Friday Keynote: “The Trials of Judge Garzón: Legal Remembering and Societal Forgetting in Spain”

Spanish Judge Baltasar Garzón burst onto the international scene in October 1998, issuing an audacious international arrest warrant for former Chilean dictator Augusto Pinochet, at the time recuperating from surgery in a London hospital. Transcending space and also time, Garzón’s “Warrant Heard ‘Round the World” – based on the principle of universal jurisdiction – let it be known that not only were there no places to hide for leaders who abused the rights of their citizens, but there were also no statutes of limitations for these crimes, no amount of time, or domestic amnesties, that could render their criminal responsibility extinguished. No less audacious – and, it should be added, no more immediately successful – a decade later was Judge Garzón’s short-lived attempt to launch a judicial investigation in his home country into the crimes of the Civil War and the Franco regime. In two detailed and passionately argued judicial decrees, or Autos, at the opening and the abrupt conclusion of his investigation in the fall of 2008, we see Garzón engage in a public process of “legal remembering” that at once reflects a narrow but deep societal awakening to the corroding effects of impunity, as seen in the growing “historical memory movement” within civil society and its campaign to locate, exhume and identify remains from mass graves; while it also confronts the broad persistence of “societal forgetting” legitimated by appeals to the Transition’s forward-looking “culture of consensus” and enforced by a positivistic and conservative judiciary wielding the 1977 Amnesty Law. By remembering the franquista past through the lens of international law and globalizing anti-impunity norms, Garzón’s Autos proclaim that Spain is not different: its mass graves share their horror with those of Baba Yar and Srebenica, its “stolen children” resonate with Argentina’s “Dirty War,” and its dictatorship’s eliminationist spirit and actions against civilians can be excused only insofar as we can excuse the “excesses” of the Khmer Rouge. International law, then, becomes the language of, and vehicle for, memory in a society whose own laws – including the “almost-but-not-quite” “Law of Historical Memory” of 2007 – appear designed to protect citizens from their own history, while also protecting the democratic state from its responsibility to confront the crimes of the past. That Judge Garzón currently stands accused of judicial misconduct for opening this investigation only further underscores the incomplete and ongoing nature of the legal-cultural transformation taking place in Spain today. Even as Garzon’s legal remembering confronted societal forgetting, it may just be that for change to come, it will ultimately be up to societal remembering to confront and overturn the edifice of legal forgetting that protects the Spanish state from its international obligations – and from its obligations to generations of its citizens still seeking justice.
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