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There are currently four cases open involving the United States in Spain’s National Court: two related to Guantanamo; one to the killing of a Spanish news cameraman by the U.S. military in an attack on a hotel in Baghdad; and one about CIA flights taking prisoners to Guantanamo or other prisons, which is investigating whether Spanish authorities knew about and allowed stopovers of those flights in Spain.
Spain's principle of universal jurisdiction allows it to prosecute crimes, such as genocide and torture, that are so hideous that they must be tried in some court, even if Spain has no connection to the case.
Spanish politicians across the political spectrum have joined prosecutors and judges in condemning Guantanamo. Many Spaniards hope Spain’s National Court cases on Guantanamo will prompt the United States to conduct its own investigation.
“In principle, universal jurisdiction should not be applied to democratic countries. A democratic country is understood to have its own courts. But the United States used a base in Guantanamo to violate democratic principles in that country and avoid its own courts,” said international law professor Francisco Jimenez, from King Juan Carlos University.
It wouldn’t be the first time that a case in Spain’s National Court was followed by trials in the countries where the crimes were committed. Antonio Segura, a lawyer in the National Court’s trial that sent an Argentine military officer to prison, said trials took place in Argentina after Spain’s court sentenced the officer for crimes against humanity. Jimenez said that one of the practical effects of universal jurisdiction is that “it creates awareness that impunity is not possible.” He said that following the National Court case against Pinochet, “judicial actions were activated in Chile” even though Pinochet was ultimately not brought to Spain.
If the United States does not open investigations, there is a good chance these cases will continue in Spain, even if the planned reform to the legislation takes effect, as there were Spanish prisoners in Guantanamo. Since it is unlikely the United States would extradite its nationals to Spain, international arrest warrants would be issued, and those accused would risk detention if they traveled abroad.