By FEB. 10, 2014
On Monday, the National Court in Spain ordered international warrants for Jiang Zemin, left, China’s former president, and a former prime minister, Li Peng, relating to a case on Tibet. Andrew Wong/Reuters
MADRID — For nearly two decades, Spanish judges have been the provocateurs of international criminal law, pursuing human rights cases against Argentine military officers, Israeli defense officials or American soldiers in Iraq. Most famously, a Spanish judge opened the case that led to the arrest of the former dictator of Chile, Augusto Pinochet.
The product of crusading judges who sought to apply international human rights standards to many of the world’s most powerful figures, these cases have only rarely, if ever, resulted in prosecutions in Spain. But they have influenced cases in other countries, notably Argentina, and are an undeniable nuisance for anyone named in an international warrant. They have also complicated diplomacy in unpredictable ways.
Which brings up China. On Monday afternoon, Spain’s National Court ordered international warrants for China’s former President Jiang Zemin and former Prime Minister Li Peng as part of a case about alleged human rights abuses in Tibet. Infuriated, Chinese diplomats are pressuring the Spanish government to stop the prosecution.
On Tuesday, Spain’s Parliament is expected to debate and eventually approve a bill that would do exactly that. Legal experts say the legislation put forward by the governing Popular Party in January would force the dismissal of the China case and would sharply reduce the scope of the national law that has allowed Spanish judges to pursue human rights cases around the world.
“It could set a precedent where the whole system of international law could be affected,” said Alan Cantos, whose Spain-based Tibet Support Committee is a plaintiff in the China case. “Suddenly, China is deciding how international law should be applied.”
China is hardly the only global power that has bristled over accusations from Spanish judges. In recent years, the United States and Israel have applied diplomatic pressure to attempt to circumvent judicial investigations. But the government’s current effort to curb judges is being criticized as kowtowing to an important trade partner, as Spain is struggling to recover from a devastating economic crisis.
“I fear that is correct,” said Ramón Jáuregui, a member of Parliament with the opposition Socialist Party, who opposes changing the law.
Like the United States, Europe has long balanced accommodation and confrontation in its relationship with China, which is one of the European Union’s largest trading partners. Spain, though, has rarely opted for confrontation with China, which holds a healthy share of Spanish debt and has become a lucrative market for Spain’s food and wine industries.
“How important is China for Spain?” asked Miguel Otero, a senior analyst with Elcano Royal Institute, a research center in Madrid. “It is important, and it has the potential to be even more important. They are quite keen to enter the Chinese market.”
Under scrutiny is a doctrine of international law known as universal jurisdiction, which allows courts in any country to prosecute individuals outside their territory for crimes of “international character,” such as genocide, torture, war crimes and crimes against humanity.
Human rights groups including Amnesty International consider universal jurisdiction an “essential tool” and issued a joint statement on Monday strongly condemning the proposed changes to Spanish law. Critics of the law argue that the doctrine infringes on national sovereignty and is susceptible to abuse by overzealous judges.
Peter J. Spiro, a professor of international law at Temple University, said universal jurisdiction is an important doctrine, but one that has had a limited application because efforts to broaden its scope have evolved faster than any political consensus around it.
He said that the doctrine had “huge potential” because of the growing influence of the global human rights movement on international law, but that many political leaders remained wary. Belgium, for example, repealed its original law after cases were filed against former Prime Minister Ariel Sharon of Israel as well as against former President George W. Bush, former Vice President Dick Cheney and former Secretary of State Colin L. Powell.
“It’s not just that China is against this,” Professor Spiro said. “It is still a little out of step with prevailing international norms on issues of jurisdiction.”
No country has been more assertive in using the doctrine than Spain, where universal jurisdiction was adopted into national law in 1985. The most famous case came in 1998, when Judge Baltasar Garzón issued a warrant for General Pinochet while the Chilean strongman was visiting London. British authorities arrested General Pinochet but later refused to extradite him to Spain, eventually allowing him to return to Chile, where he ultimately faced criminal charges before his death.
The Pinochet case, if failing to result in a trial in Spain, emboldened legal and human rights activists and brought attention to universal jurisdiction’s potential, analysts say. Other countries adopted their own legal provisions, while Spanish judges took on cases from Argentina to Guatemala to El Salvador to Rwanda.
But these cases also created political frictions in Spain, especially when Spanish courts began pursuing cases against Israel, the United States and China.
American pressure became evident in the diplomatic cables released in 2010 by WikiLeaks. Citing the cables, El País, a leading Spanish newspaper, reported that American diplomats pressured the Spanish government to derail judicial investigations linked to the Iraq war, the military prison at Guantánamo Bay and secret C.I.A. flights transporting terrorism suspects.
Under that pressure, Spain’s government, then controlled by the Socialist Party, weakened the law in 2009, leading to the dismissal of several cases. Human rights advocates argue that a double standard has emerged — where it is acceptable to prosecute abuses in weak countries but not in global powers.
And they argue that the changes now proposed by the Popular Party would effectively end the use of universal jurisdiction: In cases of genocide, crimes against humanity and war crimes, Spanish judges could investigate only if the suspect is a Spanish national, a foreigner living in Spain or a foreigner in Spain whose extradition has been denied by Spanish authorities. Similar restrictions would also be applied to torture cases.
“They are trying to eliminate universal jurisdiction,” said Judge Garzón, whose aggressive use of the doctrine later led to his suspension from the Spanish bench in 2010. “That is their goal. They have never believed in it.”
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Indeed, Spain is now on the receiving end of such international litigation, as a judge in Argentina is investigating war crimes committed during the era of the Spanish dictator Franco. Popular Party leaders are chafing at that case, and some analysts say that the pressure from China has provided an excuse for the government to dilute a legal doctrine that has brought diplomatic headaches.
The Popular Party has a comfortable majority in Parliament and can pass the changes fairly easily, analysts say. José Miguel Castillo Calvín, a member of the Popular Party in Parliament, argued that Spanish law is out of step with other countries and called the proposed changes “a necessary and appropriate reform.” He also denied that the government was trying to appease China or any other country.
“This reform has not been created with any concrete case in mind,” Mr. Castillo said in a response to written questions. “Secondly, it would be advisable to remember that international jurisdiction is not unlimited.”
Patricia Rafael contributed reporting.
A version of this article appears in print on February 11, 2014, on page A7 of the New York edition with the headline: Spain Seeks to Place Curbs on Law Allowing Judges to Pursue Cases Globally. Order Reprints|Today’s Paper|Subscribe
