Rather than justice, Spain elected for collective amnesia to deal with the crimes of General Francisco Franco (Public Domain)
Impunity, as the absence of justice, is the second of two assaults on both the law and the dignity of victims, being second only to the original crime itself. Impunity is one of the greatest affronts to society and to the rule of law and, far from being transient, it endures until subsequent governments or judges either repeal or nullify the legislation that created it or developed it as a means of evading legal redress.
As lived reality or in the law, impunity is usually present in some form in our lives, whether through laws designed to protect big criminals, a judicial inability to confront both major and minor criminal activity, an absence of political will to tackle weaknesses in the judicial system, unrestrained granting of pardons in circumstances of transitional justice, or irrational acquittals or illegal amnesties. All with scant regard for accepted international standards and the doctrines of human rights courts and tribunals that prohibit such actions.
Between domestic and international law
I regard illegal amnesties as examples of impunity when they effectively contradict international law rather than domestic legislation. By this I mean that the enactment of legislation–especially designed by governments or legislative assemblies–that specifically aim to avoid investigation and punishment of the most serious international crimes (genocide, crimes against humanity, war crimes, torture, and enforced “disappearances”, among others). No amnesty law should obstruct access to justice or the consequences of such actions.
In its December 2012 condemnation of El Salvador for the massacre at El Mozote, the Inter-American Court of Human Rights is clear and definitive: ”Persons guilty or suspected of war crimes may not be granted amnesty. Article 6.5 of the Additional Protocol II to the 1949 Geneva Convention refers to broad amnesties for those who have participated in non-international armed conflicts or who have been imprisoned for reasons relating to an armed conflict, provided they have not participated in acts that would qualify as war crimes and crimes against humanity.”
The reference here is to crimes that, by reason of their exceptional cruelty, cease to be simply an assault on the citizens of a state, becoming an offence against humanity. In the latter case, domestic law cannot impose barriers to humanitarian law and human rights that have evolved over time and through ius cogens (preemptory norm) to become part of the custom and practice of international law.
The non-applicability and inadmissibility of amnesties for these kinds of international offences constitute two of the great milestones of the last century in the development and conceptualisation of the idea of ius cogens. We owe credit for these developments to the hard work of treaty negotiators, the good work of some states that have succeeded in consolidating international norms, and the consensus necessary to gain acceptance for certain precepts that strengthen the modes of prevention and abolishment of major international crimes.
The importance of consolidating these advances has been evident throughout history, especially from the 20th century up to present day. A society that is increasingly demanding of its leaders and conscious of its rights cannot continue to accept high doses of impunity during, and in the wake of, significant conflicts. Various expedients have been–and to some extent still are–in use. We can thus observe several recurring examples of amnesty. On the one hand, there is the so-called ‘auto-amnesty’, in which an exhausted authoritarian regime, powerless to resist pressures for reform and democratisation, safeguards the future of its leaders by granting a general amnesty via the imposition of impunity laws. On the other hand, there is mutual amnesty between conflicting groups, and amnesties granted by democratic or pseudo-democratic governments as a means of dealing with periods of transition.
The first of these cases is probably the most unsavoury, and we have more than enough examples worldwide, especially in Latin America (Chile, Argentina, Perú, El Salvador, etc.). Here, the perpetrators employ relevant institutional powers to forge a renewed ‘democratic’ structure, in which they receive a guarantee of legal impunity for previous criminal activities justified by a misguided concept of national security and stability. Such is the case of the Chilean dictator Augusto Pinochet. Despite the gradual democratisation signalled by the 1988 national referendum to remove him from power, he clung to his position as head of state for a further two years, and his subsequent appointment as a senator for life took place and was previously sanctioned under the terms of decree no. 2191 in 1978. This law provided amnesty for the crimes committed between 11 September 1973–the date of the overthrow of Salvador Allende–and 10 March 1978–a period generally regarded as the cruelest of the dictatorship, even though tortures and executions continued until the very end of Pinochet’s rule.
The same model was chosen in March 1983 in Argentina with the declaration of law 22,924, intended to ensure the impunity of the leaders of the military dictatorship in Argentina, which was characterised by multiple tortures, extra-judicial killings and enforced disappearances. Shortly after, the law was annulled and the military juntas brought to book. But after democracy had been restored, the amnesty laws Punto Final (Endpoint) and Due Obedience were enacted in 1986 and 1978 respectively, and were revoked only in 2005. Thereafter, all crimes against humanity, genocide or war crimes have been subject to investigation and trial.
