Spain's Memory War: Unearthing the Truth in the Quest for Justice

November 19, 2008

Spain's Memory War: Judge Halts Attempt to Enforce Justice for Franco's Killings

By Katherine Iliopoulos

The attempt by a high-profile Spanish judge to establish accountability for killings carried out by the regime of General Franco during the 1936-1939 Civil War and Franco's ensuing dictatorship appears to be at an end, after the judge announced on November 18 that he would not proceed with the case. The investigation into ‘crimes against humanity’ perpetrated by Franco and his collaborators was opposed by critics who said it had no legal basis and threatened Spain’s social harmony, and had been suspended by a Spanish court earlier this month.

Announcing that he would not proceed with the investigation, Judge Baltasar Garzón said that he was handing responsibility for investigating mass graves and pursuing any cases to Spain’s regional courts.

Judge Garzón initially ordered the investigation on October 16, launching the country’s first official inquiry in relation to the brutal and repressive Franco regime which is said to have engaged in a systematic campaign of enforced disappearances, “mass killings, torture and the systematic, general and illegal detentions of political opponents”. Judge Garzón ordered the exhumations of 19 mass graves in response to a petition that was filed by 13 associations of the families of victims of Franco.

Garzón named Franco and 34 late wartime generals or members of his government as instigators of the campaign. Estimates put the number of people killed by Franco’s Nationalist death squads and kangaroo courts during and after the civil war at 150,000, and the number killed by the left, especially the Communist Party, at around 60,000. In addition, during the dictatorship, 400,000 people were imprisoned and 650,000 were forced into exile, according to official figures.

The killings and massacres from that period have not been investigated until now, because they are thought to be covered by the 1977 Amnesty Law, which pardoned the political crimes of both the Nationalist regime and its Republican opponents. The Law granted amnesty for atrocities perpetrated during the Civil War as part of the push within the newly democratic nation to put the war behind it in the interests of national reconciliation.

On the basis of a 68-page report presented to the court, Garzón argued that the policy of “illegal, permanent detention without disclosing [victims'] whereabouts” constitutes grounds for a case of crimes against humanity. Because crimes against humanity are regarded as international crimes of universal jurisdiction, Garzon claimed, they are not covered by the 1977 law. “Any amnesty law which aims at erasing crimes against humanity that cannot be described as political crimes, is null,” he has stated. For the same reason, he argued, Spain’s statute of limitations would not stand in the way of an investigation, as crimes against humanity and war crimes are not subject to any limitations under international law.

Crimes against humanity involve any of series of forbidden actions that are carried out in a widespread or systematic way against a civilian population.

The Spanish Prosecutor's Office challenged the investigation, and succeeded in having it suspended on November 7 by the National Audience, Spain's highest criminal court. He is calling for the enforcement of the 1977 Amnesty Law and Spain’s statute of limitations. Even if the 1977 Amnesty Law does not cover the crimes, the chief prosecutor argued that under the Spanish criminal code that was in force when the war began, those offences should be considered ‘ordinary crimes’ whose statute of limitations had in fact expired. Under Spanish law, most crimes are deemed to have lapsed after a 20-year period. Garzón rejected this argument, stating that Franco conducted a systematic campaign to eliminate opponents and hide their bodies. As the bodies are still missing, the crime of ‘enforced disappearance’ continues today.

Garzon’s move came at a time when public debate in Spain has recently begun to challenge the unwritten “pact of forgetting” through which the country agreed to overlook the crimes of the Civil War era. In 2007, the country passed a Historical Memory Law to recognise and broaden the rights of those who suffered persecution or violence for political, ideological or religious reasons during the Civil War and the Franco dictatorship. In its appeal, the Prosecutor's Office argued that the 2007 Historical Memory Law does not allow judicial enquiries because it already provides appropriate and sufficient measures for the victims. However, the Law itself says that “[The provisions of this Law are] compatible with taking the legal action and having access to the ordinary and extraordinary court proceedings established in the laws or the international treaties or covenants ratified by Spain”.

According to Amnesty International, which on November 13 called on the Spanish Government to comply with its international obligations regarding past crimes, blocking such war crimes investigations “could establish impunity mechanisms that are that are not in compliance with the rules applicable to crimes under international law”. “Investigations of crimes against humanity committed in other countries have been promoted on many occasions in Spain so how can the Prosecutor's Office question or oppose complying with the obligation to investigate serious crimes committed during the Civil War and Franco's regime?” asked Esteban Beltrán, Director of Amnesty International Spain. “Spain cannot appear before the international community as a State that infringes its international obligations".

Under international law, a government’s refusal to acknowledge the detention of an individual or their whereabouts is an enforced disappearance. In 1992 the UN General Assembly passed the UN Declaration on the Protection of All Persons from Enforced Disappearances. It provides that an enforced disappearance has occurred when government officials or agents arrest, detain or abduct against their will an individual “followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law”. According to the Declaration, international or internal armed conflicts cannot justify the practice of enforced disappearances: “No circumstances whatsoever, whether a threat of war, a state of war, internal political instability or any other public emergency, may be invoked to justify enforced disappearances”.

