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Spain Sends the Case Brought Against Venezuelan President Hugo Chavez to the International Criminal Court

By Elizabeth Boburg

The author is an attorney, licensed in New York, and a graduate of Duke Law School (2001). She has worked in the Bureau of Democracy, Human Rights and Labor at the U.S. Department of State (1995-1997). She is currently doing an apprenticeship in the Intellectual Property Department in the Barcelona office of Mullerat Abogados, a Spanish law firm.

Judge Fernando Andreu of the Audiencia Nacional, Spain's national court with jurisdiction over certain types of criminal matters, decided in late March to defer prosecution of the case brought against Hugo Chavez, President of Venezuela to the International Criminal Court (ICC) [1]. In doing so, Justice Andreu bolstered the legitimacy of the ICC, commenting that the establishment of the ICC would not make sense if such cases were decided in national courts.[2]

On January 28, 2003 President Chavez and a group of Venezuelan government officials were charged with crimes against humanity, human rights violations and terrorism in the Audiencia Nacional. The Chavez case follows on the heels of similar cases brought in Spanish courts over the past few years, the most notable being the case of genocide brought against Chilean General Augusto Pinochet in 1998 [3] and the case of genocide brought against Guatemalan government officials by the Nobel Peace prize winner Rigoberta Menchu in 1999. [4]

In the Chavez case, a group of Spanish and Venezuelan attorneys initiated legal proceedings, explaining that the alleged criminal activities "have resulted in murders, torture and political pressure . . . and include crimes of terrorism of the Government of Hugo Chavez, such as the financing of certain terrorist nets in other parts of the world and collaboration and financing of armed groups." [5] In addition, the attorneys represent the families of victims who were killed or wounded allegedly by government sharpshooters in a peaceful demonstration in front of the Presidential palace in Caracas on April 11, 2002 and in other similar incidents that occurred in Plaza Altamira on December 6, 2002. These families have turned to the Spanish court system because odds are set against obtaining justice in Venezuela, where the penal code provides diplomatic immunity to the President and government officials.

Laws providing jurisdiction to the Spanish Tribunal over crimes against humanity and terrorism can be found in the Spanish Organic Law of Judicial Power. Article 65 of the Organic Law of Judicial Power states that the Criminal Court of the Audiencia Nacional may claim jurisdiction over cases involving crimes committed outside the national territory when in conformity with laws or treaties corresponding to such prosecutions in Spanish courts. Likewise, Article 23.4(a) of the Organic Law of Judicial Power states that Spanish courts will have jurisdiction over those acts committed by Spaniards or foreigners outside the Spanish territory if such acts can be characterized as genocide or terrorism. Justice Andreu also took into consideration previous decisions of the Spanish Tribunals, finding that the Court lacked jurisdiction to proceed with cases involving Teodoro Obiang, the President of Guinea, Fidel Castro, President of Cuba, and Silvio Berlusconi, President of Italy, among others. [6] However, it should not be forgotten that in 1998, the Spanish Judge Baltasar Garzon accepted a case brought against Chilean General Augusto Pinochet to question him about the deaths and torture of thousands of Chileans and Spaniards that occurred under Pinochet's dictatorship from 1973 to 1990. (The case was never heard in the Spanish courts since the British House of Lords decided not to extradite Pinochet, who had been placed under arrest by British authorities during a visit to London for medical reasons.) This was a watershed case where for the first time it was decided that although Heads of State are immune from prosecution while performing official functions, such immunity is not absolute for a former Head of State in cases of crimes against humanity, such as torture, which do not fall within the scope of official functions. [7]

Another high-profile case brought in Spain by Rigoberta Menchu against Guatemalan officials has seen a similar outcome, with the court ruling that it has jurisdiction to hear the case as far as it concerns crimes committed against Spaniards (but not against the Mayan native population of Guatemala), such as the attack on the Spanish Embassy on January 30, 1980 and the crimes carried out against Spanish Catholic priests by the military. In this case, the Court clarified that under the concept of "universal jurisdiction" Spain only enjoys jurisdiction when the events occurring in another country affect the interests of Spain based on Articles 6 and 8 of the Genocide Convention. [8] The international law principle of "universal jurisdiction" has been codified in international treaties, including the Torture Convention and the Genocide Convention, providing that in some cases a state may have a duty to prosecute persons, known as "enemies of mankind" (hostes humani generis) or those who have allegedly committed the most serious crimes. The International Criminal Court was established with the principle of "universal jurisdiction" at its core.

