The question of the treatment of the Children of the War as victims and their legal status.

Preliminary issue.

The absence of any legal recognition of the victims of Francoism following the approval of the 1978 Constitution constituted a continuation of the laws of reprisal and the economic and moral sanctions against the victims of the 1936 Coup d'Etat and the Second World War.

This legal state of affairs raises a serious moral, ethical and legal question with respect to the responsibility of members of parliament and of the various political parties pursuant to international law given that they have allowed the continuation of sanctions of a criminal nature that were put into practice by the Franco regime.

The rejection of any responsibility by the State for the legal recognition of Francoist victims is equivalent to the denial of justice and the maintaining of laws of reprisal; and this, in turn, has directly affected the lives of the victims. It might even be said that in many cases the Spanish state is responsible for the death of these victims.

Measures which should be taken.

1)The Children of the War, whether they be the children which the Republican Government sent out of Spain or those who were exiled together with their parents, and/or born in exile, must be given full recognition by the Spanish state as victims of the civil war and of the Second World War.

2) This recognition must result in their treatment as refugees or exiled.

3) For this purpose the following international instruments must be applied as a legal framework:

a) Convention relating to the Status of Refugees Adopted on 28 July 1951 by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons convened under General Assembly resolution 429 (V) of 14 December 1950

Article 1A) and B) of the said Convention provide as follows:

Article 1. Definition of the term "refugee"

A. For the purposes of the present Convention, the term "refugee,, shall apply to any person who:

(1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization;

Decisions of non-eligibility taken by the International Refugee Organization during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfil the conditions of paragraph 2 of this section;

(2) As a result of events occurring before I January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

In the case of a person who has more than one nationality, the term "the country of his nationality" shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.

B. (1) For the purposes of this Convention, the words "events occurring before I January 1951" in article 1, section A, shall be understood to mean either (a) "events occurring in Europe before I January 1951"; or (b) "events occurring in Europe or elsewhere before I January 1951"; and each Contracting State shall make a declaration at the time of signature, ratification or accession, specifying which of these meanings it applies for the purpose of its obligations under this Convention.

b) Comparative European legislation concerning this category of refugees in European countries should also form part of the legal framework.

4) Once legal recognition of their status as refugees and exiles as been established (and as a result of the same), there must be a calculation of the amount of compensation payable for the damages caused as a consequence of state action; and this should be paid directly to the victims or, in those cases where they have already died, to their heirs, without regard to the nationality which they may have currently or may have had at the time of their death.

5) The State must grant the Children of the War full pensions (based on a contributory scheme), not on a partial or non-contributory basis. (It was precisely the denial of such rights which prevented the integration of these persons into the social system and this must therefore now be a necessary condition for the re-establishment of those rights which were lost.) Furthermore, the State must provide the amount necessary to enable the refugees and exiled to receive the amount properly owed on an actualized basis.

6) All those problems of identity and nationality which arise as a result of being exiled or a refugee must be resolved legally.

7) The State must carry out a census of all the victims who now find themselves in this situation including the heirs of those who have died and in doing so must take into account all the victims associations.

8) These rights must be expressly incorporated into law and not merely arise as a result of budgetary regulations.

9) All the administrative measures and legal costs arising from the foregoing must be paid for by the State in accordance with the guidelines established by the United Nations with respect to the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms (Report by M. Theo van Boyen, Special Rapporteur for the Sub-Commission E/CN4/Sub.2/1993/8).

Madrid, 07 February 2005

For further information, please refer to:The Question of Impunity in Spain and Crimes Under Franco.

Organizations presenting this document:

  • AFARIIREP - (Association of Relatives and Friends of the 2nd. Republic Victims of Reprisals by the Franco Regime), Ana Viéitez Gómez, President
  • Association for the creation of an Archive of the Civil War, the International Brigades, the Children of the War, the Resistance and the Spanish Exile. AGE (Archive of War and Exile) Dolores Cabra, President
  • Association of Salamanca for Memory and Justice, Fermín Sánchez Martín, Secretary
  • Equipo Nizkor, Gregorio D. Dionis, president.
  • Forum for Memory, José Maria Pedreño, President
  • Friends of the Fallen for Liberty (19391945), Historical Memory of the Murcia Region, Floren Dimas Balsalobre, Regional President.
  • Gragero Group, Leon, Mario Osorio, Secretary.
  • Manuel Azaña Association, Isabelo Herrero, President
  • Republican Ateneo of Galicia (ARGA), Juan José Sánchez Arévalo, Vice President.
  • Republican Institute of Human Rights, Félix Rodríguez Sanz, Secretary

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