Franco-Era Crimes Reach
Courts in Argentina
By Marcela Valente
BUENOS AIRES (IPS) - Invoking the
principle of universal jurisdiction for
crimes against humanity, the relatives
of two Spanish mayors who were executed
during that country's 1936-1939 civil
war filed genocide charges in Argentina
Wednesday.
The lawsuit is a response by human
rights groups from Argentina and Spain
to legal charges against Spain's famous
investigative Judge Baltasar Garzón, who
has been accused of overreaching his
judicial powers by starting to
investigate atrocities committed during
Spain's civil war and the 1939-1975
dictatorship of Gen. Francisco Franco.
The high court magistrate faces up to 20
years' suspension as a result of the
case brought by far-right groups in
Spain, which argue that Garzón's
investigation into the forced
disappearance of some 113,000 people
during the Franco era violated the
amnesty law passed by the Spanish
parliament in 1977, two years after
Franco's death..
And during the trial, which is imminent,
he will be suspended from the Audiencia
Nacional, Spain's highest criminal
court.
"In Spain, the Franco-era crimes, which
were committed on a massive scale in the
first few months after the coup, were
not only never prosecuted, but there is
still no will to do so," one of the
Argentine lawyers for the plaintiffs,
Beinusz Szmukler, president of the
American Association of Jurists
Consultative Council, told IPS.
Szmukler said he was confident that the
lawsuit filed Wednesday in the federal
court of Judge María Servini would
prosper.
"The principle of universal justice is
in our constitution, and allows the
courts to try crimes against humanity
that were committed abroad," he said.
"Furthermore, the Inter-American
Commission on Human Rights of the OAS (Organisation
of American States) recommended that
states in the region apply that
principle."
One of the plaintiffs is Darío Rivas,
the 91-year-old son of Severino Rivas,
who was mayor of the coastal village of
Castro de Rei in the northwestern
Spanish province of Galicia when he was
seized and shot in 1936 by the far-right
pro-Franco Falange
The legal action was also brought by
Inés García Holgado, great-niece of
Elías García Holgado, who was mayor of
the town of Lumbrales and legislator in
the western province of Salamanca when
he was arrested in 1936. He was executed
a year after his illegal detention.
The lawsuit is backed by nearly a dozen
organisations, including Spain's
Association for the Recovery of the
Historical Memory - which helps
relatives search common graves for
victims of the civil war and
dictatorship - the Argentine Federation
of Galician Associations, the Mothers of
the Plaza de Mayo human rights group and
the Central de Trabajadores de Argentina
trade union federation.
Argentine lawyer Carlos Slepoy was
designated to deal with aspects of the
case in Spain, where he works
representing families of victims of
Argentina's 1976-1983 military
dictatorship.
By filing the lawsuit, the plaintiffs
backed Garzón's determination to apply
the principle of universal justice when
he launched, from Spain, judicial probes
of Argentine human rights abusers in the
late 1990s, while they continued to
enjoy impunity in their own country
under amnesty laws and presidential
pardons.
But Garzón is best known for issuing the
international warrant that brought about
the 1998 arrest of former Chilean
dictator Gen. Augusto Pinochet
(1973-1990), who was held under house
arrest in London for 18 months before he
was released by the British government
on humanitarian grounds in 2000.
Garzón unsuccessfully sought Pinochet's
extradition to Spain, to try him for
crimes against humanity in relation to
the deaths of Spanish citizens during
the Chilean dictatorship. The former
dictator died in 2006 without ever being
convicted.
In 1998, the Spanish magistrate sought
the extradition of 46 former military
and civilian officials from Argentina,
including former junta members Jorge
Rafael Videla and Emilio Massera. But
the extradition request was turned down
by then President Carlos Menem
(1989-1999) - who had pardoned the
dictators - and by his successor
Fernando de la Rúa (1999-2001).
However, Garzón had more success in
prosecuting former Argentine naval
captain Adolfo Scilingo, who confessed
to some 30 crimes committed during the
dictatorship but was protected by the
amnesty laws in Argentina
In 2005, Scilingo was sentenced to 640
years in prison in Spain.
Not until 2003, under President Néstor
Kirchner (2003-2007), was a decree
prohibiting the extradition of military
officials overturned. But at the same
time, steps were being taken to put an
end to impunity in Argentina, where some
30,000 people fell victim to forced
disappearance during the de facto
regime.
In 2005, the Supreme Court struck down
the two amnesty laws that had shielded
military personnel from human rights
prosecutions, clearing the way for
hundreds to be tried for forced
disappearance, torture and killings
committed during the so-called "dirty
war." And in 2007, the Supreme Court
overturned Menem's presidential pardons.
Garzón and the Supreme Court justices
who put an end to the amnesty laws in
Argentina have cited the same principles
of international law: that no statute of
limitations applies to crimes against
humanity; that such crimes cannot be
amnestied; and that when they are not
tried in the country where they were
committed, they can be prosecuted in any
country, under the principle of
universal jurisdiction.
But shortly after he launched his probe
into forced disappearances in Spain in
2008, Garzón declared that penal
responsibility for the crimes had lapsed
given the deaths of the potential
defendants, including Franco and four
dozen high-ranking officials from his
regime, and transferred the
investigations of mass graves and
missing people to regional courts.
Nevertheless, Spain's Supreme Court
ruled this month that the case against
the judge for overstepping his
jurisdiction could go ahead.
The legal action against Garzón has
drawn an outcry from legal experts and
human rights organisations around the
world.
In this South American country, he is
highly respected as the first magistrate
to attempt to bring to trial former
Argentine human rights abusers when the
doors to their prosecution were still
closed here. |
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