Baltasar Garzón and the Problem with Transitional Justice

Those experts in the field of human rights lead charmed and dangerous lives. Sometimes, they also find themselves in the dock, grilled for their efforts and persecuted for their inclinations. In the case of the famed human rights warrior, the Spanish High Court Judge Baltasar Garzón, a dramatically shorted legal career is in the offing. Another one has been suggested: one as a permanent appellant in the legal process, condemned to a long series of court challenges about his competence as a judge.

The justice has found himself convicted in the Gürtel public corruption case for authorising illegal phone tapping of conversations in jailhouses between suspects and their lawyers of the Popular Party. He has been suspended from the judiciary for 11 years. In a turn of fortunes, he also faces a judgment which bars him from appealing, something he might well be adept at doing, and two other legal cases that will keep him busy on the other side of the bench for years to come.

The judge’s conduct has been something of a flashpoint in the battle over Spain’s historical memory. He riles the forces of conservatism as he attracts the adoration of the left. He was instrumental in commencing the legal proceedings against the former Chilean dictator Augusto Pinochet in London, a state of affairs that set the more conservative members of the legal profession on edge. He successfully prosecuted former Argentinean military officer Adolfo Scilingo for his role in the ‘death flights’ during the Dirty War years between 1976 and 1983.

But here, he was facing the stern wording of a fellow judge, who ruled that his actions ‘these days are only found in totalitarian regimes.’ This was reverse logic at play – a man who had dedicated many years of his life fighting the incidents and features of authoritarian systems, found himself the subject of that very same legal rhetoric.

The proceedings have had a potent mixture of high comedy and farce. And, just to make matters more colourful, Garzón finds himself embroiled with two other cases as well – allegations of bribery, and another more explosive trial in which he is charged with the unpardonable offence of peering into the Spanish past under Generalissimo Francisco Franco, supposedly violating the amnesty law of 1977.

The case on Garzón and his attempt to bypass the amnesty is potentially the most telling one, not to mention crippling – a disbarment of 20 years is on the judicial cards. Burrowing into the dirtied archives of history is tantamount not merely to upsetting the apple cart, but replacing it altogether. This particular bit of burrowing involved looking at atrocities committed during the Spanish Civil War (1939-39) and the subsequent and long rule of Franco, which only ended in 1975.

Spain’s pathway to democratic transition was premised on the mutual acceptance of blindness to cruelty – a blindness to the past that Garzón found hard to accept. Indeed, he continues to believe that the 1977 law does not preclude human rights abuses from being investigated. ‘I did what I believed should have been done. It is not a question of ideology – judges are not supposed to be ideological. There are hundreds of thousands of victims whose rights have not been respected’ (El Pais, Jan 31).

The question then posed was what the zealous advocate was going to do with his findings. According to Garzón, he was not intent on exhuming skeletons in the name of mounting persecutions. His inquiry, egged on by 20 historical memory associations and 10 individuals, did not commence to find any bodies in the absence of jurisdiction to do so. In November 2008, the full High Court panel decided that he should cease his investigations, something he did, in fact, do. The right wing union Manos Limpias chose to see it differently, and the Spanish Supreme court agreed that there was, in fact, standing to pursue a case against Garzón. This, despite the support for Garzón’s case from the Supreme Court’s chief prosecutor Luis Navajas.

The judge is being somewhat naïve in certain respects. Human rights is an assumed ideology on the state of humanity, a set of principles and beliefs that has its followers. In the end, it might be argued that, to be blind, may be wiser than otherwise. But the mission of Garzón is different – to right the records of the past, but within the confines of existing laws.

Garzón finds himself in a contested area of justice practitioners call ‘transitional’. In the fruit salad of jurisprudence on human rights violations, various ideas mix – the application of considered punishment, the encouragement of reconciliation, or a more open and direct acceptance of what actually happened, the necessary, cathartic confessional. The latter is the position most sought by human rights groups, the light on the hill that must be reached if a state is to move on and accept its standing as an international citizen. This is certainly the imperfect model that has been embraced in the ad hoc tribunals on Rwanda and the Former Yugoslavia.

But absolutist criteria on human rights – and we have seen this in the context of assessing the brutality of a whole host of regimes – can be dangerous, destabilising and misplaced. The unhappy medium is almost impossible to find. Despite these reservations, it is impossible to assume that the right wing forces in Spain were not intent on barring Garzón from the legal arena. He has proven to be a distinct nuisance to murderous figures in the past, and there is no reason why he should stop doing so in the future. His opponents have one clear wish: to make memory forget, to commit what amounts to a form of historiocide.

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com