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Wednesday, April 21, 2010

Some thoughts on the Garzon lovefest: next step the ICC?

In recent weeks, the media and the human rights community have concerned themselves with the case against well-known Spanish judge Baltasar Garzon, famous among other things for initiating proceedings against former Chilean President Augusto Pinochet. I've mostly read expressions of support for the Judge, but they generally confuse the different issues under consideration.

Apparently, what Garzon is being prosecuted for is for having initiated an investigation into disappearances that occurred during the Spanish Civil War and the Franco era, therefore exceeding his jurisdiction because of a 1977 Spanish Amnesty Law covering these crimes. This situation raises several questions.

The first one, that all have put forward, is the validity of the amnesty in relation to international law. More specifically, are national amnesties for international crimes, more particularly crimes against humanity, contrary to international law? A lot has been written on this issue and this is not the place to answer the question. I have written an article expanding on the different aspects to be considered. In a nutshell, I don't think this is a relevant question in the context of the Spanish national system. IF, and I insist, IF, amnesties for crimes against humanity are deemed contrary to international law, the main consequence is that thet won't be recognised by another State's courts, or by international tribunals. It does not mean that they are not applicable in the legal system of the country that adopted them, in our case, Spain (and as an aside comment, anybody who has actually read the decisions on amnesties issued by the SCSL should be weary in referring to them, given their obscure drafting and debatable legal reasoning…).
More importantly, the international illegality is irrelevant in the national setting in relation to the specific procedure that undoubtedly exists to challenge the legality of a norm. Even if the amnesty is illegal under Spanish law, whose role is it to contest this amnesty? In most of the reports I've read, commentators seem to forget that Garzon is not an investigative judge of the world community, he is an investigative judge of Spain, and is an agent of its judicial system. Some have argued that the current proceedings run counter to judicial independence. But judicial independence does not mean unaccountability. A Spanish investigative judge cannot act beyond the scope of the jurisdiction of Spanish law and go beyond the powers vested into him by Spanish Law. It is not his role to contest this law. If Human Rights organisations, or victims' groups want to file a complaint in national courts opposing the legality of the 1977 Amnesty, fair enough, it is their role, not that of an investigative judge.

Another point that is highlighted in most commentaries, is the fact that "The charges were brought by two far-right groups who fear an open investigation of the Franco-era record" (NY Times Editorial) and that "allowing politically motivated groups to use the courts to intimidate magistrates and pre-empt investigations into past injustices appears to be a step backwards for human rights". Of course I don't have any sympathy for the far-right Francoist groups who brought the allegations before the court, but I find this remark a little disingenuous, or at the very least, naive. Courts are open to everybody, irrespective of whether one likes the person or group. When Amnesty International or Human Rights Watch file Amicus Curiae before national or international courts in favor of a certain position, they also are "politically motivated" (this would require some discussion on the useful but illusory narrative that human rights are "apolitical"...). They are also trying to "intimidate" dictators into not committing war crimes. Everybody has an agenda, and I refuse to deny legal standing based on my personal ethical evaluation of the ideological content of an organisation.

Finally, many have pointed out that Spain must face its past in order to move forward. Probably. But once again, how is that relevant to evaluating whether Judge Garzon has gone beyond his mandate in the existing legal setting? If that is his fight, he should quit and join activist groups that rightly call for more accountability for the Franco-era crimes. If he takes the risk of working on the fringes of legality, as an agent of the judicial system, he must bear the consequences of his actions.

In summary:
1) Yes, amnesties for crimes against humanity might be contrary to international law, 2) yes, one can argue that Spain's amnesty law prevents the country from facing its past, but 3) Garzon is not a human rights body (such as the Inter-american court of human rights) whose function is to evaluate these issues, 4) Garzon is not a political leader or human rights activist whose function is to promote change, 5) he is an investigative judge of the system, whose function is to investigate within the existing legal framework, and thefore 6) if he goes beyond his function, whatever the valid moral reasons to do so, he should bear the consequences and 7) if he's not happy with the existing legal framework, he should quit.

However much Garzon and his supporters have wanted to portray him as a world crusader against impunity, functionally, he is "only" a Spanish investigative judge. If he wants to campaign against amnesties in the international legal order (a perfectly legitimate goal), he should leave and continue his campaign as an international activist. Personally, and I know that might seem a little far fetched, I see some parallels between Garzon and Ocampo in portraying themselves as lone crusaders against the forces of evil. It must be an Hispanic cultural trait that could be called the Don Quichotte Complex, but that could be the topic of another post.With all this in mind, I'll take a side bet on the Garzon affair paving the way for him replacing Moreno Ocampo at the ICC. He would fit the bill perfectly in terms of experience and he would not be hindered by petty considerations of respecting national rules on sovereignty, amnesties or immunities.... Any thoughts on that?


  1. I think it is fair that proceedings are conducted if there is suspicion that Garzon acted beyond the law - though probably he will be found innocent, as Spanish law incorporates international customary law and this provides a good defence against criminal charges of this kind.

  2. That's assuming that amnesties are contrary to customary international law... And that customary international law trumps national law in the national legal hierarchy of norms (not the case in France, for example, at least when I was a student there).

  3. To clarify, my post/argument states that while the Garzon trial may *appear* to be a step backwards for human rights (by allowing politically motivated groups to intimidate judges), it may actually be a positive development if it results in a national court precedent affirming the supremacy of crimes against humanity over amnesty laws (in this case, posthumous amnesty since the Francoist officials accused by Garzon are dead). So it's not an argument against indicting Garzon, it's an argument against convicting Garzon, which would be a blow to judicial independence.

  4. I do not completely agree with your assumption, Dov. I think in a criminal trial, it would be hard to prove the necessary mens rea to convict somebody if that person has strong arguments that what they did might be legal. In other words, the prosecuting authorities in the Garzon case probably have to prove that he purposedly broke the law - which is hard to do when there is so much ambiguity on amnesties in international law. The point in this case is not whether amnesties are contrary to custom, but rather if somebody could be confident that amnesties are always 'immune' from customary law on CAH. If not, then it was Garzon's duty to make the case in court and see what the adjudicating judge would decide...

  5. Alex, I'm puzzled at the distinction you draw between accepting the indictment but not an eventual result of it, i.e a conviction. If you don't disagree with the procedure, it would seem logical to accept the possible consequences... As for judicial independence, I remain convinced that "independence" does not mean "unaccountability"...

    Guido, I actually agree with you, especially in light of what actually happened in this situation: that he did go before a judge who told him to stop the investigation, which he did. There doesn't seem to be an abuse of power in this case. I say a little more as a footnote to my new post...

  6. I had left a post somewhere but it seems did not arrive... well.

    According to Spanish Constitution, international treaties signed, ratified and officialy published in Spain become part of the internal law; that is the case of the International Covenant of Civil and Political Rights. Published before the Amnesty Law, in fact.
    According to Spanish Constitution, fundamental rights and liberties should be interpreted according to international treaties and declarations signed by Spain.
    All that provides a very good defence. He is, after all, an instructive judge. Does not give a sentence: his instruction does not seem to have damage anybody's rights. His duty is to submit his conclusions to another judges or courts.