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Waking the dead of the Spanish Civil War: Judge Baltasar Garzon and the Spanish law of historical memory

Burbidge, Peter K. (2011) Waking the dead of the Spanish Civil War: Judge Baltasar Garzon and the Spanish law of historical memory. Journal of International Criminal Justice, 9 (3). pp. 753-781. ISSN 1478-1387

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Official URL: http://dx.doi.org/10.1093/jicj/mqr027

Abstract

This article considers the controversial proceedings against Baltasar Garzón, Spain’s best-known judge. These proceedings and Garzón's own investigations of the crimes of the Franco era have thrown up a large number of issues about the retrospective application of justice to conflicts, such as the Spanish Civil War, apparently consigned to history. After examining the historical record of the crimes of the Franco regime this article goes on to look at the 2007 law of Historical Memory as Spain’s first transitional measure to face up to this past. It then considers the grounds both in international and domestic law for Garzón’s investigation of these crimes as crimes against humanity. The three major obstacles to such a prosecution — retroactivity of international crimes not clearly defined at the time, the issue whether the crimes are statute-barred and the application of the 1977 Amnesty Law are considered in turn. This constitutes the background to the current prosecution of Garzón for prevaricación, misuse of judicial powers, and the question whether Spanish amnesty can be overcome by prosecutions in other countries, e.g. Argentina, under their rules of universal jurisdiction.

Item Type:Article
Research Community:University of Westminster > Law, School of
ID Code:10516
Deposited On:31 May 2012 14:29
Last Modified:18 Jun 2013 10:26

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