A Spanish court has initiated criminal proceedings against six former officials of the Bush administration.
Does Spain have the authority to prosecute Americans for crimes that didn’t take place on Spanish soil?
Yes, by using “universal jurisdiction”, they can prosecute Bush administration officials for authorizing the torture policy at Guantanamo Bay. Universal jurisdiction has been used for many years to both investigate and prosecute foreign nationals for crimes that offend the sensibilities of the global community. U.J. is a critical legal tool used to hold accountable those who commit crimes against the law of nations, including war crimes and crimes against humanity, or any crime considered a crime against all, which any state is authorized to punish, as it is too serious to tolerate jurisdictional arbitrage.
According to Amnesty International, a proponent of universal jurisdiction, certain crimes pose so serious a threat to the international community as a whole, that states have a logical and moral duty to prosecute an individual responsible for it; no place should be a safe haven for those who have committed genocide, crimes against humanity, extrajudicial executions, war crimes, torture and forced disappearances.
Universal jurisdiction complements, but doesn’t supersede, national prosecutions. So if the United States were investigating the Bush officials, other countries would not consider prosecuting under universal jurisdiction.
Evidence that Bush officials set a policy that led to the torture of prisoners at Guantanamo continues to emerge. The release of additional graphic torture memos by the U.S. Department of Justice is imminent. If the United States refuses to investigate now, we have only ourselves to blame if some other country, like Spain, decides to do it for us.
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