1 Guatemala Genocide, Judgment No. STC 237/2005 (Tribunal Constitucional Sept. 26, 2005), at <http://www.tribunalconstitucional.es/Stc2005/STC2005-237.htm>. All translations from the Spanish are by the author.

2 The Audiencia Nacional hears cases involving drug smuggling, terrorism, state corruption, and international crimes that cannot adequately be dealt with at the level of provinces and autonomous communities. Although divided into chambers, it is roughly equivalent to a U.S. district court. Here, the decisions came from the penal chamber.

3 See Crimes of Genocide and Terrorism Committed During the Argentine Dictatorship, Jurisdiction, App. No. 84-98 (Audiencia Nacional (Sala de lo Penal) Nov. 4, 1998), at <http://www.derechos.org/nizkor/arg/espana/audi.html>; Crimes of Genocide and Terrorism Committed During the Chilean Dictatorship, Jurisdiction, App. No. 173/98 (Audiencia Nacional (Sala de lo Penal) Nov. 5, 1998), at <http://www.derechos.org/nizkor/chile/juicio/audi.html>.

4 Ley Orgánica 6/1985, B.O.E. 1985, 157,d/-<http://www.juridicas.com/base_datos/Admin/lo6-1985.11tl.html>.

5 By accepting the complaint, the judge made a preliminary finding that a crime had been committed that was subject to Spanish jurisdiction. At that point, he could begin compiling evidence, calling witnesses, and preparing a record (sumario) prior to deciding if there was enough evidence to forward the case to a separate three-judge panel for trial.

6 One set of allegations referred to the firebombing of the Spanish Embassy in Guatemala City in January 1980, in which several protesters died.

7 As will become apparent, this element of subsidiarity was to prove problematic as the case moved through the courts.

8 Appeal No. 115/2000 (Audiencia Nacional (Sala de lo Penal) Dec. 13, 2000), at <http://www.juridichttp://www.icrc.org/ihlnat.nsf>. In the brief online report of this judgment, there are no helpful markers to identify the location of quotations, so none will be given.

9 Judgment No. 327/2003 (Tribunal Supremo (Sala de lo Penal) Feb. 25,2003), at <http://www.derechos.org/nizkor/guatemala/doc/gtmsent.html>. An English translation, though not used for the translations in the text, is available at <http://www.derechos.org/nizkor/guatemala/doc/stsgtm.html>.

10 See supra note 6. The Spanish ambassador was injured, and several embassy employees were burned to death, in the firebombing and attack on the embassy.

11 Dec. 9, 1948, 78 UNTS 227.

12 Article 6 provides:

13 Article 8 provides:

14 Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 ICJ Rep. 3 (Feb. 14); see Alexander Orakhelashvili, Case Report: Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 96 AJIL 677 (2002).

15 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 UNTS 85.

16 See, e.g., Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sept. 23,1971, 22 UST 1641, 860 UNTS 105; International Convention Against the Taking of Hostages, Dec. 17, 1979, TIAS 11,081, 1316 UNTS 205.

17 Hernán, Brady Roche Judgment No. 319/2004 (Tribunal Supremo (Sala de lo Penal) Mar. 8, 2004), at <http://www.derechos.org/nizkor/chile/juicio/brady.html>..>Google Scholar

18 Genocide in Peru, Judgment No. 712/2003 (Tribunal Supremo (Sala de lo Penal) May 20,2003), at <http://www.derechos.org/nizkor/peru/doc/tsperu.html>.

19 In this case, the Constitutional Tribunal’s jurisdiction arose from a writ of amparo, which is used when a party complains that a lower court’s decision has deprived that party of the constitutional right to an effective judicial remedy (sec. I(3)(a)). The Tribunal has the authority to reverse judicial decisions that are arbitrary, manifestly unreasonable, or a result of clear error, or where jurisdictional provisions have been interpreted in an excessively strict or formalist way or in a way that is disproportionate in balancing the interests served by acceptance or rejection of jurisdiction (id).

20 H.S.A. v. S.A., Cour de Cassation, Feb. 12, 2003, No. P.02.1139.F/1, translated in 42 ILM 596 (2003).

21 The Tribunal cited the German penal code, which provides for universal jurisdiction over genocide, crimes against humanity, and war crimes even when the crime has been committed abroad and has no link to Germany. The Tribunal failed to mention, however, the potential limitations on jurisdiction to be found in section 153(f) of the German Code of Criminal Procedure. That provision, passed in conjunction with the Code of Crimes Against International Law in 2002, gives the prosecutor discretion to reject certain cases where there is no link. For a discussion, see the German Federal Court prosecutor’s dismissal of the case against Donald Rumsfeld, Case 3 Arp 207/04-02, at <http://www.ccr-ny.org/v2/legal/september_11th/docs/german_appeal_english_tran.pdf>. See infra note 26 and accompanying text.

22 When a Constitutional Tribunal judgment declares unconstitutional a court ruling that has acquired precedential status, such ruling is modified according to the Constitutional Tribunal j udgment. Organic Law of the Constitutional Tribunal, ch. IV, Art. 40.2.

23 Thus, on January 10, 2006, and citing the decision of the Constitutional Tribunal, the Audiencia Nacional opened a case against high-ranking Chinese officials accused of genocide in Tibet (Appeal No. 196/05 Jan. 10, 2006).

24 See Arrest Warrant of 11 April2000 (Dem. Rep. Congo v. Belg.), 2002 ICJ Rep. 3 (Feb. 14) (especially separate opinion of President Guillaume).

25 See Act on Grave Breaches of International Humanitarian Law, Aug. 5, 2003, Moniteur Belge, Aug. 7, 2003.

26 Code of Crimes Against International Law §153f; see supra note 21 and accompanying text.

27 The Convention Against Torture and various antiterrorism treaties contain this “extradite or prosecute” obligation.

28 See Roht-Arriaza, The Pinochet Effect: Transnational Justice in the Age of Human Rights (2005).

29 Thus, for example, a case charging genocide against many of the suspects in the Guatemalan case has been open in Guatemala since 2000, but progress has been slow and difficult, with no indictments yet entered. Case No. 3920- 2000, Ministerio Público, Guatemala (on file with author).

30 Scilingo, No. 16/2005 (Audiencia Nacional (penal chamber, 3d section) Apr. 19, 2005).

31 See Human Rights Watch, The Case Against Hissène Habré, an “African Pinochet, “at <http://www.hrw.org/english/docs/2005/09/30/chadll786.htm>..>Google Scholar

32 Hesamuddin Hesam, 57, and Habibullah Jalalzoy, 59—a former head of Afghan intelligence and his deputy— were convicted of torture in October 2005. Sebastian Nzapali, a former colonel in the Zairian army under Mobutu, was tried and convicted on torture charges in Rotterdam in March 2004.

33 Faryadi Sarwar Zardad, an Afghan accused of torture and hostage taking, was convicted in London in July 2005.