by Gregory Gordon
[This is a guest post by Professor Greg Gordon of the University of North Dakota. Professor Gordon is the Director of the UND Center for Human Rights and Genocide Studies, an expert on international criminal law and a past guest blogger at Opinio Juris.]
Earlier this week, Spanish National Court Judge Balthazar Garzon initiated money laundering proceedings against the widow of deceased Chilean dictator Augusto Pinochet, as well as Pinochet’s former lawyer and two of his bankers. In connection with the probe, Garzon has ordered the suspects to post a $77 million bond, indicating the bond is to “cover whatever financial liabilities might arise” in his probe. The four suspects, along with Banco de Chile, have ten days to pay the bond. If they fail to pay, Garzon has threatened to seize from their bank accounts the amount of the bond, plus an extra third – a total of approximately $103 million. The order, which did not reveal where the accounts are held, is meant to extract payment to “cover whatever financial liabilities might arise” in Garzon’s probe.
Judge Garzon’s actions raise a slew of interesting legal questions, both substantive and procedural, as well as policy questions about the appropriate scope of universal jurisdiction. First, and most fundamentally, under what authority is Garzon proceeding? Reports indicate that the probe arises out of Garzon’s original 1990s human rights universal jurisdiction (UJ) case against Pinochet that resulted in the Chilean dictator’s 1998-1999 detention in the United Kingdom. I have been unable to access Judge Garzon’s order but it is not readily apparent from the 1990s charges, which included allegations of genocide, torture, terrorism, and crimes related to forced disappearances, how the money laundering piece fits in.
Spain’s original 1985 UJ law, recently amended, extended the courts’ criminal jurisdiction to certain named crimes, for example genocide, terrorism and piracy, as well as “any other [criminal act] which, according to international covenants and treaties, should be prosecuted in Spain.” According to the Center for Justice and Accountability, pursuant to this law, “any serious crime that violated international law could be heard in Spanish courts as long as it met certain procedural safeguards.” Should money laundering be considered a “serious” violation of international law?
Perhaps the money laundering is linked to terrorism financing but that raises a whole host of separate questions. Pinochet’s financial crimes appeared to be strictly self-enrichment motivated but, even it they weren’t, can over $100 million legitimately be tied to DINA human rights depredations or Operation Condor? This amount seems more likely tied to Pinochet’s personal plundering of the Chilean fisc – not disappearances and torture. And the bond seems like a strange way to go about things. Garzon is essentially telling the suspects they need to freeze their own assets. If there is probable cause to believe the accounts have criminal proceeds in them, why not just seize them? In legitimate money-laundering cases, one would think officials would be loath to tip off suspects trying to sequester ill-gotten funds in the first place. Apparently, Spain’s MLAT options are quite limited.
In any event, assuming the money can be reasonably connected to jus cogens crimes, the case seems to raise pretty compelling issues regarding the scope of universal jurisdiction. Critics have pointed to cases initiated against figures such as Colin Powell and charged that UJ is being abused, with too few procedural or equitable restraints. In light of these concerns, should we also consider an expansion of UJ’s rationae materiae? Should offenses ancillary to jus cogens crimes, such as money laundering, be the subject of universal jurisdiction? If the answer is yes, how closely should the assets be connected to the crimes? Moreover, should a judge in a universal jurisdiction case be able to seize allegedly tainted assets in advance of rendering a judgment on the merits? If so, what should be the standard of proof justifying pre-trial seizure? Garzon has threatened to seize an extra third of the account contents if the bond is not posted by the requested date. This seems excessive and arbitrary. Bonds should be used to secure personal presence; not to mete out punishment.
Finally, I also wonder whether we should be concerned that the 1998 case lingers on. Reports state that the money laundering portion of the case was initiated in 2007, a year after the death of Augusto Pinochet, the principal target of the 1998 case. The 1998 case included other defendants but their relationship to Pinochet’s widow and the allegations of money laundering is not yet clear.
This may be more than an academic point since Spain’s recently amended UJ law is much more restrictive — requiring, inter alia, relevant links to Spain. In particular, the new law bars jurisdiction if another “competent court or international Tribunal has begun proceedings that constitute an effective investigation and prosecution of the punishable acts.” Chile has been conducting its own investigation into the Pinochet family’s finances. Perhaps the defendants could move to sever the 2007 claims from the 1998 case due to the tenuous connection to a deceased defendant. Although this seems like a stretch, if there were a dismissal without prejudice of the 2007 claims and a new case were filed (not tethered to the 1998 matter), Chile’s ongoing Pinochet family financial investigation might then foreclose Garzon’s money-laundering inquiry under the new Spanish UJ law.
Of course, none of this means that authorities should not pursue legitimate avenues of redress. Augusto Pinochet was a brutal dictator who tortured and murdered thousands of innocent civilians during his bloody seventeen-year reign of terror. It is deeply disturbing that he died before he could be tried for his crimes in a court of law. And it would be wonderful if his surviving victims could, as Garzon intends, share as reparations the money Pinochet looted from the Chilean people. But basic principles of fairness and justice should never be trampled on in the process. As Spain and Chile go forward, let us hope the proper balance can be struck.
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spanish UJ law v. ATS in US ?
