Christopher Caldwell: Amnesties help bring dictators to heel
[Christopher Caldwell is a senior editor at The Weekly Standard.]
This week, labour leaders, university professors and the film director Pedro Almodóvar congregated outside the Audiencia Nacional, Spain’s national court. They were chanting their support for their country’s – possibly the world’s – most famous judge. Baltasar Garzón, the radical and ambitious investigative magistrate, made his name in Spain by revealing the tactics of Spanish counter-terrorism officials in the 1990s. In 1998, he ordered the arrest of the Chilean dictator Augusto Pinochet in a London hospital and in 2009 he proposed trying White House lawyers for the advice they gave George W. Bush on the legality of detaining prisoners at Guantánamo Bay. His agenda is consistently controversial. To some it looks like battling corruption on an ever bigger stage. To others it looks like corruption itself.
Last week’s proceedings concerned allegations brought by conservative activists that Mr Garzón collected big fees for university lectures in New York, and then dropped a case against a director of Banco Santander, which underwrote the lectures. Mr Garzón denies all wrongdoing. But it is a second case against Mr Garzón that has divided Spanish public opinion. In the autumn of 2008, he opened an investigation into the almost four decades of Francisco Franco’s rule, which ended with the dictator’s death in 1975. Mr Garzón called for opening more than a dozen mass graves, including the one in which the poet Federico García Lorca is thought to lie. Under the terms of a 1977 amnesty, enacted during the transition to democracy, political crimes committed under the dictatorship are not prosecutable. Mr Garzón carried on regardless, denying the law’s validity on human rights grounds. In so doing, magistrates argue, he overstepped his judicial mandate. He may soon be suspended from the bench.
Mr Garzón’s supporters claim he is the victim of a rightwing put-up job. The claim has considerable plausibility. He has been investigating the so-called “Gürtel” case, a pattern of alleged political pay-offs that implicates two dozen members of the conservative Popular party. Mr Almodóvar has made the outlandish claim that Mr Garzón is being pursued by the Falange, a fascistic movement founded before the Spanish civil war, which is now senescent and marginalised.
The problem is not so much with the Spanish right in particular as with the Spanish judicial system in general. Judges are highly politicised. Mr Garzón is no exception. His justice is selective. He moved against Pinochet at a time when Fidel Castro was visiting Spain. Mr Garzón once told the magazine Mother Jones that he watched Costa Gavras movies when preparing for important hearings. You don’t get much more ideological than that.
However, it is Mr Garzón’s modus operandi, not his politics, that is on trial. His basic tactic has been to delegitimise the amnesties that often accompany (and make possible) transitions from dictatorship or civil war to democracy. In Mr Garzón’s view, the parliamentary arrangements by which Chile granted Pinochet a limited amnesty and a senatorship-for-life were, under international human rights law, null and void. Spaniards, who for the most part applauded when Mr Garzón inflicted this doctrine on the world, are having second thoughts on seeing it applied to their own history.
They should. Mr Garzón’s approach probably causes more harm than it prevents. Since nobody has legitimate authority to legislate for the world, to invalidate national laws in the name of international “norms” is to replace democratic rule with judicial fiat. It is also to falsify history, by promoting the myth that such amnesties are unnecessary accidents – that, but for the compromises of politics, any given democracy could have been brought into being through the political equivalent of immaculate conception...
Read entire article at Financial Times (UK)
This week, labour leaders, university professors and the film director Pedro Almodóvar congregated outside the Audiencia Nacional, Spain’s national court. They were chanting their support for their country’s – possibly the world’s – most famous judge. Baltasar Garzón, the radical and ambitious investigative magistrate, made his name in Spain by revealing the tactics of Spanish counter-terrorism officials in the 1990s. In 1998, he ordered the arrest of the Chilean dictator Augusto Pinochet in a London hospital and in 2009 he proposed trying White House lawyers for the advice they gave George W. Bush on the legality of detaining prisoners at Guantánamo Bay. His agenda is consistently controversial. To some it looks like battling corruption on an ever bigger stage. To others it looks like corruption itself.
Last week’s proceedings concerned allegations brought by conservative activists that Mr Garzón collected big fees for university lectures in New York, and then dropped a case against a director of Banco Santander, which underwrote the lectures. Mr Garzón denies all wrongdoing. But it is a second case against Mr Garzón that has divided Spanish public opinion. In the autumn of 2008, he opened an investigation into the almost four decades of Francisco Franco’s rule, which ended with the dictator’s death in 1975. Mr Garzón called for opening more than a dozen mass graves, including the one in which the poet Federico García Lorca is thought to lie. Under the terms of a 1977 amnesty, enacted during the transition to democracy, political crimes committed under the dictatorship are not prosecutable. Mr Garzón carried on regardless, denying the law’s validity on human rights grounds. In so doing, magistrates argue, he overstepped his judicial mandate. He may soon be suspended from the bench.
Mr Garzón’s supporters claim he is the victim of a rightwing put-up job. The claim has considerable plausibility. He has been investigating the so-called “Gürtel” case, a pattern of alleged political pay-offs that implicates two dozen members of the conservative Popular party. Mr Almodóvar has made the outlandish claim that Mr Garzón is being pursued by the Falange, a fascistic movement founded before the Spanish civil war, which is now senescent and marginalised.
The problem is not so much with the Spanish right in particular as with the Spanish judicial system in general. Judges are highly politicised. Mr Garzón is no exception. His justice is selective. He moved against Pinochet at a time when Fidel Castro was visiting Spain. Mr Garzón once told the magazine Mother Jones that he watched Costa Gavras movies when preparing for important hearings. You don’t get much more ideological than that.
However, it is Mr Garzón’s modus operandi, not his politics, that is on trial. His basic tactic has been to delegitimise the amnesties that often accompany (and make possible) transitions from dictatorship or civil war to democracy. In Mr Garzón’s view, the parliamentary arrangements by which Chile granted Pinochet a limited amnesty and a senatorship-for-life were, under international human rights law, null and void. Spaniards, who for the most part applauded when Mr Garzón inflicted this doctrine on the world, are having second thoughts on seeing it applied to their own history.
They should. Mr Garzón’s approach probably causes more harm than it prevents. Since nobody has legitimate authority to legislate for the world, to invalidate national laws in the name of international “norms” is to replace democratic rule with judicial fiat. It is also to falsify history, by promoting the myth that such amnesties are unnecessary accidents – that, but for the compromises of politics, any given democracy could have been brought into being through the political equivalent of immaculate conception...