Next steps in the pursuit of justice for the Spanish victims of Franco's dictatorship
Olga Martín-Ortega[1] and Rosa Ana Alija-Fernández[2]

In the last two years, victims of the Spanish Civil War (1936-1939) and General Franco's dictatorial regime (1939-1975) have made several attempts to have the atrocities perpetrated during that long period adjudicated, but so far unsuccessfully.

The first real chance for justice, truth and reparation seemed to come with the decisions issued on 16th October[3] and 18th November 2008[4] by judge Baltasar Garzón, where he considered that a number of crimes of illegal detention had allegedly been committed from the beginning of the war in 1936 to the end of the repression against the Resistance movements in 1952, in a context of a systematic plan to eliminate political opponents through murder, torture, exile and forced disappearance. Victims of illegal detentions were of two kinds: those who, after 1936, were "paseados" ("taken for a stroll") -that is to say, abducted from their houses or taken from detention centres and executed on a side of a road, where many of them are still buried- and those who when they were children were either stolen from their biological mothers or "recovered" abroad and taken back to Spain with or without their parents' consent.

The judge argued that these crimes were to be considered crimes against humanity of forced disappearance. According to his judicial resolution the acts committed were crimes at the time because they were against the Laws and Customs of War and Laws of Humanity, as they were committed after the critical date of the 30th January 1933 established in the Control Council Law nº 10 (article 2.5). Therefore, the principles recognized in the Charter and judgment of the International Military Tribunal of Nuremberg should also apply to crimes committed in Spain after the beginning of the Civil War in 1936. This would avoid a retroactive application of international law, and therefore the principle of legality (nullum crimen sine lege) would be observed.

The characterisation of these crimes as crimes against humanity would make the Spanish Amnesty Law of 1977 inoperative, if not in whole, at least as far as the duty to carry out an effective investigation is concerned. Accordingly, the judge pointed out the urgent need to find the places where the victims might be (by exhuming the corpses buried in the ditches by the roads or by identifying those who were stolen children) in order to obtain proofs of the crimes committed. The judge decided that such measures should be taken by the territorial Preliminary Investigation Courts ("Juzgados de Instrucción") where the graves are located.

However, the Preliminary Investigation Courts involved (more than 60) have scarcely taken notice of the duty to investigate. So far, only one has ordered the opening of two graves, while the general tendency has been to close and archive the cases. Several are the arguments have been relied on to close the cases, i.e. that the crimes weren't legally defined when the facts happened, that the time prescribed in the statute of limitations has elapsed, or that the acts were granted amnesty by the Law of 1977.

Despite of the lack of action of the aforementioned courts, the existence of such procedures has been used by a federal judge to exclude the jurisdiction of Argentinean courts regarding the crimes committed under Franco's government in a criminal claim for genocide and/or crimes against humanity filed on 14th April 2010. This claim was filed in the Argentinean Federal Chamber by two residents of Argentina, relatives of four victims[5] , and several victims associations, including the Asociación de Recuperación de la Memoria Histórica (Association for the Recuperation of the Historical Memory) and the Grandmothers of Plaza de Mayo. It is the latest step taken by victims in their search for justice at the criminal jurisdiction level[6] and has opened a completely new scenario.

The claimants argue that the facts constitute crimes under the Argentinean Criminal Code, and -basing most of its factual interpretation and legal reasoning on judge Baltasar Garzón's judicial resolutions from 2008- argue that the crimes committed during the Civil War and under Franco's regime, from 1936 to 1977, can be considered genocide and/or crimes against humanity (although these two categories are not expressly included in the Argentinean Criminal Code). The difference in the legal reasoning between both initiatives must be noted, however. As noted, Garzón had qualified the crimes considered in his resolutions exclusively as crimes against humanity, on the basis that they were violations of the Laws and Customs of War and Laws of Humanity, already proscribed at the time they were committed. This reasoning relies onthe existence, as early as 1936, of a special category of war crimes, namely the criminal category of crimes against humanity, as the International Military Tribunal of Nuremberg established in 1946. The claim before the Argentinean courts, however, asserts that the facts can also constitute the crime of genocide. Such interpretation is highly questionable. In our opinion it is rather more difficult to sustain that the crime of genocide existed before the beginning of the war in 1936. As it is well known the concept elaborated by Raphäel Lemkin was first theoretically described in 1944[7], and it wasn't legally established until 1948 by the Convention on the Prevention and Punishment of the Crime of Genocide.

