Jonathan P. Baird

Almost two years ago I wrote a blog entry about Spanish Judge Baltasar Garzon. Garzon had famously pursued the former Chilean dictator, General Augusto Pinochet under the doctrine of universal jusrisdiction. Judge Garzon is probably one of the best known judges in the world but he is little known in the United States. Besides issuing a warrant that resulted in the arrest and detention of Pinochet in London, Garzon had indicted Osama Bin Laden and some Al Qaeda associates. He also had attempted to indict members of the Bush Administration for authorizing torture at Guantanamo and elsewhere.

I wanted to offer a further perspective on Judge Garzon because of recent developments. In February, Spain’s Supreme Court removed Garzon from his judicial post and suspended him from the judiciary for 11 years. Philippe Sands, an international law expert, had this to say:

“This is very troubling; targeting an independent judge or prosecutor through the criminal justice system anywhere raises very serious concerns. To sanction a possible breach of ethics or misconduct is up to professional organizations. To bring down the criminal justice system on an investigative judge for an alleged fault is to use a sledgehammer to crack a nut. It is almost unique in Europe.”

The Garzon removal highlights the tension between an independent judiciary and regimes struggling to overcome a history of fascism or authoritarianism. Judges who are trying to do their jobs will be subject to the politics of the day. That could well mean interference, repression, prosecution, and removal.

I think the issues presented are almost universal. Lawyers and judges have generally not had a distinguished record either in opposing developing authoritarianism or in combating its aftermath. Possibly this is because the role of lawyer and judge is typically conventional. Stepping out may be a career, not to mention personal economic security, blaster. While this is obviously a complicated and wide-ranging generalization, I would cite the leading negative example of lawyer/judge conduct in Nazi Germany. To quote Raul Hilberg:

“The machinery of destruction included representatives of every occupation and profession.” (p.65 “Perpetrators, Victims and Bystanders” by Raul Hilberg)

While this is a subject very worthy of a separate blog piece (and more), I would say that lawyers and judges greased the way for fascism by creating a legal veneer and justification for a long series of Nazi actions. Not only did lawyers and judges not protest, they acted as loyal functionaries in an ongoing criminal system that masquaraded as legal. How and why they collaborated interests me as well as how the process unfolded. I am aware of Robert Jay Lifton’s book about Nazi doctors. I am not aware of any comparable book that has looked at the role of lawyers and judges in the Third Reich.

Spain in 2012 is far different than Germany during the Nazi era but the connection between human rights and a traumatic fascist history steeped in atrocities is similar. Unlike Germany, Spain has never had the equivalent of a Nuremberg Tribunal.

Judge Garzon angered Spanish rightists because in 2008 he launched an investigation into Spanish Civil War atrocities. Garzon was looking into the deaths of 114,000 people who had been disappeared during the fascist years. For many years, children and grandchildren of General Francisco Franco’s victims have been trying to find out what happened to their family members. Spain is littered with mass graves from the fascist period.

Garzon’s actions threatened people on the Right who, for whatever reason, did not want an investigation into past crimes. They had previously felt protected from such an investigation by a 1977 general amnesty law. That law was part of a compromise that allowed Spain to transition from fascism to democracy. Under the amnesty law, perpetrators of war crimes could not be prosecuted.

Even before the events of this year, Garzon had argued that the amnesty law could not cover mass human rights abuses. Universal jurisdiction would allow for prosecution of extraordinarily grave crimes against humanity such as torture and mass extermination. This was the basis the Israelis used, under international law, to try Adolf Eichmann.

However, in 2010, Spain’s Judicial Council suspended Garzon. The Council accused him of breaking the amnesty law of 1977. Previously the law had been interpreted to prevent any investigation into crimes committed before 1976.

It is an embarrassment and an international humiliation to arrest a judge for investigating tortures and disappearances. To quote Reed Brody, a lawyer from Human Rights Watch:

“…the spectacle of a judge as a criminal defendant, having to justify his investigation into torture, killing and disappearances was itself an affront to human rights and judicial independence.”

It must be pointed out that there is no statute of limitations under international law for prosecuting crimes against humanity. Franco’s victims have been trying to repeal the amnesty for years. The cases against Garzon are a form of reprisal for his attempt to unearth the past. Taking down Garzon protects against disclosure and possible future prosecutions.

There have been three cases brought against Garzon. The case that resulted in his removal from the judiciary had to do with supposed illegal wiretapping he authorized in a routine criminal corruption case. Garzon has vehemently denied the charges. While it is possible Garzon committed misconduct, my theory is that the cases collectively were meant to sideline and silence Garzon by putting him on the defensive. He cannot investigate when he has to spend huge resources defending himself. The tactic is hardly unusual as a way to stop a political foe although the use of the criminal justice system to shut up Garzon is a disturbing precedent.

Garzon has publicly stated that he will fight his judicial removal in Spain’s Constitutional Court or in the European Court of Human Rights. He is being prosecuted in Spain for trying to promote the principles he has successfully promoted internationally.

“This is the paradox and the irony of a situation in which Spain has been a pioneer in the application of universal jurisdiction. Yet, when it actually comes to investigating the case and the facts of the case in Spain, the country denies access to the facts and puts the judge himself on trial. It is the obligation of a judge to investigate the cases and to search for truth, justice and reparations for the victims of these crimes.” (Garzon interview by Amy Goodman on Democracy Now, May 12, 2011)

It will be interesting to see if Garzon can reverse the verdict imposed against him. His “disappearance” from the judiciary is a loss to the cause of human rights.