Th e trials against Joaquín Espinosa, on the one hand, and Laureano Nava, Indalecio González, Moisés Fernández as well as Domingo Félez, on the other hand, hold a special interest because, not being nationals of an enemy country but of a neutral state, they challenged the jurisdiction of the military courts.
However, whether Spain was a neutral country during World War II is a matter of opinion. Indeed, Franco’s Nationalist regime formally adopted a position of neutrality at the beginning of World War II, formalized in two agreements signed as early as December 1936 with Italy and in March 1939 with Germany. But when a German victory became likely, belligerence was considered by the Spanish government, as a means to satisfy certain territorial aspirations. 46 In 1940, after the defeats of the Netherlands and Belgium, Spain changed its neutral status into one of ‘non-belligerence’, a qualifi ed form of neutrality that in practice was a status prior to belligerence. 47 Th is concept was invented by Mussolini in 1939 to express Italy’s support (short of participation in the war) for Germany. 48 Only the German refusal to meet the conditions imposed by Franco’s government in order for Spain to fi ght by Germany’s side prevented Spain from taking the further step towards belligerence. Later on, when the United States entered the war and it became obvi-ous that this could have a negative eff ect on the Spanish interests, 49 a clear position from Spain was needed: either join the Axis or adopt genuine neutrality. 50 To that end, on 1 October 1943, Franco announced in a speech that Spain had returned to ‘watchful neutrality’. 51
46 Franco’s government hoped that in exchange Germany would help Spain to expel the British from Gibraltar and to expand in Northern Africa. See Rafael García Pérez , Deuda, Comercio y Nuevo Orden: España y el Tercer Reich durante la Segunda Guerra Mundial (1939–1945) ( Madrid : Ed. de la Universidad Complutense de Madrid , 1993 ), 291–3 ; Juan Carlos Jiménez Redondo , ‘La política española en los años de la II Guerra Mundial’ , Bulletin d’Histoire Contemporaine de l’Espagne , 22 ( 1995 ), 30 . Plans were even made to invade Portugal, see Gustau Nerín and Alfred Bosch , El imperio que nunca existió. La aventura colonial discutida en Hendaya ( Barcelona : Plaza & Janés , 2001 ), 41 , 49 ; Manuel Ros Agudo , La gran tentación: Franco, el imperio colonial y los planes de intervención en la Segunda Guerra Mundial ( Barcelona : Styria , 2008 ), 269–79 .
47 Manuel Espadas Burgos, Franquismo y política exterior ( Madrid : Rialp , 1987 ), 92 . Th e practice concerning non-belligerence during the Second World War is discussed at 92–5.
48 Edward R. Cumming , ‘Th e evolution of the notion of neutrality in modern armed confl icts’ ,
Military Law and Law of War Review , 17 ( 1978 ), 48 .
49 Th e participation of the United States meant increasing economical restrictions, a higher external pressure over Franco’s government and the possibility of the Allies attacking the Atlantic islands with-out Spain having means of defence: Jiménez Redondo, above n 46, 32–3.
50 Jiménez Redondo, above n 46, 32.
51 Ángeles Egido León , ‘Franco y la Segunda Guerra Mundial. Una neutralidad comprometida’ ,
Ayer , 57 ( 2005 ), 122 .
(1) Overcoming Spanish ‘neutrality’ through universal jurisdiction Debatable as it may be, Spanish ‘neutrality’ during World War II seems to have caused some uneasiness in the Deputy Judge Advocate Offi ce in charge of reviewing the sentences and recommending them for approval. Even though the question had not been raised by the defence in the trials, the review offi cer considered that the jurisdictional problem merited discussion. Th e following argument was made:
War criminals, brigands, and pirates are the common enemies of all mankind and all nations have an equal interest in their apprehension and punishment for their violations of international law. Concerning this question . . . every independent state has the judicial power to punish ‘piracy and other off enses against the common law of nations, by whom-soever and wherewhom-soever committed’. 52
According to this reasoning, these cases were to be seen as typical examples of universal jurisdiction exercised by a state in absence of any direct link with a crime perpetrated neither in the territory of the judging authority nor by or against nationals of that state. 53 Given that war crimes were delicta juris gentium, whose punishment was an issue of general interest to any country, all states had the juris-diction to try and punish them.
Th ere are some precedents for this in the aftermath of World War II. 54 Th e earliest examples, though, concern German defendants or nationals of Axis States, as in the Hadamar trial (8–15 October 1945), the Dachau parent case (15 November–13 December 1945), the Almelo trial (24–26 November 1945), and the Zyklon B case (1–8 March 1946).
Th e Hadamar trial took place before a United States Military Commission sitting at Wiesbaden (Germany). Th e defendants, German nationals, were accused of having taken part in the deliberate killing, by injection of poisonous drugs, of hundreds of Polish and Soviet nationals in a sanatorium in Hadamar, Germany.
