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The advance of universal justice

June 1, 2009

May 29, 2009
El Pais (Spain)
May 23, 2009

The road map for limiting the practice of
universal justice in Spain is a sad reality. The
Spanish Congress has just approved a proposal to
reduce universal justice to cases where the
people presumed responsible are on Spanish soil
or there are Spanish victims, and either way,
only when an international court or the country
where the crime was committed are not
“effectively persecuting” these crimes. This is
the formal culmination of the recent criticisms
made against the Audiencia Nacional: why is it
judging torture in Guantánamo, the CIA flights,
the Gaza massacre, the repression in Tibet or of
members of Falun Gong, the genocide of the
Guatemalan or Sahara peoples, the assassination
of the journalist, Couso, or the Jesuits in El
Salvador, or the crimes in Mauthausen?

The arguments put forward in an attempt to
prevent this principle of international criminal
justice from being applied vary enormously and
some lack any serious foundation: legal, economic
or political technicalities, the Spanish courts’
inability to assume such a burden of work without
detriment to national justice, and even
accusations that some judges are egocentric and attention seeking.

The paradox is amazing. The principle of
universal justice was applied in Spain with no
controversy whatsoever until the Pinochet and
Argentina cases were lodged in 1996. Everyone
applauded the judges of the Audiencia Nacional
for persecuting drug-running ships in
international waters, even when Spain was not the
destination of the cargo nor had any connection
with the events, the ship or the crew. However,
this applause for the judges and the public
prosecution for persecuting drug-dealing turned
quite unfairly into criticism when the crimes
were against humanity and the core of all human rights.

The reason for this is none other than the
undoubted political component of the
circumstances in which these heinous crimes are
committed, the majority of which are from de iure
or de facto power structures. And it is precisely
in the countries where these acts were committed
that all manner of strategies are implemented to
guarantee the unacceptable impunity of their
authors and accomplices. At a national level
these countries pass laws of self impunity, while
at an international level they implement
unacceptable political and diplomatic strategies
that are ultimately successful, especially when
involving powerful states, at the cost of human rights.

Good examples of this are the current Israeli and
American pressure on the Spanish Government to
find a way to put an end to the cases affecting
them, and the unacceptable attacks on the judges Garzón, Pedraz and Andreu.

The self-interested devaluation of this
international principle corresponds to a mistaken
approach from internal law, when analysis should
be based on international law and specifically on
the commitment acquired by Spain in various
conventions (such as the Conventions on Genocide
and Torture or the Geneva Conventions). On one
hand, these have formed for a long time the basis
for this universal principle regarding the nature
of the crimes, their extreme severity, and, as a
result, the international commitment to persecute
them. Every time an international crime of the
first magnitude is committed, the victim is
harmed, but so, too, is the international
community. And on the other hand, for this
concept of jurisdiction to apply it is not
necessary, according to International Law - as
our Constitutional Court reminded us (STC 237/05)
­ for there to be any connection such as the
accused being on Spanish soil or the victims being Spanish.

In the Eichmann case, Israel’s Supreme Court,
which today disparages universal justice, based
itself on the principle of universal jurisdiction
when it declared that “the State of Israel’s
right to punish the accused derives from a
universal source ­ patrimony of all humanity ­
that grants any state within the family of
nations the right to try and punish crimes of
this nature, as they affect the international
community, and any state that acts judicially
does so on behalf of the international community".

The consensus for trying these crimes,
established after the horrors of the Second World
War in the Núremberg Law though frozen during the
Cold War, was recuperated with the creation of
the special International Criminal Courts (former
Yugoslavia or Rwanda), the mixed courts (such as
Sierra Leone or Lebanon) and particularly the
International Criminal Court (ICC). The latter
has become the truly universal body for trying
crimes of genocide, crimes against humanity, war
crimes and crimes of aggression.

These supranational courts, however, do not meet
all the demands for justice. The limitations they
were born with ­ the nature of the acts and when
and where they were committed ­ have given rise
to insoluble obstacles for bringing to trial
those responsible for such heinous crimes. The
International Court, for example, can only try
acts committed after 1st July 2002 and acts
affecting situations in countries that have ratified its statutes.

This unsatisfactory international legal scenario
has, due to imperatives of international law,
transferred the duty to fight impunity and human
rights violations to the national courts. This
has been demonstrated by the legal bodies of
France, Belgium, Germany, Canada, Senegal or Spain, among others.

The development and application of the principle
of universal jurisdiction by the Spanish courts
has been, perhaps, this country’s greatest
contribution to the international community in the defense of human rights.

If there is consent on the part of states to
judge the worst criminals, why don’t they fulfill
their duty to judge the international crimes (ius
cogens) committed by their citizens? The answer,
if they do not want to accept trials in third
countries or supranational courts, is simple:
they should not only initiate legal proceedings
but also demonstrate ­ not merely pretend or go
through the movements of an open case ­ that an
authentic and effective legal investigation is
being carried out by the courts. Otherwise,
either the international courts or the national
courts of third countries will intervene and
apply the principle of universal justice.

However, these premises of international law are
sidestepped by states that wish to perpetuate
unacceptable impunity. They do not try [these
cases], or do not do so according to due
procedural standards, they oppose the “meddling”
of universal justice, and they neither sign the
Statutes of the International Criminal Court nor accept its competence.

This deficit cannot be borne by the victims.
These are entitled to justice, and the
international community is obliged to provide it.
Given the absence of a truly effective
international criminal court, the principle of
universal justice exercised in any country, not
only Spain, is today the obligatory instrument
for persecuting the most serious international
crimes that destroy human dignity.

* MANUEL OLLÉ SESÉ is a lecturer in criminal law,
director of the human rights chair at the Antonio
de Lebrija University and president of the
Spanish Human Rights Association, APDHE. Involved
in the cases of Guatemala (mayan
genocide),  Sahara, Argentina, murder of Jesuits in El Salvador, etc.
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