Spain must resist diplomatic pressure to limit application of universal jurisdiction

Reed Brody [Counsel and Spokesperson, Human Rights Watch]: "Spain has become the latest battleground in the fight over the soul of international justice. On Tuesday, its lower house of Parliament called for a limit on its universal jurisdiction law over international crimes, irrespective of where they are committed, to cases in which there are Spanish victims or the alleged perpetrator is on Spanish soil. If this is translated into law, victims of international crimes will lose one of the most hospitable fora for redress.

Spain earned its reputation as a haven for victims in 1998 when Judge Baltasar Garzón issued an arrest warrant for Chilean General Augusto Pinochet, triggering his arrest in London and setting off a justice cascade in Chile and throughout Latin America. Since then, Spanish courts have advanced investigations of alleged crimes in El Salvador and Guatemala, issued warrants for top Rwandan leaders and convicted an Argentine official for "dirty war" killings.

But three recent cases involving powerful countries — over alleged crimes in Gaza, Tibet and Guantánamo — have put the law in jeopardy. Foreign Minister Miguel Ángel Moratinos reportedly told Israeli Foreign Minister Tzipi Livni that he would seek to have the law changed, China has publicly protested to Spain, and it is widely believed that the Obama administration has leaned on the Spanish government as well. While it is unlikely that these cases will lead to extraditions and trials in Spain, they can help justice to emerge. There is a hope among human rights activists, for instance, that, just as Spain's arrest warrant against Pinochet eventually led Chile to start its own prosecutions against Pinochet, the Guantánamo cases in Spain will help persuade the Obama administration to establish a true accountability process in the United States.

While one can understand the quandary of the Spanish government, it would be a shame if it capitulated to diplomatic pressure, as Belgium did in 2003 after then-Defense Secretary Donald Rumsfeld threatened to move NATO headquarters if Belgium did not repeal its law after a suit against US officials. It would confirm a growing sentiment — fueled by the dismissal of cases in France and Germany against US officials accused of crimes against detainees, and the International Criminal Court's focus thus far on Africa - that international justice targets only the leaders of weak states while officials of powerful countries have the muscle to prevent accountability.

There is evidence that the Spanish public is proud of their country's role in promoting justice. In the Pinochet case, the Spanish public and press stood up time and again to attempts by the then-center-right government to block Judge Garzón's warrants. This time, both the Socialist government and the conservative opposition have highlighted the diplomatic costs to Spain. The next few weeks will tell whether Spanish pride prevails or whether power politics will once again allow impunity to regain a foothold."

 

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