The repeated Spanish threats to use military force to prevent Catalans from voting on the 9 November referendum pose a significant legal risk to former defense officials such as Carme Chacon, who served as minister of defense from 2008 to 2011. Over the last few months, we have heard many Spanish politicians and military officers openly brandish this threat, as their only response to Catalan efforts to regain the freedom lost by force of arms in 1714 (when Spain conquered Catalonia). The Spanish Government, with the support of the opposition Socialists, has failed to punish any of these officers. Although no longer in office, and currently taking a break from active politics in the US (teaching at Miami's Dade College), it should thus not come as a surprise if, when pondering the legal responsibilities that may flow from any such coup, some people wonder whether they may extend to Ms Chacon.
While plans to military intervene in Catalonia may have been first drafted following Chacon's departure from office, should any earlier blueprints emerge at a war crimes trial, the prosecution may argue that she was guilty of conspiracy or of aiding and abetting the commission of those war crimes. Case law is quite clear on this. Past instances, including the trials (Nuremberg and Tokyo) following the Second World War, saw defendants found guilty even they were not directly and materially responsible for criminal deeds.
As a result, it may be advisable for Chacon, after consulting her lawyers, to compile any evidence she may have (or may have had access to in the past) of plans for a military intervention against Catalonia, and either bring it before a court, or make it available to the media. Ideally, this should go hand in hand with a public appeal to the Spanish armed forces not to use force against Catalan citizens, accompanied by private communications to top officers she may have personally known during her period at the helm of the Spanish Defense Ministry. Although Chacon cannot by herself prevent the Spanish Government from using force against Catalonia, this would not only be a meaningful contribution to the cause of peace, democracy, and freedom, but should also dispel any doubts about her potential criminal liabilities. Full cooperation with justice is the least citizens and the international community can expect from someone who held the highest responsibilities, just a few years ago, in Spain's military.
Alex Calvo is a professor of international relations and international law at European University, and guest professor at Nagoya University (Japan)