see Menotti, Emilia, “Arturo Frondizi” (Biografía de) Editorial Planeta Argentina, Buenos Aires 1998, pag. 304.

[6] Menotti, Emilia, “Arturo Frondizi”, … pag. 308

[7] Ibid, pag. 318

[8] Ibid, pag. 345

[9] Chicago Tribune, Dec. 25, 1961.

[10] Menotti, Emilia, “Arturo Frondizi” … , pag. 339 and ss.

[11] Ibid, pag. 346 and ss.

[12] Eight Meeting of Consultation of Ministers of Foreign Affairs – Serving as Organ of Consultation in Application of the Inter-American Treaty of Reciprocal Assistance.

[13] Foreign Relations of the United States 1961-1963, Volume XII American Republics. Documents 141-171. Released by the historian. Department of State. Washington DC.

[14] Ibid

[15] Ibid

[16] President Frondizi met Brazilian President Janio Quadros on Apr. 20, 1961. For details and implications of this meeting, please see Menotti, Emilia, “Arturo Frondizi” … , pag. 296 and ss.

[17] Ibid

[18] Ibid, pag. 302

[19] Ibid, pag. 342

[20] The Times of Israel, Dec. 19, 2014, please see on http://www.timesofisrael.com/pope-benedict-helped-free-alan-gross-from-cuba/

[21] Time Magazine –edition online– Dec. 17, 2014, please see on http://time.com/3637901/pope-francis-cuba-obama/

[22] Communique of the Vatican Secretariat of State dated Dec. 17, 2014, please see on http://press.vatican.va/content/salastampa/it/bollettino/pubblico/2014/12/17/0968/02096.html

[23] Statement by President Obama on Cuba Policy Changes, Dec. 17, 2104 please see on  http://www.whitehouse.gov/the-press-office/2014/12/17/statement-president-cuba-policy-changes

[24] Charting a new course on Cuba – the White House–, please see on http://www.whitehouse.gov/issues/foreign-policy/cuba

[25] Oppenheimer, Andres,  Biggest Test in U.S. Cuba Talks: the Internet, Jan. 31, 2015 –online edition–Miami Herald, please see on http://www.miamiherald.com/news/local/news-columns-blogs/andres-oppenheimer/article8776940.html

[26] Ibid

[27] Statement by President Obama on Cuba Policy Changes, Dec. 17, 2104 please see on  http://www.whitehouse.gov/the-press-office/2014/12/17/statement-president-cuba-policy-changes

[28] Time Magazine –edition online– Jan. 27, 2015, Fidel Castro Sends Word He’s Alive – and Cautiously Optimistic about Talks with the U.S., please see on http://time.com/topic/cuba/

[29] HRW Global Report 2014: Cuba, please see on http://www.hrw.org/world-report/2014/country-chapters/cuba

A case of alleged tortures in Iraq before a Spanish military court and the International Criminal Court’s complementarity

A Spanish military court has recently indicted five Spanish soldiers for an alleged violation of the laws and customs of war. They are accused of torturing and mistreating two Iraqi fighters detained in Diwaniya, Iraq, in 2004. Torture is defined in Article 76 of the Spanish Military Penal Code and carries a penalty of 10-25 years imprisonment. The investigation appears to have been conducted in an expeditious manner, for the incident only came to light in March 2013 (because of the release of an amateur video in a major Spanish newspaper).[1]

This case has an important international dimension. It is about a possible crime committed in the frame of a multinational force and within the jurisdiction of the International Criminal Court (“ICC”). Spanish troops were deployed in Iraq in August 2003 as part of the US-led coalition forces agreed with the US and the UK. Spain was also given the command of troops from Honduras, El Salvador, Dominican Republic and Nicaragua.

There is no doubt whatsoever that (1) the possible crime was committed by military personnel in the course of an armed conflict and (2) the two Iraqi detainees were protected persons under the Four Geneva Conventions of 1949 and their Additional Protocols (“Geneva Conventions”). Even when those detainees did not satisfy the status of prisoner of war (POW), only applicable in international armed conflicts (“IACs”), they were entitled to the protections afforded by Common Article 3 of the Geneva Conventions, typically applicable in non-international armed conflicts (“NIACs”). In a situation of armed conflict – whether an IAC or a NIAC – no person shall be excluded from the minimum protections of international humanitarian law (“IHL”).

Grave breaches of the Geneva Convention are defined as “War crimes” under Article 8 (2) (a) of the Statute of the ICC (“Statute”). This Statute refers to torture in Article 8-2- (a) (ii) for IACs and Article 8-2- (c) (i) for NIACs. Iraq is not a signatory party to the ICC. The personal jurisdiction of the ICC over Spanish nationals is based on Article 12-2- (b) of the Statute.

However, paragraph 10 of the Preamble and Articles 1 and 17 of the Statute provide that the ICC’s jurisdiction is complementary to national criminal jurisdictions. The ICC’s role is not to substitute national criminal jurisdictions but to put an end to impunity for the perpetrators of crimes within the jurisdiction of the former. The ICC is a court of last resort. National criminal jurisdictions (including military courts) come first and the ICC second. This is precisely “complementarity”, which is a foundational tenet of the ICC.

We cannot establish if the Office of the Prosecutor of the ICC (OTP) has received any actual request to exercise jurisdiction over the Diwaniya incident as yet. If it has, in virtue of that tenet of complementarity, it should rule that the case is inadmissible, unless it determines that the Spanish judicial system is unwilling or unable genuinely to carry out the prosecution (Article 17 Statute).

The OTP shall rule that the case is inadmissible if all the following conditions are met: (i) the conduct and individuals submitted to the ICC are substantially the same as those under debate before the Spanish military court and therefore is the “same case” (ii) the Spanish proceeding is not intended for purposes of shielding the persons concerned from criminal liability, or in other words, it does not seek their impunity (iii) the Spanish judicial system provides guarantees of independence, impartiality and due process recognized under international law (iv) there was no unjustified delay in opening and conducting the investigation and there are reasons to believe that no unjustified delay will occur at the trial. In sum, the OTC shall defer to the Spanish military court if the former is reasonably satisfied that the second is conducting a “genuine criminal proceeding”. The indictment of the suspects seems a very important step in the right direction, and it is hoped that the trial will begin at the earliest possible date.

Another element that may come under the analysis of complementarity is the situation of total or partial collapse (or plain absence) of the judicial system of the State with jurisdiction over the case. However, for obvious reasons, this element requires no analysis in the case of Spain.

Admissibility under Article 17 also requires that the case be of sufficient gravity to justify further action by the ICC. This is to say that the admissibility’s analysis must satisfy both complementarity and gravity.

The prosecutorial strategy in what respects complementarity is to pursue “those most responsible for the most serious crimes” [Report Preliminary Examination Activities 2103, Office of the Prosecutor, November 2013 “Report” p. 3 para. 6]. In this sense, the Diwaniya incident appears an isolated episode of the five Spanish soldiers now under prosecution. Indeed it is difficult to figure out that the Spanish commanders in charge of operations in Iraq, or the upper echelons at the Ministry of Defense, could have promoted, consented or tolerated in any way isolated or systematic practices of torture.

Under present circumstances, it appears that the Spanish criminal proceeding underway satisfies the interest of justice and therefore the OTP would be slow to admit the case on the basis of complementarity, provided, once again, that it has received (or receives in future) any actual request to do so.

