The Certainty of Impunity

The Guantanamo investigation, begun in 2009 and continued by Judge Ruz, concerns crimes of torture and degrading and inhumane treatment in the prison of the same name, as suffered by four citizens (including one Spaniard) after their arrest by the United States in Afghanistan, Pakistan and Gambia. Although years after their release, it was filed on July 17 by the current head of the 5th Central Instruction Court of the Spanish National Court.

Letters rogatory were sent to the U.S. and the U.K. in compliance with Spanish law. The former, with the arrogance of power, kept a guilty silence and continues to maintain a detention and torture center that, in the end, has not stopped the advance of jihadi terrorism but has helped impede the rule of law.

That’s far removed from the resolution of the Spanish Supreme Court, when it spoke of Guantanamo prison as a “legal limbo” because of the lack of human rights for detainees. Now, while questioning the legitimacy of the U.S. base in the Cuban bay, we could say we have this legal limbo in Spain, with the triumph of impunity over universal jurisdiction.

Since the law of March 2014 effectively killed universal jurisdiction, the closure of open cases in [Spain’s] National Court is a reality. Recently, the Supreme Court, following the lead of the executive branch that promoted the law, closed the case of the Tibetan genocide, setting up the penultimate assault on victims of the most heinous crimes, as it had done under the Franco regime.

In this legal battle, some justices opt for a more regressive interpretation of domestic law, turning their backs on international law when it comes to human rights. Forward is back, with the introduction of denialist revisionism, which flows into comfortable indifference and the rejection of universal values that were hard-won by humanity.

This is the context that frames the closure of the Guantanamo case. There were many reasons to keep it open: to catalog the crimes against humanity committed by U.S. officials; [to emphasize] the conflict of the new law with international law that punishes torture; the constitutionality of the pending law; the legitimate right to judicial protection in the absence of an investigation in that country; and the existence of previous decisions by the same court, and those of the National Court, supporting Spain’s competence [in jurisdiction].

Those arguments have accomplished very little: The resolution embraces the decision of the Supreme Court, annuls the pending proceedings, and waives both the prosecution of offenders and the protection of victims.

While the Supreme Court has sought to demonstrate that there is no contradiction between the reform of law and international law, such an interpretation ignores that this right is synonymous with conventions and treaties, and that there is a second source that is just as important: international custom, in which lies ius cogens, one of the greatest achievements of civilization, representing the consensus that there are certain atrocities that no state can ignore or condone.

While the appeal of unconstitutionality raised by the Spanish Socialist Worker’s Party is pending, prudence should produce rigor and caution when making decisions of such serious consequence, such as the closure of an investigation for crimes against humanity. If this is not done, laziness, arrogance or ignorance such as the U.S. has demonstrated toward our court system in this case — as well as in the case of Spanish journalist Jose Couso, shot dead by U.S. troops in Iraq in 2003 — will remain as an example of submission. Although the U.S. Senate identifies the practices in that prison as torture and degradation, the Spanish victim will not get any satisfaction following his demands for justice in his country, which pursues its nationals when they commit crimes abroad but does not, however, grant them protection when they are victims of crime.

What remains now is the wait for a decision by the National Court, which less than a year ago confirmed the jurisdiction of the Spanish courts in this case. If it changes its position, as I fear it will, the decision will mark an ominous regression of leadership in the struggle for human rights — from [upholding] the principle of universal jurisdiction in Spain and its fight against torturers, to one that facilitates impunity.