Second Circuit’s Decision in Kiobel Rejecting Corporate Liability for Assisting Foreign Human Rights Violations

In September 2010 the U.S. Court of Appeals for the Second Circuit in Kiobel v. Royal Dutch Pet. Co., 621 F.3d 111 (2d Cir. 2010), rejected corporate liability in a civil case for money damages under the U.S. Alien Tort Statute (ATS), 28 U.S.C. § 1350. As mentioned in a prior post, this issue in this case will be the subject of a hearing before the U.S. Supreme Court on February 28th.

Subject-matter Jurisdiction

The Second Circuit in an opinion by Judge Cabranes in Kiobel first held, without much discussion, that the ATS incorporates any limitation arising from customary international law on whom may properly be sued as a defendant under the statute and that this was a requirement for subject-matter jurisdiction of the federal courts. No other circuit court, however, has come to this conclusion about such jurisdiction.

This was an important conclusion because federal courts are courts of limited jurisdiction requiring such courts always to determine if they have such jurisdiction and prohibiting the litigating parties from conferring such jurisdiction on the courts by not themselves raising problems over such jurisdiction. This conclusion enabled Judge Cabranes to raise, discuss and decide the issue of corporate liability under the ATS in this case even though it had not been briefed or argued by the parties themselves.

As mentioned in a prior post, the Supreme Court will be examining the correctness of this conclusion by the Second Circuit in this case.

Corporate Liability under ATS

Most of the lengthy opinion by Judge Cabranes held (a) that international law was the relevant law for determining whether corporations (or other legal entities) could be held liable under ATS for alleged violations of the law of nations; and (b) that customary international law and hence ATS did not recognize or allow corporate direct or accessory civil liability for human rights violations. The court, therefore, ruled that the complaint against a corporation had to be dismissed.

Important for the latter conclusion was the court’s view that international criminal tribunals starting with the Nuremberg Tribunal after World War II only imposed criminal sanctions on individuals for violating international legal norms. Other such tribunals, said the Second Circuit, were the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda and the International Criminal Court (ICC).

The Second Circuit stressed the ICC’s Rome Statute’s limitation of jurisdiction in Article 25(1) to “natural persons.” Equally important for the Second Circuit was the Rome Conference’s development of the ICC’s Rome Statute and the Conference’s rejection of a French proposal to include corporations and other “juridical” persons in the ICC’s jurisdiction because, according to commentators, corporate criminal liability was rejected by many national legal systems and thus such inclusion in the Rome Statute would eliminate the possibility of national systems’ preempting ICC jurisdiction under the principle of complementarity.

One of the judges in the three-judge panel in Kiobel, Judge Leval, submitted an even lengthier concurring opinion. He agreed that the complaint in its entirety had to be dismissed because it did not allege that the corporate defendants had purposefully aided and abetted the Nigerian government’s alleged violations of human rights. (The important issue of the proper legal requirements for aiding and abetting liability will not be before the Supreme Court in this case on February 28th.)

Judge Leval, however,  concluded that international law left to domestic law the issue of whether corporations were civilly liable for aiding and abetting violations of international law and that U.S. law allowed for such liability.

Judge Leval acknowledged that the ICC’s jurisdiction was limited to “natural persons” and that the Rome Conference had rejected the idea of extending the ICC’s jurisdiction to corporations and other legal entities. This structure, said Judge Leval, was due to a belief that a corporation could not act with the requisite criminal intent and the inefficacy of criminal punishment for such entities. On the other hand, Judge Leval quoted the Chairman of the Rome Statute’s Drafting Committee as saying that despite the diversity of views about corporate criminal liability, “all positions now accept in some form or another the principle that a legal entity, private or public, can, through its policies or actions, transgress a norm for which the law, whether national or international, provides, at the very least damages.”

Conclusion

As was noted by the Supreme Court itself in stating the second of the two issues to be argued on February 28th, the U.S. Court of Appeals for the 11th Circuit has disagreed with the Second Circuit on the issue of corporate liability under the ATS. Moreover, three other circuit courts–the 7th, the 9th and the District of Columbia Circuits–also have decided that corporations may be held liable under the ATS.[1]

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[1] An earlier version of this paper appeared in the blog of the American Non-Governmental Organizations Coalition for the International Criminal Court (AMICC).

