Spain Changes Tack on Universal Jurisdiction

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.

Spanish lawmakers are now concerned that the media savvy judges are more interested in scoring political points than in upholding the law. They are also worried that Spain’s judicial system is being hijacked by left-wing groups that are out to pursue a political agenda. Indeed, most of the universal jurisdiction lawsuits that have been presented in Spanish courts (including those involving Pinochet, Israel, and the United States) have been the handiwork of one Gonzalo Boyé, a “human rights lawyer” who earned his law degree through correspondence courses while in a Spanish prison. He was serving a 10-year sentence for collaborating with the Basque terrorist group ETA, and for his participation in the kidnapping of Emiliano Revilla, a well-known Spanish businessman. Prior to that, Boyé was a member of the Movimiento de Izquierda Revolucionaria (MIR), a militant Marxist-Leninist revolutionary group based in Chile, where Pinochet became his nemesis. He is now the Spanish representative of a group calling itself the Palestinian Centre for Human Rights.

For their part, Spanish judges have been highly selective in their pursuit of universal jurisdiction. For example, they have shown little or no interest in prosecuting crimes against humanity in the Islamic world. Moreover, most of the lawsuits have been against individuals linked to the political right, such as Chile’s Pinochet, an Argentine military officer named Adolfo Scilingo, former U.S. Secretary of State Henry Kissinger, Italian Prime Minister Silvio Berlusconi, former Israeli Prime Minister Ariel Sharon and six of his senior advisors, and most recently, former Bush administration officials.

The self-promoting Garzón, who in 1998 became an instant hero of the global left when he issued an arrest warrant for Pinochet, has in the past decade become increasingly more erratic, overreaching his jurisdiction not only abroad but also at home. In October 2008, for example, Garzón declared that he would start prosecuting “crimes against humanity” committed by Spanish dictator General Francisco Franco and his close aides during and immediately after the Spanish Civil War (1936-39). As a card carrying Socialist, however, he was not interested in investigating the atrocities perpetrated by Spanish left-wing extremists during that same war. A month later, Garzón sheepishly dropped the case after the public prosecutor’s office questioned his jurisdiction over acts committed 70 years ago by people who are all dead and whose alleged crimes were covered by a 1977 general amnesty.

Activist judges like Garzón, Andreu, and Pedraz are also creating a big diplomatic headache for the Zapatero government. An irate China has warned Spain that bilateral relations could be damaged over the case regarding Tibet. And Israeli Prime Minister Benjamin Netanyahu has told Spain that it risks being sidelined in the Middle East peace process, a shot across the personal bow of the vainglorious Spanish Foreign Minister Miguel Ángel Moratinos, who fancies himself as an indispensable mediator between Israelis and Palestinians.

But the Spanish government is most worried about the negative impact the Guantánamo probe may have on relations with the United States. Zapatero has raised the expectations of Spanish voters that he can forge warm ties to the Obama administration, and thus pull Spain out of the diplomatic wilderness into which he has led the country during the past four years. The recent debacle involving the withdrawal of Spanish troops from Kosovo, coupled with Garzón’s legal chicanery, has reinforced the impression that Spain is an unreliable ally. Indeed, other European leaders have distanced themselves from the Spanish position, fearful of jeopardizing future relations with Washington.

For the time being, however, it remains unclear whether Zapatero will concur with the parliamentary resolution, which was backed by 339 deputies in the 350-seat chamber, and limit the jurisdiction of Spain’s crusading judges. Indeed, the government seems divided on the issue. Sensing that the case against Israel has the potential to further cement Spain’s image as one of the most anti-Israel countries in Europe, Moratinos said his government should amend the law. But he was immediately contradicted by Deputy Prime Minister María Teresa Fernández de la Vega, who stated defiantly that “Spain is a country ruled by law and the justice system [here] enjoys absolute independence. This was made clear to Israel and we are sure they understand this.”

It also remains to be seen whether any change in the law would apply retroactively to pending cases. A slave of public opinion, Zapatero understands the propaganda value of leading the global cause against Israel and the United States. With the Spanish economy in shambles and the unemployment rate forecast to reach more than 20 percent, he knows a good diversionary tactic when he sees one.