If, however, new facts or evidence give reasons to believe that the Spanish proceeding is no longer serving the interest of justice, for example by shielding the accused persons or by failing to guarantee them the right of due process recognized under international law, the ICC may, after thorough analysis, seize the case on the basis of complementarity. Indeed the ICC’s complementarity is like a sword of Damocles hanging over national criminal proceedings.

Requests for a ICC investigation can be made by:

1. Individuals, groups, intergovernmental organizations, and NGOs, in which case are called “Communications under Article 15 of the Statute”
2. State Parties to the ICC (Article 14 of the Statute)
3. The UNSC under Chapter VII of the UN Charter (Article 13 (b) of the Statute)
4. States Non-Parties to the ICC (Article 13-2 and 3 of the Statute),

Requests under numerals 2, 3 and 4 are called “referrals” and are quite unimaginable in this particular case.

Preliminary rulings regarding complementarity

The OTP will analize the information received by any of the means just discussed (of course the analisis will be different depending on the source of the information, it is not the same the information received from an individual than that received from the UNSC). When it is satisfied that the information is credible and relates to a possible crime within the jurisdiction of the ICC, it will begin a preliminary examination of the situation (at this stage the OTP will normally make a situation public and release a report on it).

On the basis of that preliminary examination, the OTP will decide whether to open a formal investigation [Report, p. 3 para. 1]. The elements to be considered in the course of the preliminary investigation are set forth in Article 53-1-2 of the Statute. The Prosecutor’s practice, as one may observe, establishes ​​a clear distinction between a “preliminary examination” and a “formal investigation”. The complementarity’s analysis should in most cases, although not always, take place in this preliminary examination.

To this end, the OTP shall notify all States Parties and those States which would normally exercise jurisdiction over a possible crime within the jurisdiction of the ICC (Article 18-1). These notifications are normally confidential. Within 30 days, a State may inform that it is investigating, or has investigated, their nationals or others under its jurisdiction in respect of that possible crime. At the request of that State, the OTP shall defer to that national investigation, unless the Pre-Trial Chamber of the ICC (Pre-Trial Chamber), at the request of the OTP, decides to authorize an investigation (Article 18-2).

The OTP’s deferral to a State’s investigation is always subject to review. The OTP may request that State to report regularly on the progress of its investigation (Article 18-5). The OTP may review the situation six months after the date of deferral or at any time when there has been a significant change in circumstances based on the State’s unwillingness or inability to carry out the investigation (Article 18-3).In this case, the ICC may admit the case on the basis of complementarity. This is precisely the sword of Damocles hanging over national criminal proceedings to which we referred above.

A decision by the Pre-Trial Chamber ruling that a case is admissible may be challenged by the State before the same Pre-Trial Chamber (Article 19-2-6) and even appealed before the Appeal Chamber of the ICC (Articles 19-4 and 82).

Antecedents of complaints before the ICC regarding alleged violations of IHL in Iraq

In January 2014, the NGO European Center for Constitutional and Human Rights (ECCHR) filed a communication under Article 15 with the OTP requesting the opening of an investigation into possible cases of torture and other war crimes committed by British troops in Iraq during the same period of time. According to that NGO, the criminal liability extends to the highest British military and civilian authorities at the time. Similar requests were not admitted in the past by the OTP then led by Luis Moreno Ocampo (an Argentine national in office until 2012). Moreno Ocampo considered that these possible crimes were not of the sufficient gravity to warrant further action by the ICC.

According to the NGO, the OTP, now led by Fatou Bensouda (a Gambian national), has decided to reopen preliminariy examinations into the matter. The NGO affirms that the British authorities have not conducted a genuine criminal investigation into the case and have showed no intention to do so and that, as a result, the ICC should seize the matter on the basis of complementarity [please see ECCHR’s website http://www.ecchr.de]. The re-opening of this situation may signal a change in the OTP’s position on admisibility in future. UN military missions and NATO do not have a military jurisdiction of their own, and criminal investigations into possible violations of IHL and crimes of war committed by their forces are primarily within the national jurisdiction of the State to which they belong.

Complementarity: cooperation or tension between the ICC and sovereign States?

The ICC is not conceived to exercise supervisory control over national criminal jurisdictions. However, whenever issues of complementarity arise, the OTP is bound to analyze the national criminal proceedings (if any at all) conducted by the State that would normally exercise jurisdiction over a possible crime within the jurisdiction of the ICC (those national proceedings may be underway or finished). Up to date, in most cases, the OTP´s evaluations of complementarity have been related to African judicial systems in total or partial collapse.

Indeed, the authorities of Uganda, Mali, Ivory Coast, Congo and Central African Republic themselves requested the intervention of the ICC due to their own inability to investigate and prosecute those suspected of crimes within the jurisdiction of the latter. In two other cases involving countries in the region, Sudan and Libya, the request for an investigation was referred by the Security Council.

However, as the ICC investigations continue to diversify geographically, it is likely that issues of complementarity in future will become even more complex, contentious and politically sensitive. Complementarity involves the analysis of national criminal jurisdictions of ICC States Parties and Non-Parties alike.  At present, the OTP is actively analyzing national criminal proceedings of Afghanistan (situation in Afghanistan concerning possible crimes against humanity and war crimes committed by the Taliban, pro-government militia and multinational forces under the control of the UN and later NATO), Colombia (situation in Colombia concerning possible crimes against humanity and war crimes committed during the civil war between the FARC, ELN, the national army and paramilitary groups), Georgia and Russia (situation in Georgia concerning possible war crimes committed by the forces of both countries in the armed conflict between them in 2008), Guinea (situation in Guinea concerning possible crimes against humanity committed by government security forces in 2008), Nigeria (situation in Nigeria concerning possible crimes against humanity committed by the Islamist militia Boko Haram, having the level of violence, according to the OTP, reached lately the threshold of non-international armed conflict). And there is a possibility that in future the ICC will analyze criminal proceedings conducted by North Korea (situation in South Korea concerning possible war crimes committed during the shelling of Yeonpyeong Island by North Korean forces in 2010), Israel (vessels registered in Comoros Islands and situation concerning the Israeli military action on the humanitarian flotilla to Gaza), United Kingdom (if the preliminary examination referred to above advances towards admissibility phase in accordance with Article 17). It should be noted that all the cases mentioned in this paragraph are at different stages of preliminary examination and all of them were commenced by means of communications under Article 15 (most of them filed by NGOs specializing in human rights observance).

Decisions on complementarity require a delicate balance. It is true that the final decision on complementarity rests on the ICC itself (even when states have ample opportunity to challenge and appeal such decisions within the ICC judicial system). But it is also true that when a State involved does not cooperate with an ICC investigation the latter becomes very difficult, if not impossible. The case of Kenya and its President Kenniata Uhuru’s pertinacious obstruction to the ICC investigation currently in course is a clear example of that.

Complementarity should provide a strong incentive for national jurisdictions to conduct criminal investigations into possible crimes within the ICC jurisdiction in accordance with acceptable standards of independence, impartiality and due process recognized under international law. The ICC is primarily conceived to support and promote national prosecution efforts rather than replacing them. As a last resort, the OTP may refrain itself from investigating or prosecuting a matter if it has reason to believe that, even taking into account the seriousness of the crime and the interests of victims, that  investigation or prosecution would not serve the interests of justice (Article 53-1 (c) and 2 (c)). It will be intriguing to see whether and how the OTP and the rest of the ICC judicial organs exercise such discretional mechanism.

[1] Press reports on the indictment, but not the text of the indictment itself, have been widely published in the Spanish and international media on and about October 1, 2014. This paper was prepared on the sole basis of those press reports and reflects current state of affairs up to that date.