Procedural Background for U.S. Supreme Court Argument in Kiobel Case on Corporate Liability for Foreign Human Rights Violations

U.S. Supreme Court Justices

On February 28th, the U.S. Supreme Court will hear oral arguments on the following two issues in a case from the U.S. Court of Appeals for the Second Circuit, Kiobel v. Royal Dutch Petroleum (Sup. Ct. No. 10-1491):

  1. Whether the issue of corporate civil tort liability under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, is a merits question, as it has been treated by all courts prior to the decision below, or an issue of subject matter jurisdiction, as the court of appeals held for the first time.
  2. Whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide, as the court of appeals decisions provides, or if corporations may be sued in the same manner as any other private party defendant under the ATS for such egregious violations, as the [U.S.] Eleventh Circuit [Court of Appeals] has explicitly held.

The Supreme Court’s resolution of these issues is expected by the end of the current term at the end of June 2012.

The ATS provides that U.S. federal district courts have “jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” (Earlier posts have reviewed the history of the ATS for the periods 1789-1979, 1980, 1980-2004, the U.S. Supreme Court decision in 2004 and 2004-present.)

This post will provide the procedural background for the Kiobel case. Subsequent posts will examine the substantive issues in the Second Circuit and before the Supreme Court.

The facts giving rise to the lawsuit took place in Nigeria in 1993-1995, when the Movement for the Survival of the Ogoni People and other Ogoni groups demanded an end to oil development in their region and were met with a violent military crackdown. Shell allegedly aided and abetted the crackdown.

Thereafter representatives of the Ogoni people, including Dr. Barinem Kiobel, commenced a putative class action against Shell under the ATS for allegedly aiding and abetting various human rights violations by the Nigerian government.

The case was brought in the federal court in New York City (the U.S. District Court for the Southern District of New York). After various pretrial motions and other proceedings, that court in September 2006 denied Shell’s motion to dismiss the claims with respect to alleged aiding and abetting crimes against humanity, torture and arbitrary arrest and detention. (Other claims were dismissed.)

The case then went up on appeal to the Second Circuit in New York City. Nearly four years later, September 2010, a three-judge panel of that court reversed the district court’s denial of the dismissal motion on the ground (2 to 1) that corporations could not be held liable under the ATS. (621 F.3d 111 (2d Cir. 2010).)

In February 2011, the Second Circuit’s original three-judge panel denied, 2 to 1, the plaintiffs’ petition for rehearing, and the entire Second Circuit denied, 6 to 4, the petition for rehearing en banc.

In October 2011, the Supreme Court granted the plaintiffs’ petition for a writ of certiorari to review the Second Circuit’s decision. The following briefing then took place:

  • In December 2011 the plaintiffs-petitioners submitted their brief supported by 19 amici curiae (friends of the court) briefs, including the U.S. Government, the U.N. High Commissioner for Human Rights, Joseph Stieglitz (Nobel Prize economist), law professors, human rights centers and plaintiffs in similar cases.
  • In January 2012 Shell filed its respondent’s brief supported by 16 amici curiae briefs, including the Federal Republic of Germany, the United Kingdom and the Netherlands, the U.S. Chamber of Commerce and other business organizations, other law professors, the Cato Institute and defendants in similar cases.
  • In early February the plaintiffs-petitioners submitted their reply brief.
Most of these briefs are available online.

This procedural background by itself illustrates the importance of this issue for the parties, for the enforcement of international human rights and for governments and businesses around the world. Nevertheless, remember that this is a case of statutory interpretation coupled with federal common law under the 2004 Sosa case, and at any time the Congress with a presidential signature could amend the statute to make corporate liability express or to exclude such liability specifically.

Former Salvadoran Military Officer Is Determined to Have Assisted in Torture and Murder

Vides Casanova

This week a U.S. immigration judge in Orlando, Florida after trial found that former Salvadoran General and Minister of Defense Carlos Eugenio Vides Casanova had assisted in acts of torture and murder committed by soldiers under his command. Now he is subject to further proceedings potentially leading to his deportation from the U.S. where he has lived for many years as a legal resident.

