Tag Archives: human rights

New Zealand’s Law Society identifies further steps needed to meet human rights obligations

In a submission to the United Nations’ Human Rights Council Council for the second Universal Periodic Review of New Zealand’s human rights record, the Law Society identified a need to strengthen mechanisms for the protection of human rights in New Zealand.

The Law Society asserted that there were a number of legislative measures that could hinder the country in meeting domestic and international human rights obligations.

The President of the Law Society, Chris Moore, states that New Zealand’s human rights record fares well in general, this largely depends on rigorous scrutiny of policy and legislation due to constitutional arrangements. He added that because there is no supreme bill of rights or entrenched constitution, the system relies on close observation of the rule of law combined with political restraint. Therefore it is crucial to address concerns and inconsistencies with human rights standards once they have been identified. Moore states:

“Unfortunately on a number of recent occasions legislation has been passed despite conflicting with the rule of law and human rights.”

The Law Society has urged New Zealand to take action in a number of areas to ensure it complies with human rights standards and the rule of law.

“There have been twelve pieces of legislation in recent years that have been identified as inconsistent with the rights and freedoms protected in the New Zealand Bill of Rights, and on a number of occasions urgency has been used in Parliament to limit or bypass select committee scrutiny,” he said.

Among the most recent legislation cited by the Committee, is the controversial Public Health and Disability Amendment Act 2013. Both the Attorney General’s report as well as the Law society pointed out that the Act appeared to be inconsistent with the right to freedom from discrimination and the right to judicial review under section 27 of the Bill of Rights. However the Bill was passed under urgency, thus bypassing the select committee process and denying public submissions. The Law Society took the following position:

“Not allowing the courts to review decisions made in exercise of a legislative function and refusing to provide reasons for rushing the legislation through is quite alien to the expectations we have of our parliamentary process.”

The Law Society expressed its concerns regarding the use of parliamentary urgency to pass bills stating that “[m]isuse of urgency, particularly where it is used to bypass the select committee process, offends against principles of democratic legitimacy”.

Moore listed a number of other bills that raise serious questions regarding New Zealand’s compliance with both international and domestic human rights obligations.

In response to these concerns, the Law Society’s has proposed for the government to take concrete, targeted steps in order to increase the visibility of international human rights obligations in New Zealand. In its submission, the Law Society has also advised that the government establishes a formal process for publicising, considering and responding to human rights recommendations by United Nations bodies.

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The Story Behind the Treaty

This short film by the International Red Cross explains some of the background behind the Arms Trade Treaty signed last week by over 60 countries.

In the film Kathleen Lawand, Head of the Arms Unit at the International Committee of the Red Cross emphasised the importance of key aspects of the Treaty. She points out that the Treaty states that a country  “shall not authorise the transfer of weapons if it knows that these weapons would be used to commit genocide crimes against humanity or war crimes”

She adds that the Treaty also says “that even if a state does not know for sure that the weapons would be used to commit such crimes it must assess the risk that they could be used to commit serious violations of international humanitarian law or human rights law”.

This is particularly significant in terms of the legal context of the Treaty, as well as shifting responsibility of the consequences of arms exports onto the exporting states.

Arms Trade Treaty: First Step for International Justice

The Arms Trade Treaty (ATT),  which was signed by 67 states last week, offers a much needed response to the human suffering caused by the widespread availability of weapons. The new Treaty stipulates that states must not transfer weapons or ammunition, if they know that these would be used to commit certain war crimes.

The UN Secretary-General Ban Ki-moon’s stated:

“I wholeheartedly welcome the adoption, today, of a first-ever Arms Trade Treaty by the General Assembly. It is a historic diplomatic achievement — the culmination of long-held dreams and many years of effort.”

The Treaty signing event

The Treaty signing event

The Treaty was adopted by vote by 154 members states on the 2nd of April 2013, with 23 abstentions and only three countries voting against – North Korea, Iran and Syria. Ban Ki Moon was optimistic about the impact this legislation will make in addressing human rights violations and armed conflict.

