On April 16, Cándido Conde Pumpido, Spain’s attorney general, said that he wouldn’t recommend going ahead with a probe of six former US officials over allegations that they gave legal support for conducting torture at Guantánamo Bay prison in Cuba. Conde Pumpido’s justification was that the claims are “fraudulent” since the officials didn’t carry out the torture themselves, and if anybody, those accused should be the material authors of the crime.

Spain prosecutor’s decision not to endorse the indictment of the six Bush officials accused of complicity in torture of detainees only delays -but doesn’t stop- their eventual indictment. If the U.S. decides not to try those officials, another country more respectful of its international obligations will do so.

The case involves former US Attorney-General Alberto Gonzales; ex-Undersecretary of Defense Douglas Feith; former Vice President Dick Cheney’s chief of staff David Addington; former Justice Department officials John Yoo and Jay S. Bybee and Pentagon lawyer William J. Haynes II.

Although Mr. Pumpido wants to avoid the indictment used for political ends, it is possible that his refusal may instead convert it into a hot political issue, particularly since judge Baltazar Garzón was the one requesting a course of action. Judge Garzón had successfully prosecuted ex-Chilean dictator Augusto Pinochet in the 1990s in Great Britain. Pinochet was held in England under house arrest for several months before being sent back to Chile.

Pinochet was held in England under the universal jurisdiction principle, which establishes that every country has the ability to bring to justice the perpetrators of grave crimes, no matter where those crimes were committed, and regardless of the nationality of the perpetrators or their victims.

The Geneva Conventions and the Convention against Torture place a legally binding obligation on states that have ratified them to exercise the universal jurisdiction principle over persons accused of grave transgressions of those conventions. If the country where these transgressions have occurred doesn’t bring them to justice, it should extradite them to a country that will. Universal jurisdiction complements, but doesn’t override national prosecutions. Since the US has ratified the Convention Against Torture, it has the legal obligation to prosecute or extradite those who commit or are complicit in torture.

Several countries have already used the principle of universal jurisdiction to try those guilty of serious crimes. The US itself has used this principle before. Last January, a US court convicted Chuckie Taylor, son of the former Liberian president Charles Taylor, for torture carried out in Liberia and sentenced him to 97 years in prison.

The torture policies of the Bush administration will no longer be followed under President Obama’s executive orders. However, the Justice Department has also indicated that it would not prosecute those who used harsh interrogation techniques sanctioned in advance by the Justice Department.

Both President Obama and Attorney General Eric H. Holder have indicated their desire to move forward and not to reignite past issues that could provoke partisan rancor. This policy, however, carry the risks that if those accused of serious crimes are not properly prosecuted, those same actions may be used in future administrations. Although President Obama and Attorney General Eric H. Holder are clear about their intention not to prosecute those that carried out interrogation abuses, they are less clear about the policy towards those that created the framework that facilitated those abuses.

Failure to prosecute those who created the legal framework for torture will hinder any future efforts to totally eliminate those cruel, unlawful acts from the conduct of modern societies.

Cesar Chelala, a writer on human rights issues, is a co-winner of an Overseas Press Club of America award for an article on human rights.