One of the cases which Vides Casanova was determined to have assisted was the December 1980 rape, torture and murder of four American churchwomen by five Salvadoran National Guardsmen. At the time Vides Casanova was the Commander of the Guard. (We already have examined the mission work of the churchwomen, the early investigations of this horrendous crime, the Salvadoran criminal prosecution of the Guardsmen and the Salvadoran Truth Commission’s investigation of the crime.)

The immigration judge also concluded that Vides Casanova had assisted in the torture of two Salvadorans, Juan Romagoza and Daniel Alvarado, who testified against him in hearings last spring in the immigration court in Orlando.

In 2005 Vides Casanova and his fellow former Salvadoran General and Minister of Defense Jose Guillermo Garcia were held liable in U.S. federal court for $54.6 million under the U.S. Alien Tort Statute (ATS) and Torture Victims Protection Act (TVPA). This civil case was brought by Romagoza and Alvarado and another Salvadoran refugee for their torture by Salvadoran military personnel during the period 1979 to 1983.

Earlier Vides Casanova and Garcia had defeated similar civil claims in U.S. federal court over the torture, rapes and murders of the four American churchwomen.

Earlier posts have reviewed the enactment of the TVPA and the history of the Alien Tort Statute for the periods 1789-1979, 1980, 1980-2004, the U.S. Supreme Court decision in 2004 and 2004-present.

The current deportation case was brought by the Human Rights Violators & War Crimes Center, which is a unit of the U.S. Immigration and Customs Enforcement created in 2003 to focus on preventing rights violators from entering this country and deporting those already here.

Update on Reactions to Spain’s Criminal Cases Against Judge Garzón

The three Spanish criminal cases against Judge Baltasar Garzón to make news.

On February 20th the Standing Committee of Spain’s Supreme Judicial Council, the governing body of judges in Spain, agreed to enforce the 11-year disqualification of Judge Baltasar Garzón. This coming Thursday the full governing body of the Council will have to confirm the removal of Garzón.

Also on February 20th, 80 human rights organizations from 32 countries, including Spain, delivered a joint letter to Spanish embassies around the world that said they considered “the temporal coincidence of these three different trials, as well as the origin of the complaints, are evidence of judicial harassment aimed against Judge Garzón. The sentence recently imposed upon him, and the other ongoing proceedings negatively affect the credibility of the Spanish judiciary, which once deserved the recognition of broad sectors of the international community for its rigor and commitment to universal jurisdiction causes and to combat organised [sic] crime. This commitment has symbolised [sic] in Garzón’s work, and for which he has risked his life.”

This letter added, “it is unacceptable and regrettable that in a democracy such as the Spanish one, the independence of justice could be weakened in such a manner, criminalizing a judge who used his independence, among others, to implement the International Law of Human Rights in its courts decisions.”

Earlier (February 8th) the U.N. Special Rapporteur on the Independence of Judges and Lawyers joined the the U.N. Working Group on Enforced or Involuntary Disappearances in a joint statement. It said it was “regrettable that Judge Garzón could be punished for opening an investigation which is in line with Spain’s obligations to investigate human rights violations in accordance with international law principles.” The statement went on to say that “Supposed errors in judicial decisions should not be a reason for the removal of a judge and, even less, for a criminal proceeding to be launched” and that “autonomy in the interpretation of the law is a fundamental element in the role of a judge and for progress in human rights.”

Meanwhile in Spain a commentator in El Pais stated that there has been a “chorus of brutal insults . . . raining down on . . . [Garzón] in the right-wing media” and that “chorus has now culminated with a war dance to celebrate his conviction.”

 

 

 

 

 

Is Chad Harbach’s “The Art of Fielding” a Great Novel?

Target (baseball) Field, Minnesota Twins

The Art of Fielding, a first novel by Chad Harbach, has received spectacular reviews in the U.S. and the U.K. The New York Times even made it one of their 10 Best Books of 2011.

