The scope of universal jurisdiction will be cut for the second time
The Executive intends to reserve the right to veto international justice processes
Miguel González Madrid 15 DIC 2013
Jiang Zemin, to the left, talks to Li Peng in a file image. / Reuters
The Government prepares a reform of universal jurisdiction to defuse the open crisis with China after the National Court issued a search and arrest warrant against five members of the Beijing nomenclature last month, including the expressidente Jiang Zemin and the former minister Li Peng, accused of a crime of genocide against the Tibetan people. According to government sources, In January, the Ministry of Justice will present a reform of the Organic Law of the Judiciary that will substantially modify its article 23, which attributes to the Spanish courts jurisdiction to prosecute, inter alia, crimes of genocide and crimes against humanity, provided that “the alleged perpetrators are in Spain or there are victims of Spanish nationality or [had] any relevant connection link with Spain” and that a case has not been initiated for the same events in the affected country.
These conditions were introduced in 2009, following Israel protesting the decision of the National Court to prosecute former Defense Minister Benjamin Ben-Eliezer for a massacre of civilians in Gaza in 2002. In the opinion of the Government, That reform fell short and has not prevented new unwanted diplomatic conflicts.
Now it is about giving it a new twist and demanding, For example, that the victim was Spanish at the time he suffered the crime and did not become nationalized later, how is the case of the Tibetan Thubten Wangchen, signatory of the complaint against the Chinese leadership. Even, to avoid alleged fraud of law, could be required, like in Italy, that the victim was Spanish for at least two years before the alleged crime occurred.
This will not be the only obstacle for cases of universal justice. Taking refuge in the fact that genocide is a crime under international law and not a private affront, Justice is studying leaving the possibility of promoting these procedures exclusively in the hands of the prosecutor, at least in those cases in which there are no Spanish victims.
She further , The Government is studying introducing a political control mechanism similar to that provided for in extradition. The passive extradition law leaves in the hands of the Council of Ministers the power to hand over or not an alleged criminal whose extradition has been authorized by the courts “based on the principle of reciprocity.”, sovereignty, security, public order and other interests of Spain”. That is to say, The Government may invoke reasons of “general interest” to prevent Spanish judges from investigating crimes of genocide committed abroad.
The underlying argument is that the implementation of the International Criminal Court (CPI) makes it unnecessary for the Spanish justice system to investigate these crimes. With one caveat: not even the US, this is Russia, nor China accept the jurisdiction of the ICC.
Although the law prepared by the Government will take a few months to come into force, Its effect will be the deactivation of the process against the Chinese leadership. And this because, as legal sources recall, penal reforms favorable to the prisoner are applied retroactively.
The Government is seriously concerned about the irritation that the investigation of the National Court has caused in the authorities of Beijing. At the moment, There is no date for the trip that President Mariano Rajoy had planned to make to China last September, with the aim of relaunching economic relations, and it was suspended at the last minute.
China is, after France, the second holder of Spanish debt in foreign hands, with a 20% of the total, some 80.000 Millions of euros; a growing source of tourists (177.000 in 2012, and 55% more than in 2011) and an important business partner (21.400 millions in 2012, although with a notable deficit for Spain). Nails 600 Spanish companies are established in China and the number is increasing: Last week the purchase of the 8% from Bank of Shanghai to Santander.
The Government fears that Beijing will adopt economic retaliation against Spain if the process against its leaders continues; as happened with Norway after the Nobel Peace Prize was awarded to dissident Liu Xiaobo.
Last Thursday, A delegation from the Chinese National People's Congress met with members of the Congressional Foreign Commission. during the meeting, in camera, the Chinese showed their “preplexity”” and “misunderstanding” for the procedure opened in Spain for the Tibet genocide, a territory that Beijing considers its own. And they made it clear what they expect: a “political solution”” by the Spanish Government.
