EQUIPO NIZKOR |
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22Apr09
Spanish justice shies away from cross-border cases
Spain grabbed world headlines a decade ago by indicting Chile's former dictator Augusto Pinochet, and has since probed alleged atrocities as far away as Tibet and Rwanda.
But now, after tangling with Israel and the United States, the long arm of its justice system is apparently pulling back.
The Socialist government of Prime Minister Jose Luis Rodriguez Zapatero, keen on establishing strong relations with President Barack Obama, says it wants to narrow the scope of such cross-border cases to ones with some obvious link to Spain itself.
Madrid appears to be betting that in order to achieve its ambition to carve out a bigger role on the world stage it needs to keep diplomatic frictions with allies to a minimum.
Even human rights groups which have brought such cases before Spain's National Court say its judges have sometimes been too generous in admitting them, acknowledging they in fact should be pursued where the crimes are alleged to have taken place, or in international courts.
"The underlying problem is that there has been what I call case inflation," said Gregorio Dionis, president of a human rights group called Grupo Nizcor, which is trying to get Spain to seek the extradition of four alleged former Nazi concentration camp guards who live in the U.S.
And for many Spaniards there is great irony in watching their country act as global cop when it has never conducted a formal probe of, much less indicted anyone for, the ugliest chapter of its own recent past: the deaths of tens of thousands of civilians during the Spanish Civil War of 1936-39 and ensuing repression under Gen. Francisco Franco.
A number of European nations observe some form of universal justice or jurisdiction, the doctrine that allows for prosecution of heinous crimes like genocide, terrorism or crimes against humanity even if they are alleged to have been committed in another country.
But Spain has perhaps been the most active among them, and having Spaniards among victims of an alleged atrocity is not a necessary condition for a case to go forward. Anyone can file a complaint, and the court decides whether it merits a probe.
In actual practice, Spain's universal justice policy has had little effect, with extraditions extremely rare and only one conviction: an Argentine man named Adolfo Scilingo in 2005, over offenses during his country's military-era 'dirty war' against leftist dissent.
That has caused some critics to questions whether pursuit of international crimes in Spanish courts is not a waste of time and resources -- calling attention to atrocities but doing little to bring the culprits to justice.
Dionis, however, said action by individual countries does put pressure on suspects: "I have no doubt whatsoever that it does," he said.
After Pinochet's arrest in London in 1998 at Spain's request, for instance, the Chilean military barred all of its officers from leaving Chile, as a precautionary measure. The Argentine military issued a similar order after Ricardo Cavallo, a major suspect in the Argentine 'dirty war,' was arrested in Mexico on a Spanish warrant in 2000, Dionis said.
He also cited the case of Israel's Retired Gen. Doron Almog, who in 2005 declined to get off an El Al plane at London's Heathrow Airport after receiving a tip-off that British police were going to detain him as part of a war crimes complaint filed by a Palestinian human rights group.
The first hint of change in Spanish policy came in January when Israel complained bitterly over a National Court judge's decision to probe seven current or former Israeli officials over an air force bombing in Gaza that targeted and killed a top Hamas militant in 2002 but also killed 14 other people including nine children.
Foreign Minister Miguel Angel Moratinos assured Israel then that Spain would change its law to avoid such prosecutions with no Spanish link, and has since said he does not want such cases to intrude on its ability to engage freely in foreign policy.
That crimes-against-humanity probe against Israel has since been suspended, on grounds that Israel is still investigating the Gaza case. And last Friday prosecutors at the Spanish court all but doomed a complaint that sought a Spanish probe of six Bush administration officials for allegedly crafting a legal framework that allowed torture of terror suspects at Guantanamo Bay, CIA 'black sites' and other detention facilities.
Spanish Attorney-General Candido Conde-Pumpido will be asked to set "clear, specific legal criteria that establish the minimum conditions" for all such cross-border cases, prosecutor Carlos Miguel Bautista Samaniego wrote in that ruling.
A day earlier, the attorney general himself had warned he did not support a Guantanamo probe, saying such a move was up to the United States. Conde-Pumpido said Spain supported the principle of universal justice but wanted to "keep the National Court from becoming a plaything in the hands of people who seek some sort of prominence or try to engage in political action."
Spain's application of the principle of universal justice needs to be changed because "Spanish law may have been abused in some cases," a Foreign Ministry official said Tuesday on condition of anonymity, in line with ministry rules.
Spain's doctrine is based on a 1985 law that governs how its court system works, and it gained global fame in 1998 when Judge Baltasar Garzon had Pinochet arrested and sought his extradition to Madrid for trial on torture, genocide and other charges.
The British government ultimately refused, citing Pinochet's ill health. But Garzon's action was unprecedented and almost successful. He emerged as a hero for human rights groups around the world, and a magnet for campaigners in similar cases who saw him as their best shot at justice, said Florentino Portero, a professor of contemporary history at Spain's National Open University.
"What we really have here are the laws of the free market, applied to justice," Portero said in an interview.
It is one thing for Spain to intervene in countries that have weak judicial systems or a legacy of war or dictatorship, such as Guatemala or El Salvador, that hinders probes of atrocities. But to go after officials in states like Israel or the United States is "ridiculous," Portero said. "It makes no sense," he added.
Dionis, of Grupo Nizkor, said it was also legally inappropriate when Spanish judges indicted 40 Rwandan military officials in February 2008 on charges of mass reprisal killings after taking power following the genocide of 1994. An international court, based in Tanzania, exists precisely to deal with Rwanda's tragedy, Dionis noted.
[By Daniel Woolls, Associated Press Writer, Madrid, 22Apr09]
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