The transition is under control because the Amnesty Law is also under control

In 1949, shortly after the end of World War II, Carl Schmitt wrote an article in which he analyzed the historicity of the legal concept amnesty. “Amnesty in the true and true sense of the word means nothing more than an end to the civil war,” it said, among other things. The fact that he wrote it at that time, and that he wrote it, although he was associated with the Nazi Party, gives the text an unusual packaging. “Amnesty is a mutual act of oblivion. This is not a pardon or a handout. Whoever accepts an amnesty must give it, and who gives an amnesty must know that he receives it. “In the Spanish context, the article is extremely interesting. And even more so, if we remember that was published in the newspaper Country January 20, 1977just when the debate about the law, which will be adopted in a few months, was in full swing.

Schmitt’s text served the newspaper to position itself in favor of the law, because everything he says is not wasted. “It is not easy to end a civil war. (…). Part of a civil war is that each side treats the other as a criminal, murderer and saboteur. In a civil war, the victor, in turn, sits on his right as prey. He takes revenge in the name of law. How can you break the vicious circle of this deadly creature? How can the civil war end? The answer, as Schmitt recalled referring to history, “is our capacity for amnesty. Rather, in our power for a real amnesty. If we understand by amnesty nothing but a meager almsgiving that allows the disenfranchised to stroll around the prison yard, then it is better not to speak further, so as not to falsify the great concept. Ending a civil war is not easy. After falsifying so many words, ideas and institutions, we must at least be careful not to poison the keyword of peace. Amnesty is a mutual act of forgetfulness. This is not a pardon or a handout. The one who accepts the amnesty must also give it, and the one who gives the amnesty must know that he also receives it.. If we lack the strength and grace to forget each other, then we must preserve at least the memory of the remnant of the sacred right, so that the last resort, the ability to forget each other, is not completely lost. Who will give us strength and who will teach us the art of good forgetting?

Amnesty, Schmitt reminds us, is not a full stop law precisely because it is not partial. “Amnesty means oblivion and prohibition to delve into the past to find motives for other acts of revenge there and demands for compensation after the punishment of those responsible,” he wrote. He knew that when resentment and pride pervaded human relationships, reconciliation eventually became impossible, because it was always easy to keep justifying hatred by blaming the other, elusive for having struck the first blow. Thus, the only possible way out of this crossroads is through the decision to forget. Or, saying “remember”, remember only your own responsibility. a powerful gesture of humility aimed at celebrating peace. exemplary behavior.

The battle of history

When Bildu’s deputy Merche Aizpurua publicly celebrates that the Democratic Memory Act bill, which the current government intends to approve this Thursday with the support of its party, “jeopardizes the history of the exemplary Transition.” it’s time to stop forgetting. Or, more precisely, that it’s time to remember only other people’s faults. The problem is that when the season is open, nobody stops others from doing the same. A few years ago it was very disturbing to hear that They will remove the statues of Largo Caballero and Indalecio Prieto from the Paseo de la Castellana in Madrid.. The reaction of the PSOE, led by Pedro Sanchez and the rest of the left in the country, was eloquent to the extent that it could not hide sincere bewilderment. This is an indication that warns us that there are quite a few members of the public who actually believe in the false history of the past, according to which the Spanish 20th century would be divided by the Manichaean ideological border that separated purely, but from left to right, victims and executioners. This became clear, for example, in Pep Hernandez’s disagreement with the presentation of the Madrid medal to the writer Andres Trapiello, for calling him a “revisionist”. And it was ratified by the most extreme position of the radical left parties and nationalists, who demand precisely repeal of the Amnesty Law.

It can be said that the sectarian vision of history finally spoiled the legal term that Schmitt had warned as sacred. Now some perceive it only as an overdue alms. which expensive mortgage that the sons of the Republican Left, together with the “historical nations oppressed by the Spanish state”, had to pay to restore a certain freedom. But if Carl Schmitt explained anything, it is that Through anger and lies, amnesty cannot be understood. If the transition was exemplary, it is because this law was also exemplary. And only because of a biased and erroneous view of our common past, it could cease to be. The desire to “take control” of the historical event that led to democracy is to succumb to the insidious temptation of revenge, which is never just. It is a self-imposed return to the vicious circle of “dead rightness”. And in this abyss, everyone has arguments for hatred.

The democratic law of memory, or how to put the transition period under control

A clear example that Aizpurua was right and that Transition is under control—because the discourse that challenges it is ingrained in all self-proclaimed progressive parties—has little to do with The Commission, which will now deal with cases of human rights violations until the age of 83. More worrying is the way in which the new legislation was intended to influence how all laws are interpreted of the Spanish State, including the Amnesty Law, since the approval of the new Law of Democratic Memory.

Article 2.3in particular, provides that “all laws of the Spanish State, including Law 46/1977 of 15 October on amnesty, must be interpreted and applied in accordance with conventional and customary international law and, in particular, with international humanitarian law, according to which the military crimes, crimes against humanity, genocide and torture are considered inevitable and not subject to amnesty.”

If we compare presentation report In the commission-approved text that goes to Congress this Thursday, several preambular paragraphs appear to have disappeared. The first draft of the text, before passing the appropriate filters, stated that Article 2.3 contained a mandate for all public authorities to apply all norms, including the Amnesty Law and the Criminal Code itself, in accordance with this international human law, according to which crimes against humanity have no statute of limitations. However, once the conclusion is approved, the reference to Article 2.3 is only understood for the purposes of the Democratic Memory Law and not for criminal purposes.

The interpretation of this article led to possible partial challenge to the Amnesty Lawso presumably it would be declared unconstitutional. But what is interesting is the main idea of ​​its drafters: the fact that, according to a well-known international legal custom, in some specific cases – not in all – crimes against humanity are not subject to amnesty, and therefore the pact I forgot that the Spaniards gave themselves, to be able to restart, it needs to be reviewed. This kind of interested reliance on international law points to an idea already hinted at, which becomes more obvious when one considers that something like this would also open up the possibility of revisiting the Paracuellos massacre or terrorist attacks before 77. those who now approve the law did not consider it. Some want to remember because they only forgot their own crimes.


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