International Justice Faces Crucial Test

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.

Carlos Castresana, a Spanish federal prosecutor who championed the Pinochet prosecution, said the case got as far as it did because the “planets aligned.” The British government, which had agreed to extradite Pinochet, was sympathetic to the international prosecution of human rights crimes. The right-wing Spanish government did not have a majority and had to heed domestic public opinion, which felt great empathy for Chilean victims.

“The Pinochet case wouldn’t happen today,” Castresana said. “The conditions don’t exist.”

Even though Pinochet was not put on trial, an important precedent had been set, the prosecutor said, by prying open another fissure in the wall of impunity.

Slepoy agreed.

“It is usually said that the Pinochet case didn’t pan out,” said Slepoy, who was expelled from Argentina in 1977 by the same military dictators he wants to see taken to court. “But we see it differently. Every day he was in detention was a huge success. It showed that no one, however high, could remain immune forever.”

That said, the failed attempts to bring politicians to justice outnumber the success stories.

“After Pinochet, we said, ‘Let 100 Pinochets bloom,’ ” Brody of Human Rights Watch said. Instead, human rights attorneys have been repeatedly frustrated in their attempts to pursue similar cases.

And Belgium’s groundbreaking law allowing prosecutions under the aegis of universal jurisdiction has been thrown off the books because of intense U.S. pressure and flaws in the legislation, which even supporters said may have reached too far.

Instituted in 1993 and revised in 1999, it initially was used to file charges in Brussels against alleged Rwandan war criminals. Neither victims nor culprits had any connection to Belgium, whose colonial rule of Rwanda ended more than 40 years ago. Eventually, however, the law was used to open suits against a range of heads of government, from Israeli Prime Minister Ariel Sharon and Palestinian Authority President Yasser Arafat to former Iraqi President Saddam Hussein and President Bush.

The pursuit of justice began to crumble under the weight of so many cases that clearly could not prosper. On top of that, the Bush administration threatened to punish Belgium if it did not revoke the law, hinting that Washington would have NATO headquarters removed from Brussels.

“We encountered many problems with foreign states and even friendly states,” said Eric David, a professor of international law at Brussels’ Universite Libre. “Belgium was puzzled and embarrassed. And the United States exerted very strong pressure.”

Belgium first watered down the law and then repealed it.

And so the next test is the Cavallo case.

Garzon, the judge who had Pinochet arrested, also set in motion Cavallo’s extradition and trial. Known as a crusader and, his critics say, a showboat, Garzon has launched a number of high-profile indictments, with varying success.

He charged Cavallo with genocide and terrorism and has spent the last several months taking testimony from witnesses and alleged victims, several of whom identified Cavallo as their torturer or as the man they saw directing the torture or kidnapping of others.

Cavallo has acknowledged being a member of the Argentine military regime that seized power in 1976 but denies torturing and killing dissidents. He worked at the Navy Mechanical School in Buenos Aires, a compound that became the center of atrocities committed against hundreds of people who eventually were “disappeared.”

Cavallo can’t be tried in Argentina because of amnesty laws that benefited most of the human rights abuse suspects. President Nestor Kirchner is trying to have the laws rolled back.

With the first phase of the Spanish hearing concluded, the court will decide whether to proceed with judgment of Cavallo or to dismiss the case.

Activists, attorneys and victims are watching nervously, concerned that the tide has turned against such ambitious prosecutions involving universal jurisdiction. Global politics, growing U.S. opposition and the complexity of the cases all work against launching new ones.

Matilde Artes, an Argentine who has lived in Madrid for 15 years and whose daughter and granddaughter were kidnapped during the dirty war, said she had high hopes for long-sought justice when Cavallo was extradited. She has housed many of the Argentine witnesses who traveled to Spain to testify. But she fears that the enormous political will behind the prosecution is fading.

“This was supposed to be the trial of the century,” said Artes, 71, who found her granddaughter after a decade of searching but never saw her daughter again. “But each day I see it with more and more pessimism.”