Universal jurisdiction, Australia & offshore detention | case studies: Baltasar Garzon

El jurista Baltasar Garzón

Universal jurisdiction is a legal concept that has seen many politicians around the world arrested, charged, prosecuted and imprisoned for a range of crimes, including crimes against humanity, via – but not exclusively – the ICC (International Criminal Court). One jurist regarded as a seasoned practitioner of Universal jurisdiction is Judge Baltasar Garzon, whose arrests have taken place in many countries and demonstrate that national boundaries are meaningless when it comes to justice. Given the current submissions to the International Criminal Court against the Australian Government for Crimes Against Humanity, it is perhaps timely to reprise some of Garzon’s cases – see Section 2 below. We also provide an account – see Appendix – on what really happened on the day when General Pinochet was issued with an arrest warrant. We begin by summarising how Universal jurisdiction might apply to Australia’s policies and practice of detaining asylum-seekers, including children, on offshore facilities.

1. Universal jurisdiction, the ICC and Australia

First, to recap… A submission to the ICC for a case against Australia was first provided by migration agent Tracie Aylmer; a further submission was made by Andrew Wilkie MP and barrister Greg Barns; and more recently further inquiries were made by Julian Burnside QC.

The concept of Universal jurisdiction allows states or international organizations to claim criminal jurisdiction over an accused person, regardless of where the alleged crime was committed and regardless of the accused’s nationality, country of residence, or any other relation with the prosecuting entity. The Rome Statute of the International Criminal Court provides in its preamble that the jurisdiction of the court is complementary to national criminal jurisdictions. Thus, the International Criminal Court will have jurisdiction if States prove unable to try, on their own, authors of international crimes or if they refuse to do so.

However, the ICC may only exercise jurisdiction if:

  • The accused is a national of a State Party or a State otherwise accepting the jurisdiction of the Court;
  • The crime took place on the territory of a State Party or a State otherwise accepting the jurisdiction of the Court; or
  • The United Nations Security Council has referred the situation to the Prosecutor, irrespective of the nationality of the accused or the location of the crime.

Furthermore… “a case may be admissible if the investigating or prosecuting State is unwilling or unable to genuinely to carry out the investigation or prosecution.”

The case submitted to the ICC against the Australian Government ticks all the above boxes:

  1. The accused are nationals of a State Party (signatory) to the ICC.
  2. Many of the alleged crimes took place on the territory of a State Party: Nauru is a signatory to the ICC.
  3. Further, should a case against the Australian Government be denied in the Australian courts, the ICC can intervene under its rules.

There is nothing, of course, to prevent more submissions being made to the ICC, as also supportive evidence. Should the case proceed further and warrants are issued, arrests can be made either within Australia or in another country by any lawyer or, indeed, any citizen (‘citizen’s arrest’).

However, should the submissions fail and prosecutions not proceed, then there are other legal measures that can be pursued. For example, in proving that the Australian Immigration Department refused to allow victims of sexual abuse, physical assaults or harassment to be moved from the Nauru detention centre and that the Department turned a blind eye to abuse, that would be grounds for a legal action called misfeasance in public office.

For a comprehensive listing of legal actions that can be taken against the Australian Government in relation to its offshore asylum-seeker detention policies/practices, see sections D, E and F in As evidence of abuse mounts, prosecution of Abbott Govt in ICC looking more likely’

Inside Nauru detention centre

2. Universal jurisdiction: case examples (via Baltasar Garzon)

Note: Judge Baltasar Garzón Real was born 26 October 1955 and is a Spanish jurist. Garzón formerly served on Spain’s central criminal court, the Audiencia Nacional, and was the examining magistrate of the Juzgado Central de Instrucción No. 5, which investigates the most important criminal cases in Spain, including terrorism, organised crime, and money laundering. Garzón came to international attention on 10 October 1998 when he issued an international warrant for the arrest of former Chilean President Augusto Pinochet for the alleged deaths and torture of Spanish citizens. Garzon currently heads Julian Assange’s legal team.

Here are examples of arrests conducted by Snr. Garzon.

A. Chile (and arrest of General Pinochet)

Baltasar Garzón investigated a number of major criminal acts – genocide, crimes against humanity and terrorism – that took place during the military dictatorship in Chile (1973-1988) – all with Spanish victims. The principle of Universal Criminal Justice was applied. On October 16, 1998, Garzon ordered the arrest of Augusto Pinochet, the former head of state and requested his extradition. The British authorities granted this request the same day it was issued. However, as a result of a political decision the former president was returned to Chile where he continued to be tried.

Garzon also addressed several investigations into money laundering and concealment of assets against Pinochet and others, related to funds found in the Ribb U.S. bank. He suceeded in obtaining substantial compensation for victims.

