DIGGING FOR THE TRUTH
EMBARRASSING PARALLELS BETWEEN THE ARAB SPRING AND THE SPANISH TRANSITION TO DEMOCRACY
On January 22nd of 2012, Human Rights Watch (HRW) presented their ‘World Report’ for 2012. Obviously, the report focused a great deal of attention on the ‘Arab spring’ (misbranded as the name is, seeing that the spring of 2011 has passed, but the public outrage and demand for respect for human rights has not). At the end of the presentation, Executive Director Kenneth Roth stated the following:
‘… the international community must help build the rule of law in this region, and that means opposing the impunity that encourages repression and atrocities. It’s all too tempting to sweep under the rug the atrocities of autocratic allies. That is often done in the name of ‘facilitating a transition’. We’re seeing this today in Yemen. The lesson we have learned though, particularly out of Yemen, is that when you send a signal, that there is no price to be paid for killing demonstrators, you basically give a license to kill. You send the signal that the government can kill as many demonstrators as it wants. If it succeeds in staying in power, it obviously won’t prosecute itself, but if it loses power, there will be no consequences to be borne. That is a terrible signal. It encourages violence, rather than promotes an end to violence. So in conclusion let me say that the uprisings and the revolutions of this year present an enormous opportunity for the human rights cause. Yet, given the violent causes that continue to resist progress here, it’s wrong to simply leave to the Arab world, the task of facing the people with the guns. International help is needed and to date the international community, as I’ve outlined, has been much too equivocal and inconsistent in assisting the birth of democracies in this region. Ultimately, the international community has to decide what it stands for; does it value the rights and aspirations of the people of this region or does it prefer to side with the autocrats? We hope that it makes the right decision.’
This eloquently razor-sharp critique is applicable to more situations than those found in the Arab world in 2011-2012. The lessons to be learned could be used when considering any situation where there is a transition to democracy, because any state that is departing from the rule of a dictator or an autocracy will inevitably have to deal with the issue of accountability for the committed human rights violations. Some states do this thoroughly and effectively, as Germany has done with its vicious and equally efficient war criminals, while other countries avoid dealing with such accountability concerns, (supposedly) in order to maintain ‘stability’ and avoid war. In Spain, Judge Baltasar Garzón has been criminally indicted for prevarication and is currently appearing before the Spanish Supreme Court for allegedly violating the 1977 Spanish amnesty law after he decided to open investigations into crimes against humanity such as the forced disappearance of 114.226 people, committed between 1936 and 1951. These crimes were perpetrated during Spanish Civil War and the beginning of the dictatorship of General Franco.
The world’s largest human rights organization and Nobel Peace Prize winner Amnesty International claims that the amnesty law Garzón is accused of violating is in fact not intended to protect violators of human rights from the dictatorial regime, but is in fact meant to protect political prisoners detained by the Franco regime. The organization furthermore claim that Spain the law in any case would be null as international treaties compel Spain to investigate crimes against humanity, even if they were committed in the past, as international obligations override any conflicting national laws. This charge, which has been brought forward by two far-right groups which are all too shamefully called ‘Manos Limpias’ (Clean Hands) and ‘Libertad e Identidad’ (Liberty and Identity) has nonetheless been deemed admissible by the Spanish Supreme Court, even though public prosecutors have called for its dismissal.
In order to understand the reasons behind this legal process which can shut the door on the ‘Ley Histórica’ (Historic Laws) which deals with the human rights violations committed during the Spanish Civil War and during the dictatorship of Franco, we must examine Garzón’s background and especially the Spanish transition to democracy. Many parallels can be drawn to today’s situation in the Middle-East.