The main character of the novel is Henry Skrimshander, a baseball player at a small college in the Midwest (Wisconsin). He is inspired by a fictional book (“The Art of Fielding”) written by a fictional baseball player (Aparicio Rodriguez), who supposedly played shortstop for the St. Louis Cardinals for 18 years, was regarded as the greatest defensive player at that position of all time and a member of the Baseball Hall of Fame.

Luis Aparicio

The fictional baseball player appears to be closely modeled on a real major leaguer, Luis Aparicio from Venezuela, who played shortstop for three teams (Chicago White Sox, Baltimore Orioles and Boston Red Sox) for 18 years. A great defensive player, he was on the American League All-Star team 13 times and was elected to the Baseball Hall of Fame. But he did not write a book about fielding or any other subject, to my knowledge.

Being a Minnesota Twins baseball fan who once played college baseball at a small college in the Midwest (Grinnell College in Iowa) that played teams from small colleges in Wisconsin (Ripon and Lawrence), I was really looking forward to reading this book.

The novel, however, was exceedingly disappointing.

The fictional book within the book is based on the very unlikely premise that a Latin American major leaguer would write any book, much less a book that sounds zen-like. Here are some of the words of advice on the subject of picking up and throwing a baseball that mean absolutely nothing to me as a former middle infielder (shortstop and second baseman):

  • “The shortstop is a source of stillness at the center of the defense. He projects this stillness and his teammates respond.”
  • “To field a ground ball must be considered a generous act and an act of comprehension.”
  • “There are three stages: Thoughtless being. Thought. Return to thoughtless being.”
  • “Death is the sanction of all that the athlete does.”

Skrimshander, who starts out as a great fielding shortstop, develops a problem in making accurate throws to first or second base on easy ground balls, and he cannot shake off this affliction.

Chuck Knoblauch

This has actually happened to several major-league middle infielders, who are briefly mentioned in the book. One is Chuck Knoblauch, who was a great fielding second baseman for the Minnesota Twins, from 1991 through 1997 and the American League Rookie of the Year in 1991. He was traded to the New York Yankees, where he played from 1998 through 2001 before a final season in 2002 with the Kansas City Royals. In 1999 he developed a problem in making accurate throws to first base, forcing the Yankees to move him to the outfield on defense or to have him be the designated hitter (one who bats, but does not play defense, but only in the American League). I, however, don’t think Chuck was an obsessive reader of any book about fielding like Skrimshander was or any other book for that matter.

Although this fielding problem is a major event in the life of the lead character in the novel and the life and success of his college baseball team, there is no exploration in the novel of why or how this happened. In baseball and other sports, coaches often tell their players not to think too much because thinking gets in the way of batting or fielding in baseball and other actions in other sports. Perhaps this is the explanation for Skrimshander’s problem. He was spending too much time reading the Aparacio book about fielding and thinking about the task of picking up and throwing a baseball. More generally this ironically suggests an anti-intellectual message in a college setting devoted to the life of the mind. (Never mind that this explanation does not fit with the real-life Knoblauch.)

The president of the fictional college (Westich College) is a late-middle-aged man (Guert Affenlight), who is divorced with an adult daughter. We the readers discover that he is gay as he embarks on an affair with Skrimshander’s roommate and fellow baseball player. This story soon takes over the novel. But there is no exploration of the many serious issues this conduct raises.

On the other hand, perhaps the main character in the novel is Mike Schwartz, the captain and catcher on the baseball team. In the summer before his senior year of college, Schwartz sees Skrimshander play baseball for another team and recognizes his great fielding ability as a shortstop. Schwartz, therefore, convinces him to apply for admission to the college. Once there, Schwartz pushes Skrimshander to do all sorts of strengthening exercises in order to become an even better player. In doing all of this, Schwartz knows his own talents come nowhere near those of his new teammate, but Schwartz does not show any signs of jealousy or insecurity. Perhaps the novel is saying that the less talented, but dedicated, selfless individual is really the most important person in any team or organization.

Moreover, although the novel makes a big deal about the importance of the defensive skills of the shortstop on a baseball team and does not really discuss the role of the catcher, a strong case can be made that the catcher is really the most important of the nine defensive positions on a team.

