Spain investment immigration focuses on Spanish laws and regulations: On February 11, strongly pushed by the ruling party in Spain—the People's Party (Partido Popular)—the Spanish lower house passed a bill intended to further restrict or even abolish the effectiveness of universal jurisdiction in Spanish courts. This move undoubtedly pushes the highly controversial issue of universal jurisdiction back into the spotlight. Since the beginning of Spain's democratization process, the country's courts have had a tradition of accepting foreign human rights cases, and many of these cases have caused a stir in the international community.
Unprecedented Abandonment of Universal Jurisdiction
The key to the bill's reform lies in amending Article 23, Paragraph 4 of the Organic Law of the Judiciary (Ley Orgánica del Poder Judicial, LOPJ) regarding the universal jurisdiction of Spanish courts. This article explicitly states: "The Spanish National Court (Audiencia Nacional) has the power to exercise jurisdiction over the following crimes committed by Spanish citizens or foreigners outside of Spain: genocide, terrorism, piracy, illegal hijacking of aircraft, counterfeiting of foreign currency, crimes related to prostitution, illegal trafficking of psychotropic substances, drugs and narcotics, and other crimes that should be specified by Spain in accordance with international treaties."
In other words, regardless of whether the crime occurred within the country's territory, whether the perpetrator is a citizen of the country, or whether the interests of the country and its nationals were infringed upon, as a sovereign state, Spain has the right to exercise jurisdiction over the aforementioned international crimes using its own criminal law. It is precisely because of this nature of universal jurisdiction, which transcends the sovereignty of other countries, that Spain has repeatedly fallen into a vortex of controversy.
At the beginning of this year, the bill pushed by the People's Party was passed in the lower house with a narrow margin of 179 votes in favor, 163 against, and 0 abstentions, and it is expected to take effect within four months at the earliest. Although the specific details of the reform plan remain unclear, according to relevant reports from Spanish media, the restrictions this plan imposes on the universal jurisdiction of Spanish courts will certainly be unprecedented. Even the power to seize drugs on the high seas may be threatened, and the most serious consequence may be the loss of effectiveness of the country's universal jurisdiction. At the same time, unlike the 2009 reform where the bill did not have retroactive effect, this reform is retroactive and is likely to freeze more than a dozen cases currently under trial. It is evident that the Spanish government's reform this time is unprecedented in its intensity, which can be described as "making a firm decision to cut off its own limbs."
It is worth mentioning that, unlike the 2009 reform where all sectors and political parties in Spain were "united against a common enemy," this year's reform would have been stillborn if not for the ruling party's strenuous efforts. All 179 votes in favor came from the People's Party, while all opposition parties, including the largest opposition party—the Socialist Party—voted against it without exception. Most judges also hold an opposing stance on this.
This result indicates that the People's Party's reform this time is indeed unprecedented in intensity, touching upon the country's universal jurisdiction system itself, but it also indirectly reflects that Spain has been in constant trouble due to universal jurisdiction. In 2009, the then-ruling party—the Socialist Party—was under unprecedented pressure from the United States in the Guantanamo case and made a painful decision to reform. This time, with the People's Party in power, it is precisely because universal jurisdiction has caused so many incidents that they have learned from the pain and made a firm decision.
Repeated Changes to the Principle of Universal Jurisdiction
The key to this bill is the scope of the exercise of universal jurisdiction, and within Spain, this debate has actually existed for a long time. Article 23, Paragraph 4 of the Spanish Organic Law of the Judiciary, promulgated in 1985, is the basic provision regarding the universal jurisdiction of Spanish courts. Around this provision, "hawks" and "doves" have been constantly fighting. Consequently, the scope of the exercise of universal jurisdiction by Spanish courts has undergone a dramatic process of changing from narrow to wide, and then from prosperity to decline. The key to the game here is whether a "direct link" is a prerequisite for universal jurisdiction.
The 1998 Pinochet case was the beginning of Spanish courts moving to the center of the stage. In 1998, the United Kingdom arrested former Chilean President Pinochet for human rights violations at Spain's request. In subsequent requests, the UK extradited Pinochet to Spain for trial. Spanish prosecutors accused Pinochet of crimes where the victims included Spanish nationals, and therefore Spain had universal jurisdiction over the case.
In 1996, in an indictment, a Spanish court interpreted Article 23, Paragraph 4 of the Organic Law of the Judiciary, holding that if the corresponding case had no direct link to Spain, Spain could not exercise jurisdiction under that article. In other words, for Spanish courts to exercise universal jurisdiction under Article 23, Paragraph 4, the corresponding matter should have a certain "direct link" with Spain, such as the victim being a Spanish national, the perpetrator having Spanish nationality, or the perpetrator being in Spain. According to this interpretation, Spanish courts have no right to exercise universal jurisdiction in the "pure" sense. The Pinochet case was the opening shot of Spain's path as a "human rights defender," but the scope of universal jurisdiction exercised by the court at that time was still constrained by the "direct link."
