Spain’s Parliament Moving to Rein in Garzon?

The Wall Street Journal had a news story yesterday, “Spain is Moving to Rein in Crusading Judges” (May 20, 2009), reporting on moves in the Spanish parliament to place stricter limits on the ability of investigating magistrates – most famously, Baltasar Garzon – to undertake sweeping investigations and indictments worldwide on the basis of universal jurisdiction:

Under pressure from irate foreign governments, Spain’s Congress on Tuesday passed a resolution to limit the jurisdiction of the crusading judges to cases in which there is a clear Spanish connection — and no home-country investigation already under way.

The six investigating judges of Spain’s National Court, employing the so-called principle of universal jurisdiction, are now handling 13 cases involving events that took place in other countries, from Rwanda to Iraq.

I realize that Garzon is a hero for many in the human rights community.  In Spain, however, he receives a much more mixed review – indeed, likely leaning to the negative side.  I lived there on sabbatical a couple of years ago and serve as the political sciences editor of the Madrid Revista de Libros, and so keep in reasonably close contact with opinion in Spain.  There is some admiration for Garzon’s willingness to go after human rights abuse, as he sees it and defines it, and that admiration commingled with a certain pride that Spain through him takes a public place in the world.   

However, all that is considerably outweighed by the perception of Garzon, especially in the legal profession, among judges and governing elites in Spain, as an international publicity-hound always willing to perform a stunt if it will get him headlines.  Nowhere was this more in display than in the Madrid railway terrorist bombings – although not the judge on duty, he came on the scene within minutes and took charge, refusing to give it up until finally publicly rebuked by the chief judge and, everyone was agreed, eager to be in charge of the most public case imaginable.  Many professional lawyer and jurist friends in Spain who privately told me then – I was living in Spain when the bombing took place – that they found Garzon a deep embarrassment.  (Not to mention the years-long backlog of domestic Spanish cases, which somehow seem to take a backseat when a magistrate like Garzon has the opportunity to seize international headlines with something far away from Spain.)

The problem with Garzon and universal jurisdiction runs considerably deeper than just one (one some views) out of control investigating magistrate, however. The nature of the Spanish system allows the investigating magistrate theoretically vast, independent powers of investigation and pretrial activity, in ways that combine prosecutorial and judicial functions.  In the modern constitutional period, even in Spain, with a different civil rights and liberties sensibility than before, the meshing of these theoretically sweeping powers with a contemporary sensibility of the rights of the accused has always required a great deal of discretion on the part of the investigating magistrates.  Even more in cases that wind up reaching to countries with quite different systems, and expectations, about procedure and process – and these matters are quite apart from the considerations of jurisdiction and whether asserting jurisdiction is even appropriate.  Moreover, these powers can be exercised – and Garzon has exercised them – just as sweepingly the other direction, against ETA suspects and sympathizers, in ways that those who favor strong action against terrorist groups favor, but which should give some pause to absolutist human rights activists.

The move by the Spanish parliament comes on account mostly of pressures from outside Spain:

[T]he investigations by the judges, who are independent from the executive and legislative branches, have become a growing headache for the Spanish government. The Chinese government warned Spain that bilateral relations could be damaged over the case regarding Tibet crackdowns. The Israeli government strongly criticized the investigation into its 2002 attack on a Hamas leader, which killed 14 other people. Israeli Prime Minister Benjamin Netanyahu said the case “makes a mockery out of international law.”

The U.S. has publicly taken a softer line. Behind the scenes, however, U.S. officials have met with the Spanish government and its prosecutors to try to halt the two cases related to the U.S. prison camp, according to officials of both countries.

Spain’s government prosecution service has opposed all three cases. Still, the judges have forged ahead, widening the rift between them and the government. The attorney-general, Cándido Conde-Pumpido, warned recently that the justice system risked turning into a “plaything.”

 The article hints at what friends of mine in Spain say – although Israel and the United States are both unhappy with Spain’s investigations, the driving force behind the change,  is … China.  The international rights community should take close note here.  When the US talks, no one expects it to use a really big stick of trade, or true economic pressure, etc., against an EU country like Spain.  When China talks, Spain is unwilling to take a chance.  Suddenly there is an agreement among the political parties that it is time to amend the law.

(Put another way at a far more general political and abstract level – something I noted in an essay on the UN and the US in the Revista de Libros last year – a not-inconsiderable part of what international community regards as “universal” – e.g., the universal jurisdiction that Spain allows a single magistrate to exercise, solely in his own discretion – actually exists because of rather un-demanding American hegemony.  Those who wish for American hegemony to decline, and welcome the rise of the multipolar world as an alternative, should consider carefully what a Chinese hegemony would mean for those universalist dreams.  (Chris and I each have articles on the question of a multipolar world in the forthcoming Chicago Journal of International Law – adv.))

Whether the amendment will do what the political leadership intends is another question.  As currently conceived, it would limit the scope of the magistrates:

Under the resolution, cases taken up by the judges would have to involve a Spanish citizen or the accused would have to be on Spanish soil. The Spanish government now will introduce legislation, which the major parties in Congress have agreed to back. It wasn’t clear whether the changes would apply to existing cases or only to future ones.

Clearly some cases would be ruled out.  But how far the provision could be interpreted to include, for example, indirect economic interests of Spanish citizens was far from clear.  On the other hand, a couple of my Spanish LLM students told me that they expected that as a legal-political matter, the provision would provide a far stronger ground for the Spanish justice minister to intervene to stop cases.

Very interesting reporting – and the published article also includes a useful graphic outlining the various cases being pursued abroad by Spanish magistrates.