When the laws on universal jurisdiction mix with politics

By Erika Schneidereit December 5, 20175 December 2017

When the laws on universal jurisdiction mix with politics


Part 1 of this series provided an overview of universal jurisdiction, and looked at how Argentina has used this doctrine to dig into Spain’s troubled past. But how has Spain itself grappled with the benefits – and drawbacks – of embracing universal jurisdiction?

The doctrine of universal jurisdiction is certainly a polarizing subject in international law – so why dig into the history of its use in one particular country? While exploring the rise and fall of universal jurisdiction in Spain is undoubtedly intriguing from an academic perspective, it is more importantly a crucial exercise for advocates of the doctrine who seek to entrench universal jurisdiction as one of the core jurisdictional bases in customary international law.

Despite its recent fall from Spanish good graces, since its 1985 adoption into Spanish law “no country has been more assertive in using [universal jurisdiction] than Spain.” Spain’s championing of a legal tool used to prosecute human rights violations beyond national borders is somewhat surprising, given the country’s own historical experience with post-conflict justice — notably, Spain’s decision to effectively prohibit prosecution of the crimes occurring under the Franco dictatorship and the Spanish Civil War. Alternatively, it is perhaps precisely because of this reluctance to turn its historical gaze inward that Spain so readily allowed for the pursuit of justice outside its borders.

Whatever its original motivation, Spain soon became well-known on the international scene for its willingness to use universal jurisdiction as a basis for extraterritorial investigations — and while these attempts at indictment abroad rarely led to legal proceedings in Spain, they undoubtedly caused a ripple effect in other countries. The most famous of these cases arose in 1998, when Spanish judge Baltazar Garzón (pictured above) indicted Chilean dictator Augusto Pinochet for crimes against humanity and requested his extradition from the United Kingdom to Spain. Spanish judges have also used the doctrine of universal jurisdiction to investigate human rights abuses in Rwanda, Guatemala, and Tibet.

All of this changed in 2014, when Spain adopted new legislation restricting universal jurisdiction to circumstances presenting some nexus with Spain. To use the doctrine under this new legislation, Spanish judges need a case where the suspect is either a Spanish citizen, is habitually resident in Spain, or is a foreigner present on Spanish territory whose extradition has been denied. Needless to say, this legislative change greatly limited the use of universal jurisdiction on the Spanish legal scene.

While it’s impossible to say exactly why Spain chose to curtail the use of universal jurisdiction so drastically, it’s likely that political concerns came into play – for instance, the vote on the 2014 law restricting universal jurisdiction came only days after a Spanish court ordered arrest warrants for a former Chinese president and other senior Chinese officials over human rights abuses in Tibet, at a time when Spain was seeking stronger trade links with China.

This conclusion leads to an uncomfortable question for supporters of universal jurisdiction – if political affronts lead to a reining in of the doctrine’s availability to judges, should efforts to investigate human rights abuses abroad focus only on the most politically palatable situations? While practical considerations may suggest this is the way forward, human rights abuses rarely occur in circumstances devoid of political interest. More importantly, embarking on such a path runs contrary to the very ethos of universal jurisdiction in international law – the belief that no human rights abuse should be beyond the reach of the law, no matter who commits these abuses or where the perpetrators may hide. While this may occasionally put states in uncomfortable situations, accepting this essential requirement of universal jurisdiction is critical to achieving justice – regardless of where human rights abuses occur.

Erika Schneidereit is an articling student with the Department of Justice. The author's views are her and do not represent the views or the positions of the Department of Justice or those of the Government of Canada.

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