Spanish UJ — From Pinochet to Purgatory?

For critics of universal jurisdiction, Spain’s UJ statute has become the poster child for accusations of excess. How strange it seems that roughly ten years ago it was so widely celebrated as the provision that brought down General Augusto Pinochet. Spain’s indicting the former Chilean dictator and Britain’s detaining him on the attendant arrest warrant and extradition request is still hailed by many as a watershed moment in international law – a breakthrough perhaps as transformative as the Nuremberg trials themselves. So what happened?

For one thing, the Spanish National Criminal Court (or Audencia Nacional), open to private litigants supported by aggressive examining magistrates (such as Pinochet’s nemesis, Baltasar Garzón ), has seemingly become a breeding ground for politically-charged prosecutions having little or no connection to Spain. Investigations have been undertaken against high-ranking American officials including Dick Cheney and Condoleezza Rice related to the torture of terrorism suspects. Seven Israeli politicians and military officers, including former defense minister Binyamin Ben-Eliezer, are the subject of a probe because of a July 2002 Gaza Strip airstrike that resulted in fourteen civilian deaths. Chinese officials are being investigated for abuses in Tibet and forty Rwandan army officers have been indicted in connection with alleged post-genocide reprisal massacres. Critics cry that Spanish UJ has been hijacked by activists pursuing political agendas and settling scores. The Spanish government seems to concur and has been opposed to these far-flung global justice efforts. In fact, Spain’s public prosecutor’s office has openly challenged the UJ power of the Audencia Nacional. And since the heady days of Pinochet, only one defendant has been tried and sentenced under the Spanish UJ law (Argentine naval captain Adolfo Scilingo, who turned himself in to Garzón in 1997 and was ultimately condemned to 640 years in jail for “Dirty War” offenses).

Pressure on Spain to rein in the Audencia Nacional has been exerted by foreign leaders from across the globe and it appears that Madrid, eager to remain a player on the international stage, is ready to cry uncle. The left-leaning Spanish government (with rare bipartisan support from Spanish conservatives) is sponsoring far-reaching UJ legislation that would restrict the scope of future cases to those in which: (1) the victims are Spanish; (2) the alleged perpetrators are present in Spain, or (3) some other clear link to Spain can be demonstrated. On June 25th, the measure overwhelmingly passed the Congress of Deputies (the lower house of parliament) by a vote of 341-2. Passage in the Senate is considered to be a foregone conclusion. The amendment will not have retroactive effect so the most controversial cases may not go away.

Still, NGOs (such as Human Rights Watch here) and certain commentators (such as IntLawGrrls here) have cried foul. They see the Spanish National Criminal Court as the last refuge for victims who can seek justice in no other venue. I have to confess to mixed feelings. I can think of no crusades with higher stakes than the global fight against impunity and effective UJ has to be a part of that. I wholeheartedly cheered the Pinochet outcome in the House of Lords way back when. But it does seem like a reassessment of the Spanish formula is now in order. UJ should never be exploited as a political leverage mechanism but, as noted above, Spain’s system appears to have been quite vulnerable to that tactic. According to World Politics Review (in an article by Soeren Kern):

Spanish lawmakers are now worried that the media-savvy judges are more interested in scoring political points than in upholding the law. They are also concerned that Spain’s judicial system is being hijacked by activists who are out to pursue a political agenda. Indeed, most of the cases, including those involving Pinochet, Israel and the United States, have been the handiwork of Gonzalo Boyé, a “human rights lawyer” who earned his law degree through correspondence courses while serving a 10-year sentence in a Spanish prison. Boyé was convicted of collaborating with the Basque terrorist group ETA in the kidnapping of Emiliano Revilla, a well-known Spanish businessman. Prior to that, Boyé was a member of the Movimiento de Izquierda Revolucionaria, a Marxist-Leninist revolutionary group based in Chile, where Pinochet was his nemesis.

And then much has changed since Spain first enacted its UJ law in 1985. Aside from the scores of countries that have since passed their own UJ statutes, as well as the advent of the ad hoc and hybrid tribunals, the International Criminal Court has come into existence and is now operational (in fact, many nations have adopted UJ laws to satisfy their Rome Statute obligations). There is less need for Spain to serve as a global court. And the current version of Spanish UJ lacks checks and balances (such as an authorizing prosecutor).

So does it still make sense for the country that gave us Don Quixote to keep judicially tilting at superpower windmills? Some might argue that’s not the point. Garzón and his band of crusading magistrates bring to light human rights violations otherwise easily obscured by world powers flexing their muscles. The purpose of Alien Tort Claims Act actions in the United States, they might note, is typically not to obtain actual money damages; it’s about raising awareness and exposing malefactors. In this context, it’s nice to know that someone is at least investigating Dick Cheney and thumbing a nose at Chinese threats and thuggery.

But the cost may be too great. The lack of safety valves and checks and balances in the Spanish system is problematic. As is the Spanish statute’s disregard for the principle of complementarity – there is no statutory mechanism in place to halt a case when territorial courts have in good faith launched their own investigation or initiated their own prosecution (although there is admittedly a Spanish Constitutional Court ruling to that effect, Spain’s seeming disregard of an Israeli investigation into the Gaza case gives pause). And nothing in the current statute mandates the slightest nexus between the forum state and the case or its parties. Finally, there is no consideration of gravity in the UJ trigger calculus. This will be the subject of an entire article I have started writing, but I submit we need a global Universal Jurisdiction treaty to foster consistency and fairness. Short of that, Spain’s imminent reform is probably a good start.