On October 16, 1998, the house arrest of General Augusto Pinochet, at the request of Judge Baltasar Garzón, relied on the principle of Universal Jurisdiction and marked a milestone in the treatment of criminal perpetrators of genocide and crimes against humanity.

The case against the Chilean dictator, accused of human rights violations in Chile – the charges included 94 allegations of torture of Spanish citizens, the murder in 1975 of the Spanish diplomat Carmelo Soria and conspiracy to commit torture – lasted 16 months, until the House of Lords ruled that Pinochet was not entitled to immunity and could be tried.

Mary Robinson, the United Nations High Commissioner for Human Rights, praised the decision of the House, stating that it was clear that torture is an international crime subject to universal jurisdiction. Amnesty International and the Medical Foundation for the Care of Victims of Torture called for the extradition of the General to Spain. For its part, Chile withdrew its ambassador in Madrid for a time to protest the actions of Spain.

The house arrest of Pinochet in London, where he had gone for medical treatment, lasted 503 days. His defence argued he should not be extradited due to his failing health. After medical tests the British Home Secretary, Jack Straw, decided that Pinochet should not be extradited to Spain.[Note: it is understood that Margaret Thatcher, who regarded Pinochet as a friend, put pressure on Straw to come to this decision.]

Despite protests from organisations defending human rights, in March 2000 Pinochet was able to return to Chile. The image of a helpless old man in a wheelchair leaving British territory contrasted sharply with his upright figure after landing at the airport in Santiago, Chile on March 3, 2000.

Pinochet finally died on December 10, 2006, without being convicted of any crime, even though more than 300 criminal charges had been brought against him in Chile.

B. Argentina

Garzón led an investigation into the crimes committed during the military dictatorship in Argentina, where there were Spanish victims (March 1976, December 1983). Of particular note was the indictment against 99 people, including top military officials as suspects of criminal events in Argentina between March 24, 1976 and December 1983; 48 international warrants for arrest; and the request to Argentina for extradition.

The prosecution of one of the repressors, sentenced for crimes against humanity in Madrid, represented a historic landmark as important as the arrest of Augusto Pinochet and obtaining the extradition from Mexico of other repressors, thus reassuring the effectiveness of the principle of universal jurisdiction. Since 2003, with the collaboration of President Nestor Kischner, cases in Argentina resumed against those responsible for these crimes, with various sentences given and trials and investigations continuing. From that moment, the central court No. 5 of the High Court of Spain provided all the cooperation requested for the development of the trials and for the protection of victims.

C. Adolfo Scilingo and the death flights

On November 2, 1999, Baltasar Garzón indicted Adolfo Scilingo, along with 97 other Argentines, which included several members of the military junta, all accused of crimes of genocide, terrorism and torture between 1976 and 1983.

It had been two years since the Argentine naval officer voluntarily travelled from Buenos Aires to Madrid to confess before the Spanish judge of his involvement in the so called “death flights.” During these military flights, tens of Argentine military regime opponents were released into the sea at night, alive or unconscious, from helicopters or airplanes in flight over the Atlantic Ocean.

In April 2005, Scilingo was tried for crimes against humanity, committed between 1976 and 1977 and, having proved his responsibility in the death of thirty people and illegal detention followed by torture, was sentenced to 640 years in prison. In July 2007, after checking complicity in 255 other illegal detentions, the Spanish Supreme Court increased the sentence to 1,084 years.

D. Western Sahara

Investigation on terrorism, genocide and torture, under the Universal Principle of Justice, committed in the Western Sahara and in which different political and military leaders of Morocco were charged.

E. Uruguay

In 2000, the Argentine poet Juan Gelman provided a complete list of Uruguayan repressors to Baltasar Garzón. On Wednesday, November 8, 2000, Gelman and his partner, Mara La Madrid, testified before Garzón and gave the judge the names of 43 Uruguayan military personnel and police who had key positions in the structure of repression during the years 1975 and 1976, requesting they be tried. This amounted to 35 army officers, 2 Navy officers and 6 police.

The Argentine gave the history of the persecution suffered by his family before Garzón, who was investigating the disappearance, torture and killings of some 600 Spanish citizens during the Argentine military regime between 1976 and 1983. Gelman had taken 13 years to find the remains of his son who was killed and thrown into a cement drum after being kidnapped by the Argentine military in 1976.

He also reconstructed the tragedy of his daughter-in-law, who had been taken to a secret prison in Montevideo and then to a military hospital to give birth. His son’s wife was killed in late December 1976, when she was only 19 years old, and her body girl “deposited” at the gates of the house of a policeman and his wife.

