MADRID — Spanish judges are boldly declaring their authority to prosecute high-ranking government officials in the United States, China and Israel, among other places, delighting human rights activists but enraging officials in the countries they target and triggering a political backlash in a nation uncomfortable acting as the world’s conscience.
Judges at Spain’s National Court, acting on complaints filed by human rights groups, are pursuing 16 international investigations into suspected cases of torture, genocide and crimes against humanity, according to prosecutors. Among them are two probes of Bush administration officials for allegedly approving the use of torture on terrorism suspects, including prisoners at Guantanamo Bay, Cuba.
The judges have opened the cases by invoking a legal principle known as universal jurisdiction, which under Spanish law gives them the right to investigate serious human rights crimes anywhere in the world, even if there is no Spanish connection.
International-law advocates have cheered the developments and called the judges heroes for daring to hold the world’s superpowers accountable. But the proliferation of investigations has also prompted a backlash in Spain, where legislators and even some law enforcement officials have criticized the powerful judges for overreaching, as well as souring diplomatic relations with allies.
“How can a Spanish judge with limited resources determine what really happened in Tiananmen or Tibet, or in massacres in Guatemala or God knows where else?” said Gustavo de Arístegui, a legislator and foreign-policy spokesman for the opposition Popular Party. “We have our own problems and our own bad guys to take care of.”
On Tuesday, the lower house of the Spanish parliament easily passed a resolution calling for a new law that would limit judges to pursuing cases with ties to Spanish citizens or a link to Spanish territory. Cases could be brought only if the targeted country failed to take action on its own.
The vote was prompted, in part, by two National Court judges who decided separately last month to investigate Bush administration officials on allegations that they encouraged a policy of torture. The judges have moved forward despite the opposition of Spanish Attorney General Cándido Conde-Pumpido, who said the cases risked turning the National Court into “a plaything” for politically motivated prosecutions.
Another judge announced Thursday that he would charge three U.S. soldiers with crimes against humanity, holding them accountable for the April 2003 deaths of a Spanish television cameraman and a Ukrainian journalist. The men were killed when a U.S. tank crew shelled their Baghdad hotel. Judge Santiago Pedraz said he would pursue the case even though a National Court panel, as well as a U.S. Army investigation, recommended that no action be taken against the soldiers.
The controversy over universal jurisdiction has left the government of Spanish Prime Minister José Luis Rodríguez Zapatero in a bind. Many members of his Socialist Party have supported the judges in the past. But the probes are causing diplomatic headaches for Zapatero, who has sought to improve his standing in Washington after years of frosty relations with the Bush White House.
Israel and China have complained strenuously about the investigations of their countries, making clear that Spain will pay a political price if they continue. Spanish judges have opened two probes into Israeli military airstrikes on the Gaza Strip, dating to 2002. They are also conducting two investigations into alleged abuses committed by Chinese officials in Tibet, and a third regarding repression of the Falun Gong movement.
Julio Villarubia, a Socialist member of parliament, said it was unclear exactly how or when the Spanish government would amend its universal-jurisdiction law. But he said limits are necessary.
“We have not adopted the resolution because of pressures by the U.S., China, and Israel, though that pressure is known; the disagreements are there,” he said.
It is unclear whether changes to the law would apply retroactively to pending cases. In interviews, a Justice Ministry official said they would not, but a senior prosecutor in the National Court suggested otherwise.
Regardless, most of the probes underway do have at least a tangential Spanish connection. The Guantanamo cases, for example, are partly based on testimony by a Spanish citizen who spent three years at the U.S. naval prison in Cuba.
A Global PortfolioSpain’s embrace of universal jurisdiction dates back more than a decade. In 1996, a crusading judge on the National Court, Baltasar Garzón, opened a criminal investigation into human rights abuses in Chile and Argentina.
When Chile’s aging dictator, Gen. Augusto Pinochet, traveled to London for medical treatment in 1998, Garzón issued a warrant for his arrest. British officials complied and held him under house arrest. But they later allowed Pinochet to return to Chile, citing his ill health as a reason for not extraditing him to Spain.
Garzón had asserted jurisdiction because some of the victims of the Chilean dictatorship were Spanish citizens. But that legal condition was pronounced unnecessary in 2005, when Spain’s Constitutional Court ruled that judges can pursue grave human rights crimes anywhere, even if there is no Spanish connection.
Since then, rights groups have made a beeline for Madrid, where they have enlisted local lawyers to file complaints with the National Court. Spanish judges are obligated to examine each case and investigate whether it meets certain thresholds.
