Nearly 30 years after the end of the Franco regime, a lawyer visited 90-year old Teofila Gonzalez at her retirement home in 2008 and told her that one of the eleven bodies found after the exhumation of a mass grave, ordered by Judge Baltasar Garzón, was identified as her brother, Severiano. Severiano was a left-wing Republican who was captured, held at the village church, and then dragged away in a cart, never to be seen again.
Garzón is currently under criminal investigation by Audiencia Nacional, Spain’s highest criminal court, for breaching his duties as a judge and launching an inquiry on October 16, 2008 into 22 alleged cases of illegal detention and forced disappearances involving more than 100,000 victims committed during the country’s civil war (1936-1939) and General Francisco Franco’s dictatorship (1939-1975).
In October 2008, Garzón ordered the exhumation of mass graves in response to a petition filed by 13 associations of the victims’ families. For the first time in Spanish history, someone is attempting to establish accountability for the killings of thousands of left-wingers, union members, and other opponents of the regime who were disappeared over 70 years earlier. Aside from political opposition by the Popular Party and the Catholic Church, Garzón faced several legal obstacles, including a 1977 amnesty law which granted immunity for all political crimes committed prior to December 1976 as part of a campaign for national reconciliation. In a 68-page report presented to the court, Garzón alleged that the illegal detention and disappearance of victims are not subject to the 1977 amnesty law because they can be characterized as crimes against humanity, which carry universal jurisdiction. Also, Garzón dismissed any statute of limitations, reasoning that Franco waged a systematic campaign to eliminate opponents and hide their bodies, and since the bodies are still missing, the crimes are ongoing. Contrary to the Prosecutor’s objections, a Law on Historical Memory, passed in 2007 to bar victims’ potential legal claims, does not prevent investigations on crimes against humanity.
According to Amnesty International, blocking Garzón’s war crimes investigations would violate Spain’s obligations under international law. A country’s refusal to acknowledge the detention or whereabouts of victims of persecution is an enforced disappearance and a violation of the 2006 Convention for the Protection of All Persons from Enforced Disappearance, passed by the UN General Assembly and ratified by Spain in 2009. This convention has not yet entered into force. The International Covenant on Civil and Political Rights (ICCPR), which Spain ratified in 1977, state that governments have an obligation “to ensure that any person whose rights or freedoms . . . are violated shall have an effective remedy.” In addition, Garzón urged the court to apply ex post facto law, specifically Article 5 of the Convention against Forced Disappearance, as had been done during the Nuremberg trials. Most recently, the European Court of Human Rights held in 2009 that an amnesty law contradicts a state’s duty to investigate acts of torture or barbarity. It is ironic that the Spanish government and especially the Prosecutor’s Office are challenging Garzón’s efforts, since they extended their support when Garzón issued an indictment against Chilean General Augusto Pinochet for the murder and torture of thousands and when he led Mexico to extradite Ricardo Miguel Cavallo, a former military official from Argentina implicated in atrocities during the country’s military dictatorship.