26 Jun Adios Spanish Universal Jurisdiction?
It seems likely that Spain is about drastically curtail its universal jurisdiction law–the law that had been used by Magistrate Baltasar Garzon to go after Augusto Pinochet–such that it really won’t be universal jurisdiction at all. While some (many?) of my international law colleagues may view this as a step backwards, I welcome this adjustment as a prudent move that will foster the international rule of law. More on that in a moment, First, here’s the background from the BBC:
Currently, 10 cases from five continents are being investigated by Spanish judges, under the principle of “universal jurisdiction,” which holds that some crimes are so grave that they can be tried anywhere, regardless of where the offences were committed.
In a recent statement, almost 100 organisations collectively praised Spain’s “pioneering approach,” gushing that the country “should feel proud of itself” for becoming a reference point for other nations.
Except, Spain’s left-leaning government sees things rather differently.
In parliament, it is sponsoring a controversial change in the law, which would limit the future scope of universal jurisdiction to cases in which (i) the victims are Spanish, (ii) the alleged perpetrators are in Spain, or (iii) some other clear link to Spain can be demonstrated.
On Thursday, the proposal was approved by lawmakers in the lower house by an overwhelming 341-2 vote, with three abstentions. Senate approval is seen as a formality.
Human rights lawyers claim that the government of Spain is reacting to pressure from other governments. The BBC continues:
In common with the human rights lobby, [Oscar Soto Guzman, Chilean President Allende’s personal physician] accuses the politicians of acting out of political motives.
“For the government of the day, I suppose it’s more comfortable to forget the past and avoid diplomatic problems. There have been very strong international pressures in these cases – above all, from Israel.”
Israel’s intervention, in January, followed the opening of an inquiry by the Audiencia Nacional into a bombing raid on Gaza in 2002, which targeted a known Palestinian militant but also killed 14 civilians.
Seven Israelis – a mix of politicians, officials and military officers – were accused of crimes against humanity.
In a statement, the Israeli government branded the inquiry in Madrid “unacceptable,” while the then Foreign Minister Tzipi Livni told her Spanish counterpart the killings were already under investigation in Israel.
Soon afterwards, Madrid confirmed that the law on universal jurisdiction would be changed.
“The Spanish foreign minister was scared,” alleges Gonzalo Boye, the lawyer who filed the complaint against Israel.
“This is the wrong concept of foreign relations. Instead of dealing as equals, they are dealing from a position of submission to countries which are protecting war criminals.”
Mr Boye claims that ongoing cases against China (Tibet) and lawyers for the Bush administration (Guantanamo Bay) added to the government’s desire to put a stop to such diplomatically-sensitive probes in future.
I’m not in favor of Spain reworking its law because I’m a friend to dictators and rights-abusers. Rather, I think this makes sense because I think it will foster more than hurt the rule of law.
Universal jurisdiction by national court judges, when practiced in its truly universal form (when there is no nexus between the accused or the act with the adjudicating forum) leads more to cries of improper judicial interventionism than any real sense that international law is being upheld. It breeds hostility to international law more than a respect for it.
Courts have to be careful when they interject themselves into delicate political situations; this is true domestically and even more so when a foreign court is deciding to jump in to a dispute in which it has relatively little understanding of the politics and almost no control over the relevant witnesses and evidence needed for a proper adjudication. Especially if the country of the court has no direct connection the issue, I am skeptical that such a suit would help matters much.
This does not mean that I think there is absolutely no role for foreign courts. In the non-criminal realm of torts claims, I think there is some role for courts and that the U.S. Supreme Court’s decision in Sosa was an attempt to strike such a balance. Here, I think that the Spanish legislators are attempting to strike a similar balance in which the rule of law is upheld, without opening the door to extreme uses that generate more heat than light.
I should note that when I started teaching international law I was much more enthusiastic about universal jurisdiction. But that optimism has faded. I think international justice is better served by a combination of domestic courts that adjudicate cases in which there is some real nexus to their home jurisdiction and international courts (and especially the ICC) that pick up the slack.
My civil procedure professor had once said that litigators should “seize the inch.” That is, gain the tactical advantage that is possible and defensible (the inch) rather than try to take big leaps that are likely to fail and collapse the whole case. I think that is true for the construction of international law: universal jurisdiction in its extreme form wasn’t seizing the inch, it was a big jump where we couldn’t stick the landing. It has bred skepticism (if not hostility) more than results. Better to seize the inch and build structures for international justice that can stand the test of time.
We shouldn’t think of this as a step backwards so much as finding a better path forward.
