The End of Universal Jurisdiction? 

Bill Restricting Spain’s Universal Jurisdiction Law Passes First Round of Voting

On June 25, 2009, Spain’s lower house of Parliament passed a bill that would limit the reach of universal jurisdiction and profoundly restrict Spain’s ability to prosecute serious human rights crimes. The bill will go before the Spanish Senate for a final vote in the fall.

What is Universal Jurisdiction?

Universal jurisdiction (UJ) is a doctrine of international law that holds that certain crimes are so terrible that the duty to prosecute them transcends all borders. In cases of torture, genocide and crimes against humanity, any state may exercise jurisdiction regardless of where the crime was committed or the nationality of the perpetrator or the victim.

The Spanish universal jurisdiction law was used to investigate former Chilean dictator Augusto Pinochet. Since then, the law has allowed Spanish courts to stand as a last resort for victims who cannot find justice at home. The law also forms the basis for CJA’s Guatemala Genocide Case and the 1989 Jesuits Massacre Case in El Salvador. 

How the Proposed Amendment Gets it Wrong
In attempting to reform the UJ law, the bill throws out the baby of universal jurisdiction with the bath water of its potential misuse. The bill would limit the use of Spanish courts to cases involving Spanish victims, cases with an historic link to Spain or cases where the perpetrator is present in Spain. While such a rule would not eliminate CJA’s Jesuits case, it could limit the Guatemalan case and close the doors of Spanish justice to future victims. Click here for an English translation of the proposed amendment.

There are several problems with this. First, the proposal has been rushed through the legislature as part of an administrative bill addressing promotions and vacation time. By bundling such a far-reaching reform into a mundane regulatory bill, the two major political parties have sought to avoid the normal process of public scrutiny.

Second, the proposed reform seems motivated by political expediency rather than by a genuine concern to make Spanish justice a practicable last resort for victims. It is widely known that Spain has been under great pressure from the Israeli government, following investigations into war crimes in Gaza, and from the Chinese government, over an inquiry into genocide in Tibet. Now, with two open investigations into torture at Guantánamo and other U.S. detention centers, new worries about Spanish relations with the United States are being raised. Such pressure sank a similar Belgian law in 2003.

Third, this reform may even violate Spain’s treaty obligations. Even in cases where there are historical and cultural ties to Spain, any Spanish investigation would be conditioned on a showing that no other effective legal proceedings were underway. The Spanish Constitutional Court has previously called this requirement “diabolical” in that it requires plaintiffs to prove a negative ¬– often a legal impossibility.
Finally, the bill fails to consider whether proceedings in other national courts conform to accepted norms of due process. In countries with judicial systems seriously undermined by corruption and entrenched impunity, prosecutions against human rights abusers can be flawed and sentences unenforceable. In these cases, accepting the mere semblance of judicial process as grounds for closing the Spanish courts would be unacceptable.

What We Can Do to Save Universal Jurisdiction

In the end, there may well be constructive means by which the Spanish legislature can clarify the application of the universal jurisdiction law. The proposed bill correctly adds crimes of humanity to the list of admissible crimes. But the ambiguous wording of the proposed bill can only worsen an already confusing situation. This bill should not become law.
CJA and our partner, the Spanish Human Rights Association (APDHE), have called on human rights supporters around the world to oppose this hastily drafted amendment. We are also working on alternative language for the bill that will be introduced in the Senate.
The world needs universal jurisdiction!