366 Journal of the Spanisch Institute for Strategic Studies N. 3 / 2014 provided for in domestic or International legislation. Until relatively recently, states have been sceptical about providing for these types of offences in their domestic criminal legislation. In recent years, however, it can be said that there is a “universal” conscience which regards impunity for the serious violations of human rights that occurred in the last century as unjust and therefore believe it should be eradicated54; this idea has served as a basis for establishing international criminal law55. Accordingly, a number of norms setting out the criminal responsibility of the individual have arisen. And, moreover, according to the new international social reality in which we find ourselves, the state can extend its jurisdiction beyond the borders if these fundamental rights and freedoms are deemed to have been violated. From the point of view of criminal policy, this issue is clear, but legislation has to provide for this possibility out of respect for the principle of legality, one of the fundamental pillars of the Rule of Law. The first requirement is that such crimes be punishable under the Criminal Code, and the Spanish courts must be given jurisdiction to hear such cases. In Spain, the principle of universal jurisdiction is enshrined in the Organic Law on the Judiciary (LOPJ)56. 54 Vid. ROPERO CARRASCO, J.: “La relación entre la teoría de los derechos universales del hombre y el derecho penal más allá de los crímenes internacionales”, en CUERDA RIEZU, A. and JIMENEZ GARCIA, F. (Dir.): “Nuevos desafíos del derecho penal internacional: terrorismo, crímenes internacionales y derechos fundamentales”, Tecnos, Madrid, 2009, pag. 261. The authors have pointed out that “Under this ideology, classification of international crimes – including conventional crimes like individual rights, crimes against persons or property protected in the event of armed conflict, and the relatively new crime of genocide and crimes against humanity, both in domestic and international legal systems - are, together with International Tribunals, the key elements in establishing International Criminal Law as the defender of a minimum set of universal ethics”. 55 The preamble to the Statute of the International Criminal Court states the following: “Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation (…). Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”. 56 Article 23.4 of the LOPJ provides that: “The courts of Spain are competent to judge offences committed abroad by Spanish nationals or foreigners when the offence constitutes one of the following crimes: a) genocide and crimes against humanity; b) terrorism; c) piracy and unlawful seizure of aircraft; d) prostitution and exploitation of children and disabled persons; e) trafficking in narcotic and psychotropic drugs; f ) trafficking of human beings and clandestine immigration, irrespective of whether or not these are workers; g) genital mutilation of women, provided the perpetrators are in Spain; h) any other offence that Spain is obliged to prosecute under international treaties and conventions and, in particular, those dealing with international humanitarian law and the protection of human rights.
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