39 years of impunity: Spain’s inability to deal with Franco’s ghosts
While summer is approaching Buenos Aires in November, the first signs of winter can be felt in Madrid’s streets. 10,000 kilometres is the distance separating Spain and Argentina, but it is also the distance that 30 victims of Franco’s dictatorship travelled last November seeking the justice that their home countries does not offer them. It has been 39 years of impunity.
By Adriana Díaz Martín-Zamorano
The Spanish judge Baltasar Garzón under the principle of universal jurisdiction opened the possibility to judge Argentinian officials in Spain for the crimes committed during the 1976-1983 Argentinian dictatorship, but it is now the Argentinian judge María Servini de Cubría who, under the same principle, is investigating the crimes carried out during Franco’s dictatorship.
Fausto Canales, Emilio Silva or Merçona Puig Antich are just some of the names of the around 30 victims of Francoist crimes who travelled last autumn from Madrid to Buenos Aires for their voices to be heard. There, in Argentina, is where the only proceedings against Franco’s genocide are still on. Servini de Cubría is investigating approximately 300 cases that exemplify around 114,000 enforced disappearances as well as 30,000 stolen babies during Spanish’s dictatorship between 1939 and 1975, as accounted in 2008 Garzón’s judicial decree. “Delivering justice would be that a judge says that my dad was unfairly murdered, it would erase the stain that a lot of us have inside ourselves when people used to say ‘They have probably done something bad’”, claims Fausto Canales in an interview to El País. Fausto’s dad was dragged out of bed by Francoist forces during the night in 1936 and never came back.
Though almost 40 years have passed by since Franco’s death and Spain is now considered to be a modern democratic country, it seems that it has not been able to deal with the ghosts of its past yet. Spain is the second country in the world with the highest amount of involuntary disappearances in mass graves whose remains have not been recovered nor identified, only after Cambodia. After decades, their families have assumed that their fate will probably remain unknown, yet the people have not vanished. Most of them were concealed in mass graves and their remains are still under ground. In spite of international criticism of Spain’s lack of accountability, the perpetrators have not been judged, the victims have had very little recognition and no money is invested in reconstructing memory. Making use of the 1977 and still in force Amnesty Law that shields any Franco-era crime from being put under trial, the Spanish government has prevented Francoist human rights violations from being investigated and prosecuted.
Lack of accountability in spite of international pressure
Last September two observers from the United Nations (UN) Working Group on Enforced or Involuntary Disappearances, Jasminka Dzumhur and Ariel Dulitzky, visited Spain in order to evaluate if the Spanish authorities are doing enough for the relatives of the disappeared people during the Spanish Civil War and Franco’s dictatorship. The assessment was clear: no. The Working Group left a long list of homework for the Spanish government: the observers urged Spain to ‘take up responsibilities’, to work on ‘a national plan to search for disappeared people’, to repeal the Amnesty Law and to judge in Spain enforced disappearances, among other tasks.
Amnesty International, who has already issued two reports on enforced disappearances in Spain in 2012 and 2013, has also requested the Spanish government to comply with the UN Working Group recommendations. Amnesty International’s Spain Researcher Ignacio Jovtis declared that the Spanish government’s lack of action when it comes to disappearances is ‘shameful’. According to the organisation, despite Spain’s ratification of the International Convention against enforced disappearance, the definition of it as a crime against humanity in domestic legislation still falls shorts of obligations under international law.
Garzón’s investigations: a glimmer of hope
Ironically, the lack of accountability against Franco perpetrators has been compensated with a response against those who seek justice. While the Argentinian judge Servini de Cubría is now trying to unmask the unknown fate of enforced disappearance victims of the Spanish Civil War and Franco dictatorship, the Spanish judge Baltasar Garzón has been expelled from his investigations.
It was a day in 2008 in the middle autumn, again in the path to winter, when a 53-year old Garzón, back then serving on Spain’s central criminal court, published a judicial decree declaring himself competent to investigate Francoist crimes as crimes against humanity. By publishing this order, Garzón assumed that his decision would get into conflict with the 1977 Amnesty Law.
