The famous, for some notorious and, for most, controversial, Spanish judge Baltasar Garzón is now on trial in Madrid. Garzón, most famous for issuing an arrest warrant for former Chilean dictator, Augusto Pinochet in 1999, faces three individual trials. The most dramatic of the charges brought against him suggests that Garzón exceeded his judicial boundaries in an attempt to investigate those responsible for torture, murder and enforced disappearances during the 1936-39 Spanish Civil War.
Garzón’s trial presents an opportunity to highlight a fascinating – and still under-examined – story in transitional justice, namely the remarkable resistance to over-turning the country’s amnesty laws and confronting a brutal, if inconvenient, chapter in Spanish history.
Background: From Pinochet to Franco
Garzón, often described as a “crusading” or “maverick” judge is one of the best known and most dramatic international criminal justice entrepreneurs. Together with ICC Prosecutor Luis Moreno-Ocampo and perhaps Richard Goldstone, Garzón has likely contributed to more headlines and news stories than any other judge or lawyer in the field.
Over the last 15 years, Garzón used Spanish Courts to pursue, with incredible vitality, the doctrine of universal jurisdiction. Not only did he indict Pinochet, but also Osama bin Laden and other members of al Qaeda in 2003. He subsequently attempted to indict a number of senior Bush administration officials for committing torture in Guantánamo Bay and elsewhere in the world. His judicial activism and creativity is divisive, leading to both derision and praise for his work. Yet it was only when Garzón pursued justice at home, in Spain, that he found himself in really hot water.
Garzón’s attempt to open investigations into Spanish Civil War atrocities cannot be understood outside of the context of the 1999 arrest warrant for Pinochet. The indictment of Pinochet unleashed a largely dormant movement to recover Spain’s political memory of the Spanish Civil War crimes. It broke with Spain’s ‘pact of silence’, a pact reinforced by a 1977 blanket amnesty law protecting Franco-era perpetrators of human rights violations from prosecution. In large part, this disruption of the ‘pact of silence’ stemmed from an obvious hypocrisy exposed by the Pinochet indictment. Spaniards were widely supportive of Garzón’s efforts to bring Pinochet to justice, so how could Spain seek accountability for Argentine crimes when they were unwilling to do the same for Spanish crimes?
To make a long story short, the indictment of Pinochet helped to create the space in which Spanish civil society organizations could open an impressive challenge to the ruling ‘pact of silence’. As Ellen Lutz and Kathryn Sikkink have argued, the action by Garzón against the former Chilean dictator “lifted psychological, political and juridical barriers to justice” in Spain. This was evidenced in 2007 by the passing of the Law on Historical Memory by the government of President José Luis Rodríguez Zapatero, whose grandfather was a victim of a Spanish Civil War shooting squad. Importantly, the law explicitly condemned Franco-era crimes. Thus, perhaps it was only a matter of time before a judicial campaign would be waged against the pact, with Spain’s amnesty laws in its cross-hairs.
Facing the Future – Confronting the Past
The support for Pinochet’s indictment should not occlude the divisive nature of the debate in Spain regarding whether or not to investigate past crimes. There has always been, and there remains, a strong sense amongst some sections of Spanish society that any challenge to the country’s amnesties amounts to an unnecessary opening up of old wounds which could potentially destabilize the state. Further, as Encarnación has pointed out, confronting the past through exhumations and closing down memorials to Franco has not translated into unravelling the amnesties and there may be little mainstream political support for it.
Others disagree. The President of the Forum of Memory, for example, has argued that while
“[t]he ‘pact of silence’ was necessary for the transition to democracy…But it meant that our democracy was fundamentally flawed, resting on the impunity of Franco’s regime. It had to change.”
In 2008, Garzón opened investigations into the disappearances of over 114,000 individuals, ordered the exhumation of numerous mass graves and suggested, for the first time, that the acts of the Franco regime amounted to crimes against humanity. Garzón quickly, however, dropped the case, was charged for over-stepping his judicial boundaries, and was suspended as a Spanish judge in May 2010. In a questionable move, he was then hired by his friend, ICC Prosecutor Luis Moreno-Ocampo, as an adviser to the Office of the Prosecutor.
The decision to prosecute Garzón for seeking to shed light on the crimes committed during the Franco era, was derided by international lawyers and widely criticized as being politically motivated. A group of well-respect jurists and legal scholars, for example, decried the decision:
“To assert that it is a crime for a national prosecutor or investigating judge to act in this way, particularly where the allegation being investigated concerns the disappearance of persons and has continuing effects, is obviously wrong and is detrimental to the rule of law… It is inconsistent with one of the central tenets of modern international law, namely that there can be no impunity for grave international crimes.”
None of this has, however, prevented Garzón from standing trial. And so the “crusading”, “maverick” judge finds himself in the dock.
The Cost of Denial?
It remains unclear whether amnesty laws for international crimes have shelf-lives or not. Human rights advocates are in the process of working such amnesties into oblivion and have, at least to some extent, achieved traction in rulings at international courts and tribunals. In this context, Spain is an uncomfortable tale for transitional justice and human rights advocates primarily for one reason: despite not confronting its past, refusing to over-turn its amnesty law, and largely rejecting the mechanisms now familiar to transitional justice, Spain has emerged as a liberal democratic state which, by and large, respects human rights and upholds the rule of law. As a number of scholars have noted, Spain’s transition is an exemplary model of democratic consolidation without retributive justice. While the country has experienced what Madeleine Davis has called a “belated memory politics” and some advances have been made to establish the truth about the atrocities that occurred under Franco, the amnesty which protects anyone from investigation or prosecution remains in tact. This, however, has come at a cost.
It has been argued that the nature of Spain’s transition and its refusal to address past abuses has had important implications for the nature of the country’s democracy. Paloma Aguilar suggests that “significant legacies of authoritarian political culture remain.” She adds that post-Franco Spain has witnessed a politics of exclusion and avoidance of controversy over delicate matters. These aspects of Spain’s transitional legacy continue to shape its politics including, of course, the stifling of attempts to bring perpetrators to justice by Garzón and others. Further, the political actors in Spain continue to be highly influenced by the military and, according to Aguilar, “[t]here are abundant examples of connivance between the extreme right, the judges and the state security forces.”
Some take the above to suggest that Spanish democracy is restricted by the decision it took, and continues to take, to forgo dealing with the uncomfortable reality that thousands were killed and disappeared during Franco’s rule. Thus, while a single case does not make a trend and Spain no doubt enjoys a high degree of international legitimacy, its legacy of transition does provide evidence that the nature of a state’s transition will colour its democratic character – and not only, or always, in flattering shades.
It seems unlikely that opening up old wounds would risk Spanish stability or democracy. To put it bluntly, 1939 was a long time ago. Very few things, if any, from that period could actually destabilize a democratic state over 70 years down the line. Further, the Law of Historical Memory demonstrates, quite clearly, that the fear of opening up the past has dissipated significantly.
Importantly, Spain’s “belated ‘memory politics” has become an issue in the country’s democratic political landscape, an issue in the marketplace of contrasting views, interests and ideas. Much of this is owed to Garzón’s judicial activism. Yet it seems likely that he may have had the last shot to undo the amnesty with actual effects for survivors. It is quite possible that, at some point in the future, Spain decides to abolish the amnesty. But if and when it does, it will be little more than a symbolic move. Sadly, many of the victims and survivors will not be around to see it happen.