The boomerang effect of the Garzón case: a setback that can become a victory for the universal struggle against impunity for international crimes

Dra. Claudia Jiménez
Tenured lecturer of Public International Law. Autonomous University of Barcelona
Claudia Jiménez

Claudia Jiménez

There has recently been a great deal of talk, and with some justification, about the enormous injustice that would be committed if a judge were tried for having attempted to lift the veil which has covered the crimes of Franco's dictatorship since Spain's transition to democracy, and to shed light on the truth about so many direct victims of the dictatorship in Spain.
The mobilization of family members of many of those kidnapped, executed and/or "disappeared" during the civil war and Franco's dictatorship is not something new, but until recently they have been victims not only of a crime, but also of a silence - agreed upon by others, not by themselves - in the name of social peace and national reconciliation which distributed "irresponsibility" on a fifty-fifty basis. The legal embodiment of this enormous millstone which covered up the horrors of the past was undoubtedly the famous Amnesty Law of 1977, which placed the crimes of opinion, association and demonstration on an equal footing with the war crimes and crimes against humanity committed with total impunity by Franco's regime against over 100,000 people, according to figures from the claims made to date.

Various attempts have been made to bury this horrifying fact, which every so often stubbornly emerges like a ghost from the past, and the most recent of these was the "Historic Memory Law" of 2007.

Despite its lack of any legal reparations, before it was approved in Parliament there was a bitter and hard-fought debate on the necessity of moving forward and not reopening old wounds that could once again divide Spain, in apocalyptic tones similar to those used by others committing international crimes, who use the same arguments and the same self-amnesties in the name of social peace to avoid the responsibility for their crimes elsewhere. This was a strange attitude to adopt in a democratic parliament, which was simply considering the opening of mass graves in order to identify family members and finally bury them with dignity, as well as a moral compensation - and a financial one where necessary - without drawing any conclusions on the possible value of the mass graves as evidence, or the reopening of any criminal proceedings, and did not (call into) question the force of the amnesty law in these cases.

It is in this context that some of the suits filed by relatives of the victims of Franco's dictatorship based on international criminal law were finally considered by Judge Garzón, as he and other judges in the Court had done with similar accusations for similar acts occurring outside Spain. These other accusations include the Pinochet case – in which the initial investigation was begun by Judge Garcia Castellón and the extradition granted by the British courts was only prevented by a political decision of the then British Foreign Minister Jack Straw; the Silingo case – who was condemned to 1,090 years in prison in Spain for his participation in "death flights" in Argentina; the lawsuit filed by Rigoberta Menchú due to the genocide committed in Guatemala – which was readmitted by the Court after the 2005 ruling to that end by the Constitutional Court; or the more recent SS Totenkopf case, concerning atrocities committed in Nazi extermination camps, which are being investigated by the judge Ismael Moreno in Spain's High Court.

Since Nuremburg, the enormous extent of knowledge of the horrors experienced by thousands of innocent people has created a demand for "justice" for the abuses of power by governments and leaders who thought they would never be punished for their acts among the civil society of some countries - which like Spain, presume themselves to be democratic and governed by the rule of law. This was undoubtedly one of the main reasons for the creation of international criminal courts like those for the former Yugoslavia, Rwanda, Sierra Leone, and the International Criminal Court. It is also the reason for the wave of legal actions that have been taking place for some time in courts in various countries that can also guarantee a fair trial for both the accused and also and particularly - for the victims. This is precisely the reason why many of those legal actions are presented in countries other than where the crimes were committed, if the conditions are met, despite the victims' preferences.

The legal basis for all these actions are international laws, according to which international crimes - i.e. genocide, war crimes and crimes against humanity - are not only an attack on everyone who is part of the international community, but also cannot be prescribed or amnestied because of their seriousness. The purpose of these rules is to prevent the legal subterfuges that shelter those who have committed massive and atrocious crimes, and deny their victims the right to justice. This has been unanimously agreed on by all the international authorities that have ruled on this subject, ranging from the ad hoc criminal courts mentioned above, to the Inter-American Court of Human Rights (e.g. in the Barrios Altos case) and the European Court of Human Rights (the Kolk and Kislyiy v. Estonia ruling and the Ould Dah v. France ruling), under which Spain also has obligations.

The same legal basis has also been used for internal courts when judging international criminals in their own national courts, either for acts committed in their territory (Argentina, Chile, Peru, Estonia) or outside it (France, Israel, Italy and Spain). That is why the allegations by those accused of a possible expiration of law, the non-existence of their crimes in the national penal codes concerned and the possible existence of laws of amnesty which guarantee their immunity have been of no use to them in any of these cases. Interestingly, none of these decisions has led to the oft-mentioned social conflict. Guilty verdicts have at all times been limited to complying with democratic standards and the rule of law in the place where the legal proceedings have taken place, as well as the moral satisfaction of providing or contributing to bringing "justice" to victims who had been ignored up to that point.

This is certainly the reason for the astonishment among advocates of Spanish and foreign human rights after the Spanish Supreme Court gave leave to proceed with a criminal action filed not by the victims of Franco's dictatorship, but instead by the supporters of that regime, and not because of violations of human rights during that period, but because of an attempt to investigate them.

It is precisely for this reason, despite the current situation, that I am firmly convinced that this criminal action, in the way that it has been undertaken and has developed, will ultimately be a step forward in the struggle against impunity in Spain and the world. This conviction is not the result of hope, but of facts. The unashamed actions by the Falange and the Manos Limpias trade union have achieved in a few days what none of the demonstrations by Franco's victims had achieved in all these years:

  1. They have led to the subject of impunity for the crimes of the civil war and the dictatorship finally being reported, with some disbelief and even indignation, by much of the Spanish and international press (including the The New York Times, The economist, Clarín, Süddeutsche Zeitung and The Guardian, among others);
  2. They have mobilized broad-based sectors of the population, who without acknowledging themselves as direct victims of those acts, were angered by the "injustice" of the legal crusade as they did not understand why those responsible for the horrors not only remained unpunished, but were also able to prosecute the man attempting to establish the truth;
  3. They have opened up new and imaginative ways of fighting against this impunity, such as using the universal jurisdiction, in which Spain was a pioneer, to prosecute international crimes that are as yet unpunished in this country;
  4. As new information emerged from the investigations, victims who had resigned themselves to injustice became mobilized and involved. This in turn led to the correction of what had been the official version of a very murky period in Spain's history up until that point, and one which has yet to be fully uncovered.

The injustice which is more than can be tolerated moves mountains, and perhaps this is an opportunity that must not be wasted so that the crimes that the Amnesty Law aimed to cover up should not to go unpunished.