The indictment of Garzón has implications that reach far beyond Spain. A guilty verdict would effectively terminate Garzón’s career as a judge, and thereby deprive the global Left of one of its most ambitious legal activists. It would also mark the beginning of the end of Spain’s foray into cross-border jurisprudence, which has been branded as politically motivated harassment of select right-leaning foreign governments, including in Israel and the United States.
The current dustup began in October 2008, when Garzón accused General Francisco Franco and 34 of his former generals and ministers of crimes against humanity in connection with mass executions and tens of thousands of disappearances of civilians between 1936 and 1952. Garzón also ordered the exhumation of 19 mass graves.
Considering that the Spanish Civil War ended more than 70 years ago, and that Franco died in 1975, few suspects, even if identified, would be alive today to stand trial. But the main objection to Garzón’s probe has stemmed from the fact that he decided to limit his investigation only to crimes committed by the right-wing Nationalists (ie, the Francoists). His enquiry did not extend to political crimes committed by the left-wing Republicans (anti-Francoists), which included Marxists, liberals and anarchists. Republican death squads murdered up to 70,000 clergy, nuns and ordinary middle class Spaniards in a veritable reign of terror that largely contributed to the rise of Franco.
Garzón’s supporters say Spain needs an honest accounting of its troubled past and they view his probe as seeking a long-overdue indictment, even if only a symbolic one, of the Franco regime. But the one-sided nature of Garzón’s probe has sparked outrage among Spanish conservatives. They accuse the judge (who in 1993 took a leave of absence to run for a seat in Spanish parliament as a member of the Socialist party, but returned to the bench in anger only a year later after he was passed over for Justice Minister) of political grandstanding and pursuing a personal vendetta against them.
After a number of conservative groups filed complaints against Garzón for not applying the law equally, the Supreme Court appointed Varela to examine the case. In a 14-page ruling, Varela concluded that Garzón had manipulated the course of justice by knowingly violating a 1977 amnesty law that shields all sides, including members of the Franco dictatorship, from legal persecution. Moreover, a 2007 Law of Historical Memory, explicitly gave the lower courts (not Garzón’s high court) jurisdiction over locating and digging up the mass graves that still dot the Spanish countryside.
Varela charged that Garzón, in order to get around these restrictions, tried create law rather than administer it. “Aware of his lack of jurisdiction and that the crimes reported lacked penal relevance when the proceedings began, [Garzón] built a contrived argument to justify his control of the proceedings he initiated,” Varela wrote in his ruling.
Garzón denies any wrongdoing and has defended his probe as legitimate. But even some of his admirers say vanity is the natural weakness of an ambitious man. Indeed, some observers believe that Garzón has come to view himself as an “exceptional” judge, not bound to the laws and Constitution of Spain, as are other judges. As a result, they say, he is increasingly prone to overreaching his authority.
In a separate case, for example, Garzón is being investigated for asking Emilio Botín, the chairman of Spain’s largest bank, for a $300,000 grant to pay for a course at New York University in which the judge participated. At the time, Botín was due to stand trial in Garzón’s own court on charges of financial misappropriation. After receiving the grant money, the charges against Botín were dropped.
In another case, the Spanish Justice Minister was forced to resign after going on a hunting trip with Garzón, who was investigating corruption in the opposition Popular Party. PP leader Mariano Rajoy accused the two men of leaking information to the press in a bid to influence regional elections, and called on Socialist Prime Minister José Luis Rodríguez Zapatero to explain the relations between his government and the judicial authorities.
Garzón jumped to international fame as a leading proponent of Spain’s doctrine of universal jurisdiction, which holds that crimes like torture or terrorism can be tried in Spain even if they are alleged to have been committed elsewhere and had no link to Spain.
In 1998, Garzón had former Chilean dictator Augusto Pinochet arrested during a visit to London, although Britain ultimately refused to extradite him to Madrid for trial. Since then, Garzón has used the principle of universal jurisdiction to go after current or former government officials such as former US Secretary of State Henry Kissinger, Italian Prime Minister Silvio Berlusconi, and around 100 leaders of the 1976-1983 military junta in Argentina. At one point, Garzón and his colleagues were pursuing more than a dozen international investigations into suspected cases of torture, genocide and crimes against humanity in places as far-flung as Tibet and Rwanda. But many of these cases have had little or no connection with Spain and critics say the judges have been interpreting the concept of universal jurisdiction too loosely.
Calls to reign in the judges increased when Spanish magistrates announced probes involving Israel and the United States. In January 2009, Spanish National Court Judge Fernando Andreu said he would investigate seven current or former Israeli officials over a 2002 air attack in Gaza. In March, Garzón said he would investigate six former Bush administration officials for giving legal cover to torture at the American prison at Guantánamo Bay, Cuba. And in May, another Spanish high-court judge, Santiago Pedraz, said he would charge three US soldiers with crimes against humanity for the April 2003 deaths of a Spanish television cameraman and a Ukrainian journalist. The men were killed when a US tank crew shelled their Baghdad hotel.
In any case, Garzón and his colleagues have been highly selective about the cases they take. For example, they have never tried to prosecute any Palestinian terrorists for war crimes. Nor have they had much zeal for investigating crimes against humanity in Chechnya or Darfur. Nor have they prosecuted any of the suspected Nazi war criminals who sought refuge in Spain after the end of World War II.
In 2009, Attorney General Cándido Conde-Pumpido asked Garzón to shelve his case against the Americans and warned of the risks of turning the Spanish justice system into a “plaything” for politically motivated prosecutions. Instead of heeding that advice, Garzón opened yet another investigation that seeks information on everyone who authorized and carried out the alleged torture of four inmates at Guantánamo Bay.
Concerned that Spain’s judicial system was being hijacked by left-wing groups out to pursue political vendettas (and that Spain’s media savvy judges were more interested in scoring political points than in upholding the law), the Spanish parliament in 2009 passed a bill to narrow the scope of the universal jurisdiction law to cases in which the victims of a crime include Spaniards or the alleged perpetrators were in Spain.
Regardless of whether Garzón is ultimately absolved of misconduct, the case against him has badly damaged his reputation and authority. It has also cast a dark shadow over the entire Spanish justice system. The silver lining is that from now on Garzón and his colleagues may think twice before pursuing politically motivated cases, especially outside of Spain.
Henry Kissinger once warned that “universal jurisdiction risks creating universal tyranny — that of judges.” The irony in Spain is that the judges, led by Garzón, have been responsible for their own undoing.
Soeren Kern is Senior Fellow for Transatlantic Relations at the Madrid-based Grupo de Estudios Estratégicos / Strategic Studies Group