Un caso de supuestas torturas en Irak ante un juzgado militar español y la complementariedad de la Corte Penal Internacional

Recientemente un juzgado militar español ha procesado a cinco soldados españoles por una presunta violación de las leyes y usos de la guerra. Se les acusa de torturar y maltratar a dos combatientes iraquíes detenidos en la base de Diwaniya, Irak, en 2004. La tortura está tipificada en el Art. 76 del Código Penal Militar español y prevé una pena de prisión de 10 a 25 años. La investigación fue llevada a cabo de un modo expeditivo, pues el incidente recién salió a la luz en marzo de 2013 (a causa de la difusión de un video de aficionado en un importante periódico español).[1]

Este caso tiene una importante dimensión internacional, por tratarse de un posible crimen en el marco de una fuerza multinacional y dentro de la competencia de la Corte Penal Internacional (“CPI”). Las tropas españolas fueron desplegadas en Irak en agosto de 2003 como parte de las fuerzas de la coalición liderada por EEUU, previo acuerdo con EE.UU. y el Reino Unido. A España también se le dio el mando de las tropas de Honduras, El Salvador, República Dominicana y Nicaragua.

No existe duda que (1) el posible crimen fue cometido por personal militar en el curso de un conflicto armado y (2) los dos iraquíes detenidos estaban bajo la protección de las Cuatro Convenciones de Ginebra de 1949  y sus Protocolos Adicionales (“Convenciones de Ginebra”). Aun cuando aquellos detenidos no satisficieran el estatus de prisionero de guerra, sólo aplicable en conflictos armados internacionales (“CAIs”), sí tenían derecho a las protecciones conferidas por el Artículo Común 3 de las Convenciones de Ginebra, de típica aplicación en conflictos armados no internacionales (“CANI”). En una situación de conflicto armado – bien CAI or CANI – ninguna persona está excluida de las protecciones mínimas del derecho internacional humanitario (“DHI”).

Infracciones graves de las Convenciones de Ginebra son contempladas como “Crímenes de guerra” bajo el Art. 8 del Estatuto de la CPI (“Estatuto”). Éste tipifica la tortura en el Art.8-2-(a)(ii) para CAIs y en el Art. 8-2-(c)(i) para CANIs. Irak no es signatario de la CPI. La jurisdicción personal de la CPI sobre nacionales de España tiene su base en el Art. 12-2-(b) del Estatuto.

Sin embargo, el párrafo 10 del Preámbulo y los Arts. 1 y 17 del Estatuto establecen que la jurisdicción de la CPI es complementaria de las jurisdicciones penales nacionales. La función de la CPI no es substituir a las jurisdicciones penales nacionales sino poner fin a la impunidad de los autores de crímenes dentro de la competencia de la primera. La CPI es un remedio de último recurso. Las jurisdicciones penales nacionales (incluyendo sus tribunales militares) vienen en primer lugar y la CPI en segundo. Ésta es la llamada “complementariedad”, que constituye un principio fundacional de la CPI.

No podemos establecer si la Fiscalía de la CPI (“Fiscalía”) ha recibido de momento alguna solicitud para ejercer jurisdicción sobre el incidente de Diwaniya. Si fuera así, en virtud de tal principio de complementariedad, debería resolver la inadmisibilidad del caso, a menos que determine que el sistema judicial español no está dispuesto a llevar a cabo el enjuiciamiento o no puede hacerlo (la versión autentica de dicho Art. 17 en inglés emplea los términos “unwilling or genuinely unable to carry out the investigation or prosecution”).

En tal hipótesis, la Fiscalía debería inhibirse a favor del proceso penal español en curso si se dan todas las circunstancias a continuación: (i) las conductas e individuos sometidos al conocimiento de la Fiscalía son los mismos que ante el juzgado militar español y por tanto se trata del “mismo caso” (ii) el juzgado militar español no pretende sustraer de responsabilidad a las personas de que se trate, o en otras palabras, no persigue su impunidad (iii) el sistema judicial español ofrece las garantías de independencia, imparcialidad y debido proceso reconocidas bajo el derecho internacional (iv) no existió demora injustificada en la apertura y desarrollo de la investigación ni hay elementos que permitan presuponer aquélla en la consecución del juicio. En suma, la Fiscalía debería inhibirse si está razonablemente satisfecha de que se trata de un “proceso penal genuino”. El mencionado auto de procesamiento indicaría un paso muy importante en este sentido, y es de esperar que el juicio comience a la menor brevedad posible.

Otro elemento que integra el análisis de complementariedad es la situación de colapso total o parcial  (o directamente ausencia) del sistema judicial del Estado con jurisdicción sobre el asunto de que se trata, pero este elemento, por razones obvias, no requiere ningún análisis en el caso de España.

La admisibilidad del Art. 17 requiere además que el asunto revista la suficiente gravedad para justificar cualquier otra actuación de la CPI. Es decir que el análisis de admisibilidad debe satisfacer ambos elementos: complementariedad y gravedad.

La estrategia de la Fiscalía sobre complementariedad es la de perseguir a “aquéllos más responsables por los crímenes más serios” (those responsible for the most serious crime”).[Report Preliminary Examination Activities 2103, Office of the Prosecutor, November 2013 “Report”, pág. 3, párr. 6]. En este sentido, el incidente en la base de Diwaniya parece tratarse de un episodio aislado de los cinco soldados españoles ahora enjuiciados. En realidad es difícil imaginar que los comandantes del Ejército español a cargo de las operaciones en Irak, o los superiores del Ministerio de Defensa, hayan promovido, consentido o tolerado en modo alguno la práctica aislada o sistemática de torturas.

Bajo las presentes circunstancias, parecería que el proceso penal militar en curso satisface los intereses de la justicia. Por tanto, la Fiscalía debería ser reticente para admitir el caso sobre la base de complementariedad, en el supuesto que, una vez más, haya recibido (o reciba en el futuro) alguna solicitud concreta para ello.

Sin embargo, si nuevos elementos y pruebas dieran razón para creer que el proceso español ya no satisface el interés de la justicia, la Fiscalía podría, luego de minucioso análisis, admitir el caso sobre la base de complementariedad. Ello podría ocurrir, por ejemplo, si el proceso se usara para proveer impunidad a los procesados o no garantizara a éstos el derecho de debido proceso reconocido por el derecho internacional. Complementariedad es como una espada de Damocles siempre pendiente sobre las jurisdicciones penales nacionales.

Solicitudes requiriendo la investigación de la CPI pueden provenir de:

1. Individuos, grupos, organizaciones intergubernamentales o ONGs, denominadas en inglés “communications under Article 15″
2. Estados Partes de la CPI (Art. 14 del Estatuto)
3. El Consejo de Seguridad de la ONU (“Consejo de Seguridad”) bajo el capítulo VII del Tratado de la ONU (Artículo 13 (b) del Estatuto)
4. Estados No Partes de la CPI (Art. 13-2 y 3 del Estatuto)

Las mencionadas en (2), (3) y (4) son denominadas en inglés “referrals”, y muy poco probables que ocurran en la práctica en el presente caso.

