Unresolved Justice in Spain: Revisionism, Basque Terrorism and Emotions

Transitional Justice – Feminist focus. Belgrade, 9 July 2009

«International Roundtable, II. Debate: Does the judicial system provide justice?»

Martin Alonso (Spain)

After thanking the Women in Black for the opportunity to be in such excellent company, I must express some discomfort regarding my contribution, discomfort because its content seems insignificant to me in practical terms –some of the organizations present here have been accomplishing work that is a splendid model of clarity and civic commitment, and, with regard to the topic, you have built a solid conceptual body on the ways to approach tasks from the standpoint of civil society. I am going to focus my comments on three points; some initial remarks on the manifestations of the Spanish transition, which will give me the opportunity to formulate a number of observations on the complexity of the processes of transition, to finish with a reflection on the pedagogy of emotions as an essential accompaniment to judicial measures.

I. The atypical Spanish case

The Spanish Civil War ended in 1939 with the victory of those who rose up against the Republic, on one side, and tens of thousands of corpses in common graves on the other. Franco immediately proceeded with a recognition and homage to the “fallen” of the victors, whose emblem is in the necropolis of the Valle de los Caídos (Valley of the Fallen), so admired by Tudjman. Franco died in bed in 1975, that is to say, while still in power (a much different ending from that of his efficient collaborators of yore, Hitler and Mussolini, and also that of his neighbor Oliveira Salazar one year earlier), and in 1978 a Constitution was approved that defined Spain as a “Social, democratic State of law”. The army and those who were nostalgic about the former regime resisted and led various attempts to block the process of transition, the most well-known being the seizure of parliament on 23 February 1981. The failure of the coup and the socialist victory in 1982 elections symbolically mark the end of a transition that has been presented in many forums as a model. The Amnesty Law of 1977, agreed to by the political elite in force at the moment canceled criminal responsibilities of the recently disappeared regime.

As the title of the book of Alicia Gil reflects (La justicia de transición en España. De la amnistía a la memoria histórica, 2008 – Justice of Transition in Spain. From Amnesty to Historical Memory, 2008; which should be mentioned along with the magnificent study by Paloma Aguilar, Políticas de la memoria y memorias de la política, 2008 – The Politics of Memory and Memories of Politics), it wasn’t until the eighth legislature of the Zapatero government, having proclaimed 2006 as the Year of Historical Memory, that the so-called Law of Historical Memory was approved under the muddled official name of “Ley por la que se reconocen y amplían derechos y se establecen medidas en favor de quienes padecieron persecución o violencia durante la Guerra Civil y la Dictadura” (Law by which rights are recognized and expanded and measures are established in favor of those who suffered persecution or violence during the Civil War and Dictatorship), which, above all, is a law of reparation. A survey of El País reported on 18 July of that year that 55% favored the Law of Historical Memory and 64.5% approved the investigation concerning the Civil War and the rehabilitation of those who had been affected by it. The law, approved with significant controversy, went into effect in January of 2008 with few immediate repercussions. In October the government approved four decrees relative to the reparation of victims, indemnifications for those assassinated between 1968 and 1977, citizenship for the International Brigades and restitution of private documents. In December the government created an Office for Victims of the Civil War and Dictatorship, as part of the Ministry of Justice.

But more than these dispositions what impacted public opinion was the decision of the judge of the Audiencia Nacional (High Court), Baltasar Garzón, to open a criminal suit against the Franco regime with the names of 143,353 executed and buried in common graves. The initiative of Garzón is the result of the work of various organizations of the civil society, especially the Asociación para la Recuperación de la Memoria Histórica (ARMH) (Association for the Recovery of Historical Memory), which considers it “the most important judicial action carried out in Spain regarding the repression by Franco”. It has received the support of other sectors of the left and the civil society, such as Amnesty International (AI), which for many years had denounced the impunity regarding the crimes of the Franco era and the “excepcionalidad española” (Spanish exception) and which made public the document “Mitos y distorsiones en reacción a la admisión a trámite e investigación judicial sobre desapariciones forzadas y crímenes contra la humanidad durante la Guerra Civil y el Franquismo” (“Myths and distortions in reaction to admitting judicial investigation of the forced disappearances and crimes against humanity during the Civil War and the era of Franco”) (12/11/08). AI has pointed out that the victims identified, which number as many as 114,000, are greater than those registered in all of Latin America in the last 40 years.

