Facing the Past, Fearing the Future
By Patricia Alonso Sande
“My children are lucky I don’t have the need to look for him. Otherwise, I would walk around roads and pathways all day. But I always ‘had’ him there. And my mum, peacefully, used to take us to the cemetery.” On 20th October 1936, Rosa Torrente lost her father at the age of six. Ernesto Torrente Patiño was shot dead by a firing squad in Ferrol, General Franco’s hometown, three months after the military coup d’état that led to the Spanish Civil War. He was a member of the Socialist Party. The police report –which was given to the family as late as 1981, in order to apply for a widow’s pension, states that Ernesto was accused of supporting the [Republican] rebellion and shot after he tried to escape. “It’s a lie. Someone wanted him killed. They even told my mother he had to carry one of the men who was executed with him because they had broken his legs,” Rosa states, with a mix of sorrow and pride.
During the war, and over the almost 40 years of General Franco dictatorship, thousands of kids lost their parents, wives their husbands and mothers their children. Unlike Rosa, most of those in the Republican side weren’t able to bury their relatives. With around 120.000 people still missing, according to records from the Association for the Recovery of Historical Memory (ARMH in its Spanish initials), Spain is – after Cambodia – the second country in the world with the largest amount of mass graves. The exact number is hard to know precisely – Judge Garzón’s records mention 150.000 people. “No historian will be able to know ever the exact amount of missing people,” says Marco González, researcher at ARMH.
Despite nearly 80 years passing since the war started, and almost 40 since Franco died and Spain embraced democracy, no one has ever been judged for those crimes. There are fundamentally two reasons: the restrictive Spanish laws, which run counter to international justice; and the political interests that still exist.
Spanish law: a lack of accountability
Today, the generation of democracy still listen to the stories told by their grandparents, like Rosa’s. Never too loud, the way they were taught. Right after Franco died in 1975, for the shake of the long missed political stability, they all agreed on forgive and forget. It was an act of oblivion. “I never knew my grandfather was executed until Franco was about to die. I was almost 16 years old back then,” Rosa’s daughter, Lourdes, remembers. “I think both my grandmother and my mother were too afraid of talking about it.”
The Amnesty of 1977 was the written proof of this ‘pact of forgetting’ – a sort of institutionalized collective amnesia – in which ‘the two Spains’ – as the Spanish poet Antonio Machado referred to the left-right political division – agreed on not investigating nor prosecuting any crime committed between 1936 and 1975. The only attempt to do so ended with the suspension of the Judge Baltasar Garzón.
Known worldwide for its main role in the arrest of the former Chilean General Augusto Pinochet in London in 1998, and described by as ‘a crusading knight fearlessly wielding the sword of justice wherever it was needed across the globe’, Garzón opened in 2008 an inquiry to investigate the crimes committed during the Franco era. In 2010, he was removed from office by irregularities committed in a corruption case against the Popular Party, but even organizations such as Human Rights Watch saw his suspension as a consequence of investigating Spain’s past. “Thirty six years after Franco’s death, Spain is finally prosecuting someone in connection with the crimes of his dictatorship – the judge who sought to investigate those crimes,” the counsel for HRW, Reed Brody, said then.
Before the trial that took him down, in 2009 Garzón was also reported by two private right-wing organizations –Manos Limpias and Libertad e Identidad – of alleged criminal malfeasance for investigating cases of enforced disappearances during Franco era, based on the argument that he refused to apply the amnesty law of 1977. “It is not relevant whether his investigation has broken or not the Spanish national law, as this legislation contravenes international justice,” the Senior Director of International Law and Policy at Amnesty International, Widney Brown, said after Garzón was accused.
In declarations for , Judge Garzón recognised that after the trials against him, there is no possibility for investigating these enforced disappearances in Spain. “No one is going to ignore the clear, convincing argument from the Supreme Court,” he said.