“It will be a powerful new tool in our efforts to prevent grave human rights abuses or violations of international humanitarian law. And it will provide much-needed momentum for other global disarmament and non-proliferation efforts.
I applaud states for their willingness to compromise on a number of complex issues, thus making it possible for us to have a balanced and robust Treaty text. I commend the members of civil society for the critical role they played from the inception of this process, through their expert contributions and enthusiastic support.”

The United States’ representative emphasised that “This Treaty sets a floor, not a ceiling” for the regulation of the international trade in conventional arms. Stating that when taken together, the Treaty’s articles provided a “robust and complementary” framework that would “ensure responsible behaviour” by state parties.

South Africa’s delegate added that the Treaty “filled a glaring gap” in the global conventional arms control system, by introducing high norms and criteria to which states would adhere when considering arms transfers. Under the Treaty state parties will be required to establish national transfer control legislation, as well as official administrative guidelines, national inspectorates, punitive and practical enforcement measures for transgressions.

Among those not in favour of the Treaty, Syria’s delegate pointed out that a number of states were supplying weapons to “terrorist groups” including those in Syria, and that this explained why they objected to a paragraph banning the supply of weapons to unauthorized non-State actors. “This is political hypocrisy, and a clear indication that the draft Treaty is greatly selective and, thus, cannot reach consensus.”

However, the representative of Colombia, Néstor Osorio, who was also speaking on behalf of a number of other countries (the Bahamas, Belize, Chile, El Salvador, Guatemala, Jamaica, Mexico, Peru, Trinidad and Tobago and Uruguay), said in the circumstances the resulting text was the best that could have been achieved. As it “created a common international regime to regulate the arms trade, and offered the chance to further develop a more robust control regime, notably through amendments to the Treaty and adjustments to implementation at the Conferences of States Parties”.

The delegate of Argentina signing the Treaty

The delegate of Argentina signing the ATT, 67 states have signed the Treaty since it was opened for signature on the 3rd of June last week.

The ambassador of Australia, Peter Woolcott received praise for the transparent manner in which he conducted his presidency of the Final Conference that produced the final version of the text. Ambassador Roberto García Moritán of Argentina, was also recognised for his longstanding commitment and staunch leadership of the ATT process.

The adoption of this Treaty demonstrates the instrumental function of the United Nations in providing a platform through which governments and civil society can work together. Ban Ki Moon indicated that the adoption of the Treaty is only the first step and called upon all Governments to join forces with civil society to ensure its full and effective implementation”.

The Communications Data Bill: Bogeymen and Blanket Surveillance

Despite warnings from digital rights groups, privacy advocates and experts in the tech world, the government has gone ahead with their plans for blanket surveillance measures on the internet, including controversial practices such as deep packet inspection (DPI).

The draft Communications Data bill published yesterday proposes that individuals’ data is stored using so called “black boxes” tracking their detailed internet use i.e. every website they visit, Google search terms, emails etc. A vast amount of data can be stored in these devices and using specialist software this data can be analysed using search functions and selection methods.

Currently Government Central Head Quarters (GCHQ) can access a large amount of data and conduct surveillance of specific suspects, the difference in the CCDP bill is that this data would be accessible in relation to any member of the public. The idea behind this seems to be that by conducting “blanket surveillance” the authorities could catch criminals who are not yet suspects.

Throwing such a wide net however would also consequently entangle innocent people and breach their privacy, while most likely only finding those criminals who lack basic internet skills. The issue here is rather who the authorities actually wish to target and where they plan to concentrate their resources, than assuming everyone is a suspected criminal. Apart from a terrifying intrusion into people’s private information this would be an arduous task for police, who currently are lacking the resources to analyse comparatively low levels of data already.

