A Maverick Judge Goes on Trial: Spain’s Dark Chapter
by Mark Kersten on 24 Jan 2012 | Comments
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.
Source: Justice in Conflict
