More on the Upcoming Garzon Trial: Are Amnesties Illegal?

by Julian Ku

I don’t fully understand the nature of the legal charges against Spanish Judge Baltasar Garzon. It sounds like, from this Economist article, that he is being accused of some version of “prosecutorial” and “judicial” misconduct for refusing to follow the terms of Spain’s 1977 amnesty law preventing investigations into Franco-era crimes.  Garzon apparently held that there is a consensus that amnesties are illegal under international law and therefore could not bar his assertion of jurisdiction.  This seems like a  very sketchy legal holding, but I haven’t thought about this enough to opine with any certainty.  I am fairly confident that there is no consensus that such amnesties are illegal. But whether this is enough to find misconduct under Spanish law, I have no idea. Anyone out there with links to the relevant opinions?

http://opiniojuris.org/2010/04/09/more-on-the-upcoming-garzon-trial-are-amnesties-illegal/

12 Responses

  1. I’ve been studying amnesties for a little while now, and the direction things are going is to consider that amnesties for human rights violations are contrary to international law. That is at least the position of most human rights bodies (The Inter-american Court being, as usual, the most “progressive” in this respect). As for international criminal tribunals, the situation is more ambiguous, but generally they have tended to exclude them. The Statute of the ICC is silent on this and we’ll have to see how they consider amnesties in light of complementarity. At the national level, the argument against amnesties for most international crimes is based on the international treaty obligation (Torture Convention, Geneva, Genocide…) to prosecute.
    I personally feel that we are faced with a certain dose of wishful thinking in this field, especially in the Human Rights case law.
    I’m working on a draft on this topic, on the issue of fragmentation on the approach to amnesties. Comments welcome.

  2. William Burke-White wrote about the legality of amnesties in relation to human rights abuses back in 2000. The short answer, according to Burke-White, is that it depends on whether the amnesty was a blanket amnesty or a political amnesty. Blanket amnesties (those with one stroke of the pen forget any and all government crimes) are illegal under international law. A political amnesty on the other hand limit impunity for crimes that were political in nature. (Crimes of Genocide Grave Breaches of the Geneva Convention and Torture are inherently apolitical, unless a country has entered a reservation stating otherwise.)

    The decision to charge Garzon also raises some trouble for Spain’s laws regarding amnesties for human rights abuses. In the Pinochet, the National Audience claimed that the Chilean amnesty law did not prevent Spain from bringing charges against Pinochet because charges against Pinochet had never been brought so double jeopardy was not an issue and that the nature of the Chilean Amnesty law only prevented Chile, but not other countries, from prosecuting Pinochet. The effect of the Pinochet ruling on the Chilean amnesty and the current charges against Garzon is that Spain has (or had) the authority to hear cases against leaders who had been granted amnesty by their own country, but Spanish cases of human rights abuses were off-limits for Spanish courts. Hopefullhy I’m not the only person that sees a problem with this position.

  3. Response…
    Of course, domestic amnesties, pardons, imunities, and the like are of no legally binding effect in other countries or in international tribunals.  Moreover, the Human Rights Committee under the ICCPR and the CAT Committee under the CAT have added to the chorus that such are impermissible.  With respect to civil sanctions, see also http://ssrn.com/abstract=1458638
    JJ Paust

  4. Julian,

    In the first place, I would like to congratulate you on your excellent posts, and your success in identifying actual debates of international law.

    From what I have read (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=712621) amnesty laws are illegal under international law if they pardon crimes that have the status of jus cogens.

    Garzón investigated the crime of enforced disappearance of persons during the dictatorship of Francisco Franco. Therefore, the real question is if such crime has the status of jus cogens.

    Anyhow, apparently under international law there is no rule forbidding amnesty laws under domestic law, so the only way to investigate the crimes committed during the Franco era, is through an international tribunal or a national tribunal different from a Spanish one.

    I wrote yesterday about this in my blog (http://bit.ly/acJo4m), although in Spanish. However, maybe you can use a Google translator and see in depth my analysis.

  5. Garzon is now charged with “prevaricación” (id est, pronouncing deliberately wrongful decisions: I dont´t know whether it´s the same as prevarication”).
     
    I don´t know whether he will be finally convicted (I think It isn´t probable), but I sincerely think Garzon took the wrong way when he decided to begin proceedings about civil war crimes. Obviusly I´m not party in this proceeding, but I´ve made my own conclusions from news releases and court orders published:
     
    1.- it´s a well-known fact (“hecho notorio” in Spanish Law, that doesn´t need evidence) that Franco and his generals died years ago, and Spanish Law doesn´t let try deceased people; in spite of it, Garzón decided to begin a criminal prosecution and asked for death certificates of Franco and his ministers.
     
