Hope or Frustration?

taz, 15 August 2009

By Wolfgang Kaleck

Spanish authorities once prosecuted human rights violators such as Chilean General Augusto Pinochet. Now, there are plans to again restrict such prosecutions to national territory.

An Intervention

"De la frustración a la esperanza"- from frustration to hope - is the title of this year's summer course on international criminal justice held by renowned Spanish judge Baltasar Garzón at Complutense University in Madrid. However, recent events suggest the title should be reversed to "from hope to frustration".

Explanations can be found in the Spanish judiciary, in whom victims of human right violations and organizations have vested their hope since the arrest of the Chilean ex-dictator Augusto Pinochet in 1998, and which has recently come under fire. Prosecutions of human rights violations are to be discontinued, and Spanish laws allowing for international prosecutions reformed.

Fight for Investigations

Since summer 2008, government officials from Rwanda, Israel, China and the US as well as the African Union have been seen coming and going from the Spanish government offices. Their complaints concern ongoing proceedings in Spain against human rights violators from Rwanda, China, Israel and the US. Each of these investigations is internationally highly debated and controversial.

Spanish Attorney General Javier Zaragosa initiated the complaints against the proceedings, asserting that Spain should not be a substitute for the International Criminal Court (ICC). However, such criticism fails to recognize the crux of the problem- most of the human rights crimes under investigation by Spanish courts do not fall within the competence of the ICC as they were committed prior to the statute coming into force in 2002, or by citizens of states that are not subject to the statute. And yet, objective arguments have little sway in discussion on such a heated topic. In a problematic legislative procedure, Spanish congress has decided to change the law allowing for international prosecution of torture and genocide in Spain (Ley Orgánica del Poder Judical). In future, only investigations of crimes which have been committed on Spanish territory, against Spanish citizens or with a relevant connection to Spain, however this is to be interpreted, will be allowed.

Why are the developments in Spain so important? The international prosecution of crimes in international law was agreed on after the Nuremberg and Tokyo trials which followed World War II. Whether to prosecute crimes like genocide or war crimes was no longer left to nation states to decide. Instead, the international community as a whole would proceed with prosecution in cases where serious human rights violations were not punished in the country in which they occurred. It was not until the end of the Cold War in the 90s that international criminal justice began to take its current form with the development of the UN ad-hoc-tribunals for the former Yugoslavia and Rwanda, and the International Criminal Court in The Hague. Still, the international courts' jurisdiction is restricted to human right violations committed in certain regions and at certain times, and their means are limited. Thus in order to hold nationals of states which are not parties to the ICC responsible, proceedings have been initiated in European countries via the doctrine of universal jurisdiction.

Universal jurisdiction allows a state to prosecute serious international crimes, even where the crime is not committed on the territory of that state, and neither the victim nor perpetrator are nationals. The doctrine has been effectively relied upon in dozens of cases, particularly against perpetrators from failed or weak states, as  seen in the successful prosecutions of Bosnian Serbs in Germany in the 90s, and of Rwandans in Belgium.

Still, prosecution remains highly selective. When the Belgian judiciary directed its gaze toward former Israeli Prime Minister Ariel Sharon, and later to the US government regarding the war in Iraq, it was subjected to severe pressure. Without support from other European states, Belgium succumbed to American threats which included withdrawing NATO headquarters from Brussels, and limiting its jurisdiction. Although the German Völkerstrafgesetzbuch (which allows for the prosecution of international crimes), came into force in 2002, federal German prosecutors have been cautious in applying the law, particularly regarding investigations against allies from Uzbekistan or the US.

The Pinochet-effect

This is where Spain enters the stage. Since the arrest of Augusto Pinochet in London in autumn 1998, jurist and human rights organizations initiated numerous costly proceedings against military and government officials from Argentina, Chile, Guatemala, El Salvador, Rwanda, as well as China, Israel and the US. The arrest of Pinochet, who like many other dictators was regarded as untouchable in his own country, inspired many human rights organizations and jurists across the world to hold human rights violators accountable, thereby making an immense contribution to human rights protection within those countries, and globally. The case also had a powerful impact in many southern countries, where proceedings were initiated both locally and regionally against formerly powerful human rights violators, as seen recently in the conviction of Alberto Fujimori in Peru. Thus the Pinochet case has always been more than just a single case. Instead, it was a catalyst for further action, signifying recognition of the traumatic results of impunity for individual victims and societies, and the political and legal necessity of taking legal action. The catalyst effect has been coined the 'Pinochet-effect' the US lawyer Naomi Roht-Ariazas coined the term.

Evidence secured

The ostracism of former military officials, the legal decisions and surrounding discussions have undoubtedly had an immense impact. In more than ten years of Argentine proceedings in Spain directed at more than a hundred Argentine military officials whose arrest warrants were issued in Spain, countless pieces of evidence have been gathered by the Spanish authorities, including witness testimony. Evidence gathered this way is also available to and used by Argentine authorities.

Despite such success, things are changing in Spain. Of course, the much admired and undoubtedly controversial investigating judge Baltasar Garzón still displays confidence bordering on arrogance, discussing his cases in his summer course in front of an audience comprised mainly of students. However, in personal discourse, he seems more thoughtful than usual. Attacks on Garzón and his colleagues have recently become increasingly personal, and originate from among Spanish political parties and the judiciary. The Partido Popular (PP) in particular has set its sights on the judge, who in addition to international human rights violations, has conducted investigations for the Audencia Nacional regarding cases of terrorism, narcotics related crime and corruption, without flinching from powerful politicians.

As early as the 90s, Garzón's fellow socialist party members had to answer to allegations of torture and liquidation of ETA-cadres in the so-called GAL-proceedings. In ongoing investigations into allegations of corruption among high-ranking PP officials from Madrid and Valencia in the Caso-belt, the PP has unsuccessfully attempted to obstruct investigations by alleging Garzón instigated political proceedings aimed at the entire party. Subsequently, Garzón has caused chaos by initiating investigations into crimes against humanity committed under the Franco regime. The death of several people (including the writer García Lorca) who disappeared or were killed during Franco's dictatorship were proposed for investigation which included the unearthing of mass graves. In a controversial decision, the investigations were stopped at a federal level by the federal court of Madrid (Audencia Nacional). In response to Garzón's activities, the far-right organization Manos Limpias has instigated proceedings against him for perversion of justice. Surprisingly, and providing an insight into the rift within the Spanish judiciary, the charges have been accepted by the Supreme Court.

Spain was once the engine behind and bearer of all hope of legal developments and reform. With Spain acting as an agent for other European states, criminal investigations have been conducted which are as necessary as are impossible in other states for legal and political reasons. Most of the proceedings against African nationals or those from defeated nations are legally justified if considered on their own merits. However such selective prosecution has been subjected to harsh critique from Africa, and from other southern regions.

If the Spanish model should fail, the criminal prosecution of human rights violations, if not the entire discourse on human rights is further delegitimized. The alternative is defending the Spanish practice on a European level, and initiating legal proceedings in other European countries.

Translated by Johannes Hinz

(Published in: taz, 15/08/2009)

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