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The 'Great Leap Forward' to impunity
Burying universal jurisdiction in Spain and returning to the paradigm of human rights as ‘domaine réservê’ of States
José Elías Esteve Moltó
Abstract Since the Pinochet case the Spanish courts have had a leading role in prosecuting international crimes. The absolute scope of universal jurisdiction culminated with the international arrest warrants issued against various authorities of the Chinese Communist Party for the alleged commission of genocide against theTibetan people. Soon after, the Spanish Government under pressure from the Chinese Government proceeded to a new revision of the Organic Law ofJudiciary Power, proposing radical amendments and further restrictions to universal jurisdiction. Some of the new re-quirementsoftheOrganicLaw1/2014couldbecontrarytotheSpanish Constitution and a myriad of international conventions ratified by Spain (especially the 1949 Geneva Conventions), all of which has been denounced to the Constitutional Court; the final verdict is still pending. Meanwhile different judges have interpreted and applied the new bill with contradictory results. Nonetheless the prevailing criteria of the Supreme Court which in sentence 296/2015 of 6 May 2015 interpreted universal jurisdiction in a restrictive manner have provoked a domino effect in Spain in the definitive shelving of almost all sensitive international cases.
José Elías Esteve Moltó is senior lecturer in Public International Law and International Relations at the University of Valencia; also investigative lawyer in claims related to Tibet and Burma at the Audiencia Nacional, Spain.
This article was first published in the Journal of International Criminal Justice, 2015.