Trying the dead generalisimo for murder

For the three sisters — Esperanza, Angelina and Amada — the 50-year search for the body of their father began with a gunshot on March 3, 1951. Before the fatal ambush, Nicolas Martinez Rubio had been a guerilla fighting General Francisco Franco. When an underground communications network in the central Spanish province of Cuenca informed the sisters of their father’s death, they could not have imagined how long it would take to recover his remains.

If it was any comfort, they were far from alone.   

During the Spanish Civil War and Franco’s brutal right-wing dictatorship, thousands of Spaniards were shot and buried by the roadside, in the woods, or outside cemetery walls in unmarked, often mass graves. Although Spain has remained a polarized society, political leadership leaning right and left have clung to a pact of silence embodied in a 1977 General Amnesty, the first law passed by a new, democratic parliament in Madrid. It was, as one politician described it at the time, “an amnesty for everyone and forgetting by everyone.”

Enter Spanish super judge in Baltasar Garzon to put history right. From his seat on Spain’s National Court, Garzon has garnered an international reputation as a champion of human rights and justice indicting Osama Bin Laden and former Chilean dictator Augusto Pinochet.  In October, 2008, in an effort to indict General Franco and other military leaders, he launched the largest ever investigation of those “forgotten” murders.

Garzon argued that the killings and forced detentions constitute crimes against humanity and are excluded from the Amnesty Law. But prosecutors skirted the argument by challenging his jurisdiction to pursue the case. The court agreed, and the cases are now deferred to an uncertain future in regional courts.

Despite the difficulties with jurisdiction — let alone the challenges of bringing the defendants, all deceased, to trial — Garzon’s initiative was widely applauded by victims’ relatives, eager for official recognition of the injustice. The judges’ investigation compiled the first comprehensive list of Spain’s 114,226 desaparecidos (disappeared).   

Failure to resolve this chapter of Spain’s past keeps the country divided along the ideological trench lines dug deep during the Spanish Civil War. Right-wingers are still referred to as fachas (fascists), leftists as rojos (reds, or commies).

It is in this charged context that the survivors of many victims are striving to give their loved ones a proper burial. Some towns provide subsidies to investigate, exhume bodies and conduct DNA tests. But in many cases, the families have to fend for themselves, a fact that, naturally, divides Spain.  

“The exhumations should be backed and paid for by the government. These people were insignificant during the dictatorship and are insignificant in our democracy,” asserted Emilio Silva, president of the Association for the Recovery of Historical Memory, whose grandfather was shot and buried by a roadside with a dozen other people.  

Silva argued that political pressures wrongly put a stop to Garzon’s investigation. Ricardo de la Cierva disagreed. A historian whose father was assassinated with hundreds of others by forces opposing Franco, de la Cierva criticized the celebrity judge’s initiative as “a judicial coup, an atrocity.” He concured with leaders from across Spain’s political spectrum who oppose digging up the country’s bloodstained past.

Recent years have seen numerous books, movies and exhibitions tell the losers’ side of the story, amidst charges that these exposes stir up a past best left alone. Meanwhile, the Catholic Church has called on people to forget the past, in order to avoid “violent confrontations.” Yet in 2007 it was the Church — which generally backed Franco’s brand of “Catholic Nationalism” — that saw to the beatification of 500 “martyrs” killed by anti-Franco forces during the civil war.

Nicolas’s daughter Esperanza, now 82 years old and hardened by the 15 years she spent in prison as a guerrillera, insisted, “The guerrilla was the last effort against Franco, and I want that to be recognized. We’re still being treated as bandits, and the guerrilla — an uprising against an illegal government — is considered terrorism.” She and her siblings spent years visiting town halls, asking about their father. One day, a man who as a child had witnessed the assassination learned they were looking for Nicolas and let them know where he was buried.

Thousands of other relatives are hoping that local judges will pick up the mantle of Judge Garzon’s investigation. Many fear that forgetting Spain’s desaparecidos will remain easier than searching them out and reconciling their stories with modern Spain. But international pressure is mounting. The UN Human Rights Commission recently recommended the abolition of Spain’s 1977 Amnesty Law.  

Bolstered by Judge Garzon’s initiative, some victims’ groups say they will put their case before the European Court of Human Rights in Strasbourg if needed. The survivors’ unwillingness to forget burns like a candle in the shadows where Spain’s Civil War legacy lingers.