The second trial of crusading Spanish judge Baltasar Garzon opened today in Madrid.
Garzon became famous when in 1998 he issued an arrest warrant for the former Chilean ruler General Augusto Pinochet for crimes against humanity carried out against citizens of Chile during his dictatorship.
Garzon is the defendant in three trials that his supporters claim are politically motivated. The first case involved illegal wiretaps involving members of the Popular Party- the party that has recently come to power in Spain. The judge had conversations between them and their lawyers taped in a clear violation of lawyer client confidentiality. Garzon's explanation was that he suspected the lawyers of involvement in their clients' money-laundering schemes and therefore the conversations constituted fair game.
The more spectacular case has indicted Garzon for his attempt to launch an investigation into those who were killed or disappeared during the regime of General Francisco Franco, the nationalist leader during the Spanish Civil War. Franco emerged the victor and ruled Spain to his death in 1976, when Spain returned to democracy.
Civil wars by their very nature are generally punctuated by atrocities on both sides. The heirs of Franco on one side and the defeated Communists, Socialists as well as Basque and Catalan nationalists agreed in 1977 on a general amnesty that would govern "all acts of a political purpose whatever their outcome may have been".
It was part of a general effort to bury the past and ensure the country's democratic future. The measure was supported enthusiastically by the left,claiming it had forgiven and national peace and freedom were the most important objectives for the country.
Garzon, by attempting to investigate the crimes of the Nationalist side and the Franco regime, violated the 1977 amnesty. He is charged with exceeding his powers and if found guilty, it will disqualify him from the bench.
Human rights organizations, such as Amnesty International and Human Rights Watch, have weighed in on behalf of the judge. Reed Brody, counsel for Human Rights Watch complains: “Thirty-six years after Franco’s death, Spain is finally prosecuting someone in connection with the crimes of his dictatorship: the judge who sought to investigate those crimes.”
For Human Rights Watch and Amnesty, the key is that dictatorial regimes should know that they can be held accountable for their actions.
For others, the main issue is to save as many lives as possible and ensure a peaceful transition to democracy.
This debate has arisen also with regard to the International Criminal Court. One criticism of the court is that it is disruptive to diplomacy and negotiations. Critics claim that by insisting on indictments, it ensures that the warring sides will fight to the death - and the deaths of innocent civilians.