I love the way it is all about Israel. Ken Andersonpublished a much more informative peice in this forum which suggested that the real pressure from the perspective of the Spanish government was Chinese.
Given that I believe Israelis have been targeted by universal jurisdiction prosecutions in Spain for a lot longer than Chinese, this would be more logical, too (otherwise, why the sudden change of heart?)
I do agree with the editorial point of this post, too, although perhaps that is because I am not a (public) international lawyer!
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“Courts have to be careful when they interject themselves into delicate political situations; this is true domestically and even more so when a foreign court is deciding to jump in to a dispute in which it has relatively little understanding of the politics and almost no control over the relevant witnesses and evidence needed for a proper adjudication.”
This is exactly the argument against your point. Poltics should never be part of a legal dispute. As we now can see, if you are part of a strong economical and military power politics will ensure that, whatever crime you are accused of, you will never be held accountable. To claim that accusations of criminal conduct (unless adopting torture as government policy is no longer coonsidered a crime) are nothing more than policy disputes is insulting in the extreme. Heck, next time I rob somebody I will point out that the disagreement on whether to transfer money from one individual to another is merely a policy dispute.
Tsutsugamushi: To say that “politics should never be part of a legal dispute” oversimplifies the situation. The heart of the political question doctrine in the U.S. is that there are some questions that are inhertently political, and should be left to the Legislative and the Executive branches to decide. Related to this is the idea that there are certain issues where there are few, if any, texts for a court to use as a basis for decision. Thus, courts are functionally disfavored in such situations. In such a case, a court would be applying its own political preference as opposed to legal principle. But, when universal jurisdiction is used, prudential doctrines (such as the poltical question doctrine) tend to fall by the wayside. That is the danger… that a foreign judge will assert jurisdiction over something that should be left to the domestic political process of another country and claim that his or her interpretation of what they believe to be a legal norm should trump the domestic political process of that other country. So the question isn’t just whether, say, torture is illegal. (No question there.) But it does imoplicate issues such as whether a country should be able to come through a period of turmoil by choosing to use… Read more »
Patrick: It appears to me that Chris and I are following up exactly the same point – the BBC piece Chris quotes, after all, notes that the Chinese cases are part of the concern of the Spanish government. If I said anything more informative, it was because I was quoting personal sources who would not allow themselves to be quoted publicly on this topic. I believe that my friends in Spain are right in ascribing the concern in the Spanish government particularly to concern about Chinese government reactions, partly because they are personally well-sourced, but I doubt very much one could show that on the basis of purely public or published sources – the most one can say is what Chris quotes from the BBC story.
“That is the danger… that a foreign judge will assert jurisdiction over something that should be left to the domestic political process of another country” True enough. But in the Spanish example the Courts will only act when no action has been taken by a more appropriate forum (essentially an application of the complementarity principle) and the fact is that, certainly in the China example, no action has been taken at home – not even a “domestic political process/bargain” such as an amnesty or a TRC. That being the case I wonder if exercises of universal jurisdiction such as this one might just nudge authorities towards some kind of said process, be it legal or political. Would an investigation in Spain, however ineffective in real procedural terms, push China towards some kind of action? And a recognition that questionable policies have been pursued in Tibet, together with a pursuant investigation – even one that results in amnesty – may be better than nothing. The rule that politics displaces the rule of law in such trans-boundary cases (“there are some questions that are inherently political”) would ring less true given backing to the Spanish cause; indeed there are indications that the China case is receiving foreign support (UK, Sweden, Canada,… Read more »
Thank you for the response but it only underscores my position. I appreciate the delicate balance between politics and law but I am afraid I was insufficiently clear about what crimes should fall under this heading. If we limit this principle to i.e. Crimes Against Humanity I hope most of the objections disappear. They are clearly defined and should aggressively be prosecuted, regardless of what country the person comes from. Should the homecountry abdicate its duty to prosecute these crimes I enthousiastically support any other country (nexus or not) to do that. Regarding your response “Moreover, keep in mind that claiming jurisdiction over acts in a foreign country when there is no nexus with your own is itself a highly political and politicized stance (and extremely controversial among lawyers).” Evidently politicians, or a judiciary, that engage, or turn a blind eye to such crimes would be subject to this doctrine. Surely there will be strong political pressure to prevent such a criminal procedure. Contrary to your position I believe this only strengthens the need for a truly universal jurisdiction for these crimnes. If politicians (just an example) feel that committing i.e. human rights violations might put them in jail it may cause… Read more »