This brings me on to the next issue – costs. The proposed cost for the implementation of the bill is over a billion pounds. Judging by experience on spending for the Olympics this figure is likely to rise by quite a lot. At a time when there are cuts to essential services in the NHS, legal aid and right across the public sector, where will the government manage to drum up the money for implementing a misguided and ludicrous piece of legislation – which looks to only benefit the security industry itself.

While the security industry may prove lucrative for the government, the harm that this bill will cause to the public greatly overrides any government-business relations. Such an outright invasion of individuals’ privacy and the breach of personal freedoms and basic human rights cannot be justified by the government in any way whether it is business-motivated or not.

Analysing internet use can paint a very intimate picture of someone’s private life such as their health, financial situation and their personal relationships. It is not only an extreme breach of a person’s privacy but it is also completely unnecessary. Most of those affected will be innocent members of the public who may be unaware of the full extent of the bill and who do not know how to encrypt websites. Furthermore, the criminals that the government is referring to, can easily bypass the surveillance measures, thus making them even more difficult to catch.

While the government insists it will not read the data, it claims that it must have access to it for the purpose of catching criminals. Charles Farr – the head of the Home Office’s of security and counter-terrorism office, was extremely defensive when questioned about the bill and merely stated “trust us, we know”. On the contrary, it appears that any sensible person with expertise in the field of internet security would know that the proposals in the bill make very little practical or financial sense. Therefore trusting the government to “know what it’s doing” seems more and more naive on this issue.

It appears that this is just one of several bills the government is putting forward which seeks to take away fundamental personal freedoms and infringe basic human rights. Only on Sunday, Theresa May criticised judges for “not qualifying” Article 8 of the European Convention on Human Rights (ECHR) and being too lenient on criminals who use Art.8 to remain in the UK (even though only 2% of foreign nationals facing deportation after criminal proceedings successfully apply Art.8 to remain in the UK). These recent policies proposed by the government are particularly worrying as they may have severe consequences for basic human rights in the UK.

The government has taken the line that this is an effective way of catching the usual bogeymen – terrorists and paedophiles. What they are still failing to consider, is that the system is relatively easy to bypass and simply requires the use of encrypted pages – in simple terms this means that websites using “https” rather than “http” cannot be tracked.

US Supreme Court Rejects Blackwater Appeal – What does this mean for the accountability of Private Military Firms?

There are serious legal and human rights concerns about private military companies providing “security services” in conflict areas. Where the strict hierarchical discipline of the military is avoided, you may wonder who these companies are accountable to.

The recent Supreme Court decision regarding Blackwater Worldwide the US private security firm that operated in Iraq has left the door open to the possibility of holding these private firms accountable for unlawful violence in war zones.

On September 16, 2007 heavy gunfire erupted at the busy Nisour Square junction, killing at least 14 civilians including a 9 year old boy and leaving dozens injured. The shots were fired from a convoy of four armoured vehicles manned by Blackwater guards, who maintain that they were acting in self-defence after being shot at by insurgents.

Witnesses claim that the contractors were never in any danger and shot at civilians mercilessly and unprovoked. The chief prosecutor Kenneth Kohl disclosed that other Blackwater guards who had been on the convoy involved in the Nisour Square shootings reported the incident to Blackwater management, one guard describing it as “murder in cold blood“. However it appears that the  management failed to report these statements to the State Department.

The case had previously been thrown out by federal judge Ricardo Urbina on December 31, 2009 who cited misuse of statements made by the defendants by investigators.  The state department had ordered the guards to explain the details of the incident to investigators under the threat of losing their jobs. Their lawyer argued that using these statements to charge the four men amounted to a violation of their  constitutional right against self-incrimination and were made under duress.

However the charges were reinstated in April 2011 when a federal appeals court reopened the case and ordered the review of evidence against each individual defendant. The US Supreme Court refused to dismiss the manslaughter and weapons charges against the four defendants Paul Slough, Evan Liberty, Dustin Heard and Donald Ball and has declined to comment.

