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International Justice Faces Crucial Test

The Spanish trial of an Argentine accused of 'dirty war' crimes may affect whether 'universal jurisdiction' should apply in such cases.

January 11, 2004|Tracy Wilkinson | Times Staff Writer

MADRID — The witnesses travel thousands of miles to tell of crimes that occurred a generation ago.

Susana Leirache recounts how her torturers beat her and jolted her body with electric shocks. Marcelo Hernandez recalls being kidnapped, a hood thrust over his head, his ankles chained. And Carlos Lordkipanidse describes the man who directed the brutal interrogations inside a clandestine prison near Buenos Aires.

These and other Argentines have paraded through a Spanish courtroom for the preliminary hearings in the trial of Ricardo Miguel Cavallo, a retired Argentine naval officer accused of killing and torturing hundreds of his country's citizens during its "dirty war" to wipe out leftist dissension in the 1970s.

Cavallo's extradition to Madrid from Mexico over the summer marked the first time one country has dispatched a suspect to trial in a second country for deeds allegedly committed in a third. Building on the unsuccessful attempt to prosecute former Chilean dictator Gen. Augusto Pinochet, the countries invoked a concept in international law known as universal jurisdiction -- that some crimes, such as torture and genocide, are so heinous that those accused of them can be tried in any court, anywhere.

Cavallo denies the charges against him. The case is being watched by human rights advocates and victims of repressive regimes who champion the cause of universal justice -- and by U.S. officials who say they oppose many aspects of international prosecutions out of fear that their military could face politically motivated accusations.

From the landmark arrest of Pinochet more than five years ago to the Cavallo case, Spain -- along with Belgium -- has pushed the envelope on the limits of universal jurisdiction. But the evolution has been fraught with obstacles; Belgium, in fact, was forced to repeal its universal jurisdiction law this year, in part because of U.S. pressure.

"Ideally, it would be best for these cases to be tried in the home country because of the potential for repairing damaged societies," said Carlos Slepoy, a Madrid-based Argentine attorney who represents many of Cavallo's alleged victims. "But justice at home is often not possible. If it were, universal jurisdiction might not be necessary."

Slepoy and other experts acknowledge the enormous difficulties in pulling off a prosecution of this logistical and juridical complexity. Three hundred witnesses have traveled to Madrid from Argentina and other countries, he said, with the costs covered by donations. The judges and prosecutors -- this is not a jury trial -- must be well-versed in a history long ago and far away.

And there is strong opposition to the process from within the Spanish judicial system.

Pedro Rubira Nieto, a senior federal prosecutor involved in the Cavallo case, said he believes Spain does not have the right or the wherewithal to try the Argentine. Only in cases in which there is a clear national interest, such as one involving Spanish victims, should the country get involved, he said.

"Spain cannot fight all the military dictatorships of the world," he said. "We do not have the power or the forces to do so."

Universal jurisdiction first developed in ancient times as a way to punish pirates whose crimes were committed at high sea, where no single state had authority. A king could invoke his right to hang a pirate from his ship's mast.

Over the centuries, elements were enshrined in international treaties, including the Geneva Convention, and applied to cross-border crimes such as drug-trafficking and heinous acts such as genocide. In its purest, rarely exercised form, the nation carrying out the prosecution has no connection to the defendant, the victim or the scene of the crime.

"Universal jurisdiction is the law's answer to the spectacle of tyrants and torturers who shield themselves with immunities at home," said Reed Brody, special counsel for New York-based Human Rights Watch. "But it takes an extraordinary amount of political will for a bystander or third country to take it upon itself to prosecute crimes to which it has no connection."

In 1998, Spain's Supreme Court ruled that the country could prosecute the crimes of genocide and torture no matter where they took place. That set the stage for Spanish Judge Baltasar Garzon to issue an arrest warrant for Pinochet, who was visiting London at the time. In the legal tug of war that followed, British authorities placed Pinochet under house arrest, stripped him of his diplomatic immunity and prepared to extradite him to Madrid. Ultimately, British doctors judged the retired general, then 82, to be mentally unfit to stand trial, and Pinochet was returned to Chile.

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