Spain is a fairly young democracy and in this respect it has more in common with its Latin American cousins than with most of its European neighbors. General Francisco Franco, self-proclaimed as El Caudillo, ruled as dictator for 36 long years following the 1936 to 1939 Spanish Civil War, which he initiated with the support of Nazi Germany and Mussolini’s Italy in order to overthrow the nascent republic that had been declared in 1931. When he died on 20th November 1975, he left his authoritarian regime in the hands of Juan Carlos I, grandson of Alfonso XIII, Spain’s former King.
That isn’t all he left behind.
According to Spanish jurist Baltasar Garzón, a former judge who famously requested the arrest of Chile’s Augusto Pinochet in London in 1998 and was responsible for investigating some of Spain’s most serious crimes, the repression unleashed by Franco caused the death of a reported 114,000 people, with other sources claiming the figure is closer to 200,000.
Franco left behind him a country scarred by the atrocities he committed over four decades. Like Videla in Argentina, he left thousands of family members in the dark, uncertain of what had happened to their loved ones. However, until now, it is only with the help of volunteers from organisations such as the Association for the Recovery of Historical Memory that victims of Franco’s regime have been exhumed from the mass graves.
Against Franco’s will and to the great displeasure of the Falangists (Franco’s fascist following), the newly crowned King of Spain led a remarkably smooth transition to democracy by making unexpected reforms and urging the revival of political parties. As has been the case in many Latin American countries making the transition from dictatorship to democracy, Spain passed an amnesty law in 1977, to turn over a new leaf and move on from the country’s fresh haunting nationalist memory.
(Yet forty years on, streets of Spain are still named after the Caudillo’s allies.)
What is an amnesty law?
An amnesty law shouldn’t be confused with “pardoning”, which implies the forgiveness of someone who has already been condemned. Instead, it retroactively exempts a certain group of people with political power – paramilitary, military or government officials – from prosecution for the criminal actions they committed during a conflict, war or revolution. It is not about literally forgetting, nor is it about forgiving and forgetting. Rather, it is about putting the fresh memory of horrific actions committed by all – the Republicans also carried out inhumane acts – to the side, in order to focus on building a foundation of logic and peace to construct a more positive future.
In this case, the law covers any egregious acts carried out by “authorities, civil servants and agents of public order” during Franco’s political repression. However, unlike Argentina which has since repealed its law and now tries suspected war criminals, Spain’s amnesty law still prevails, forty years after the storm calmed and the smooth transition succeeded. This dismissal of human rights and continued protection of Franco’s henchmen is highlighted by Garzón’s 2008 attempt to shed light on Spain’s war crimes which resulted in him being put on trial by the supreme court for “abuse of power” and for breaking the 1977 amnesty law.
Dr Ramon Pacheco Pardo, a Senior Professor in International Relations at King’s College London, told The Bubble that this pact of forgetting “eased the rapid transition to democracy since both Left and Right would have probably spent an important part of their time and energies in dealing with the real and alleged crimes committed during the Civil War and the dictatorship.” But in doing so, the amnesty law has turned Spain into a model of impunity, whereby violators of human rights escaped punishment for their repressive and atrocious crimes, thus denying justice to the victims in their long quest for truth; in the name of a peaceful transition to democracy. Drastic times call for drastic measures, no doubt. But many aren’t and never will be ready to forget.
So how does Argentina come into play?
Although former Spanish socialist Prime Minister Jose Luis Rodríguez Zapatero, whose grandfather was shot by Francoists, passed the “Ley de la Memoria” in 2007 which stipulates state help in identifying and exhuming Franco’s victims buried in mass graves, no Spanish institutional action has taken place. This lack of action on behalf of the government and its courts is further put into perspective by United Nations resolutions, which insist that Spain searches for those who disappeared during the civil war and the dictatorship. Despite these, still, Spain has done nothing to punish crimes against humanity. Talk about adding insult to injury.
Cue in the law of International Jurisdiction and Judge Maria Servini de Cubría.
In a parallel to Baltazar Garzón’s successful prosecution of Adolfo Scilingo in 2005 – the Argentine navy captain who threw left-wing political prisoners from planes during the “Dirty War” – in 2010, Argentine Judge Servini signed a petition asking Spain to declare whether or not it was investigating “the existence of a systematic, widespread and deliberate plan designed to terrorise the Spaniards who supported representative government via their physical elimination, and of a plan of legalized disappearance of children whose identities were changed.”
Servini was pushed by Spanish human rights campaigners, Spanish Civil War victims who fled to Argentina and the families of those who were killed or disappeared; all who turned to the Argentine court system a couple of years ago, claiming that Spanish jurists could not try the crimes because Spanish courts were closed to them, as exemplified by Garzón.
The basis for this cross-border judicial involvement is enabled by the principle of universal jurisdiction, a doctrine which allows courts to investigate crimes against humanity occurring in third countries.
Due to the absence of a truth commission – like the one formed in South Africa following the apartheid – Servini requested that the Spanish government provide her with:
- The names and addresses of ministers and security force leaders active from 1936 to 1977 who are still alive and for these to be extradited.
- The names of Falangists members.
- The list of companies who made profit from the dictatorship or benefited from forced labour, such as Endosa, Fenosa, Acciona, and the Church (bearing in mind Franco pursued a policy of autarky AKA total economic independence; Spain was closed off from trading with both the Western and Eastern Bloc due to the UN economic embargo.)
- The list of babies, estimated by lawyers to be up to 300,000, who were stolen from politically opposed (republicans) or “disfavoured” families and then trafficked by nuns, priests and doctors and sold in illegal profit-making adoptions.
- All other reported disappearances during the dictatorship; and if dead, proof of the death certificate.
Spain’s response to Servini’s requests has been thus far uncooperative and shameful and as confirmed by Pacheco Pardo, “undermines the Ley de Memoria Historica.”
Despite pleas by Interpol, major human rights group and organizations such as Coordinada Estatal de Apoyo a la Querella Argentina (CeAQUA) for the Spanish government to let Servini question suspects in Buenos Aires, Prime Minister Mariano Rajoy’s conservative government only detained two suspected criminals and gave them the disproportionately lax punishment of “brief passport revocation”.
At the end of last year however, following a tough fight, Buenos Aires’ court successfully gave the go ahead to ninety year old campaigner, Asención Mendieta, to exhume her late father, shot dead amid reprisals by Franco’s firing squad in 1939. His body is believed to be buried in a mass grave northeast of Madrid in the province of Guadalajara. Mendieta flew to Buenos Aires a couple of years ago only to be denied the right to search for her father’s remains by the Spanish ruling despite the backing of Argentine courts to carry out DNA tests. But in November 2015, a change of heart from a second Spanish judge saw Mendieta’s lifelong wish come true.
Last month volunteers dug up the remains of 22 victims of Franco’s dictatorship, including Mendieta’s father.
Building Franco-related legal cases in Spain has proved unfeasible but this example of successful international jurisdiction with the persistence of Argentine lawyers could be the revival of the 2004 Socialist government’s attempt to bring to light its dark past, kept at bay for so long. Spain, you investigate crimes committed by other dictatorships but refuse to look at the those carried out on your soils. The ball is in your court.