This is a small victory in holding private firms accountable for their actions in war zones. The privatisation of war and the use of private military firms is becoming increasingly prevalent and raises serious concerns over accountability. While this is not an isolated incident and it is likely that many unlawful actions by such contractors can go unnoticed due to the nature of their work, it provides a step towards creating a framework in which these companies could be held responsible for their actions.

Due to the transnational nature of many private military firms it is increasingly difficult to hold these companies responsible for the actions of their employees. The fact that these firms work in states in which the government has collapsed or is unable to enforce the necessary laws due to the condition of the state the operations of these firms often go unnoticed even if they are largely acting outside of the law.

Blackwater later changed their name to Xe Services, and after being unable to shake their bad reputation decided on a further name change now calling themselves Academi.

Guest Post by Professor Martine Herzog Evans: Is Prison Leave a Privilege?

Martine Herzog-Evans is a Law Professor at the University of Reims, France and specialises in criminology and prison law.

The Case – European Court of Human Rights, Grand Chamber, Boulois v. Luxembourg, applic. n° 33575/04

Mr Boulois, was imprisoned in Luxembourg, he filed several requests in order to obtain prison leave, which were all rejected by the Prison Board. He then lodged an application for judicial review with the Administrative Court. However, the Administrative Court denied it had jurisdiction to examine the application. In his application against the Grand Duchy of Luxembourg, Mr Boulois claimed that Article 6§1 of the ECHR had been violated arguing that he did not have access to a fair hearing or to a court. After the First Section of the ECtHR ruled in his favour, the government of Luxembourg requested for the case to be referred to the Grand Chamber.

The Ruling

« The Court reiterates that for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute… over a “right” which can be said… to be recognised under domestic law» (§90)

«  the Court observes that section 6 of the 1986 Law defines prison leave as… a “privilege” which “may be granted” to prisoners in certain circumstances» (§96)

« Thus it was clearly the legislature’s intention to create a privilege… the present case concerns a benefit created as an incentive to prisoners ». (§98)

« … the applicant could not claim, on arguable grounds, to possess a “right”» (§101)

« Furthermore… although the Court has recognised the legitimate aim of a policy of progressive social reintegration of persons sentenced to imprisonment… neither the Convention nor the Protocols thereto expressly provide for a right to prison leave» (§ 102).

« There has therefore been no breach of Article 6 » (§105).

Observations

In some European states, release and prison management decisions such as whether to grant prison leave, are deemed ‘administrative’ and are made by the executive. However, in France and other European countries such as Belgium, Spain, Italy, Germany, they are deemed to be of a ‘penal’ nature and a judge makes the decision. This often consists of a  hearing, where a lawyer can defend the inmate and, appeal, and even access to the highest court (Padfield and al. 2010). It appears that there is no clear consensus in Europe as to the very nature of what French law calls ‘sentence management measures’.

Despite ruling in Ganci v. Italy (30 Oct. 2003, n° 41576/98) that Article 6 applied to a disciplinary sanction if it affected civil rights such as family contacts; and in Enea v. Italy (Gd Chamber,  17 Sept. 2009, n° 74912/01), that a security prison regime affecting visitation did affect ‘civil rights’; in Boulois, the Grand Chamber analyses the request for prison leave as not being of a ‘civil’ nature. According to Luxembourg’s legal system, prison leave is a ‘privilege’ which aims at ‘encouraging’ prisoners, this corresponds to the historical view that prison leave is used to control prisoner’s behaviour. In view of modern penological goals, prison leave now serves two purposes: firstly, to allow prisoners to prepare their future and inevitably – except for lifers – release (e.g. by trying to find a job) ; secondly, to keep in contact with their families. Family rights are particularly important as they play a key role in deterring crime and are protected under Article 8 (Maruna, 2001; Farrall, 2002).

