International Justice

CJ354 Endicott College

Spain’s Universal Jurisdiction Decision

The Spanish government recently decided to limit its ability to prosecute under the doctrine of universal jurisdiction. Universal jurisdiction allows individual states to prosecute crimes against humanity regardless of whether the crimes took place in that state or against their citizens.  It was meant to prevent the  most serious perpetrators from escaping prosecution, no matter where in the world they fled. It was under the doctrine of universal jurisdiction that Spanish judge Baltazar Garzon ordered the extradition and arrest of Chilean former dictator Augusto Pinochet, when he was on a trip to England.  This arrest order gave Spain, and judge Garzon in particular, a reputation as firm protectors of international human rights law, and accountability and justice.  For this reason Spain’s recent decision to limit its universal jurisdiction has come under such scrutiny.

The law limiting universal jurisdiction comes on the heels of an arrest order for former Chinese president Jian Zeming for crimes committed in Tibet decades ago. Some have speculated that the Spanish law is politically motivated,  intending to placate the Chinese given Spain’s recent economic woes. Whatever the reason, Spain’s decision has brought up questions about the concept of universal jurisdiction in and of itself.  Given the existence of the ICC, is universal jurisdiction a necessary doctrine, or has it become redundant?  Both the ICC and universal jurisdiction are essentially aimed at the same goal: preventing perpetrators of the most serious crimes from escaping prosecution.   One could make the argument that because the ICC provides a streamlined method of international retributive justice, the chaotic and inconsistent use of universal jurisdiction has now deemed it unnecessary.  While the consequences of Spain’s decision are yet to be seen, it seems to indicate a step away from universal jurisdiction as a means of executing international human rights law.

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2 responses to “Spain’s Universal Jurisdiction Decision

  1. palomatraveler February 28, 2014 at 6:30 pm

    I agree that Spain’s arrest of former Chilean dictator Augusto Pinochet gave Spain a reputation as a firm protector of international human rights law. I believe that Spain’s recent decision to curb the use of universal jurisdiction takes a step backwards in regards to human rights and justice. In regard to the Spanish arrest orders of the former Chinese president Jiang Zemin and four senior Chinese officials responsible for the alleged human rights abuses in Tibet, there seems to be a double standard in international justice.

    When it comes to the US, China, or Russia there is no justice. The lack of justice for the triad superpowers undermines the infrastructure of international justice. Spain’s decision to curb the use of universal jurisdiction pushes Spain from a protector of international law to violating its international obligations. Yes, it is true that the ICC and universal jurisdiction have a unified end goal of preventing perpetrators of the most serious crimes from escaping prosecution. Both processes are needed to ensure the utmost responsibility for crimes on the global scale. Spain should not consolidate impunity just for the sake of receiving a good response for its’ economic markets ie China helping Spain economically. Will there ever be an end to politics interfering in the legal domain?

  2. angelalg March 1, 2014 at 12:13 am

    I agree that this might be seen as a step backwards for Spain, mostly because I am concerned about the idea that Spain might now provide an “oasis of impunity.” I also recognize concerns regarding the impunity of strong states outside of ICC jurisdiction (i.e. US, Russia, etc.) without continued enactment of universal jurisdiction. Moving beyond these general worries however, I think it might be worth considering some counterarguments against universal jurisdiction.

    It is worth starting with Henry Kissinger’s famous statement in his 2001 Foreign Affairs article, “The Pitfalls of Universal Jurisdiction”: “The danger [of universal jurisdiction] lies in pushing the effort to extremes that risk substituting the tyranny of judges for that of governments; historically, the dictatorship of the virtuous has often led to inquisitions and even witch-hunts.” Below I have outlined a couple cons of universal jurisdiction (partially drawing from Kissinger’s piece as well as some other articles).

    1. Unstable doctrine or set of principles: Universal jurisdiction relies on a set of relatively new international norms. It assumes a type of global commitment to these norms, however, there are few structural guides in place for following these norms. The ICC puts some juridical and (partial) international clout behind these norms, yet universal jurisdiction relies on the prosecuting power of domestic courts which may or may not adhere “properly” to universal jurisdiction principles.

    2. Politicization 1.0: Like the ICC, or perhaps even more than the ICC, universal jurisdiction may fall whim to the political goals, standards, etc. of the country enacting universal jurisdiction.

    3. Politicization 2.0: On a more real politik/international relations scale, universal jurisdiction faces a second type of political pressure. As mentioned in the original Guardian article, Spain is facing criticism and political push-back for its enactment of universal jurisdiction in recent cases. This is not to say Spain’s moves to prosecute perpetrators are wrong, but rather this points to a type of destabilizing influence which might provoke or alter the decisions made in Spanish courts regarding these foreign criminals. For example, Spain’s courts might be forced by Spanish foreign policy officials to weigh cases differently based on the home country of the perpetrators.

    4. Lack of Legal Standardization: Universal jurisdiction, as a concept, does not include a set of globally applied legal codes or processes, but rather relies on norms and domestic laws (and judges). An international court like the ICC provides standardization to this process.

    In this way, expansion of the ICC over the continued use of universal jurisdiction might be a logical and reasonable step. However, the major issue is how and when universal jurisdiction will be rolled back and removed from the realm of domestic courts, and re-framed, and enacted through the ICC. Expanding the jurisdiction of the ICC (likely in the form of more party states) will be crucial to this process.

    Kissinger, Pitfalls of Universal Jurisdiction: http://www.globalpolicy.org/component/content/article/163/28174.html

    Kenneth Roth’s response to Kissinger’s FA article:
    http://www.foreignaffairs.com/articles/57245/kenneth-roth/the-case-for-universal-jurisdiction

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