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Spain Is Moving to Rein In Its Crusading Judges

May 21, 2009

Congress Aims to Limit Human-Rights Inquiries,
Such as the One Probing Torture Allegations at Guantanamo Bay
By THOMAS CATAN
The Wall Street Journal
May 20, 2009

MADRID -- Spain is moving to rein in its
investigative judges from trying alleged crimes
against humanity from around the world, a role
that has led to high-profile cases against the
governments of the U.S., China, Israel and others.

Under pressure from irate foreign governments,
Spain's Congress on Tuesday passed a resolution
to limit the jurisdiction of the crusading judges
to cases in which there is a clear Spanish
connection -- and no home-country investigation already under way.

The six investigating judges of Spain's National
Court, employing the so-called principle of
universal jurisdiction, are now handling 13 cases
involving events that took place in other countries, from Rwanda to Iraq.

One judge, Baltasar Garzón, is investigating
allegations of U.S torture at Guantanamo Bay.
Another is probing allegations that Israel
committed war crimes in Gaza. A third has
summoned Chinese government ministers to testify
about the crackdown on protests in Tibet.

Under the resolution, cases taken up by the
judges would have to involve a Spanish citizen or
the accused would have to be on Spanish soil. The
Spanish government now will introduce
legislation, which the major parties in Congress
have agreed to back. It wasn't clear whether the
changes would apply to existing cases or only to future ones.

The move to limit the judges alarmed human-rights
campaigners. "There will be more impunity," Hugo
Relva, legal adviser for Amnesty International, said before Tuesday's vote.

But the investigations by the judges, who are
independent from the executive and legislative
branches, have become a growing headache for the
Spanish government. The Chinese government warned
Spain that bilateral relations could be damaged
over the case regarding Tibet crackdowns. The
Israeli government strongly criticized the
investigation into its 2002 attack on a Hamas
leader, which killed 14 other people. Israeli
Prime Minister Benjamin Netanyahu said the case
"makes a mockery out of international law."

The U.S. has publicly taken a softer line. Behind
the scenes, however, U.S. officials have met with
the Spanish government and its prosecutors to try
to halt the two cases related to the U.S. prison
camp, according to officials of both countries.

Spain's government prosecution service has
opposed all three cases. Still, the judges have
forged ahead, widening the rift between them and
the government. The attorney-general, Cándido
Conde-Pumpido, warned recently that the justice
system risked turning into a "plaything."

Leading the charge of Spain's judiciary has been
Judge Garzón, a workaholic and media-savvy
magistrate who leapt to fame in 1998 when he
ordered the arrest in London of former Chilean dictator Augusto Pinochet.

Judge Garzón launched the two investigations into
allegations that the U.S. tortured prisoners at
its Guantanamo detention center. The first named
six former officials of the administration of
George W. Bush over allegations they gave legal
cover to torture at the camp. The Spanish
public-prosecution service had the case
transferred to a different judge. Weeks later,
Judge Garzón launched a second investigation
based on allegations made by four former inmates
of the facility, one of them a Spanish citizen.

INITIATED JUDGE          TARGET          ALLEGATIONS/CHARGES          RESULT
1998 Baltasar Garzon         Augusto Pinochet Genocide,
torture, terrorism UK ruled too ill to stand
trial; opened way for trials in Chile.

2005 Baltasar Garzon         Adolfo Scilingo Murder,
genocide, torture Sentenced to 640 years in jail.

2008 Santiago Pedraz         Chinese government. Deaths
during March 2008 Tibet protests Ongoing.

2009 Fernando Andreu         Israeli government. War
crimes, 2002 air attack in Gaza Ongoing.

2009 Eloy Velasco         6 ex-Bush officials Providing
legal cover for torture Was initiated by Garzon.
Moreno deciding whether to continue.

2009 Baltasar Garzon U.S. officials, unnamed
Ordering, condoning or carrying out torture at Guantanamo Ongoing.

Countries including France, the U.K., Germany,
Israel and the U.S. also have adopted the
principle of universal jurisdiction, which holds
that crimes against humanity can be tried
anywhere. In January, Charles Taylor Jr., son of
the former Liberian president, was sentenced to
97 years in jail under a U.S. law allowing people
accused of committing acts of torture overseas to
be tried in a U.S. court. The suspect must be a
U.S. citizen, a legal resident or physically present in the country.

In Spain's case, the principle has been
interpreted more broadly. A common citizen or
group can trigger a formal investigation by
presenting a claim, and a court is obliged to look into it.

Critics say the National Court judges should
focus on slimming down the backlog of domestic
cases that sometimes stretch back more than a
decade. Government prosecutors also say that
cases involving events in far-flung countries
have little chance of succeeding without
cooperation from the government of the country where the events occurred.

So far, only one case involved a clear-cut win:
In 2005, Judge Garzón secured the conviction of a
former Argentine military officer, Adolfo
Scilingo, for throwing drugged prisoners from planes.

But supporters say the judges, through their
actions, have encouraged justice at some level.
Mr. Pinochet was eventually released by British
authorities on the grounds that he was too ill to
stand trial. But the effort emboldened the
Chilean authorities to try him themselves. He
spent the final years of his life fighting a series of cases.
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