Legal News

L?Affaire Garzon: A ?Travesty? or the ?End of a Failed Experiment??

By Ashby Jones

What to make of this situation involving Spanish judge Baltasar Garzon?

Garzon was recently charged in Spain for allegedly ignoring a 1977 law that granted amnesty over the disappearance of over 100,000 people during the Spanish Civil War and the regime, headed by Francisco Franco, that followed. Garzon, an “investigative magistrate,” had opened an investigation into crimes that took place during that era in Spanish history. If convicted, he likely won’t go to jail, but will be stripped of his powers for a while.

Writing in Wednesday’s WSJ, University of Chicago law professor Eric Posner makes clear he’s not shedding any tears over the Garzon prosecution, calling his arrest “the end of a failed experiment in international justice.”

The “experiment,” in Posner’s mind, concerned the notion of “universal jurisdiction,” which Posner says means “that a domestic court can try anyone, including foreigners, who commit serious international crimes such as torture and genocide anywhere in the world.”

Garzon had been a big believer in this notion, and had pushed to extradite former Chilean dictator Augusto Pinochet to Spain to have him stand trial for alleged war crimes (it didn’t happen). Investigations have been launched against Chinese, American and Israeli leaders. Posner writes that more than 125 countries have “universal jurisdiction.”

Posner is hopeful that the prosecution of Garzon will have a chilling effect on the other nations that subscribe to the “universal jurisdiction” notion. He writes:

Universal jurisdiction arose centuries ago to give states a means for fighting pirates. In recent years, idealistic lawyers have tried to convert it into an all-purpose instrument for promoting international justice. But supporters of this law turned a blind eye to the diverse and often incompatible notions of justice that exist across countries. Everyone can agree to condemn arbitrary detention, for example, but in practice people disagree about what the term means. Whether an amnesty should be issued so that a transition can be made to democracy (as in Chile or as in Spain), or exceptions to some rules should be made for the sake of national security are not questions for a foreign judge.

An NYT opinion piece from last week sees things differently. The Times writes that:

If convicted, [Garzon] could be barred from the bench for up to 20 years, effectively ending a career dedicated to holding terrorists and dictators accountable for their crimes. That would please his political enemies, but it would be a travesty of justice.

The Times piece focuses on this point: that without folks like Garzon, crimes against humanity will likely go unpunished and unresolved.

High-profile cases, like his bid to try the former Chilean dictator Augusto Pinochet, appeal to him, and sometimes he overreaches. But his consistent goal has been to deny impunity to the powerful and expand the scope of international human rights law.

Mr. Garzón should be allowed to resume that work at the earliest possible date. Spain needs an honest accounting of its troubled past, not prosecution of those who have the courage to demand it.

Full post as published by Law Blog - WSJ.com on April 14, 2010 (boomark / email).