Why can't Spain try Netanyahu now, but it could before 2014?

MadridThe Spanish Prosecutor's Office will investigate Israel's "crimes" in Gaza, it announced this Thursday. However, this headline does not mean that Spain will directly pursue these alleged crimes, but rather will limit itself to gathering evidence to hand over to the international courts that already have open cases against the Hebrew state. The Spanish justice system, under current legislation, does not have the capacity to prosecute crimes of genocide or crimes against humanity committed in other countries by individuals not linked to Spain, as would be the case with Benjamin Netanyahu. In other words, the principle of universal jurisdiction does not apply in Spain. This means that any national court can prosecute the perpetrators of these types of human rights crimes—regardless of their nationality and even if they committed the crimes outside the country investigating them—to avoid impunity and the lack of protection for victims.

This has not always been the case; rather, it is a principle that has been curtailed. While from 1985 to 2009, Spain was a leader in the application of universal jurisdiction—which allowed Spanish judges to investigate crimes committed in other countries, as was the case with the investigations against Chilean dictator Augusto Pinochet in the National Court for the repression of dissidents for the genocide in Tibet—several legal changes have rendered it inapplicable. The first, in 2009, was a limitation introduced by the government of Socialist José Luis Rodríguez Zapatero, followed by a legal reform by the People's Party (PP) leader Mariano Rajoy in 2014, which definitively ended the application of universal jurisdiction in Spain. The PP's initiative resulted in the shelving of investigations that were underway in the National Court, such as the investigation into the death of Telecinco journalist José Couso during the Iraq War at the hands of the US military or the investigation into the Rwandan genocide, because it was applied retroactively.

Rajoy's decision drew criticism from both members of the judiciary and the opposition—the PSOE (Spanish Socialist Workers' Party) unsuccessfully appealed to the Constitutional Court despite having paved the way a few years earlier—as well as from human rights organizations such as Amnesty International (AI). In a 2014 report issued by AI, the association denounced the PP's legislative amendment as "contrary to both international law and the Spanish Constitution itself" because the former establishes the obligation to prosecute such crimes without territorial or nationality limitations and because the Spanish Constitution recognizes the right to effective judicial protection. In 2018, the Constitutional Court ruled that Rajoy's law was unconstitutional.

Sumar proposes reversing the ruling.

This reform has been going on for more than ten years, and although the PSOE has governed with progressive parties for seven years, this situation has not been reversed. Several attempts have been made in Congress over the last decade, and in fact, a bill by Sumar (Spanish Socialist Party) is currently being processed that proposes restoring universal jurisdiction by expanding the possibility of prosecuting in Spain foreigners who have committed these types of crimes outside of Spanish territory. "Crimes of genocide that have not been effectively prosecuted will fall under the jurisdiction of Spanish courts even if there is no connection with Spain," the text states. Although the initiative was admitted for processing in February 2024 with the votes of the Socialists, the deadline for submitting amendments has been extended more than 50 times, meaning it is still in a drawer. "Responding to these crimes requires unblocking the processing of the law," one of its promoters, the deputy of the United Left, Enrique Santiago, told X this Thursday, who called for an "agreement of all human rights groups to approve it."