Nobody Expects the Spanish Inquisition

 

“Our four weapons are fear, surprise, ruthless efficiency, and an almost fanatical devotion to…Justice?” Cardinal Ximénez, put aside the [dish-drying] rack and the Comfy Chair. Torture should be thrown into the ash heap of history. Spanish Inquisitors have devised a more clever means to punish the errant: universal jurisdiction.

With apologies to Monty Python, and with no intention of being too flip with a grave topic, I was struck when I heard this story on NPR’s Morning Edition on the drive to work. To quote,

Spain’s National Court operates under the principle of universal jurisdiction. As a result of a 2005 ruling by the Constitutional Court, the National Court must investigate allegations of crimes like torture and terrorism in another country if no legal action is being taken there.

Now, the court’s docket contains more than a dozen cases in countries including China, Morocco, Israel and the United States.

Thus, in March of this year, a Spanish magistrate on the National Court, Judge Baltasar Garzon “started an investigation into allegations that former Attorney General Alberto Gonzales and five other Bush administration lawyers gave legal justification for torture at Guantanamo.” The BBC reports that “Mr. Garzon is one of six investigating judges for Spain’s National Court which, like many other European countries, operates an inquisitorial system, as opposed to the adversarial system used by the US and UK.  The investigating judge’s role is to examine the cases assigned to him by the court, gathering evidence and evaluating whether the case should be brought to trial. He does not try the cases himself.”

NPR further asserts that National Court Judge Javier Gomez Bermudez, who presided over the Madrid bombing trial of 2007 and sentenced the three bombers to as many as 42,924 years in prison, “would most likely be on the bench for any case regarding Guantanamo.” Nonetheless, Judge Gomez Bermudez is quoted as saying to NPR that

It’s evident that in an international community of democratic states, no state can arrogate to itself the authority to supervise what another is doing — except in the case that the other is doing absolutely nothing. If President Obama is taking a series of decisions in favor of human rights, it doesn’t make apparent sense for us to come and put icing on the cake.

NPR concludes its report by citing a human rights attorney, Gonzalo Boye, who first brought claims against Bush administration officials; Boye claims that “Americans should embrace universal jurisdiction,” because “America was once one of the early proponents of the idea, at the Nuremberg trials of Nazi leaders after World War II.”

As a novice to international law and universal jurisdiction, I welcome responses to this NPR report, especially to Judge Garzon’s and Judge Gomez Bermudez’s comments. As an amateur student of history, I also welcome comments about similarities and differences between the Nuremberg trials and current efforts to prosecute citizens of other nations for crimes against humanity, et cetera. Here is an older (2001) article in Foreign Affairs by Henry Kissinger opposing universal jurisdiction, and a response by Kenneth Roth in favor.

Cardinals Biggles and Fang, if Spain has its way, you will be busy….

This Post Has 2 Comments

  1. Ed Fallone

    The United States signed the United Nations Convention Against Torture. This treaty makes torture a crime under international law, without exception, obligates each signatory nation to prosecute individuals within its jurisdiction that commit torture, and creates universal jurisdiction among all nations to prosecute offenders if the nation where the offense took place does not. Spain is not doing anything unusual or contrary to the treaty here, and in the instance of one case involving a Spanish citizen who alleges that he was tortured under orders from U.S. officials, they are acting well within the mainstream of international law.

  2. Peter Heyne, L'10

    As a postscript to my old blog post, the Spanish judge referenced above who sought universal jurisdiction was himself recently convicted of abuse of power
    for wiretapping conversations between lawyers and their jailed clients.

    From a UK Telegraph article: “In a unanimous ruling that is not subject to appeal, a panel of Supreme Court judges said Garzon would be suspended from the legal profession for 11 years and would permanently lose his current position as judge.”

    A cautionary tale on the Inquisitorial judicial system in civil law countries, and on judges overstepping their bounds.

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