JOHN CARLOS I

KING OF SPAIN

To all who present it and understand it.

Sabed: That the General Courts have approved and I come to sanction the following Organic Law.

EXPLANATORY STATEMENT

I

On July 17, 1998, the Diplomatic Conference of Plenipotentiaries, convened for the purpose by the United Nations and meeting in Rome, adopted the Statute of the International Criminal Court, which was signed by Spain, together with others. countries, at the end of the Conference, on 18 July.

The Rome Statute constitutes the colophon of a series of works and negotiations whose origin coincides, practically, with the birth of the United Nations and which, with varying intensity, have taken place along the last half a century.

Thus, following the precedents of the international military tribunals of Nuremberg and Tokyo, created in 1945 and 1946 to try the main German and Japanese officials accused of the commission of " crimes against peace, The General Assembly of the United Nations adopted in 1948 the Convention for the Prevention and Punishment of the Crime of Genocide and established a Special Committee for the Development of the Statute of a permanent international criminal jurisdiction, which came to prepare a project between 1951 and 1953.

The decision of the Court of Justice in The Hague in 1971 found that the 1948 Convention against Genocide was part of customary international law. Subsequently, the United Nations Resolution of 3 December 1973 declared that crimes against humanity would be pursued and could not go unpunished. This accumulation of legislative, doctrinal and jurisdictional efforts laid the foundations for the effective protection of human rights in the international arena, breaking with old dogmas of criminal law, such as the principle of territoriality of criminal law, based on the idea of national sovereignty, which yields to a new principle of universal jurisdiction.

After the end of the Cold War, the General Assembly returned to the subject, in 1989 to the International Law Commission to draft the draft Statute of the International Criminal Court and the Code of Crimes against Peace and the Security of Humanity. These projects were presented by the Commission in 1994 and 1996, respectively, and, once recast, extended and completed by a Committee composed of government representatives, constituted the basis for the Conference. Diplomat from Rome.

In addition to this process, initiatives of a more restricted scope have emerged in recent years, but of great importance as precedents of the International Criminal Court, such as the International Courts created in 1993 and 1994 by the United Nations Security Council for the prosecution of those responsible for serious violations of International Humanitarian Law committed in the territory of the former Yugoslavia and Rwanda, respectively.

All this led to the Rome Conference, after lengthy and intensive negotiations, culminating in the drafting of the Statute, the text of which was adopted by 120 votes in favour, including all the countries of the Union and the great majority of Western countries, 7 against and 21 abstentions.

The objective pursued by the Rome Statute is the creation of the International Criminal Court, as an independent judicial body, although linked to the United Nations, with permanent character and potentially universal, which will be competent to prosecute crimes of greatest importance to the international community as a whole.

Since the four international criminal tribunals that have been created up to now have been for specific and temporary situations, the constitution of an international criminal jurisdiction with a general vocation and remain a decisive step in the development of the international order.

The characteristics that exist in the Statute of the International Criminal Court make it possible to affirm that with it the foundations of a new International Law are laid: more humanizing, because it seeks the best protection of the human being In the face of the most serious attacks on their essential dignity, more inclusive, by bringing together the will of a large number of countries with very different legal and political systems, and more effectively, by providing the international community with a new instrument designed to guarantee the effective observance of its norms more fundamental.

II

Overcoming the difficulty of the diversity of political and legal systems among the States participating in the Conference of Rome, the Statute resulting from its deliberations is a comprehensive text that regulates all aspects necessary for the implementation and effective functioning of the International Criminal Court: its establishment, composition and organisation; the applicable law and the general principles of criminal law which must inspire its action; delimitation of their competences, both from the material and the spatial point of view; and -the classification of the offences and the penalties to be imposed, as well as the rules for the execution of the offences; the procedural and operating rules of the judicial bodies, and the mechanisms for cooperation with the States and other bodies; international for the best achievement of the intended objectives.

In addition, the Statute provides that the regulation contained in it is subsequently developed by various regulatory instruments, in particular the elements of the Crimes, the Rules of Procedure and the Test, the Rules of Procedure and the Rules of Procedure. The Court, the Agreement on the relationship with the United Nations, the Agreement on Privileges and Immunities, the Financial and Personal Regulations, etc., all of which will enable the correct and effective functioning of the Court.

