Truth & Reconciliation, Spanish Style

I’m just back from 9 days in Madrid — my first visit, and it was great.  Of course, while there I couldn’t ignore the international law-related story of the day.  Judge Baltasar Garzón (of Pinochet, al Qaeda, and Eta fame) is at it again.  This time he’s agreed to open a criminal investigation into thousands of disappearances and executions surrounding Spain’s half-century old civil war.  It is a move that has some significant political support; it comes on the heels of recent legislative efforts to offer symbolic reparations to Republican victims of Franco-era atrocities.  But Garzón has gone further —

The principal allegation is that Gen Franco, together with 34 senior aides, oversaw a systematic campaign to eliminate their left-wing opponents. Mr Garzon characterises this as a “crime against humanity”.  In an exhaustive 68-page edict, the judge refers to 114,000 alleged victims who “disappeared” over a 15-year period, following Gen Franco’s military uprising against the elected Second Republic government in July 1936.  Many are said to have been summarily executed during the brutal civil war, which Franco’s Nationalist forces won in March 1939; others were murdered later, as the general consolidated his power . . . The most immediate effect of Mr Garzon’s dramatic intervention will be the opening of 19 mass graves, believed to contain the remains of missing victims.  Such excavations are not new in Spain, but until now they have been organised on an ad hoc basis, by relatives of the dead and volunteer archaeologiests.

Garzón’s inquiry has generated a firestorm of controversy in Spain, threatening the “pact of forgetting” that formed a pillar of the transition to democracy after Franco’s 1975 death.  On Monday, Javier Zaragoza, the National Court’s chief prosecutor, appealed Garzón’s move, arguing that it is barred by a 1977 amnesty law passed to help Spaniards put the war behind them.  Garzón, however, relies in part on the crimes against humanity charge to claim that no amnesty law can override the search for justice in such cases. 

I suspect that Spanish law will ultimately dictate how this case gets resolved (whether through some interpretation of the existing 1977 amensty law or through the application of a newly enacted law ala Chile and Pinochet).  But looking at it from an international perspective, a few interesting questions loom. 

First, does it matter at all that so many of the alleged atrocities occurred pre-World War II, and thus before the Nuremberg Declaration’s definition of a crime against humanity?  Or, did Nuremberg’s own willingness to apply these definitions to earlier acts overcome any ex-post-facto arguments?  I’d be interested in hearing how others more expert on international criminal law (Hi Kevin!) perceive this issue.

Second, if these were crimes against humanity, does that open up other non-Spanish avenues for those seeking justice?  For example, could victims (the few still alive or, more likely, their families) seek relief under the Alien Tort Claims Act?  If one follows a Filartiga approach, they might (assuming there are still living perpetrators to chase and sue).  But more recent cases, such as my own experience working on behalf of the Comfort Women, suggest a countervailing pattern of protecting reliance interests when an issue is already regarded as settled such that U.S courts will characterize the issue as a nonjusticiable political question or invoke some other bases for exercising judicial caution.

Finally, there’s the missing middle-ground.  Garzón is seeking to replace the status quo of amnesty with a judicial mechanism.  In the process, more intermediate positions may be overlooked–i.e., a truth and reconciliation commission.  Obviously the truth and reconciliation model has its own critics, and, even Chile–which once served as the paradigmatic model for this method–opted more recently for a judicial model instead.  But, I’m not sure the Chilean analogue is as apt as it might first appear, despite Judge Garzón playing a starring role in both cases.  In Chile, the courts took on a specific, then-living defendant, and made their move only after the truth and reconciliation process had been long played out.  In Spain, however, the move is straight from total amnesty to criminal prosecution.  Moreover, Franco and most (but not all) of the defendants are now dead, raising the question of what point the prosecution is meant to serve–is this meant to be punitive, remedial, or somehow reconciling Spain’s present modern democracy with its more autocratic past?

Now, I’m not saying that a truth and reconciliation approach would be a normatively better path than Garzón’s–I simply don’t know enough about the Spanish civil war or its consequences to make a judgement one way or another.  But if the Spanish are going to reopen these old wounds–and recent events suggest that they are–might they not want to think more comprehensively about all the available models for doing so, and then choose the one that best fits the circumstances?