Spanish judge investigated for enforcing accountability for Franco-era atrocities

Alejandro M. Garro and César Chelala

Baltasar Garzón, a Spanish 「investigative magistrate」 in charge of triggering the investigation of crimes of national or international significance, is now himself under investigation. Conservative groups accuse Garzón of 「prevaricato judicial」 (roughly translated as 「abuse of a judge』s power」) for having intentionally bypassed a 1977 amnesty law by opening an investigation on human rights abuses committed during Spain』s civil war. If indicted of that charge, the General Council of the Judiciary may temporarily remove him from office.

For many years, Judge Garzón has engaged in a crusade against al-Qaeda terrorists, Latin American dictators (including Chilean dictator Augusto Pinochet,) Russian thugs, and powerful Spanish politicians accused of corruption. In addition, he started an investigation of torture claims by former Guantánamo detainees and for crimes committed by Colombia』s FARC rebels.

Garzón pursued those cases under a controversial statute (subsequently repealed) allowing Spanish courts to exercise 「universal」 jurisdiction over crimes against humanity, regardless of the country where they were perpetrated and the nationality of victims or perpetrators. These high-profile cases brought Judge Garzón powerful enemies all over the world, not to speak of the antagonism he provoked in Spanish government officials and among his own colleagues, many of who see him as an embarrassing self-promoter.

In October 2008 Judge Garzón launched an investigation on the torture, forced disappearances, and summary executions perpetrated between 1932 and 1952 under Franco』s dictatorship. Those crimes are allegedly covered by a blanket amnesty enacted by the Spanish Parliament in 1977 (similar to the general amnesties adopted by Argentina, Chile, and several other countries during the 』70s and 』80s) and a recent Historical Memory Act aimed at forgiving and forgetting Spain』s troubled past.

One may legitimately disagree with decisions taken by Judge Garzón. However, in this particular case, he did what he was required to do under international law. Far from abusing his power, Garzón properly applied international conventional and customary law, which pre-empts Spain』s domestic amnesty to the extent it is aimed at covering massive and systematic human rights abuses.

Two supranational tribunals (the European and Inter American Courts of Human Rights), as well as two U.N. committees (the U.N. Human Rights Committee and the U.N. Committee Against Torture) have consistently condemned blanket amnesties, which deprive victims of serious human rights abuses of an effective remedy.

Thus, even if the Spanish Supreme Court ultimately decides that Garzón overreached his authority by ignoring the 1977 amnesty law, such a decision may be challenged before the European Court of Human Rights, which has held that, in principle, blanket amnesties violate the member states』 duties to investigate systematic and massive violations of human rights. Thus, Judge Garzón had more than plausible reasons for refusing to apply Spain』s amnesty law.

Admittedly, Judge Garzón is a polarising figure with a penchant for high-profile cases. One may legitimately disagree, from a political standpoint, with his decision to unearth crimes of the past or feel understandably uncomfortable with his showy profile. Yet, while consistently fighting against the powerful of all political persuasions, he has courageously expanded the protective reach of international human rights law, as shown by the precedent established in the Pinochet case.

Whatever personal opinion one may hold of Garzón as an individual and beyond his controversial civil war investigation, the decision to go after this judge for opening an investigation of Franco』s worst human rights abuses seriously undermines judicial independence and Spain』s credibility in fighting against impunity.

More importantly, this decision ignores that, under international law, Spain』s sovereign decision to forgive and forget its past cannot be adopted at the expense of the victims』 right to justice, truth, and adequate reparations for serious and systematic human rights abuses.

Alejandro M. Garro is Professor of Comparative Law at Columbia University and Senior Research Scholar of the Parker School of Foreign and Comparative Law. César Chelala is a co-winner of an Overseas Press Club of America award.