Accordingly, FIBGAR (Baltasar Garzón’s International Foundation), which works in favour of Human Rights and International Jurisdiction, stressed the relevance of the judge’s will. “We need judges who interpret the law according to international principles,” says Sheila Velez, in charge of FIBGAR’s project for a Truth Commission. “But it takes courage. What happened to Baltasar was a wake up call: Enough with this,” she concludes.
In the past year, up to three representatives of the United Nations visited Spain to monitor the investigations on historical memory – or the lack of them: on September 2013, a working group on enforced or involuntary disappearances; on December 2013, the Committee on Enforce Disappearances (CED); and more recently, on February 2014, the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence. All of them concluded with similar recommendations and the same claim: the need for justice.
The CED has also expressed their concerns over the lack of accountability of Spanish justice. In their last report, they note the considerations made by the Spanish Supreme Court regarding the investigation of alleged cases of enforced disappearance, which claims the “existence of an amnesty law and the death of the alleged perpetrators” for not prosecuting the crimes. However, the Committee is especially worried about the Supreme Court’s opinion that “it is not reasonable to argue that a person unlawfully detained in 1936, whose remains have not been found in 2006, can be rationally thought to have continued in detention beyond the 20 year term of limitation, to take the maximum.”
Spain’s National Court has also sentenced that some of the crimes cannot be considered crimes against humanity as there is no evidence that they were part of a systematic attack against a certain group, and therefore have already expired – according to the Spanish Penal Code the crimes prescribe as much after 20 years, 10 years for torture.
“It was madness,” Rosa says. “During the war, I remember the fascist demonstrations every time they took a new city. My mother used to take my brothers and me home, and people knocked on our door saying: ‘Come out, red!’ ‘We must pull up the seed!’ We were scared,” she states, gazing into the distance.
There was in fact a systematic attack against a collective: the left-wingers. But not everyone was filled with hatred. “My cousin’s wife worked as a cook for a Consul that was based in Ferrol. My mother asked this man for help, but he said someone kept putting my father on the execution list. The best he could do was send my father to Toro, Zamora, where he was on detention for a month after someone brought him back to Ferrol and executed him,” she says. “Someone named Suanzes also tried to help him.” There was indeed a British Vice-Consul in Ferrol back them, William V. Martin, but there is no way to know if he was involved in trying to save Ernesto. As for Suanzes, it might have been Victoriano Suanzes, head of the Guardia Civil in Ferrol back then, although Rosa claims he was an Admiral.
On top of the excuses made by Spain’s National Court, the legislation doesn’t specifically reference cases of ‘enforced disappearance’, but instead ‘unlawful detention/abduction with disappearance’. “But it doesn’t really matter,” explains Sheila Velez. “Spain has to obey the international agreements that were ratified, such as the International Convention for the Protection of All Persons from Enforced Disappearance. They have to investigate those crimes.”
Still, the CED urges Spain to take the necessary legislative or judicial measures “to remove any legal impediments to such investigations in domestic law”, notably the Amnesty law, and to support investigations led by other countries or organizations.
But these are just that, recommendations. Sheila Velez reminds that these committees or groups of work are not entitled to sanction Spain. In fact, Marco González denounces that when they have taken cases to the UN, the answer is that the organization cannot investigate something that happened in 1936 because the UN was created in 1945. “In 2003, Emilio Silva [journalist and founder of ARMH] took 63 cases of enforced disappearances to Geneva, and only two were accepted: two guerrillas that disappeared in 1947 and 1948,” she says. They have asked the UN to take down the time standard, but their claims have fallen on deaf ears.
Argentina takes the lead
However, there is also some good news for victims of . Crimes against humanity, covered by international law, can be brought to foreign courts under the principle of universal jurisdiction. Accordingly, a growing group of 150 victims –which started with only two – have brought their cases to the Argentinian justice since April 2010, where Judge María Servini is in charge of the investigations.
Rosa is not among the plaintiffs, but she doesn’t want to either. “I don’t want to know who did it. Not anymore,” she says. “Why?” “I don’t want to hate anyone. The only thing I want is someone to recognized that what happened wasn’t reasonable.” But there is no plan for doing that. ‘The reparation might be as simple as a public apology,” Sheila says. “Instead, some politicians victimize the victims even more.”
