VISITING THE SPANISH HIGH COURT in Madrid, it is hard to escape the feeling that one has accidentally wandered into a neighborhood police station, instead of a national judicial body that makes headlines all over the world. From the outside, the High Court is an office building like any other in downtown Madrid. Inside, an atmosphere of bureaucratic drowsiness, even neglect, prevails. There are dusty pieces of junk–old printing machines and computer keyboards and lamps–piled on top of filing cabinets. The floor is littered with cardboard boxes full of documents. Handcuffed detainees wait patiently in the corridors to be ordered into offices where judges and attorneys will interrogate them, while civil servants and policemen putter about attending to administrative duties.
But this impression is misleading. No sleepy outpost, the activist High Court of Spain has arrested, indicted, or investigated, among others, former Chilean dictator General Augusto Pinochet, the members of the military junta that ruled Argentina from 1976 to 1983, ex-dictator of Guatemala Fernando Romeo, Italian premier Silvio Berlusconi, former U.S. secretary of state Henry Kissinger, and Osama bin Laden. As the court’s indisputable star, Judge Baltasar Garzón–who ordered most of the aforementioned proceedings–once told me, “We are building the Principle of Universal Justice.”
This is, to say the least, an exalted ambition. But in the final analysis, it is unclear whether the actions of the Spanish High Court are really about Universal Justice or just politics and self-promotion.
On October 19, the court took its pioneering project to a new level. That day, one of its investigative magistrates, Judge Santiago Pedraz, issued a warrant ordering the “capture and arrest” of three American soldiers–Sergeant Thomas Gibson, Captain Philip Wolford, and Lieutenant Colonel Philip De Camp–for a “crime against the international community” and a “murder” they had allegedly committed in Baghdad in April 2003, one day before the fall of Saddam Hussein, when an American tank fired on the Palestine Hotel. The Americans had not been attacked from the hotel, which was packed with journalists. Among the dead was Spanish cameraman José Couso.
The warrant was big news. In Spain, where opposition to the war in Iraq is almost universal, Pedraz’s decision was well received. The warrants, however, are weak from every point of view. The Pentagon undertook an internal investigation that concluded that there had been no misconduct by the American soldiers. Even Spanish journalists embedded with the U.S. troops–although not present in the area when the bombing took place–have insisted that, under the pressure of combat, the attack on the hotel was understandable, and in any case the soldiers could have been accused at most of negligence, not of murder.
More significant, the day after Judge Pedraz produced the warrant, Pedro Rubira, the prosecutor, accused the judge of an “act of reprisal” against the United States and of using an “irregular procedure” in an area in which he has “no jurisdiction.” The prosecutor’s doubts were based partly on the fact that the petition against the U.S. soldiers has not yet been formally accepted by the High Court.
It is astonishing that a judge would order the arrest of foreign citizens who had not been formally indicted, in a judicial investigation that had not been authorized. However, this is the way certain magistrates of the High Court work. For them, it is as if the guiding concern were the impact of their decisions on politics and public opinion. The legal basis for their actions is secondary.
Because the American action in Iraq is so unpopular, accusing three GIs of murder is unproblematic. Meanwhile, neither Garzón nor anyone else in Spain has ever investigated the murder of the journalist Julio Fuentes, brutally assassinated in Taliban-ruled Afghanistan in 2001 (one person has been sentenced to death in Kabul for that crime, but the investigation was carried out by the Afghan authorities with Italian support, since an Italian reporter, Maria Grazia Cutuli, was murdered along with Fuentes). Equally, the death of Spanish journalist Julio A. Parrado, killed in the outskirts of Baghdad by an Iraqi missile the day before Couso, has not been probed.
Attacking the “right” target is nothing new for Spanish judges. Garzón, who has been nominated for the Nobel Peace Prize and is currently on leave from the court working as a visiting scholar at New York University, has directed his actions in the international arena exclusively against violations of human rights committed by right-wing governments, such as Pinochet or the Argentinean junta. Although nobody can deny that those countries witnessed tremendous violations of human rights, it is no less true that Garzón has openly expressed points of view that undermine his credibility in his investigations.
He has not hidden that his indictment of bin Laden was partly intended to show up what he considers the Bush administration’s extra-legal strategy in relation to the prisoners at Guantanamo. By opening a new legal front against bin Laden, Garzón hoped to force the United States to deal with an eventual request for extradition from Spain should the Americans arrest bin Laden. As Garzón told me, “Avoiding an unfair trial of bin Laden is not in itself the reason for the indictment. But it is an unavoidable consequence of it.” He has very clear views on the U.S. legal strategy in the war on terror, which he considers “so abhorrent, so similar to what happens in the most recalcitrant dictatorship, that I don’t understand how there is not a generalized protest by the U.S. citizens.” These grandiloquent words in defense of prisoners do not apply, apparently, to the detainees on the other side of the fence at Guantanamo Bay. When a group of Cuban exiles presented a case against Fidel Castro in the High Court in 1998–around the time Pinochet was arrested–it was rejected on the grounds that in Cuba there is no torture, only “degrading treatment” of political prisoners.
Selective justice–romanticized by liberal billionaire George Soros as “guerrilla action”–is not unique to Spain. In Belgium, Judge Damien Vandermeersch investigated Israeli prime minister Ariel Sharon for the massacre by Christian Lebanese militias of Palestinian refugees in 1982. He also accepted a case against General Tommy Franks in the spring of 2003. Louis Michel, Belgian minister of foreign affairs, called the case against Franks “an abuse of law,” and later that year Brussels, under U.S. pressure, repealed the statute that had permitted such investigations without anyone being indicted. That lack of results in these proceedings is actually par for the course. Most of the Spanish High Court’s actions have had limited effect, although in Chile and Argentina they did open the door to prosecution of former high officials for human rights violations in their own countries. As for the October 19 indictments, it is obvious that U.S. authorities will not surrender any GI for trial.
The Spanish High Court is a constant source of ironies. For instance, in the fall of 1998, one week after Garzón had had Pinochet arrested in London, I ran into Markus Wolf, the former foreign-intelligence chief of the then-defunct East German secret police, the Stasi, at a party in Madrid. He seemed bored–as any Stalinist bureaucrat would be in a gathering of European artists–and we began to talk politics. “Of course, we lost the Cold War,” Wolf told me, “and Pinochet was with the winners.” Yet Wolf was free and Pinochet was in detention. For some reason the Chilean, but not the East German, had lost in the court of Spanish public opinion, and was therefore in serious jeopardy at the hands of Spanish justice. Now, the Pentagon has discovered that U.S. soldiers can be threatened with the same fate.
Pablo Pardo is Washington correspondent for El Mundo in Madrid.