Despite the fact that the crimes had been perpetrated by non-United States nationals, outside United States territory, and against non-United States nationals, the Military Commission decided to assume jurisdiction in the case. One of the reasons adduced to take such decision was:
[T] he general doctrine recently expounded and called ‘universality of jurisdiction over war crimes’, . . . according to which every independent State has, under International Law, juris-diction to punish not only pirates but also war criminals in its custody, regardless of the nationality of the victim or of the place where the off ence was committed, particularly where, for some reason, the criminal would otherwise go unpunished. 55
52 Navas Review, above n 28, 9. See also Espinosa Review, above n 25, 6.
53 Marc Henzelin , Le principe de l’universalité en droit pénal international. Droit et obligation pour les états de poursuivre et juger selon le principe de l’universalité ( Basel/Geneva/Brussels : Helbing &
Lichtenhahn/Faculté de Droit de Genève/Bruylant , 2000 ), 29 .
54 Henzelin, above n 53, 407.
55 US v Alfons Klein (Trial) 1945, 1 War Crimes Law Reports 46, 53 (US Military Commission appointed by the Commanding General Western Military District, USFET) ( Hadamar Trial ).
Th is main reasoning was further supported by two other arguments: the United States’ direct interest in punishing crimes against nationals of its allies, and the assumption of its local sovereignty in the United States zone of occupation (therefore deriving its jurisdiction both from the principle of territoriality and the principle of active personality).
Th e principle of universal jurisdiction was also mentioned in the Dachau camp trial to justify the jurisdiction of the United States military court over crimes against non-members of its forces that had been committed before the United States took control over the territory where they had been perpetrated. 56 In this case, two of the defendants were non-German (Johann Schoepp, a Romanian, and Dr Fridolin Karl Puhr, an Austrian), 57 but that fact was not taken into consideration when invoking the principle.
As far as the Almelo trial and the Zyklon B case are concerned, both took place before British courts, sitting in Almelo, Th e Netherlands, and Hamburg, Germany, respectively. In the Almelo trial, four German nationals were tried for the extra- judicial killing of a British prisoner of war and of a Dutch civilian, as well as espionage and war treason. Th e jurisdiction of the British court was established once more on the basis of universal jurisdiction over war crimes. 58 Th e universal jurisdiction argument was again supplemented by the principle of the direct interest of the judging state, British sovereignty over its zone of occupation, and the active per-sonality principle. Th e Zyklon B case involved three German nationals accused of supplying poison gas used to kill Allied nationals (although seemingly non-British) interned in concentration camps, knowing that the gas was to be so used. Unlike in the Hadamar and the Almelo trials, the main argument put forward to establish British jurisdiction was British local sovereignty over its zone of occupation (active personality and territoriality). Universal jurisdiction was in this case a supplementary ground for jurisdiction, together with the state’s direct interest in punishing the crimes perpetrated against Allied nationals. 59
To be sure, there had been trials of neutral countries’ nationals, but no arguments were made regarding universal jurisdiction. For instance, in the fi rst Ravensbrück trial, a Swiss citizen, Carmen Mory, was sentenced to death by a British military court sitting in Hamburg. 60 However, the court did not invoke universal jurisdiction.
Th e most probable reason for this seems to have been that no complaints were expected to be lodged by the Swiss government which was perfectly aware of the steps taken in the proceedings against Mory. A report by Captain John Sigrid da Cunha describing a meeting with a representative of the Swiss Ministry of Justice
56 US v Martin Gottfried Weiss (Review of Proceeding of General Military Court) (Offi ce of Judge Advocate, Th ird US Army and Eastern Military District, Case No. 000-50-2, 15 November–
13 December 1945) ( Weiss Review ), 140.
57 ( Weiss Review ), above n 56, 2.
58 Prosecutor v Otto Sandrock (Trial) 1945, 1 War Crimes Law Reports 35, 42 (British Military Court for the Trial of War Criminals, Court House, Almelo, Holland).
59 Prosecutor v Bruno Tesch (Trial) 1946, 1 War Crimes Law Reports 93, 103 (British Military Court, Hamburg).
60 Prosecutor v Johan Schwarzhüber (Trial) (Military Court held at No. 1 War Crimes Court, Curiohaus, Rothenbaumhaussee, Hamburg, 5 December 1946–3 February 1947).
supports this. According to Captain da Cunha, the Swiss government did not object to Mory’s trial and sentence. Given the serious nature of the crimes alleged, it was not ‘desired in any way to use diplomatic infl uence or action with a view to actively intervening in the legal process’. 61
At least two more trials against Spaniards took place in France in 1947, just weeks before the trial against Espinosa started. In neither trial was the problem of jurisdiction raised. Th e fi rst one was the trial of José Pallejà Caralt by a military court in Toulouse. Pallejà Caralt was found guilty of having committed espionage.
According to the court, inasmuch as he had worked as a Kapo, he had been feed-ing intelligence to Germany with a view to favourfeed-ing its enterprises against France (‘ en vue de favoriser les entreprises de cette puissance contre la France ’), in particular by imposing over the inmates an inhumane work that benefi ted the enemy and caused the death of many Frenchmen. He was sentenced to death on 11 March 1947. 62 Th e second trial, on 25 April 1947, saw Gregorio Lendínez Montes face a military court in Paris on charges of murder and ill-treatment. Lendínez was acquitted of all the charges. 63 Th e records of Pallejà’s appeal proceedings before the Cour de Cassation show that the issue of his Spanish nationality was not contro-versial. 64 Actually, the court held that crimes against the security of the state could be perpetrated both by members of the French Army and by foreigners serving in the army, according to a decree-law of 29 July 1939. 65
In view of these precedents, it can be concluded that the ‘Spanish Kapos’ trials seem to have combined for the fi rst time neutrality and universal jurisdiction regarding war crimes.
