Global Policy Forum

Spain Asserts Right to Try

Agence France-Presse
September 29, 2005

Spain's courts may try cases of genocide and crimes against humanity committed outside the country, whatever the nationality of the victims, the country's Constitutional Court said in a ruling hailed by rights activists. "The principle of universal jurisdiction takes precedence over the existence or not of national interests," the court said, quashing a 2003 decision by the Supreme Court relating to human rights abuses in Guatemala.

The Supreme Court had rejected a submission by 1992 Nobel Peace Prize winner Rigoberta Menchu, saying that Spain's judiciary could only deal with crimes committed against Spanish citizens. The Constitutional Court said it supported Menchu's case that "Spain should investigate crimes of genocide, torture, murder and illegal imprisonment committed in Guatemala between 1978 and 1986." About 200,000 people were killed during that period, including 626 in a massacre of Indian Mayas, according to the case filed by Menchu and rejected by the Supreme Court.

The Supreme Court verdict, by a narrow majority of eight to seven, that the alleged genocide of native Indians by the then Guatemalan regime was not tied to Spanish national interests, brought criticism from human rights groups such as Amnesty International. The Constitutional Court, overturning the Supreme Court ruling Wednesday, said it violated the basic legal rights of Menchu. It also threw out a 2000 judgment which turned down a case brought by Menchu on the grounds that she had failed to prove that Guatemalan courts had de facto rejected her complaint."To activate international jurisdiction it should be enough to bring serious and reasonable indications of judicial inactivity," the Constitutional Court ruled.

"This is an extraordinary advance that should be copied by all countries," Carlos Slepoy, a lawyer well known in Spain for his combat against human rights violations in Latin American dictatorships, told AFP. But he doubted, without having read the court ruling in detail, whether Spanish courts would be deluged by genocide cases.

The Supreme Court did allow a Spanish court to investigate an attack on the Spanish embassy in Guatemala City in 1980 in which 39 people were killed and the murder of four Spanish priests between 1979 and 1983. Spanish judges also sentenced a former Argentinian military officer, Adolfo Scilingo, to a total of 640 years in prison for crimes against humanity, including Spanish citizens. Another Argentinian, Ricardo Miguel Cavallo, is also being held in Spain awaiting trial on similar charges.

The investigating magistrate Baltasar Garzon, a strong backer of the principle of universal jurisdiction, tried to get former Chilean dictator Augusto Pinochet put on trial by having him arrested in London in 1998. But Pinochet was freed by the British governmment, ostensibly on health grounds.

In Belgium a 1993 law also allows that country's courts to judge suspects accused of war crimes, crimes against humanity and genocide, regardless of where the alleged acts were committed or the nationality of the accused or victims. The law was watered down in 2003 under pressure from the United States, some of whose leaders faced lawsuits because of it.

In July a British court sentenced Afghan warlord Faryadi Sarwar Zardad to 20 years in prison for torture and hostage-taking in Afghanistan after the first trial of its kind under a UN torture convention. Zardad, who fled to Britain in 1998 on a fake passport, was prosecuted at the Old Bailey even though he is not a British citizen and his crimes were committed overseas.

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