La giurisdizione universale permette la persecuzione, in quasi tutto il mondo, dei criminali che hanno offeso la coscienza di qualsiasi società civilizzata. Le sue origini più recenti sono legate al processo di Norimberga. Solo coloro che utilizzano metodi estremi quali la tortura e l’assassinio possono aver paura della giustizia universale. E’ chiaro che gli altri paesi possono sentirsi disturbati nel dover difendere la giurisdizione universale visti i loro rapporti di realpolitik ad esempio con la Cina, ma è altrettanto chiaro che in ogni situazione la scelta a difesa di questo valore superiore dovrebbe essere scontata. Questi non sono bei tempi per la giustizia universale, si rischia di fare grandi passi indietro.
In Spagna la limitazione di tale giustizia è una triste realtà. Il congresso ha difatti appena approvato una legge con la quale si limita il suo uso unicamente nei casi in cui le vittime siano spagnole ed i crimini siano commessi sul territorio nazionale od in caso un tribunale internazionale, o il governo del paese, non stia facendo nulla per perseguire eventuali crimini.
seguono due articoli in inglese
Who’s afraid of universal justice?
José Antonio Martín Pallín*
Newspaper: El Periódico de Catalunya
23/5/2009 Printed edition of PERSECUTING CRIMES AGAINST HUMANITY
Universal jurisdiction permits the persecution, in most of the world, of crimes that offend humanity’s conscience and that of any civilized society.
It owes its most recent origin to the Nurenberg trials, which in their day were enthusiastically approved and acknowledged by the very states that today are inconvenienced by and diplomatically express their irritation at lawsuits demanding their accountability for acts now considered crimes against humanity.
What the allied military tribunal of Nuremberg had to create from scratch –with noble material that has withstood the passage of time – were later adopted by the United Nations in the Nurenberg rules and are today enshrined in law in the Statutes of the International Criminal Court, which were signed by an overwhelming majority of the countries making up the United Nations, with notable reservations to this jurisdiction being formulated by countries such as the United States and China.
Despite attempts to mislead public opinion, universal jurisdiction is not concerned with investigating all manner of crimes as if it were some sort of global night court, but is limited by the specific regulation of both national law and the Statutes of the International Criminal Court.
We can’t just stand there while unacceptable things like genocide or crimes against humanity are committed. It is not a question of persecuting isolated acts of torture, assassinations, forced disappearances, extra-official executions or similar acts that cause grievous bodily or psychological harm, but rather those that, as described in the Statutes of the International Criminal Court signed and accepted by Spain, are committed as part of a generalized and systematic attack on a civilian population.
Only those who use these methods should fear universal jurisdiction. It is logical for governments that sign treaties by which they must then abide, to prefer their counties not to become embroiled in diplomatic conflicts that compromise their real politik. But they should do no more than express their discomfort before going on to defend their judges, whose independence comes before international relations with another country, be it a world power, an African state, an Arab or Asian dictator or a ruler of former Yugoslavia.
In Spain it is not possible to be ignorant of the workings of universal jurisdiction, which is guaranteed by the law and was ratified by our Constitutional Court when it corrected the majority vote of the Supreme Court in the Guatemala case and declared that universal justice is not conditioned or limited by the country involved or the active or passive subject of the crime.
It is understandable that the President of the Government or the Minister of Foreign Affairs is inconvenienced by judicial initiatives. It is also understandable that many journalists take sides and unleash their hatred of judges, who are systematically harassed for taking awkward decisions. But little did we expect the highest legal institutions to join in the attack. The president of the Supreme Court should be the guardian of the system and should make his declarations carefully. We are not the world’s policemen, we do not engage in daily diplomatic battles, and some initiatives have been successful. Besides, the system can be shown to work by the fact that the Scilingo case reached a successful resolution and the sentence is being executed.
The attorney general has even declared that the judges of the Audiencia Nacional who accept these lawsuits are toys in the hands of those who lodge them.
In the case of the Guantánamo bases he went even further, saying he thought the lawsuit was fraudulent, an opinion not shared by prestigious American lawyers or Spanish civil rights’ associations. Even the president of the Commission of Justice of the U.S. Congress has shown support for the Spanish initiative.
The Israeli Government has discredited the lawsuit on events in Gaza but has failed to mention that an Israeli general arriving in London on board an Israeli plane was warned that if he got off the plane he would be arrested. Needless to say, he stayed on board and returned to Israel.
These are not good times for universal justice. The bad omens have been confirmed, one of the worrying symptoms of which is the recent agreement between the majority parties to modify its regulation. This agreement limits persecution in Spain to cases where the accused is on Spanish soil or the victim has Spanish nationality. This is a step backwards to the 19th Century and means that the principles of extraterritorial application of Spanish criminal law must be rescued. The victims are universal, and to discriminate against them on the basis of nationality limits their chances of asking for justice and putting an end to impunity. Has the policy for protecting victims changed?
As always, the powerful are praised and obeyed (the United States, China and Israel), while the people are scorned. Just as Machiavelli said so many centuries ago.
