Baltasar Garzón to be Tried for ‘Knowingly Overreaching’ his Jurisdiction Through Investigation of Franco-Era Disappearances

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

Nato Admits to Killings of Civilians in Afghanistan

By Alok Bhatt
Impunity Watch Reporter, Asia

GARDEZ, Afghanistan – Nato forces have once again caused the deaths of Afghan civilians through indiscriminate use of military force.  There have been numerous instances of inadvertent killings of civilians by Nato forces.  Unintentional violence against innocent non-combatants have claimed the lives of men, women, children, creating much friction between the Aghan nationals and Nato forces.

One of the most recent controversies stems from an incident occurring in February.  Nato forces executing a raid operation entered the residence of a civilian family, under the impression that an armed combatant had entered the home.  Upon entering the home, the Nato forces encountered two armed men.  The Nato foroces proceeded to shoot down the two armed men, but their fire also took the likes of three women.  It was only later that Nato confirmed that the two men shot down were not Taliban fighters, but merely civilians who took up arms to protect their family against the reasonably perceived threat of Nato forces.  Furthermore, the Nato forces who examined the civilian residence after the discharge of gunfire initially claimed that the women in the home were dead when they got inside, gagged and bound on the floor.  This was later discovered to be not true, as the women were bound in preparation for their burial.

Also, it has been reported that Nato admitted to its killings after a claim was made that soldiers had been removing bullets from bodies to obscure the truth of the matter.  Successful deception may also have the effect of distorting civilian death count.

The case of the bound women highlights the issue of accuracy in civilian death counts.  The UN has reported a respectable decrease in civilian casualties for the year 2009/  However, if it is possible that misconceptions of the circumstances surrounding civilian deaths can be accepted as true for an extended period of time, it seems equally possible that the statistics concerning civilian deaths may be skewed.

In another instance of the battles of Nato forces perpetrating violence against civilians, two children were killed and tow more wounded in an eastern region of Afghanistan.  The unreasonable risks to civilians caused by flare-ups between Nato forces and Taliban fighters compelled Nato to place prohibitions on night-raids to reduce harm to civilians.  However, if misconceptions and deception concerning civilian deaths persist, the breadth and possibly excessive breadth of civilian casualties may never be truthfully known.

For more information, please see:

Al-Jazeera – Nato admits Afghan civilian resources – 05 April 2010

BBC – Nato investigates new Afghan civilian deaths – 06 April 2010

Christian Science Monitor – Afghan war: Nato under fire… – 05 April 2010

3 UN Workers Killed in DRC Clashes

By Jared Kleinman

Impunity Watch Reporter, Africa Desk

KINSHASA, Congo — Three United Nations workers died during clashes between the Congolese military and a militia earlier this week, the U.N. said Tuesday.

Heavily armed rebels attacked the town of Mbandaka and overran the airport, UN officials said. Fighting between the U.N.-backed military and Enyele militiamen in northern Congo began Sunday and continued into Monday.

During the two days of clashes in northern Congo, a South African pilot and a U.N. peacekeeper from Ghana were killed. The U.N. said one of its subcontractors also died Sunday of a heart attack during the fighting. Several civilians were also killed in the attack. Dr. Alexis Isanzola told The Associated Press Tuesday that 26 corpses have been received at the local mortuary in Mbandaka since Sunday.

Col. Makengo, commander of the Congo army in northern Bandaka, told The Associated Press that the army re-seized the airport on Monday with the backing of the U.N. Mission in Congo after militia took it over Sunday. He said the army would continue pursuing the militia.

The Congolese army started battling Enyele militiamen in November after fighting started between the Enyele and Munzale tribesmen. The two rival ethnic groups have reportedly been fighting for local fishing rights. The local dispute is entirely separate from the fighting between numerous armed groups in eastern DR Congo, which has drawn the world’s biggest peacekeeping operation to the country.

Mbandaka is the capital of Equateur province, where at least 100 people were killed in clashes between the Lobala and Boba communities last year, displacing an estimated 200,000 people. Between 30 and 100 fighters were believed to have been part of the latest attack.

The UN is currently in talks with DR Congo officials on withdrawing its 20,500-strong peacekeeping mission, MONUC. The mission’s current mandate expires in May. UN officials say that this new fighting might put such a withdrawal in question.

For more information, please see:

AP – UN: 3 UN Personnel Killed in North Congo clashes – 6 April 2010

Rocketnews – UN Workers Killed in DR Congo Raid – 4 April, 2010

BBC – DR Congo Attack Kills Two UN Workers – 4 April 2010

 

 

Update: Rescuers in China save 115 Miners

By M.E. Dodge
Impunity Watch Reporter, Asia

BEIJING, China – Reports and news generated almost immediately after China’s latest mining accident in Wangjialing mine,  located in northern China, grossly wrote off the lives of those trapped. However, after more than 190 hours of continuous hard work and rescue efforts, the operation to save the trapped minders proved fruitful. Approximately 115 of the 153 miners trapped have been removed from the mine.

 Photograph of rescue efforts at Wangjialing mine. Image courtesy of The New York Times.

