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In Spain, The Disappeared Still Await Justice

November 10, 2010

A Spanish Civil War Poster

Last April, a judge was indicted in Spain for opening an investigation into the fate of some 110,000 people who are alleged to have disappeared during the Spanish Civil War (1936-1939) or the subsequent Franco regime.  The Judge’s crime?  Allegedly, failing to honor the terms of a 1977 amnesty and, thereby, exceeding his jurisdiction.  Now, the justice system in Argentina appears poised to take over the investigation of Spain’s “desaparecidos.”

My concern here is not with Judge Garzon personally, but with the fate of both the investigation he commenced and, more generally, the rule of law.  His indictment and the discontinuance of the investigation n Spain raise far-reaching questions:

(1) whether the “rule of law” can survive if judges are stripped of their immunity; (2) whether legislators can deprive courts of jurisdiction over offenses that are recognized at international law; (3) whether laws conferring “amnesty” simply immunize someone against punishment, or also prevent an investigation into and declaration of their guilt; (4) whether domestic laws purporting to preclude investigations and proceedings- and, thereby, limit access to the courts- violate international law; and (5) whether such a law can ever preempt the law of nations?

I may comment on some of these issues in future blog posts.  Some have already been addressed by others.  At present, I simply leave you with a sad irony:  Recent Spanish legislation purports to reject the principle of “universal jurisdiction,” limiting proceedings in Spanish courts to those that implicate or impact Spanish citizens.  While such legislation might not appear unreasonable on its face, the Spanish court system has demonstrated why such a restriction is unreasonable in practice and the principle of universal jurisdiction exists:  because those in power where “crimes against humanity” are alleged to have been committed are often loathe to investigate them.  That generally means, as with the case in point, that the home forum won’t investigate.  The fact that it would clearly have the right to investigate- because one group of Spanish citizens is alleged to have disappeared at the hands of other Spanish citizens- is irrelevant.  In all likelihood, the investigation will not be permitted to proceed.

The problem thus reduces to this:  Unless “crimes against humanity” can be investigated abroad under the authority either of another state’s tribunals or an international court, in most instances they won’t be investigated at all.  From the standpoint of an ever-more dependent and integrated world, that result is unacceptable.

So, Spain has a choice.  Either it can investigate crimes against humanity that are alleged to have taken place on its own soil or it can let that responsibility devolve on others.  In this instance, that responsibility is likely to devolve on Argentina.  One of its courts has signaled a willingness in the past few days to step into the breach if necessary.  Isn’t that as it should be when Spain still hasn’t been able to exorcise its ghosts after seventy years and is even now unwilling to confront them?