Spain: A human-rights avenger no longer?

Spain’s role as a forum for those seeking justice for human rights abuses may be coming to an end.

A Spanish court in February ordered the arrest of China’s former President Jiang Zemin and former Prime Minister Li Peng for the alleged genocide, torture, and other crimes against humanity perpetrated against the people of Tibet, angering Beijing and embarrassing Madrid.

The Spanish government responded last month by repealing the country’s universal jurisdiction law, which for almost 30 years has allowed accusers from around the globe to turn to Spanish courts to bring charges related to human rights violations against alleged perpetrators. The government justified the move by saying that the reform removed an untenable, troublesome law from the books, but proponents warned that it could set back human rights efforts worldwide.

Though the Chinese leadership’s indictment is the latest controversy, the debate over the law is as old as the law itself.

The Spanish doctrine of universal jurisdiction dates back to 1985 and invests the country's courts with broad leeway to hear criminal cases – including those involving charges of genocide and terrorism – regardless of whether the accused are Spanish nationals or foreigners with no ties to Spain.

The universal jurisdiction law was initially enacted to make the post-dictatorship human rights regulations consistent with those of other European states and international treaties. But its novelty also meant that its limits had to be tested in the courts.

This did not happen until the late 1990s, when a Spanish court indicted former Chilean dictator Augusto Pinochet and Argentinean officers in power during the junta. Although Pinochet never faced trial in Spain – he was arrested and held in London for over a year but was later allowed to return to Chile – his high-profile case spurred a raft of new filings. Global human rights advocates turned to Spain to seek justice for crimes committed in Tibet, Iraq, Gaza, Guatemala, and the US naval base in Guantanamo Bay, Cuba.

But despite the broad powers they derive from the law, Spanish courts have not been effective at bringing international criminals to justice, for multiple reasons. Dozens of cases were investigated over the past two decades, but only one, in 2005, ever reached the sentencing stage. And that only happened because the man accused of crimes against humanity, an Argentinean naval officer who served during the Pinochet dictatorship, fell into a trap and traveled to Spain on false pretenses, where he was arrested.

‘Legislating against the devil’

And while the law hasn't been too helpful in bringing about justice for accused human rights violators, it has created numerous headaches for the Spanish government, in the form of complaints from allies and business partners.

“It’s like legislating against the devil,” says José Antonio Escudero, professor of legal history at Spain's National University of Distance Education and a former senator. “It might be inspiring for an unknown judge to be able to bring to justice the president of the United States or China, but that doesn’t mean that it's realistic.”

Proponents of the law say that what matters, at the core, is to find justice for certain gross crimes, regardless of where they were committed, and that the diplomatic inconvenience to the government should be a secondary consideration. The sheer number of convictions should not be the final measure of the courts’ overall success or failure, says Javier Chinchón, a law professor and expert on universal jurisdiction at the Complutense University in Madrid who also directs research at Rights International Spain, a non-governmental organization.

“There haven’t been more convictions precisely because Spanish courts have triggered investigations in some of the countries involved, such as Argentina, Guatemala, and Chile,” Mr. Chinchón says. And although Pinochet eluded Spanish courts, he eventually had to face Chilean tribunals.

But for the Spanish government, this February's case against the Chinese authorities was a bridge too far – especially in light of the significant economic links between Spain and China. China holds substantial investments in Spain through sovereign bonds and real estate, and Spanish companies have a growing presence in Chinese markets.

Soon after the warrants were issued, the Popular Party government rammed a new law through parliament. The law would severely limit universal jurisdiction's implementation and could retroactively dismiss pending cases.

Clearing the docket

Under the reformed law, the victim must have been a Spanish citizen when the crimes took place, and the person accused must be a Spanish citizen or resident. In addition, only victims or prosecutors are allowed to file charges. Human rights organizations and civil groups are specifically barred.

The reform mandates a review of pending cases to make sure they fit the new criteria – and could sweep Spanish dockets clean of any such cases.

Proponents of Spain's universal jurisdiction law say that implementation of the principle is Spain's internal decision and should not be subject to foreign influence. But the law’s critics note that under Spain’s legal logic, its own citizens would be equally exposed to tribunals in other countries. This would mean, for example, that foreign tribunals could prosecute Spanish human rights violations committed during its civil war and under Gen. Francisco Franco's fascist dictatorship.

That’s exactly what happened in October 2013, when an Argentinean court ordered Spain to arrest and extradite former police and paramilitary officers accused of Franco-era human rights violations against Spanish citizens – using the universal jurisdiction rationale. The case, which is still ongoing, threatens to reopen wounds that the majority of Spaniards agreed to forgive and forget in exchange for a return to democracy. 

“If a Spanish judge prosecutes a Chinese president,” Mr. Escudero says, “an Argentinean judge can investigate gross crimes” committed under Franco.

Despite the government’s swift enactment of the universal jurisdiction reform, it will be up to higher courts to rule whether it is constitutional. The reform has already been challenged, after a judge last month said that the Geneva Conventions, to which Spain is a signatory, obliged its courts to recognize universal jurisdiction regardless of the government's efforts.

On the other hand, another Spanish court on Tuesday released several Egyptian drug smugglers who were arrested in international waters and ordered their drugs destroyed. The judge said that the smugglers, who were heading to Libya, had insufficient connection to Spain to justify prosecution under the new guidelines.

The ultimate step in the fight over universal jurisdiction is for Spain's Constitutional Court to rule on whether the government's reform is legal. Depending on how the debate evolves, this could take as little as five months – or as long as several years.