Baltasar Garzon, the Spanish “super-judge” famed for his indictments against Pinochet and Osama bin Laden, will stand trial for “knowingly overreaching criminal jurisdiction.” The charges, issued by Spanish right wing political parties and jurists, refer to Garzon’s investigations into the crimes against humanity committed under General Franco.
If Garzon is prosecuted, the case could establish two dangerous precedents. Firstly, the concept of universal jurisdiction – globally popularized by Garzon – will be further eroded. Secondly, and more importantly, his prosecution would undermine the fundamental legal doctrine that the judiciary cannot be criminally liable for controversial investigations.
Garzon used the legal tool of universal jurisdiction to investigate the 114,000 disappearances that happened under General Franco’s regime from 1939 to 1975. Universal jurisdiction, previously used by Garzon to probe foreign countries over crimes against humanity, was in this instance used to override the 1977 Amnesty Law enacted by Spain. The Amnesty Law, passed two years after Franco’s death, was enacted to foster peace and democracy in the post-Franco era. Consequently, Spain did not have a ‘Truth and Reconciliation Commission’ like post-apartheid South Africa or an international criminal court like Cambodia; rather, more than a hundred thousand families were left to deal with unanswered questions about disappeared family and friends.
These unanswered questions formed the grounds for Garzon’s investigations. He argued that universal jurisdiction could override the Amnesty Law because the investigations focused on crimes against humanity. Furthermore, because thousands of the disappearances are yet to be resolved, they are continuing legal issues and therefore fall outside the purview of the Amnesty Law. It is also important to note that Garzon is only investigating the actions of thirty-four dead Franco officials, which suggests he seeks to find peace of mind for the victims’ families, not make criminal prosecutions.
The other issue raised by Garzon’s indictment, criminal liability for judges who initiate controversial investigations, is more worrying. If successful, the case would act as a dangerous precedent because it could legitimize political groups meddling with judicial independence and blocking investigations not to their liking.
International legal agreements that prevent criminal responsibility for pursuing controversial investigations include: Article 14 of the ‘Covenant on Civil and Political Rights’, Articles 4, 7 and 18 on the ‘UN Basic Principles of Independence of Judiciary’ and ‘International Standards on the Independence of the Judiciary’. Imagine if these foundational texts were to be overruled and Garzon were to be prosecuted. History demonstrates the fundamental role of the judiciary in monitoring and overturning unjust government policies: abolition of slavery, acceptance of homosexuality and racial diversity, acceptance of abortion, to name but a few.
Any investigation must be able to come before a court. This is essential to the rule of law. If not, governments could build statutory perimeters around themselves protecting their most abhorrent actions and darkest secrets – a trend that is already increasing! If Garzon is prosecuted, this trend may worsen.