By Craig Whitlock
Washington Post Foreign Service
Sunday, May 24, 2009
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.