February 16, 2014
China is battling international law, and it looks poised to win a big victory. The focus is not the contested waters of the East China Sea, but Tibet -- and this latest legal drama is unfolding in the courtrooms and parliament of Spain.
For almost two decades, Spanish judges in the Audiencia Nacional, a special judicial body with national and international reach, have employed a "universal jurisdiction" law to investigate allegations of far-flung abuses, including some by senior officials from Rwanda, Argentina, Israel, and the United States. Some of the cases have had little connection to Spain or Spanish citizens. That doesn't matter, the judges have insisted: The Spanish law -- and the broader concept of universal jurisdiction -- make clear that any national legal system can prosecute egregious crimes anywhere in the world.
These investigations, including the famous case launched in 1998 against former Chilean strongman Augusto Pinochet, have rankled some Spanish politicians, who bear the diplomatic costs of the country's judicial forays. A spokesman for Partido Popular, the ruling party, fretted that these cases only produce "diplomatic conflicts," and former president Jose Maria Aznar lamented what he called Spain's desire to be a "universal policeman." The prosecutions have been controversial within the Spanish judiciary as well. In early 2012, Spain's Supreme Court suspended judge Baltasar Garzon, who led the Pinochet investigation.
The court found that Garzon had abused his powers during a later investigation, effectively ending his judicial career. Many observers interpreted the action against Garzon as evidence that some senior judges were displeased with his headline-grabbing, globe-spanning enquiries.
But with the underlying law intact, the universal jurisdiction cases have continued even with Garzon sidelined. On Monday Feb. 10, a Spanish judge issued a detention order for former Chinese President Jiang Zemin, former Premier Li Peng, and several other officials. They stand accused of authorizing repression and abuses in Tibet. The judge said that both men had authority over officials who ordered torture and other crimes in the restive region.
China was annoyed -- and did not hesitate to publicly voice its concerns on the health of the bilateral relationship between the two countries. "Whether or not this issue can be appropriately dealt with is related to the healthy development of ties," said China's Foreign Ministry spokesperson. "We hope the Spanish government can distinguish right from wrong."
Madrid can certainly hear what China is saying. Spanish leaders have made expanding trade with China a priority as they struggle to lift the country's foundering economy. No doubt with this in mind, the conservative Partido Popular has introduced legislation that would require investigations to have some link to Spain. The draft measure would require that suspects in such investigations either be Spanish nationals or, at the very least, be on Spanish soil. Human rights groups have warned that the law would constitute "a devastating blow to Spain's commitment to ensuring accountability for the worst crimes."
Activists involved in the Tibet case accuse Spanish legislators of knuckling under to Chinese pressure. "Until now Spain has had a reputation for strong judges, like the United States and Germany don't have," Tibet-born activist Thubten Wangchen told Spain's El Pais. "From now on, Spain is going to lose its international reputation for defending human rights. And it's going to exchange it for money." University of London law professor Kevin Jon Heller also worries about the dynamic of economic clout trumping justice. "The change to the law seems overtly motivated by Spain's desire to avoid alienating China, with whom it has increasingly important economic ties."
Spain isn't the first country to reconsider the wisdom of universal jurisdiction legislation under pressure from powerful capitals. In 2003, U.S. officials intervened with Belgian authorities after its courts began an enquiry into possible U.S. crimes during the Iraq War. The Belgian investigation convinced U.S. Secretary of Defense Donald Rumsfeld that universal jurisdiction laws posed a direct threat to U.S. interests. "It is only a matter of time before there is an attempted prosecution of a U.S. official," he wrote in a memo to other Bush administration officials. He warned Belgium that NATO might have to move its headquarters from Brussels unless the law was changed. Soon after, Belgium agreed.
With Spain now on a similar path to accommodation, universal jurisdiction may lose its champions. Spain's judges have been pioneers in prosecuting abuses across borders, and a retreat by Madrid would reverberate elsewhere. Prosecutions actually based on universal jurisdiction are already unusual (although exactly how rare is a matter of some debate). One study concluded that there have been only a few dozen genuine universal jurisdiction prosecutions since World War II.
The scarcity of universal jurisdiction cases reflects the fact that most national legal systems don't have the resources or inclination to prosecute cases not connected to their territory or citizens. The advent of the International Criminal Court (ICC), which began operations in 2002, means that a permanent court now stands ready to prosecute the grave crimes that universal jurisdiction prosecutions have sought to reach. Given its work, even national legislators and judges with roving eyes may decide that crimes in foreign lands should be left to their counterparts in The Hague.
That's not a satisfactory answer to those who insist on universal justice. While the ICC could, in theory, investigate Chinese abuses in Tibet (or, for that matter, American excesses in its war on terror), doing so would almost certainly require the acquiescence of the UN Security Council, where both countries have the veto power. The world is a long way from a justice system that can reach the weak and the strong, and Spain's coming change of course will make that distance even greater.
NOTE-- David Bosco writes for Foreign Policy journal and the article was initially published on the journal.