Peace treaties and transitional justice
The second category of cases involves groups that are jointly responsible, or at least both significantly responsible, for crimes committed within the context of an internal conflict. In such circumstances, it is easy to make the mistake of advocating for peace while disregarding demands for justice. This overlooks the fact that for peace to be just and sustainable, the victims must to be a central focus in the design of transitional justice. Accordingly, this should be implemented with respect to international law and with due acknowledgement of the need for truth and reparation, of which justice is itself a part.
When there is a negotiated end to an internal conflict, as is happening in Colombia–a country that has witnessed hundreds of massacres, millions of enforced displacements, systematic land seizures, and tens of thousands of disappearances– it should be understood that peace does not just mean an agreement between the government and the insurgents, but also respect for the people, whose rights are at stake. The protection of rights, secured through years of struggle is a crucial piece of everyone’s heritage, must remain at the epicentre of any agreement.
Finally, there are amnesty laws approved by transitional governments of a democratic or pseudo-democratic kind who pursue their political agenda by using amnesty as a tool to ‘smooth over' the path of political transition. This case seems to share some of the features of the previous ones, with the exception that a government presiding over a political transition can or may try to disown its own active and violent involvement in the conflict. Once again, negotiated pardons and the formal setting-aside of offences can only be valid if they meet certain requirements, and accordingly, there can be no amnesty for international crimes. This was the framework within which the aforementioned laws Punto Final and Due Obedience were approved. Enacted by the Argentinian government of Raúl Alfonsín, neutralised verdicts were decreed against the military juntas and effectively revived the ‘auto-amnesty’ decree of 1983.
Another example of this model is the ‘auto-amnesty’ laws promulgated by former Peruvian President Alberto Fujimori to guarantee his own impunity. This was subsequently annulled by the Inte-American Court of Human Rights in relation to the Barrios Altos and La Cantuta cases. In 2001, the court rejected the validity of these kinds of pardon, as a result of which Fujimori was convicted and harshly sentenced for his intellectual participation in these two notorious Peruvian massacres.
Shaking off Spain’s collective amnesia
After almost 40 years of Franco’s iron dictatorship, and in the midst of a succession of ‘terrorist’ actions and several attempted coups d’état, the politicians responsible for Spain’s transition to democracy–among whom were as many Francoists as democrats–gave way to the still-existing Francoist hold on power and approved an amnesty law in October 1977. This law targeted the victims of Francoism rather than the perpetrators of the crimes against humanity committed by the regime that remain unpunished despite several attempts to launch proceedings. Almost 80 years after the 1936 coup, total impunity persists. Consequently, the victims of Francoism are perpetually re-victimised. The more than 150,000 disappeared are still waiting for truth, justice and reparation.
Despite the judicial effort that I spearheaded in 2008 to investigate the facts, and the decisions of the United Nations (the Committee on Enforced Disappearances, the Truth and Reconciliation Commission, the Working Group on Arbitrary Detention, and the Committee on Human Rights) in addition to pressure from the victims, the impunity is absolute and the helplessness total, and seemingly irreversible. No attempt is even being made to apply the 2007 Law of Historical Memory.
Spain’s transition and her amnesty law are a perfect example of this particular category of impunity. The country’s well-known transition from an authoritarian system to a fresh, new democracy suffered the consequences of its own success in that the institutions refuse to acknowledge any criticisms or reproaches. Economic recovery–the so-called “Spanish miracle”–and the country’s renewed openness both in domestic and international politics were achievements that other nations have tried to emulate. Nevertheless, the reality is far from perfect. One of Spain’s mistakes was to allow values to endure that were in force during the previous regime. The failure to break with that system means that we have retained a philosophy of corruption and corrupt practice, an absence of transparency in our political parties and state institutions and, naturally, a great well of impunity from which Spanish society has proved unable to escape.
The collective amnesia that characterises most of the population is beginning to be shaken by the condemnations and above all by the persistent legal claims that the victims are generating, together with engaged elements of Spanish society. All is not lost. Action via universal jurisdiction that has been so important in combatting the impunity of dictators and repressive governments in other countries remains available as a means of ensuring that criminals are held to account. The victims have appealed to the federal courts of Argentina, as a result of which a window opened in 2011, and will stay open so long as there is a judge with the law in hand, ready and willing to act decisively.
Once again, as happened at the end of the 1990s with a Spanish judge, the victims have begun a pilgrimage towards justice, this time in Argentina. Universal jurisdiction has opened a new door to the possibility that justice will rule in their favour. From time to time as jurist and judge, I find myself unable to don the cloak of insensitivity worn by those who use the law to repress those who are most in need of it. Under the pretext of safeguarding the integrity of the law, they create the unimaginable insecurity that is both a feature and the bedrock of impunity. Failure to do everything possible to provide reparation to the victims is to guarantee that these crimes are repeated.
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