The catcher is involved in every play on defense while the shortstop is not as pivotal. The catcher directs with hand signals the pitcher on what kind of pitch to throw (fastball, curve ball, slider, change-up, knuckleball, etc.) and where (high, low, inside, outside). These decisions are influenced by what the coaches suggest or direct and by the catcher’s knowledge of the pitcher’s skills, the batter’s strengths and weaknesses, the umpire’s “strike zone” and the score and time in the game. All of this requires a player who fully understands the game and who is able to make instantaneous decisions.

Joe Mauer

Positioned behind home plate, the catcher can see the whole field. Therefore, he is in the best position to indicate to the other players where they should position themselves. He also must be able to throw the ball quickly and accurately to second base to prevent a runner on first base from stealing second base as seen in this photo of Minnesota Twins catcher Joe Mauer.

Joe Mauer

Doing all of this is difficult and dangerous for the catcher. Crouching behind home plate is hard on the knees as shown in this photo of  Joe Mauer. Foul tips by the batter or flying bats can easily injure the catcher who is positioned immediately behind the batter.

Alex Rodriguez & Joe Mauer

Bone-rattling collisions sometimes occur when an opposing player is trying to score a run by touching home plate before the ball arrives as we see in this photo of the Yankees’ Alex Rodriguez trying to score a run against the Twins.

Therefore, the catcher wears a steel mask, chest protector and shin guards and an extra-thick glove. In baseball jargon, these are known as “the tools of ignorance” in recognition that an intelligent person would not be stupid enough (or brave enough) to assume all of the risks of playing catcher. Perhaps this is another anti-intellectual allusion in the novel.

Another aspect of the novel was not convincing or credible for me. Supposedly Herman Melville, the great 19th century American and New England author of Moby-Dick and other great novels, visited the fictional college in Wisconsin and gave a lecture. To honor this connection with fame, the college’s athletic teams are called “The Harpooners,” and there is a statue of Melville on the college grounds looking out at Lake Michigan.

The book jacket says the book “is an expansive, warmhearted novel about ambition and its limits, about family and friendship and love, and about commitment–to oneself and to others.” The jacket also has laudatory blurbs from noted novelists like John Irving and Jonathan Franzen. The reviews previously mentioned are of like mind. Sorry, I must be too dense to see these great themes in this book.

I do not pretend to be a literary scholar. If someone really believes this is a great novel or sees some connection between Melville or Moby-Dick and what happens in the novel, I would like to hear or see such an explanation.

After so many posts about torture and other serious topics, this post is a change of pace. Or to use baseball jargon, it is my change-up. It is also in celebration of the opening of spring training for the Minnesota Twins and other major league baseball teams.

The Persistence of the Inquisition

The Inquisition was a phenomenon limited to fifteenth and sixteenth century Spain. Correct? Not so says Cullen Murphy in his new book, God’s Jury: The Inquisition and the Making of the Modern World and in the Atlantic Magazine’s excerpt of the book, Torturer’s Apprentice. So too does Adam Gopnik in a recent New Yorker essay about this and related books, Inquiring Minds: The Spanish Inquisition revisited.

As Gopnik puts it,  the Inquisition is “an institution as deeply rooted in modernity as the scientific tradition that it opposed. Its fanaticism, its implicit totalitarianism . . ., its sheer bureaucratic brutality  . . . make it central to who we are and what we do. Its thumbprint is everywhere. . . .” What happens at the U.S. base in Guantanamo Bay, Cuba is only one of the recent examples. Another example is the close parallels of the Spanish Inquisition’s interrogation manuals and the current U.S. manuals about “enhanced interrogation.”

Gopnik also criticizes scholars who allegedly delve into the minutia of the Spanish Inquisition and in the process lose the forest for the trees: Benzion Netanyahu (the father of the Israeli Prime Minister), Henry Kamen and Eamon Duffy.

According to Gopnik, history needs to be done with “historical imagination,” which is the “ability to see small and think big.” Without such imagination, the historian “risks a failure of basic human empathy.”  For studying and writing about the Spanish Inquisition, this means, he says, that the historian must imagine “the horror of being burned alive.”

