Universal Jurisdiction: Political Points vs. Equality Before the Law

Soeren Kern is Senior Fellow for Transatlantic Relations at the Madrid-based Grupo de Estudios Estratégicos / Strategic Studies Group

Universal Jurisdiction: Political Points vs. Equality Before the Law

By Soeren Kern

Baltasar Garzón, a high-profile Spanish judge and leftwing champion of the legal doctrine of universal jurisdiction, has been charged with abuse of power. Spanish Supreme Court investigating magistrate Luciano Varela charged Garzón with knowingly overstepping his jurisdiction by launching a politically motivated investigation into crimes committed during and after the 1936-1939 Spanish Civil War.

Moreover, Garzón’s supporters say Spain needs an honest accounting of its troubled past and they view his probe as seeking a long-overdue indictment, even if only a symbolic one, of the Franco regime itself. But the one-sided nature of Garzón’s probe has sparked outrage among Spanish conservatives, who accuse the judge of political grandstanding and pursuing a personal vendetta against them.Garzón decided to limit his investigation only to crimes committed by the right-wing Nationalists. His enquiry did not extend to crimes committed by the left-wing Republicans, which included Marxists, liberals and anarchists. Republican death squads murdered up to 70,000 clergy, nuns and ordinary middle class Spaniards in a veritable reign of terror that contributed to the rise of Franco.

Garzón and his colleagues have been highly selective about the cases they take. For example, they have never sought to prosecute any Hamas or Fatah terrorists for war crimes. Nor have they shown much zeal for investigating crimes against humanity in Chechnya or Darfur. Nor have they prosecuted any of the suspected Nazi war criminals who sought refuge in Spain after the end of World War II.

The indictment of Garzón has implications that reach far beyond Spain. A guilty verdict would effectively terminate Garzón’s career as a judge, and thereby deprive the global Left of one of its most ambitious legal crusaders. It would also mark the beginning of the end of Spain’s foray into cross-border jurisprudence, which has been tarnished by politically loaded legal campaigns against foreign governments, including Israel and the United States.

In a 14-page ruling, Varela charged Garzón with manipulating the course of justice by knowingly violating a 1977 amnesty law that shields members of the former dictatorship of General Francisco Franco from legal persecution. In October 2008, Garzón accused Franco and 34 of his former generals and ministers of crimes against humanity in connection with mass executions and tens of thousands of disappearances of civilians. Garzón also ordered the exhumation of 19 mass graves.

Considering that the Spanish Civil War ended more than 70 years ago, and that Franco died in 1975, few suspects, even if identified, would be alive to stand trial.

After three conservative groups filed complaints against Garzón, the Supreme Court appointed Varela to examine the case. Varela concluded that, in starting the probe, Garzón “was aware of his lack of jurisdiction” and should never have launched it in the first place. A lawyer in the case said “Garzón’s investigation violates Spain’s rule of law. This case represented judicial gymnastics and a political platform for his own glory.”

Over the past decade, Garzón has gained international fame as a leading proponent of Spain’s doctrine of universal jurisdiction, which holds that crimes like torture or terrorism can be tried in Spain even if they are alleged to have been committed elsewhere and had no link to Spain.

In 1998, Garzón had former Chilean dictator Augusto Pinochet arrested during a visit to London, although Britain ultimately refused to extradite him to Madrid for trial. Since then, Garzón has used the principle of universal jurisdiction to go after current or former government officials such as former US Secretary of State Henry Kissinger, Italian Prime Minister Silvio Berlusconi, and around 100 leaders of the 1976-1983 military junta in Argentina. At one point, Garzón and his colleagues were pursuing more than a dozen international investigations into suspected cases of torture, genocide and crimes against humanity in places as far-flung as Tibet and Rwanda. But many of these cases have had little or no connection with Spain and critics say the judges have been interpreting the concept of universal jurisdiction too loosely.

Calls to reign in the judges increased when Spanish magistrates announced probes involving Israel and the United States. In January 2009, Spanish National Court Judge Fernando Andreu said he would investigate seven current or former Israeli officials over a 2002 air attack in Gaza. In March, Garzón said he would investigate six former Bush administration officials for giving legal cover to torture at the American prison at Guantánamo Bay, Cuba. And in May, another Spanish high-court judge, Santiago Pedraz, said he would charge three US soldiers with crimes against humanity for the April 2003 deaths of a Spanish television cameraman and a Ukrainian journalist. The men were killed when a US tank crew shelled their Baghdad hotel.

In 2009, Attorney General Cándido Conde-Pumpido asked Garzón to shelve his case against the Americans and warned of the risks of turning the Spanish justice system into a “plaything” for politically motivated prosecutions. Instead of heeding that advice, Garzón opened yet another investigation that seeks information on everyone who authorized and carried out the alleged torture of four inmates at Guantánamo.

Concerned that Spain’s judicial system was being hijacked by left-wing groups out to pursue a political agenda, and that Spain’s media-savvy judges were more interested in scoring political points than in upholding the law, the Spanish parliament passed a bill to narrow the scope of the universal jurisdiction law to cases in which the victims of a crime include Spaniards or the alleged perpetrators were in Spain.

Garzón denies any wrongdoing and has defended his probe as legitimate; he says the 1977 amnesty itself is illegal. But even some of his admirers attribute this to possible vanity, and maintain that Garzón has overreached his authority.

Regardless of whether Garzón is ultimately absolved of misconduct, the case against him has badly damaged his reputation and authority. It has also cast a dark shadow over the Spanish justice system. The silver lining is that from now on Garzón and his colleagues may think twice before pursuing politically motivated cases, especially outside of Spain.

Henry Kissinger once warned that “universal jurisdiction risks creating universal tyranny — that of judges.” The irony in Spain is that the judges have been responsible for their own undoing.

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