A military parade cannot constitute a response to the issue of the civil war victims.
There have been few occasions in the field of human rights when such a clear need has arisen to fully comprehend a dispute which constitutes per se a violation of international human rights law and civil liberties. We refer to the dispute brought about by the Minister for Defence, José Bono, and various members of the Spanish Government in the days leading up to and following the military parade on Colombus Day or the "National Holiday".
The Minister for Defence, José Bono, and the Spanish Government find themselves in a contemptible position which affects the legitimacy of public power and even more the rule of law; and they are in this position because of their own decision and in the absence of any previously existing situation reflected in the press or other media
Simply stated, the media is not publishing the real debate which has become part of Spanish society and which is well-known to the Government, given that victims and human rights' organizations have held both public and official meetings in Parliament; although it goes without saying that these have not been picked up by any of the State media.
This is simply one example of the fact that the media do not disseminate reality, they manufacture a reality which in this instance, puts Minister Bono and the Government in an absurd situation.
The Minister José Bono represents the Government's decision to confront the position of almost all the victims' organizations of the civil war, thus disregarding international international human rights law and international legality.
Thus, the military parade has been used to manipulate public emotions all because:"It suits his purpose (the Government) to exhibit the consequences without their causes. It is one of the arts of the drama to do so. If the crimes of men were exhibited with their sufferings, stage effect would sometimes be lost, and the audience would be inclined to approve where it was intended they should commiserate." [Quotation from Thomas Paine´s essay "The Rights of Man" on behalf of the National Assembly of France in response to Edmund Burke in 1791]
We consider that the situation is contemptible for the following reasons:
1) Minister Bono is being less than truthful when he states that the victims were represented in the military ceremonies on 12th October 2004.
Not one of the victims' associations of the Spanish Civil War or of the Second World War were represented at the ceremonies; and this despite the fact that there exist many such organizations both in and outside of Spain.
2) Minister José Bono and the Government have moved the debate on reconciliation and recuperation of the memory of the victims to a military arena, whether it be with respect to the victims of the civil war, the Spaniards who have died in exile or fighting in the Second World War, those who were killed in the National Socialist extermination camps or those who suffered the long period of Francoist extermination and its social consequences. By doing this, they have committed an entirely immoral and incomparably unethical act, and one which demonstrates complete contempt for the victims and have attempted to intimidate the reviving discourse on civil liberties which results from the recognition of victims in every free nation.
3) The Government has eliminated from the debate "the legal rehabilitation of the victims", a fact which becomes clear if we compare the text of the official communiqué of the Council of Ministers dated 10th September 2004 with that of the decree creating the "Inter-Ministerial Commission to Study the Situation Concerning the Victims of the Civil War and Francoism", published in the Official Gazette (BOE) on 20th September 2004.
It is manifestly clear that the difference is a qualitative one. It demonstrates that in the heart of Government those who were opposed to a legal analysis were the victors and they managed to ensure that a quite different debate would take place.
Today we are in no doubt as to what will be the subject of the debate nor as to who will lead it. It is evident from the many hours of television and of other forms of media communication. Their names are already known to all Spanish citizens, and particularly to the victims' associations and human rights organizations, both national and foreign.
4) The despicable attitude of the Minister for Defence, José Bono, was made completely transparent during the statements he made for the TVE programme "TV Breakfast" ( "Los desayunos de TVE"), which were published in all the national press in their editions of 14th October 2004.
The Minister for Defence stated, in his own defence, that the symbolic presence of the Blue Division ("la División Azul) in the parade is the result of the fact that the Constitution "guarantees the equality of all Spaniards".
5) The Minister, as in the case of any civil servant, cannot rely on his own ignorance as mitigation for his actions, and even less so when these actions reflect a policy which violates civil liberties and human rights.
The Minister is aware, or should be aware, that the equality of all Spaniards is an equality before the law; and that is precisely the problem.
What the Minister fails to mention in his discussion is that it is his obligation, as a member of the Government representing the Spanish people, to respect international law.
That is what did not happen when the Blue Division took part in the parade.
And this is also provided in articles 10.2 and 96.1 of the Spanish Constitution. ("Provisions relating to the fundamental rights and liberties recognized by the Constitution shall be construed in conformity with the Universal Declaration of Human Rights and international treaties and agreements thereon ratified by Spain.", and " Validly concluded international treaties, once officially published in Spain, shall be part of the internal legal system. Their provisions may only be repealed, amended or suspended in the manner provided for in the treaties themselves or in accordance with the general rules of international law).
6) But what is even more serious is that this question is not within the competence of the Minister for Defence in any country which respects the rule of law, and certainly not of any General in command of the General Staff.
A Government should only guarantee the enjoyment of rights and the defence of civil liberties. This has not occurred in this case at least to the extent that the resolutions of the General Assembly of the United Nations have not been respected, which resolutions have been binding on the State and the Government since 1946. Nor have the judgements of the Nuremberg Tribunal been heeded.
What is audible is the silence of approval coming from the Attorney General, the Minister of Justice and the President of the Government.
7) The approach to victims' issues is not a product of State commiseration but of international norms and of international human rights law and of course such approach is impossible within a military framework. It must take place via the application of the right to justice and the necessary ethical debate to ensure that the state guarantees that crimes against humanity will not be repeated. Nothing can be more repugnant than to transfer the discussion about victims´ rights into the centre of a military ceremony such as that of the "National Holiday of Spain".
8) The Government knows, or should know, that since the Constitution was passed all the juridical acts of Francoism have been illegal for three reasons a) because that is the consequence of the international law created by the conventions and norms approved by the United Nations; b) because that is the consequence of the Judgements of the International Tribunal of Nuremberg, to which the State of Spain is subrogated, as are all the group of States wich belong to the United Nations system, and c) because the Repeal Provision of the 1978 Spanish Constitution in point 3, provides "Likewise, any provisions contrary to those contained in the Constitution are hereby repealed"
9) Given the foregoing, the symbolic presence of the Blue Division is not a matter to be settled within a militarist debate which we had believed forgotten and which naturally intimidates and frightens those citizens who still remember what has happened in Spain in the last 65 years
The symbolic recognition of the Blue Division is that of a military unit which formed part of those forces judged to have committed crimes against peace by the Nuremberg Tribunal and by various unanimous resolutions of the General Assembly of the United Nations.
The Government also knows, or should know, that crimes against peace are treated as more serious in nature than crimes of genocide and therefore they are not subject to any statute of limitations nor to amnesty under any legal system.
The Minister for Defence and the Government have the duty, as agents of the State, to ensure performance of legal norms, whether international or domestic, and to protect victims of criminal acts
This is precisely what has not happened in this instance.
10) The Government has reliable information, in legal terminology, with respect to the claims of the victims' associations. All they demand is that the State ceases to act in clear breach of its obligations pursuant to the right to justice and that it takes the necessary legal and judicial measures to ensure that it is true to say that all Spaniards are equal before the law.
A Government cannot eliminate its responsibility for the violation of constitutional principles or principles of human rights which are a product of international conventions which have been ignored or omitted.
The Government knows, or should know, that omission is also criminal when there exists a governmental or judicial responsibility.
11) The situation that has been created also has ethical, moral and political implications which should constitute grounds to require that those responsible, politically or legally, be held to account. Therefore we request that Parliament, the centre of popular will, takes the measures pursuant to the rule of law to hold these persons accountable.
Madrid, 14th October 2004
DDHH en España
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