Prison leave should not be seen as a ‘privilege’. As stated above, in most modern nations, it is no longer seen as being a purely behavioural tool. It is true that most legal systems contain provisions which state that inmates ‘may’ or ‘can’ be granted prison leave. The ECtHR has itself ruled several times that by using the word ‘can’ does not mean that the authority or judge has full discretionary power ( Lambourdière v. France, 2 Aug. 2000, n° 37387/97 and Camps n. France, 23 Nov. 1999, n° 42401/98). It has been argued numerous times (e.g. in Herzog-Evans, 2012), that such legal provisions should be interpreted reasonably. Indeed when the law states that an offender ‘can’ be released or granted prison leave, it does not imply that he has an absolute right to either. Conversely, it does not mean that once all legal conditions and requirements are met, the court or governing authority can still deny the offender’s application simply ‘because it can’. One should not confuse discretion with whim. According to a fairer interpretation, when a legal system uses the verb ‘can’, it means that once all legal requirements are met – and this should include the protection of the public – then the authority or court should grant release or prison leave. In other words, even when ‘can’ is used, there is indeed a right to prison leave once its conditions are met.

According to the Grand Chamber, however, there is no such thing as a European principle of ‘reintegration’. The court only refers to the conventions and protocols, without mentioning recommendations. Recommendations may be deemed as being mere ‘soft law’; nonetheless, they do represent a consensus between European countries. Precisely, and to quote only a few, the European Prison Rules (2006, preamble), the European Probation Rules (2010, section 2), and Recommendation (2003)22 (preamble) all refer to reintegration as being a fundamental principle. In other words there is indeed a consensus amongst European member states relating to the importance of reintegration.

Finally, one must look at the bigger picture: the right to a fair trial as laid out in Art. 6, is not only a humanitarian procedural luxury that Western countries can afford.  Fair trial is first and foremost the mark of a democracy. In most modern democracies, the right to a fair trial conquers more and more legal territories. In France, for instance, it now applies to disciplinary sanctions, solitary confinement decision-making, release, recall, and other sanctions. Besides, from the criminological viewpoint, Art.6 is an essential component of the legitimacy of justice. As empirical studies have shown (Tyler, 1990; Tyler and Huo, 2002) it fosters compliance (Liebling, 2007) – probably substantive compliance as opposed to instrumental compliance (Robinson and McNeill, 2008) – in other words it is essential to grant leave from prison in order to prevent reoffending.

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Baltasar Garzon Cleared – What does this mean for the Spanish Justice System?

Baltasar Garzon was cleared by the Spanish Supreme Court of overstepping his authority on Monday. He was accused of abusing his judicial powers by opening an investigation into the disappearance of 114,000 individuals during the Franco era. Mr Garzon argued that these were crimes against humanity and therefore could not be subject to a 1977 Amnesty legislation, which prevented the perpetrators from being tried.

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Only one judge on the seven judge panel was in favour of a guilty verdict. However it seems his acquittal was based on a technicality rather than a changing view of the law regarding the issue. Mr Garzon had committed an error when he opened the investigation but it did not constitute a crime. The ruling stated:

“He misinterpreted Spanish law but did not knowingly and arbitrarily violate the limits of his jurisdiction … as would be required for a conviction” 

He was recently found guilty of illegal wiretapping in a separate case, which in Spanish law seems to constitute a rather grey area. This guilty verdict caused him to be suspended from acting as a judge for 11 years, effectively ending the career of the 56 year of judge. He was also accused of corruption in another case which has been thrown out by the Supreme Court.

His supporters and a number of human rights groups have argued that these cases against him were primarily politically motivated. The prominent judge had made many enemies due to his activism, especially launching an investigation into Spain’s recent bloody history. His opponents have argued that writing history should be left to the historians while his supporters want accountability and answers for the crimes committed. The outcome of this case appears to have done little in terms of clarifying the legal issues surrounding Mr Garzon’s conduct and his aims, it has arguably just raised concerns over the legal and political implications of addressing Spain’s past.

