In Spain, Can Truth Ever Bring Reconciliation?

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.

Unlike in South Africa after apartheid, Spain had no public forum in which victims could tell their stories and perpetrators could be forgiven.

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.

People pay tribute to Francisco Franco at the Valley of the Fallen near Madrid on Nov. 20, 2018, on the anniversary of his death. The government voted that year to remove the dictator’s remains.Alvaro Fuente/NurPhoto via Getty Images

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.

Spain’s efforts at restorative justice aren’t just under attack from the right, though. In his fascinating 2019 book, After the Fall, the Financial Times’ former Madrid correspondent, Tobias Buck, interviews an academic whose views on reconciliation, Buck says, are shared by many Spaniards. “There is no one way to deal with the past,” the professor says. “[E]verything that has happened in Spain since [Franco’s death] has condemned him. … Spain has moved on by doing, by acting.”

This view sits between the classic left- and right-wing positions on how best to deal with the legacy of Spain’s civil war and subsequent dictatorship. It’s leftist in that it regards Francoism as a dark, regrettable chapter of Spain’s past deserving of condemnation, but right of center in its denial of the necessity of any kind of reconciliation process. The functioning of a healthy democracy, according to this view, is enough in itself.

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It seems especially valid three years later, when a remarkable array of political ideologies is represented in Spain’s parliament, from the democratic-socialist elements of Podemos to Trump-esque Vox.

CUP, a pro-independence Catalan party, speaks in general for the Spanish left when it criticizes the new law for failing to repeal the amnesty law and for not seeking the prosecution of Francoist crimes committed during the civil war and dictatorship. Francoism had a particularly destructive effect on Catalonia: In his totalitarian approach to homogenizing Spain, Franco suppressed all aspects of Catalan culture and banned the speaking of Catalan in public spaces, instead exhorting citizens to “speak the language of the empire” (i.e., Castilian Spanish).

The ARHM also claims that the new memory law is inadequate, not only for not retracting the amnesty law but also for failing to mandate the investigation of Spain’s Catholic Church, which backed the 1936 military coup and was integral to the ensuing dictatorship. These are calls for retributive rather than restorative justice, or perhaps for a combination of the two, as briefly seen in 1980s Argentina before the aptly named “full-stop law”—like Spain’s amnesty law—attempted to seal off a toxic past for good.

President Pedro Sánchez and other Spanish leaders applaud after approving the “Democratic Memory” law in Madrid on July 13. Alberto Ortega/Europa Press via Getty Images

Argentina didn’t stop with restorative measures. The 1985 trial of the juntas, the first major trial for war crimes since the Nuremberg trials of 1945, resulted in the imprisonment of five leading military figures, two of whom received life sentences. Many in Spain, especially those on the left, reacted with anger when the full-stop law was passed a year later, seeing it as a guarantee of immunity for those who had already escaped trial.

But it wasn’t just the Spanish left that voiced outrage. The center-right daily El Mundo, clearly not seeing the connection between Argentina’s full-stop law and Spain’s amnesty law, ran an editorial under the heading, “The laws of impunity continue to benefit the repressors.” Just four years earlier, though, in 1982, one of Franco’s most notorious thugs, Antonio González Pacheco—or “Billy the Kid”—retired from a celebrated career as a police officer. Pacheco was charged but never prosecuted for his crimes, although his many medals—awarded both during and after the dictatorship—were taken back by the Sánchez government in 2018, two years before he died.

Chile also established a truth commission, known as the Rettig Report, to investigate disappearances and human rights abuses during the 1973-90 dictatorship of Augusto Pinochet. The Rettig Report paved the way for Pinochet’s eventual arrest in London in 1998, for which the efforts of a tireless Spanish judge, Baltasar Garzón, were also crucial.

Garzón’s career, in fact, highlights just how divisive historical memory has become in Spain. For investigating disappearances during the Franco regime, Garzón (who also successfully indicted some of the dirty war’s most prominent generals for genocide) was charged by two right-wing organizations with violating the amnesty law.

He was cleared by Spain’s Supreme Court in early 2012 but disbarred for 11 years after being found guilty of wiretapping, prompting his supporters to wonder if that was just another way of stopping his probes into Francoism. Garzón maintains that human rights violations should not be subject to amnesty and has brought his most serious charges under international criminal law, which states that there is no statute of limitations for crimes against humanity.

Arguments about accountability and the dangers of closing, for good, dark chapters of a country’s history have also been central to the TRC’s legacy. Sisonke Msimang, a South African writer and FP contributor, has given powerful voice to the disappointment felt by many South Africans of the post-1994 generation: “Too few (mainly white) perpetrators told the truth, and too many (mainly black) victims were encouraged to forgive them anyway,” she wrote in the New York Times in 2015.

Others in South Africa, such as William Gumede, who worked on the TRC’s final report, point to the commission’s “limited remit” and suggest that part of the blame lies with successive African National Congress governments in not implementing its recommendations. What these two camps agree on, though, is that almost 30 years later, the TRC hasn’t had the healing effect on South Africa that Mandela and Tutu hoped for.

Protesters hold portraits of victims of crimes committed by police throughout Franco’s dictatorship as charges for crimes against humanity are heard in Argentina in front of the former National Security headquarters at the Puerta del Sol in Madrid on Sept. 26, 2013. GERARD JULIEN/AFP via Getty Images

Perhaps the most fundamental criticism of Spain’s historical memory laws has been made by the Spanish writer Javier Cercas. In line with Maurice Halbwachs (1877-1945), the French philosopher and sociologist who developed the notion of a group-dependent collective memory, Cercas has argued that the term “historical memory” is an oxymoron: “Memory is individual, partial and subjective, [whereas] history is collective and aspires to be comprehensive and objective.” This view appears to leave no room for government-mandated attempts at reconciliation, asserting instead that memory is the exclusive domain of the individual (and perhaps also of families), and history is the job of historians.

Retroactively outlawing the Franco regime seems like an attempt to eradicate almost four decades of troubled, complex history with a grand symbolic gesture.

But in Spain, part of what historical memory means is the excavation of graves containing the remains of tens of thousands of unidentified victims of Francoism, and that cannot be achieved without state funding.

Cercas thinks that Spain lacks what every established democracy must have—a “basic accord about the past” (as Buck writes in After the Fall)—but he was highly critical of the 2007 memory law. “I do not find it remotely acceptable to have the government legislating about history, let alone about memory,” he wrote in an El País article entitled “The Tyranny of Memory.” “[A] law of this kind is embarrassingly evocative of the methods of totalitarian states, which know that the best way to control the present is to control the past.”

Retroactively outlawing the Franco regime seems like an attempt to eradicate almost four decades of troubled, complex history with a grand symbolic gesture. The same can be said of the law’s ban on the Francisco Franco Foundation, no matter how abhorrent and skewed its narrative of the civil war and dictatorship is.

Outlawing political bodies and making quasi-legal judgments is a failure to truly grapple with the past in the way that South Africa, Chile, and Argentina have—or at have least tried to. Spain appears instead to be glossing over complexities and stifling difficult conversations about accountability, the effects of amnesty, and whether collective historical memory is desirable or even possible.

Perhaps, in the quest for reconciliation, none of those things can be avoided forever.