F. Former Yugoslavia

Garzón has also help in extradition proceedings as well as arranging European Arrest Orders for the International Criminal Court and the International Criminal Tribunal for the former Yugoslavia – procedures in which the High Court has exclusive jurisdiction.

G. International legal co-operation

Over 22 years in the post of Judge of the Central Court of Instruction No. 5 of the High Court, Garzón gained extensive experience in international legal cooperation with numerous countries, including Latin America: Argentina, Colombia, Mexico, Venezuela, Brazil, Paraguay, Uruguay, Bolivia, Panama, Guatemala, The Bahamas, Chile, Ecuador, Costa Rica, Peru, The Dominican Republic and Puerto Rico.

In Europe, countries included: France, Britain, Holland, Belgium, Switzerland, Italy, Portugal, Turkey, Albania, Austria, Hungary, Poland, Andorra, Cyprus, Germany, Denmark, Sweden, Finland, Ireland, Monaco, Norway, Liechtenstein, Jersey, Russia, and Greece.

In Africa, countries included: Morocco, Algeria, Egypt, South Africa, Cape Verde and Mozambique.

In Oceania, countries included: Australia; in Asia: Israel, Jordan, Syria, Lebanon, Yemen, Saudi Arabia, Iraq, Afghanistan, India, China, Laos and Indonesia.

In North America, countries included: Canada and USA.

With international organizations, these included: the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Court (ICC) and the Justice Committee of the U.S. Senate in the Pinochet case, among many others.

Appendix: an account by Snr. Garzon on the issuing of an arrest warrant against Augusto Pinochet

(Note: this is a literal transcript of an account that first appeared as a video in Democracy Now.)

I think that in this story you need to begin to acknowledge who were the true architects of the process. And without a doubt, for me, the great architect of the Pinochet case was not Judge Garzón or not any other judge, initially, but it was Juan Garcés. Juan Garcés was with Salvador Allende on that last day, on September 11, 1973. He left the presidential palace with a request, and I think that he was able to carry it out. For many years, 40 years total, and also in dedicating his life to the law—I know he doesn’t like to hear this, but that’s his problem. I think that in taking a very important initiative, that he alongside others, they converged during a very historic moment in a concrete country—not as important, perhaps—being Spain, but at that time the country was able to apply this principle of universal jurisdiction—for the first time, perhaps in a stronger way, in the Argentina case.

The Argentina and the Chile case were very parallel, very similar. Argentina was a little bit ahead, and, in a way, they were walking in lockstep. The initial proceedings to accept this process were first established in the Argentina case. And the arrest of Pinochet, it occurred within the context of the Argentina case, during what is known as the Condor Operation. That explains for the existence of two judges working at the same time. In my case, I was investigating the different kinds of torture, repression, disappearances, homicides, that were being carried out during the Argentinian dictatorship. After the complaint that was presented by the Progressive Union of Prosecutors in Spain—and they were also involved in presenting the case of Pinochet, alongside Juan—and with that dynamic, we arrived at the month of October 1998.

I must warn you that, by that point, the tribunal of the national audience—or, the Spanish National Court, at the moment, which is the tribunal under which we operate, had not ruled positively regarding the jurisdiction of our court over this case. What’s more, the prosecutor was in court actively opposing this measure, decidedly against it, combatively against it. We were almost about to throw punches at each other. I must tell you that in those two proceedings, beginning in October of 1998, I’ve resolved more motions by that prosecutor than I have in 32 years of practice.

To make a long story short, a week before the 16th, October 16th, Juan Garcés came and saw me. He was not defending the Argentina case. And he asked me—he informed me that Pinochet was in fact in London. I told him, “OK, very good. What do you want?” “Well, I want you to know that he’s in London. What can we do?” And I was told that I was chamber six out of a number of different chambers, and not judge number five, the one that has to make the decision. So, he told me, “Yes, that’s true. But we could perhaps—let’s see how we can proceed with this.” So I told him—he won’t tell you this, but I’m going to tell you—I told him, “You could perhaps tell my colleague that I will also—I’m going to take the affidavit or the deposition by Pinochet, and I’m sure when you tell him that, he will be for it.” So something like that occurred because my colleague took the initiative in order to present this request with the purpose to take a declaration from Pinochet in London. This agreement that Juan and I arrived at is that whatever action I took in this case would not be known, so that every pressure from the media was on chamber six. This was perhaps a small story on myself, but it wasn’t big. It never went anywhere. So, my colleague was very burdened down, because the media were on him, asking him, “Have you ruled on that request? Have you gone and taken a declaration from Pinochet?” and all this. And he said, “Yes, I’m going to rule. Yes, I have ruled.” I must tell you that that request was never honored, or physically it never was issued, because the events after that didn’t allow it.

