THE BLOG

National Politics Must Not Undermine International Law

03/06/2014 16:41 BST | Updated 02/08/2014 10:59 BST

When José María Galante believed he had discovered his former fascist torturer living contently near his home in Madrid and freely jogging around the local park most mornings no one might have imagined the implications for the future of the international law of universal jurisdiction, that allows serious crimes committed in one country to be tried in another.

The case Galante has brought against Antonio González Pacheco will, if it proceeds, be held in Argentina and instigated from that country despite the alleged crimes having been committed in Spain. It could not be held there because of amnesty laws passed after the death of Spain's long serving dictator Francisco Franco, who granted pardon to all but the most senior in his government. However, if this case proceeds it would demonstrate that, in the case of a modern European country, international law can override national laws aimed at drawing a line under past political crimes. The potential for more prosecutions from outside of Spain under universal jurisdiction, further undermining the amnesty, are expected if the Galante-Pacheco case succeeds. But perhaps more importantly by going ahead the case would begin to answer a crucial question in the debate about the future development of international law: can global justice be truly universal or is it just applicable to developing countries?

There is some irony here: Spanish judges and prosecutors have been some of the most vigorous users of universal jurisdiction laws in attempts to bring to book individuals for crimes committed outside of Spain. After revision six years ago universal jurisdiction law can only be used by Spanish prosecutors to bring cases that have some connection to Spain or if it can be proved they would not be tried elsewhere. It is possible the most infamous such case brought by a Spanish prosecutor - charges against former General Augusto Pinochet of Chile - may not have been feasible under today's reformed laws.

Yet just as attempts in Argentina are made under universal jurisdiction to hear a case from Spain, in Spain itself another case brought by pro-Tibetan independence activists against senior political leaders in China stands to test the law of universal jurisdiction in the opposite direction.

Just as the Galante-Pacheco case has serious ramifications for national politics, so too does the Tibet case, though for different reasons. At a time when Spain's economy is one of the most brittle in Europe and desperate for Asian investment, the international arrest warrant issued by the country's National Court for China's former President Jiang Zemin and former Prime Minister Li Peng is unfortunately timed. With future trade relations at stake, the Spanish Government will no doubt consider how far further restrictions must be placed on the current universal jurisdiction laws following their previous tightening, perhaps even their repeal, even though the diplomatic damage has already been done.

These two cases ultimately pose a challenge to the law of universal jurisdiction, and with it a challenge to the principle of international law just as its universality is also being tested in other forums such as the International Criminal Court. In the case of the ICC it is clear that former holders of the highest office in countries such as those in Europe are in practice immune from prosecution, even if international law says they are not, just as they are immune from prosecution in countries not their own under universal jurisdiction. Because of this the greatest successes of the ICC in its twelve-year existence - and the source of its greatest criticism - is that it only brings cases from regions such as Africa where international law acts as an alternative to a dysfunctional local judiciary and the absence of free and open governance.

Yet attempts to make international law truly international should not be curtailed even if today in practice it is not. International law must and always should be unpinned by the principle that its ultimate pursuit is justice for victims against those who have committed crimes against them wherever they reside in the world.

Perhaps what Spain is now finding out the hard way is that universality and international law must and should mean just that: for those who have committed the most heinous crimes, there should be no place where they can hide from justice; for those who have been accused there is the entitlement to a fair trial. Where national governments and courts cannot or will not act on behalf of victims, then others can do so for them. In principle this should be the case even when, because of a national law such as the amnesty in Spain, a developed country will not try those accused.

In practice the world is far from this, but it is becoming closer: after all, it was only twelve years ago when there were sufficient signatories to the Rome Statute (the charter that underpins the ICC) that the court was founded. The cause of international law has come a long way. That's why the alleged crimes of those surviving Francoists that might stand trial under universal jurisdiction should not be blocked. Nor should moves to mend diplomatic relations with the Chinese be a brake on international law's development. If Spain and other leading nations truly believe in the universal principle of international law, then ultimately they will need to put it into practice. That is why Spain should not allow national political considerations to undermine its progress.