Jan 25, 2012
A Crusader in Court: Baltazar Garzon on Trial in Madrid
Balthazar Garzon, the Spanish judge who served on Spain’s central criminal court and the Juzgado Central de Instrucción No. 5, which investigates the most important criminal cases in Spain, including terrorism, organised crime and money laundering, yesterday went on trial over accusations that he had abused his powers to investigate atrocities committed during the Spanish Civil War. (For a brief bio of Garzon, see here, for coverage of the case see here, here and here). Garzon will be familiar to many for his role in ordering the extradition of Chile’s former dictator Augusto Pinochet from Britain to face charges of human rights abuses. He has also pursued members of the former dictatorship in Argentina, indicted Osama bin Laden and probed abuses at the US prison for terrorism suspects at Guantánamo Bay in Cuba. Domestically, he spearheaded Spain’s fight against political corruption and against terrorism by ETA. The phrase “crusading judge” are thrown about quite lightly but it is clear that he meets the criteria.
At the root of controversy is the investigation that Mr Garzon began in 2008 into the disappearance of 114,000 people during Spain’s 1936-39 civil war and Franco’s subsequent dictatorship. It was the first to look into crimes under international law during the Spanish Civil War and the early years of Franco’s rule. In May 2010, Spain’s General Judicial Committee suspended Garzón after the Supreme Court accused him of wilfully breaking a 1977 amnesty law. The high-profile 56-year-old is charged with exceeding his powers on the grounds that the alleged crimes were covered by an amnesty agreed in 1977 as Spain moved towards democracy two years after Franco’s death. It is understood that if convicted, he would not go to prison but could be suspended from the legal profession for up to 20 years, putting an end to his career. Garzon argues the acts were crimes against humanity and therefore not subject to the amnesty which was agreed to by Spain’s main political parties. A number of human rights organisations, including Amnesty International and Human Rights Watch, have criticised the trial. Amnesty International has called the proceeding against the judge “a threat to human rights and judicial independence.”
The outrage on the part of the INGO community is predictable given their persistent reluctance to distinguish between democratic amnesties in the likes of Uruguay and Spain and those built around limited criminal sanctions or truth commissions, on the one hand, and self-amnesty by the likes of Pinochet on the other. In 1977, the first democratic government elected after Franco’s death passed the Law 46/1977, of amnesty, which exempted of responsibility to everyone who committed any offence for political reasons prior to this date. This law allowed not just the commutation of sentences of those accused to attack the dictatorship, it secured that those crimes committed during the Francoism would not be prosecuted. The amnesty was widely welcomed at the time as a means of securing the transition. The risk from revanchist forces was made apparent with Antonio Tejero’s attempted coup on 23 February 1981. While Pedro Nikken of the IJC argues Garzón had been right to ignore Spain’s own 1977 amnesty law when investigating Francoist repression on the basis that “[i]nternational human rights law comes into play when national laws do not provide enough protection”, this present-day interpretation of the law is somewhat anachronistic – the amnesty law was passed to ensure there would be no more victims of human rights abuses in Spain, not to deliberately short-change those already present.
There is widespread dispute as to whether amnesty was permissible for crimes against humanity in 1977, but even assuming it was, the Garzon case illustrates the tension between ‘hard’ international law obligations to prosecute certain crimes, and the utility of amnesty to ‘political objectives of national reconciliation. Thirty five years later, many of the rationales for criminal punishment which once can employ to counter the national interest in stability have diminished. Retribution is surely impossible given the deaths of the most senior figures in the Franco regime have died. Social pedagogy and expressivism have diminished given the obvious national commitment to human rights and democracy, while the move is hardly calculated to promote reconciliation. Deterrence must be discounted as a justification (all it may deter are other leaders who wish to trade a comfortable retirement for the dismantling of abusive state structures), while it is hard to make a compelling argument about the utility of revealing the truth about the past when historians are amply suited to do so. What Garzon is left with are purely positivistic arguments with an unsteady basis in customary international law and a natural law argument on the intolerability of such abuses. In between is the realm of sober, democratic judgment where a more nuanced position might suggest the wisdom of letting sleeping dogs lie.
The matter is somewhat complicated by the fact that two other separate cases against Garzon for judicial misconduct are underway, one heard last week at the Supreme Court over illegal wiretapping in a corruption case and another over allegations that he shelved a tax lawsuit against Spain’s biggest bank Santander after receiving indirect payments from it for seminars he delivered in New York. It is to be hoped on the balance that Garzon succeeds in the trial, but the uniform hostility to negotiated transitions is dismaying. Many Syrians or Burmese in the present would gladly settle for Spain’s 1977 law – vigorous attempts to undo these admittedly sorded bargains from the safety of the future or a foreign country will do little to hasten the end authoritarian regimes. Garzon may yet get to put Francoism on trial – more than a dozen victims of Franco’s repression, or relatives of those who were killed, will give evidence.
A really good piece of writing Pádraig. Whatever the deserving outcome of the Garzon case and in light of Estevill v Spain, Spain it could be said lead the way in putting senior judges on trial for serious offenses. Closer to home we all think it an achievement if a Judge is made accountable for drink driving –while Prosecutorial misconduct cherishes a seemingly unwritten permanent amnesty –which may change, maybe?