Under Spain’s legal system, judges such as Garzón serve as investigating magistrates and hold enormous power. They oversee police work, collect evidence and can compel witnesses to testify. If they conclude that charges are warranted, they hand the case to another judge for trial.
The National Court judges originally concentrated on countries with colonial ties to Spain, such as Guatemala, Argentina and El Salvador. But the judges have recently branched out to other places, such as Rwanda, Morocco, China and Israel.
Alan Cantos, president of the Tibet Support Committee, a Spanish advocacy group that requested the probes, said he is worried the Spanish government will succumb to outside political pressure.
“When powerful countries start getting touched, there is a backlash,” he said. “You mix U.S., Israeli and Chinese propaganda and complaints, and all of a sudden, the Spanish government starts shaking at the knees. Quite frankly, I find it pathetic.”
The Spanish universal-jurisdiction investigations have resulted in a single conviction. Adolfo Scilingo, a former Argentine naval captain, was found guilty of crimes against humanity in 2005 for pushing 30 drugged and bound prisoners out of government airplanes in the 1970s. He was sentenced to more than 1,000 years in prison by a Spanish court.
Carlos Slepoy, a Spanish-Argentine lawyer who helped pursue Scilingo, said the universal-jurisdiction cases have valuable secondary effects. Officials targeted by Spanish judges need to be careful about where they travel; Spanish arrest warrants are generally enforced throughout Europe but also sometimes in Mexico and other countries.
“Any country should be able to bring these cases, as long as they are democracies that belong to the United Nations,” Slepoy said.
‘An Inflation of Cases’Critics say the cases are influenced by politics. They note that the National Court has been quick to accept complaints about human rights abuses in Israel and the United States but has ignored problems in Syria, North Korea and Cuba.
“These guys are not proper judges from a professional point of view,” said Florentino Portero, a contemporary history professor at Madrid’s National Open University. “They are following a trend from the left wing of the Spanish political arena.”
Spanish prosecutors have also expressed concern. They recommended that the National Court not pursue many of the 16 pending cases but were overruled by judges, who have the final say.
Javier Zaragoza, chief prosecutor at the National Court, said universal-jurisdiction cases are legitimate in principle. But he said Spain should not try to intervene in the affairs of democratic countries that are equipped to police themselves.
Even some human rights advocates said the explosion of cases has made them uneasy.
Gregorio Dionis, president of Equipo Nizkor, a Brussels-based group that has urged the National Court to prosecute accused former Nazi death camp guards living in the United States, said it has become too easy to have a complaint acted upon.
“There’s been an inflation of cases filed under universal jurisdiction,” he said. “Not all of them have been well grounded from a legal point of view.”
Other advocates, however, point out that Israel and the United States have embraced the principle of universal jurisdiction when it suits them.
In 1960, Israeli agents kidnapped Nazi war criminal Adolf Eichmann in Argentina and tried him in Israel; he was convicted and executed.
More recently, the U.S. Department of Justice has supported efforts to have Spain pursue investigations against two alleged Nazi concentration camp guards living in the United States. The Justice Department lacks the jurisdiction to prosecute the men for crimes committed decades ago in Europe but would like to deport them to Spain to stand trial there.
Special correspondent Cristina Mateo-Yanguas contributed to this report.
© 2009 The Washington Post Company
If Obama Cedes Ground on Torture to Cheney, We’ll All Pay a Heavy Price May 25, 2009
Posted by rogerhollander in Barack Obama, Criminal Justice, Dick Cheney, Torture.Tags: 9/11, Abu Ghraib, bagram, bin Laden, bush crimes, cheney, cia, condoleeza, convention against torture, eichmann holocaust, gary younge, geneva conventions, Guantanamo, hannah arendt, military commissions, nuremberg, Obama, pelosi, prolonged detention, rendition, roger hollander, rule of law, secret prisons, torture, torture photos, War Crimes, waterboarding
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By acknowledging recent crimes while refusing to pursue the criminals, the president has made his position untenable
by Gary Younge
‘Every government assumes deeds and misdeeds of the past,” writes Hannah Arendt in Eichmann and the Holocaust. “It means hardly more, generally speaking, than that every generation, by virtue of being born into a historical continuum, is burdened by the sins of the fathers as it is blessed with the deeds of the ancestors.”
For Barack Obama this cuts both ways. Talented as he is, he looks much more so when compared with the man who preceded him. Just by showing up and stringing a few coherent sentences together, he embodies an improvement. To earn acclaim in these early months, he hasn’t had to do anything good. He merely had to announce that he would stop doing things that were bad.
