In the 1960s, Spain launched a campaign to entice tourists to Spain via the slogan "Spain is Different!" But while the phrase was intended to elicit exotic images of bullfights and siestas, it doubled as a justification for the anachronistic dictatorship of Francisco Franco, who—thanks to Hitler and Mussolini—had won the Spanish Civil War in 1939. Franco remained in power until his death in 1975, after which Spain transitioned to democracy without looking back. Although franquismo included the systematic execution and disappearance of political dissidents, the torture of "red" women and the kidnapping of their "corrupted" children, as well as concentration camps and slave labor, there was no discussion of holding Nuremburg-like trials or establishing truth commissions.
Since an historic mass grave exhumation in 2000, Franco's victims and traumatized family members have pushed the Spanish government to honor human rights agreements to which Spain is a signatory, such as the U.N. International Convention for the Protection of All People Against Enforced Disappearance. That document clearly states that "the widespread or systematic practice of enforced disappearance constitutes a crime against humanity," and that "each State Party shall take the necessary measures to hold criminally responsible… any person who commits, orders, solicits or induces the commission of, attempts to commit, is an accomplice to or participates in an enforced disappearance." In 2003, the U.N. Human Rights Commission reprimanded Spain for the discovery of mass graves from the Pyrenees to the Canary Islands. Such international pressure served as a catalyst for Spain to pass a "Law of Historical Memory" last December. Yet while the law has generated much debate about the Spanish Civil War, it vows merely to "facilitate" civilian attempts to locate the disappeared, instead of taking state responsibility for such a complicated undertaking.
This October, Baltasar Garzón—the Spanish judge who put Chilean dictator Augusto Pinochet on trial for genocide in 1998—opened the first criminal investigation into Francoist repression. In a bone-chilling decree, Garzón certified 114,266 documented cases of enforced disappearance and authorized the exhumation of nineteen mass graves, including that of Federico García Lorca, the famous Spanish poet. In November, Garzón was forced to close his investigation due to fierce resistance from within Spain's National Court. On November 28, the court held that Garzón did not have jurisdiction over the case in a 14-3 vote.
When it comes to human rights, Spain is different.
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As Amnesty International cites in a special report condemning the legal arguments used to thwart Garzón's investigation—such as claiming Spain's 1977 Amnesty Law places a statue of limitations on investigating crimes against humanity committed under Franco—countries with far fewer means have fulfilled their obligation to guarantee the three pillars of human rights—truth, reparation and justice—to the victims of enforced disappearance. (For more information, see the full report here: http://www.es.amnesty.org/uploads/tx_useraitypdb/crimenes_guerra_civil_y_franquismo_2008.pdf). The U.N. Human Rights Commission also recently reminded Spain that "amnesty concerning grave violations of human rights [is] in contradiction to the provisions of the Covenant [on Civil and Political Rights]."
Complicating matters, in 2005, Spain sentenced Adolfo Scilingo, a former Argentine naval captain to 640 years imprisonment for crimes against humanity committed during Argentina's "dirty war" through the application of Spain's "Law of Universal Jurisdiction." And the same week that Spain's National Court voted to stop Garzón's investigation, the Spanish Congress voted to extradite military leaders of the 1994 Rwandan genocide in order to try them for crimes against humanity. Yet the Spanish State remains unwilling to investigate such atrocities within its own territory.
One clue to understanding this paradox is that Manuel Fraga, the official responsible for popularizing the slogan "Spain is different!," is also responsible for political repression as Franco's Minister of Information and Tourism. Fraga is not only alive and well in sunny Spain, but he regrets nothing of his past and recently denied that Franco was a criminal. Like in post-Nazi Germany, opening the floodgates of justice is a threat to ex-Francoist officials like Fraga, and to businesses that benefited from slave labor under Franco, such as the construction companies Dragados and Banús (see Isaías Lafuente's 2002 book Slaves for the Fatherland). Another clue is the fact that Franco himself appointed the grandfather of Spain's current (socialist) Attorney General military judge in 1936. There are as many skeletons in the closet as there are mass graves in Spain, and not all belong to the conservative parties.
However, impunity in the face of human rights violations is not acceptable by Spain's own standards of international law, let alone basic principles of justice. The world cannot afford Spain to wallow in a legal state of exception while it champions principles like universal jurisdiction that place human rights high above national politics. The integrity of such laudable concepts is jeopardized when Spain fails to apply them within its own borders. Most importantly, from the perspective of someone who has interviewed victims of Francoist repression, many survivors of Spanish state violence remain traumatized, while those responsible for their pain freely walk the streets of Spain without any sense of shame.
Different is not always better.