Tribute to Baltasar Garzón

August 31, 2010
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As Judge Baltasar Garzón faces a backlash that may cost him his position in Spain’s judiciary, ALBA invited María Blanco to give the keynote talk at the annual reunion of the Bay Area veterans and friends of the Abraham Lincoln Brigade in Berkeley, California, on May 30, 2010. What follows is the full text of her speech.

María Blanco. Photo Richard Bermack

I want to say that I am extremely moved by the invitation to speak today. While I speak frequently at political and public events, this is the first time that I have spoken about the Spanish Civil War. My connection to the war has been personal rather than public. I was born in Mexico, the daughter of a Spanish civil war refugee who arrived in Mexico at age 12 with his parents, who left on the last ship to cross the Atlantic before the outbreak of World War II.

It is not much of an exaggeration to say that I knew of the Abraham Lincoln Brigades probably before the age of 10. I also knew about the Thalmann Brigade, and our family road trips in Mexico, the U.S., and much later Spain, were always to the accompaniment of the Spanish Civil War songs, which all of us knew by heart. I grew up surrounded by Spanish refugees: grandparents, uncles and aunts, family friends who fluctuated between silence about the war and the events leading up to the war and those who relived and refought the war in their extended Sunday “sobremesas” or “after meal” conversations.

So when Peter Carroll asked me a few months ago to pay tribute to Judge Baltasar Garzón at this year’s Bay Area ALBA event, I thought this would be a wonderful and straightforward thing to do. As a civil rights lawyer, I was familiar with Garzón’s important work to hold accountable Latin American dictators and military officials for the murder and torture of thousands of leftists and democrats under international law. More relevant to ALBA, Garzón had opened a groundbreaking investigation in Spain into the disappearance of over 100,000 victims of Franco during the civil war and the long dictatorship. His investigation included the exhumation of mass graves, including one believed to contain the remains of the poet Garcia Lorca.

María Blanco. Photo Jeannette Ferrary

Shortly after agreeing to speak, however, the news arrived that Garzón had been indicted for abusing his judicial authority by opening this investigation and that he was facing suspension by the Supreme Court of Spain. This homage to Garzón quickly became an attempt to analyze what was happening to him in the context of Spain’s struggle to face its long hidden and officially falsified history.

I think it’s helpful to review Garzón’s work and his cases in order to understand the current indictment against him and what it means for Spain.

Beginning in 1996, in close collaboration with Chilean and Argentine NGOs in Spain that represented the victims of those dictatorships, Garzón, a magistrate of Spain’s national criminal court, used Spain’s Universal Jurisdiction law to indict the former Chilean dictator Augusto Pinochet and various Argentine military officials who had been the architects and executioners of Argentina’s Dirty War from 1975 to 1983. Spanish Universal Jurisdiction law, enacted in 1985, allows for the prosecution in Spain of persons residing anywhere who have violated international law by committing crimes against humanity, which include genocide, torture, kidnapping and terrorism.

Under Garzón’s interpretation of Spain’s law of universal jurisdiction (and the interpretation of other Spanish judges and legislators at the time), crimes against humanity that occur outside of Spain can be prosecuted in Spain, even if the crimes occurred before Spain’s law went into effect in 1985, and even if the victims or perpetrators are not Spanish. Based on this interpretation, Garzón issued an international arrest warrant in 1998 for Pinochet and sought his extradition to Spain for international crimes of genocide, murder and torture.

At the heart of the indictment were the deaths and disappearances of Argentines, Chileans, Spaniards and others during Pinochet’s dictatorship, in particular during Chile’s infamous Operation Condor. Initially, Garzón sought the indictments because of the murder of Spanish citizens by the Pinochet dictatorship, but later he broadened his jurisdiction on the basis of crimes against humanity regardless of the nationality of the victims. As many of us recall, based on that arrest warrant, Pinochet was detained in London and placed under house arrest for 17 months. Eventually, after much political soul searching and under international scrutiny, England refused to extradite Pinochet to Spain and he returned to Chile, where his senatorial immunity was eventually lifted and he was indicted for murder, torture, and kidnapping.

Even before the Pinochet indictment, Garzón had indicted the Argentine naval officer Adolfo Scilingo for genocide, 30 counts of murder, and 286 of torture. The murder charges against Scilingo related to 30 prisoners, Argentine and foreign, thrown out of government jets during the Dirty War against the left. Unlike Pinochet, Scilingo was tried and convicted in Spain and sentenced to over 1000 years in Spanish prison for crimes against humanity.

