Reluctant enforcement: The laws on universal jurisdiction

By Erika Schneidereit October 4, 20174 October 2017

Reluctant enforcement: The laws on universal jurisdiction

In international law, they are known as “victims of enforced disappearance” – individuals removed from their homes and typically never heard from again. But in Spain, they are known simply as ‘the disappeared’: the over 114,000 Spaniards who vanished during the Spanish Civil War and Franco’s subsequent dictatorship (between 1936 and 1975).  The word itself, “disappeared,” gives a glimpse of this tactic’s cruel effects. Victims’ families and friends are left with no explanation - the disappeared are simply gone, never to be heard from again.  

In the years that follow any war, there are calls for answers. Often, these calls go unheeded - sometimes because the government cannot risk reigniting tensions, sometimes because it simply lacks the political will to embark on a daunting quest for post-conflict justice.

When Spain emerged from dictatorship in 1975, it too struggled with how to reconcile the dark chapters of its past with a new vision for the future. Claiming that it needed to protect its nascent democracy, in 1977 the Spanish government chose to pass an amnesty law prohibiting prosecution of individuals for offences committed from 1936 to 1975 – a nearly 40 year period in which thousands of crimes had taken place.

Meanwhile, the victims of these crimes have acquired an unlikely champion: the Argentine courts. In August 2016, it was an Argentine judge that agreed to investigate the death of Spanish poet and playwright Federico Garcia Lorca, widely seen as a symbol of the many Spaniards who disappeared during the Civil War and dictatorship.  (The irony is that a Spanish judge, Baltasar Garzón, became widely known for his international pursuit of former Chilean dictator Augusto Pinochet, who was shielded by his country’s own amnesty laws).

This ability of an Argentine judge to extend her reach to a case bearing no territorial link to Argentina is grounded in one of international law’s most contentious doctrines – that of universal jurisdiction. In theory, this jurisdictional ground allows a court of any state to exercise jurisdiction over crimes of a sufficiently grave nature, regardless of whether a territorial link exists between the crime and the prosecuting state. By doing so, those who commit crimes offending the international community will be unable to escape the reach of the law no matter where they try to hide.

Over one hundred states have adopted some form of universal jurisdiction. But the contours of universal jurisdiction and conditions for its use remain highly controversial. This is largely due to the perceived intrusion of universal jurisdiction onto one of the sacred pillars of international law – state sovereignty. But it is one thing for a state to have the ability to prosecute a national of another country on the grounds of universal jurisdiction. It’s quite another to decide which crimes to target and which individuals to prosecute. That will inevitably be a political decision. While human rights advocates applaud the use of universal jurisdiction as a tool for bringing criminals to justice, governments are more reluctant to use this mechanism lest they suffer political consequences.

That presents a problem. Rather than work to create political consensus on its definition and use, many states have instead chosen the simpler path of repealing or significantly restricting their laws on universal jurisdiction. And for the victims who rely on those laws as a pathway to justice, this must surely seem to be yet another example of political manoeuvring triumphing over holding perpetrators accountable for their crimes.

Part 2 of this series will look at how and why Spain relinquished its role as a champion of universal jurisdiction (and whether Argentina is stepping into its shoes?)

Erika Schneidereit is a JD candidate at the University of Ottawa - Faculty of Law and an MA candidate at the Norman Paterson School of International Affairs. The author's views are her own.

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