Meanwhile, what I did was I did ask the British authorities whether Pinochet was in fact in London. It was evident that he was there, but we had to go through the formal request process. The answer that the British police gave me was something along the lines of “What do you care about this?” or almost something like that. I was a little surprised. But then I got a phone call from the British embassy in Spain.

I don’t know how my time is going, but it’s worth noting a small story within a story. A year before, there was a big controversy that I had had with the counsel or the ministerial counsel to the embassy, because I was complaining that Gilbraltar was not cooperating with Spain in a case related to money laundering. And he said, “You’re being unjust with me. You have not made a request. If you make a request, we’re going to try and work with you.” And he said, “If you have any doubts, we can talk.” And then I said, “OK, let’s talk.” And at last we formed a very important relationship.

When he calls me that afternoon, he tells me, “They have answered you inadequately from London. That shall not happen again, because that would break up the important relationship that Great Britain has with your court. OK, well, so then you can make your request again.” I can’t tell this whole story in two minutes, but… I said, “OK, fine. I’m going to receive another request.” “I shall answer that request.” They tell me, “Yes, Pinochet is in London.” They ask me, “What do you want with him? What are you accusing him of?” And that’s where I have to go to Juan, because the main process was going on in the other courtroom. I had an open case, which was the Condor Operation, so I told Juan, “Here we can proceed with this case.” And, in fact, that’s what I did. And at that point, different informations and different kind of files were being exchanged.

On October 16 of 1998, they had said that Pinochet had wanted to leave. I had asked for the possibility to send an interrogatory with the questions for Pinochet, in order to get the testimony from Pinochet. I had asked Juan to prepare the questions. And that’s how everything finished that day, by 1:00 p.m. on a Friday. And we said, “OK, let’s go home,” at that point. And around 2:00, I received a message from the British police telling me, “Pinochet leaves tomorrow. We won’t be able to take this testimony from him. You have to make the decision you need to make, because he’s going to leave.” That’s when there was no one left in the court. There was only one person there. I made the decision, first, to hold back this office worker to not—for that person not to leave, because he was about to leave. And when I gave her the request by hand, this person came back to my office, and the person said, “Are you sure about this?” And I told you, “Just write and be quiet.” And that’s how the arrest warrant was issued. I asked the Spanish police to also be quiet, because the judge may do so if he decides. The request was placed, filed. The ministerial counsel informed me of how the situation was going. And I went back to my native home, Andalusia.

I must say it was a popular, popular holiday in my home town. All the way home, I was getting differing messages from London. I must acknowledge that I wasn’t too sure that this arrest warrant would actually take effect. I went to watch some bullfighting with my favorite bullfighter. Julio Ramiro is his name. It was a disaster. And when I was back at the hotel—right before that, actually, while I was still in the bullfighting, I received a call from the ministerial counsel, and he said, “The police is going to the home of the judge with the arrest warrant.” “What do you mean they’re going with the arrest warrant?” “Didn’t you issue it?” they asked. “Yes, I did.” It was about 8:00 p.m. at that time. I began to finally understand that this was indeed working. And around 10:00 p.m. I got a call again from him, and he said, “Pinochet has been arrested.”

I’m finishing up now. I remember I was in my hotel room. I was talking on the cellphone. My wife tells me, “What’s going on?” “I’ll tell you later.” And really, that’s how it happened.

A short anecdote, right before I finish. Sometime after, I was with Luis Moreno Ocampo and with the Chilean consul at Harvard. We were at the university. And when the moment came to speak about the Pinochet case, I was still working on the case. Luis Moreno Ocampo said, “Judge Garzón cannot speak on the subject. I’m going to explain all about it.” And I told him, “Thank you.” We were in a big hall with all the students there, and he begins to explain how the arrest of Pinochet had occurred. He said, “Judge Garzón, with his team, 15 people, they all together issued…” And I was looking at him. And under the table, he was tapping me on the knee. Everybody started clapping. And he asked him, “Why did you do this? Why did you explain it like that?” “If I tell everyone that you and one office worker did all of this on your own, they would never believe it.”

But the truth is, the day after, I called Juan Garcés. I told him, “Juan, Pinochet knows he’s arrested. We need to reaffirm and complete the arrest order,” because since all of us did not have the complete history of it, we only put one case there, and then we added 104 more cases. So we had to finish up the case. And thanks to Juan, we consolidated in 24 hours, with 18 translators, without sleeping, there in the court, eating sandwiches there, finished up the order. The order was issued. Thanks to that order, Pinochet remained arrested, because the first one, the English judge made a mistake, and he put there in the writing that it was homicide instead of disappearance. The Hague court, they annulled the order, and they continued on the second arrest warrant that we issued.

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