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Eminentoes

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In 2003 Garzon indicted Osama bin-Laden and 34 other alleged terrorists. They were charged not only for being members of a terrorist organization, but also for their role in the 9/11 attacks in America. Garzon explained: "We cannot fight a crime against humanity if we do not accept the priority of universal justice. It should be possible to pursue the authors of these acts anywhere in the world." 

While most Americans would like to bring in bin Laden dead or alive, the appropriate location of any trial and punishment would be the United States, where his most grievous crimes were committed. No wonder Carlos Taibo, a political science professor at Madrid's Complutense University, observed: "The image that many jurists have of Garzon is that he is not very rigorous in the strictly legal sense."

That is the definition of understatement.

Although 18 of the 24 defendants were convicted in 2005 of having terrorist links, the 9/11 counts fared less well. Only Eddin Barak Yarkas, al-Qaeda's Spanish head, was convicted for allegedly conspiring to commit murder in the 9/11 attacks, and that conviction was later tossed out by the Spanish Supreme Court. Even the prosecutor acknowledged that while Yarkas might have been aware of the plot, "it is another thing altogether to say he planned it and assumed the conspiracy as his own."

Garzon later attempted to extradite Omar Degayhes and Jamil al-Banna from the United States on the same charges, even though they then were incarcerated in Guantanamo Bay. They were released in December 2007 to Great Britain without charges, after which Garzon sought their extradition. Under strong criticism he dropped his efforts a few months later.

In 2002 Garzon requested that the British government allow him to question Henry Kissinger, who was visiting London, about "Operation Condor," under which Latin American military dictatorships friendly to the U.S. eliminated political opponents. Garzon claimed that he wanted to interview Kissinger as a witness, not prosecute him as a defendant. The British government denied Garzon's request.

Garzon sought to prosecute Italian Prime Minister Silvio Berlusconi in 2001 for allegedly evading taxes and violating limits on share ownership in a Spanish TV station, Telecinco. Garzon sought to convince the parliamentary assembly of the Council of Europe to lift Berlusconi's immunity as member of that body. Spain's highest court later cleared Berlusconi.

In 1999 Garzon issued warrants for 98 former Argentine military officers, including a dozen leaders of the junta, for murder and kidnapping, though Buenos Aires, which had enacted an amnesty for the accused officials, insisted that only Argentine courts had jurisdiction over such cases. Also indicted was Ricardo Miguel Cavallo, a Navy officer in charge of kidnapping and torture, who on a trip to Mexico was extradited to Spain at Garzon's request.

In 1998, Garzon sought to extradite Chile's then-Senator and former dictator Augusto Pinochet on a visit to London. Garzon charged Pinochet with the death of Spanish citizens in Chile. Garzon explained: the crimes involved "have no statute of limitations, their perpetrators cannot enjoy diplomatic immunity, nor can they obtain refugee status or be granted political asylum." His request set off a lengthy legal battle that eventually reached the House of Lords. The British government released Pinochet in early 2000 on the grounds of poor health.

Also in 1998 Garzon arrested and charged Argentine Army officer Adolfo Scilingo, who had traveled to Spain voluntarily to testify, in the murder of political opponents of the ruling junta two decades before. Eight years later Scilingo was put on trial and convicted.

Although Judge Garzon is the most famous Spanish practitioner of extraterritoriality, he is not alone. In January 2009 Judge Eloy Velasco asserted jurisdiction over human rights abuses committed during the El Salvadoran civil war 20 years ago. Velasco opened an investigation into 14 ex-military personnel in the killing of several Jesuit priests and others. 

While greatly expanding the reach of the law in his hands, Garzon criticized other countries for taking liberties with the law. In 2006 he urged the U.S. to close its prison at Guantanamo Bay: "A model like Guantanamo is an insult to countries that respect laws. It delegitimizes us. It is a place that needs to disappear immediately."

Garzon naturally has won accolades from the human rights community, and many of the individuals he targeted richly deserve punishment. However, a promise not to prosecute may be the best, and sometimes only, means of peacefully ousting authoritarian regimes and maintaining social peace. That surely was the case in Garzon's own Spain, with the passing of the Franco era.

Moreover, rules of justice are formulated to limit state abuse and protect the innocent. As long has been said, men of zeal can be the most threatening to people's liberties. 

It is worth remembering the famous scene in A Man for All Seasons in which Thomas More rejects the willingness of his interlocutor, Thomas Roper, to cut down every law to get the Devil: "And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!"

Advocates of universal jurisdiction risk making the same mistake as Thomas Roper. Enthusiasts for arresting George Bush and others are many. But what is to stop the indictment of Barack Obama for "war crimes" in Afghanistan? And of Bill Clinton for committing military aggression against Serbia? Once loosed, the principle of universal jurisdiction is unlikely to be bound by any limits.

topics:
International Justice