Spain’s Civil War Crimes Come to Argentina’s Courts

By R. Renee Yaworsky
Impunity Watch Reporter, South America

Hitler (L) and Franco (C) march during a 1935 meeting. (Photo courtesy of Life)
Hitler (L) and Franco (C) march during a 1940 meeting. (Photo courtesy of Life)

BUENOS AIRES, Argentina—Argentina may become the forum used to prosecute cases involving murder, torture, and kidnapping stemming from Spain’s Civil War (1936-1939).  Argentina may be able to prosecute these war criminals who are currently protected by diplomatic immunity.

Judge Maria Servini of Argentina has been working toward litigating under universal jurisdiction because Spain’s judicial system has been restricted by amnesty laws from filing these cases.  Universal jurisdiction has been previously used in Spain by Judge Baltasar Garzon, who prosecuted the Chilean General Augusto Pinochet in 1998.

Judge Servini asked Spain whether its own courts would investigate tens of thousands of cases of “torture, assassination, forced disappearances and the stealing of children.”  Her inquiry came after human rights defenders in Spain took their case to Argentina because Spain’s courts were unavailable to them.

The issue remains whether Argentina’s courts can litigate under the doctrine of universal jurisdiction.  Under that doctrine, states can have jurisdiction over those whose crimes were committed outside their borders if the crimes were against all and so severe that differences between legal systems cannot reduce responsibility.

The plaintiffs will declare that Article 118 of Argentina’s Constitution supports universal jurisdiction.  The Article mentions a special law that can determine the venue to try crimes against the law of nations (ius gentium) that took place outside of the country’s borders.

US-based group Tamils Against Genocide stated that “Universal jurisdiction is a hard hurdle to cross, and progress of the above cases underscores that Argentinian laws support universal jurisdiction for egregious crimes.”

The three Spanish Civil War cases that have been filed in Argentina’s courts are the murders of Spanish citizens Severino Rivas, Elias Garcia Holgado, and Luis Garcia Holgado, and Argentine Vicente Garcia Holgado.  The cases could be expanded to include other murders and disappearances that Franco’s military committed between July 17, 1936 and June 15, 1977.  These dates represent the day before Franco’s revolution began against Spain’s government, and when Spain held its first elections after Franco’s death.

One lawyer working on these cases, Maximo Castex, told the Associated Press that because genocide and other human rights violations have been alleged, more cases involving Argentines whose relatives had been killed in Spain can be tacked on to the litigation.

For more information, please see:

Barcelona Reporter-War crimes Spain Argentine judge invokes universal justice to probe Spain’s Franco-era crimes-30 October 2010

TamilNet-Argentina: a possible forum to prosecute war criminals-29 October 2010

Casey Weekly Cranbourne-Judge may shed light on crimes of Franco-28 October 2010

Author: Impunity Watch Archive

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