Spain’s Parliament Moving to Rein in Garzon?

by Kenneth Anderson

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.

http://opiniojuris.org/2009/05/21/spains-parliament-moving-to-rein-in-garzon/

14 Responses

  1. Very good points, especially about China’s role. To my understanding China would go to extreme lengths to stop, eg, a case on Tibet.

    Happily perhaps for the international law community, EU leaders have shown very little desire to make China take extreme measures. Re-arranging itineraries, or mumbling about potential purchases of large capital goods, is usually a tough enough signal to cause Europe’s champions to fold.

  2. This comes after a similar retrenchment by Belgium.  As for Garzon, he is absurd, having recently launched a prosecution against the Franco regime — yes, Spain has a long case backlog but not 70 years. Apparently he does not watch Saturday Night Live, or he would know that “Generalissimo Franco is still dead.”

  3. A very interesting post. Thanks.

  4. Proposal follows Supreme Court’s opinion about universal jurisdiction (judgements 25/02/2003 and 18/03/2005) that Constitutional Court had rejected as a restrictive interpretation of art. 23.4 LOPJ (Ley Orgánica del Poder Judicial: Judiciary Act) in judgements 237/2005 (26/09/2005) and 227/2007 (22/10/2007). As a lawyer, I think Spanish Courts (in fact, National Court) can´t become universal courts to prosecute crimes committed abroad without any particular connection with Spain. Universal jurisdiction is a luxury we can´t afford.

  5. Juan Jose,

    Thanks for the comment – indeed, thanks to all the above commenters – and let me ask, if you happen to see this, what is a connection to Spain?  How particular does it have to be?  My Spanish LLM students were somewhat divided on that question – generally they thought it more restrictive than a common law lawyer might think it was, but something that allowed more wiggle room than the tone of the news article suggested.  Which was why they thought it was partly a political signal that the magistrate had to pay much closer attention to the views of the Justice Ministry.  But does this correct as a matter of law to you?  What does a connection with Spain mean under Spanish law?  I welcome comments from Juan Jose or anyone with expertise in Spanish law on such matters.

  6. I haven´t read neather the text of (non binding) resolution passed by Congress on Tuesday nor the amendment to the judiciary act proposed by two main parties, because they haven´t been published in Parliament Gazette yet. It´s supposed that, as Supreme Court said, Spanish Courts would only be competent to judge crimes committed abroad if:
     
    –         Responsibles for crimes are in Spain,
    –         There are Spanish victims and
    –         There is no judicial investigation about crimes in the country where crimes were committed or in an international tribunal.  
     
    Anyway, this is what newspapers tell about this theme. We will have to wait until official publication to know the truth.
     

  7. I understand that this is a very controversial issue and that there is apparently little overlap in opinion between the international human rights community and the general Spanish public.  But I for one hope that the Spanish government fails to approve this resolution, as there is much to gain and little to lose from continuing to investigate and prosecute these cases.

    Given the divide between judiciary and government, it is unfortunate – although inevitable – that politics should have a role to play.  But estimates suggest that the concrete effects on relations are negligible.  Re the initial (2005) Tibet case: “Although the case could incriminate former Chinese President Jiang Zemin, few here believe that the investigation will threaten China’s status as Spain’s most-desired trade partner, a relationship that has flourished in the last year. Not only did the two countries’ prime ministers exchange visits in 2005, Spanish companies invested a total of 60 million euros in China that year, up from 46 million euros the year before. And in 2006, Spanish investment in China is expected to double.” (I concede that these figures are a bit behind, so any update would be appreciated).  The Pinochet case also cost either country (Spain/Chile) very little – “Economic relations continued pretty much unchanged” (Naomi Roht-Arriaza, The Pinochet Effect, p65). 

    Despite his critics, Garzon’s actions (and those of his fellow Audiencia judges) have had a positive impact on the credibility of international human rights and have brought hope and relief to previously unrecognised victims.  For me, pride rather than embarrassment should be a more apt word to use.

    And this at a time when attitudes towards universal jurisdiction are softening.  A quick examination of the US’s change in approach is a good example – following the Belgian initiation of investigations against George Bush Snr and General Tommy Franks, the US wasted no time in threatening to withdraw funding for NATO HQ in Brussels (there’s your big stick!), leading to the folding of the Belgian law.  But in this instance we see quiet diplomacy (paired with a general US softening to international justice principles – the ICC/Darfur situation a good example).

    I understand that the government and the Spanish people may have strong reasons for opposing this law but, my advice: hold tight, because until the ICC realises universality, we need you.

  8. Um, Mark, with respect you have fundamentally missed the point in your analysis of the implications for Spain. No, no-one does expect China to cease to be Spain’s most-desired trading partner.

