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Wednesday, 23 May 2012
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Eminent Experts in International Law support Garzón Earlier this month, Almuñécar Life reported on the worldwide shock at the suspension of Spanish Judge Baltasar Garzón. Spain's star judge Baltasar Garzón is one of the most famous judges in the world and is a hero to many in the international human rights community. He is most well-known for his bold indictment of the former Chilean dictator Augusto Pinochet for crimes committed in Chile in the 1970s, which resulted in his arrest in London, signifying an important step forward for International Justice and led to many other challenges to dictatorships and perpetrators of atrocities throughout Latin America and the rest of the world. Thanks to Garzón, top leaders and officials in Argentina, Guatemala, El Salvador and Rwandan have been investigated and some convicted. However, some of Garzón’s cases of alleged crimes against more powerful countries, such as the USA (for Guantánamo), China (for Tibet) and Israel (for Gaza), has caused problems for the Spanish Government. In 2008, Garzón started to try to apply the same principles that he so successfully promoted internationally at home, part of which was to challenge Spain’s unwritten pact, known as the "pact of forgetting" the atrocities committed under the Franco regime. In 1977, the Amnesty Law promised that, after Franco's supporters gave up power they would not be held to account, tried, pursued or even reminded of the abuses committed. This did lead to what has been described as one of history’s smoothest transition from dictatorship to democracy, but at what cost? Garzón argued that the Amnesty Law could not be applied to crimes against humanity, only to political acts and began to take up complaints from relatives of victims, However, Garzón was indicted last month by the Supreme Court, and as a result, the judicial oversight body then had no choice but to suspend him. The charges are that Garzón was acting outside of his jurisdiction in ‘knowingly taking on a case he knew not to be within his jurisdiction’ which was ‘manifestly against the law’ given the 1977 Law of Amnesty. Today, the Guardian published an open letter in support of Garzón from nine distinguished international lawyers from around the world: “As teachers and practitioners of international law we note that the validity and effect of an amnesty granted by national law in respect of international crimes has been addressed by regional human rights and international criminal courts (Spanish judge suspended, 15 May). The subject is complex. But there is ample authority under international law for the conclusion that such amnesties can have no effect in the courts of a third state. There is also international support for the view that a national prosecutor or investigating judge is entitled to seek to go behind a national amnesty in respect of international crimes in his or her own country, even where the crimes were committed long ago (as is the case in relation to Spain's 1977 amnesty law). To assert that it is a crime for a national prosecutor or investigating judge to act in this way, particularly where the allegation being investigated concerns the disappearance of persons and has continuing effects, is obviously wrong and is detrimental to the rule of law. It undermines the independence of the prosecutor or investigating judge. It is inconsistent with one of the central tenets of modern international law, namely that there can be no impunity for grave international crimes”. Prof Laurence Boisson de Chazournes University of Geneva, Prof James Crawford University of Cambridge, Prof Pierre-Marie Dupuy and Prof Marcelo Kohen Graduate Institute of International and Development Studies, Geneva, Ken Macdonald QC Former DPP, Paul Reichler Foley, Hoag & Eliot, Washington DC, Prof Philippe Sands QC University College London, Prof Gerry Simpson University of Melbourne, Ambassador Alberto Szekely Mexican member, Permanent Court of Arbitration (courtesy: www.guardian.co.uk) Let’s hope that Spain listens - it is because of Garzón that Spain has come to symbolise justice for victims of atrocities from all over the world – let’s hope that justice itself does not become the victim in Spain. What is most worrying is that the case against Garzón seems to have opened up old wounds, and the political divisions that marked that dark chapter of Spanish history may still be lurking ominously under the surface. By Tressa Davey May 31, 2010
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