'Universal Jurisdiction': Spain's Judges Target Torture

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The Washington Post

'Universal Jurisdiction': Spain's Judges Target Torture

High-Ranking US Officials Among Targets of Inquiries

by
Craig Whitlock

Fernando Andreu, Baltasar Garzón y Santiago Pedraz, judges at Spain's National Court. (photo: El Pais/Spain)

MADRID -- Spanish judges are boldly declaring their authority to
prosecute high-ranking government officials in the United States, China and Israel,
among other places, delighting human rights activists but enraging
officials in the countries they target and triggering a political
backlash in a nation uncomfortable acting as the world's conscience.

Judges at Spain's National Court, acting on complaints filed by
human rights groups, are pursuing 16 international investigations into
suspected cases of torture, genocide and crimes against humanity,
according to prosecutors. Among them are two probes of Bush
administration officials for allegedly approving the use of torture on
terrorism suspects, including prisoners at Guantanamo Bay, Cuba.

The judges have opened the cases by invoking a legal principle known as
universal jurisdiction, which under Spanish law gives them the right to
investigate serious human rights crimes anywhere in the world, even if
there is no Spanish connection.

International-law advocates have cheered the developments and called
the judges heroes for daring to hold the world's superpowers
accountable. But the proliferation of investigations has also prompted
a backlash in Spain, where legislators and even some law enforcement
officials have criticized the powerful judges for overreaching, as well
as souring diplomatic relations with allies.

"How can a Spanish judge with limited resources determine what
really happened in Tiananmen or Tibet, or in massacres in Guatemala or
God knows where else?" said Gustavo de Arístegui, a legislator and
foreign-policy spokesman for the opposition Popular Party. "We have our
own problems and our own bad guys to take care of."

On Tuesday, the lower house of the Spanish parliament easily passed
a resolution calling for a new law that would limit judges to pursuing
cases with ties to Spanish citizens or a link to Spanish territory.
Cases could be brought only if the targeted country failed to take
action on its own.

The vote was prompted, in part, by two National Court judges who
decided separately last month to investigate Bush administration
officials on allegations that they encouraged a policy of torture. The
judges have moved forward despite the opposition of Spanish Attorney
General Cándido Conde-Pumpido, who said the cases risked turning the
National Court into "a plaything" for politically motivated
prosecutions.

Another judge announced Thursday that he would charge three U.S.
soldiers with crimes against humanity, holding them accountable for the
April 2003 deaths of a Spanish television cameraman and a Ukrainian
journalist. The men were killed when a U.S. tank crew shelled their
Baghdad hotel. Judge Santiago Pedraz said he would pursue the case even
though a National Court panel, as well as a U.S. Army investigation,
recommended that no action be taken against the soldiers.

The controversy over universal jurisdiction has left the government
of Spanish Prime Minister José Luis Rodríguez Zapatero in a bind. Many
members of his Socialist Party have supported the judges in the past.
But the probes are causing diplomatic headaches for Zapatero, who has
sought to improve his standing in Washington after years of frosty
relations with the Bush White House.

Israel and China have complained strenuously about the
investigations of their countries, making clear that Spain will pay a
political price if they continue. Spanish judges have opened two probes
into Israeli military airstrikes on the Gaza Strip, dating to 2002.
They are also conducting two investigations into alleged abuses
committed by Chinese officials in Tibet, and a third regarding
repression of the Falun Gong movement.

Julio Villarubia, a Socialist member of parliament, said it was
unclear exactly how or when the Spanish government would amend its
universal-jurisdiction law. But he said limits are necessary.

"We have not adopted the resolution because of pressures by the
U.S., China, and Israel, though that pressure is known; the
disagreements are there," he said.

It is unclear whether changes to the law would apply retroactively
to pending cases. In interviews, a Justice Ministry official said they
would not, but a senior prosecutor in the National Court suggested
otherwise.

Regardless, most of the probes underway do have at least a
tangential Spanish connection. The Guantanamo cases, for example, are
partly based on testimony by a Spanish citizen who spent three years at
the U.S. naval prison in Cuba.

A Global Portfolio

Spain's embrace of universal jurisdiction dates back more than a
decade. In 1996, a crusading judge on the National Court, Baltasar
Garzón, opened a criminal investigation into human rights abuses in
Chile and Argentina.

