USA - Torture - Spain

Spain: Court accepts complaint against end of investigations into torture in Guantánamo

USA - Torture - Spain

Spain: Court accepts complaint against end of investigations into torture in Guantánamo

On 22 May 2017, Spain's Constitutional Court (Tribunal Constitucional) has accepted to hear a complaint against the closing of investigations into incidents of systematic torture and cruel, inhuman and degrading treatment of detainees occurring in Guantánamo after 2001. In December 2016 ECCHR, CCR and itspartner lawyers  in Spain had filed a constitutional complaint, after in November 2016 the Supreme Court upheld the decision of the investigating judge to close the investigations. The Spanish judiciary had been conducting investigations into the US torture program since 2009. Spain revoked its laws on prosecuting torture under the universal jurisdiction principle in 2014. However, the parties presented evidence not only against US officials, but also Spanish accomplices in the Guantánamo investigation, which broadens the jurisdiction for the Spanish judiciary to investigate and prosecute the cases. The Constitutional Court decision is now pending with an unknown schedule.

Case

In March 2009, a criminal complaint was filed against six former US officials regarding their accountability for violations of international law, including war crimes and torture. The six US officials became known as the "Bush Six." The Bush Six are accused of having aided and abetted crimes of torture, cruel, inhuman or degrading treatment and grave breaches of the Geneva Conventions of 1949. The crimes in question were committed at US detention facilities at Guantánamo and at other locations. The investigation was later extended to include Guantánamo as a whole.

Context

In May 2009 and again in April 2010, Judge Velasco, who is responsible for the investigation of the Bush Six case, issued formal rogatory letters to the United States seeking information regarding any pending investigations in the US that would render the Spanish complaint unnecessary. The Obama administration repeatedly ignored the request, while, as the WikiLeaks cables suggest, they acted to undermine the legal process through political means. In January 2011, Judge Velasco issued a final order for compliance, setting a March 1 deadline, to which the US finally replied.

In its submission, the Department of Justice requests that the Spanish Court refer the case to the United States for further review, as it claims to be fully capable of investigating and prosecuting the alleged crimes. Although the US failed to cite any evidence that it has, in fact, undertaken such investigations or prosecutions against mid or high-level US officials, on 13 April 2011 Judge Velasco temporarily stayed the Bush Six case in Spanish courts, referring it back to the United States "for it to be continued". On 19 April 2011, an appeal was filed against Judge Velasco’s ruling. The Spanish National Court declined to order the resumption of the investigation. After a further appeal was rejected by the Spanish Supreme Court, a petition for review was filed and is now pending before the Spanish Constitutional Court. ECCHR and CCR, supported by a range of former UN Special Rapporteurs, members of the US military, legal experts and human rights organizations experts filed a brief on 25 September 2012 setting out the continued failure of US authorities to initiate prosecutions in the case.

Persons

The "Bush Six", as the six US officials became known, includes David Addington (former Counsel to, and Chief of Staff for the former Vice President Dick Cheney); Jay Bybee (former Assistant Attorney General, Office of Legal Counsel, Department of Justice); Douglas Feith (former Under Secretary of Defense for Policy at the Department of Defense); Alberto Gonzales (former Counsel to President George W. Bush, former US Attorney General); William J. Haynes (former General Counsel at the Department of Defense) and John Yoo (former Deputy Assistant Attorney General at the Office of Legal Counsel within the Department of Justice).

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glossary

An amicus curiae brief is a submission to a court setting out a legal position.
A dossier is a collection of documents that can be submitted to a court or other authority.
The Geneva Conventions form the basis of international humanitarian law. They protect certain categories of persons, e.g. civilians.
War crimes are serious breaches of international humanitarian law committed in armed conflict.
The UN Convention against Torture was adopted to prevent torture and other cruel, inhuman or degrading treatment or punishment.
UN Special Rapporteurs are appointed by the UN to work on a specific mandate.
Public international law is the system of laws governing relations between states and other subjects of international law.
Universal jurisdiction allows states to prosecute crimes against international law that were committed elsewhere.

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