An Instance of Reasonable Universality: The Scilingo Case

The Audiencia Nacional's (AN) decision in Scilingo is not wellargued in all its implications and, on some points, the Courtengages in legal acrobatics; the decision therefore lends itselfto criticism. Nevertheless, the AN was right in exercising itsjurisdiction over Scilingo's extraterritorial crimes, both fromthe viewpoint of international law (on the basis of so-calledconditional universality) and of domestic law (on the strengthof Spanish rules of procedural and substantive criminal law).Furthermore, although crimes against humanity were providedfor in the Spanish criminal code only in 2003, Scilingo's trialand conviction for crimes against humanity is not at odds withthe principle of legality (nullum crimen sine lege). Indeed,at the time of commission of his alleged crimes, rules of customaryinternational law prohibiting such crimes already existed ininternational law and the corresponding domestic provisionswere in force in the Spanish legal order. These rules and provisionsbecame directly applicable as soon as Spanish law provided fora penalty attaching to such crimes.