    2.- Even if there were any survivors, National Court wouldn´t be competent to try them, because it´s difficult (very difficult) to see genocide in civil war crimes. There were murders, of course, but there was no intent to eliminate a religious or non religious group (in fact, some catholic priests, generals and public servants were also shot along with members of communist party and masonry), an ethnic group (both killers and victims were spanish) or a politic group (I know this can be controversial, but neither the Nationalist Government nor Republican Government wanted to eliminate half the population: in 1945, for example, Government granted pardon to individuals who were responsible to crimes of rebellion before 1 april 1939, provided that they had not commited acts of cruelty that “any decent man finds repugnant”. you can see in http://www.boe.es/datos/pdfs/BOE/1945/293/A02430-02431.pdf ). In fact, Garzón didn´t mention genocide in his rulings, but he referred to  “crime against then in force” constitution (1931 Constitution) in connection with crimes of unlawful detentions in the context of crimes against mankind”. However It´s clear that there is no crime of unlawful detention 70 years after disappearance and itsn´t less clear that rebellion against government isn´t a crime against mankind.
     
    3.- Amnesty passed in 1977 isn´t comparable to amnesties in Chile, Argentina or Uruguay, not only because it was passed by a democratically elected Parliament(in fact, the same parliament that passed our current constituion), but also because it affected crimes committed in both sides: for example, Terrorists who murdered Almirant Luis Carrero Blanco (then “Prime Minister”) in 1973 were benefited by it. For those who understand Spanish, you can read in http://boe.es/boe/dias/1977/10/17/pdfs/A22765-22766.pdf
     
    Notwithstanding everithing, I don´t think Garzón to be convicted, because its rulings weren´t objectively unsustainable or indefensible (several judges and courts agreed with them), which is the necessary condition of “prevaricación”.
     
    But, whichever fate is waiting for Baltasar Garzón, I think the best way to reconciliation for our last Civil war is “Peace, Mercy and Forgiveness”, just as Manuel Azaña (President of Spanish Republic in 1936-1939) told in 1938, as “we all are sons of the same sun and tributary to the same stream”. My own granfathers were enemies during civil war, so I know what I´m talking about.

    Amnesty in 1977 wasn´t directed to give anybody impunity, but to look for reconciliation between Spaniards
     
    Juan José
     
    P.S.:
     
    Investigative Magistrate Luciano Varela (who has indicted Garzón) belongs to “Judges for democracy”, a judicial association self called “progressive” and very near to socialist party.

  6. Ops, I´ve to make one thing clear: when I said that there is no wrongful detention 70 years after disappearance I mean that it´s obvious that what really happened is a murder (victim isn´t detained, but he/she was killed).
    And murder is under amnesty passed in 1977.
    That´s what I wanted to write yesterday, but I wasn´t very subtle.
    Juan José

  7. is there any legal  problem for seeking unknow graves through Spain? No
    is there any problem for judging crimes in the spanish civil war or at the era of Franco?   Yes, Amnisty Law
    Does  Mr Garzón intention  of judging   crimes of the political  right only? yes
        Paracuellos was the main massacre in the spanish civil war? Yes , 2000 persons , according to the left were  slaughtered , 5000 according to the historians  of the political  right: children, women and old persons. The responsibles  of this tragical fact were without a doubt the  Communist Party and Mr. Carrillo, currently a deputy from 1977 to now, perfectly  well and alive . is there a trial regarding this crimes?NO
      is garzón worried about justice or achieving  political revenge?
      This is Spain my friends and most of you are very  ingenous

  8. The Inter-American Court of Human Rights (starting in the Barrios Altos v. Peru case) has held that amnesties are impermissible with regard to any grave human rights violation, which includes at least forced disappearances, extrajudicial executions and torture. 

  9. “The Inter-American Court of Human Rights (starting in the Barrios Altos v. Peru case) has held that amnesties are impermissible with regard to any grave human rights violation, which includes at least forced disappearances, extrajudicial executions and torture.”

    To paraphrase Stalin “How many policemen does the Inter-American Court have?”.
    It is one thing for the IAC to make pronouncements about what it thinks the world is, or should be, and quite another thing for a citizen (who happens to be a judge) of a sovereign nation, to renounce the laws he is supposed to be upholding and to take steps to apply the delusional standards of outsiders to an internal situation.
    Of course he is factually guilty of exceeding his jurisdiction (and his competence!). He took steps to initiate criminal proceedings against persons who were, by virtue of the Amnesty Law, deemed innocent of any crimes for which they might have been charged which crimes occurred prior to the effective date. For a judge to ignore the existence of the legislation is arrogance amounting to hubris, or stupidity requiring dismissal. His actions amount to, in effect, double jeopardy indictment. How stupid is that?

  10. If amnesties are “illegal” under “international law,” whatever that might be, then the only remedy is for the aggrieved State to file a diplomatic note with the offending State.  The right of a State to do so has no effect of any kind on the internal laws of Spain, which Garzon is alleged to have violated.

  11. “forced disappearances,” is that a term of art for presumed murder when the individual bodies cannot be found and identified? 

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