Manu Mielniezuk/AP
Spanish Judge Baltasar Garzon

Questions of Intent and Jurisdiction Put an End to Spanish War Crimes Probe

November 20, 2008 05:26 PM
by Christopher Coats
A judge’s efforts to expand the difficult discussion of war crimes in Franco-era Spain were quashed this week, dashing hopes of a broader investigation and continuing a national “historical amnesia.”

A “Crusading” Judge Reverses

Halted just a month after it began, an effort to investigate more than 130,000 Spaniards who disappeared under the authority of former dictator Francisco Franco has again cast a light on the divisive issue of war crimes in Spain.

The investigation stemmed from a 68-page dossier filed in October, in which Judge Baltasar Garzon outlined a systematic campaign to erase all opposition to Franco during the three years of the country’s civil war, as well as the 40 years of Franco reign that followed.

The Spanish Civil War began when conservative forces, backed by military elements in the country, attempted to overthrow a democratically elected liberal government in 1936. The battle that followed resulted in tens of thousands of deaths on both sides and brought forces from across the world to fight on Spanish soil.

Francisco Franco seized control of the country in 1939 and ruled Spain as a “fascist dictatorship” until his death in 1976, at which time exiled King Juan Carlos took power and moved the country toward democratic reforms.

A year after his death, Spain quickly passed an amnesty law, exempting all individuals involved in the war and Franco’s administration.

This law quickly became the strongest argument against Garzon’s efforts, with opposition leaders insisting that any crimes from 1936-1976 would be subject to the 1977 amnesty.

Citing international law, Garzon argued that Franco and 34 of his closest advisors had been involved in a systematic effort to eradicate opposition, qualifying it as a war crime, which has no statute of limitations for prosecution, exempting it from any amnesty laws.

Although he named only Franco and his advisors and ministers in the probe, all of whom are deceased, international law experts said that the case would allow him to pursue further prosecutions of living accomplices.

“Where there is a crime and a perpetrator, the judge will have to do something about it,“ Emilio Silva, of the Association for the Recovery of Historical Memory, told The Guardian.

However, just over a month after the popular Spanish judge presented his plan and two weeks after the case’s prosecutor challenged the application of the term “war crime,” thus halting the exhumation of the more than 19 mass graves from the period in question, Garzon put a stop to the national effort to pursue the investigation.

In a ruling three times as dense as his initial dossier, Garzon stated that he did not have the legal authority to pursue the investigation and passed the case to regional courts, widely believed not to follow through on the probe.

While supporters of the probe have expressed frustration with both Garzon’s reversal and the lack of government support for this and earlier efforts to investigate Spanish war crimes, many are hoping the publicity will result in a fresh wave of interest in those still unaccounted for.

“From a social point of view it has been positive,” José María Pedreño, president of the State Federation of Forums for Historical Memory told the International Herald Tribune. “He has sent up a cloud of dust, prompted debate about this issue and awoken our consciences again.”

Background: Historical amnesia

A difficult, divisive and politically disastrous issue in Spain since Franco’s passing in 1976, the events surrounding the former Spanish leader’s time in office have largely been shunned from polite conversation.

With much of the country suffering from what some historians call a “historical amnesia” when it comes to discussing the Franco period, conservatives have continued to argue that any discussion of possible crime would only serve to stir up old, forgotten anger.

Meanwhile, advocates of war crimes investigations, receiving little to no support from the national government, have turned to international law and volunteers to pursue investigations.

Their campaign received a boost with the passage of a Historical Memory Law in 2007, which aimed to “recognise the victims of the Franco regime,” according to the BBC.

According to Crimes of War, Garzon chose to go ahead with the probe, spurred by the new law, the definition of the events as war crimes by the International Criminal Court, and the interpretation of the events under the UN’s 1992 Declaration on the Protection of All Persons from Enforced Disappearances, and the International Convention for the Protection of All Persons from Enforced Disappearance. 

Initially expressing support for Garzon’s efforts, Amnesty International has now expressed its disappointment in his reversal, insisting that there is “No global exception when investigating the crimes of the past.”

Key Figure: Baltasar Garzon

Arguably the most well known judge and investigator in Spain, Baltasar Garzon has repeatedly made national and international headlines for his efforts to vigorously pursue individuals and crimes long held to be beyond the reach of the law.

In 1998, Garzon entered the international spotlight for his effort to extradite former Chilean dictator, Augusto Pinochet, while he was seeking medical attention in London. Since then, the high-profile judge has created a reputation for going after controversial figures from across the political spectrum.

Garzon has launched investigations into both the Basque separatists ETA as well as the covert “death squads” sent by law enforcement to kill members of the group in the 1980s.

A vocal advocate of investigations into the Franco years, this marks the first time Garzon has stepped back from his efforts.

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