(2) A real need to invoke universal jurisdiction?
Th e interest that these two trials may have in tracking the history of universal jurisdiction increases when one considers that there was no call for universal juris-diction to legitimate the authority of US military courts to try the fi ve Spaniards.
To begin with, JCS 1023/10 provided that anybody who had committed any of the listed crimes was considered to be a criminal, regardless of his or her nationality . It imposed no Axis nationality requirement for alleged war criminals. Th is did not
61 Record of negotiations with regard to the trial of Carmen Mory, Capt. J.W. da Cunha, 4 September 1946 (UK National Archives, fi le WO 309/684). Th e representative of the Swiss Ministry of Justice would have further expressed gratitude on the part of the Political Department of the Foreign Offi ce for the correctness of the British attitude in contacting and informing about the details and facts of the forthcoming trial of a Swiss citizen, ‘thus avoiding in advance the possibility of diplomatic repercussions’.
62 Prosecutor v José Pallejà Caralt (Trial) (Tribunal Militaire Permanent de la 5ème Région, Toulouse, 25 April 1947).
63 Prosecutor v Gregorio Lendínez Montes (Trial) (2ème Tribunal Militaire Permanent de Paris, 25 April 1947).
64 Prosecutor v José Pallejà Caralt (Appeal) (Cour de Cassation de Paris, 23 July 1947), 1.
65 Décret-loi portant codifi cation des dispositions relatives aux crimes et délits contre la sûreté extérieure de l’État , 29 July 1939.
go unnoticed by the Deputy Judge Advocate, who after invoking universal jurisdiction in his review of the sentence, added that:
Military Government Courts have jurisdiction over the nationals of any country who are in the United States Zone of Occupation, except as to certain classes of American and other nationals, e.g., military personnel, which are not pertinent to the jurisdictional questions here involved. Concerning jurisdiction over war crimes, no limitation is imposed. 66 Th eoretically, there also existed a number of additional grounds that could have been used to justify the jurisdiction of US courts in these cases. For instance, juris-diction could have been based on ‘the right of a belligerent, on the total breakdown of the enemy owing to debellatio, to take over the entire powers of the latter, including the power to make laws and to conduct trials’. 67 Such a power was assumed by the four Allied powers occupying Germany in the ‘Declaration regarding the defeat of Germany and the assumption of supreme authority with respect to Germany by the Governments of the United States of America, the Union of Soviet Socialist Republics, the United Kingdom and the Provisional Government of the French Republic’, made in Berlin on 5 June 1945. As indicated above, the local sovereignty of the Allied powers over each of their respective zones of occupation was one of the reasons given to support British and US jurisdiction to try war criminals in the Hadamar and Almelo trials, as well as in the Zyklon B case. Such special sovereignty would have allowed them to prosecute crimes perpetrated in their zone of occu-pation according to the principle of territoriality. A further reason cited in the aforementioned cases which could have applied in the ‘Spanish Kapos’ cases was the theory of the direct interest. Th is theory was adduced in the Hadamar trial to justify the jurisdiction of a US military commission over crimes against non-US nationals which were not committed in the US territory nor by US nationals.
As already mentioned, 68 the military commission answered in the affi rmative not only on the basis of universal jurisdiction over war crimes and the assumption of supreme authority in Germany by the four Allied powers after debellatio, but also the direct interest that the United States (and mutatis mutandi every Allied state) had in punishing the perpetrators of crimes committed against nationals of allies
‘engaged in a common struggle against a common enemy’. 69
Finally, a slightly more convoluted basis for jurisdiction was the nationality of the victims in Mauthausen. As the charges in Altfuldisch and Lauriano Navas indi-cate, there were US citizens among the inmates in the camp. While this became the core argument in favour of the military court’s jurisdiction in the parent case, 70 in the ‘Spanish Kapos’ cases direct victims of the specifi c crimes committed were not US nationals. However, in the same manner as guilt was established as a con-sequence of the participation in the joint criminal enterprise, the factual elements
66 Navas Review , above n 28, 9.
67 United Nations War Crimes Commission, Law Report of Trials of War Criminals (His Majesty’s Stationery Offi ce, 1949) vol 15, 27. See also Henzelin, above n 53, 405.
68 See section II.A. of this chapter. 69 Hadamar Trial, above n 55, 53.
70 Altfuldisch Review , above n 18, 12.
in that wider context could also have been used to justify the jurisdiction of US military courts in the subsequent trials.
Given the variety of grounds of United States jurisdiction, what makes the references to universal jurisdiction in the ‘Spanish Kapos’ cases especially valuable is that they provide precedents to support the existence of an international practice with respect to this principle and its applicability to nationals of neutral states.