Trials of Shame

Trials of Shame

Sonia Cardenas: Trials of Shame

A decade after Spanish judge Baltasar Garzón ordered a landmark international arrest warrant against Augusto Pinochet in 1998, he set off an even bigger political maelstrom by investigating human rights crimes in Spain. The judge?s audacity to look into his country?s troubled past has landed him in the Spanish Supreme Court?s docket, under the scrutiny of an international audience.

Acting on a private petition received while sitting on the Audiencia Nacional (or National Court), Judge Garzón pushed the limits of historical memory in 2008. He began ordering that bodies be exhumed for investigation; and he accused Franco?s regime of crimes against humanity, of killing or disappearing over 100,000 people. In doing so, the judge disregarded a powerful national amnesty, negotiated in 1977 as part of the country?s democratic transition, and sided instead with international law.

An intense backlash from the political Right soon made its way up to Spain?s highest court, whose justices accepted three lawsuits against Garzón, including from extremist groups, charging the fifty-six-year-old maverick judge with prevarication and knowingly exceeding his authority. Garzón now faces the possibility of a twenty-year suspension from the bench that would effectively end his judicial career.

This was the backdrop for the highly politicized trial that opened on January 24 in Madrid. More so than the first trial, which revolved around phone-tapping charges in an anti-corruption inquiry (known as the Gürtel case), this one focuses on the judge?s investigation of Francoist crimes. And it?s proving to be a deeply polarizing affair.

On one side are survivors of Franco-era atrocities and international activists who stand in solidarity with the judge. For them, the ?trials of shame? (?juicios de la vergüenza?), as placards by street protesters read, clearly constitute a witch hunt?direct retribution for exposing political crimes and unleashing universal jurisdiction.

On the other side is the Right, which portrays the judge as a globe-trotting personality who overstepped legal boundaries and dishonored a sacrosanct amnesty. They see a judge who?s violated an unspoken social compact (?el pacto del olvido?) to bury the past in unmarked graves and to let bygones be bygones.

It is a mistake to see Judge Garzón as the main target of the lawsuits. His personal ordeal aside, the trial is a means of silencing those who?ve dared give voice to memories of political abuse and those who might pursue universal jurisdiction?the judge?s global trademark. The suits threaten, credibly, to take down an internationally renowned judge. That?s why foreign observers are on hand and Spain?s hard-fought democratic credentials are at stake.

Constitutional democracy, in principle, entails allowing people to confront clashing historical memories without resorting to violence or changing the rules of the game. The historic case against Judge Garzón is both coercive and supremely non-democratic. And it reveals deep-seated fears of allowing the democratic process to play out its course.

The ?trials of shame? are first and foremost a warning to Spanish society about the futility of probing into political crimes. Ruining one judge?s career is just a ruse. Everyone knows this, which is why the tactic of silencing dissenters via prosecution is likely to backfire. The trials will mobilize, not defuse, transnational demands for accountability.

Sonia Cardenas is Charles A. Dana Research Associate Professor of Political Science and Director of the Human Rights Program at Trinity College in Connecticut. Her publications include Human Rights in Latin America: A Politics of Terror and Hope and Erga Omnes, a blog on universal jurisdiction.

Photo: Baltasar Garzón, 2005, via Wikimedia Commons