Decisiones preliminares sobre complementariedad

La Fiscalía analizará la información recibida por cualquiera de los medios arriba mencionados (por supuesto el análisis dependerá de la fuente, no es lo mismo la información recibida de un individuo que la del Consejo de Seguridad). La Fiscalía, una vez satisfecha de que esa información es verosímil y relativa a una posible comisión de un crimen dentro de la competencia de la CPI, iniciará un examen preliminar de la situación (en este momento ésta normalmente se hará publica y se publicará un informe sobre ella). Sobre la base de ese examen preliminar decidirá si abre o no una investigación formal [Report, pág. 3, párr. 1]. Los elementos a considerar en el curso del examen preliminar están expuestos en el Art. 53-1-2 del Estatuto. En la práctica, como se puede ver, la Fiscalía establece una clara distinción entre un “examen preliminar” y una  “investigación formal”. El análisis de complementariedad se debería efectuar normalmente, aunque no siempre, dentro de ese examen preliminar.

Para ello, la Fiscalía notificará a todos los Estados Partes y a aquellos Estados que ejercerían normalmente jurisdicción sobre ese posible crimen (Art. 18-1). Esta notificación se práctica normalmente de manera confidencial. Dentro de los 30 días, un Estado podrá informar que está llevando, o ha llevado, a cabo una investigación sobre sus nacionales u otras personas bajo su jurisdicción respecto de ese posible crimen. En ese caso, dicho Estado podrá solicitar a la Fiscalía que se inhiba en favor de tal investigación nacional, a menos que la Sala de Cuestiones Preliminares de la CPI (Sala) decida, a instancia de la Fiscalía, autorizar la apertura de una investigación (Art. 18-2).

La inhibición de la Fiscalía estará siempre sujeta a revisión. La Fiscalía podrá requerir al Estado para que le informe periódicamente sobre el desarrollo de la investigación. La Fiscalía podrá volver a examinar el asunto seis meses después de la fecha de inhibición o en cualquier momento cuando se hayan producido cambios significativos de circunstancias en vista de que el Estado no está dispuesto a llevar a cabo la investigación o enjuiciamiento o no puede hacerlo según lo previsto sobre complementariedad en el Art. 17. En este caso, la Fiscalía podrá declarar la admisibilidad sobre el caso. Esta es precisamente la espada de Damocles sobre los procesos penales nacionales a la que nos referimos con anterioridad. Cualquier decisión de la Sala admitiendo un caso en base a complementariedad podrá ser impugnada por el Estado ante la misma Sala (Art. 19-2-6) y además apelada ante la Sala de Apelaciones de la CPI (Art. 82).

Antecedentes de denuncias ante la CPI por supuestas violaciones del derecho DIH en Irak

En enero de 2014, la ONG European Centre for Constitutional and Human Rights (ECCHR) presentó una denuncia ante la Fiscalía (una “communication under Article 15”) requiriendo la apertura de investigaciones por posibles torturas y otros crímenes de guerra cometidos por tropas británicas en Irak durante el mismo período de tiempo. Según la ONG la responsabilidad penal alcanzaría a las más altas autoridades militares y civiles británicas de ese momento [ver link de ECCHR  www.ecchr.de]. Denuncias del mismo tenor fueron inadmitidas en el pasado por la Fiscalía, entonces a cargo de Luis Moreno Ocampo (de nacionalidad argentina quien estuvo en aquel cargo hasta 2012). Moreno Ocampo entendió que se trataba de posibles crímenes que carecían de la suficiente gravedad para justificar la apertura de una investigación en el seno de la CPI.

Según informa la ONG, la Fiscalía, ahora bajo la dirección de Fatou Bensouda (de nacionalidad gambiana), ha decidido reabrir el examen preliminar sobre el asunto. La ONG afirma que la justicia británica no ha desarrollado una investigación penal genuina sobre el asunto ni muestra intención de hacerlo, por lo que, según la ONG, el asunto debería ser objeto de admisión por la CPI en virtud del principio de complementariedad del Art. 17. Será interesante observar si la reapertura del caso significa un cambio de criterio de la Fiscalía en cuestiones de admisibilidad. Los contingentes militares de la ONU y la OTAN no tienen una jurisdicción militar propia y las investigaciones respecto a posibles violaciones del DHI y crímenes de guerra cometidos por sus fuerzas corresponden en primer lugar a la jurisdicción nacional del Estado que aporta esas fuerzas.

Complementariedad: ¿cooperación o fricción entre la CPI y los Estados?

La CPI no está concebida como un órgano de supervisión de jurisdicciones penales nacionales. Sin embargo, cuando se plantean cuestiones de complementariedad, la Fiscalía deberá analizar los procesos penales nacionales llevados a cabo, si es que se ha llevado a cabo alguno, por los Estados que ejercerían normalmente jurisdicción por posibles crímenes dentro de la competencia de la CPI (no importa que ese proceso esté en curso o haya finalizado). En este sentido, hasta ahora, la evaluación de la Fiscalía sobre complementariedad, en la mayoría de los casos, ha sido en relación a sistemas judiciales africanos en estado de colapso total o parcial.

Es más, fueron las mismas autoridades de países como Uganda, Malí, Costa de Marfil, Congo y República Centroafricana las que pidieron la intervención de la CPI dada su propia incapacidad para investigar y enjuiciar a los sospechosos de crímenes dentro de la competencia de esta última. En otros dos casos relativos a países de la región, Sudán y Libia, la investigación fue ordenada por el Consejo de Seguridad de la ONU (Art. 13 (b) CPI).

Sin embargo, a medida que las investigaciones de la CPI se diversifican geográficamente, es probable que las cuestiones sobre complementariedad se vuelvan aún más complejas, contenciosas y políticamente sensibles. La complementariedad implica el análisis de las jurisdicciones penales nacionales de Estados signatarios de la CPI y no signatarios también. Al presente, la Fiscalía está analizando activamente los sistemas judiciales de Afganistán (situación en Afganistán derivada de  posibles crímenes contra la humanidad y crímenes de guerra cometidos por el Talibán, milicia pro-gubernamental y la fuerza multinacional primero bajo control de la ONU y después de la OTAN), Colombia (situación en Colombia derivada de posibles crímenes contra la humanidad y crímenes de guerra cometidos en la guerra civil entre las FARC, ELN, el ejército nacional y grupos paramilitares), Georgia y Rusia (situación en Georgia derivada de posibles crímenes de guerra en el conflicto armado entre esos dos países en 2008), Guinea (situación en Guinea derivada de posibles crímenes contra la humanidad cometidos por fuerzas gubernamentales de seguridad en 2008), Nigeria (situación en Nigeria derivada de posibles crímenes contra la humanidad cometidos por la milicia islamista Boko Haram, aunque la Fiscalía ha determinado que el nivel de violencia ha escalado al de un conflicto armado no internacional). Y existe la posibilidad de que en el futuro la CPI deba analizar procesos penales llevados a cabo por los sistemas judiciales nacionales de Corea del Norte (situación en Corea del Sur y posibles crímenes de guerra derivados del bombardeo de Corea del Norte sobre la isla de Yeonpyeong en 2010), Israel (situación de las naves registradas en Comoros relativa al ataque militar israelí a la flotilla humanitaria a Gaza), Reino Unido (si el mencionado examen preliminar continúa su curso hasta la fase de admisibilidad del Art. 17). Debe destacarse que todas las situaciones mencionadas en este párrafo se encuentran en la etapa de examen preliminar y que todas ellas fueron iniciadas por comunicaciones en los términos del Art. 15 (en su mayoría por ONGs especializadas en la observancia de derechos humanos).

