By David Bosco
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.
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