Judge Servini has also come across with Spain’s reluctance to investigate the past, as the Spanish National Court has denied the extradition of Antonio González Pacheco, alias ‘Billy the Kid’, a former Francoist policeman accused of torture. Once more, Spain considers the crimes with which he is charged have expired, as occurred 30 years ago. Organizations, as well as the international community and the UN, have been very critical about the decision, as they considered Spain is obstructing international justice and taking a huge step back on human rights.
Unspoken reasons for Spanish silence
The Spanish transition to democracy was not a result of Franco’s regime collapse, if not a reform from the inside out. In fact, Spain’s first democratic President, Adolfo Suárez, was a former Francoist official. It wasn’t an isolated case: Manuel Fraga, a minister during Franco era, is considered one of the fathers of the Constitution of 1978. He was also President of the Region of Galicia for over 15 years, and the head of the Popular Party, which he established after leaving Suárez’s UCD (Centre Democratic Union).
“I remember a conversation years ago with Alfonso Guerra [Socialist and Spain’s Vice-president in the 80’s] still in power,” recalls Paul Preston, renowned hispanist who has published extensively on the Spanish Civil War, by phone. “I asked: ‘Why don’t you do something about this?’ And he said: ‘It’s far more complicated that you could possibly imagine’.”
“There are hundreds of thousands of people who were accused of crimes that they certainly didn’t commit, and no government has ever done anything about altering those records. The Socialist Party is as guilty as the Partido Popular,” says Preston.
Preston also blames Franco’s propaganda on the Spaniards’ attitude back then. “There was a national brainwashing with the regime constantly saying there was ‘two Spains’: one was evil and dirty, and Franco’s was wonderful,” he explains. “At school they used to tell us the ‘red’ were evil, to the point that I imagined them with horns and tails,” Lourdes, Rosa’s daughter, confesses. “That brainwashing didn’t simply disappear over night,” adds Preston.
The circumstances back then might help to understand the attitude in 1977, but they don’t explain the current one. In one of her articles, ‘Coming to Terms with the Past’, Professor Helen Graham, a leading expert on the Spanish Civil War, claims that “the [Popular Party’s] attitude doubtless reveals its perception of democratic Spain as the inheritor state to Franco’s, rather than as representing a break with it,” when looking at the lack of accountability and funds for Historical Memory.
In connection to this, Marco González denounces that, although the funding has been always very little, since the Popular Party arrived to the Government in 2011, and despite it is reflected in the national budgets, there has been no official announcement for applying for the aid. “We used to make 35 interventions per year, now we don’t make more than 10,” he regrets. He agrees it’s a general political matter.
Apart from propaganda, Professor Preston also highlights the influence of economic interest for not looking into Spain’s past. “There were those who benefited from the plunder that was taken from Republicans. I can give you lots of examples: The family of Juan Negrín [Republican Minister and President of the Republic in the exile] was a very rich family. All their properties were confiscated, and since then they have been sold from one to another. The legal implications of trying to disentangle all of that… Also: Margarita Nelken was a very famous feminist, socialist and writer. At the end of the war, she lived in Madrid, she had a very nice apartment and an amazing collection of paintings, first editions of books, signed scores… all of that was stolen. Now, if her remained family in Mexico tries to get all that… Can you imagine?” he wonders. “The political elite doesn’t want to –what we say in English – ‘open a can of warms’,” he concludes. It’s the established discourse of not reopening old wounds.
However, Professor Graham reminds in her article that “the return of Republican memory is necessary not just for those who must tell their story, but for all living Spaniards of whatever generation. Because democracy in the end cannot anywhere be constructed on an unacknowledged hecatomb.”
Rosa smiles with nostalgia: “My grandfather was a Republican. My father was a Socialist. My son, I think he is a Monarchist. And I am not one. I just want peace.”