But the judge has received criticism from significant and ideologically diverse sectors: The Catholic Church, in the word of its principal representative, the Archbishop of Madrid Rouco Varela, affirms that “sometimes you have to know how to forget”. The chief prosecutor of the Audiencia Nacional, based on formal questions, has declared the judge incompetent. Even stranger, intellectuals like Javier Pradera or Fernando Savater, have issued bitter criticism of the judge in the pages of the center-left El País. The conservative Popular Party (PP) is firmly opposed, as it was against the Law of Historical Memory, and supports passing over this page without even reading it, and even more so the sectors that are nostalgic for the Franco era. The criminal court, following the formalities outlined by the chief prosecutor, established (by a vote of 14 out of 18) that the Audiencia Nacional is not competent to investigate the Franco insurrection because it was a rebellion and not a crime against the form of government and decided to halt the exhumations ordered by Garzón, who shortly thereafter withdrew in favor of the regional courts. Back to the beginning and deception of the affected families. But the matter shows also other ragged edges: the Criminal Section of the Supreme Court has admitted allegations against the judge of the ultra-right organizations Manos Limpias (Clean Hands) and Libertad e Identidad (Liberty and Identity), while it has told the organization Salamanca Memoria y Justicia (Salamanca Memory and Justice), which came forth with a self-accusation that it had provided the necessary inducement and cooperation in the decisions of B. Garzón in the cited summary, that “it should abstain from disturbing“ (El País, 11/6/09).

II. The complexity of the socio-political processes in transitions

Despite the simplification of the arguments, what has been stated shows the complexity that surrounds transitional processes. This has to do with numerous variables. To cite some: the relationships between the various powers of the State, among these and the civil society, the correlation of forces within the civil society, the relationships of the local civil society with private external —diasporas— or global —the transnational civil society— agents. One must also take the timing into account: the synchronization or lack thereof of the internal processes with the correlation of forces between the supporters of justice and those inclined towards the regime responsible for the injustices, with the Zeitgeist dominant in international relations, the United Nations or the activist for human rights…. (For example, without the ad hoc doctrine of humanitarian interference, certainly evoked to no effect a few months ago during the aggression of Israeli Defense Forces (IDF) against Gaza, it would have been difficult for the part of the international community that defended the bombardments of 1999 to be so active).

Within the affected civil society there can be differing priorities; to continue with the example: the reasons the Spanish Church came out against the initiative of Garzón are not the same as those of anti-Franco individuals like Pradera or Savater; among the competing values, along with justice, are truth, reconciliation, history, pedagogy, commemoration; each of these with its own modulations, as reflected in different processes. As for transnational influence, it seems obvious that the topic of the common graves has not been a priority since Spain was admitted to the European Union and today is a country democratically equal whose very success “validates” the dark corners of its past (just as happened with the “German miracle” immediately after the war, despite the trials in Nuremberg). Further, in the wake of the policies of the Bush administration, the focus of international relations has been influenced by the strategy of “the global war against terror”, supported by the then head of government and leader of the PP, contrary to confronting the Franco past. Likewise, external support can have its price: assistance for the Spanish transition had as its price entry into NATO, similar to how the “support” for Serbia after the unseating of Milosevic required accepting the rules of the game of neo-liberalism and the arrival of massive amounts of foreign capital which, among other things, resulted in outstanding debt, and, in the third phase of privatizations, with the installations of public property being bombed by NATO.

Another important aspect, and in this case a positive feature of globalization, has to do with the demonstration effect: it occurred with the creation of the truth commissions for the dictatorships of the Southern Cone and post-communism. Tiananmen Mothers called for one in 2006, with the foreseeable result, another occurred in the contagion of the non-violent strategy in Otpor. The most negative aspect of globalization, decisive with regard to the topic of our discussion, are the obstacles and slow pace of universal jurisdiction, about which the recent books of Florence Hartmann, Carla del Ponte or Adam LeBor are good examples. (In passing, the Spanish Parliament, with the votes of the two main parties, approved towards the end of June 2009 a limitation to the application of universal justice to the cases in which Spanish citizens might be involved; the main motive: the complaints of China, but, above all, those of Israel regarding two trials in progress.)

