Baltasar Garzon’s Indictment: Is Universal Jurisdiction on Trial as Well?

Baltasar Garzon, universal jurisdiction’s singular Spanish exponent, has been indicted for exceeding his domestic judicial purview. As noted briefly in TheCourt.ca last week, Garzon, the investigating magistrate who began proceedings against, inter alia, General Augusto Pinochet, Argentinian “dirty war” generals, al Qaeda members, suspected Basque terrorists, and the “Bush Six”, has been brought to legal heel for probing Franco-era atrocities and agitating for the exhumation of mass graves. If convicted, he could be removed from the bench for up to 20 years. He has filed an appeal.

Though the affair has occasioned much protest in Spain, commentators elsewhere, such as Professor Eric Posner and the American Enterprise Institute’s Marc Thiessen, find little to oppose in Garzon’s “comeuppance”. Posner, for instance, strikes a particularly vindicated tone in the Wall Street Journal, writing that “this trial marks the end of a failed experiment in international justice” and “should be a warning to those who place their faith in the [International Criminal Court] to right the world’s wrongs.” I would argue that Garzon’s indictment only serves to highlight the cognitive dissonance in the argument as a whole. Universal jurisdiction, particularly its national exercise as complement to the ICC, hardly needs to be abandoned simply because a single “super-judge” has been accused of overreach. Nor does the idea need to be written off on the grounds that, without a recognized universal authority, the current political order requires that a presumptively benevolent American guarantor/hegemon be exempt from principles that its own post-WWII governments largely established, and from which universal jurisdiction’s norms are derived. In this case, the peculiar circumstances surrounding Garzon’s indictment make a mush of one of universal jurisdiction’s more plausible criticisms. The criticism holds that judges like Garzon, assumed to be armed only with judicial abstraction and lacking knowledge about local sensitivies and nuances, may undermine the efforts, in the aftermath of severe civil convulsion, towards reconciliation of historical divisions in the states whose leaders they presume to judge.

Spain provides a good illustration of the sort of polity for whom legal “reconciliation” seems to have accomplished little. Enacted upon Franco’s death and the restoration of the constitutional monarchy, Spain’s 1977 Amnesty Law provided that all crimes committed by either side during the Civil War, and which were characterized by “political intention”, were immune to prosecution. For the period between 1939 and 1975, the amnesty applied broadly, though only to the remaining side. Thus, Garzon’s charges (brought by a trio of rightist Spanish organizations that includes Franco’s nominal corporate heir, Falange Espanola) stem from his inquiries, abandoned in 2008, into “the killings of 114,000 people at the hands of Franco’s supporters during the 1936-39 civil war and the dictatorship that followed”, as well as contemplating the “exhumation of at least 19 mass graves.” The judge’s defenders distinguish between “political” crimes committed by the state and and those that constitute crimes against humanity; in Garzon’s words, “any amnesty law that seeks to whitewash a crime against humanity is invalid in law.” Garzon’s opponents uphold the amnesty law’s validity, and the illegality of what they maintain is his retroactive application of Spanish universal jurisdiction law.

It does not appear that recent Spanish governments, not to mention the country’s remarkably politicized judiciary, have paid the amnesty any more than lip service. In 2007, Jose Luis Zapatero’s Socialist government enacted its Law of Historical Memory, which “provided for state help to families wanting to open the mass graves to recover and identify the victims, promised the removal of fascist statuary and symbols from public places, and outlawed political rallies at the [Franco-built] Valley of the Fallen, which had become the focus of modern fascist activities.” The law appropriately promised only “moral redress” to Franco’s victims, “explicitly condemned Franco’s dictatorship…and nullified all Franco-era criminal law and punishments on the grounds that ‘they were defective in form and substance.'”

Responding in part to Garzon’s 1998 attempt to have General Pinochet extradited from the UK, Henry Kissinger cautioned in 2001 that magistrates wielding universal jurisdiction tend to “substitute [their] own judgment for the reconciliation procedures of even incontestably democratic societies where alleged violations of human rights may have occurred.” Whatever its (debatable) pertinence to Chile’s example, though, Kissinger’s criticism thins in light of post-Civil War Spain. Given the remarkable continuities among Spain’s political antagonists, and the sheer sweep of its 1977 Amnesty Law, one could justifiably say that Kissinger’s objections are as ungrounded and insensible to local difference as are his targeted magistrates. Relative to, say, South Africa’s Truth and Reconciliation Commission, upon whose warm, particularist memory the critics of universal jurisdiction seem to rely, the guarantees of amnesty in Spain’s “reconciliation procedures” are instrumental, less to do with candid political self-examination than expediency and universal immunity for the state and its agents.

How, then, should Spain’s 1977 amnesty be regarded, both legally and in terms of national reconciliation? Kissinger says, “The decision of post-Franco Spain to avoid wholesale criminal trials for the human rights violations of the recent past was designed explicitly to foster a process of national reconciliation that undoubtedly contributed much to the present vigor of Spanish democracy.” The notion of healthy democratic “vigor” seems exceedingly strange in context of Garzon’s indictment, as well as its source in a vestigial fascist party’s objection to the exhumation of seven decades’-old mass graves. Discussing the Chilean junta’s own amnesty (which it granted to itself in 1978), Professor William Burke-White writes that blanket amnesties are perforce illegitimate. Characteristically, they are disconnected from the wounded body politic in both purpose and effect, “effectively erasing a decade or more of abuse, repression and violations with the stroke of a pen”. Worse, according to Burke-White, such amnesties typically fail to provide victims with any means of civil or (non-criminal) investigative redress, which is surely prerequisite to the sort of “organic” political reconciliation that Garzon’s critics claim to be defending. Granted, Spain’s post-Franco amnesty is distinguishable from the Chilean example Burke-White condemns, not least because the amnesty enjoyed broad support from both left and right at the time the law was passed. As well, even recent Spanish commentators such as leftist historian Andreu Mayayo can write, in response to those “who argue Spain needs a kind of Nuremberg Trial to set things to right,” that post-Nuremberg de-nazification was marked by “timidity”, and that it is reasonable to ask “what a realistic alternative to the 1977 legislation would have been.”

But the real question is not so much what Spain should have done instead of enacting its blanket amnesty so much as it is what it should do now. Perhaps Spain should not be busying itself erasing all physical remnants of Franco’s regime. But Baltasar Garzon’s abortive investigations into Franco-era crimes and mass graves, though they may have contravened the letter of the 1977 amnesty and are the occasion of a good deal of schadenfreude (though not yet much in the way of useful criticism of universal jurisdiction), were notable for their sobriety and balance. That is, Garzon’s investigations displayed the sort of sobriety and balance that Garzon’s critics maintain is both intrinsic to a nation’s reconciliation with a violent past, as well as inimical to juridical “zealots” that claim to exercise universal jurisdiction.