Oasis of impunity
The government's proposed new legislation on universal justice is a step backward in an area where Spain has been a pioneer
It is not uncommon for a government to lie to citizens, under the pretext that it is defending their rights. The Popular Party (PP) supported the war in Iraq, a manifestly illegal one; it opposed the idea of posthumous justice for the victims of the Franco regime. And now, prompted by exclusively economic motives, it whittles the principle of universal jurisdiction (UJ) down to a sliver. The PP's proposed new legislation is a step backward in an area where Spain has been a pioneer. It consolidates impunity - for the sake of the markets, favorable treatment of the public debt and bearable risk premiums - forgetting the citizen's right to protection against torture and murder, sometimes at the hands of the state.
This legislation consigns to the rubbish heap all the doctrine defended by the UN about the state's obligation to investigate crimes against humanity wherever they happen. The present Spanish government, which leads the world ranking of non-compliance with obligations derived from international law, in effect mocks the victims of contemptible crimes and proposes crippling limitations on UJ, inventing pretexts in the same international law it is breaking.
The generally accepted principle that UJ is an indispensable tool for punishing atrocities, and that states have an international obligation to exercise their jurisdiction under the complementary principle established in the Treaty of Rome, is shamelessly ignored, mocking the rights of the victims. The present legislature has seen the loss of other spaces of legal security that seemed consolidated, but the attack on universal justice is the most shameful because it overturns Spain's most notable contribution to international law. We have never earned so much international respect as when Spain challenged the impunity enjoyed by atrocious crimes.
The cases of Tibet and Guantanamo are the leading causes of this bill
The UJ reform bill is an example of political cynicism, woven with lies from its motives to its ends, contravening the spirit and often the letter of the international treaties that Spain has signed. Not only does it fail to extend the list of crimes liable to investigation in Spanish courts; it limits the objective ambit of the courts and excludes private lawsuits in cases of genocide and war crimes. Yet, based on the same principles, it upholds the power of Spanish courts to try crimes of terrorism and drug trafficking. Even here, the text allows wider space for impunity, in this case affecting international organized crime.
In the cases of genocide and war crimes committed by persons, Spanish or foreign, outside Spanish territory, an investigation may be opened only "against a foreigner presently in Spain, whose extradition has been refused by the Spanish authorities," so that, if this extradition had not been requested, the impunity is absolute. It excludes cases in which the presumed criminal is in Spanish territory in transit or a similarly temporary situation, and those in which he is a foreigner and is outside Spanish territory. In the case of torture and disappearances, it is demanded that "the procedure be directed against a Spanish citizen," or that "there be victims who had Spanish nationality at the time of the events, while the person accused of the crime must be now in Spanish territory." This excludes the cases in which the victim is Spanish and the presumed criminal is outside Spanish territory (all the recent kidnappings of Spaniards by Al Qaeda in North Africa, for example, are excluded).
The cases of Tibet and Guantanamo are the leading causes of this bill, but the secondary effects have not been thought of - such is the anxiety to do away with the principle of universal jurisdiction. With this initiative the PP has outdone itself, proposing a reform that turns Spain into an oasis of impunity, not only for atrocious crimes against humanity, but also for those who settle for what is known as "common" crime.
Baltasar Garzón is president of the foundation FIBGAR.
The government's proposed new legislation on universal justice is a step backward in an area where Spain has been a pioneer
