The controversy over the treatment of detainees at Guantanamo Bay, Cuba, has made headlines around the world. It has also spilled into a Spanish court.
A few years ago, Spain's National Court was given the power to investigate torture and other serious crimes anywhere in the world, even if no Spanish citizens were involved. The ruling has triggered a flood of international suits, including two cases regarding Guantanamo detainees.
Critics say the Spanish tribunal is out of control, while proponents say it is advancing the cause of international justice. But the Spanish parliament has asked government to limit future cases to those directly involving Spanish citizens.
Spain's National Court operates under the principle of universal jurisdiction. As a result of a 2005 ruling by the Constitutional Court, the National Court must investigate allegations of crimes like torture and terrorism in another country if no legal action is being taken there.
Now, the court's docket contains more than a dozen cases in countries including China, Morocco, Israel and the United States.
Former inmate Lahcen Ikasrien told Spanish television recently that he was tortured at the U.S. detention center at Guantanamo Bay.
A Spanish investigating magistrate, Baltasar Garzon, tried to prosecute the Moroccan-born Ikasrien and some other former Guantanamo prisoners for terrorism. But the cases fell through because the evidence was deemed to have been obtained under torture.
So in March of this year, Garzon started an investigation into allegations that former Attorney General Alberto Gonzales and five other Bush administration lawyers gave legal justification for torture at Guantanamo. Spain's attorney general tried to block his investigation, so Garzon opened a broader case against what he calls the possible perpetrators and instigators of a systematic plan of torture.
National Court Judge Javier Gomez Bermudez presides over most major terrorism cases in Spain, including the Madrid bombing trial a few years ago. He would most likely be on the bench for any case regarding Guantanamo.
In his first public comments regarding the treatment of detainees at Guantanamo, Gomez Bermudez told NPR that he has concerns about Spanish jurisdiction. He said the proposed closure of the prison at Guantanamo, current investigations in the U.S. and the recent release of documents raise doubts about whether legal action in Spain is warranted.
"It's evident that in an international community of democratic states, no state can arrogate to itself the authority to supervise what another is doing — except in the case that the other is doing absolutely nothing," he said. "If President Obama is taking a series of decisions in favor of human rights, it doesn't make apparent sense for us to come and put icing on the cake."
Other judges say the National Court is being distracted from its domestic work. And the policy of universal jurisdiction has become a headache for Spanish diplomats. Israel is furious over an investigation into its actions in the Gaza Strip. China is outraged by an investigation of three Chinese ministers over Beijing's crackdown in Tibet.
So far, only one person has been convicted in Spain in a case based on universal jurisdiction. But proponents say the mere act of investigating draws attention both to the atrocities and to the perpetrators.
Gonzalo Boye is a human rights lawyer who brought the initial case against the Bush administration officials. He thinks his actions helped move the U.S. debate over harsh interrogation techniques at Guantanamo.
"Well, I think in America this was something that was on the agenda, and people were talking about that but until they saw really that there is a problem and that they may face charges outside the U.S., then they took it seriously," he says.
Americans should embrace universal jurisdiction, he says, because America was once one of the early proponents of the idea — at the Nuremberg trials of Nazi leaders after World War II.
Copyright 2022 NPR. To see more, visit https://www.npr.org. 9(MDAzMjM2NDYzMDEyMzc1Njk5NjAxNzY3OQ001))