I would like to clarify some of the complex elements I have mentioned with two aspects of the Spanish process. I have spoken before about timing, of the opportunity. Well, the contemporaries of those against whom reprisals were made, who had lived through the terror of the Franco regime, have a priority when the regime falls: forget fear and look ahead. It mattered more to them to leave the past behind than to make amends with it. For them, the experience is so close to them that they give their acquiescence to the Law of Amnesty (I’ll come back to that later). The textbooks printed during the transition —1978-1982— had not yet incorporated an impartial approach to writing history, while instruction about the Civil War is seldom a priority for the teachers. For most of the following generation, the Civil War turns out to be something abstruse or very distant. Something is known of the family taboos, but the recent economic well-being does not spur collective introspection. So for a large part of the Spanish society, the Civil War has become a past-past. For another part, not so; in that group one finds the grandchildren of those against whom reprisals were made, historians some of them, who want to know. They founded ARMH and have garnered support to create a state of opinion that the Academy had not achieved. But when their claims for reparation became patent, other sectors, some proceeding from uncivil enclaves that are also found amongst civil societies, made their voices heard; they are the revisionists (mainly Pío Moa and Cesar Vidal, under the auspices of COPE, the radio broadcasting system of the Spanish Church), who re-write history to cleanse the responsibility of Franco and transfer blame to the Republic, along with other radical rightist and very aggressive media after the defeat of the PP in the elections of 2004. (Remember that Aznar, the President of the PP, was one of the strongest defenders of taking the war to Iraq, which the people of Spain associated with the assaults in Madrid railway stations prior to the elections and which his government tried to attribute to the ETA, the terrorist Basque group, against all available evidence soon confirmed accusing Islamic fundamentalism —hence the Iraq link).

The Church, also radicalized and fearful of losing influence, in tune with a profoundly anti-communist and intransigently doctrinaire Pope, undertook a path to massive canonizations of priests and churchwomen of the Franco side assassinated in the Civil War, harking back to the 70-year-old speech that declared the Church the main victim of the war but silenced their active collaboration with the insurgents, legitimizing the coup as a religious war or crusade, which, in appreciation, enjoyed a monopoly on the consciences of the people during the 36 years of the dictatorship. The Church of Spain has not managed to create a unified document asking forgiveness for that, but it has evidenced great belligerence toward the initiatives associated with the Historical Memory (Pastoral de la Conferencia Episcopal, 23/11/2006).

The other matter which has complicated, and continues to complicate facing the dark past in a salutary manner, has to do with the presence of the Basque terrorist group ETA, perpetrator of some 850 deaths in its 50 years of existence. And it has complicated the matter, not only for the victims —who lived until a decade ago abandoned in their suffering if not stigmatized— but also because of the impact that it exercises on the society through threats, extortions, kidnappings, assaults, harassment, etc. ETA explains its violent action in the frame of a narrative of victimhood, according to which Euskal Herria (the way radical nationalists refer to the Basque Country) has been historically oppressed and dispossessed of its rights by Spain and France, and this siege mentality is shared by a wide spectrum of the Basque society who ally themselves with the Nationalists. At the same time, the ethno-nationalist radical conglomerate —which calls itself izquierda abertzale (nationalist left) — has enjoyed, thanks to an effective system of propaganda, and now especially the web, the complacency if not the explicit support of significant sectors of the extreme left in Europe as well as a part of the social movements that run the gamut from those who work in the field of human rights to those who are characterized by their another-world, or simply anti-system frame of mind.

It is opportune to add that one sector of the Basque social movement not to be disdained —feminist included— has been co-opted by this ethno-radicalism and has shown a clear lack of autonomy with respect to it, resulting in anti-militarist groups very active against NATO and the Spanish army but mute or acquiescent towards ETA militarism. As a consequence of such a state of affairs, in certain groups of the left and of the international social movements, there exists the prevailing vision that the Basque people are a victim of the Franco regime and that ETA is in a way the consequence of a debt of the Spanish democracy (as the continuation of former Spanish State) to the Basque people (nation). Such a view shows not only total historical ignorance about the development of the Civil War, but also complete lack of knowledge about what happened after the death of Franco. I will just comment on the last point.