The persistence of the practices of the Inquisition unfortunately continues to be demonstrated by the news of the day. Minneapolis’ Center for Victims of Torture has treated over 23,000 victims over the last 24 years. A similar program at New York City’s Bellevue/N.Y.U. Program for Survivors of Torture recently reported that in its “20 years of examining torture victims, we have seen few as traumatized as the several Abu Ghraib, Guantanamo and black site (secret prison) detainees whom we evaluated.” And the European Court of Human Rights recently decided that under the European Convention for the Protection of Human Rights and Fundamental Freedoms, the U.K. could not deport a radical Muslim cleric to Jordan because there was a “real risk that evidence obtained by torture will be used against him.”

We also have seen in the following prior posts the persistence of torture and the efforts to stop such conduct:

  • the negotiation and adoption of a multilateral treaty against torture (the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment);
  • the U.S. first and second reports to the Committee Against Torture;
  • the U.S. adoption of the Torture Victims Protection Act (TVPA);
  • the U.S. federal court lawsuit under the TVPA over the torture, rape and murders of the four American churchwomen in El Salvador;
  • the criminal cases in Spain under the principle of universal jurisdiction against U.S. officials for alleged torture of detainees in Guantanamo Bay, Cuba and for  authoring legal memoranda allegedly justifying torture;
  • the granting of asylum to a Salvadoran for having been tortured in his home country and who came to Minnesota to be treated at the Center for Treatment of Victims of Torture; and
  • the jurisdiction over torture as part of crimes against humanity (Art. 7(1)(f)) and war crimes (Art. 8(2)(a)(ii), 8(2)(c)(i)) for the International Criminal Court and other international criminal tribunals.

As a result, eternal vigilance against torture is necessary. In the U.S., for example, various religious groups have banded together in a National Religious Campaign Against Torture. Its statement of conscience says, “Torture violates the basic dignity of the human person that all religions, in their highest ideals, hold dear. It degrades everyone involved — policy-makers, perpetrators and victims. It contradicts our nation’s most cherished ideals. Any policies that permit torture and inhumane treatment are shocking and morally intolerable.”

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Commentary on the Spanish Criminal Cases Against Judge Garzon

Judge Baltasar Garzon

A prior post summarized the three pending criminal cases against Spanish Judge Baltasar Garzon.

This month has seen significant developments in these cases. On February 8th, the trial of the Franco-era case ended with Judge Garzon telling the court that he was motivated by “the helplessness of the victims.” The decision in that case is still to come. On February 9th, Judge Garzon was convicted of the charges involving his approval of wire-tapping attorney-client communications. On February 13th the court dismissed the case about the Judge’s alleged bribery by Banco Santander.

Now I have further commentary about these cases.

Reaction to the Criminal Charges Arising Out of the Franco-Era Investigation

The case that has drawn the most attention is the one with respect to Judge Garzon’s investigation of Franco-era human rights violations.

This case against the Judge has been severely criticized by the major Spanish newspaper, El Pais, which proclaimed that the case was reckless for “being charged . . . with apology for and defense of a dictatorial regime of cursed memory for many Spanish people. it also has a tone of provocation and insolence, which is hard to accept in democratic Spain. . . . The overtly fascist ideological tone of the legal action has contaminated the proceedings from the start, and is causing serious damage to the international image of Spain.”

Madrid demonstration for Garzon
Madrid demonstration for Garzon

Spanish citizens supporting the Judge have demonstrated in front of the Supreme Court building with signs saying “Stop the Persecution of Judge Garzon.” This obviously is only one segment of Spanish society which still has deep-seated divisions over its Civil War of the 1930’s.

Similar criticism has been leveled by international human rights organizations and leading newspapers. Amnesty International said this case was “a threat to human rights and judicial independence.” Human Rights Watch had similar harsh words: the case “threatens the concept of accountability in Spain and elsewhere.” The International Commission of Jurists said this case was “an attack against one of the pillars of the rule of law.” An author in Dissent said the main purpose for these charges was to “silence . . . those who’ve dared give voice to memories of political abuse and those who might pursue universal jurisdiction.” In the U.S. a New York Times editorial observed that this case was “a disturbing echo of the Franco era’s totalitarian thinking.”