Garzón’s indictments of Pinochet and Scilingo were significant beyond the application of international law. Of equal importance was the fact that he went after Pinochet and Scilingo despite the fact that at the time, both countries had amnesty laws that provided total immunity for crimes committed by the military and the supporters of those dictatorships. In essence, by indicting Pinochet and Scilingo under international law, Garzón took the legal and moral position that international law that prohibited crimes against humanity trumped national amnesty laws. Additionally he argued that amnesty should only apply to situations where a person is convicted or acquitted and then granted a pardon or amnesty.

To say that Garzón’s prosecutions and indictments were extremely controversial is an understatement. They were controversial internationally, in Spain, and even in democratic political circles. In Spain and abroad, the legal criticism of Garzón’s indictment was due to concern over the enforcement of international law by criminal courts outside of the International Courts established precisely for the purpose of adjudicating international law. The criticism was particularly pointed because the indictments were not limited to crimes against Spanish victims, where there might be grounds for bringing someone to justice under international law in Spain. In the face of this criticism it is important to point out that this is exactly what Spain’s law of Universal Jurisdiction spelled out and allowed for—it was only last year, in 2009, that the Spanish Parliament amended the law of National Jurisdiction to limit it to cases that involve Spanish citizens or have a strong nexus to Spain.

The political criticism of Garzón’s cases was of a different nature. While there was much relief and cheering over the fact that the Latin American architects of death and torture were finally being held accountable, there was concern that the overriding of amnesty laws could have the unintended consequence of eliminating a political tool often necessary for difficult transitions to democracy.…

It is against this background that we need to understand what Baltasar Garzón has been accused of in Spain and what has led to his suspension from his judicial duties.

After years of pursuing war criminals and dictators abroad (and the Basque terrorist organization ETA in Spain), in October 2008 Garzón opened an inquiry into the disappearance of approximately 113,000 victims of Francoist repression. He also ordered the exhumation of 19 unmarked mass graves. Such graves dating from the Civil War are spread across Spain. While it is believed that most of the Francoist dead were recovered during the Franco dictatorship, the same is not true for Franco’s victims. For over 70 years, thousands of Republican families have been in the dark about the fate of their loved ones. The lucky ones were those who knew of their deaths in the battlefields or at official executions. The rest were silenced and kept in the dark through the long years of the fascist regime—often living side by side with suspected accomplices in the murder of their relatives and unable to investigate a part of history that officially did not exist.

As part of his 2008 inquiry, Garzón asked the government archives, the Roman Catholic Church, the keepers of Franco’s tomb and the governments of several cities, including Madrid, Granada, Cordoba and Seville, to turn over documentation related to mass graves from the Civil War and the subsequent dictatorship. He asked for the victims’ names, dates and circumstances surrounding their death. As noted by Emilio Silva, founder of the Spanish Association for the Recovery of Historical Memory, this was the first time Spanish authorities had done something like this, and Silva expressed the hope that it could be the first step toward a Truth Commission in Spain.

Because Garzón is now accused of abuse of judicial power, it is very important to underscore that Garzón’s inquiry did not occur in a legal or political vacuum–his investigation is part of a larger movement in Spain to condemn its fascist past and face its history. In 2007, Spain’s Parliament passed the Law of Historical Memory. Among other things, the law does the following:

It condemns the Francoist regime.

It prohibits political events at the Valley of the Fallen, Franco’s burial place.

It orders the removal of Francoist symbols from public buildings and spaces.

It promises state help in the tracing, identification and eventual exhumation of victims of Francoist repression whose corpses are still missing, often buried in mass graves.

It grants Spanish nationality to surviving members of the International Brigades, without requiring them to renounce their own nationalities.

It temporarily changes Spanish nationality law, granting the right of return and citizenship to those who left Spain under Franco for political or economic reasons, and their descendants.

It calls for the provision of aid to the victims and descendants of victims of the Civil War and the Francoist regime.

At the time Garzón initiated his investigation, 1,200 petitions had already been filed at the High Court for information on those who “disappeared” between 1936 and 1975 and approximately 120 mass graves had already been exhumed.

Despite the fact that the Law of Historical Memory acknowledged and promised help with the recovery of victims of the civil war, Garzón’s inquiry quickly drew opposition from different political quarters. The crux of the opposition lies in Spain’s 1977 Amnesty Law, which bars investigations and indictments for all political acts, whatever their outcome, including murder and mass executions that occurred during the civil war and up to December 1976. Very shortly after opening the probe, and in the face of mounting opposition, stating that he did not have legal jurisdiction to investigate due to the 1977 Amnesty law, Garzón suspended the disappearance probe and handed the issue of exhumations of mass graves to local authorities under the law of Historical Memory.

