Spain Steps Back from Universal Jurisdiction
by Soeren Kern
The Spanish National Criminal Court (Audiencia Nacional) said on Tuesday it was scrapping an investigation into a 2002 Israeli Air Force bombing in Gaza that killed a suspected Hamas militant and 14 civilians. The move comes just days after the lower house of the Spanish Parliament voted to limit the scope of a 1985 law that allows judges to investigate crimes against humanity anywhere in the world.
Taken together, the developments mark a significant setback for advocates of universal jurisdiction, a legal concept whereby states can claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other relation with the prosecuting country.
Spanish judges have gained a reputation for activism in recent years by using the principle of universal jurisdiction to pursue cases against suspected human rights violators overseas, most famously the former Chilean dictator, Gen. Augusto Pinochet.
Spanish magistrates are currently pursuing more than a dozen international investigations into suspected cases of torture, genocide and crimes against humanity, in places as far-flung as Tibet and Rwanda. But many of these cases have little or no connection with Spain, and critics say the judges are interpreting the concept of universal jurisdiction too loosely.
Calls to restrict the scope of universal jurisdiction reached a crescendo when Spanish magistrates announced probes involving Israel and the United States. In January 2009, Spanish Judge Fernando Andreu said he would probe seven top Israeli military and government officials for suspected "crimes against humanity" in the 2002 targeted assassination of Salah Shehadeh, the commander of the military wing of Hamas.
In March, Baltasar Garzón, Spain's most high-profile judge, invoked the principle of universal jurisdiction to investigate six former Bush administration officials for giving legal cover to torture committed at the U.S. detention center in Guantánamo Bay, Cuba.
And in May, another Spanish judge, Santiago Pedraz, said he would charge three U.S. soldiers with crimes against humanity for the April 2003 deaths of a Spanish television cameraman and a Ukrainian journalist. The men were killed when a U.S. tank crew shelled their Baghdad hotel.
The legal standoff recently came to a head after Andreu rejected requests by Spanish prosecutors to suspend the lawsuit against Israel, since Israel was already investigating the case. Several days later, Pedraz said he would continue to pursue his case against the American GI's, even though a National Criminal Court panel, as well as a U.S. Army investigation, recommended that no action be taken.
Meanwhile, Attorney General Cándido Conde-Pumpido asked Garzón to shelve his case against the Americans and warned of the risks of turning the Spanish justice system into a "plaything" for politically motivated prosecutions. Instead of heeding that advice, Garzón opened yet another investigation that seeks information on everyone who authorized and carried out the alleged torture of four inmates at Guantánamo.
Spanish lawmakers are now worried that the media-savvy judges are more interested in scoring political points than in upholding the law. They are also concerned that Spain's judicial system is being hijacked by activists who are out to pursue a political agenda.
Indeed, most of the cases, including those involving Pinochet, Israel and the United States, have been the handiwork of Gonzalo Boyé, a "human rights lawyer" who earned his law degree through correspondence courses while serving a 10-year sentence in a Spanish prison. Boyé was convicted of collaborating with the Basque terrorist group ETA in the kidnapping of Emiliano Revilla, a well-known Spanish businessman. Prior to that, Boyé was a member of the Movimiento de Izquierda Revolucionaria, a Marxist-Leninist revolutionary group based in Chile, where Pinochet was his nemesis.
The lawsuits are also creating a major diplomatic headache for Spanish Prime Minister José Luis Rodríguez Zapatero. An irate China recently warned Spain that bilateral relations could be damaged over the case involving Tibet. And Israeli Prime Minister Benjamin Netanyahu has told Spain that it risks being sidelined in the Middle East peace process. The warning represents a shot across the bow of Spanish Foreign Minister Miguel Ángel Moratinos, who has tried to position himself as a mediator between Israelis and Palestinians.
But the Spanish government is most worried about the negative impact the probes could have on relations with the United States. Bilateral ties were badly damaged by Zapatero's decisions to withdraw Spanish troops from Iraq, and more recently from Kosovo. As Spain prepares to take over the six-month presidency of the EU in January 2010, Zapatero has vowed to make improved relations with the Obama administration the centerpiece of his foreign policy agenda.
Sensing that now is the time to impose some restraint, the Congress of Deputies, or the lower house of the Spanish Parliament, on June 25 voted by an overwhelming 341-2 majority to restrict the future scope of universal jurisdiction to cases in which: a) the victims are Spanish; b) the alleged perpetrators are in Spain; or c) some other clear link to Spain can be demonstrated. Senate approval is virtually guaranteed due to strong bipartisan support.
Although the reform will not be retroactive, and the cases now being investigated will in theory continue, in practice some of the more high-profile cases involving Americans are likely to be dropped in a fashion similar to the case involving Israel. Says Carlos Dívar, the chief justice of the Spanish Supreme Court, "We cannot turn ourselves into the judicial gendarmes of the world."
By reining in the freewheeling judges, Spanish lawmakers seem to be heeding the advice of Henry Kissinger, who once warned, "Universal jurisdiction risks creating universal tyranny -- that of judges."