Thursday, 2 July 2009

Runaway Spanish Judges To Be Reined In

The International Court of Justice at The Hague (“ICJ”) has a dual role. As stated on its website, the ICJ acts as a world court and decides, in accordance with international law, disputes of a legal nature that are submitted to it by member States. It also gives advisory opinions on legal questions at the request of organs of the United Nations, such as the Security Council or specialised agencies authorised to make such a request.

In 2002, an International Criminal Court (“ICC”) was set up at The Hague as a permanent body for prosecuting individuals for crimes against humanity, genocide etc. So far 108 countries have signed the Rome Treaty that gave rise to the ICC. India and China have not signed up to the ICC. Israel and the United States became parties to this treaty (after some hesitation), but later withdrew from it. The ICC can only prosecute crimes committed on the territory of signatory states and by individuals who are citizens of a signatory state.

However, since over ten years, a third entity has been playing a role on global stage in the field of international justice. Spain’s National Criminal Court, the Audiencia Nacional, started to intervene in cases involving international human rights abuses over a decade ago. According to this BBC report, the Audiencia Nacional has been happily hearing and disposing cases involving human rights abuses from places as far afield as Guatemala, Rwanda, Chile, Tibet, Gaza and Guantanamo. No, not all cases have a Spanish link and the only justification for hearing such cases seems to be that they involve human rights violations or abuses of such a grave nature that they give raise to ‘universal jurisdiction’ and any court in the world would be justified in trying them. The only bar to the Audiencia Nacional trying a case is the knowledge that another court elsewhere is already on that case.

The main difference between the Audiencia Nacional and the ICJ is that ordinary mortals cannot take a dispute to the ICJ, whilst the Audiencia Nacional happily caters to individuals who are unable to obtain redress in their home states. As for the ICC, its jurisdiction is restricted to member states and it can only try offences committed after 1 July 2002 (when the Rome Treaty came into force) or the date when the relevant member state signed up to the Rome Treaty, which ever is later. If Israel were to sign up to this treaty in 2010, Israeli nationals cannot be tried for their actions during the January 2009 invasion of the Gaza Strip.

The most spectacular international case tried by the Audiencia Nacional was that of General Augusto Pinochet, the Chilean dictator. Based on an arrest warrant issued by the Audiencia Nacional, General Pinochet was arrested in the UK where he was undergoing medical treatment and placed under house arrest. After a lengthy court battle, he was released on medical grounds. On his return to Chile, he was indicted and another series of trials ensured. Before any conviction could be made, General Pinochet died on 10 December 2006. Even though General Pinochet was not formally punished, the international arrest warrant issued by the Audiencia Nacional almost delivered justice to his numerous victims.

Currently the Audiencia Nacional is considering action against Bush’s advisors who helped establish the legal basis for waterboarding and other interrogation tactics used at Guantanamo Bay. Also visible on the cross hairs are Israeli politicians and generals for their actions in the occupied territories during the recent invasion of Gaza and Chinese officials for alleged human rights violations in Tibet.

One of the reasons why the Audiencia Nacional is so much admired and feared is that many dictators and other nasty people like to travel to Europe for some decent R&R after having carried out various excesses back home. The threat of a warrant from the Audiencia Nacional has forced many a dictator to cancel his European travel plans.

The Spanish government has not been very happy with the actions of the Audiencia Nacional which are obviously not designed to improve Spanish relations with powerful and mighty states such as the United States and China. From time to time, the Spanish public prosecutor has tried to rein in the judges at the Audiencia Nacional, without much success. Therefore, it came as no bolt from the blue when the Spanish government formally took steps to curtail the Audiencia Nacional which not surprisingly has been the darling of human rights activists worldwide. The Spanish Parliament, the Cortes Generales, is all set to pass a law which will prevent Spanish courts from trying cases unless either the perpetrators or the victims are Spanish or there is some other link to Spain.

For various reasons, I’m glad that the Spanish government is clamping down on the judges at the Audiencia Nacional. My main reason is that I don’t like the idea of Spain (or any other country for that matter) taking on the role of a globo-cop. Spain has one of the worst records among the various colonial powers, it was an ally of Nazi Germany (though it didn’t take part in the Second World War) and had a horrible human rights record until General Franco’s death in 1975. It is only in the last thirty years or so that Spain, like most other Western powers, cleaned up its act. Memories of General Franco’s atrocities are still afresh and it rankles a bit when Spain unilaterally takes on the role of global arbitrator.

It is very tempting to saying that courts anywhere in the world ought to be entitled to try grave violations of human rights under ‘universal jurisdiction.’ However, despite claims by the judges at the Audiencia Nacional, we are yet to evolve a universally acceptable standard for ‘grave violations of human rights’. A judge in Saudi Arabia may decide that the CEO of a Scottish brewery is guilty of the worst form of abuse (by encouraging drinking) whilst a judge in Jakarta may rule that employees of an NGO working for Gay rights ought to be hanged. Further, if courts all over the world start trying alleged human rights violations, it is only a matter of time before biases start creeping in. Courts in Colombo may rule that fund raisers for the LTTE are all guilty of abetting the worst form of human rights violations, whilst Malaysian judges will not be sympathetic to companies supplying weapons to Israel.

Courts in Belgium used subscribe to the theory of universal jurisdiction on account of a 1993 law which purported to give Belgian courts jurisdiction over offences committed anywhere in the world if they are grave enough and contrary to basic human values. However, after the ICC came into existence in 2002, Belgium modified its laws and drastically reduced the scope of universal jurisdiction wielded by its courts.

Unlike Belgium, Spanish courts adopted the principle of universal jurisdiction without a specific legislation. Now it looks like they will have to be forced by the Cortes Generales to give up the power they took on ten years ago without statutory authority.


Ayyappadas Puthenmarath said...

A very interesting post. As you rightly pointed out the actions of Spanish judges are outrageous.But Spanish courts should be allowed to decide on whom to allow inside their country.Usually this is an executive decision keeping in mind the fragile diplomatic imperatives(the indispensability or dispensability of visiting dignitary to the government in power). If the Spanish court feels that the Chinese Politburo members are human rights violators, they should not be welcome in Spain.

But I wonder where is the time for these judges to involve themselves in international issues when they have so many domestic cases to finish. What will happen if Indian judges starts taking interest in global affairs, with 30 million domestic cases pending.

Winnowed said...

"But I wonder where is the time for these judges to involve themselves in international issues when they have so many domestic cases to finish."

This is where you are totally wrong. Courts in Western countries don't suffer from the sort of infrastructure contraints that plague Indian courts. They do have sufficient capacity to stray a bit.