The attempts by the Spanish government to develop the process which could lead to ETA renouncing violence are running into a number of obstacles. I have already written previously about the decision by the right wing Partido Popular (PP) to oppose any negotiated solution (Peace Is Not Breaking Out). That position is still being maintained and there is little sign of any change of direction on this issue by the PP. But there are also other actors participating in the process, the judiciary in Spain has been very active in the last few years in acting against organisations that were built up around the base of support that ETA had in the Basque Country. This obviously includes the now illegal Batasuna, ETA’s political wing – but has also covered newspapers and other organisations which supported the cause. This judicial activism has brought about a significant redefinition of what constitutes terrorist activity, with previously legal activities now being banned; and some recent decisions are now starting to provoke protest because they almost seem designed to complicate progress on bringing about an end to ETA.
Apart from the case of Batasuna, which was made illegal as a result of a new law purportedly governing political parties (but introduced with the sole aim of illegalising Batasuna), none of this change of emphasis has come about as a result of changes in the law. Rather, it has been a result entirely of changes in the way in which judges choose to interpret existing law. The pioneer in this has probably been the best known judge in Spain, Baltasar Garzon, whose name is even recognised overseas as he was the judge who requested the arrest of Augusto Pinochet. Recently, while Garzon has been on leave of absence, his substitute Fernando Grande-Marlaska has taken over as the leading judge on terrorism cases.
The whole structure around ETA has been placed under considerable pressure, and as a result the distinction between those who actually commit acts of terrorism, and those who before operated legally in the broader political movement has now been effectively removed. These judicial actions have considerable public support, and until recently there were very few people prepared to question whether the unelected judges were entitled to define as terrorist activity something that didn’t actually require the committal of any terrorist act for someone to be taken to trial. Organisations have been banned yet their members or supporters are not actually charged with any offence at all in most cases. The trigger for applying the law to illegalise Batasuna was their failure to condemn an ETA action, not a pronouncement in support of it; making refusal to declare an opinion the justification for banning the party – a dubious and dangerous precedent given that liberty of expression surely includes the right NOT to express an opinion too.
At times it doesn’t seem to matter very much what the charges are, Arnaldo Otegi - one of the principal leaders of Batasuna - was at one point charged with “insulting the King” – an absurdly anachronistic charge for the 21st century. You don’t have to be in favour of ETA, or even sympathetic to Basque nationalism, to find this way of doing things disturbing. Since the declaration of the ceasefire by ETA, and the beginnings of a possible negotiation, there are signs that judge Marlaska has decided he wants to be a significant player in determining how events progress. It is clear that Batasuna is an important part of the peace process, yet the judge has stepped up attempts to restrict possible appearances by its leadership even where such activities might form part of the emerging process. As a result he has made himself extremely popular with the PP and their friendly media allies with his apparent determination to be the one who decides who can do anything in the situation. Recent actions include:
- Calling in Batasuna leaders on a possible charge of “terrorist threats” because they had suggested that imprisoning their leaders might affect the peace process. A suggestion that doesn’t seem to be so outlandish.
- A raid coordinated with France last week on what is said to be the ETA group that organise extortion letters that are sent to companies in the Basque Country and Navarra. Those arrested in the raid included one of the founding members of ETA, who has now broken with the organisation and joined a new grouping that supports the radical nationalist agenda but rejects terrorism as a means of achieving it.
- Subsequently ordering the detention of two businessmen from Navarra who had paid as a result of receiving a demand from ETA.
- Ordering the appearance of a senior member of the PNV, the conservative Basque nationalist party, because of contacts he may have had in the past with some of those detained last week.
- Prohibiting Arnaldo Otegi from attending a conference in Barcelona in a personal capacity.
Through his recent actions the judge has entered clearly into the political arena, his supporters argue that he is doing nothing more than applying the law - but given the enormous discretion he has on how to apply the law it seems clear that there is more to it than this. Baltasar Garzon returns to his post in a few days time – quite a few observers seem to think that this will lead to a reduction of the pressure being applied from the judiciary. I have my doubts, Garzon is a judge who undoubtedly enjoys the limelight and I suspect he will be unable to resist the temptation to intervene in a way which places him at the centre of the situation. With Jose Luis Rodriguez Zapatero expected to announce this week that negotiations with ETA are to begin, the next few weeks should reveal whether he is going to have to take on the judges in pushing forward the peace process.
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