Democracy Without Justice in Spain. Omar G. Encarnacion

been carried out in Spain since Franco’s passing.

      On some human rights fronts, such as expanding the rights of ethnic and sexual minorities, Spain has led rather than followed the international community. It has been a leader in extending home rule to culturally distinct communities such as the Basques and the Catalans, arguably the most autonomous of Europe’s “stateless peoples,” a development that ensued from the recognition of different nationalities within the Spanish territory in the 1978 Constitution. In 2005, Spain became only the fifth country in Western Europe, and the first Catholic-majority country in the world, to enact samesex marriage legislation that makes no distinction in the right to marry and adopt between homosexual and heterosexual couples. This landmark law influenced the expansion of gay rights in the Iberian-Latin world, including, most notably, legalization of same-sex marriage in Argentina and Portugal in 2010 and in Uruguay in 2013.

      Most ironic of all, however, is the prominent role Spain has played in popularizing the practice of prosecuting former despots. Judge Garzón’s 1998 indictment of General Pinochet established the principle of “universal jurisdiction,” which holds, in a nutshell, that some crimes are so heinous that they offend all of humanity and are therefore prosecutable by any nation. In 2005, the Constitutional Court, Spain’s highest court, ruled that a lower court could proceed in investigating crimes of genocide, murder, and torture committed by the military during Guatemala’s Civil War, arguing, to the delight of human rights activists everywhere, that “The principle of universal jurisdiction takes precedence over the existence of the national interest.” These actions further burnished Spain’s reputation as a human rights trailblazer while highlighting an apparent double standard (if not outright hypocrisy) in how Spain regards the issue of the crimes of an old regime: forgetting for itself and prosecution for everybody else.⁶ Wilder Tyler, legal and policy director for Human Rights Watch, highlighted this double standard when noting: “Spain is an obligatory reference to many countries in the process of democratic transition. I do not understand why Spain does not apply to itself the same standards of justice that it demands of other countries.”⁷

      But it is the manner in which the Spanish experience so boldly flies in the face of the “transitional justice” movement that makes any investigation into the rise and consequences of Spain’s politics of forgetting so compelling. Transitional justice refers not only to the measures undertaken during the period of democratization to bring accountability to the previous regime for its human rights abuses, but also, as seen next, to a set of normative theories about the importance of “coming to terms with the past” (see Kritz 1995; Ignatieff 1996; Rosenberg 1996; Crocker 1999; Tutu 1999; Teitel 2000; Boraine 2006). Due to this movement’s influence—it has largely shaped an international consensus on the need for emerging democracies to confront their past—leaving the depravity of the old regime unpunished or unexamined is no longer an acceptable option for any respectable member of the international community.

      Unsurprisingly, given the impunity embedded in the 1977 Pact of Forgetting and the 2007 Law of Historical Memory, Spain has been denounced in international forums as something of a transitional justice outlaw.⁸ In 2002, the United Nations cited Spain as a state that has yet to properly address its past and urged the country to lift its amnesty law, arguing that it contravened state duties to prosecute, prevent, and punish human rights abuses. Major human rights organizations including Amnesty International, Human Rights Watch, and the International Commission of Jurists have criticized the 2007 Law of Historical Memory for failing to conform to international justice standards. In the view of these organizations, the shortcomings of the law, especially the persistence of legal protections against prosecutions, “prevent the truth from emerging and treat the victims of human rights abuses as passive elements.”⁹

       The Age of Transitional Justice

      Although often thought of as a new phenomenon, transitional justice is as old as the rise of democracy in the modern world. During the French Revolution, an era of unprecedented democratic ferment, the newly declared Republican government agonized over the fate of King Louis XVI, before finding him guilty of “crimes against the people” and handing him the most gruesome of sentences: death at the guillotine. What is new about transitional justice is its emergence as the linchpin of a new morality in international politics, one that regards human rights as above domestic laws, customs, and conditions and respect for human rights around the world as a matter of concern for the international community as a whole. Such developments explain talks about the advent of “the age of transitional justice” (Philpott 2007: 2), sustained by an expansive “transitional justice industry” (Theidon 2009) led by human rights activists, leading political theorists and legal experts, multilateral organizations like the United Nations and the International Criminal Court (ICC), NGOs such as Human Rights Watch, Amnesty International, the International Commission of Jurists, and the American government, which under the George W Bush administration made justice against the Saddam Hussein regime a centerpiece of its democratization policy in Iraq.

      More important, the rise of transitional justice has generated widespread claims about the advent of universal standards of justice and accountability for departing authoritarian regimes. Benhabib (2009: 695) notes that transitional justice exemplifies “the transition from international to cosmopolitan norms of justice.” Whereas norms of international law “emerge through treaty obligations to which states and their representatives are signatories,” cosmopolitan norms, according to Benhabib, “accrue to individuals considered as moral and legal persons in a worldwide civil society.” In this way, “cosmopolitanism” self-limits or self-binds the sovereignty of states by obliging them to treat their citizens in accordance with human rights standards. This willingness of states to conform to the postulates of transitional justice is thought to take place in a variety of ways, but almost all of them emphasize the role of international norms and values in shaping domestic practices and behaviors.

      While some scholars emphasize how the willingness of governments to sign international law treaties empowers domestic human rights stakeholders to press for accountability for outgoing authoritarian regimes (Simmons 2009), others emphasize the phenomenon of contagion in the international arena. Sikkink (2011) highlights a “cascade of justice” in international politics in the years since the end of the Cold War prodded along by countries copying one another and by multilateral institutions such as the ICC and ICTJ. Others highlight the international “diffusion” of human rights norms that takes place through “socialization,” defined as “the crucial process through which a state becomes a member of the international society” (Risse and Sikkink 1999: 11). Socialization emerges “not in isolation but in relation to and in interaction with other groups of states and international non-state actors,” and its goal is “for actors to internalize norms, so that external pressure is no longer needed to ensure compliance.” Such external pressure includes “strategic bargaining,” “moral consciousness-raising,” and “shaming” (11–13). Key to the success of socialization is the work of “transnational action networks” that operate across national boundaries in creating and enforcing human rights norms and practices by linking international and domestic actors (Keck and Sikkink 1998).

      There is, to be sure, no consensus within the heterogeneous transitional justice movement on what bringing accountability to an old political regime actually entails. But at least two very distinct models can be identified. These models represent the two intellectual wings that dominate the transitional justice movement: “retribution” and “reconciliation.” Although often deemed polar opposites, both models make the case for coming to terms with the past as a democratization imperative, by linking retribution and reconciliation to such outcomes as helping to consolidate the rule of law, enhancing democratic values, bringing dignity to those victimized by political violence or repression, purging the body politic of the memory of political trauma, and preventing history from repeating itself. Failure to confront the past, out of political expediency or societal apathy, is presumed to lead to the emergence of a weak or flawed democracy, one unable to garner much support among the citizenry because of the impunity afforded to the old regime, and vulnerable to painful eruptions of memory that ensue from having repressed a past that was never properly examined and exorcised.

      Retribution Versus Reconciliation

      As