A Legal Debate in a Public Space: An Evening at St Paul’s

On Monday I went to a law debate at tent city in Occupy London Stock Exchange (LSX) camp outside St Paul’s cathedral. I had been there more frequently in the autumn, when the weather was milder and I had more time to go to free lectures and engage with people. When I arrived on my bicycle, I encountered a large number of Mercedes and scarily underweight individuals, I was starting to wonder what had happened to the camp. I soon realised that these were the remnants of a London Fashion Week event taking place a couple of yards from the camp. To my relief ‘tent city’ the small tent reserved for debates and lectures was still standing outside St Paul’s cathedral.

After a poem about the law and various disagreements among the occupiers being  about neither “left wing” nor a “political movement”, the debate proceeded. Tom Wolfe (barrister at Matrix Chambers), Sarah Sackman (barrister at Francis Taylor Building)  and Conor Gearty (Professor of human rights at LSE)  stressed the importance of civil action in changing/progressing the law.  The speakers stressed the importance of engaging people in a discussion about social change. Conor Gearty stated that without public spaces it’s impossible to form a protest movement such as Occupy.

Injunction notice outside Paternoster Square stating that the piazza is "private land"

The St Paul’s camp was served with an eviction notice on Thursday, but the protesters claim the  movement is far from over. Occupy London has opened a wider debate on issues of equality, transparency and particularly property. Paternoster Square next to St Paul’s Cathedral, was the original destination of the protesters as it houses the London Stock Exchange. The piazza was off limits for the protesters as it is privately owned. It had been formerly described as a public space, but as soon as the protesters attempted to move in a sign was put up saying ‘private property’. As public spaces become increasingly privately owned, the owners of these areas can be more selective about which members of the public they allow to use the land.

The ownership of property is so fundmentally important in our culture that it is key to the way we save and spend money. Conor Gearty stated that the right to property was the single most valued right in our culture. Renting property makes little financial sense especially in London, but the high prices of property and proportionately low incomes prevent many people from buying property. Professional landlords who own numerous properties often exploit the situation, and limited tenants rights largely favour the landlords position.

Canary Wharf London

Sarah Sackman stressed the problems of privatisation of public spaces and policing in places such as Canary Wharf. These privately owned areas often exclude members of the public and are run by their own rules, making the use of these spaces subject to their discretion and approval. Public spaces are one of the few areas that allow people to congregate and express themselves freely,  they are essential for communities in densely populated areas such as London. Their decline is particularly worrying at a time where community centres and youth clubs have closed down and when for many people there are not many places to go. Young people need spaces they can use for recreational purposes, without being asked to move elsewhere because they may not fit the profile, or because their presence is unnerving for the landowners.

Occupy London barrister Michael Paget and defendants George Barda and Tammy Samede from the Occupy St Paul's camp outside the Royal Courts of Justice in London on February 22, 2012.

The  eviction of St Paul’s protesters raises issues regarding the accountability of the City of London Corporation as well as the ethical implications of privatising public spaces. It also raises issues relating to segregation and selective use of this space. Gated communities, areas such as Broadgate and Canary Wharf and private parks are features that add to the equality issues in London. Such inequality and exclusive land use is damaging for all sections of society. Public spaces are there to be enjoyed by all members of society, without public spaces it would be impossible to effectively exercise basic rights such as freedom of expression and assembly. It is key to recognise that it is the right of individuals to voice their opinions, it is their right to create a civil rights movement and to attempt to induce progressive changes in the law. Without public pressure, the law would have difficulty in moving forward and embracing reform. It appears that the most valuable thing that Occupy London has created is  a platform for debate and engaging in dialogue. Waking up public interest in politics and social issues and giving people a voice is hugely significant and reflective of our society.

Update: Baltasar Garzon found guilty of illegal wiretapping

Spanish judge Baltasar Garzón, was found guilty of illegal wiretapping yesterday, as a result of a domestic corruption investigation. A panel of 7 judges found him guilty of misconduct, he is now liable to pay a fine of €2,500 and has been barred from the bench for 11 years. He has also been on trial in a separate case, for allegedly abusing his position by launching an investigation into human rights abuses during the Franco era.

