In 1998, Garzón had former Chilean dictator Augusto Pinochet arrested during a visit to London, although Britain ultimately refused to extradite him to Madrid for trial. In the years that followed, Garzón used the principle of universal jurisdiction to go after current or former government officials such as former U.S. Secretary of State Henry Kissinger, former Italian Prime Minister Silvio Berlusconi, and around 100 leaders of the 1976-1983 military junta in Argentina.
At one point, Garzón and his colleagues were pursuing more than a dozen international investigations into alleged cases of torture, genocide, and crimes against humanity in places as far-flung as Colombia, Tibet, and Rwanda. Most of these cases had had little or no connection to Spain and critics accused Garzón of interpreting the concept of universal jurisdiction too loosely.
Calls to rein in the judges increased when Spanish magistrates announced probes involving Israel and the United States. In January 2009, Spanish National Court Judge Fernando Andreu said he would investigate seven current or former Israeli officials over a 2002 air attack in Gaza. In March of that year, Garzón said he would investigate six Bush administration officials for giving legal cover to torture at the American prison at Guantánamo Bay, Cuba. That 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.
In any case, Garzón and his colleagues have been highly selective about the cases they pursue. For example, they have never attempted to prosecute any Palestinian terrorists for war crimes. Nor have they had much zeal for investigating crimes against humanity in Chechnya or Darfur. Nor have they prosecuted any of the suspected Nazi war criminals who sought refuge in Spain after the end of World War II.
In 2009, 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. Rather than heeding that advice, Garzón redoubled his efforts to pursue U.S. officials suspected of authorizing and carrying out the alleged torture of four inmates at Guantánamo Bay.
Concerned that Spain’s judicial system was being hijacked by left-wing groups out to pursue political vendettas (and that Spain’s media savvy judges were more interested in scoring political points than in upholding the law), the Spanish parliament in 2009 passed a bill to narrow the scope of the universal jurisdiction law to cases in which the victims of a crime include Spaniards or the alleged perpetrators were in Spain.
But old habits die hard. In January 2012, Garzón’s successor, Judge Pablo Rafael Ruz Gutiérrez, reactivated the investigation into the alleged torture of detainees at Guantánamo Bay. In a 19-page ruling, Ruz said he would seek additional information in the case of the four Guantánamo captives, who have since been released, but who allege they were humiliated and subjected to torture while in U.S. custody.
Because the United States has not pursued the matter, Ruz said, his court has jurisdiction to investigate the former U.S. officials named in the former detainees’ complaint. Those officials include former President George W. Bush; former Vice President Dick Cheney; former Defense Secretary Donald Rumsfeld; and two former Guantánamo commanders, retired Marine Major General Michael Lehnert and retired Army Major General Geoffrey Miller.
Garzón’s friends on the left, both inside Spain and abroad, have expressed outrage that the “crusading human rights judge” was hoist with his own petard. In a rather hysterical editorial, the New York Times, for example, described the Spanish high court ruling as an “appalling attack on judicial independence.”
Not everyone agrees. Spanish Justice Minister Alberto Ruiz-Gallardón said the ruling demonstrated “the normal functioning of our institutions.” Esperanza Aguirre, the head of Madrid’s center-right regional government, said “it is a happy day for the rule of law.”
Henry Kissinger once warned that “universal jurisdiction risks creating universal tyranny–that of judges.” In Spain, the judges, led by Garzón, have been responsible for their own undoing.