No Comment — April 16, 2010, 4:24 pm

The Poet, the Judge, and the Falangists

Federico García Lorca, perhaps Spain’s greatest poet, died under murky circumstances on August 19, 1936. It’s assumed that his republican sentiments angered the Falangist (fascist) leaders then asserting their power across Spain in a great wave of terror, and they decided first to ban his poetry, and then to eliminate him. In 2008, a Spanish investigating judge, Baltasar Garzón, ordered a search of what was long assumed to be Garcia Lorca’s burial site in Alfacar. His avowed purpose was to identify the cause of death and launch an investigation into García Lorca’s murder. But no body could be found, and by pressing questions about the murder of García Lorca—and others—the judge stirred up a hornets’ nest. At the Guardian, Reed Brody explains:

Thirty-five years after the death of General Francisco Franco, Spain is finally prosecuting someone in connection with the crimes of his dictatorship, and of the Spanish civil war which came before it. Unfortunately, the defendant in the case is Baltasar Garzón, the judge who sought to investigate those crimes. Garzón, of course, is one of the most high-profile judges in the world and what makes the case particularly ironic is that he is being prosecuted for trying to apply at home the same principles he so successfully promoted internationally.

Garzón’s daring 1998 indictment of the former Chilean dictator Augusto Pinochet for crimes committed in Chile in the 1970s triggered Pinochet’s arrest in London and ushered in the heyday of international justice. Many people contested the right of a judge in Spain, which had never come to grips with its own past, to open up wounds in foreign countries. But the Pinochet case inspired victims of abuse throughout Latin America to challenge transitions from dictatorship which allowed the perpetrators of atrocities to go unpunished. These temporary accommodations with the anciens regimes did not extinguish the thirst of victims and relatives to find out the truth and to bring their tormentors to justice. International and national courts ruled that amnesties could not stand in the way of a state’s duty to investigate the worst international crimes. Justice is now part of just about every transition to democracy anywhere in the world.

Then in 2008, Garzón set his sights inwards. In the last several years, a growing movement has challenged the “pact of forgetting” which was part of Spain’s “model” transition to democracy, and the children and grandchildren of victims filed complaints regarding the enforced disappearances of more than 100,000 people between 1936 and 1952. Garzón took up the complaints, saying that under international law Spain’s 1977 amnesty law for “political acts” could not apply to crimes against humanity, before an appeals panel ruled 10 to five that Garzón did not properly have jurisdiction. Far-right groups, including one linked to Franco’s dictatorship, then accused Garzón of an abuse of power and an investigating judge has just decided to proceed against Garzón for knowingly taking on a case he knew not to be within his jurisdiction.

So Garzón’s decision to open investigations into crimes of the Franco era was assailed as a breach of the amnesty law, opening the way for criminal charges to be brought against him. Indeed, it is difficult to reconcile Garzón’s steps with the amnesty law. But the question goes to the validity of the grant of amnesty itself. Are such politically motivated grants of amnesty entitled to open-ended respect? That ultimately is the question that the court looking into the charges against Garzón must address. Garzón has much on his side on this issue, including the emerging international law against impunity for government officials who commit crimes against humanity and international agreements going back to the London Agreements of 1945 noting that attempts by government officials to insulate themselves from prosecution with domestic law notions of immunity will not be respected indefinitely. Argentina and Chile each dealt with former regimes that granted themselves immunity and ultimately effectively overturned these grants.

And now victims of Falangist terror are rushing to Garzón’s assistance. This report comes out of the AP in Buenos Aires:

Lawyers representing Argentine relatives of three Spaniards killed during the 1936-39 war will ask the federal courts here Wednesday to open an investigation, and hope to add many more cases in the months to come. Such cross-border human rights probes have long been the specialty of Spain’s crusading investigative judge Baltasar Garzon, whose case against Chilean Gen. Augusto Pinochet in 1998 helped lead to the undoing of amnesties that had protected Latin America’s dictators.

It may well turn out that Judge Garzón touched the third rail of Spanish politics by opening the door to investigation of the crimes of the Franco past. But his offense in the end can never be termed more than a political miscalculation. On the other hand, those wishing to gauge the influence of his investigations on the world have only to look on the other side of the world, to the Kyrgyz Republic. There a young prosecutor with whom I spoke yesterday told me that he was convinced he would succeed in bringing criminal charges against ousted former president Kurmanbek Bakiyev for ordering the use of lethal force against demonstrators that killed 84. What about Bakiyev’s immunity under the Kyrgyz Constitution, I asked? “No immunity given a political figure is ever absolute,” he said. “We’ll find a way. Garzón has shown us how.”

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