Las decisiones sobre complementariedad requieren un delicado equilibrio. Las decisiones al respecto sobre Libia han dado lugar a justificadas críticas de la comunidad legal internacional por sus aparentes inconsistencias. Es cierto que la última palabra al respecto la tiene siempre la CPI (aún cuando los Estados tengan amplia oportunidad para impugnar y apelar esas decisiones dentro del sistema judicial de la misma). Pero no es menos cierto que cuando un Estado no colabora con la CPI las investigaciones de esta última pueden volverse  muy difíciles, o casi imposibles. El caso de Kenia y la pertinaz obstrucción de su Presidente Uhuru Kenniata a las investigaciones de la CPI en curso son un claro ejemplo de ello.

En todo caso, es innegable que la complementariedad de la CPI debería ser un fuerte incentivo para que las jurisdicciones nacionales conduzcan este tipo de investigaciones criminales bajo aceptables condiciones de imparcialidad, independencia y debido proceso reconocidas bajo el derecho internacional. Como último recurso, la Fiscalía podrá inhibirse de investigar cuando tenga razones para creer que, aún teniendo en cuenta la gravedad del crimen y los intereses de las víctimas, la apertura de una investigación no redundaría en interés de la justicia (Art. 53-1 (c). Será interesante observar si la Fiscalía y el resto de órganos judiciales de la CPI utilizan semejante poder discrecional y, en tal caso, el modo en que lo llevan a cabo.

[1] Noticias sobre el procesamiento, pero no el texto del mismo, fueron difundidas con amplitud en la prensa española e internacional el 1 de octubre pasado y fechas aproximadas. Este análisis fue preparado sólo sobre la base de esos informes periodísticos y refleja el estado de situación hasta tal fecha.

Israel, Hamas, and proportionality in armed conflict

Israel, Hamas, and proportionality in armed conflict

Israel is again engaged in an armed conflict with Hamas. On July 8, the Israel Defense Forces (IDF) launched Operation Protective Edge following a sharp increase in rocket attacks on Israel by Hamas militants in Gaza.

The principle of proportionality has become a substantial part of international humanitarian law (IHL). It is applicable each time a military operation is directed toward combatants and military objectives, yet innocent civilians may also be harmed. The rule is that “even a legitimate target may not be attacked if the collateral civilian casualties would be disproportionate to the specific military gain from the attack”.[1] In other words, “the proportionality test determines that attack upon innocent civilians is not permitted if the collateral damage caused to them is not proportionate to the military advantage”.[2]

Proportionality no doubt reflects a consuetudinary rule of IHL. It has been codified in Article 57 (2) (iii) of Additional Protocol I to the Geneva Conventions of 1949, which provides that belligerent parties shall “refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”.

The rule of proportionality exclusively relates to innocent civilians. Palestinian civilians who, of their own free will, accept and consent to perform as human shields will be categorized as “civilians taking direct part in the hostilities” and therefore subject to legitimate military attack. Naturally, children cannot validly give any such consent under any circumstances and will be always considered as innocent civilians.

A few days ago, the Spanish Foreign Affairs Minister issued a statement urging Israel to use military force in Gaza in accordance with the principle of proportionality and the rules of IHL.[3] The Minister, however, failed to urge Hamas to do the same. The minister’s omission is disingenuous. Hamas is the one that systematically violates the principle of proportionality by launching indiscriminate rocket attacks on Israeli civilians and systematically using Palestinian civilians as human shields when Israeli forces legitimately retaliate.

Nor does the rule of proportionality require in any manner that opposing parties to the conflict use the same or similar military powers and resources. The test of proportionality is not required when harming combatants, or civilians taking direct part in hostilities. The fact that Hamas does not possess similar military capabilities as Israel does not render Israel’s military response unlawful. Definitively no principle or rule of military law requires that opposing parties use an equal amount of military powers and resources. Any interpretation to the contrary – as those predicated by anti-Israeli media and NGOs – would be nothing else than a deceitful attempt to distort international law. Could anyone imagine, during WWII, the Supreme Allied Commander on the brink of invading Normandy limiting himself to use the same military capabilities as those available to the German forces on the other side of the English Channel? That would be simply absurd.

Moreover, proportionality does not authorize weaker parties in asymmetric warfare to violate the laws of war. Hamas has no legal or moral justification to violate the laws of war in order to make up for Israel’s military superiority. Hamas’ systematic violations of the laws of war decisively contribute to increase the number of civilian casualties and damage to civilian installations. In addition to indiscriminate rocket attacks on Israeli civilians and the use of Palestinian civilians as human shields, Hamas militants breach the laws of war by (i) failing to wear uniforms to differentiate themselves from the civilian population (ii) using civilian installations to launch their rockets toward Israel or fire on Israeli ground forces in Gaza (iii) building military installations (including tunnels) nearby schools, mosques, and hospitals (iv) storing and hiding rockets and ammunition in hospitals and even in UNRWA-run schools (naturally with the complicity of the UN personnel in charge of them). All of these actions are squarely defined as crimes of war.

On the other hand, Israel is taking all feasible precautions to avoid or minimize incidental civilian casualties in tough urban warfare. Many of the civilians who died in Gaza had been called by Hamas to gather on the roof of buildings that Israel had warned would be targeted. A UN report released on July 9, 2014, in regard to civilian casualties in Gaza, stated: “in most cases, prior to the attacks, residents have been warned to leave, either via phone calls by the Israeli military or by the firing of warning missiles”.[4] This was also the case last Thursday with the shelling of the UNRWA-run school in Beit Hanoun which served as a shelter for civilians.

Israeli commanders’ care in conducting the ongoing ground operations in Gaza is unprecedented and creating a new paradigm of asymmetric warfare. IDF forces are waging a fierce war in densely populated areas of Gaza and may certainly commit mistakes, but they are unlikely to deliberate fire on innocent civilians unless the military benefit stemming from the attack justifies it. This is precisely the rule of proportionality. Commanders, officials, soldiers (and also civilians involved in the war effort) are fully aware of the main legal texts and tenets of IHL, and instructed to comply with them under any and all circumstances. Many times, IDF forces aborted attacks on legitimate military targets due to innocent civilians being used as human shields, or simply standing by the target. The IDF has secured the entry and supply of food and medicines for Gazans, and continually liaise with humanitarian agents of the International Committee of the International Red Cross (ICRC).

There are legal precedents on the matter. The International Criminal Tribunal for the Former Yugoslavia (ICTY) set a remarkable high threshold to make commanders liable for excessive or disproportionate use of force. There, in reference to NATO’s bombing campaign on former Yugoslavia, prosecutor Carla Ponte noted that NATO commanders made some mistakes, but she was satisfied that there was no deliberate targeting of civilians or unlawful military targets during the NATO campaign. Javier Solana, then NATO’s Secretary General, admitted mistakes but stated that NATO commanders made every possible effort to avoid civilian casualties and collateral damages [Amnesty International, Public Statement, June 13, 2000, Amnesty International’s initial comments on the review by the International Criminal Tribunal for the Former Yugoslavia of NATO’s Operation Allied Force].

By its part, Hamas’s tactic is win/win, they use its own civilians to abort the Israeli military response; but if this response is still carried out and incidental civilian casualties or damages are caused, Hamas will then gladly deliver the images of these victims or damages to the international media and blame Israel for it. Perhaps said Spanish Minister was not aware of these Hamas’ tactics when he issued that statement.

