Spanish courts, the last holdout for trying crimes committed anywhere in the world, will now limit their reach in the wake of a vote in Madrid's lower house of parliament today.
Spain has long been a champion of prosecuting heinous crimes under a concept known as "universal jurisdiction." It brought charges against Osama bin Laden and Gen. Augusto Pinochet of Chile. This spring, a Spanish judge opened an investigation into torture at Guantánamo, including a focus on leading officials within the Bush administration.
But Spain is now following an international legal trend away from allowing national courts to try anyone, anywhere, analysts say. Courts in France, Finland, the Netherlands, Belgium, and Germany have also seen their forays into global justice curtailed.
Under the new law, expected to quickly pass in Spain's senate, the nation is narrowing its legal mandate. Although a wide variety of cases that originate overseas may still be brought, they must involve grievances that include a Spanish citizen.
The move may give some wider latitude to the relatively young International Criminal Court (ICC) in The Hague, legal experts say, though this is disputed. Currently the ICC indictments and trials are drawn mostly from cases of genocide or war crimes in Africa.
A loss for human rights groups?
Human rights groups lamented today's vote. They have prized Spain for stepping into the vacuum by accepting cases involving war crimes, inhumane policies, and injustice elsewhere when other nations are unlikely – or refuse – to investigate.
Spanish courts, most famously under criminal court Judge Baltasar Garzón, have launched investigations into civilian bombings in Gaza, Chinese mistreatment of Tibetans, and genocide in Rwanda and Guatemala. Such cases already open will be "grandfathered" under the new law – and will continue.
While the Guantánamo torture allegation case in Spain involves one Spanish national, the challenge against the Bush administration legal team does not. It is unclear whether that case will continue.
Spain bowed to US pressure
The Obama administration has been chary in support of efforts to prosecute previous White House officials in what could devolve into very ugly partisan fights. Human rights groups indirectly charged Spain with bending to US pressure. A joint press release from Amnesty International, Human Rights Watch, and the UGT trade union stated, "Spain is more concerned with not offending some powerful governments than with ending the impunity that criminals benefit from."
Mark Ellis, executive director of the International Bar Association in London, says the application of "universal jurisdiction" is shifting from an absolute concept personified by Spain, to a more conditional reading. He argues it may be a needed adjustment, given the hard political dynamics in and around nations that argue for state sovereignty. But in the long run the change may be salutary.
"I saw this coming," Mr. Ellis says. "This doesn't eliminate the concept of universal jurisdiction, required under the Geneva Convention, but it is evolving with provisions. If every state fully pursued absolute universal jurisdiction this would be very chaotic, bring unintended consequences, and might weaken international law, including the role of the ICC."
Many advocates for international justice argue that institutions such as the ICC were inconceivable a decade or so ago. They marvel at the growing string of indictments of leaders, such as Sudanese President Omar al-Bashir, and cases against leaders such as Bosnian Serb Radovan Karadzic. Many agree with President Obama, quoting Martin Luther King Jr., that "the arc of the moral universe is long, but it bends toward justice."
Yet many also argue that Spain's open courts were a warning to leaders of powerful as well as less-powerful states that international justice should apply equally.
Richard Dicker, of Human Rights Watch in New York, says that the new law is "an unfortunate step backwards for Spain, but more seriously for victims who look to Spanish courts for redress. National courts using universal jurisdiction are an important part of holding to account those who may be responsible for heinous crimes."