When El Generalísimo died in 1975, both the leftist and rightist forces decided to avoid dealing with the legacy of Francoism and agreed on a Pact of Forgetting as an attempt to put the past behind and concentrate on the future of Spain. To forget in order to move on: a political agreement that a couple of years later turned into a legal declaration, the Amnesty Law. The regulation has received strong criticism from families who claim memory and truth for their ancestors’ remains as well as from international bodies, such as the UN and Amnesty International, but the disapproval does not seem unanimous. A large part of the political, judicial and public opinion sectors still consider the law a milestone of democracy in opposition to Francoism whilst sectors sympathetic with the dictator consider that repealing the Amnesty Law would only be an excuse for leftist politicians to carry out trials against only one of the sides who took part in the Civil War.
Though what happened in the past was that the winners of the Spanish Civil War – the dictator’s supporters - applied their victorious right on top of the defeated – the Republican supporters - and deployed all available action to find, identify and repair the victims from their side. Luck was not on the Republicans side, who were instead persecuted, imprisoned, tortured or eventually disappeared. The 2007 Historical Memory Law approved during the socialist government led by Zapatero was thought to be a step forward in the long battle against oblivion. Criticism of the law has come from two sides: those who think that the law is not effective enough – such as Amnesty International and the party Republican Left of Catalonia (ERC) – and those who support the Pact of Forgetting – like the conservative People’s Party (PP), currently ruling Spain.
In this context, Garzón was the first and last Spanish judge in democracy to investigate Francoist crimes committed against the defeated.
Being judged for investigating human rights
It seemed that the era of impunity was over, yet it was only an illusion. In 2010 a judge from the Supreme Court in Spain, Luciano Varela, accepted a complaint against Garzón, imposed by the far-right political party Falange Española and trade union Manos Limpias, accusing him of presenting the case while knowing it fell outside of his competency.
This was a clear case of the Amnesty Law clashing with international law, which paradoxically allowed a magistrate being judged for investigating a violation of human rights. Two years later though, the Supreme Court sentenced Garzón free of charges, but Francoist crimes were still not being examined. Garzón, who is currently the head of Julian Assange’s legal team, has been suspended as a judge for authorising illegal recordings in the Gürtel case, a major corruption inquiry involving bribes to People’s Party. A breath of hope was defeated.
The UN Working Group on Enforced Disappearances has expressed its concerns about the effect of Garzón’s case since in practical terms it has meant the closure, paralysation or minimum investigation in any process to clarify and judge the thousands of cases of enforced disappearances committed during the Civil War and dictatorship. After the Supreme Court’s decision, no other Spanish judge has dared to undertake similar examinations and that is why, under the principle of universal justice, criminal procedures have only been opened in other countries, such as Argentina.
Lack of governmental assistance to trace the past back
The legal controversy of the Amnesty Law and the Historical Memory Law has not been the only stumbling rock to Francoist crimes investigations. As the observers from the UN Working Group pointed out, a great problem has been that the Spanish government has not taken up enough responsibilities.
On one hand, the financial aid destined for the development of the Historical Memory Law has been dependent on the ruling party, based on data from the Spanish government’s Department of Budget and Expenditure. While the funds for the victims of the Civil War and dictatorship were slightly increasing year after year during the socialist government – from 2 million euros in 2006 to more than 6 million euros in 2011, although the People’s Party coming to power reverted the trend. The aid was reduced by 60% in 2012 and was totally removed in 2013. Hence, the Historical Memory Law has been repealed de facto. Madrid has used the economic crisis as the justification for the government’s decision, but the UN experts in Enforced Disappearance have insisted that “it is necessary to look for the adequate funds.”
