Allegations of genocide under dictator's rule could be tried in Latin America if amnesty laws block investigations in Spain
BY Giles Tremlett
In a stark reversal of roles, an Argentine judge has taken a step towards opening the first comprehensive investigation into the human rights abuses of General Franco's dictatorship in Spain.
Judge Mara Servini has asked Spain to declare whether its own courts are investigating cases of torture, murder and disappearance of Franco's political opponents.
If amnesty laws prevent Spanish courts investigating the cases cited by Servini, which date from 1936 until the dictator's death in 1975, then she might declare her own court competent to investigate and try crimes allegedly committed by Franco's henchmen.
In a formal petition to Spain, Servini indicates that the court would investigate allegations of genocide, including tens of thousands of cases of "torture, assassination, forced disappearances and the stealing of children".
Her request mirrors those made over the past dozen years by Spanish courts which, using international law allowing human rights crimes to be investigated and tried elsewhere if a country cannot do so itself, have brought cases against several military regimes in Latin America.
The Spanish magistrate Baltasar Garzn famously used this process to order the arrest of Chile's Augusto Pinochet in London in 1998. In that case the law lords ruled that the former dictator should be extradited to face trial in Spain, although Jack Straw, home secretary at the time, finally sent the general back to Chile on health grounds in 2000.
Garzn used the same principle of universal jurisdiction to prosecute the Argentine navy captain Adolfo Scilingo in Madrid in 2005. Scilingo was jailed for throwing drugged political prisoners out of aircraft into the sea.
Argentina later repealed its own amnesty laws and the country now tries dirty-war suspects.
The request by Servini comes after Spanish human rights campaigners took the case to Argentina, claiming domestic courts were effectively closed to them. They say a decision by the supreme court to try Garzn for allegedly distorting Spanish law as he tried to open an investigation in 2008 into Francoist crimes, proves that Spain is unable to try these crimes itself. Garzn is due to be tried in the coming months.
A Spanish amnesty law passed in 1977 covers crimes committed while carrying out political repression before 1976 by "authorities, civil servants and agents of public order".
The petition from Servini lists the cases of several people killed or "disappeared" by pro-Francoist death squads in the early days of the Spanish civil war in 1936 when General Franco helped lead a right-wing uprising against the government. It also includes the case of Silvia Carretero, arrested and allegedly tortured in 1975, and her husband Jos Luis Snchez Bravo, who was shot by a Francoist firing squad that year after being found guilty of killing a police officer.
In her petition, signed on 14 October, Severini asks Spain's government "to inform this court whether in your country there is an investigation into the existence of a systematic, widespread and deliberate plan designed to terrorise those Spaniards who supported representative government via their physical elmination, and of a plan of legalized disappearance of children whose identities were changed."