The advance of universal justice - by Manuel Ollé Sesé

The road map for limiting the practice of universal justice in Spain
is a sad reality. The Spanish Congress has just approved a proposal to
reduce universal justice to cases where the people presumed
responsible are on Spanish soil or there are Spanish victims, and
either way, only when an international court or the country where the
crime was committed are not "effectively persecuting" these crimes.
This is the formal culmination of the recent criticisms made against
the Audiencia Nacional: why is it judging torture in Guantánamo, the
CIA flights, the Gaza massacre, the repression in Tibet or of members
of Falun Gong, the genocide of the Guatemalan or Sahara peoples, the
assassination of the journalist, Couso, or the Jesuits in El Salvador,
or the crimes in Mauthausen?

The arguments put forward in an attempt to prevent this principle of
international criminal justice from being applied vary enormously and
some lack any serious foundation: legal, economic or political
technicalities, the Spanish courts’ inability to assume such a burden
of work without detriment to national justice, and even accusations
that some judges are egocentric and attention seeking.

The paradox is amazing. The principle of universal justice was applied
in Spain with no controversy whatsoever until the Pinochet and
Argentina cases were lodged in 1996. Everyone applauded the judges of
the Audiencia Nacional for persecuting drug-running ships in
international waters, even when Spain was not the destination of the
cargo nor had any connection with the events, the ship or the crew.
However, this applause for the judges and the public prosecution for
persecuting drug-dealing turned quite unfairly into criticism when the
crimes were against humanity and the core of all human rights.

The reason for this is none other than the undoubted political
component of the circumstances in which these heinous crimes are
committed, the majority of which are from de iure or de facto power
structures. And it is precisely in the countries where these acts were
committed that all manner of strategies are implemented to guarantee
the unacceptable impunity of their authors and accomplices. At a
national level these countries pass laws of self impunity, while at an
international level they implement unacceptable political and
diplomatic strategies that are ultimately successful, especially when
involving powerful states, at the cost of human rights.

Good examples of this are the current Israeli and American pressure on
the Spanish Government to find a way to put an end to the cases
affecting them, and the unacceptable attacks on the judges Garzón,
Pedraz and Andreu.

The self-interested devaluation of this international principle
corresponds to a mistaken approach from internal law, when analysis
should be based on international law and specifically on the
commitment acquired by Spain in various conventions (such as the
Conventions on Genocide and Torture or the Geneva Conventions). On one
hand, these have formed for a long time the basis for this universal
principle regarding the nature of the crimes, their extreme severity,
and, as a result, the international commitment to persecute them.
Every time an international crime of the first magnitude is committed,
the victim is harmed, but so, too, is the international community. And
on the other hand, for this concept of jurisdiction to apply it is not
necessary, according to International Law - as our Constitutional
Court reminded us (STC 237/05) – for there to be any connection such
as the accused being on Spanish soil or the victims being Spanish.

In the Eichmann case, Israel’s Supreme Court, which today disparages
universal justice, based itself on the principle of universal
jurisdiction when it declared that "the State of Israel’s right to
punish the accused derives from a universal source – patrimony of all
humanity – that grants any state within the family of nations the
right to try and punish crimes of this nature, as they affect the
international community, and any state that acts judicially does so on
behalf of the international community".

The consensus for trying these crimes, established after the horrors
of the Second World War in the Núremberg Law though frozen during the
Cold War, was recuperated with the creation of the special
International Criminal Courts (former Yugoslavia or Rwanda), the mixed
courts (such as Sierra Leone or Lebanon) and particularly the
International Criminal Court (ICC). The latter has become the truly
universal body for trying crimes of genocide, crimes against humanity,
war crimes and crimes of aggression.

These supranational courts, however, do not meet all the demands for
justice. The limitations they were born with – the nature of the acts
and when and where they were committed – have given rise to insoluble
obstacles for bringing to trial those responsible for such heinous
crimes. The International Court, for example, can only try acts
committed after 1st July 2002 and acts affecting situations in
countries that have ratified its statutes.

This unsatisfactory international legal scenario has, due to
imperatives of international law, transferred the duty to fight
impunity and human rights violations to the national courts. This has
been demonstrated by the legal bodies of France, Belgium, Germany,
Canada, Senegal or Spain, among others.

The development and application of the principle of universal
jurisdiction by the Spanish courts has been, perhaps, this country’s
greatest contribution to the international community in the defense of
human rights.

If there is consent on the part of states to judge the worst
criminals, why don’t they fulfill their duty to judge the
international crimes (ius cogens) committed by their citizens? The
answer, if they do not want to accept trials in third countries or
supranational courts, is simple: they should not only initiate legal
proceedings but also demonstrate – not merely pretend or go through
the movements of an open case – that an authentic and effective legal
investigation is being carried out by the courts. Otherwise, either
the international courts or the national courts of third countries
will intervene and apply the principle of universal justice.

However, these premises of international law are sidestepped by states
that wish to perpetuate unacceptable impunity. They do not try [these
cases], or do not do so according to due procedural standards, they
oppose the "meddling" of universal justice, and they neither sign the
Statutes of the International Criminal Court nor accept its competence.

This deficit cannot be borne by the victims. These are entitled to
justice, and the international community is obliged to provide it.
Given the absence of a truly effective international criminal court,
the principle of universal justice exercised in any country, not only
Spain, is today the obligatory instrument for persecuting the most
serious international crimes that destroy human dignity.

MANUEL OLLÉ SESÉ is a lecturer in criminal law, director of the
human rights chair at the Antonio de Lebrija University and president
of the Spanish Human Rights Association, APDHE. Involved in the cases
of Guatemala (mayan genocide), Sahara, Argentina, murder of Jesuits
in El Salvador, etc.

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