On the other hand, relatives of Francoist crimes’ victims feel that they stand on their own tracing the past back. “In my 20 years of experience I had never found a similar situation,” declared the UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Pablo de Greiff, who travelled to Spain last February to assess Spain’s to-do-list. De Greiff expressed his concerns about the ‘immense distance’ and the lack of cooperation between the state institutions and the victims to work together against Francoist crimes. Currently, there is no national plan to look for enforced disappeared people, no state database to account for them and no truth commission. Despite the fact that from 1974 to 2007, 32 truth commissions were created in 28 countries in the world, Spain does not figure in this list of states.
Mass graves: a matter of dignity
“Memory is water that flows, a path that builds justice up, that democratizes, that dissolves fear. Memory is a duty,” defends Emilio Silva, one of the founders of the Association for the Recovery of Historical Memory (ARMH), whose grandfather was murdered and thrown into a mass grave by Franco’s forces. These words poetically summarise in a nutshell why it is important for families to identify their relatives as well as why it is important for a society to deal with it. Dead people have vanished, but they will still be present as long as memories remain, as long as relatives will continue claiming the dignity and recognition of the committed atrocities.
The Spanish government has certainly washed its hands, but alternatives have arisen. Several independent organisations that work for the recovery of memory and truth have emerged to make up for the absence of effective cooperation between civil society and governmental forces.
At the core of mass graves exhumations, one finds Emilio Silva’s organisation, the Association for the Recovery of Historical Memory. A group of 50 Spanish archaeologists, anthropologists and forensic scientists collect oral and written testimonies about the victims of the regime and excavates and identifies their bodies that were often dumped in mass graves. After multiple demands presented by the ARMH and once Garzón had declared himself competent to investigate enforced disappearances, the judge authorised the exhumation of 19 mass graves, including the one where the poet Federico García Lorca was meant to lie in. Since then, the association has successfully carried out 153 mass graves exhumations and identified 1.328 victims.
Nevertheless, due to the shortage of financial resources, ARMH now has a list of 41 mass graves waiting to be excavated and the lab that examines the remains in Ponferrada (León) is about to close its doors. The Spanish Minister of Justice, Alberto Ruiz-Gallardón, has defended the government’s stand by declaring that these independent organisations have already received a sum of 25 million euros since 2006 – though 20 of these million were agreed during socialist governments – and that most of the mass grave exhumations were already carried out until 2011. Replying to the minister’s statement, the founder of ARMH, Emilio Silva, declared that “it is not true that the exhumations have already been done, we still receive requests every day.”
The exhumation tasks do not only encounter economic barriers, they also face bureaucratic complications, which only exacerbate the difficulties for families to find out the truth. For instance, the regional maps about the status quo of mass graves excavations are often outdated and the UN Working Group reported about certain ‘resistance’ from public registries to declassify specific documents.
The success of the work of organisations, such as ARMH as well as others such as Plataforma por la Comisión de la Verdad or the Coordinadora Estatal de Apoyo a la Querella Argentina Contra Crímenes del Granquismo (CEAQUA), exemplifies that an enhanced cooperation between families and the government is required. It is not possible for a country to deal with its present as long as it does not deal with its past. Franco’s ghosts will haunt Spain until the recognition for truth and memory of the victims is put into real practice. The United Nations and Amnesty International have already called for a repeal of the Amnesty Law and for further support from institutions to the civil society. Now it should be the turn of the Spanish government to finally make a move.
While summer is approaching in Madrid, the first signs of winter make Buenos Aires’ inhabitants shiver. While the sun is up in the Spanish capital, the victims of the Civil War and Franco dictatorship will only feel the sunlight rays when memory and truth have been legitimised. They have sought justice in courts in Spain and Strasbourg and none of these options have worked out. Their last hope is now too far from their home countries: Argentina.
Adriana Díaz Martín-Zamorano was born and raised in Barcelona. The best way to learn is to ask. Any kind of knowledge is always welcomed. Especially interested in European Politics and passionate about anything that touches my soul: humans, cinema, art, music, literature and photography. Photo credited to Imagen en Acción, via Creative Commons.