BALTASAR GARZÓN
This controversial figure, a former legislator in the Congress of Deputies for the Spanish Socialist Party PSOE, has, as a judge been one of the frontrunners in the application of universal jurisdiction, as well as many domestic cases. His role as judge is investigative, as when he is assigned a case by the court, Garzón is tasked with the recollection of evidence and evaluating whether the case should be brought to trial. He does not try the cases. In the late 1980’s he participated in the investigations of the GAL (Grupos Anti-terroristas de Liberación) case – Spanish death squads established by the socialist government to kill terrorists. In Spain he has furthermore been involved in high profiled cases which have ended with the conviction of Jesus Gil, former mayor of Marbella and owner of the football club Atlético Madrid, as well as a series of cases against Basque nationalist parties that were deemed too extreme. Internationally, Garzón has also been involved in many cases which have earned him international praise, especially by human rights organizations.
In the late 1990’s, Garzón became famous world-wide when he, in applying the principle of universal jurisdiction had former military dictator of Chile, Augusto Pinochet, arrested in London. The principle of universal jurisdiction entails in crude shortness that some crimes are so serious that they can be tried anywhere, irrespective of the location where the crimes were committed. Garzón sought the extradition of Pinochet to Spain, but the British courts were dooped by the former tyrant and embarrassingly found him too frail to be sent to Spain and sent him across the world and back to Chile instead, after 18 months in house arrest in London. The judge was moreover involved in a similar case regarding crimes against humanity against former naval officer for the military junta in Argentina, Adolfo Scilingo which ended with a 640 year sentence. The ever so well-regarded judge, who has been offered an advisory role at the International Criminal Court, has in initiating investigations into the war crimes and crimes against humanity during Franco stepped on many toes. The reason is that like in Egypt’s current transition to democracy, Spain retained a large part of the state apparatus from the Franco era to govern the country as it turned into a democracy. 
THE SPANISH CIVIL WAR AND FRANCO’S RISE TO POWER
A cruel civil war unleashed in Spain in 1936 when several military generals declared war on the democratically elected, republican government, with the support of far-right groups such as the Falangists. To oversimplify the war turned into a conflict between democratic, republican socialists and right-wingers led by military generals; the first group supported by the USSR and the second by the Germans and Italians, although it was never a real international conflict. There are no exact numbers on the amount of persons killed, but estimates range anywhere from a few hundred-thousand to 1.000.000. The end of the civil war was achieved after General Franco had acquired control over the nationalist forces and took over as dictator of a monarchic Spain, without a King. The subsequent take-over resulted in political persecution, limitations on freedom of speech and press, mass arrests of political opponents, prohibition of political parties, torture, extrajudicial executions and many other human rights violations. These violations were perhaps stronger than elsewhere in the regions of Catalonia and the Basque country. General Franco ruled, like many of his Latin-American and Arab counterparts, with an iron-fist until 1975 when he died. Before his death Franco had instructed that Juan Carlos I of Borbón would take over as monarch and Spain inevitably became a democracy.
TRANSITION TO DEMOCRACY
This new era in Spanish history did not come about in a radical manner. The struggle for democracy has existed throughout Franco’s reign, but finally the decision resulting in democracy (i.e. the appointment of King Juan Carlos I) was made by a dictator and it was not implemented until his death. This cannot be compared to the end of Ben Ali’s, Mubarak’s or Gadhafi’s reign, as they were in chased out of their respective countries or killed. However, many of the challenges of a transition to democracy and dealing with the accountability for human rights violations committed under these dictatorships are similar.
When the rule of an autocracy or a dictator ends, the country will undoubtedly have many persons in positions of power who were put there for their support for the ruling party or person. It is also very likely that the country will have a large sector of its public servants entangled in the clientelism that defines many such regimes. Put in another way, many people benefit from the rules of these dictators or autocrats as long as they act supportive. When Spain entered into the democratic transition, the politicians and civil servants were very afraid of a new civil war and having to assume responsibility for their actions. They wanted to close the wounds and put a lid on history in order to ‘facilitate the transition’. King Juan Carlos I, who chose to act within the confines of Franco’s legal system and swear loyalty to the principles of Franco’s party ‘Movimiento Nacional’ (and decided to bury General Franco in ‘the valley of the fallen’ on top of many of his victims), chose Adolfo Suarez as prime minister. This was of course all done to avoid military conflict, a threat that was real, proved by 1981 coup d’état attempt. The King can, as he certainly has, take great credit in playing a large role in suppressing the coup attempt and supporting the democratic developments. Spain succeeded in bringing about a constitution and developing a democratic political system that progressed quickly. Nonetheless, there was not any process where the newfound democracy dealt with the atrocities committed under the Spanish Civil War or during Franco’s reign. This meant that a large group of the population who had suffered arrests, torture or the assassination or disappearance of loved ones would never achieve justice. Justice was sacrificed ‘to facilitate the transition’. That argument may have been valid in the immediate aftermath of Franco’s death given the political instability, but Spain’s democracy is now firmly established and should prove its commitment to human rights.
