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IMPUNITY FOR ENFORCED DISAPPEARANCES IN CONTEMPORARY SPAIN

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Abstract

Thirty-five years after Franco''s death, Spain has yet to live up to its international obligations to provide redress for victims of atrocities committed during the Spanish Civil War and Franco''s dictatorial regime. Although there are no official figures, investigations by victims’ associations estimate 114,266 people disappeared during this time. Recent claims by victims for truth, justice and reparation have opened up a new era of transition in Spain, which includes government initiatives for the redress of victims and the recovery of the collective memory, through the Historical Memory Law of 2007. Yet these initiatives are insufficient in allowing victims to realize the rights they are guaranteed under International Law. Most notably, the only judge who found a basis to investigate the disappearances perpetrated by the victors during the Civil War and the Franco era has been suspended. These developments serve to undermine attempts at reconciliation and victims’ justice, and to highlight the extent to which Spanish political elites and judiciary are still indelibly connected with the past. In the unlikelihood that trials will one day be settled, victims have resorted to Argentinean courts by applying the principle of universal jurisdiction. In addition, proponents supporting a truth commission, which includes UN bodies and scholars, have increased in recent times. The fact that these abuses were committed long ago imposes legal challenges to prosecute alleged perpetrators. The Spanish case demonstrates that societies never forget past traumas, although they were silenced by previous generations in exchange of peace. In this sense, international human rights law has a decisive role to play in ensuring victims’ rights. In particular, international human rights law treats the crime of enforced disappearances as a “continuing violation” which means it continues to be committed until it has been resolved. Following this rationale, the above-mentioned disappearances remain an ongoing violation in contemporary Spain. In particular, the International Convention on Enforced Disappearances, which entered into forced on December 2010, imposes the obligation on Spain to investigate these crimes regardless of their time of commission.