Spain’s Not-Fully-Universal “Universal Jurisdiction” Statute Still Causing Diplomatic Headaches

Posted by Joseph Klingler – December 4, 2013 @ 02:14

A Spanish court two weeks ago issued warrants for the arrest of former Chinese President Jiang Zemin and four other ex-officials as part of an inquiry into allegations of genocide in Tibet. Although no formal charges have been filed, the court ordered the arrests—for purposes of questioning—after noting the “‘existence of signs of participation’ in abuses” by the former leaders implicated by the investigation.  The allegations at least initially included claims of “genocide, crimes against humanity, torture and terrorism,” and were brought under Spain’s so-called “universal jurisdiction” statute.

Universal jurisdiction statutes allow courts to assert jurisdiction over individuals who have committed certain serious crimes—including “genocide, crimes against humanity, torture, some war crimes, apartheid and slavery”— believed to “harm the international community as a whole.”  In its pure form, universal jurisdiction may be asserted regardless of the nationality of the suspect or victims, and regardless of where the crime was committed.  Former US Secretary of State Henry Kissinger, former Prime Minister Ariel Sharon of Israel, and former dictator Augusto Pinochet of Chile, among others, have each faced controversial scrutiny under “universal jurisdiction” statutes of one form or another.  An extensive, worldwide survey of universal jurisdiction legislation may be found here.

Despite the frequency with which the phrase “universal jurisdiction” is invoked in reference to the Spanish law, its use may not be entirely apropos.  Since its controversial amendment in 2009, the law now requires a nexus to Spain—in this case the Spanish citizenship of one of the alleged victims—and is therefore arguably no longer truly universal in character.

Whatever its jurisdictional basis, the move has already sparked significant political backlash. Chinese officials have requested “clarification” and, assuming reports of the warrants were accurate, “express[ed China’s] strong dissatisfaction and firm opposition to [the] relevant agencies in Spain.” If nothing else, China’s rhetoric makes one thing clear: to the extent the 2009 amendment to Spain’s “universal jurisdiction” statute was designed to avoid the sort of “diplomatic headache[s]” created by “high profile investigations,” it may not have gone far enough. But to those fearing that requiring a link to Spain would constrict “one of the most hospitable fora for redress,” arrest warrants in this particular case do little to assuage concerns that the amendment has already gone too far.