In fact, many army officials of democratic countries are observing and learning from Israeli forces on how to combat and defeat insurgents and terrorists in other theaters of asymmetric warfare in the world. At the end of the day, however, one should never forget that this is war and incidental harm or damage is almost inevitable. IDF’s commanders, officials and soldiers are accountable for every decision they take in the battlefield. The Israeli government has implemented mechanisms to detect possible breaches and violations of the laws of war committed by IDF forces. And these investigative mechanisms conform to international law standards, as was recently stated in the so called Turkel Report II. [5] And equally important, any person from the disputed territories who feels that his/her rights have been impinged by acts or omissions of Israeli officials (including IDF members of course) may address their complaint to the Israeli Supreme Court (ISC), a truly independent judicial court whose rulings are well known for conform to the highest standards of justice. In this regard, the ISC in the Targeted Killings case ruled:

“ … the Court does not refrain from judicial review merely because the military commander acts outside of Israel, or because his actions have political and military ramifications. When the decisions or acts of the military commander impinge upon human rights, they are justiceable. The door of the Court is open….(Mara’abe paragraph 31)” [The Public Committee against Torture in Israel and others v the Government of Israel and others. December 11, 2005, paragraph 50].

Israel, in the exercise of its inherent right of self-defense, is not only entitled to use its Iron Dome defense system to intercept Hamas’ missiles into Israeli territory, but also to extinguish Hamas’ missile infrastructure and extensive networks of tunnels in Gaza. Indeed, the Iron Dome is saving lives on both sides by giving Israeli commanders time to carry out a paced and targeted campaign in Gaza, rather than a rushed ground invasion to achieve the above targets, which are essential for ensuring Israel’s very existence.

Meantime world leaders coax the Israeli government to accept a long-term ceasefire, 40 meters below the ground somewhere in Gaza (or perhaps in a luxury place in Turkey or Qatar), Hamas leaders are already plotting how many civilian airliners, grounding or taking off Ben Gurion Airport, can be brought down when taking delivery of the first of the SA-11 surface-to-air missiles (the same type that brought down the Air Malasia 117 flight in Ukraine). If this comes to happen, Israel will hardly continue to be a viable state. That simple, that threatening.

[1] Legality of the Threat or Use of Nuclear Weapons case. International Court of Justice (ICJ). Advisory Opinion. July 8, 1996. Opinion Judge Higgings, page 587.

[2] The Public Committee against Torture and other v The Government of Israel and others. The Targeted Killings case. The Israeli Supreme Court (acting as High Court of Justice). December 11, 2005. Paragraph 45.

[3]Statement released by Spanish Foreign Minister, José María Garcia-Margallo, on July 22, 2014

[4] UN OCHA Report on Hostilities in Gaza and Israel. July 9, 2014.

[5] The Turkel Report II was issued by the Israeli government and overseen by highly respected international jurists whose neutrality is undisputable. This commission concluded that the Israeli current legal framework for investigating and prosecuting IDF officials and soldiers for alleged crimes committed in armed conflict is consistent with international law, albeit a number of recommendations were made.

For example, a full inquiry into said UNRWA-run school attack is underway and, to that end, the IDF is availing itself of state-of-the-art videoimaging technology capable of establising the trajectory of morters and who fired them.

Latest legal developments in connection with the AMIA Jewish community center terrorist bombing in Buenos Aires in 1994 – A Follow-Up Paper

On Jan. 27, 2013 Argentina and Iran signed a Memorandum of Understanding (Memorandum) providing for the formation of a so-called “Truth Commission” (Commission) to investigate the 1994 AMIA bombing.

On Feb. 21, 2013, I published in this blog a brief discussion about the Memorandum and the Commission and their possible impact on the Argentine prosecution proceedings underway.[1] This follow-up paper focuses on the most relevant developments in the matter occurred since then, and outlines practical options under international law to attempt to thwart the Memorandum and bring the suspects to face trial in a real court of law.

On May 28, 2013, Argentine prosecutor Nisman filed a new indictment report providing new elements that strengthen the case against Iran’s top officials for masterminding the 1994 AMIA bombing, and uncover the continent-wide dimensions of their terrorist plans.

It is increasingly clear that the 1994 AMIA bombing was not an isolated incident in Argentina, but part of a much larger plot aimed at spreading terror and instability across the Western Hemisphere. Nisman’s expose of the Tehran regime’s recourse to international terrorism as a strategic tool to advance its foreign policy goals across the region compels the Argentine government to reassess its relation with Iran and undo the Memorandum.

On May 29, 2013 Nismam reported to the Washington Post that his new indictment was supported by “a huge file of evidence including reports from the region, Europe and the United States, and that Iran’s involvement goes way beyond the 1994 bombing”. According to Nisman, the Iranians developed intelligence networks across Argentine, Brazil, Paraguay, Uruguay, Chile, Colombia, Guyana, Surinam, and Trinidad and Tobago. Nisman described a decades-long effort by Iranians to lay the groundwork for future terrorist attacks, whether by using Iranian agents or through their proxy Hezbollah.

Nisman indicted eight Iranians and a Lebanese national. Mohsen Rabbani, former cultural attaché in the Iranian embassy in Buenos Aires, appears as the mastermind of the 1994 AMIA bombing and also of the frustrated attack on New York’s John F. Kennedy airport in 1997 (for which Abdul Kadir, a Guyanese national, is now serving life prison).

Nisman’s new 502-page indictment complements and not replace his first 800-page indictment delivered on Oct. 25, 2006. Nisman said he has sent copies of the new indictment to the countries named therein so that they too can take action, in an effort for internationalizing the AMIA matter even further.

The Argentine government, despite the new elements, signaled no intention of undoing the Memorandum. On the other hand, AMIA and DAIA had filed a summary action (recurso de amparo) in Canicoba’s court challenging the constitutionality validity of several provisions of the Memorandum. On Dec. 13, 2013, that action was dismissed “in limine” on grounds that the Commission had not been yet constituted and therefore no constitutional rights could have been effectively violated at the moment (Argentine courts have no powers to rule on purely abstract or theoretical matters). Canicoba’s ruling, however, was without prejudice to pass judgment on the merits of any action for violations of constitutional rights in future, provided that the Commission finally comes into existence. Canicoba also stated that only his court has authority to lift the arrest warrants issued against the Iranian suspects, warrants which had been upheld by Interpol’s red notices. Based on said Canicoba’s statement, one might infer that the Interpol’s red notices remain valid and enforceable up to date, notwithstanding the Memorandum.

Meantime controversy continues over the Memorandum’s current standing under international law. Argentine Congress has ratified it and passed it into law, but Iran’s position remains less clear. On May 20th, 2013 the Iranian embassy in Buenos Aires announced that Iran had approved the Memorandum in accordance with Article 6 of this instrument.

The Argentine government, however, admitted that it had not received the exchange of instruments of ratification from Iran -exchange which is necessary for the Memorandum to come into force pursuant to Article 6 of the Memorandum and Article 16 of the Vienna Convention on the Laws of Treaties of 1969 (“Vienna Convention”). Although Iran has not ratified this convention, many of its provisions, including said Article 16, merely reflect customary international law.

The Memorandum, irrespective of whether it has come into force, seems part of an Argentine-Iranian concerted effort to obstruct the course of justice and bring Canicoba’s criminal prosecution (including the arrests warrants upheld by Interpol’s red notices) into legal limbo.

In effect, the Commission will unduly delay, obstruct and interfere with the Argentine prosecution proceedings underway. This is not time to review Nisman’s evidence, but time instead for the Iranian suspects to face trial. The Memorandum also provides that the Iranian suspects will be questioned in Tehran rather than in Buenos Aires, thus relieving Iran’s regime of extraditing them to Argentina.

Argentina’s attitude is in stark contrast with recent court decisions in Cyprus and Bulgaria, which did not hesitate to bring to trial the suspects of terrorist attacks committed in their respective territories against Israeli citizens. Apparently in both cases the suspects belonged to Hezbollah and acted under Iran’s financial and material support.