In 2006 the prohibition against enforced disappearances was strengthened by the adoption of the International Convention for the Protection of All Persons from Enforced Disappearance (Convention against Enforced Disappearance). Under Article 5 of the Convention, “the widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law”.

The Convention will not enter into force until it has been ratified by 20 countries. At the time of writing, 79 countries have signed the Convention and five have ratified it. Spain has signed but has not yet ratified the Convention, but it is a Party to the Rome Statute of the International Criminal Court. Under Article 7(1)(i) of the Rome Statute, which is indicative of customary international law, the ‘enforced disappearance of persons’ constitutes a crime against humanity “when committed as part of a widespread or systematic attack directed against any civilian population”.

Those criticising the investigation have claimed that international human rights legislation cannot be invoked as Spain had not ratified it at the time, and in addition, its provisions are not reflective of the state of customary international law during the relevant period. In reply Garzón appealed to the Nuremberg war crimes trials as precedent. The Nuremberg trials began in 1945, 6 years after the end of the Spanish Civil War. German officials who had acted under the Nazi Regime – a regime that had generously supported Franco - were prosecuted for initiating a war of aggression and for the commission of the crimes that resulted: crimes against peace, war crimes, crimes against humanity and genocide. Some people have criticised the Nuremberg trials for applying ex post facto law – that is, law created after the fact - by violating the nullum crimen sine lege (‘no crime without a law’) principle. However Garzón believes they are a valid precedent: if international law could be used at Nuremberg, he argues, the same rules could be applied to events that took place only a few years prior.

Garzón gained international prominence in 1998 when he issued an international arrest warrant on the basis of universal jurisdiction for the arrest of former Chilean president Augusto Pinochet over the alleged torture and killings of Spanish citizens during his rule. British Home Secretary Jack Straw ultimately refused - on medical grounds - Garzón's request to have Pinochet extradited to Spain.

In 1999 and 2000, again on the basis of universal jurisdiction, Garzón filed charges against two Argentinean officers in relation to the disappearance of Spanish citizens during Argentina's ‘Dirty War’ of 1976-1983. In 2005, Adolfo Scilingo was prosecuted in Spain for terrorism, torture and attempted genocide, as the aim of the military regime at the time was the destruction of an entire group, namely the opponents of the military regime. His original sentence of 640 years imprisonment was increased to 1,084 years in 2007. Miguel Cavallo was charged with genocide, terrorism and torture. He was eventually extradited to Argentina on March 31, 2008 where he is currently awaiting trial.

In 2002, Garzón sought to interview Henry Kissinger over what the United States Government knew about Operation Condor. Operation Condor involved an agreement between six former Latin American dictatorships - Argentina, Bolivia, Brazil, Chile, Paraguay and Uruguay - to assassinate each other's political opponents, who were first kidnapped and later killed, leaving no trace. Without any dead bodies, the government could deny they had been killed. Those murdered in this fashion are referred to as ‘the disappeared’ (los desaparecidos), and the modern use of the term ‘enforced disappearances’ derives from the “dirty wars” in Latin America during this period.

In using the phrase ‘crime against humanity’ to describe the crimes perpetrated during the War, Judge Garzón was taking a highly controversial step. He told the BBC: “These days, crimes against humanity are a burning issue, wherever you look in the world - be it Afghanistan, Iraq or Darfur - enough countries to make you realise that this theme never ceases to make the news, just as the fight against this scar, this impunity, never ceases. And if we are referring to the investigations being carried out in Spain in relation to universal justice or eras gone by, then justice needs to follow its course within the parameters of the law. That is what we judges try to do”.

The UN Human Rights Committee supported Judge Garzón’s initiative. On 31 October 2008 it stated that the “amnesty concerning grave violations of human rights was in contradiction to the provisions of the Covenant (the International Covenant on Civil and Political Rights 1966)”. It recommended that Spain “abolish the amnesty law of 1977 and take legislative measures to guarantee the non-applicability of statutory limitations to crimes against humanity by the national jurisdiction”.

While news reports suggested that Spaniards were sceptical that the country's regional courts would look to pursue cases against any surviving members of Franco's regime, it is thought likely that the process of exhuming graves of his victims will be continued at regional level. The truth about executions will continue to emerge, but there will be no central attempt to implicate Franco's government for a systematic campaign of crimes against humanity.

Related Chapters from Crimes of War: What the Public Should Know 2.0:

Crimes Against Humanity

Disappearances

By Graham Keeley

The Times, November 19, 2008

Judge Garzon's statement of November 18 (Microsoft Word document in Spanish only)

Spain: No Global Exception when Investigating the Crimes of the Past

Amnesty International

November 13, 2008

Remembering: The Value of Shame

Globe and Mail

November 8, 2008