On the other hand, he has inherited the scarred landscape of his predecessor’s tenure. Bush’s wars, banks, car companies, secret prisons and untried prisoners are now his. As the candidate he may have promised change, but as the president he must also simulate some sense of continuity. Soaring rhetoric, however hopeful about the future, cannot erase the past, which has a habit of remaining with us.
Herein lies the tension in Obama’s deeply flawed attempts to come to terms with America’s recent disgraceful record of torture and detainment. As a candidate he was consistent on two points. First, he was opposed to torture and would close Guantánamo Bay. “I believe that we must reject torture without equivocation because it does not make us safe, it results in unreliable intelligence, it puts our troops at risk, and it contradicts core American values.” Second, he had no desire to prosecute those who have been guilty of human rights abuses. “I would not want my first term consumed by what was perceived on the part of the Republicans as a partisan witch-hunt, because I think we’ve got too many problems to solve.”
In short, by acknowledging the crimes while refusing to pursue the criminals he has promised to rectify America’s grim recent history without ever reckoning with it.
Events over the past few weeks have shown just how ethically and politically untenable this situation really is. His first term looks as though it may be consumed by these issues anyway – and not on his terms. Having released the torture memos, Obama then reversed his position on releasing photographs that accompanied them on the grounds that to do so would endanger US troops. Having opposed trying Guantánamo prisoners under military commissions, he now supports it. His decision to close Guantánamo has been delivered a huge blow by the Senate, which voted 90-6 to deny the funds necessary to do so. Now he has proposed that suspects who cannot be tried in a federal court because evidence against them was obtained under torture could be held in ”prolonged detention” in the US without trial.
In essence, he would transfer the legal architecture of Guantánamo to the mainland, as though the problem were one of geography rather than principle. So much for core American values.
On one level we should not be surprised. Obama was elected by Americans to represent American interests – which, in turn, are informed by American political realities. And the reality is that, with a few notable exceptions, the Democrats have consistently failed to provide an unswerving, principled opposition to torture whenever they have had the power to do so, for fear of being branded unpatriotic. Like their spinelessness over the Iraq war, this complicity in the name of pragmatism ultimately makes them more vulnerable to political attack, rather than less.
The speaker of the US House of Representatives, Nancy Pelosi, knows this only too well. When asked why she took impeachment off the table before the 2006 elections, she said: “What about these other people who voted for that war with no evidence … Are they going to be voting with us to impeach the president? Where are these Democrats going to be? Are they going to be voting for us to impeach a president who took us to war on information that they had also?”
This makes the recent fiasco over her confused accounts of whether and when the CIA mislead her on waterboarding seem all the more disingenuous. Allegations of torture from various sources were prevalent by that stage, and she chose not to believe them. Her silence made her complicit, leaving her territory on the moral high ground foreclosed.
This should leave us in no doubt as to where the ultimate responsibility lies. “Where all are guilty, no one is,” wrote Arendt. “Confessions of collective guilt are the best possible safeguard against the discovery of culprits, and the very magnitude of the crime the best excuse for doing nothing.”
This is precisely how those who have now left the Bush administration have played it. “The president instructed us that nothing we would do would be outside of our legal obligations under the convention against torture,” Condoleezza Rice said recently. “So by definition, if it was authorised by the president, it did not violate our obligations under the convention against torture.”
But in the absence of moral leadership the national conversation has morphed seamlessly from human rights to national security, where the issue of torture and detention is debated not on the grounds of morality but efficacy.
With the former vice-president Dick Cheney leading the charge, the right has managed to mount a spirited defence of torture in which America’s rights as the potential, abstract victim of terrorism supersede detainees’ rights as actual victims of torture.
In the heady days following 9/11, argues Cheney, observing constitutional niceties and international conventions was a luxury they could not afford. Waterboarding, he said just last week, “prevented the violent deaths of thousands, if not hundreds of thousands, of innocent people”. Cheney insists that by closing Guantánamo and putting a halt to torture Obama is making the country less safe.
These arguments are not difficult to counter. There is not one shred of evidence any intelligence obtained as a result of torture has been used to prevent further attacks. The best intelligence the Bush administration ever had was a month before 9/11, when it received a memo entitled “Bin Laden determined to attack inside the US” from the FBI, warning of “patterns of suspicious activity in this country consistent with preparations for hijackings”. No torture was involved; no action was taken.
Conventions are devised precisely to set boundaries in moments of crisis – in periods of relative harmony there is not much need to refer to them. The Geneva convention, in particular, was devised to establish the rules of engagement during times of war. If the very fact of being at war is reason enough to discard it, then it has no meaning.
And finally, if showing the world what America has done would inflame anti-American sentiment then maybe America shouldn’t do it in the first place.
Gary Younge is a Guardian columnist and feature writer based in the US