by Cristina Barchi
April 12, 2024, (revised on April 13)
This lawyer fought in Spanish courts in universal justice cases until Rajoy's government blocked those lawsuits from progressing. She now foresees many countries acting against Israel for the Gaza massacre.
Originally from Valencia, Almudena Bernabeu is the first female Spanish educated barrister in the UK and founder of Guernica 37, a firm of 30 lawyers specialising in genocide and transitional justice, with offices in London, Madrid and San Francisco. With 25 years' experience in cases such as those of Augusto Pinochet, Efraín Ríos Montt and the murder of Ignacio Ellacuría, she intervened in the lawsuit against nine high-ranking Syrian officers for the torture and murder of the brother of a Spanish citizen in 2017. The complaint was admitted by Judge Eloy Velasco but was ultimately rejected by the Criminal Chambers of the Spanish High Court for lack of jurisdiction.
Almudena also participated in the lawsuit of a Spanish-Tibetan against China for the genocide in Tibet. In that case, the obstacle was political. In 2014, the Popular Party approved a legislative reform to further limit universal jurisdiction.
“Cruelty and sadism are found in all armed conflicts, but not on the televised scale of this media genocide which, in the absence of reporters who have been murdered, is broadcasted daily by the victims themselves," says Bernabeu of Israel's attacks in Gaza.” As if in the gas chambers we had handed out smartphones to those who were hopeless.”
The lawyers of Guernica 37 seem the perfect candidates to handle requests from outraged citizens. Can a Spanish citizen react to this barbarity and file complaints through you? Who are your clients?
Yes, they can, but it’s not easy. Our clients can be sponsors of victims, states and foundations. These are however, long and costly processes. The precariousness of our professional field that remains for 20 years favours the human rights abusers. For years, lawsuits have been advancing only due to the conviction and altruistic efforts of a few, and this means that the defence and protection of human rights is the exception rather than the norm.
To combat this, we founded Guernica 37 in London in 2017, combining private practice with the public interest dimension and following the Anglo-Saxon model. The fact that it is pro bono limits and reduces its effectiveness. In the case of Syria, we worked on behalf of citizens united by the same interest, to reveal to the world through legal actions the systematic torture inflicted by the high command of [Syrian dictator] Bashar al-Assad's army.
In the 1990s, with the Pinochet case, optimism was born and the fight against impunity was seen as possible in many countries.
Yes, but successes turn into punishment, our intervention was seen as excessive. Universal jurisdiction was perceived as a political manipulation that only generated political problems, such as the case against Ariel Sharon and the case of Tibet/China in Spain, which led to the legislative reform by the Rajoy government, putting an end to universal justice in the country. These legislative aberrations have not yet been corrected.
Rajoy dismantled the practice of universal justice in Spain which was a scandal internationally but not in Spain. The horrors in Ukraine and Palestine provide an opportunity to understand the importance of instruments such as the law of universal jurisdiction. There is a strong global consensus to expose these gross violations of human rights.
Do you see a case like Nuremberg in relation to what happened in Gaza?
It will be a relentless trickle of legal actions. There will be the South African-led action [in the International Court of Justice] as well as in every national court that wants to pursue it because of the universal jurisdiction laws. There will be soldiers and officers who will never be able to leave Israel unless they are willing to be arrested. This will precipitate a social and political cost from which Israel will not recover.
In my opinion, the consequences for them will be greater than what they have achieved or will achieve by destroying the people of Gaza. This arrogance will end when they understand that they will be prosecuted throughout their lives. Zionism was a laudable idea after the Second World War, but today it is nothing more than an ultra-nationalist ideology that is used to justify aggression and violence. The international consensus and agreement against what they are doing must be maintained and action taken.
Al Shifa Hospital in Gaza, destroyed entirely on April 1 after Israeli troops abandon the area. Mohamed Hajjar / EFE
Why was it necessary to found Guernica 37? Didn't such a thing exist until now?
My departure from Spain was born of frustration; I quickly realised that, without the courage of my colleagues in Spain, we would not have had the international criminal law and international human rights law that we enjoy in the world today. However, their practical application is something that Spain has not managed to take us out of the sphere of altruistic civil society and goodwill. The experts exist, but not with the capacity to find the financial resources to take these cases forward. In terms of litigation to establish accountability for human rights violations, there is nothing like Guernica 37 and it has been very well received in the Anglo-Saxon world, less so in Spain, where I believe there is an absence of trust due to a lack of understanding of the model. That saddens me. Spain is a daring, iconoclastic and innovative country in everything but law.
You are the first non-UK-educated Spanish woman lawyer to be a barrister and to be able to litigate before the British courts, with rights of audience, not a solicitor. Why did you want to become one?
Along the way, I specialised as a lawyer in these issues, working a lot and joining large teams, which gave me a vision of internationality and possibilities. Between the Spanish language and education of the 1990s, it was very difficult to break through, so at some point, life led me down the path of common law, which I now know well. I like it’s strategic wrestling with complex cases as it focuses on interpretation and innovation. I like the importance of the independence of judges and the integrity of the profession. It is foundationally democratic, with indispensable elements such as the jury.
Has Europe violated international law by omission, or does the obligation only exist selectively if the world powers want it to?
This is unfortunately the case, although compliance is mandatory and the obligation is explicit and erga omnes, i.e., universal. It is time to demand accountability for the failure to uphold it. Most importantly: under the principle of universal justice, the obligation of other states is to demand it.
Will this televised impunity bring more authoritarianism to the West, where the killing of civilians, journalists and medical workers or the bombing of hospitals is tolerated?
Undoubtedly. We have been talking about fighting impunity for thirty years. With impunity, violence and its different forms are amplified and perpetuated. It is crucial to demand accountability and not to let these crimes or any others go unpunished.
What is the trans-generational imprint that incubates the horrors of genocide so that a part of a people that was a victim has become an executioner, four generations later and without the ability to recognise it?
We have not yet seen the extent of the horrors. But suffering does not always bring revenge. To think that is a mistake. I have seen many cases of a deep desire to turn the page and move on with their lives, to look for new opportunities. When I have looked into the eyes of a genocidaire I have seen a pathetic man, one we recognise as a coward. And in the victims, I have often experienced that the immense chasms of pain through which they have lived have granted them access to the depths of their own humanity. There are smiles I have come across that are indescribable. It is as if by looking at them you can know what humanity is. They are beings on another level. At the risk of sounding spiritual, they are souls who have found forgiveness. That is to say, peace.
Your driving force is the figure of the victim. By what moral prism does a government that inflicts famine and kills more children in five months than in four years of wars around the world still present itself as a victim?
The 7 October attack hardly makes Israel a victim to justify its actions. There is a context, a siege that radicalised a terrorist group, which may have had the sympathy but not the support of the Palestinian people. To talk of victimhood here is to continue the suffocating rhetoric that will destroy these two countries.
What is it that we must never forget about this chapter in human history?
That the consequences of the violence we are capable of inflicting will be felt increasingly in the years to come. We are not only destroying the present but also the future.