Not before long signing the Memorandum, Argentina was pursuing an agreement with Iran under which judge Canicoba would continue the criminal prosecution in a third country –following the pattern of the agreement for a “delocalized court” between the UK and Libya under which a national Scottish court sitting in the Netherlands held trial of the suspects of the bombing of the Pan Am flight 310 over Lockerby, Scotland.

There the Gaddafi regime only entered that agreement after having been compelled on several occasions by the UNSC to extradite the Libyan nationals allegedly responsible for the bombing.[2] The UNSC had also held that Libya’s failure to extradite them constituted a threat to international peace and security and accordingly prompted sanctions on Libya under Chapter 7 of the UN Charter.

The UNSC also imposed sanctions on Sudan and Afghanistan for similar reasons. In the former situation, the UNSC called upon Sudan to extradite the three suspects of having carried out an assassination attempt on former Egyptian President Hosni Mubarak.[3] In the latter, the UNSC demanded that the Taliban refrain from providing sanctuary to international terrorists and instead bring them to face trial.[4] These developments contribute to consolidate an incipient principle of international law under which states are under an obligation either to prosecute or extradite suspects of international terrorist acts present within their territory.

There are two other international legal instruments worthy of note.  In 1994, the UNSC was seized of the matter of the AMIA terrorist attack and issued a brief statement strongly condemning it (Jul. 29, 1994). More recently, in 2009, US Congress condemned the attack, blamed the Iranian regime and Hezbollah for it, and urged the US President to provide the Argentine government support and cooperation “for the purposes of deepening and expanding the investigation into the AMIA bombing” (H. Con. Res. 156, Jul. 20, 2009).

Nisman’s fresh evidence, in any case, provides the Argentine government with a new opportunity to reassess its relations with Tehran and terminate the Memorandum. The Iran regime’s continued and unjustified delay to exchange the instruments of ratification may amount to an anticipated repudiation of the Memorandum under Articles 18 and 60 (3) (a) of the Vienna Convention. By withholding indefinitely the instruments of ratification, and the resulting passing of time, the Iran’s regime intends to defeat the alleged purposes and objectives of the Memorandum. In effect, criminal and forensic evidence vanish with the passing of time and to the same extent the possibilities of an effective investigation. It now becomes evident that Tehran never had the intention of being bound by the Memorandum, it pursued instead a deliberate maneuver to bring Canicoba’s prosecution ­(and the arrest warrants issued) into a dead end. Said Article 18 is the only provision of the Vienna Convention that imposes certain obligations on the parties to a treaty prior to its entry into force. Without prejudice to this opinion, further research would be needed to determine whether there are any grounds for invalidation of the Memorandum under Articles 46 to 53 of the Vienna Convention.

Should the Memorandum be terminated or invalidated, Argentina could move to the UNSC for sanctions on Iran for its failure to extradite the suspects. If UNSC-imposed sanctions do not work, Argentina may move again to the UNSC requesting this time a resolution for the creation of an ad hoc international criminal tribunal to hold trial of the Iranian suspects indicted by prosecutor Nisman. To this end, Argentina may avail itself of the precedent laid down by UNSC Resolution 1577/2003 creating the Special Tribunal for Lebanon (STL)(which was discussed in the above-mentioned post of Feb. 23, 2013).

To be realistic, however, it is most unlikely that the Argentine government currently in office be willing to terminate or invalidate the Memorandum. Under present circumstances, in my view, the only realistic alternative to make any progress on the AMIA matter is that a third state, or a group of them, sponsor and submit a draft resolution to the UNSC urging (i) Argentina to comply with its obligation to prosecute the case (ii) Iran to comply with its obligation to extradite the suspects (iii) create an UNSC-sponsored international independent commission which would have authority to recommend sanctions on both states until compliance with their above-mentioned obligations is verified. In this regard, it is worthy of note that the AMIA bombing has further international connections, the deceased victims were not only nationals of Argentina, but also of Bolivia, Chile and Poland.

Unfortunately, the establishment of an UNSC-sponsored ad hoc international criminal tribunal against the will of both Argentina and Iran would be an undertaking of an almost impossible practical implementation.

The AMIA bombing and US extraterritorial laws

In 1979, the Department of State designated Iran as a state sponsor of international terrorism. On the other hand, Congress provided for the extraterritorial application of “18 US Code § Providing Material Support or Resources to Designated Foreign Terrorist Organizations”, however, in order for a criminal investigation to be undertaken under this chapter “the offender [must be] brought into or found in the United States”. And none of the Iranians suspected of the AMIA bombing is present, or likely to be present, within the territory of the United States.

There were no US nationals among the AMIA victims either. As a result, no redress can be sought by the AMIA victims under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDEPA”). This statute, among others, confers jurisdiction on US district courts to hear civil claims against foreign governments that support or finance terrorism. It provides monetary compensation to injured or deceased victims of terrorist attacks, even when they are carried out outside the territory of the US, but necessarily requires that the victims be US nationals. In the “Flatow” case, a US district court condemned the Iranian government for funding a Jihad faction that carried out a terrorist attack in territories under Israeli administration. [5] Congress explicitly provides that AEDEPA would apply retroactively.

In sum, despite the long reach of US law, it seems difficult to find a basis that would permit US district court to assert jurisdiction over any criminal or civil matter relating to the AMIA bombing.

Universal jurisdiction

As noted, among the AMIA deceased victims, there were nationals of Chile, Bolivia and Poland. Even if in theory this connection provides a basis that would permit national criminal courts of these countries to exercise universal jurisdiction over the AMIA bombing, it is unrealistic to think that any of their governments would be able and willing to be seized of the matter and prosecute the Iranian suspects.

It is equally difficult to think of any other third state with no connections with the AMIA bombing that would be able and willing to assert universal jurisdiction over the matter. Universal Jurisdiction has been primarily developing upon obligations assumed by states under international conventions, notably the Geneva Conventions of 1949 concerning crimes of war, the Convention on the Prevention and Punishment of Genocide, and the Convention Against Torture (“CAT”).

The international community, however, has failed to agree on a comprehensive convention against international terrorism. It was contended that there was no consensus on the elements and criteria to define that crime. But these contentions are unfounded, and only predicated by a few states that pretend to equate terrorists with legitimate combatants under the Geneva Conventions. Prof. Cassese, President of the said STL, whose impartiality cannot be questioned, held that there was “convincing evidence that a customary rule of international law has evolved as to define the crime of terrorism in time of peace”.

The absence of a comprehensive convention against crimes of international terrorism has hindered the efforts to extend universal jurisdiction into the crimes of terrorism. Even if a comprehensive convention against terrorism providing for universal jurisdiction (as the above-mentioned Geneva Conventions of 1949 and the CAT) is concluded in future, states would still be reluctant to apply it retroactively. In effect, states are most reluctant to apply international conventions on criminal matters (and their resulting implementing national laws) retroactively.[6]  And many states will further require that the suspects be physically present within their territory in order for a criminal investigation to be undertaken (as in the case of the US antiterrorist law discussed above). It would be worth, however, to search for a jurisdiction that might be amenable for a universal jurisdiction action regarding he AMIA bombing.

Despite Prof. Cassese’s position, the crime of terrorism was not included into the crimes subject to the jurisdiction of the ICC. The obstacle to include this crime was political in nature rather than juridical. In any event, the ICC would be prevented from exerting jurisdiction over situations prior to July 1, 2002 (while the AMIA bombing took place in 1994).