When Chile's aging dictator, Gen. Augusto Pinochet, traveled to
London for medical treatment in 1998, Garzón issued a warrant for his
arrest. British officials complied and held him under house arrest. But
they later allowed Pinochet to return to Chile, citing his ill health
as a reason for not extraditing him to Spain.

Garzón had asserted jurisdiction because some of the victims of the
Chilean dictatorship were Spanish citizens. But that legal condition
was pronounced unnecessary in 2005, when Spain's Constitutional Court
ruled that judges can pursue grave human rights crimes anywhere, even
if there is no Spanish connection.

Since then, rights groups have made a beeline for Madrid, where they
have enlisted local lawyers to file complaints with the National Court.
Spanish judges are obligated to examine each case and investigate
whether it meets certain thresholds.

Under Spain's legal system, judges such as Garzón serve as
investigating magistrates and hold enormous power. They oversee police
work, collect evidence and can compel witnesses to testify. If they
conclude that charges are warranted, they hand the case to another
judge for trial.

The National Court judges originally concentrated on countries with colonial ties to Spain, such as Guatemala, Argentina and El Salvador. But the judges have recently branched out to other places, such as Rwanda, Morocco, China and Israel.

Alan Cantos, president of the Tibet Support Committee, a Spanish
advocacy group that requested the probes, said he is worried the
Spanish government will succumb to outside political pressure.

"When powerful countries start getting touched, there is a
backlash," he said. "You mix U.S., Israeli and Chinese propaganda and
complaints, and all of a sudden, the Spanish government starts shaking
at the knees. Quite frankly, I find it pathetic."

The Spanish universal-jurisdiction investigations have resulted in a
single conviction. Adolfo Scilingo, a former Argentine naval captain,
was found guilty of crimes against humanity in 2005 for pushing 30
drugged and bound prisoners out of government airplanes in the 1970s.
He was sentenced to more than 1,000 years in prison by a Spanish court.

Carlos Slepoy, a Spanish-Argentine lawyer who helped pursue
Scilingo, said the universal-jurisdiction cases have valuable secondary
effects. Officials targeted by Spanish judges need to be careful about
where they travel; Spanish arrest warrants are generally enforced
throughout Europe but also sometimes in Mexico and other countries.

"Any country should be able to bring these cases, as long as they are
democracies that belong to the United Nations," Slepoy said.

'An Inflation of Cases'

Critics say the cases are influenced by politics. They note that the
National Court has been quick to accept complaints about human rights
abuses in Israel and the United States but has ignored problems in
Syria, North Korea and Cuba.

"These guys are not proper judges from a professional point of view,"
said Florentino Portero, a contemporary history professor at Madrid's
National Open University. "They are following a trend from the left
wing of the Spanish political arena."

Spanish prosecutors have also expressed concern. They recommended
that the National Court not pursue many of the 16 pending cases but
were overruled by judges, who have the final say.

Javier Zaragoza, chief prosecutor at the National Court, said
universal-jurisdiction cases are legitimate in principle. But he said
Spain should not try to intervene in the affairs of democratic
countries that are equipped to police themselves.

Even some human rights advocates said the explosion of cases has made them uneasy.

Gregorio Dionis, president of Equipo Nizkor, a Brussels-based group
that has urged the National Court to prosecute accused former Nazi
death camp guards living in the United States, said it has become too
easy to have a complaint acted upon.

"There's been an inflation of cases filed under universal
jurisdiction," he said. "Not all of them have been well grounded from a
legal point of view."

Other advocates, however, point out that Israel and the United
States have embraced the principle of universal jurisdiction when it
suits them.

In 1960, Israeli agents kidnapped Nazi war criminal Adolf Eichmann
in Argentina and tried him in Israel; he was convicted and executed.

More recently, the U.S. Department of Justice has supported efforts
to have Spain pursue investigations against two alleged Nazi
concentration camp guards living in the United States. The Justice
Department lacks the jurisdiction to prosecute the men for crimes
committed decades ago in Europe but would like to deport them to Spain
to stand trial there.

Special correspondent Cristina Mateo-Yanguas contributed to this report.

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