    Yes, no-one doubts that China would happily throw Spain on the dust-heap if they actually persisted in investigating Chinese officials’ conduct anywhere, let alone in China.

    Pinochet is a slightly different case, as I’m sure you are aware, he was no longer in power and indeed the party that was was his nominal ideological and principled opponents, not to mention the vastly closer cultural relations between the two countries and the vastly different balance-of-power between them.

    They are some reasons why I think Pinochet’s prosecution was probably justified and on balance beneficial, whereas that of the Chinese officials is probably not and probably won’t be.

    More to my point, though, is that there is (and was) a largely global and Chilean majority view that Pinochet was guilty of torture and other crimes. There is no such majority view with respect to China and Tibet, I’m afraid, not in the world at large and not even remotely in China.

    In my experience the majority of Chinese would react passionately to an actual prosecution. The Chinese government wouldn’t have to install sanctions, no-one in China would buy anything remotely Spanish or sell anything to them. You can (and should) check this with a poll of the sophisticated ‘westernised’ Chinese students at your nearest university – make sure you can point to Tibet on a map first!

    To conclude, the last thing we need in forging an international consensus on the morality of certain acts, for only out of such consensus can international human rights law grow, is a rogue judiciary pursuing political agendas under the guise of human rights law. And this is the last thing that China will allow to happen, which, for all the reasons you have missed in your comment, is why Spain will change the law.

  9.        ”  Responsibles for crimes are in Spain,
    –         There are Spanish victims and
    –         There is no judicial investigation about crimes in the country where crimes were committed or in an international tribunal.”

    I think that the torture lawyers are not out of the woods even if this non-binding resolution became law under the three rules.

    I understand that the Spanish judges had point 2 (5 spanish citizens or residents held at Gitmo and released back to Spain) and (given the way the US has gone so far (3).  On 1), the question will be whether one of them travels in the relevant European space following Garzon’s approach with England with Pinochet analogy.  Also, the question will be whether some of the prior Spanish government or intelligence acquiesced in the taking of these people to Gitmo.

    I still think we should do these prosecutions domestically in the United States and that we are actually much closer to that than we have been in the past five years.  That may make the Spanish effort moot.

    It is good that the heavyweights have had to show their hand on this – now if the people in the democratic heavyweights can show their hand domestically maybe the heavyweights can focus on criminal responsibility and accountability at their level.  Even heavyweights are run by people and people with power respond to power.

    Best,
    Ben

  10. Patrick,
    Fair point on Pinochet – the situation was different, which is why I only made brief mention of it.  But, that said, it is clear that Chile strongly opposed the arrest, opposed the concept of UJ – so the point I made remains valid.

    The point I was trying to make is that there is no evidence of ill-effects for Spain (of course, this stands to be disproved by my poll of Chinese students!).  The Tibet case has been rolling on for four years now and is at a very advanced stage, but no action has been taken by China against Spain.  The quote I cited merely served to demonstrate that economic activity has not been disrupted (I take your point that this is about Spanish investment in China  and not vice versa – but it at least illustrates that economic cooperation has continued unabated).  Okay, if concrete negative effects do occur for Spain then this may shift the balance.  But I doubt that anything would happen – because it would those States under investigation look as though they have something to hide.

    Well, I’m sure you’re right in your prediction that Spain will change the law.  But I guess the desirability of such an outcome will remain a subjective debate.

  11. I´ve just read the text of the (non binding) resolution passed on last Tuesday about universal jurisdiction. There is a little (and very important) difference between official publication and press reports.

    Resolution urges Government “to promote urgently reform of art. 23.4 Judiciary Act in order to limit and clarify  the scope of universal jurisdiction principle, according to subsidiarity principle and Supreme Court and Constitutional Court Jurisprudence; that is to say, it will be necessary to prove that  alleged responsibles are in Spain or there are Spanish victims and,  in any case, that, in country where crimes were committed or in an international tribunal, there is no criminal proceeding which means an investigation and an effective persecution of those crimes (…)” (free translation)

     In any case, this rule will only be in force when (and if) Congress modifies Judiciary Act.

    If so, it´s clear that our Courts will not be competent to investigate facts occurred in Tibet (there aren´t Spanish victims). What about Guantanamo? I think Spanish Courts would be able to investigate facts happened there, because at least one Spaniard was detained in the base. 

  12. Juan Jose, thanks for those important clarifications!  The “or” is very important, of course, plus the fact that at this point it is a nonbinding resolution.  Very helpful – thanks.  One last favor if you see this – could you post here a link to the text in Spanish? Thanks.

  13. Here it is (from official website of “Congreso de los Diputados”):

    http://www.congreso.es/docu/tramit/propuestas_aprobadas_DES2009.pdf

    Number 39 is the one about universal jurisdiction (and other things).

  14. Thanks!

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