The core of the demands for justice relative to the Franco regime points to the elimination of the Law of Amnesty of 1977, which canceled the political responsibilities of the regime. It is wise to remember that the demand of amnesty, which mobilized wide sectors of the civil society a year before, referred to the political prisoners of Franco and the return of those exiled. The amnesty decreed on 30 July turned out to be insufficient and, particularly in the Basque country, a total amnesty, which would include the crimes of the ETA, was requested through hunger strikes and protests in churches. After the first elections, the Partido Nacionalista Vasco (Basque Nationalist Party, the most supported party in the Basque Country) presented Congress a proposal for a law of “general amnesty applicable to all politically-related crimes, of whatever nature, committed before 15 June 1977”. And this is what was reflected in a law approved by the rest of the opposition groups, along with the governing UCD (Democratic Center Union, Suarez Party); so, under the umbrella of the liberation of the prisoners of ETA, the authorities, security forces and functionaries responsible for grave violations of human rights during the war and the long post-war period were exonerated. Here I must make a parenthesis to return to the matter of complexity. The event that I comment on cannot be attributed to an oblique intentionality of Basque nationalism; that the proposal was accepted by the majority illustrates a high degree of consensus in Spanish society to bury the dictatorship. This is not foreign to the way in which the regime was transforming itself and that becomes obvious if you compare it to what happened in Portugal. There, after the Revolution of the Carnations of 25 April 1974, which ended the Salazar regime, there was a profound cleansing: purging of functionaries and police, trials of repressors that had not fled and honors accorded to the victims. One item more regarding complexity: there seems to be a negative correlation between the treatment of the past and the indicators of success in the transition in the respective societies. The impact of decolonization in Portugal might be a factor in the process, but here I must close the parenthesis.

I return to the abused clash of contradictory memories. The day after the approval of the Law of Amnesty in June 1977, the jails were empty. Those who are now ETA prisoners have committed crimes since that date, and the impunity for the crimes and perpetrators of the Franco era is associated with that same fact. The Law could be considered then as a Ley de Punto Final. It is true that there was a dirty war —GAL (Grupos Antiterroristas de Liberación) case— against ETA, which constitutes a stain on the nascent democracy. It is true that a sector of the right has waved the banner of the victims of ETA while it doesn’t want to hear about the victims of Franco, and that it has used this on occasion as a weapon hurled against the socialist government. And it is true, likewise, that there is an old-fashioned fundamental Spanish nationalism that distrusts a recognition of the plurality of outlooks that inspires the Estado de las Autonomías (Regional Administration), the quasi-federal design of the institutional complex of Spain. It was that outlook that was expressed in the assaults of 11/3/2004 and led to a conspiracy theory to explain the electoral defeat of Aznar’s PP. And the dirty war must certainly be remembered. But it is no less certain that one part of the Basque nationalism has put all its effort into re-writing history to present the Civil War as a war of the Spanish State to annihilate the Basque people, with Guernica as its emblem. Despite having a high degree of well-being, a degree of autonomy in aspects indistinguishable from federalism, which has been enjoyed, among other things, uninterruptedly by a nationalist government until this year, Basque nationalism, radical and not radical, has made oppression by the Franco regime a recurring argument for their political demands and also for indirect legitimization of ETA terrorism, in a sort of ethnic counter-mobilization that Balkan States know very well. This perception has been so internalized in the cannon of nationalism that coinciding with the blocking of the investigation of Garzón (which neither the Basque government nor the radical sectors supported on this point because of their role in the pursuit of the crimes of ETA—note the multiple meanderings of the clash of memories), it was requested at that point that two truth commissions be created regarding the victims of Franco. Why two? One, the one that the groups of the tri-partite Basque nationalist government had foreseen, was directed at the central Spanish executive according to the procedure adopted in other countries (demonstrative effect delayed). The other, directed at the Basque executive, was a consequence of the support that the ethno-radicals close to ETA succeeded in getting —(PCTV, Partido Comunista de las Tierras Vascas and Aralar), without which they did not have sufficient parliamentary votes to go forward with the first. It is easy to guess the objective.

