(This article and its content were first published on the bubblear.com, November 13, 2014).
A Federal Judge in Buenos Aires has issued arrest and extradition orders for 20 Spanish nationals who held positions or were otherwise involved with General Franco’s fascist dictatorship in Spain. Maria Servini de Cubria cited the concept of universal jurisdiction and demanded the 20 ex-members of the Franco dictatorship should be extradited to Argentina to stand trial for a host of alleged human rights abuses.
Servini, who since 2010 has been investigating the genocide that’s widely acknowledged to have happened under Franco’s regime, employed the idea that some crimes like mass human rights violations, war crimes etc. are so abhorrent that they demand action beyond the legal frontiers of nations. That’s more or less what universal jurisdiction means. It’s being used in this case because of a specific law in Spain. It was introduced after Franco died and the dictatorship gave way to democracy in the 70s, and it enshrines a ‘pact of forgetting’ into Spanish law that means no-one will be persecuted for past deeds that happened during and after the Spanish Civil War, won by the fascists in 1938-9. Franco ruled as dictator from then until his death in 1975, and amnesty was introduced by 1977.
It’s similar to a previous law Argentina made after it did away with its very own military dictatorship. Unlike in Spain, though, former President Nestor Kirchner changed the rules and as a result many former human rights abusers were successfully brought to justice. After his death, this process continued under Cristina Kirchner’s government. Since no such rethink has happened in Spain, its judges are muzzled and prevented from going after many of the fascists of yesteryear who are still roaming free.
Despite this legal barricade, Argentina and Spain have an agreement over extradition, so there might be scope for cooperation on matters like this. Some Argentine ex-military were tried by Spanish judges in this way before with success: Adolfo Scilingo, for example, was found guilty of mass human rights abuses and killings during the military regime and remains behind bars to this day.
So this current situation follows on from other examples of universal jurisdiction; where judges assume a ‘without borders’ role on the grounds of upholding the principle of human rights. Perhaps the most famous and relevant case had to do with another 20th Century fascism, this time of General Augusto Pinochet. After his brutal rule over Chile ended he stayed on as head of the army, but was detained in the UK when a celebrated Spanish Judge, Baltasar Garzon, issued an international warrant for his arrest.
The ex-dictator eventually weaseled his way out of standing trial thanks to his claiming ill health and an indulgent British government. But the incident showed that arrests are possible when universal jurisdiction is brought into play.
Like the Scilingo case, this event also displayed the small part in Spain’s legal history where the concept has been used to catch those suspected of human rights abuses. Just not for their own citizens so far. In fact, Garzon tried to do something similar to what Servini is doing now from Argentina, and get to the bottom of the atrocities committed by the Franco regime. As a result, he was put on trial himself by the Spanish Supreme Court in 2010. Even though he was eventually cleared of the accusation of ‘abuse of power’ leveled at him for investigating the topic in the first place, the incident indicated the entrenched position that remains on the controversial amnesty.
So does Servini have a better chance working from Argentina? Well, since she isn’t bound by the Spanish amnesty law, that would be the hope. This is a law by the way that has stayed in place despite calls for repeal from a host of human rights groups, international lawyers and the United Nations itself, the organization that helped create the legal apparatus for protecting human rights globally with a special Charter. Since the amnesty law lives on, legal authority from other countries, preferably with closer ties to Spain like Argentina, must take on task of pursuing suspected cases of human rights violations.
The case against those people whom Servini is demanding be extradited is a forceful one, as you might suspect regarding anyone who was involved in General Franco’s terroristic dictatorship. Among the accused are Rodolfo Martin Villa, 79, who was a high ranking official under Franco, and Jose Utera Molina, the regime’s former Minister for Housing. It’s suspected that Villa, for example, ordered a police raid on a protesting workers’ camp which killed five of them who had been sheltering in a church. Utera, among other allegations, is thought to have signed the death warrant for famous Catalonian anarchist Salvador Puig Antich. The most committed opposition to Franco during the Civil War and afterwards came from the organized Left: trade unions, socialists or anarchists like Antich. Under Franco’s regime tens of thousands were executed, while hundreds of thousands more of his political opponents were imprisoned, tortured or exiled.
The true extent of this Spanish Holocaust is only now beginning to be understood. Since the millennium, a series of mass graves have been unearthed in Spain thanks in part to the work of campaigns like the Association for the Recovery of Historical Memory, which welcomed Servini’s call for extradition as “a great day”. The inroads made by this group (which was founded by the grandchildren of Republicans murdered during the Civil War) and others like it show how the violence that erupted in Spain’s Civil War between 1936 1939 continued with severity under Franco. Experts estimate that over 20,000 political opponents were executed in a systematic campaign of revenge against all those who’d fought for and been sympathetic to Republican Spain. On top of this, hundreds of thousands more were tortured, imprisoned and died in concentration camps.
Many countries during the twentieth century were affected by military and totalitarian horrors of a similar nature to this, Argentina among them. In trying to face up to this difficult past, it’s hoped that international cooperation, particularly in a legal sense and between nations that bear similar scars, can offer a useful platform and finally help heal old wounds. This process underlines the view that atrocities like this are a global issue, a serious problem for humanity as a whole. By using universal jurisdiction as a tool Servini is flying the flag for that cause and may yet produce results.