The suspension of the inquiry, however, did not end the opposition to Garzón’s investigation. In September 2009, a right wing fictitious union called Manos Limpias (Clean Hands) and the Spanish Falange, the Fascist organization that provided Franco’s shock ideology, filed a complaint in the Spanish Supreme Court calling for Garzón’s removal from his position for having abused his judicial authority by opening the mass disappearances inquiry in contravention of the Amnesty Law. In April, Spain’s Supreme Tribunal sustained the complaint. Garzón has now been suspended from his position pending a trial on charges of abuse of power.

Since the case was filed against Garzón, it has become emblematic of the crossroads at which Spain finds itself—both symbolically and concretely.

It is no coincidence that it is the Falange and the Manos Limpias group who filed the complaint. Their complaint is not really directed at Garzón’s inquiry (since it was already suspended) or his supposed interference with the Amnesty Law. Garzón’s investigation, or other investigations like it that might take place in the future, would undoubtedly reveal the names of high profile persons (dead and alive) who were complicit in the disappearances and murders. In reality, the complaint against Garzón is a heavy-handed attempt by the right wing and the remaining fascists in Spain to stop the Historical Memory movement; that is to say, it is an attempt to hold on to what up to now had been their complete revisionist control of Spanish history. And it is not as surprising as it seems at first glance that the Supreme Court upheld the complaint. Four members of this court are well known conservatives who climbed the legal ranks during Franco’s reign, when all lawyers, including these members of the Supreme Court, took an oath asserting (and I quote) “unconditional loyalty to the Caudillo, communion with the ideal of the ‘crusade’ (referring to the fascist National Movement), and adherence to the fundamental principles of the National Movement.” As with other institutions in today’s Spain, the Supreme Court is also divided over maintaining the silence or bringing Spain’s painful history out of the shadows.

Pandora’s box has been opened in Spain, and as always happens with Pandora’s box, some are attempting to close it, but I predict, unsuccessfully. Garzón may lose his judicial appointment, but the movement to tell the true history of fascism in Spain cannot be turned back. New and accurate history books will continue to be published, more and more graves will be exhumed, and finally, there will be a generation of Spaniards, and other generations that come after it, who know the truth: who will know how a democratic government was overthrown by military fascists who ruled by violence and repression for 40 years.

And it may turn out that Garzón’s insistence on the supremacy of international laws against genocide over blanket amnesties is making its way to Spain and will ultimately lead to a Truth Commission or at least a willingness to face history and name names. After all, if countries with former fascist regimes like Argentina, Chile and Paraguay could do so, why not Spain? The international movement for truth and accountability, which owes a large debt to Baltasar Garzón, is coming full circle to Spain. And while Garzón may not have a chance to implement it there, he surely had a historic role in its growth and acceptance.

Thank you, Baltasar Garzón.

María Blanco is currently executive director of the Chief Justice Earl Warren Institute on Race, Ethnicity & Diversity at the University of California, Berkeley.

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One Response to “ Tribute to Baltasar Garzón ”

  1. joseph fernandez on February 6, 2011 at 12:34 pm

    I had two uncles killed by communist thugs before the Spanish Civil war even started. Churches and convents were burned. My mom witnessed the murder and torcher of priests and church going people. Are these crimes being investigated? She came to the US in 1935.

    My parents took me to Spain first in 1954. I spent three years there .
    later returned in 1960 for the summer, then attended university of Oviedo where I met my wife. Since then we’ve made frequent trips to Spain and other European countries.

    During my stays in Spain I often commented about the one party government. No one ever arrested me. People left for Germany or Switzerland to earn more money and return to buy homes. Under the same “fascist” state. Spain was not like nazi Germany . I had the freedom to come and go ,never asked for “papers” and had the time of my life as a kid and young man in the fifties ,sixties and seventies.

    A dictatorship is not the way to go. Franco should have turned over the government to the monarchy and democracy sooner. The main thing he did not let the soviet union a foot in the door.The republic was communist. Hitler was turned away at the French border.He said he would rather have his teeth pulled than talk again with Franco.

    In New York, my parents were insulted for going to Mass on Sunday by communist Spaniards recently arrived. They called my mom “fascitona”.
    My parents were not fascists. They were just hard working people who in a space of about six years had managed to have a five story brownstone fully paid for. Success and Catholic, you have to be a “fascist”. Envy at work with anti capitalist passion.
    Maybe those Spaniards who hated religion and raised their clenched fists were not communsts,just “anti-Fascist”…

    Civil wars are the worst. May none of us see one again and may God bless us all of any opinion here.

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