Preserving Spain's Universal Jurisdiction Law in the Common Interest

JURIST Guest Columnists Olga Martin-Ortega of the Centre on Human Rights in Conflict, University of East London (UK), and Jordi Palou-Loverdos, a lawyer who has represented Rwandan, Congolese and Spanish victims of crimes against humanity before the Spanish courts, say that preserving Spain's broad universal jurisdiction law from growing political pressure to narrow it is in everyone's interest....



On June 25th a bill to amend existing universal jurisdiction legislation in Spain was passed by the Spanish Congress and now awaits approval in the Senate. The bill follows an agreement between Spain's two main political parties on amending Article 23.4 of the Spanish Organic Law on the Judicial Power (LOPJ in its Spanish acronym). The purpose of this amendment is to limit the capacity of Spanish courts to exercise jurisdiction over international crimes committed abroad by non-Spanish nationals. This amendment has been made through an unusual and extraordinary parliamentary process which limits debate, and in fact prevents necessary informed discussion on it. While final passage of this legislation now appears inevitable, it is also lamentable, as it would be a loss to our common humanity.

Spanish courts have been exercising universal jurisdiction for over a decade now. They have made an extraordinary contribution to the development of international criminal law and the fight against impunity. Article 23.4 LOPJ establishes that the Audiencia Nacional has jurisdiction over acts perpetrated by Spanish nationals and acts perpetrated by foreigners outside of Spain if such acts are alleged to constitute: genocide, terrorism, war crimes, and any other crime which should be prosecuted by Spain in accordance with international treaties.

The Spanish courts first exercised universal jurisdiction in 1998 when the Audiencia Nacional indicted several Argentinean and Chilean officials for their alleged roles in abuses committed as part of Plan Condor. General Augusto Pinochet and other high ranking members of the former junta were among the 99 current or former members of the Argentinean military charged in the case. The fate of the proceedings against Pinochet is well known. While most of the indicted Argentineans were not extradited by Argentina, Mexico extradited former Argentinean military official Ricardo Miguel Cavallo in 2000. In 2001, Adolfo Scilingo was also detained, processed, and sentenced to a long prison term by the Audiencia Nacional for crimes against humanity committed in Argentina. Other cases followed, including a case initiated by the Nobel Peace Prize laureate Rigoberta Menchú concerning the genocide, torture, terrorism, assassinations, and illegal detention in Guatemala.

Spanish courts have continued to address serious violations around the globe for which no alternate forum has been found. Such efforts include a case against officials of the Rwandan Patriotic Army (RPA) and the Rwandan Patriotic Front (RPF) for crimes allegedly committed against Hutu Rwandans, Congolese, and nine Spanish victims surrounding the Rwandan genocide (1990-2002). As part of this effort, Spanish courts issued 40 international arrest warrants for alleged genocide, crimes against humanity, and war crimes by senior political and military officials in Rwanda. The courts have also addressed such human rights issues as Chinese abuses in Tibet and the US torture of Guantanamo detainees.

States have not only a right but a duty to guarantee that the most severe crimes— those which are considered to be committed not only against the victims, but against the international community as a whole — do not remain unpunished. The amendments introduced to the Spanish law constitute an important step backwards in the effort to develop coherent global processes of accountability for human rights atrocities. International law has developed since the Nuremberg and Tokyo trials to provide norms and venues for the exercise of universal justice, as seen in the ad hoc Criminal Tribunals for the Former Yugoslavia and Rwanda, the Special Courts for Sierra Leone, East Timor, and Cambodia, and the International Criminal Court. Each of these mechanisms, acting in tandem with domestic courts, serve as instruments for the enforcement of human rights and international humanitarian law. Universal jurisdiction is only one of the tools available in the fight against impunity for severe human rights violations.

Spain, therefore, is not acting as a "world policeman," but is exercising both its right and its duty in international law. If the new amendment is passed, Spanish courts would have to prove Spain's specific interest in prosecuting any given crime. In order to do so, courts will have to evidence one of the following: the involvement of Spanish victims in the claim, the residence of the suspect in Spain's territory, or a "special relation" between the crimes and Spain. The introduction of these conditions will severely restrict the use of universal jurisdiction as a complementary tool for the achievement of universal justice. In practice, this would mean that those crimes committed where there is no other option for justice — where the international community is unwilling or unable to establish international tribunals, or where the crime was committed before the International Criminal Court was established — will not be addressed. In such cases, victims will not be vindicated and justice will not be served.

Until now, the Spanish universal jurisdiction law has managed to withstand political pressure rising to the level of that which ultimately compelled Belgium to revise its own universal jurisdiction legislation. It is in the interest of the international community as a whole - of all of us - to preserve this instrument as another avenue of justice, complimentary to the International Criminal Court and potential hybrid courts. As Human Rights Watch spokesperson Reed Brody recently put it, the Spanish universal jurisdiction rule belongs not only to the Spaniards, but to all of us. It is part of the heritage of the international community, and as such we should defend it.

Olga Martin-Ortega is a Senior Research Fellow at the Centre on Human Rights in Conflict, University of East London. Jordi Palou-Loverdos, a lawyer, has served as counsel for the International Criminal Court and has represented Rwandan, Congolese and Spanish victims of crimes against humanity before Spain's Audiencia Nacional
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