In 2005, the ruling made by the Spanish Constitutional Court on the Guatemala case marked the peak of the exercise of Spain's universal jurisdiction. In September of that year, when interpreting Article 23, Paragraph 4 of the Organic Law of the Judiciary, the Spanish Constitutional Court emphasized for the first time that when Spanish courts exercise universal jurisdiction based on this article, a "direct link" is not required. Even if the relevant crime did not occur within Spain, the perpetrator does not have Spanish nationality, and the victim is not a Spanish national, Spain still has the right to exercise universal jurisdiction. Through this interpretation by the Constitutional Court, Spanish courts possessed universal jurisdiction in the "pure" sense. After this case, Spanish courts "marched forward triumphantly" and began to exercise universal jurisdiction without restriction.
In 2009, the triumphant path of Spanish courts encountered a "sudden brake" for the first time. The then-ruling Socialist Party prompted the parliament to pass a bill with an absolute majority of 319 votes in favor, 5 against, and 3 abstentions, returning the interpretation of Article 23, Paragraph 4 of the Organic Law of the Judiciary to the 1996 version. That is to say, it once again listed "direct link" as a constituent element, making Spain once again unable to exercise universal jurisdiction in the "pure" sense.
The Soil for Universal Jurisdiction Does Not Yet Exist
Excluding political factors and analyzing from a legal perspective, the theory of universal jurisdiction has been widely recognized by the international community due to its unique value. Strictly limited domestic criminal jurisdiction is difficult to meet the needs of today's international community to punish international crimes. Especially when the object of a type of crime is not limited to a single person or a single country, but extends to all of humanity, universal jurisdiction becomes a sovereign right of self-defense that every country should possess.
The theory of universal jurisdiction breaks through the traditional limitations on the application of territory, nationality, and interest jurisdiction, to a certain extent expanding the space for the exercise of criminal jurisdiction, alleviating the limitations of the application of domestic law in sovereign states, and providing a theoretical basis for effectively sanctioning international crimes. Therefore, since Grotius first demonstrated the value of universal jurisdiction from the perspective of natural law in the 18th century, this theory has gradually become a part of customary international law and, with the passage of time, has evolved into an international legal principle for the international community to sanction international crimes, recognized by international conventions.
Analyzing from the perspective of specific application, universal jurisdiction has two main problems. First, when considering only legal factors, universal jurisdiction is a power exercised by each sovereign state through the conclusion of conventions, and the scope of application of universal jurisdiction is limited to international crimes, so universal jurisdiction does not conflict with national sovereignty.
However, the fact that jurisdiction is based on sovereignty does not mean that every country has the sovereign power under international law to exercise jurisdiction in any situation. The exercise of universal jurisdiction may affect the interests of other countries. When one country considers it its sovereign power of jurisdiction, another country may consider it an infringement on its territorial or personal jurisdiction. The application of universal jurisdiction is inevitably subject to certain limitations.
When non-legal factors are taken into account, due to differences in world cultures and different legal models, the international community has not yet reached a consensus on the concept of international crimes. Some countries worry that other countries will wantonly expand the interpretation of international crimes and thereby expand their judicial jurisdiction to interfere with their own jurisdiction over cases or interfere with the country's internal affairs. Therefore, they have intentionally or unintentionally limited the actual application of universal jurisdiction by other countries through various means, including political, diplomatic, and economic means.
Although from the perspective of natural law, universal jurisdiction should be advocated, compared with domestic society, the anarchic state presented by the international community dominated by the law of the jungle still cannot provide the soil suitable for the robust growth of universal jurisdiction. The establishment of the "ought-to-be" state of universal jurisdiction is a gradual process. The ideal state is for a powerful "government" that overrides the sovereignty of all countries to exercise it; the International Criminal Court is a good attempt. However, this attempt is still flawed in terms of comprehensively protecting human interests.
In view of this situation, the localization of universal jurisdiction is a method that some so-called Western human rights defenders have to adopt at present. This inevitably involves a question of degree. That is to say, universal jurisdiction is a system widely recognized by the international community, but there is room for adjustment by various countries regarding the scope of its exercise. Too much or too little will cause unnecessary impact on one's own country or other countries.
Abandoning Universal Jurisdiction Is a Wise Choice
Perhaps like the knight in the Spanish literary work "Don Quixote," the Spanish people always have a Don Quixote complex to some extent. Precisely because of this reason, although they have repeatedly tried to be human rights defenders, they are far from having the ability to complete the grand vision they have depicted. On the one hand, Spain wants to manage the world's affairs with its own strength; it has the heart but lacks the power. It is only possible to be biased and difficult to be comprehensive, and both efficiency and judicial justice are difficult to guarantee. Moreover, in recent years, Spain's domestic economy has been sluggish and heavily in debt. If one is not careful, it may lead to disaster, affecting others.
On the other hand, even domestic commentary in Spain believes that Spain's past is not glorious, and the stains left by the Franco dictatorship are difficult to clear. Even if it wants to intervene in other countries' affairs as a human rights defender, it is always difficult to stand up to scrutiny itself. Therefore, in the current international social context, using universal jurisdiction to accept foreign human rights cases often has more symbolic significance than practical significance.
If the ruling party continues to insist on absolute universal jurisdiction regardless of the reality, it is no less than the famous Don Quixote fighting windmills. The whimsical knight rushes up, only to end up bruised and battered, gaining nothing but cheers. Everyone claims to be a defender, but no one wants to be a martyr, especially when they want to rule a country. This is also the fundamental reason why the ruling People's Party has overcome all opposition and insisted on promoting this reform bill.
