The concept of universal jurisdiction asserts that some crimes are so abhorrent that they transcend the normal understanding of sovereignty:
According to the proponents of universal jurisdiction, certain crimes pose so serious a threat to the international community as a whole, that any state ought to be able to prosecute an individual responsible for it; no place should be a safe haven for war criminals (including criminals involved in genocides) and human rights violators. Amnesty International also includes torture, “disappearances” and extrajudicial executions in this list.
The most famous incarnation of this concept can be found in Belgium’s 1993 “law of universal jurisdiction under which charges were brought against participants in the Rwandan genocide, Ariel Sharon for event at Shatila, and against George H.W Bush, Colin Powell, and Dick Cheney for the 1991 Gulf War. However, Belgium is not the only country that has asserted the principal of universal jurisdiction.
In addition to Belgium, Spain has claimed the right to universal jurisdiction, with this jurisdiction traditionally being limited to cases involving Spanish nationals. This was the basis upon which Baltazar Garzon, one of Spain’s investigating magistrates, brought charges against Augusto Pinochet, the ex-dictator of Chile. While the vast majority of the allegations being made against Pinochet related to the killings and torture of native Chileans, the presence of Spanish nationals amongst the victims was the basis upon which Garzon was able to ask for the extradition of Pinochet from the UK to stand trial in Madrid.
In October of 2005, Spain’s Constitutional Court extended the principle of universal jurisdiction to include case in which none of the victims were Spanish nationals.
Spain’s courts may try cases of genocide and crimes against humanity committed outside the country, whatever the nationality of the victims, the country’s Constitutional Court said in a ruling hailed by rights activists. “The principle of universal jurisdiction takes precedence over the existence or not of national interests,” the court said, quashing a 2003 decision by the Supreme Court relating to human rights abuses in Guatemala.
The Supreme Court had rejected a submission by 1992 Nobel Peace Prize winner Rigoberta Menchu, saying that Spain’s judiciary could only deal with crimes committed against Spanish citizens. The Constitutional Court said it supported Menchu’s case that “Spain should investigate crimes of genocide, torture, murder and illegal imprisonment committed in Guatemala between 1978 and 1986.” About 200,000 people were killed during that period, including 626 in a massacre of Indian Mayas, according to the case filed by Menchu and rejected by the Supreme Court.
The Supreme Court verdict, by a narrow majority of eight to seven, that the alleged genocide of native Indians by the then Guatemalan regime was not tied to Spanish national interests, brought criticism from human rights groups such as Amnesty International. The Constitutional Court, overturning the Supreme Court ruling Wednesday, said it violated the basic legal rights of Menchu. It also threw out a 2000 judgment which turned down a case brought by Menchu on the grounds that she had failed to prove that Guatemalan courts had de facto rejected her complaint.”To activate international jurisdiction it should be enough to bring serious and reasonable indications of judicial inactivity,” the Constitutional Court ruled.
This represents a radical departure from the much more limited concept of universal jurisdiction promulgated by Spanish courts previously. The essential declaration is that Spanish courts have the authority to prosecute human rights abuses where local courts refuse to act. Still, Spain has largely limited the invocation of universal jurisdiction to Latin America, this logically following from the shared cultural and legal heritage between Spain and her former colonies. This week, news that Spanish courts would file charges of genocide against Chinese leaders for actions in Tibet challenged this assumption. Within 24 hours, a further invocation of universal jurisdiction was made, this being made against a Argentine ex-general implicated in the “dirty war.”
Spanish courts show no sign of relinguishing universal jurisdiction, rather there appears to be a desire to use the Spanish legal system to right human rights abuses worldwide. And of course some of the most egregious human rights abuses in recent years have been committed in by US and Allied forces in Iraq. Spanish court have already asked for the extradition of US troops involved in the kiling of Jose Couso. Couso was a journalist working for the Spanish TV station TeleCinco, killed when US forces fired upon the Palestine Hotel, a Baghdad hotel used by foreign press, while US forces were entering the Iraqi capital.
With universal jurisdiction now expanded to include cases involving no Spanish nationals but where local authorities are unable to or refuse to act, it’s only a matter of time before the principle is invoked against US actions at Guantanamo and more importantly Abu Ghraib. Let alone the charge of making agressive war in violation of international law. I hold no illusion that a summons, let alone an extraidition order against President Bush or PM Blair would be honored, however I think that in the course of prosecuting Bush and Blair, the investigating magistrates have the power to dig throught Spanish archives from the period. Former Spanish PM Aznar was deeply involved in the rush to war against Iraq, and committed Spanish forces to the effort.
Prior to the war, Aznar met with Blair and Bush in the Azores in preparation for what the White House called the the moment of truth. This was the meeting where the final decision to go to war was made, and any charges brought against Bush or Blair could lead Spanish investigating magistrates to ask that Spanish records from the period be opened in any investigation of what lead to Abu Ghraib. This could be truly embarassing for President Bush, and could finally force Blair from office.
This hasn’t happened yet, nor is it a foregone conclusion, but the expansion of the principal of universal juridiction to cover abuses where local authorites have not taken action opens the door. Does anyone here really believe that the Iraqi legal system is capable of handling the Abu Ghraib matter? Is the nominal sovereignty of the Iraqi courts a poorly concealed fiction while US and Allied troops occupy the country? Will the US Congress offer up bills to invade Spain as they did to the Netherlands in the wake of the establishment of the ICC?