Spanish MPs have moved to block Spanish judges from exercising universal jurisdiction in the domain of human rights abuses. They have indicted two people: Jian Zemin, the former president of China, and Li Peng, former PM of China. There are a couple of big issues with this happening.
The first: if other courts are able to exercise universal jurisdiction, what does this do to the relationship between the ICC and such criminals? In other words, if every court begins exercising universal jurisdiction, would the ICC’s ability to prosecute such crimes diminish? Whilst there are a number of alternate forms of justice available in the international community, such as truth commissions, such a move from other courts would put the ICC almost in a race to indict before other courts. And, lets say both Spanish and Italian courts indicted the same people-who would get priority? Universal jurisdiction is important in upholding human rights because it gets at the idea that there is no hiding from some crimes-even some nations won’t prosecute.
But it’s difficult to see past the idea that this would, in some way, muddle the international justice scene. More voices and more courts doesn’t necessarily seem to add to the credibility of the ICC. If anything, such nations might be better served helping to capture UNSC indictees, rather than pursuing their own cases.
The second issue with this is the process itself, and the corresponding precedents. If Spain is able to pursue such indictments without some kind of international reaction, what stops other nations from following suit? To be sure, they do, and a number of other examples illustrate this-perhaps most notably the British and Pinochet. The ICC was created as a permanent body after Pinochet; part of this would be to ensure due process. The burden of proof (or bringing a case to the ICC) is high, but other courts are inconsistent with one another, with lower burdens of proof, corrupt officials and so forth. This is demonstrated in the ICC’s mandate itself-courts that are unwilling or unable form those nations for which the ICC can pursue cases. If these same nations are able to begin indicting foreign leaders, the net result might be farcical.
The question worth thinking about going forward is the relationship between the ICC and separate courts, and the precedent such a move from the Spanish could result in. Clearly there is a balance to be struck, between universal jurisdiction, defending rights and a slightly problematic precedent. At the same time universally supporting universal jurisdiction seems problematic, and may challenge the primacy of the ICC.