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Spain - Draft law to criminalise public opposition to war

28 March 2012

A draft law to change the Spanish military criminal code proposes that participation in public acts opposing military intervention in a situation of armed conflict could lead to prison sentences of between one and six years for the people involved, if convicted of "defeatism". Civilians could find themselves before military courts. The proposals would mean a severe limitation of freedom of expression and political activity. Article 49 of the draft, produced by the Defence ministry and quoted in Spanish daily El País on 22 April 2002, reads as follows:

"A person who, in a situation of armed conflict of an international nature in which Spain is involved, with the aim of discrediting Spain´s participation in (the conflict), publicly carries out acts against it ... will be punished with a sentence of between one and six years in prison. The same penalty will apply to a person who ... divulges false news or information with the aim of weakening the morale of the population or to provoke disloyalty or a lack of spirit among members of the Spanish military".

According to the Spanish newspaper, the sanction would not apply only to actions against direct Spanish military involvement, but also to actions carried out "against an Allied power". If approved, these proposed norms could result in the people who turned out repeatedly in Spain to protest against the government´s backing of the war in Iraq being sanctioned for "defeatism" by a military court.

While "defeatism" currently applies to situations where war has been "declared" or is "generalised", the new law would extend it to "an armed conflict of an international nature". A declaration of war requires approval by the Cortes (parliament), and a "generalised state of war" involves an invasion by a foreign power, whereas the existence of an armed conflict includes circumstances in which war has not formally been declared (such as the latest war in Iraq). This new definition, implementing a lower threshold whereby acts commited "in circumstances under which in accordance with international treaties to which Spain is a Party such an armed conflict should be deemed to exist, or in cases where a state of siege is declared", would apply to all military crimes. According to El País, it is unclear in the draft whether it would be parliament or the government who determines whether such a situation of "armed conflict" exists. On the other hand, only parliament is authorised to declare a "state of siege".

Thus, "in a situation of armed conflict", "provoking, conspiring or inciting" the desertion of a member of the armed forces, or connivance in such acts, would be punished with sentences of between six and 15 years. Slogans like a banner opposing the war in Iraq that has been hanging from a balcony outside the office of the anarco-syndicalist trade union Confederación Nacional de Trabajo (CNT) in Madrid´s Plaza Tirso de Molina, which reads "without armies there would be no wars", could be covered.

Other measures introduced in the 1985 military criminal code in response to the failed military coup attempt by Guardia Civil lieutenant coronel Antonio Tejero on 23 February 1981 have been watered down in these proposals. An article included to ensure that obedience to orders "that involve the execution of acts that are manifestly opposed to the law or practices in times of war or that constitute a crime, particularly against the Constitution" would not be considered a mitigating or exempting circumstance, would be revised by the new draft to:

"The member of the military who carries out a crime in compliance with an order will not be exempted from criminal responsibility ... unless s/he were obliged by law to obey such an order, did not know that the order was illegal, and if the order was not manifestly illegal".

Such an amendment could lead to abuses by allowing notions of obedience to limit criminal responsibility.

The draft law also envisages an extension of the competencies of military judges to include a wide range of crimes that are normally part of the ordinary criminal code (e.g. drug dealing), if they are committed by members of the armed forces. El País notes that it would be the first time since the end of the dictatorship in 1975 that the competencies of military tribunals would be expanded, rather than reduced.

Source: El País, 22.4.03

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