To the surprise of human rights defenders everywhere, the Spanish Supreme Court on Friday, February 10 found Judge Baltazar Garzon, the path-breaking jurist who took the prosecution of Chilean General Augusto Pinochet to a new international level, guilty of authorizing improper wiretaps of conversations between a prisoner and his attorneys and sentenced him to incapacity to work in the legal profession for 11 years. The wiretapping was of conversations of a man named Gurtel, who is very well connected with far-right political figures in Spain’s Partido Popular, which won decisively in recent national elections.
The supposed crime of Judge Garzon was a pretext for halting his investigation of events during the years of Francisco Franco’s rule in Spain, when thousands of the supporters of the Spanish Republic, which General Franco overthrew, were taken from their homes and murdered. Judge Garzon’s exceptional work in favor of the international application of human rights law and humanitarian law principles led to the arrest of General Pinochet in England for war crimes he had committed in Chile after taking power in a bloody coup against popularly-elected President Salvador Allende on September 11, 1973. Those guilty of crimes committed by the Franco government and their descendants fear that Judge Garzon’s inquiry into events during Franco’s rule will lead to discovery and publicity of these crimes, and providing of compensation to the families of the victims of those murdered on Franco’s orders. They rely upon an amnesty law passed years ago, though one may properly ask whether an amnesty law is at all appropriate when (as in the Spanish case) events have simply been swept under the carpet and no meaningful public revelation of many crimes and who committed them has ever occurred.
Baltazar Garzon gave life to the proposition that persons guilty of war crimes, of crimes against humanity, could be prosecuted in any forum, since these are universal crimes. For those of us who have spoken out in the Colombian context to have those who commit or order massacres and other mass crimes be made to respond for their crimes, justice is not done unless those responsible for these crimes tell the truth about what happened and are punished for their illegal actions, to the extent still possible. And reparations should be provided to the victims of state-sponsored violence and their families.
Judge Garzon was found guilty and sentenced, not for exceeding the authority of a judge to order wiretaps, but because he was reopening chapters of Spanish history which well-placed perpetrators of the violence and their associates—followers of Francisco Franco—have kept closed since the fall of the Spanish Republic and the following cruel years of Franco’s fascist government. As any reasonable observer of legal practice knows, a judge who arguably exceeds his authority in ordering or approving wiretaps as a discovery mechanism in a criminal case—something Judge Garzon has argued he did not do, as his ordered wiretaps did not exceed his judicial authority—would receive a reprimand or other mild sanction. The Spanish court terminated Judge Garzon’s legal career in Spain because he was delving into the unpunished crimes of the Franco regime, which any court would understand must be uncovered if justice is to be done. It is extremely unjust to grant an amnesty before the facts of the crimes are brought to light.
Judge Garzon’s fate is of more than passing interest to those of us who seek to have justice done in Colombia. He has taken an interest in what has happened in Colombia in the past several years, when state security forces have collaborated with paramilitary forces to cause tens of thousands of deaths noncombatant civilians. Judge Garzon visited Colombia with International Criminal Court (ICC) Prosecutor Luis Moreno-Ocampo and they observed mass graves in the countryside, an indication of crimes against humanity which had taken place there. And ICC Prosecutor Moreno clearly indicated that if the Colombian government does not prosecute those responsible for these crimes, the ICC will take notice and very well may exercise jurisdiction to prosecute them. (It is remarkable to note that such a prosecution could occur for Colombia, which is a signatory of the treaty which established the ICC, but it could not occur for crimes committed by the United States, which has not agreed to the jurisdiction of the ICC, apparently because Presidents George W. Bush and Barack Obama consider that we as a nation are above the reach of international criminal law standards.)
The response to Judge Garzon’s conviction and suspension by the Secretary General of the Organization of American States (OAS), Jose Miguel Insulza, was both courageous and correct. He criticized the Spanish court’s decision as “exaggerated and out of all proportion to (Judge Garzon’s) alleged improper actions”. Then he said that “the doors of the OAS will always be open to work with Garzon”. Hopefully we may see the doors of other courts open to Judge Garzon, including those of the United States. Indeed we need to make clear our commitment to justice by ratifying the International Criminal Court statute and showing to the world that we do not consider ourselves to be above the reach of international humanitarian law and the principles of human rights.
John I. Laun
March 25, 2012