To be or ought to be? That is the question. For many, there is no doubt: the world is what it is, and we have to adapt to it. And what is the world like?
Well, not very favorable to the idea of universal justice. First, because less than half the states in the world can be considered democratic, which puts the idea in a minority. Second, not only is the world organized around the principle of sovereignty of states; among them, the most powerful (the US, Russia and China) are openly against the principle of universal jurisdiction. Third, because the mantle of international law that covers us is not strong enough to guarantee human rights on an international scale, if it is opposed to the will of the states. Then there is the fact that powerful states can use trade and investments for political ends, to coerce those states who stick up for the cause of universal justice.
Hence realism has to rub up against dirt so often as to become dirty realism. Though universal justice is not only a good idea but a principle that ought to be obligatory, its more extreme manifestations, such as Spanish judges issuing warrants against the leaders of the Chinese Communist Party, the government of Israel, and the commander-in-chief of the US armed forces, and proposing to bring these gentlemen to trial, are apparently not such a good idea.
Because justice, to be effective, must be independent and operate without fear of consequences. But as we know, in these extreme cases, the exercise of universal justice would have large-scale political and economic consequences for Spanish citizens and companies - for which no compensation would be forthcoming from any international organization. Hence restrictions on the application of universal justice by Spanish judges began, first with the government of Zapatero, and now with the present one.
Justice, to be effective, must
be independent and operate
without fear of consequences
This is an outcome of which we cannot feel particularly proud. Indeed we ought to feel rather ashamed of it, as it puts our country in a ridiculous light. It demonstrates with crystal clarity our weakness and irrelevance in the world, and the need to understand, once and for all, that only a strong, united Europe can defend these principles in any effective way. As long as this united Europe remains a dream, the message is clear: a country like Spain - where laws based on the principle of universal justice are on the books, and judges in consequence issue warrants of this nature - ends up throwing in the towel.
In a famous letter of 1906, on the subject of Spain's notorious backwardness in technology and material progress compared with more modern nations, Miguel de Unamuno doggedly asserted Spain's superiority in spiritual matters, concluding with the curmudgeonly phrase Inventar? Que inventen ellos! (Invent? Let them do the inventing!) Well, in the same line we can now say: Judge? Let them do the judging!
Perhaps one important influence in this process is the fact that, as the UN rapporteur for these matters has lately reminded us, Spain is far from having an exemplary record in the application of this same principle to its own recent history. The thousands of people who still lie buried in ditches, the fact that thousands of people responsible for repression during the Franco regime, including judges, are still in their posts or enjoying comfortable retirement on state pensions, not to mention the torturers of other nationalities who lead comfortable, unmolested lives among us, announce to the rest of the world that Spain has not fully accepted the principles of permanent liability for certain heinous crimes that form the foundation of universal justice. Without cleaning up our dirt at home, we cannot presume to impart justice elsewhere.