Sending the case to the ICC

In deciding to send the Chavez case to the ICC, Justice Andreu, stated that the immunity enjoyed by Heads of State "presents itself as a legal obstacle for the possibility of prosecuting them [in their own countries] for the crimes with which they are charged" [9] to hear criminal cases when national courts cannot or will not hear the case. [10] (Spain and Venezuela have both ratified the Rome Statute, establishing the International Criminal Court. [11]) The ICC will not excuse Hugo Chavez from prosecution for the alleged crimes based on his status as a Head of State. The Statute of Rome provides at Article 27 "that all persons regardless of official capacity, including Heads of State or Government, an elected representative or government official, shall not be exempt from criminal responsibility." Moreover, according to Article 5, the Court is specifically equipped to handle cases involving crimes against humanity.

It is interesting to note that there is a time bar for cases brought before the ICC in that the Court enjoys jurisdiction over only those crimes committed after the Rome Statute's entry into force for that particular State, once it has become a party to the Statute, unless the State makes a declaration otherwise, as stated in Article 11. This stipulation may serve as the reason why the Rigoberta Menchu case will be heard by the Spanish courts whereas the Hugo Chavez case will see its day in the ICC, namely because the alleged crimes of the Guatemalan government were committed before the Rome Statute entered into force and bestowed jurisdiction on the ICC. It should also be mentioned that the Chavez case may still be heard in Spanish courts, since the attorneys who brought the case against Hugo Chavez have vowed to appeal at least part of the decision of the "Audiencia Nacional".

[1] See La Audiencia Nacional remite al Tribunal Penal Internacional una querella contra Hugo Chavez por terrorismo [The Audiencia Nacional sends case of terrorism brought against Hugo Chavez to the International Criminal Court], Westlaw Spain, Mar. 25, 2003, at es.westlaw.AlDiaWestlaw?peticion=NOTICIA&idNoticia=1048586457971&wid=166828/03/2003.

[2] See Id.

[3] Geoffrey Robertson QC, Crimes Against Humanity: The Struggle For Global Justice 414-426 (2d. ed. 2002).

[4] See Danny Wood, "Spain to study Guatemala crimes," BBC News, March 3, 2003, at

[5] See "Un grupo de abogados presenta una querella contra Chavez por crimenes de lesa humanidad y terrorismo". [A group of attorneys bring a lawsuit against Chavez for crimes against humanity and terrorism], Westlaw Spain, Jan. 29, 2003 (quoting Attorney Luis Garcia Perulles, explaining the legal foundation of the lawsuit), at

[6] See "La Audiencia Nacional remite al Tribunal Penal Internacional una querella contra Hugo Chavez por terrorismo". [The Audiencia Nacional sends case of terrorism brought against Hugo Chavez to the International Criminal Court], supra note 1.

[7] See Robertson QC, supra note 3.

[8] See "Argumentos juridicos que sirven de fundamento a la sentencia resolutoria del recurso contra auto de la AN en el asunto del genocidio de Guatemala". [Legal arguments that serve as basis for the decision against the Audiencia Nacional hearing of genocide in Guatemala], Mar. 5, 2003, Westlaw Spain, news file, at

[9] See "La Audiencia Nacional remite al Tribunal Penal Internacional una querella contra Hugo Chavez por terrorismo". [The Audiencia Nacional sends case of terrorism brought against Hugo Chavez to the International Criminal Court], supra note 1.

[10] See Rome Statute of the International Criminal Court, July 17, 1998, U.N. Doc. A/CONF.183/9 (1998) (emphasizing in the Preamble that the International Criminal Court "shall be complementary to national criminal jurisdictions" and further stating at Art. 17 that a case is inadmissible if it is being prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable to carry out the investigation or prosecution, at

[11] See CICC Commission for the International Criminal Court Home Page, Rome Statute Signature and Ratification Chart, at

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