High Court begins battle over changes to universal justice doctrine

The High Court has initiated a fierce battle over restrictions passed by Congress that limit judges in their international human rights investigations based on the once far-reaching universal justice doctrine.

On Thursday, court prosecutors who are investigating past and present Chinese government officials for alleged genocide and abuses in Tibet, issued a writ in which they claim the recent modifications to the Judicial Powers Act made by Congress last month go against the Spanish Constitution.

The Chinese inquiry is what prompted the Popular Party (PP) government to make changes to the act, after Madrid came under intense diplomatic pressure from Beijing. The Rajoy administration moved to curtail the Spanish court’s right to conduct investigations into human rights abuse actions in other countries, reasoning that many of these inquiries have been causing unnecessary diplomatic conflicts.

In November, High Court Judge Ismael Morreno issued arrest warrants for five top Chinese officials, including China's former president Jiang Zemin and former prime minister Li Peng, alleging they were responsible for “genocide, crimes against humanity, torture and terrorism” against Tibetans in the 1980s and 1990s.

About a dozen cases could be affected by the PP's recent changes to the universal justice doctrine

Because of the new rules, which went into effect on Saturday, Moreno may have to drop that inquiry. But prosecutors asked the judge to take the issue to a three-judge criminal panel so it can decide whether or not to shelve the case based on the recent guidelines.

Under the modifications, judges will only be able to open investigations against a suspected human rights violator if the defendant “is Spanish or a foreigner who frequently resides in Spain,” or who is currently in the country and Spanish authorities have refused to allow their extradition.

The opposition Socialists have said they will appeal the changes.

On Wednesday, one High Court judge, Fernando Andreu, became the first member of the bench to publicly question whether the reform is constitutional. Handling another rights abuse case, Andreu asked all sides in his investigation into the Hutu genocide in Rwanda and Congo between 1994 and 2000 to give their views on whether the inquiry should proceed under the new law.

Prosecutors in the Rwanda case have sided with Andreu in questioning the legality of the law. “The new organic regulatory rules [for universal justice] could lead to an infringement to the right of effective judicial guardianship and access to jurisdiction that is inscribed under Article 24 of the Constitution, and the doctrine of judicial independence,” they wrote in their writ, also filed on Wednesday.

Andreu has given the same opportunities for parties in another investigation he is overseeing – the 2009 attack on a refugee camp in Ashraf, Iraq by Iraqi soldiers in which 11 people were killed – to also express their views.

His bench colleague, Santiago Pedraz, on Monday ruled that the Geneva Convention trumped any local law in protecting the rights of civilians during armed conflicts, “no matter where they are and no matter what their nationality.” Judge Pedraz issued his writ to explain why he was continuing with his investigation into the alleged killing of Telecinco cameraman José Couso by a US military convoy as he was videotaping a battle from his hotel room balcony in April 2003 in Baghdad.

In all, about a dozen investigations could be affected by the recent controversial changes to the universal justice doctrine that the PP pushed through Congress in a fast-track vote last month.

Andreu’s other colleagues – Pablo Ruz and Eloy Velasco – have so far not publicly questioned the new rules, which were passed by lawmakers in a tight 173-to-169 vote on February 11.