A blow to Spanish judicial independence

by Cesar Chelala

Baltasar Garzon, a Spanish “investigative magistrate” in charge of investigating crimes of national or international significance, is now himself under investigation. Conservative groups accuse Garzon of prevaricato judicial (roughly translated as “abuse of a judge’s power”) for having intentionally bypassed a 1977 amnesty law, opening an investigation on human rights abuses committed during Spain’s civil war. If indicted on the charge, the General Council of the Judiciary may temporarily remove him from office.

For many years, Garzon has engaged in a crusade against al-Qaida terrorists, Latin American dictators (including Chilean dictator Augusto Pinochet,) Russian thugs and powerful Spanish politicians accused of corruption. In addition, he started an investigation of torture claims by former Guantanamo detainees and for crimes committed by Colombia’s FARC rebels.

Garzon pursued those cases under a controversial statute (subsequently repealed) allowing Spanish courts to exercise “universal” jurisdiction over crimes against humanity, regardless of the country where they were perpetrated and the nationality of victims or perpetrators. These high-profile cases brought Garzon powerful enemies all over the world, not to speak of the antagonism he provoked in Spanish government officials and among his own colleagues, many of whom see him as an embarrassing self-promoter.

In October 2008, Garzon launched an investigation on the torture, disappearances and summary executions perpetrated from 1932-1952 under Gen. Francisco Franco’s dictatorship. As with amnesties adopted by Chile and Argentina in the 1970s and ’80s, those crimes are allegedly covered by a blanket amnesty enacted by Spain’s Parliament in 1977 and a recent “Historical Memory Act” aimed at forgiving and forgetting Spain’s troubled past.

One may legitimately disagree with decisions taken by Garzon. However, in this particular case, he did what he was required to do under international law. Far from abusing his power, Garzon properly applied international conventional and customary law, which pre-empts Spain’s domestic amnesty to the extent it is aimed at covering massive and systematic human rights abuses. Two supranational tribunals (the European and Inter American Courts of Human Rights), as well as two U.N. committees (the U.N. Human Rights Committee and the U.N. Committee Against Torture) have consistently condemned blanket amnesties that deprive victims of serious human rights abuses of an effective remedy.

Thus, even if the Spanish Supreme Court ultimately decides that Garzon overreached his authority by ignoring the 1977 amnesty law, such decision may be challenged before the European Court of Human Rights, which has held that, in principle, blanket amnesties violate the member states’ duties to investigate systematic and massive violations of human rights. Thus, Garzon had more than plausible reasons for refusing to apply Spain’s amnesty law.

Admittedly, Garzon is a polarizing figure with a penchant for high-profile cases. One may legitimately disagree, from a political standpoint, with his decision to unearth crimes of the past or feel understandably uncomfortable with his showy profile. Yet, while consistently fighting against the powerful of all political persuasions, he has courageously expanded the protective reach of international human rights law, as shown in the Pinochet case.

Whatever personal opinion one may hold on Garzon as an individual and beyond his controversial civil war investigation, the decision to go after this judge for opening an investigation of Franco’s worst human rights abuses seriously undermines judicial independence and Spain’s credibility in fighting against impunity. More importantly, it ignores that, under international law, Spain’s sovereign decision to forgive and forget its past cannot be adopted at the expense of the victims’ right to justice, truth and adequate reparations for serious and systematic human rights abuses.

Coauthor Alejandro M. Garro is a Columbia University law professor and a senior research scholar at the Parker School of Foreign and Comparative Law. Cesar Chelala is a cowinner of the Overseas Press Club of America award.