In 2009, Garzón ordered wiretaps of conversations held between detainees and their lawyers in prisons. Wiretaps are permitted in cases involving suspected terrorists, but Spanish law is more ambiguous on non-terror cases. Garzón claims he ordered the wiretaps because he believed the lawyers were being instructed by the detainees to launder money. The respective prisoners are accused of paying politicians to obtain lucrative government contracts.

Garzón is still awaiting the verdict from his other case.

Amnesty and Human Rights – Is Forgetting Justifiable?

The case of Baltasar Garzón has started a debate not only regarding judicial activism and the role of judges, but also around the recognition of amnesty for alleged war criminals.

Baltasar Garzón, a magistrate in Spain’s national court, was previously responsible for the arrest and attempted extradition of Chilean ex dictator and war criminal, Augusto Pinochet, from London in 1998. The British courts agreed due to the nature of the case, which related to the alleged torture of Spanish citizens under Pinochet, that the public international law principle of universal jurisdiction could be applied. However, the then home secretary, Jack Straw, turned down the extradition application on health grounds, due to the former dictator’s age and illness. Despite this, the arrest of General Pinochet encouraged the Chilean judicial system to prosecute past abuses.

Garzón was recently suspended after opening a formal court investigation into human rights abuses committed by Spain’s former dictatorship. He was seeking to investigate the deaths of 114,000 opponents of the Franco regime between 1936 and 1975. Garzón is now facing charges for abuse of power in his trial that opened in the Supreme Court in Madrid yesterday.

Baltasar Garzón

His judicial activism has been widely criticised and condemned by other judges, who claim he is harming the legitimacy of the judicial system. He has also been accused, by both high profile opponents and the media, of vanity and being motivated by his own interests. Nevertheless, Garzón maintains that opening the investigation was based on the same principles used to order the arrest of Chile’s Augusto Pinochet.

In 1977, during the transition to a democratic system in Spain, an amnesty was put in place to cover all crimes of a “political nature” committed during the regime. Mr Garzón argued that the amnesty law does not apply to crimes against humanity and that he was applying the same principles to the Franco regime as to that of Pinochet. However, a Supreme Court judge stated that his actions amounted to a breach of his duties as a judge and that his arguments had no basis under international law.

Under international law, the criminal prosecution of individuals responsible for human rights abuses is an essential part of a victim’s right to justice. The granting of an amnesty is not uncommon in certain situations following conflict; where violations of international humanitarian law have occurred on a massive scale, often involving a large section of the population. However, there is also a need to balance the victim’s rights to justice with the need of the State to promote reconciliation in dealing with past atrocities without provoking further conflict. Where States like Spain have enacted amnesties in periods of transition, it’s necessary to consider whether such amnesties should be recognised internationally.

So the question arises, should international principles apply to a (domestic or international) court’s decision on whether to recognise amnesties covering war crimes? When there is a threat to peace, there may be need for an amnesty, and other accountability measures, to deal with those responsible. This would of course not be the case in Spain, which almost half a century after the death of Francisco Franco, is a stable and democratic country.

It appears that the basis for trying Baltasar Garzón is not in fact relating to a  breach of the 1977 amnesty law, but rather a fear of his judicial activism.  Spanish courts have been criticised for trying to bury the past, failing to investigate or seek accountability for atrocities committed during the Franco regime, and during the Spanish Civil War. Why is there such a reluctance to address the crimes of the past? In 2009, the European Court of Human Rights held that an amnesty law is generally incompatible with the duty of a state to investigate acts of torture or barbarity.

Why has Garzón’s role in seeking to investigate human rights abuses landed him on trial? It appears that the judiciary does not want to recognise its role in examining the validity and relevance of this law. Its decision to criminalise questions regarding the regime seems both disproportionate and confused. Rather than trying Garzón for his actions as an individual, the judicary could be working together as a body to take an investigative role, and come to terms with its violent history dating back to the Spanish civil war.

Here is a short clip about Baltasar Garzón on the Guardian website.