This week, labour leaders, university professors and the film director Pedro Almodóvar congregated outside the Audiencia Nacional, Spain’s national court. They were chanting their support for their country’s – possibly the world’s – most famous judge. Baltasar Garzón, the radical and ambitious investigative magistrate, made his name in Spain by revealing the tactics of Spanish counter-terrorism officials in the 1990s. In 1998, he ordered the arrest of the Chilean dictator Augusto Pinochet in a London hospital and in 2009 he proposed trying White House lawyers for the advice they gave George W. Bush on the legality of detaining prisoners at Guantánamo Bay. His agenda is consistently controversial. To some it looks like battling corruption on an ever bigger stage. To others it looks like corruption itself.
Last week’s proceedings concerned allegations brought by conservative activists that Mr Garzón collected big fees for university lectures in New York, and then dropped a case against a director of Banco Santander, which underwrote the lectures. Mr Garzón denies all wrongdoing. But it is a second case against Mr Garzón that has divided Spanish public opinion. In the autumn of 2008, he opened an investigation into the almost four decades of Francisco Franco’s rule, which ended with the dictator’s death in 1975. Mr Garzón called for opening more than a dozen mass graves, including the one in which the poet Federico García Lorca is thought to lie. Under the terms of a 1977 amnesty, enacted during the transition to democracy, political crimes committed under the dictatorship are not prosecutable. Mr Garzón carried on regardless, denying the law’s validity on human rights grounds. In so doing, magistrates argue, he overstepped his judicial mandate. He may soon be suspended from the bench.
Mr Garzón’s supporters claim he is the victim of a rightwing put-up job. The claim has considerable plausibility. He has been investigating the so-called “Gürtel” case, a pattern of alleged political pay-offs that implicates two dozen members of the conservative Popular party. Mr Almodóvar has made the outlandish claim that Mr Garzón is being pursued by the Falange, a fascistic movement founded before the Spanish civil war, which is now senescent and marginalised.
The problem is not so much with the Spanish right in particular as with the Spanish judicial system in general. Judges are highly politicised. Mr Garzón is no exception. His justice is selective. He moved against Pinochet at a time when Fidel Castro was visiting Spain. Mr Garzón once told the magazine Mother Jones that he watched Costa Gavras movies when preparing for important hearings. You don’t get much more ideological than that.
However, it is Mr Garzón’s modus operandi, not his politics, that is on trial. His basic tactic has been to delegitimise the amnesties that often accompany (and make possible) transitions from dictatorship or civil war to democracy. In Mr Garzón’s view, the parliamentary arrangements by which Chile granted Pinochet a limited amnesty and a senatorship-for-life were, under international human rights law, null and void. Spaniards, who for the most part applauded when Mr Garzón inflicted this doctrine on the world, are having second thoughts on seeing it applied to their own history.
They should. Mr Garzón’s approach probably causes more harm than it prevents. Since nobody has legitimate authority to legislate for the world, to invalidate national laws in the name of international “norms” is to replace democratic rule with judicial fiat. It is also to falsify history, by promoting the myth that such amnesties are unnecessary accidents – that, but for the compromises of politics, any given democracy could have been brought into being through the political equivalent of immaculate conception. More pragmatically, although impunity for history’s malefactors is an upsetting thing to have to tolerate, it is sometimes the only means of ending a conflict. Amnesties are not negotiated only because a political class is corrupt or stupid. They are also negotiated because they help stop a cycle of belligerence that can continue indefinitely.
Foreigners sometimes bring a helpful cool-headedness to resolving long-term political strife. But they seldom bring expertise. They are ill-equipped to understand the historical grounds on which compromises were arrived at. Spanish judges, who have been the leaders in proclaiming “universal jurisdiction”, are less well equipped than most. For all its impressive progress over the past three decades, Spain remains a country with an unsettled – and, by western standards of nonpartisanship and impartiality, unimpressive – judicial tradition. It is no gain for international peace when a freelancer operating in such a system is permitted to make foreign policy for a dozen European countries, all of which have a better human rights record than Spain’s over the last 60 years, as Mr Garzón was permitted to do in the Pinochet case. Until now, other western countries have abetted Mr Garzón’s overreaching. It was not a glorious moment for habeas corpus when Britain, with its centuries of protecting individual liberties, kept Pinochet under house arrest for 18 months.
Whatever happens to Mr Garzón in court, history will not look kindly on his innovations. Spaniards’ increasing scepticism about his willingness to ignore settled law in favour of “higher” principles is a welcome development. It may come as a blow to those who were threatened by dictatorships in the past. It will be a blessing to those threatened by dictatorships in the future.
The writer is a senior editor at The Weekly Standard
More columns at www.ft.com/caldwell