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Spain Changes Tack on Universal Jurisdiction

Freewheeling Spanish judges are creating big diplomatic headaches for their government — and the parliament is fighting back.

by
Soeren Kern

Bio

May 28, 2009 - 12:00 am
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The Spanish parliament has approved a resolution urging Socialist Prime Minister José Luis Rodríguez Zapatero to limit the power of judges to prosecute people for atrocities and human rights crimes committed abroad under the concept of universal jurisdiction. Spanish law currently enables investigators to probe alleged human rights crimes regardless of where they are committed or where the defendants live. The nonbinding proposal calls on the government to reform the law, which is the most far-reaching in Europe, so that judges may only probe such cases if they involve Spanish victims or if the alleged offenders are found to be in Spain.

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 General Augusto Pinochet. Judges at the Spanish National Court (Audiencia Nacional) 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 reign in the judges increased when Spanish magistrates recently announced probes involving Israel and the United States. In January, Spanish National Court Judge Fernando Andreu said he would investigate seven current or former Israeli officials over an air attack in Gaza that killed a top Hamas militant in 2002 but also 14 other people. In March, Baltasar Garzón, Spain’s most high-profile judge, invoked the principle of universal jurisdiction when he sought to investigate six former Bush administration officials for giving legal cover to torture at the American prison at Guantánamo Bay, Cuba. And in May, another Spanish high-court 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 problem of freewheeling judges recently came to a head after Andreu rejected requests by Spanish prosecutors to suspend his inquiry on the grounds that Israel was already investigating the attack. A few days later, Pedraz said he would continue to pursue his case even though a National Court panel, as well as a U.S. Army investigation, recommended that no action be taken against the soldiers. 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.

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