Conclusions

It is indeed difficult, though not impossible, to make any progress on Canicoba’s prosecution as long as both the Argentine and the Iranian governments are unwilling to find out the truth about the AMIA bombing. None of the practical options outlined herein provide assurances that the Iranian suspects will eventually face trial before a court of law. And as time passes by chances of an effective prosecution irremediably fade. Those setbacks, however, cannot justify international community’s inaction and complacency with impunity.

First published: Jun. 17, 2013

Revisited: Aug. 19, 2015

[1] Please click on http://wp.me/p3bhmd-19

[2] UNSC Resolutions 731 (1992), 748 (1992) and 833 (1993).

[3] UNSC Resolutions 1044 (1996) and 1054 (1996)

[4] UNSC Resolutions 1214 (1998) and 1267 (1999)

[5] A few words about this case seem illustrative. Alisa Flatow was a US national who traveled to Israel where she was killed by a Jihad terrorist faction known to be exclusively funded by the Iranian government. Alisa Flatow’s father moved to a US district court and sued the Iranian Government for funding that terrorist faction. Iran did not appear to the court. The court was nonetheless satisfied with the plaintiff’s claim and ordered the defendant government to pay plaintiff an amount for compensatory damages plus punitive damages. 999 F. Sup. 1 (1988). United States District Court, District of Columbia, March 11, 1988.

[6] The only exception I am aware of is the trial of Adolf Eichmann in Israel for crimes against humanity committed during WWII. There the court held that the crimes perpetrated by Eichmann though not codified into Israeli law at the moment they were committed –the State of Israel did not even exist by then– constituted “grave offenses against the laws of the nations” and as such punishable.

Latest legal developments in connection with the AMIA Jewish community center terrorist bombing in Buenos Aires in 1994

This paper briefly discusses the latest legal developments in connection with the AMIA Jewish Center terrorist bombing in Buenos Aires on Jul. 18, 1994, which killed 85 people and injured hundreds.

A few days ago, on Jan. 27, Argentina and Iran entered into a “Memorandum of Understanding” (“Memorandum”) providing, among others, for the establishment of a commission – so called the “Commission for the Truth” (“Commission”)– to investigate that terrorist attack.

Article 4 of the Memorandum provides that the Commission will take a deep review of the records and documents of the criminal investigations on the matter conducted by the Argentine and Iranian judicial authorities, in particular the incriminatory evidence gathered against each of the Iranian suspects. The Commission’s mandate, however, will be limited to issue “recommendations on how to proceed with the case within the legal and regulatory frameworks of the parties”. The Commission has no authority to prosecute the crime and impose penalties on its instigators and perpetrators, nor is it subject to any time limits for conducting the investigations and issuing recommendations.

And not only that, the Commission will unduly interfere with, and cause additional delay to, the ongoing Argentine criminal prosecution conducted by judge Rodolfo Canicoba. According to Article 5 of the Memorandum, the Argentine judicial authorities shall be compelled to interrogate the Iranian suspects in Tehran instead of Buenos Aires, which is just unacceptable. Judge Canicoba must interrogate them in connection with a major terrorist attack that took place on Argentine soil and determine whether they will face trial. The Memorandum says nothing about the role of Argentine prosecutor Alberto Nisman. In any case, Canicoba and Nismam will be prevented from interrogating the suspects until the Commission is appointed and all of its members are able to gather in Tehran for that purpose.

More, the Memorandum does not provide for any kind of international supervisory authority or observer (whether from the UN or otherwise) to oversee the fairness of the Commission’s procedures and its independence.

The Commission will most likely focus on discrediting and frustrating Nisman’s efforts to bring the Iranian suspects to justice. On Oct. 25, 2006, Nisman delivered an 800-page indictment report incriminating Iranian highest-ranking officials as instigators of the crime and Hezbollah as the perpetrators. On the basis of this indictment, Canicoba issued international arrest warrants for the eight Iranian suspects.

Nisman’s evidence appeared so credible that Interpol upheld Argentina’s request and issued “red notices” for six out of the eight Iranian suspects, despite the Iranian National Bureau’s fierce opposition. In issuing red notices, Interpol does not restrict itself to “rubber stamp” requests made by member states, rather it takes a careful review of each of them and its supporting evidence.

Iran did not cooperate with Interpol red notices, let alone handed over the suspects to Argentina. In this respect, Article 7 of the Memorandum between Argentina and Iran provides that “This Agreement, upon its signature, will be jointly sent by both ministers to the Secretary General of Interpol as a fulfillment of Interpol requirements regarding this case”. The parties ensured that this provision would be immediately applicable and operative −even before the Memorandum is ratified and comes into force− in all likelihood with their common intention of bringing down the red notices issued against the Iranian suspects. Rumors existed that Iran was on the brink of being suspended from Interpol for continuously flaunting and breaking its rules.

As a logical corollary of the Memorandum, Argentina would refrain itself from making new extradition requests in future regarding the Iranian suspects. This concerted Argentine-Iranian effort caught many for surprise, as it came when much of the world was focused on isolating Iran for its nuclear weapons aspirations.

Indeed chances are very high that the Commission’s findings will eventually contradict Nisman’s report. Although the Commission’s findings are not binding in nature, the Memorandum provides that “both parties will take these [Commission’s] recommendations into account”. All seems to indicate, unfortunately, that the Commission’s primary purpose is not to find the truth about the AMIA attack but rather to cover it up.

In 1999, “Memoria Activa”, a Buenos Aires-based non-profit organization consisting of relatives and friends of the crime’s victims, filed a complaint against Argentina before the Inter American Human Rights Commission (IAHRC), an organ of the Organization of American States (OAS). In 2004, the IAHRC warned Argentina for failing to conduct an efficient and responsive judicial investigation into the crime. Argentina then assumed the commitment “to prosecute the crime efficiently and responsively” from then on. It is to be hoped that Memoria Activa will now reopen the complaint (or file a fresh one) on grounds that the Memorandum means a new Argentina’s breach of its obligation to prosecute the suspects of the crime. In fact, if anything, the Memorandum is a lethally-flawed instrument aiming at ensuring impunity for its instigators and perpetrators.

It would be worthy to explore other remedies available under Argentine and international law in an attempt to thwart the Commission and bring those suspected of the crime to face trial before a real court of law in Argentina or, alternatively, in a third country.

There are relevant developments on this regard. Suspects of crimes involving large-scale international terrorism have been requested for facing trial before ad hoc international criminal tribunals with seat in third countries. For example, the Special Tribunal for Lebanon (STL) which is an ad hoc international criminal tribunal that undertakes the prosecution, under Lebanese and international law, of those responsible for the attack resulting in the assassination of Rafic Hariri, former Lebanese PM, and the death of 22 others, on Feb. 14, 2005, in Beirut. The STL was created by UNSC Resolution 1577/2005 and has its seat in the Hague, the Netherlands. The STL is the first international criminal tribunal to deal with terrorism as a distinct crime. Another example would be the delocalized Scottish national court, with seat in the Hague too, whose primary mandate was to hold trial for the Libyan suspects of the bombing of the Pan Am flight 310 in 1998 over Lockerby, Scotland.

The UNSC in countless occasions held that international terrorism poses a threat to world peace and security. The AMIA attack also underscores the urgent need to define, codify and bring the crimes of international terrorism into the jurisdiction of the International Criminal Court (ICC) for their effective prosecution at a global scale.

First published: Feb. 21, 2013

Revisited: Aug. 19, 2015