By Elizabeth A. Conger
Impunity Watch Reporter, Europe
MADRID, Spain – Spain’s crusading human rights judge, Baltasar Garzón, is to be tried for “knowingly overreaching” his jurisdiction through his investigation into the disappearance of tens of thousands of people during the Spanish Civil War and the dictatorship of General Francisco Franco. Garzón has been suspended from his job while he awaits the start of the trial, which is likely to begin in June.
Charges that Garzón exceeded his power were first brought by the far-right lobby group, Manos Limpias (Clean Hands), and fringe fascist party, Falange Española. They alleged that Garzón deliberately and knowingly overstepped his powers by pursuing an investigation into 114,000 people who disappeared during and after the 1936-1939 Spanish Civil War, and the subsequent dictatorship of General Francisco Franco, which ended in 1975.
Luciano Varela, a Supreme Court magistrate, ordered Garzón to stand trial on the basis of the allegations. Varela argued that Garzón proceeded with the inquiry despite being “aware of his lack of jurisdiction” under a 1977 amnesty for crimes committed during the Franco regime. The amnesty law pardoned politically motivated crimes committed during that period, and is part of the “pact of silence” which was implemented to ease Spain’s transition from a right-wing dictatorship to a democracy.
Garzón began looking into the disappearances in the summer of 2008, and ordered the Catholic Church and government ministries to provide him with information on the missing people. He reluctantly stepped away from the probe a few months later after a dispute over jurisdiction, and the investigations were transferred to lower courts.
Families of the victims have hailed Garzón as a hero, and many have begun to dig up the mass graves left behind by Franco’s death squads.
Garzón has argued that the amnesty has no force because the crimes committed during the war and the Franco regime were politically motivated crimes against humanity. He has also asserted that no statute of limitations exists where crimes against humanity are involved.
Garzón has earned a global reputation for his use of international human rights law against former South American military regimes, and is responsible for the 1998 arrest of former Chilean dictator August Pinochet in London. He is also the world’s leading practitioner of universal jurisdiction, which holds that in exceptional crimes – such as crimes against humanity – jurisdiction is not limited to the country where the crime was committed. During the course of the past year Spanish legislators have sought to curtail Garzón’s employment of the doctrine of universal jurisdiction.
British human rights lawyer, Geoffrey Robertson QC, told the Guardian:
“[Garzón’s] ruling that there can be no posthumous impunity for crimes against humanity is important to all descendants of the victims of such crimes worldwide, whether they be from the Armenian genocide or the Nazi holocaust . . . As a matter of international criminal law he was undoubtedly right.”
He added: “This is a trial of the integrity of Spain’s judges and of the reputation of Spanish jurists who will, if they find for the prosecution, be held in universal contempt by international lawyers.”
Carolyn Lamm, president of the American Bar Association, wrote in a public letter to Spain’s Attorney General:
“Numerous sources of international law suggest that amnesties for crimes against humanity are inconsistent with a State’s obligations to protect human rights, including the right of access to justice . . . It is difficult in light of these principles to view [Garzón’s] ruling as legally indefensible, or as warranting criminal prosecution.”
She added: “The big question is why the Supreme Court isn’t satisfied with simply annulling his decisions . . . Why do they have to treat him like a criminal?”
Garzón’s suspension from the National Court will prevent him from pursuing several high profile cases currently underway. If he is found guilty he could be removed from the bench for twelve to twenty years – effectively ending the fifty four year-old judge’s career.
For more information, please see:
BBC – Spanish judge Garzon face trial over Franco probe – 7 April 2010
Guardian – Crusading Spanish judge faces abuse of powers trial – 7 April 2010
EiTB – Spanish judge Garzon faces trial over abuse of power in war case – 7 April 2010
Time – In Spain, a Crusading Judge Faces a Trial of His Own – 7 April 2010