An Instance of Reasonable Universality

Abstract

The Audiencia Nacional`s (AN) decision in Scilingo is not well argued in all its implications and, on some points, the Court engages in legal acrobatics; the decision therefore lends itself to criticism. Nevertheless, the AN was right in exercising its jurisdiction over Scilingo`s extraterritorial crimes, both from the viewpoint of international law (on the basis of so-called conditional universality) and of domestic law (on the strength of Spanish rules of procedural and substantive criminal law). Furthermore, although crimes against humanity were provided for in the Spanish criminal code only in 2003, Scilingo`s trial and conviction for crimes against humanity is not at odds with the principle of legality (nullum crimen sine lege). Indeed, at the time of commission of his alleged crimes, rules of customary international law prohibiting such crimes already existed in international law and the corresponding domestic provisions were in force in the Spanish legal order. These rules and provisions became directly applicable as soon as Spanish law provided for a penalty attaching to such crimes.