On Human Rights, Spain is Different

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.

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.

Until now.

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 Garzon--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,
Garzon certified 114,266 documented cases of enforced disappearance and
authorized the exhumation of nineteen mass graves, including that of
Federico Garcia Lorca, the famous Spanish poet. In November, Garzon was
forced to close his investigation due to fierce resistance from within
Spain's National Court. On November 28, the court held that Garzon did
not have jurisdiction over the case in a 14-3 vote.

When it comes to human rights, Spain is different.

As Amnesty International cites in a special report condemning the legal
arguments used to thwart Garzon'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:
https://www.es.amnesty.org/uploads/tx_useraitypdb/crimenes_guerra_civil_...).
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 Garzon'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 Banus (see Isaias 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.