This is the Guest Editorial that I wrote for the ESIL Newsletter of 1 February 2010.

Shrinking Universal Jurisdiction

The Pinochet case changed our perceptions of international law and the important role of national judges in its development. However, with the entry into force on 5 November 2009 of the new Spanish law governing the principle of universal jurisdiction, such a case would most probably not have been possible today.

The reform, which may be read as part of a tendency to restrict universal jurisdiction, was preceded by a handful of criminal investigations carried out by the Audiencia Nacional following a number of complaints against high-ranking officials of China, the USA and Israel. The media reported that political pressure by foreign nations to change the law of universal jurisdiction may have triggered the amendment. The Government was clearly uncomfortable with the way in which the judiciary had come to apply universal jurisdiction. The amendment was announced by the Government as a fait accompli, to the surprise of the legal community. The reform, however, had the full support of the opposition and was voted for by an overwhelming majority of the members of the Congress and the Senate.

As an advocate of a qualified, rather than an absolute, principle of universal jurisdiction, I believe that it was true that the previous law needed more than just a tweaking to make it more effective and legitimate, even for the limited purpose of maintaining the symbolic justice effect that it had achieved over the years. However, in my view, the new provision contains some important deficiencies. It establishes conditions that may be considered ambiguous or even contrary to the fundamental idea of universal jurisdiction, which is based only on the universal agreement that certain heinous crimes, such as genocide and crimes against humanity, must not go unpunished. The new provision – Article 23.4 of the Organic Law 6/1985, as amended by Organic Law 1/2009 – introduces three non-accumulative requirements for the exercise of universal jurisdiction by Spanish judges. The first stipulates that the persons presumably responsible for the crimes be present on Spanish territory. Alternatively, the victims must be Spanish nationals. Or, finally, there must be another relevant connection with Spain. I believe that the first requirement is acceptable and, given the difficulties in apprehending the alleged perpetrators of these crimes, even reasonable. The second, however, is simply flawed. Indeed, the nationality of the victim is another basis of jurisdiction, i.e. the passive nationality principle, and is totally inadequate as a prerequisite for the exercise of universal jurisdiction. As for the third, it seems too vague in a sphere of judicial practice where national judges are not particularly prone to exercise restraint. It should be noted, however, that the new legislation maintains full respect for the independence of judges, and does not provide for a political control of the judicial process. The law also rightly recognizes a subsidiarity principle, which implies that a case should be provisionally dismissed if a foreign national tribunal with jurisdiction or an international tribunal has already initiated proceedings to investigate and effectively prosecute the same crimes. The recognition of the direct relevance of this principle in the field of universal jurisdiction is connected to the rather indeterminate provision on subsidiarity as contained in the law governing the cooperation with the ICC (Article 7, Organic Law 18/2003).

Even after the amendment, Spanish universal jurisdiction still covers important ground, and has in fact been improved, with the crimes of genocide and crimes against humanity now being explicit grounds for its operation. On the other hand, the limiting effects of the new constraints have already been felt. For instance, the Audiencia Nacional recently refused to investigate alleged crimes against humanity by Moroccan authorities in the case of Mrs. Aminetu Haidar. Regarding possible retroactive effects of the amendment, it seems that the ongoing cases at the Audiencia Nacional have not been affected. However, in principle, in the criminal justice context, the law more favorable to the person being investigated or prosecuted should in any case be applied.

A global treaty on universal jurisdiction might be a good idea but it seems to be a very difficult task. A European Union solution would perhaps be more feasible. Indeed, the EU could try to either pass legislation adopting minimum rules on universal jurisdiction within the framework of the Lisbon Treaty or, if this strategy proves inappropriate, negotiate a specific agreement harmonizing the relevant laws of the member states. This approach would bring a much higher degree of legitimacy to the exercise of universal jurisdiction vis à vis the rest of the world. Perhaps there is still time for the Spanish EU Presidency to promote the idea?