A new law seeks to unearth Franco’s victims, but it doesn’t go as far as truth commissions in countries like Argentina, Chile, and South Africa.
Spain’s socialist prime minister, Pedro Sánchez, has passed a new “Democratic Memory” law, which he says will help “settle Spanish democracy’s debt to its past” by bringing “justice, reparation and dignity” to victims of crimes committed during the nation’s 1936-39 civil war and the ensuing 36-year dictatorship of Francisco Franco.
The new legislation, passed last month, is in some respects an improvement on a similar law enacted in 2007—but it’s also open to some of the criticisms leveled at other instances of restorative, rather than retributive, justice. Spain, once again, has posed the question of what it really means for a country to confront and reconcile itself with a troubled past.
The new law makes the state responsible for recovering the remains of an estimated 100,000 victims of Francoism who were killed by nationalist troops and thrown in unmarked graves—a polarizing historical period highlighted in Pedro Almodóvar’s latest film, Parallel Mothers, in which a photographer played by Penélope Cruz seeks the excavation of the mass grave that holds the remains of her great-grandfather, who was murdered by Francoist troops during the civil war.
The law will also create a national DNA database to help identify excavated bodies. Previously, this vital, painstaking task was primarily performed by the Association for the Recovery of Historical Memory (ARHM), an organization that had its funding slashed to zero under Sánchez’s conservative predecessor, Mariano Rajoy.
The new memory law also mandates the teaching of the civil war and dictatorship in schools, which up until now have been marginalized subjects, if taught at all. It also outlaws the Franco regime, rather than just condemning it, as the 2007 bill did, and pardons anyone convicted of political crimes by Francoist tribunals.
In attempting to deliver restorative justice to victims of crimes rather than to prosecute perpetrators, Spain’s new memory law is comparable to South Africa’s Truth and Reconciliation Commission (TRC). Established by former South African president Nelson Mandela in 1995 and chaired by anti-apartheid activist Desmond Tutu, the TRC heard evidence from around 21,000 victims of human rights violations during apartheid, 2,000 of whom spoke in public hearings. It also granted 849 amnesties to perpetrators of apartheid-era crimes, on condition of full confessions, and recommended prosecution in those cases where amnesty was denied or not requested—but few criminal trials were held.
Spain’s transition from dictatorship to democracy after Franco’s death in 1975 also hinged on avoiding the prosecution of crimes—but, unlike in South Africa after apartheid, there was no public forum in which victims could tell their stories and perpetrators could be forgiven.
Two years after Franco died, in 1977, Spain passed an amnesty law that guaranteed immunity for perpetrators of war crimes on both sides. Technically, this freed both republicans and nationalists from legal reprisals, but in reality, of course, it was weighted in favor of the latter.
The amnesty law was the foundation for a cross-party “pact of forgetting”—a tacit agreement not to investigate the atrocities of the recent past. According to this narrative, something like the TRC in 1970s Spain would have threatened, not strengthened, the country’s nascent democracy.
The Spanish right cleaves to the amnesty law, using it as the basis of its objection to historical memory initiatives. (In 2012, the U.N.’s high commissioner on human rights found that the amnesty law violates international human rights law.) Far-right Vox and the conservative People’s Party (PP)—founded in 1989 by Franco’s former minister of tourism, Manuel Fraga—accuse Spain’s leftist coalition of digging up the past to score political points. The PP’s leader, Alberto Feijóo, has vowed to repeal Sánchez’s memory law if he wins the next general election, due at the end of next year.
Source: Foreign Policy