Moreover, these charges against Garzon have spawned at least two collateral proceedings.

In March 2011 a British human rights organization, Interights, filed a complaint with the European Court of Human Rights asserting that under international law there could be no valid amnesties or statutes of limitations for crimes against humanity, that Judge

Garzon could not validly be punished for his reasoned interpretation of law and that the charges against Judge Garzon were threats to judicial independence. The European Court, however, is unlikely to take any action on this complaint for many months.

The prior year, May 2010, the Center for Constitutional Rights and the European Center for Constitutional and Human Rights and nine other human rights organizations filed a complaint with the U.N. Human Rights Council’s Special Rapporteur on the Independence of Judges and Lawyers (and five other U.N. special rapporteurs and working groups) alleging that these criminal charges against Judge Garzon were an improper interference with the Spanish judiciary. I have not been able to find any action or report about what these U.N. entities have done, if anything, with respect to this complaint.

It should be noted that this May 2010 complaint to U.N. entities was submitted before the WikiLeaks disclosure of the U.S. diplomatic cables about U.S. efforts to stop Spanish criminal cases against U.S.officials, and there was no allegation in this May 2010 complaint that the U.S. or Spanish officials improperly caused the criminal charges against Judge Garzon to be made.

As reported in prior post, on January 19, 2012, two of these same human rights organizations–the Center for Constitutional Rights of New York City and Berlin’s European Center for Constitutional and Human Rights–alleged that U.S. and Spanish senior governmental officials improperly had attempted to interfere with the Spanish judges handling three criminal cases against U.S. officials. The asserted bases for the allegations were U.S. diplomatic cables released by WikiLeaks; these cables are now available on the web. The allegations themselves were set forth in a complaint the organizations filed with the United Nations Human Rights Council’s Special Rapporteur on the Independence of Judges and Lawyers. However, this recent complaint to the Special Rapporteur does not allege that the U.S. or Spain or both improperly had instigated the criminal charges against Judge Garzon. Perhaps the unstated hope of this complaint is that the Rapporteur would uncover evidence of such an improper attempt.

The absence of such a direct accusation in the recent complaint to the Rapporteur is significant, in my opinion, because simultaneously with filing of that complaint, the Center for Constitutional Rights and the European Center for Constitutional and Human Rights along with seven other human rights organizations released a joint statement supporting Judge Garzon on his investigation of crimes related to the alleged crimes of the Franco regime. The statement asserts that application of international law to such crimes as was done by Judge Garzon does not constitute judicial malfeasance under Spanish law. Indeed, the joint statement elucidates the international law against the validity of amnesties for genocide, crimes against humanity and war crimes. But the joint statement did not allege that this criminal case against the Judge was the result of improper actions of U.S. or Spanish officials.

Reaction to the Other Two Criminal Cases Against Judge Garzon

There has been considerable commentary about the Judge’s conviction in the tapping of attorney-client communications that has been discussed in posts on February 10th and February 11th.

The El Pais editorial about the conviction should also be mentioned. It said that the Supreme Court’s rationale was  “hair-brained, absurd and even offensive.” This rationale asserted that Judge Garzon sought to weaken the suspects’ “defense strategies” to such a degree as to place “the Spanish penal system on the same level as that of totalitarian regimes.” That absurdity of this rationale was shown by the facts that the wire taps were sought by the Office of the Public Prosecutor, were maintained by another judge who replaced Judge Garzon in the corruption investigation and were initially approved by the Madrid High Court. Absurd though it was, the rationale served the Supreme Court’s “objective: eliminating Garzón as a judge.”

The dismissal of the third case involving alleged bribery of Judge Garzon makes it unnecessary to make further comment on that case.

Conclusion

The criminal cases against Judge Garzon are very important. First, they are obviously important for the Judge personally. Second, they are important, in my opinion, for the independence of Spanish judges from internal (or external) political opposition to judicial decisions. Third, they are important around the globe for judicial enforcement of international human rights.