The Spanish parliament has decided to consider a bill to limit “universal jurisdiction” currently granted to Spanish courts. This means that Spanish judges would no longer be able to rule on human rights violations not directly concerning Spain, an unusual power they currently hold and have used. The move comes immediately after a decision by a Spanish judge to pursue the arrest of China’s former president Jiang Zemin, as well as other officials, over human rights violations in Tibet.
The bill, [proposed] by the Popular Party, means judges are only able to investigate war crimes, genocide and crimes against humanity if the suspect is a Spanish national, a foreigner living in Spain or a foreigner in Spain whose extradition has been denied by Spanish officials.
This interesting situation brings up some of the debate surrounding the controversial concept of universal jurisdiction.
On the one hand, universal jurisdiction is an appealing way to hold states accountable for genocide and other human rights violations (and has been used by a number of countries for that purpose). Theoretically, prosecuting human rights violators should discourage other states from committing similar actions. In a survey conducted on universal jurisdiction legislation around the world, Amnesty International calls the concept “an essential tool of international justice.”
EuroWeeklyNews reports that a representative for the Spanish branch of the organization called Spain’s decision “a step backwards in the fight against impunity for crimes under international law, for justice and human rights.” And, as Reuters notes, universal jurisdiction was successfully used to arrest Pinochet.
On the other hand, universal jurisdiction necessarily threatens state sovereignty, and, as with any attempt to implement universal standards, it’s important to examine whether they are universally applied or whether they simply serve to reinforce existing power structures.
Reuters notes that Baltasar Garzón, the same judge who arrested Pinochet, faced problems when trying to hold Spain accountable for Franco’s dictatorship: he “was put under investigation for allegedly overstepping his role in the Franco case.”
From The Guardian:
Reed Brody, of Human Rights Watch, said China’s comments added to a growing awareness of double standards in international justice. “It’s OK to use international justice for El Salvador, Chile and Chad,” he said, “but when it comes to US or China or Russia, there’s no justice. That really threatens to undermine the entire architecture of international justice.”
In this case, however, the law against universal jurisdiction is being used to protect China, not to level the playing field.
This decision seems largely a diplomatic move, and observers should keep an eye on this situation. The Popular Party, with its background in the former fascist government, has reason to fear judges like Garzón.