The validity of the Amnesty Law of 1977 is also questioned by the claimants before the Argentinean courts. This law, which precedes the Spanish democratic constitution, arguably doesn't comply either with the constitutional principles of justice and judicial remedy or with the international legal principles which establish the rights of victims to justice, truth and reparation. Thus, it should not be an obstacle for these crimes to be tried in Spain. In any event, it cannot affect the jurisdiction of judicial bodies abroad, including the Argentinean courts, whose jurisdiction would derive from the principle of universal jurisdiction.

The claimants have argued that the Argentinean courts have jurisdiction on the basis that article 118 of the Constitution of the Nation implicitly contains the principle of universal jurisdiction. Such disposition provides that a special law will determine the place where crimes against the Ius Gentium committed outside the limits of the Nation have to be tried. The claimants sustain that such special law is the law n. 26200, of implementation of the International Criminal Court Statute (ICC Statute), passed on December 13th, 2006, which grants jurisdiction to the Federal Courts to try crimes within the competence of the ICC (article 5). However, if analysed closely, it would be evident that the ICC implementation law does not provide a sufficiently strong jurisdictional ground for universal jurisdiction for the crimes alleged in the claim. .

Article 3 of the Argentinean ICC implementation law provides that it applies to: (a) crimes committed in a territory under Argentinean jurisdiction, (b) crimes committed abroad by Argentinean agents or authorities in their official duties, (c) crimes committed by Argentinean citizens or residents in Argentina, and (d) crimes committed in any other case as established in international treaties to which Argentina is party. Option (d) is the only one that the events in the case could fit. However, the requirement of an international treaty to provide jurisdiction over the crimes would exclude universal jurisdiction over crimes against humanity (although it has been stated that this possibility has been admitted by the National Chamber of Appeal on the Criminal and Federal Correctional[8]). No treaty establishes universal jurisdiction for crimes against humanity. In the case of genocide the Convention on the Prevention and Punishment of the Crime of Genocide would provide the legal basis for jurisdiction. However, a further legal obstacle should be considered when analysing the options for success of the claim: the definition of genocide used by the claimants as opposed of that of the Genocide Convention. The claim relies on an extensive interpretation of groups protected by the Convention. According to the claim genocide on national grounds includes political groups. This extensive interpretation can be easily challenged. Resorting to a historical interpretation it could be argued that the positions of States during the preparatory work of the Genocide Convention excluded the consideration of political groups as included in the category of national groups under the Convention. This restrictive definition was later confirmed by article 6 of the ICC Statute. It should be noted, nevertheless, that an extensive approach towards the definition of national grounds to include political groups has already been allowed by Argentinean courts[9]. Therefore, we could find this argument uphold by the courts again.

The Argentinean Prosecutor did not consider any of the legal arguments described above when opposing the admissibility of the claim According to the Prosecutor, Argentinean courts could only hear the case if the country with territorial jurisdiction had not done so; instead, in his opinion, universal jurisdiction could not apply as far as there are already opened trials for these crimes before the Spanish courts. The Judge of the Federal Chamber María Servini de Cubría dismissed the claim on 7th May 2010 relying on the same arguments. But, as indicated above, criminal procedures are not currently being carried out in Spain, which prompted the claimants to appeal the dismissal.

On the 18th May 2010, Judge Servini de Cubría notified the claimants that their appeal had been admitted. Spain, and the world, look towards Argentina to provide the forum that has been denied in Spain and to advance further in the granting of universal justice for human rights atrocities.

⁸ Alberto Luis Zuppi, Jurisdicción universal para crímenes contra el derecho internacional. El camino hacia la Corte Penal Internacional 24 (Buenos Aires, Ad Hoc) (2002).