Erga Omnes

The Spanish Supreme Court’s recent acquittal of Judge Baltasar Garzón reveals how things are not always what they appear to be—and underlying rationales can be as significant as final decisions.  Even though the Court didn’t find Judge Garzón guilty, its politicized reasoning challenges human rights accountability and vindicates Garzón’s pursuit of universal jurisdiction.  Here are some highlights from the Court’s decision:

First, the Court made it clear that those seeking truth for past human rights crimes should look elsewhere.  The Spanish criminal justice system, the Court declared, is not in the business of truth-seeking, only of prosecuting living individuals.  Disregarding its own responsibility and complicity, the Court differentiated between history and justice, between judges and historians, pitting historical and forensic truths against one another.

Second, the Court drew a stark line between international and domestic law, opting for a nationalist stance.  Garzón’s key error, the Court said, was labeling the acts in question “crimes against humanity,” an obvious attempt to bypass the 1977 national amnesty.  The Court would hear nothing of it, insisting that domestic laws trump international standards.  (In reality, crimes against humanity may just be too loaded a term, an ugly marker for political crimes that the Spanish Right still excuses.)

Third, at the crux of the Court’s argument was a sanctimonious defense of the 1977 national amnesty.  Placing the amnesty at the center of a near-mythic transition to democracy, the Court stated, almost nostalgically,

The fundamental idea behind the ‘transition,’ so lauded nationally and internationally, was to obtain peaceful reconciliation among Spaniards; both the Amnesty Law and the Spanish Constitution were essential milestones in that historic development. (my translation)

The amnesty, according to the Court, reflected the will of the people, a necessary compromise across the ideological spectrum that the judiciary can’t overturn.  The rationale is wrapped in the language of democracy, nostalgia, and futility.

And yet it’s difficult taking at face value the Court’s claims.  These are the same justices who agreed to prosecute Judge Garzón, in response to a handful of extremist groups and against the advice of legal experts.  It’s the same Court that already barred Garzón from the bench for 11 years, after a widely criticized trial.  And it’s a court that’s acting more like the inheritor of Franco’s legacy than a guarantor of contemporary democratic governance.

The reasoning is strangely reminiscent of authoritarian legalism, an insular and privileged space closed off to social opponents.  The Court’s rationale in the latest Garzón case somehow manages to perpetuate that cycle of abuse.  Masquerading as an acquittal, it slams the door on universal jurisdiction and legal accountability.

For an interesting overview of the case and reactions, see posts by dwkcommentaries.