Current Developments

Beyond the exhumation of the dictator

The role of Spanish civil society  in the search of victims of enforced disappearance  during the Franco regime  

After the pronouncement of the Spanish  Supreme Court  endorsing the exhumation of the remains of the dictator Franco from the “Valle de los Caidos” (the enormous mausoleum built by the prisoners of Civil War where Franco was buried for 44 years), the actual exhumation finally took place this week. This measure was foreseen in  Royal Decree-Law 10/2018,  adopted by the socialist government of Pedro Sánchez in August 2018,   which modifies Law 52/2007, recognizing and extending rights and establishing measures in favor of those who suffered persecution or violence during  the Civil War and the dictatorship.

According to the preamble of the Royal Decree-Law 10/2018, its purpose is to attend to the common feeling of the Spanish society, which considers that such an incongruous situation cannot be postponed any longer in a democratic State.  This way, the government seeks to  respond to the  Report of the UN Special Rapporteur, Pablo del Grieff,  on the promotion of truth, justice and reparation, created  after his visit to Spain in 2014, asking for  the “resignification” of the Valle de los Caidos.  Following the previous recommendations made by the Committee of Experts for the Future Valle de los Caidos in its 2011 report – the implementation of which was demanded by the Special Rapporteur – the site would need to cease to be a symbol  of  Franco’ s  National-Catholicism to become the emblem of reconciliation, the democratic collective memory, and the dignification and recognition of the victims of the Civil War and the dictatorship. Hence, the actual exhumation of last week represents a  significant  and necessary advance  to address the legacy of  the Civil War and the dictatorship. In addition, this post argues that Royal Decree-Law 10/2018  should also  be  the starting point  for a coherent, comprehensive and global policy of the Spanish state, favouring justice and reparation and serving as a guarantee of non-repetition. Within this global policy, necessary measures  need to be taken to deal with the  enforced  disappearances  during the francoist dictatorship, and exhumations should be managed publicly.

The right of  families to know the location of victims of enforced disappearance

In 2014, the United Nations Working Group on Enforced or Involuntary Disappearances  (WGEID)  issued a  report  in which it regretted the fact that  the bodies of  thousands of people killed during the Civil War were still buried  in mass graves or unknown places,  without the permission or knowledge of their relatives.  Furthermore,  in its  Monitoring Report,  the WGEID signalled that enforced disappearance is still not criminalized in the Spanish Penal Code, inconsistent with the requirements of the Convention and the Declaration on the Protection of  the crime of enforced disappearance.  To this, we must add that the Spanish criminal legislation still foresees statutes of limitations for the crime of enforced disappearance  as a continued crime, in clear contravention of existing international law standards.  In this same sense, the Supreme Court Judgment 101/2012, of February 27th,  concluded  that the prescription of the crimes of  enforced  disappearance  and the  absence of criminal responsibility  of the alleged perpetrators was in contravention of the Amnesty Act  of 1977,  thus closing  the door to the judicial route  in Spain. However, the relatives of victims of enforced and involuntary disappearance have the right to  know  the fate or whereabouts of their beloved ones according to article 24.2 of the  International Convention for the protection of all persons against enforced disappearances,  ratified by Spain.  In addition, subsection 3 of the same article  imposes the obligation on the Spanish State to enforce this right by adopting  appropriate measures for the search of missing persons for the respect and restitution of the remains.  However, the measures adopted  by Spain so far are limited  to the elaboration of the Map of graves  (an integrated map showing the locations of the remains of people who disappeared under violent circumstances during the Civil War and the dictadurship) in compliance with the Historical Memory Law (Law 52/2007, of December 26th), and  providing subsidies for exhumations.

The  privatization  model for exhumations

In the absence of a real State policy on this issue, the exhumations are carried out on the initiative and with the financial support of civil society organizations, and in particular, the associations of victims and family members, among which it is worth mentioning the work of the  Association for the  Recovery of Historical Memory.  From 2007 to 2011,  this  non-governmental  and non-profit organization, which draws on private contributions,  received  an annual grant that allowed it to cover 20% of the expenses incurred by an annual project of ten exhumations.  As  expected, the financial precariousness substantially reduced the number of exhumations.  In addition,  the fact that there exists no  public organization in charge of officially registering the discoveries of the graves greatly hinders the construction of an official truth about what happened to people who disappeared during the Civil War and the dictatorship.

 Conclusion

In  consequence,  the exhumation of Franco  is a symbolic gesture of great representativeness in the  construction of a collective memory by contributing to the  recognition of the victims and their dignity.  However,  the unearthing of the dictator’s remains should be part of a broader state policy with the aim to create an official truth and repairing the victims of the Civil War and the dictatorship.  In this sense, without relativizing the important work done by civil society organizations in this regard, it would be preferable for the State to assume this task, committing itself to implement a holistic strategy of transitional justice with the ultimate goal of moving towards the true reconciliation  of the Spanish people. In order to do this, the creation of the new Sub-Directorate General for Assistance to Victims of the Civil War and the Dictatorship, in charge of carrying out a State policy on search of victims of enforced disappearance  during the Franco regime, could be a good starting point. Nonetheless, the actual political instability in Spain –  the country is being governed by a caretaker government since april 2019 – makes this issue extremely difficult.

 

Carmen Montero Ferrer is a postdoctoral researcher at Santiago de Compostela University (Spain), currently she is a postdoctoral fellowship at the Canada Research Chair in International Criminal Justice and Human Rights, Laval University (Canada).

 

Cite as: Carmen Montero Ferrer, “Beyond  the exhumation of the dictator. The role of Spanish civil society  in the search of victims of enforced disappearance  during the Franco regime”, Völkerrechtsblog, 1 November 2019, doi: 10.17176/20191101-162903-0.

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1 Comment

  1. Pieter Jan Kuijper
    7 November, 2019 at 13:24 — Reply

    Thanks for this informative piece, but I cannot believe that the author really meant what she wrote, when she put down the following lines: “the unearthing of the dictator’s remains should be part of a broader state policy with the aim to create an official truth…..”
    Honouring the memory of those who perished in the Spanish civil war (in particular on the Republican side) is certainly not served by the Spanish government creating “an official truth” about that bloody episode in Spanish history.

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