There’s no greater practitioner of extraterritorial injustice than the obsessively prolific Baltasar Garzon.
Former Israeli foreign minister Tzipi Livni canceled a trip to Great Britain after an arrest warrant was issued for her role in “Operation Cast Lead” in the Gaza Strip. The British government apologized and announced plans to change its statute invoking universal jurisdiction, but London has failed to act on similar promises made in the past.
Britain is not alone in seeking to prosecute foreigners for actions committed in foreign lands. Canada, France, Germany, and Spain also claim the authority to jail most anyone for acts committed elsewhere. The practice is a dangerous assault both on national sovereignty and, individual justice.
Historically nations only exerted jurisdiction over people and events within their own borders. No matter how offensive the acts of others elsewhere, sovereignty simultaneously dictated and limited the reach of the law.
While that meant some people escaped justice, it protected others from the politicization of the law. One could be held accountable in court only by the government to which one owed allegiance or which had jurisdiction where the alleged crimes occurred.
This traditional limitation on criminal prosecutions is under increasing attack. Transnational tribunals, such as those impaneled for the Balkans and Sierra Leone, have been created under the aegis of the United Nations. The International Criminal Court is a permanent body with jurisdiction over a number of offenses.
More disturbing is national “universal jurisdiction,” whereby individual countries assert authority to prosecute legal offenses irrespective of where they occurred. While originally focused on crimes against humanity, tax evasion, organized crime, and even environmental issues have been or could become subject to extraterritorial claims.
The Iraq war triggered multiple complaints against former president George W. Bush and leading figures in his administration. When then-Defense Secretary Donald Rumsfeld faced possible prosecution in Belgium, he threatened to move NATO’s headquarters, causing Brussels to scale back the law’s reach. But individuals and groups continue to push charges against former American officials elsewhere.
The premier symbol of this new form of “justice” is Judge Baltasar Garzon Real of Spain. A left-wing student activist in the waning days of the Franco dictatorship, he became the National Court’s youngest magistrate at age 32 in 1988. Called “super judge,” he has much greater power than in a country with common law, Anglo-Saxon legal tradition.
Explains Giles Tremlett of the Observer: a typical investigating magistrate “does not conduct trials, but prepares them. He helps coordinate the policy enquiry, jails or bails suspects and, eventually, decides whether to bring charges.”
In 2006 Garzon declared: “We are all involved in the universe of human rights and obligations and that is why we all have the duty to find the appropriate solutions, so we can see improvements.” But his efforts more often yield publicity than convictions.
“That desire to win spectacular cases — that is more powerful in him than any other motivation. He needs attention,” said Juan Alberto Belloch, a former Spanish justice minister.
No doubt, many of Garzon’s targets deserve prosecution for something by someone somewhere. But his campaigns have politicized the concept of justice and threatened the rule of law well beyond Spain’s boundaries. “Garzon is a pioneer,” opined colleague Lola Delgado. In the field of justice that should not be considered a compliment.
For instance, Garzon has declared that George Bush, former British premier Tony Blair, and Spanish prime minister Jose Maria Aznar should be prosecuted for the war in Iraq, “one of the most sordid and unjustifiable episodes in recent human history; a devastating attack on the rule of law.” In Garzon’s view, “There is enough of an argument in 650,000 deaths for this investigation to start without delay.”
In 2008 Garzon suggested that he would fight global warming by targeting major polluters. The same year he directed a conference at the University of Jaen which included a forum on climate change. His threat mimicked comments made by James Hansen of NASA, who accused major oil company executives of “a crime” in “putting out misinformation” on the topic. Hansen told Congress that “these CEOs should be tried for high crimes against humanity and nature.”
Also in 2008 Garzon issued an arrest warrant for Russian State Duma Deputy Vladislav Reznik for alleged connections to organized crime. Reznik’s residence on the island of Mallorca was raided and its contents seized. Reznik enjoyed immunity from prosecution in Russia as a member of the legislature.
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