III

Formally, the Statute is structured in a preamble and 128 articles, systematically grouped into thirteen parts. Of this broad content, some aspects are highlighted as more significant.

The Court is born as an independent institution, although linked to the United Nations system, endowed with international personality and with the legal capacity necessary for the performance of its functions. It will be based in The Hague.

According to the principle of complementarity, the Court does not replace national criminal jurisdictions. The jurisdiction of the Court shall be exercised only in a subsidiary manner, where the competent State is not prepared to prosecute certain facts or cannot do so effectively.

It is important to point out that the Court is not competent to prosecute States, but to prosecute persons, not to prosecute isolated acts, but serious violations of International Humanitarian Law committed in an extensive or continued in a given situation.

With regard to the material jurisdiction of the Court, the Statute limits it to the most serious crimes of transcendence to the international community as a whole, with the understanding of the genocide, the crimes against humanity, war crimes and aggression. The first three categories of crimes are listed in the Statute itself in accordance with the most modern trends in International Criminal Law. The subsequent drafting of an instrument called "Elements of Crimes" is foreseen, which will further clarify the content of these criminal figures, in order to help the Court interpret and apply these precepts. With regard to the crime of aggression, the Court's jurisdiction is deferred until, at least seven years after the entry into force of the Statute, a Review Conference adopts, by a particularly qualified majority, a provision which define such a crime and regulate the modalities of the exercise of the Court's jurisdiction with respect to it.

The jurisdiction of the Court will be mandatory for the States parties, which will automatically accept that jurisdiction for the very fact of ratifying or adhering to the Statute. Furthermore, the Court's jurisdiction may be extended to other States not parties where the Court has accepted the jurisdiction of the Court as a crime committed in its territory or committed by nationals of those States, or when the Court of Justice The Security Council has determined this by virtue of its powers under Chapter VII of the Charter of the United Nations. As regards the temporary scope of competition, the Statute expressly provides that it will not have retroactive effect.

The criminal action initiative is exclusively for the Prosecutor, once the mechanism for activating the Court has been implemented by one of these three ways: by impulse of a State party; by impulse of the Council of Security; or on the initiative of the Prosecutor, provided that it has the authorization of the Preliminary Chamber of Questions. However, the Statute-in order to ensure that the Court does not act more than in cases where the internal courts are unable or willing to do so-recognises the State which has jurisdiction over the facts and powers to urge the Prosecutor's inhibition and challenge the Court's jurisdiction or the admissibility of the case, with the sole exception of cases in which the case has been referred to the Court by the Security Council. In such cases, it is understood that the interest of the international community, on whose behalf the Council is acting, is understood to be in the interests of justice as a means of restoring international peace and security in a given situation. For the same reason, the Security Council is recognized in the Statute as the extraordinary faculty of urging the suspension of the Court's actions with respect to a given situation, if it is understood as necessary in the light of peace and security.

As a complement to the competition and procedural rules, the Statute contains a number of general principles of criminal law which must guide the Court's action: "nullum crime sine lege"; " nulla poena ";" ratione personae ", individual criminal liability; exclusion of persons under 18 years of jurisdiction of the Court; where any distinction is made on the basis of official office; responsibility of the heads and other higher; impressionability of the crimes; element of intentionality; Circumstances exempted from criminal liability; error of fact and law, and compliance with superior orders and legal provisions.

Organically, the Court-whose official languages will be the same as those of the United Nations: Arabic, Chinese, Spanish, French, English, and Russian-is structured in the Presidency, the Sections, the Prosecutor's Office and the Secretariat.

Likewise, and together with the judicial bodies and the Secretariat, the Statute recognizes important functions for an Assembly of the States Parties, which shall be responsible, among other tasks, for the adoption of the instruments of development. the Statute and any reforms thereto, elect magistrates and prosecutors, approve the budget of the Court and the rules of budget execution, supervise administrative and financial management, as well as guide the Court's relationship with the United Nations and other international bodies and ensure that the States cooperate effectively with the Court when it is reclining its collaboration.

In terms of the structure and the development of the process, techniques of Anglo-Saxon law and continental rights are combined, taking advantage of the experiences of the existing "ad hoc" International Courts. The Statute sets up a dual-instance system, after the instruction phase is completed.

