A dialogue between Spain and Argentina around memory and justice

At a time when the Democratic Memory Law is being debated in Spain, and after more than two decades of exchange in the field of memory and justice between Spain and Argentina, jurists from both countries - promoters of judicial investigations against crimes of both dictatorships - met this week in the Mirador room in Madrid.

Among the attendees there was an intergenerational audience, with young students, lawyers, victims and relatives of victims of the Franco regime, artists, journalists, a member of the General Council of the Judiciary, or Vice President Yolanda Díaz, among others. With the Mirador room full and the waiting list out, for more than two hours the Argentine judge Raúl Zaffaroni, the jurists Ana Messuti, Joan Garcés and Matías Bailone, and the president of the Association for the Recovery of Historical Memory (ARMH) Emilio Silva talked about memory, justice and impunity.

The victims of Francoism have been politically and systematically denied

Matias Bailone

They did so by recalling the dialogue between Spain and Argentina for decades on these matters. It was in Spain where the trial against Pinochet was launched and where the former military officer Adolfo Scilingo was later tried for crimes of the Argentine dictatorship. However, Spain has consistently refused to prosecute the crimes of its own dictatorship, while Argentina has pushed for justice for its victims. Eleven years ago, some victims of the Franco regime went to the Argentine courts, in what is known as the Argentine lawsuit, which investigates crimes of the Spanish dictatorship.

"In the exchange and dialogue between our two countries, the path of the unthinkable, the path of justice, was widened," said Emilio Silva at the event. For more than two hours, the speakers reflected on the fact that "in Spain the victims of the Franco regime have not been recognized, they have been politically and systematically denied," said the Argentine jurist Matías Bailone.

The Memory Law is perhaps the last opportunity to reaffirm a dimension of Spanish sovereignty

Joan Garcés

"The Spanish question bothers because behind the massacres of the Franco regime there was complicity of the Government and European States," said the lawyer Joan Garcés, promoter of the Pinochet case, referring not only to Germany and Italy, but also to "the policy of non-intervention sponsored from London and supported from Paris to disarm the Republic and the Spaniards who fought against fascism ”.

In this sense, Garcés appealed to the need for an act of sovereign affirmation: "The Law of Memory [no aprobada aún] it is an opportunity, perhaps the last, to reaffirm a dimension of Spanish sovereignty. If internationally the Spanish antifascists were militarily crushed and later politically marginalized in the international community, reaffirming the will for justice regarding what happened is an act of sovereign affirmation regarding that international dimension ”.

The lawyer defended the importance of applying international law to the crimes of the Franco regime and the necessary compensation to the victims also in its economic dimension “because there was looting through confiscations and seizures. This fund can be fed with financial compensation for the companies that exploited the retaliated workers. That this is discussed, although it is not finally approved, would already be a radical change in the face of the absolute silence that has existed, "he said.

In the victims' certainty of being heard there is a feeling of right, a legal conscience.

Ana Messuti

The Argentine lawyer Ana Messuti, promoter of the lawsuit investigating the crimes of the Franco regime in Buenos Aires, defended the value of the victims' accounts and the fact that they are heard. "Not listening is another form of death," he reflected, referring to the impossibility of victims to be heard in Spanish courts.

"Ascensión Mendieta [convertida en símbolo por su empeño en recuperar el cadáver de su padre, asesinado y desaparecido por el franquismo] she was not an expert in law. But in her certainty of wanting to be heard there is a feeling of law, a legal conscience. The plaintiffs have taught us that. They have had to come to remove the normative bandage closed to certain sufferings ”, he pointed out.

Messuti believes that the Argentine complaint has opened a new path in Spain and referred to some sign, such as a particular vote "in the Constitutional Court or an appointment of a judge who has very clear things regarding memory."

The Spanish question bothers because behind the massacres of Francoism there was complicity of European states

Joan Garcés

Former Argentine Supreme Court judge Raúl Zaffaroni, architect of the repeal of the Final Point and Due Obedience laws in his country, and currently a magistrate at the Inter-American Court of Human Rights, reflected on the original idea of ​​human rights: “ When we speak of human rights we go back to 1948, to the Universal Declaration. That is the short story, the long story is the resistance to colonialism in all phases and moments ”.

The judge explained that Argentina was able to repeal the amnesty laws because when they were promulgated Argentina had already ratified the American Convention on Human Rights, and said laws were contrary to the Convention. In addition, the Argentine Constitution since 1853 recognizes the universal principle.

Around this, relying on national sovereignty and as a member of the Supreme Court, “I could not interpret the Constitution in the aberrational sense of deciding that sovereignty be exercised by another country [España, que investigaba crímenes de la dictadura argentina y solicitaba extradiciones] And I can't deny the extradition and do nothing, because then I become a cover-up. My Constitution says that sovereignty is exercised by me, and that is how I focused my vote in the Supreme Court, which resolved the reopening of all the processes ”.

