Sitting in the Spanish Supreme Court during the trial of Spanish judge Baltasar Garzón, who dared to begin an investigation into atrocities committed under Francisco Franco and during Spain’s civil war, I thought back to the last time we were in a courtroom together: It was 1998 in Westminster Abbey, as the Judicial Committee of the House of Lords debated whether Britain could honor Garzón’s warrant for the arrest and extradition of Chile’s former dictator Augusto Pinochet. In two historic decisions, the House of Lords said it could, setting off an international justice cascade and inspiring victims in country after country to seek recourse against their former tormentors. Human rights groups like mine saw that we could use the “Pinochet precedent” to bring to justice tyrants and torturers who had seemed out of its reach.
By the time Britain ultimately sent Pinochet home, ostensibly on health grounds, previously timid Chilean judges ruled that Pinochet’s self-amnesty could not apply to the “disappeared” while their fates remained unknown, and hundreds of cases were brought against the former dictator. Indeed, courts around the world would rule that amnesties could not stand in the way of a state’s duty to investigate the worst international crimes.
The “Garzón effect,” as it came to be called, was strongest in Latin America. Argentina, Guatemala, Peru and Uruguay brought former leaders to justice. In far-off Chad, the victims (whom I represent) of the former president Hissène Habré labelled him the “African Pinochet” and got him indicted on charges of crimes against humanity in his Senegalese exile.
But when Garzón turned his sights to his home country, things took a different turn. The judge had made many enemies in Spain over the course of his long career. Conservatives were gunning for him since the start of the so-called “Gürtel” scandal, which unearthed massive corruption within the now ruling Partido Popular, or People’s Party. On the other side of the political spectrum, some Socialists hadn’t forgiven him for investigating government backing of an anti-ETA death squad decades before. Politicians on both sides were discomfited when he began investigating crimes against Spanish detainees at Guantánamo, bringing pressure from both the Bush and Obama administrations.
But it was the crime of reopening the books on the country’s past that would prove to be most intolerable. When the descendants of Franco’s victims filed complaints over the forced disappearances of more than 100,000 people—Spaniards were challenging the “pact of forgetting” that was part of their country’s move to democracy—Garzón held that the plaintiffs had a right to know what happened to the victims. He refused to apply Spain’s 1977 amnesty law for “political acts” to the complaints and began the process of ordering that mass graves be opened. One Socialist-appointed Supreme Court judge, upon hearing about Garzón’s challenge to the transition pact, is said to have chortled, “Se han acabado las Garzónadas…. se va a enterar.” (“This is the last of the Garzóneries. Now he’ll see.”)
A divided appeals court ruled that Garzón should have applied the amnesty law to cut off the complaints. A group of right-wing conservatives petitioned the Supreme Court to prosecute Garzón for prevaricación or criminal malfeasance—the rarest of charges against a judge—and the court accepted the case.
Open season on Garzón was declared. The conservative Supreme Court quickly approved two other prevaricación cases against him: one for issuing a judicial instruction to intercept lawyer-client communications in the Gürtel scandal, and another relating to the financing of classes he gave at New York University. (That case was thrown out this week.) Testimony during the former showed that not only was one of the lawyers who was wiretapped later arrested for money laundering but the intercepts were recommended by the state prosecutor and renewed by the judge to whom the Gürtel case was transferred. Although such intercepts are always a delicate matter and are quashed by Spanish courts as often as they are upheld, Garzón’s is the first case in which a judge was put on trial for ordering them.
The Franco trial followed. Ironically, it provided the venue for some family members of Franco’s victims to present their testimony in court for the first time after decades of silence. Maria Martín López, 81, described how, as a little girl, she watched her mother being dragged away to be shot. Josefina Musulén’s pregnant grandmother was captured but apparently kept alive until she gave birth to a baby girl, for whom Musulen has searched ever since. The victims, of course, would have preferred to be in the courtroom to hold accountable their family’s killers, rather than to defend the judge who sought to investigate those crimes.
On February 9, the day after the Franco trial ended, the verdict in Gürtel came down. In sixty-nine vitriol-filled pages, the Spanish Supreme Court accused Garzón of “totalitarian” practices in ordering the intercepts and suspended him from the courts for eleven years, effectively ending his judicial career.
Garzón, who is closest thing the human rights movement has to a rock star, already has international employment and will land on his feet. The losers are those in Spain, in Latin America or in detention at Guantánamo who knew they could count on at least one independent judge to apply human rights laws without fear of the political consequences.