From another courageous and experienced lawyer:
The advance of universal justice
MANUEL OLLÉ SESÉ 23/05/2009
Newspaper: El Pais
The road map for limiting the practice of universal justice in Spain is a sad reality. The Spanish Congress has just approved a proposal to reduce universal justice to cases where the people presumed responsible are on Spanish soil or there are Spanish victims, and either way, only when an international court or the country where the crime was committed are not “effectively persecuting” these crimes. This is the formal culmination of the recent criticisms made against the Audiencia Nacional: why is it judging torture in Guantánamo, the CIA flights, the Gaza massacre, the repression in Tibet or of members of Falun Gong, the genocide of the Guatemalan or Sahara peoples, the assassination of the journalist, Couso, or the Jesuits in El Salvador, or the crimes in Mauthausen?
The arguments put forward in an attempt to prevent this principle of international criminal justice from being applied vary enormously and some lack any serious foundation: legal, economic or political technicalities, the Spanish courts’ inability to assume such a burden of work without detriment to national justice, and even accusations that some judges are egocentric and attention seeking.
The paradox is amazing. The principle of universal justice was applied in Spain with no controversy whatsoever until the Pinochet and Argentina cases were lodged in 1996. Everyone applauded the judges of the Audiencia Nacional for persecuting drug-running ships in international waters, even when Spain was not the destination of the cargo nor had any connection with the events, the ship or the crew. However, this applause for the judges and the public prosecution for persecuting drug-dealing turned quite unfairly into criticism when the crimes were against humanity and the core of all human rights.
The reason for this is none other than the undoubted political component of the circumstances in which these heinous crimes are committed, the majority of which are from de iure or de facto power structures. And it is precisely in the countries where these acts were committed that all manner of strategies are implemented to guarantee the unacceptable impunity of their authors and accomplices. At a national level these countries pass laws of self impunity, while at an international level they implement unacceptable political and diplomatic strategies that are ultimately successful, especially when involving powerful states, at the cost of human rights.
Good examples of this are the current Israeli and American pressure on the Spanish Government to find a way to put an end to the cases affecting them, and the unacceptable attacks on the judges Garzón, Pedraz and Andreu.
The self-interested devaluation of this international principle corresponds to a mistaken approach from internal law, when analysis should be based on international law and specifically on the commitment acquired by Spain in various conventions (such as the Conventions on Genocide and Torture or the Geneva Conventions). On one hand, these have formed for a long time the basis for this universal principle regarding the nature of the crimes, their extreme severity, and, as a result, the international commitment to persecute them. Every time an international crime of the first magnitude is committed, the victim is harmed, but so, too, is the international community. And on the other hand, for this concept of jurisdiction to apply it is not necessary, according to International Law – as our Constitutional Court reminded us (STC 237/05) – for there to be any connection such as the accused being on Spanish soil or the victims being Spanish.
In the Eichmann case, Israel’s Supreme Court, which today disparages universal justice, based itself on the principle of universal jurisdiction when it declared that “the State of Israel’s right to punish the accused derives from a universal source – patrimony of all humanity – that grants any state within the family of nations the right to try and punish crimes of this nature, as they affect the international community, and any state that acts judicially does so on behalf of the international community”.
The consensus for trying these crimes, established after the horrors of the Second World War in the Núremberg Law though frozen during the Cold War, was recuperated with the creation of the special International Criminal Courts (former Yugoslavia or Rwanda), the mixed courts (such as Sierra Leone or Lebanon) and particularly the International Criminal Court (ICC). The latter has become the truly universal body for trying crimes of genocide, crimes against humanity, war crimes and crimes of aggression.
These supranational courts, however, do not meet all the demands for justice. The limitations they were born with – the nature of the acts and when and where they were committed – have given rise to insoluble obstacles for bringing to trial those responsible for such heinous crimes. The International Court, for example, can only try acts committed after 1st July 2002 and acts affecting situations in countries that have ratified its statutes.
This unsatisfactory international legal scenario has, due to imperatives of international law, transferred the duty to fight impunity and human rights violations to the national courts. This has been demonstrated by the legal bodies of France, Belgium, Germany, Canada, Senegal or Spain, among others.
The development and application of the principle of universal jurisdiction by the Spanish courts has been, perhaps, this country’s greatest contribution to the international community in the defense of human rights.
If there is consent on the part of states to judge the worst criminals, why don’t they fulfill their duty to judge the international crimes (ius cogens) committed by their citizens? The answer, if they do not want to accept trials in third countries or supranational courts, is simple: they should not only initiate legal proceedings but also demonstrate – not merely pretend or go through the movements of an open case – that an authentic and effective legal investigation is being carried out by the courts. Otherwise, either the international courts or the national courts of third countries will intervene and apply the principle of universal justice.
However, these premises of international law are sidestepped by states that wish to perpetuate unacceptable impunity. They do not try [these cases], or do not do so according to due procedural standards, they oppose the “meddling” of universal justice, and they neither sign the Statutes of the International Criminal Court nor accept its competence.
This deficit cannot be borne by the victims. These are entitled to justice, and the international community is obliged to provide it. Given the absence of a truly effective international criminal court, the principle of universal justice exercised in any country, not only Spain, is today the obligatory instrument for persecuting the most serious international crimes that destroy human dignity.