ACCOUNTABILITY – THE PROBLEMATIC HERITAGE
The trouble now of course is that many of Spain’s public servants, including highly positioned government officials, have a lot to lose and would possibly face prison sentences. To exemplify, Spain’s newly elected Partido Popular (PP) was in fact led and founded by the recently deceased Manuel Fraga Iribarne who was Minister of Information and Tourism under Franco and became Minister of Interior (one of the most important positions in the country) the year Franco died. Fraga, who groomed former Prime Minister José María Aznar, is infamous for his response to the Grimau case, as Minister of Information. Julián Grimau, one of the Communist Party leaders, was detained in 1962, tortured and thrown from the second floor of a building on the streets in central Madrid. Fortunately he survived. When questioned about this Fraga responded in brief that he had been treated with ‘care’, which is indicative of Fraga’s approach to human rights. In principle there are many more like Fraga in Spain. Many of them were public servants, especially in the military and police, and many of them have committed atrocities for which they might never be held accountable. The reason for avoiding dealing with this issue is to avoid opening old wounds, not the more probable reason of political embarrassment for so many members of PP. However, I am certain that any doctor would agree that if you have a wound which is infected, putting a band aid on it will not cure it. As you would expect, the pain of those who lost loved ones has not been cured. It cannot be cured until there is accountability and justice.
States that have carried out the transition from autocracy and dictatorships to democracies have carried out accountability processes, many of them with less democratic tradition and more economic instability than Spain. Germany has for decades dealt with the war crimes from the Second World War, the International Criminal Tribunal for the former Yugoslavia was established to deal with the war crimes in the Balkans, a similar tribunal was established in Rwanda and the Truth and Reconciliation Commission offered a different alternative in South Africa. The United Nations has been helpful and necessary in this respect and the quality of these processes differ, but these are certainly more dignified attempts than Spain’s attempt to sweep this under the rug and their persecution of Garzón. In 2007, Congress in Spain passed the Historical Memory Law proposed by Zapatero. This bill would be a complete break-away with the persistence of tribute to General Franco by, among other things; 1) condemning his regime, 2) removing Francoist symbols from public spaces and buildings, 3) tracing, identifying and possibly exhuming the graves of victims of Francoist repression, whose corpses are still missing (as many are still being found in mass graves). Judge Garzón moreover proposes a judicial process where those responsible for these atrocities can be held accountable. This is what the proper rule of law in a democracy is all about. The wound will never heal if investigations into human rights violations can be legally persecuted in Spain.
A LICENSE TO KILL
Political leaders in Europe have been quick to praise the persistence of the Arab population who have been fighting for their rights (although they have been much clearer every time it became clear that a leader would no longer survive in his position). Spanish leaders have, as part of the EU, expressed their wish for Arab leaders to respect universal and undividable human rights. They have taken pride in Garzón’s work to hold leaders in Latin-America accountable for crimes against humanity, but there is some hypocrisy about not dealing with the past properly. Let us remember Kenneth Roth’s analysis which is if the lesson to be learned is that you can kill demonstrators without accountability, you are given a license to kill. By not dealing with the crimes against humanity committed under the Spanish Civil War and the posterior dictatorship, we are agreeing and saying that yes, Franco and his military regime had just that, a license to kill. Ultimately, Spain has to decide what is stands for; does it support the victims of human rights violations and human rights as a fundamental value or does it prefer to avoid political embarrassment and side with the criminals? Public manifestations on the streets of Madrid last weekend certainly indicate that the population sides with justice…
