NEW YORK – Spanish MPs want to legislate restraints that would prevent a few of the country’s judges from exercising what has seemed like a roving license to prosecute in Spanish courts human-rights violations committed anywhere in the world. In a current case, a Spanish judge is seeking arrest warrants against Jiang Zemin, the former president of China, and Li Peng, a former Chinese prime minister, for alleged crimes committed in Tibet. There is no discernible Spanish connection to the case.
The Spanish MPs have a point: Allowing the country’s prosecuting magistrates to select targets from anywhere in the world, without there being a clear legal nexus to Spain, is an invitation to politicize the process. But it is also important to preserve the core principle underlying these prosecutions: the concept of universal jurisdiction. Indeed, it is a concept with ancient origins, and it plays a crucial role in the global protection of human rights.
Universal jurisdiction originated in Greek and Roman times in the struggle against piracy. Because pirates committed their crimes on the high seas, beyond the territory of any state, the idea developed that they were enemies of humanity whom any state could prosecute.
In the seventeenth century, the Dutch scholar Hugo Grotius, who is recognized for codifying international law, argued that pirates could be tried for their crimes, regardless of where they were committed, aboard the ships that captured them. Following the 1814-1815 Congress of Vienna, with its condemnation of slavery, some states applied the concept to slave traders, who also committed many of their crimes outside national jurisdictions.
Later, the crimes of the Nazis played an essential part in winning widespread acceptance of the concept of universal jurisdiction. At the end of World War II, Nazi leaders fled, relocating all over the world. Countries like Canada and Australia, seeking certainty that those who had committed horrendous crimes would not find safe haven within their borders, established the authority to try suspects in their own courts.
The concept has since been embodied in treaties that virtually every country in the world has ratified. The 1949 Geneva Conventions require states to search for those who have committed war crimes and either prosecute them in their own courts or turn them over to another state that is prepared to try them. Similarly, the 1984 Convention Against Torture requires states to establish their own jurisdiction to prosecute torture if an offender is on their territory and is not extradited to stand trial in the country where the crime was committed.
A crucial test of universal jurisdiction is now moving forward in Senegal, where one of Africa’s cruelest dictators, Hissène Habré, who ruled Chad from 1982 to 1990, is set to be prosecuted. A commission of inquiry established that, during its time in power, Habré’s regime carried out torture and was responsible for the deaths of an estimated 40,000 people.
When Habré was deposed, he fled to Senegal with a substantial portion of the national treasury, living there in comfort with much of his extended family, as well as key supporters. For many years, African human-rights activists, aided by Human Rights Watch, struggled to hold him accountable. Now, at long last, with the support of the African Union, he faces trial in his adopted home for the crimes he committed in Chad.
A related practice has developed in the United States, where victims of human-rights crimes committed elsewhere file civil suits against immigrant perpetrators. In a substantial number of cases since the early 1980’s, US courts have ordered the defendants to pay compensation to the victims.
Most often, universal jurisdiction is invoked when the person alleged to have committed war crimes, crimes against humanity, or genocide in another country is present in the territory where he or she is to be tried. This is consistent with the principle that there should be no safe haven for those who commit such crimes.
If Spain incorporates such a requirement in its law, and also provides for some other appropriate connection (such as the inclusion of Spaniards among the victims), it will overcome the tendency of a few of its judges to reach out too widely. Such a reform would remain faithful to the principles of justice that underlie the concept of universal jurisdiction.
Aryeh Neier, President Emeritus of the Open Society Foundations and a founder of Human Rights Watch, is the author of Taking Liberties: Four Decades in the Struggle for Rights.
Copyright: Project Syndicate, 2014.