III. Transitional justice and the moral of emotions

What the two elements most related to the Franco era that persist in the Spanish panorama of today —a Catholic rather fundamentalist hierarchy supported by a Vatican in harmony, and a political movement of totalitarian inclinations— have in common, is the self-proclaimed victimization in the use and abuse of martyrs, saints or gudaris —Basque soldiers against Franco— according to the particular situation and with a greater dose of reality among the first than the latter. I must remind you that a study carried out in Israel reveals that two thirds of the population consider that from the beginning of the conflict, Israel has been the victim and the Arabs and Palestinians the victimizers (Nets-Zehngut y Bar-Tal, 2009; also Halperin, et al., 2008), not to mention the role that the interpretation of the defeat of Versailles played in the rise of Nazism, for want of referring to more recent examples. The sensitivity of the victim is a powerful incentive for violence and, consequently, an obstacle for the achievement of civic and fair harmony in the post conflict situation (Alonso, 2009). I believe that it is in this environment that the civil society can make a contribution to completing the work of the established judicial systems within the general frame of this debate. Perhaps the most serious obstacle that the communities face has to do with the recognition of crimes committed by them or in their name, as such recognition constitutes a burden for the collective self-esteem.

What is the source of this difficulty? To simplify, it corresponds to the nature of negative emotions associated with perceptions surrounding victimization. In contradiction to cognitive contents, emotions are holistic, that is to say, they totally saturate the space of sensitivity in such a way that if one puts him or herself in the place of the victim, there is room for nothing else. There is no room for empathy because victimization raises an emotional barrier to recognition of the harm. The epic of victimization is incompatible with the ethic of empathy. Identity narrative shapes and frames moral geography. The first commandment of the catechism of hate is the learning of incivility, and that requires a fanatical propaganda aimed at derailing the emotional systems. But, when the violence and abuse are over, and a collective is incapable of recognizing its crimes is when we find a community emotionally bankrupt. The judicial systems can dictate condemnatory sentences but their value in terms of civility is worthless if the condemned are considered heroes in their communities of origin. The technical culpability of the courts needs supplementation by an affective culpability: the internalized feeling of harm done, and, insofar as these emotions are social, this would not take place in a society lacking emotional capital. This second acceptance of blame, associated with shame, has two dimensions, the most evident or ad intra and the most constructive, ad extra. The last one pursues restoration for the harm or at least a symbolic compensation for it and, through that same avenue, the reintegration in the community of origin as requested by civic demands. This is a process of emotional contagion of feeling opposite to that which accompanied the learning of incivility (McDonald and Moore, 2001).

Also, contrary to the incitement of the ethnic conscience, what should be at the forefront is ethical loyalty, because without that the criminals will not feel disposed to face the fact of their criminality. And the need for biographical consistency is an impediment strong enough to admit that attitude if there is no social pressure in that direction. It is not easy to consider oneself a criminal if one wants to maintain a reasonable degree of self-worth.

I have said that the perception of victimization —real or imaginary— impedes seeing and recognizing the real victims. The regenerative shame does the opposite and completes the hard disciplinary treatment of the courts with this profound and rehabilitating focus of emotional pedagogy. No court can offer human warmth and moral support to the victims that the organizations of civil society can, especially if they come from the side of the aggressors (Biko, et. al., 2004). It behooves us to remember that prior to their physical dispossession, prior to the assault against their integrity, the victims have been dispossessed of their meaning, they have been converted into “superfluous worthless lives” (Alonso, 2009b). It follows that the most elementary reparation should begin by reconstructing the meaning and value of the victim, a task that is impossible without recognition of the harm and the damage caused by the victimizer. The public establishment of the fact of victimization is the purpose of so-called truth-commissions. The penal systems provide for the material reparation of the victims, but often what the victims are reclaiming is of a more symbolic nature (Cunneen; Ginges, et. al., 2001; McDonald and Moore, 2007); and what matters then is their emotional component. Even more, those symbolic reparations facilitate other interactions in more tangible areas (Ginges, et. al., 2007). However, symbolic reparations can be provided only by a society that is not emotionally bankrupt. For that reason, it seems to me that a pedagogy of the emotions constitutes one of the avenues through which civil society can contribute to the accomplishment of compassionate justice and to strengthening a civic conscience that will place human dignity as the supreme criterion for conduct. It is difficult to think of political re-socialization (Siber, 2004) without cognitive reframing, and cognitive reframing will be improbable without a reshaping of emotional codes. Clearly, it is a matter that, in view of what I have delineated previously, we are still waiting for in Spain. Thank you very much.

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