News stories and captions read, that “from the start, China’s latest coal mine disaster likely to end as so many others: a failed rescue effort, grieving relatives, few if any survivors.”  But, on Friday, 2 April, rescuers became hopeful after hearing faint tapping noises even after lost miners had been missing for five days. After hearing signs of life, about 3,000 rescuers worked nonstop to pump water out of the Wangjialing mine. Government officials who investigated the site announced that the mine flooded after workers dug tunnels and caused an old shaft to break and fill with water.  

In an unofficial release of information, sources indicate that even days before the mine flooded, managers ignored water leaks that indicated trouble and danger. According to preliminary findings by the State Administration of Work Safety, miners had been ordered to step up the pace of construction to meet an October deadline to begin production at the mine, the agency said.

Survivors said they had strapped themselves to shaft walls with their belts to avoid drowning. Some claimed to have clung to the sides of the mine for days, and then when a mine cart floated by clung onto it for relief. Others said they ate bark from the pine pillars used to construct the mine. The rescue team’s chief medical officer told reporters that the survivors were weak, severely dehydrated, and suffering from hypothermia and skin infections. Some were in shock, though none were reported to be in critical condition.

Luo Lin, head of the State Administration of Work Safety, commented, “These trapped people have made it through eight days and eight nights — this is the miracle of life.” She went on to say that “[The] rescue plan has been effective. This is a miracle in China’s search and rescue history.”

Even though the Chinese government has managed to significantly reduce the death rate at coal mines since 2002, the country’s safety record still remains among the world’s worst. If rescue efforts at Wangjialing mine failed, this would have been China’s deadliest mining accident in more than two years. 

For more information, please see:

People’s Daily – What survived from Wangjialing Mine disaster? – 7 April 2010

Today – Search continues for 31 still trapped in northern China coal mine – 7 April, 2010

New York Times – With Hope Dwindling, 115 Chinese Miners Are Saved – 7 April 2010

“COURTING” LEGITIMACY: Democratic Agency and the Justiciability of Economic and Social Rights

By Deval Desai
Courtesy of The Council for American Students in International Negotiations

The potential of Economic and Social Rights (ESR) as a tool to ensure the inherent dignity of all has been, to use a popular phrase, “detained for questioning.” Over the last sixty years, debate has centered on arguments denying the justiciability and judicial enforcement of Economic and Social Rights. However, the former UN High Commissioner on Human Rights, Louise Arbour, recently stated that “[i]t is now widely recognized that there is nothing inherently non-justiciable about economic, social and cultural rights.” The enactment of an Optional Protocol on Economic, Social and Cultural Rights, detailing an international “communications procedure” for violations of ESR supports Ms. Arbour’s contention. However, scholars, nation-states, and courts themselves still argue against the idea that ESR are justiciable rights capable of being adjudicated by courts. Even where objections to ESR’s justiciability are overcome, arguments are still made in favor of limiting the scope of judicial oversight, oft times by the courts themselves.

In this paper I reconsider scholarly approaches to justiciability. The language of legitimacy is miscast. The idea that the (nominally) elected government only, and not the courts, has the absolute and exclusive legitimacy to decide on questions of resource allocation is a sham: the worse off a polity, the less democratic agency its citizens exercise. The already delegitimated character of poor governments justifies judicial intervention in distributive questions in democratic terms as an exercise of the will of the people to serve the common good. Traditional arguments against the justiciability of ESR are based in a concept of democratic deficit; traditional arguments in favor of ESR are made in terms of a comparative analysis to civil and political rights (CPR). This is based in the concept of the indivisibility of rights, making such comparisons appealing. However, that conceptual framework cannot be applied in an effective manner to countries where there is insufficient democratic agency for meaningful democracy, whether due to poverty, mismanagement, or corruption.

In this paper I use the democratic legitimation argument to support judicial intervention and engage with the democratic deficit problem itself. Part I of the paper will sketch out the recent arguments for and against the justiciability of ESR from the point of view of scholars, governments, and courts. Parts II and III will examine the question of legitimacy of governments and courts to deal with this issue and argue that, if breaches of ESR affect polities’ ability effectively to participate in elections, a government’s legitimacy must be questioned. Part IV will look at the implications of this on governments, NGOs, and judiciaries, and argue that, this being the case, it is inappropriate to exclude the judiciary from a role in ESR enforcement (in the wide sense of the word), and, further, that they should have a positive role. Part V will conclude that, given the calculus of contrasted legitimacy between government and judiciary, this argument has implications for both poor countries and rich countries with a substantial poor population.

To read the complete article, please see:

Deval Desai, “Courting” Legitimacy: Democratic Agency and the Justiciability of Economic and Social Rights.

The Interdisciplinary Journal of Human Rights Law (IJHRL) is a peer-reviewed, scholarly journal designed to address international human rights issues more broadly. The first volume of the IJHRL was ranked #8 among top international law reviews on ExpressO rankings. The journal explores political, philosophical, and legal questions related to international human rights from diverse perspectives. It strives to create a more thoughtful polity better able to make informed choices about ethical foreign policymaking.