The long history of human rights is resistance to colonialism in all phases.

Raul Zaffaroni

In his speech, Emilio Silva, founder of the ARMH, lamented that "in Spain they did not educate to be afraid of entering a court to denounce the crimes of the Franco regime."

“When I first used the word disappeared, I did it by borrowing it from some Argentines who were in Madrid in the nineties. There were people who wrote articles scandalized saying that what was that, that here was something else. Here we were talking about outings, like someone who goes out for a walk or to buy tobacco, but we were talking about illegal detentions followed by torture, murder and hiding the body. And that is a missing person, here and everywhere. The problem, for some, was that with that term a category was established that points to the law, that denounces something ”, he explained.

Silva told how in July 2002 he entered a Villablino court, with a United Nations resolution in hand, to request that a Franco regime crime be investigated: "I did it trembling, I was educated to enter there with fear." The jurist Matías Bailone highlighted the importance of working for a pedagogy of memory. "As Dostoevsky said, if the past does not exist everything is allowed, if God does not exist everything is allowed and that has been the price of the Transition a little," he reflected.

Do the judges of this country feel challenged by this reality? I would say no, and I think I know because I am a member of the CGPJ

Concepción Saéz

Among the public there were many questions and reflections, among them that of the member of the General Council of the Judicial Power Concepción Sáez, who pointed out that the judges do not feel questioned by the requests of the victims of the Franco regime and explained that when last spring the CGPJ reported on the draft of the Memory law, she was left alone in the private vote: "No one joined, none of the progressive comrades who are supposed to accompany me in the Council," she explained, referring to to the vote you cast in which he criticized that the future law does not contemplate the possibility of investigating the crimes of the Franco regime by the judges.

“The General Council of the Judiciary does not obey the correlation of social forces. [Ante este asunto] I trust the legislative and executive powers, also the social forces, but not the Judicial Power, ”lamented Sáez.

The actor Juan Diego Botto, son of a disappeared by the Argentine dictatorship, asked to speak to highlight the fact that in Argentina "criticism of the dictatorship in society was hegemonic." Responding to this, Zaffaroni stressed that a key moment in Argentina was the British occupation of the Maldives, which meant "the end of the dictatorship and any prestige that the armed forces could have, the role they did, the cowardice of the officers, torturing the soldiers themselves, that had a deep impact on public opinion. That is why there was this reaction to the crimes of the Argentine dictatorship. It is a different story from that of Spain. "

In every grave in which we look there is a mirror, we are the consequence of that terror

Emilio silva

For his part, Joan Garcés pointed out that "the antifascists won in Europe, in Spain they were defeated but the ideas defended by the republicans won the war. They won the Second World War, even though they lost the battle of Spain. This is what they lost. explains the forty years of impunity after the end of the dictatorship. Spanish public opinion emerged from the dictatorship traumatized and that explains that only after the year 2000 did Spain begin to make requests for justice before the courts. Several generations have passed, but we must not despair. Nothing is immutable. In Germany, it is the grandchildren of the generation that sustained the Nazi regime who asked for explanations and justice; here it is also the grandchildren. Circumstances have required the passage of time to be able to express and ask for justice. "

Before the word of a young man in the audience who asked what the new generations can do for democratic memory, Garcés indicated that collective social mobilization and public opinion "are vital": "For the new generations to be able to shape the future they need to do so on solid foundations, and these cannot be those of fascism or neo-fascism. To consider where we are and where we are going necessarily requires looking for the roots of the current situation. "

The antifascists won in Europe, in Spain they were defeated but their ideas won the Second World War

Joan Garcés

Around the same, Emilio Silva affirmed that "our educational model is created so that people learn the answers and do not ask questions. A month ago we learned that the textbooks are going to call the coup d'état a coup. How much does that explain. " The president of the ARMH indicated that "in every grave in which we look there is a mirror, we are the consequence of that terror." Finally, Ana Messuti stressed that "it can be done as if the Spanish Amnesty Law did not exist, because Spain ratified the Vienna Convention" and in that sense international law predominates. "

There were words of gratitude for Ana Messuti and also for Cristina Rota -present at the event-, director of the school that bears her name and an Argentine exile who fled to Spain in the late 1970s after the murder and disappearance of her husband Diego Fernando Botto . For his part, Judge Zaffaroni recalled, to explain the exchange between the two countries through exiles, some Spanish jurists from the "republican diaspora" who contributed to its formation, such as Manuel de Rivacoba, Luis Jiménez de Asúa (vice president of the Congress of Deputies during the Republic) and Francisco Blasco and Fernández de Moreda.