As to the penalties, the Statute provides that the Court may impose a sentence of imprisonment for a given number of years not exceeding thirty or, in exceptional cases, a sentence of imprisonment for a specified number of years. perpetuity, when justified by the extreme seriousness of the offence committed and the personal circumstances of the sentenced person. In addition, the Court may impose fines and forfeiture of the proceeds of the proceeds of the crime, without prejudice to the rights of the third parties in good faith. The custodial sentences shall be served in a State designated by the Court in each case, on the basis of a list of States which have indicated to that State their willingness to receive a sentence in their penitentiary establishments, availability that may be subject to certain conditions.

Finally, the Statute regulates the obligations of international cooperation and judicial assistance to the Court by the States parties, mainly contemplating three forms of cooperation: the delivery of persons to the Court; the international judicial assistance, for the provision of documents, the conduct of tests, etc., and the execution of the Court's judgments, in its various aspects. In the event of a lack of cooperation from the States Parties, the Court may raise the matter before the Assembly of States Parties or the Security Council if the latter has referred the matter to it.

IV

Unlike the International Courts for the former Yugoslavia and Rwanda, which were created by Security Council resolutions under Chapter VII of the Charter of the United Nations, the Criminal Court International is established on a conventional basis, through the multilateral treaty called the Rome Statute, held under the auspices of the United Nations.

According to the Statute itself in its final clauses, the treaty is open to the signature of all States and is subject to the ratification, acceptance or approval of the signatory States, as well as to the accession of any another State. The deposit of sixty instruments of ratification, acceptance, approval or accession is required for the entry into force of the Statute. By requiring that the number of States be brought together, the purpose of providing the new Court with sufficient support and legitimacy to enable it to act effectively on behalf of the international community is evident.

in Spain, Parliament expressed its clear support for the process of drawing up the Statute on several occasions and, in particular, with the adoption of an extensive non-law proposal in the Committee on Foreign Affairs Congress of Deputies, dated 24 June 1998, in which precise guidelines were set for the negotiation by the Spanish delegation. Finally, our country signed the Statute in Rome on 18 July 1998.

V

In sum, the content of the Rome Statute encompasses both the organic, functional and procedural aspects of the International Criminal Court, as well as the scope of its jurisdiction, being set up as a new and independent instrument, of unprecedented importance for the international legal order. The present Organic Law authorizes the provision of the State's consent, in accordance with the provisions of Article 93 of the Constitution, for the purpose of ratifying the Statute. This authorization is expressed in the only article that contains the Law, which is accompanied by a declaration expressing the willingness of Spain to receive persons convicted by the Court in the penitentiary establishments of our country provided that the duration of the prison sentence imposed does not exceed the maximum allowed by our legislation, a declaration expressly permitted in Article 103 of the Staff Regulations, as required by the provisions of Article 25.2 of the Constitution, which requires that the custodial sentences and the security measures be aimed at the reeducation and social reinsertion of the sentenced person.

Finally, through the ratification of the Statute that is authorized by this Law, Spain is among the countries that will contribute initially, with its participation in the process of institution of the new Court and elaboration of the necessary instruments of development, to the establishment of a more just international order, based on the defense of fundamental human rights. The active contest in the creation of the International Criminal Court is thus a historic opportunity to reiterate the firm conviction that the dignity of the person and the inalienable rights that are inherent are the only foundation. possible coexistence in any political, state or international structures.

Single item.

The ratification of the Rome Statute of the International Criminal Court, signed by Spain on July 18, 1998, is authorized.

ADDITIONAL DISPOSITION

Unica.

For the purposes of paragraph 1 (b) of Article 103 of the Staff Regulations, the wording of the following Declaration is authorised:

" Spain declares that, at the time, it will be ready to receive persons convicted by the International Criminal Court, provided that the duration of the sentence imposed does not exceed the highest maximum foreseen for any crime under Spanish law. "

FINAL DISPOSITION

Unica.

This Organic Law shall enter into force on the day following that of its publication in the "Official Gazette of the State".

Therefore,

I command all Spaniards, individuals and authorities, to keep and keep this Organic Law.

Madrid, 4 October 2000.

JOHN CARLOS R.

The President of the Government,

JOSÉ MARÍA AZNAR LÓPEZ