What We Know We Don’t Know

26/02/2015

The book ‘Agujeros del sistema. Más de 300 asesinatos de ETA sin resolver’ has just been released. It has been written by the journalist and communications director of the Association of Victims of Terrorism (COVITE), Juanfer F. Calderín.

If–as Maite Pagazaurtundúa notes in the preface–the book by Florencio Dominguez, Rogelio Alonso and Marcos Garcia Rey, ‘Vidas rotas’ (Espasa Libros, 2011), marked a turning point in the effort to make all victims of ETA fully visible, this book is largely a continuation of that work, complemented and refined by the notion that the suffering caused by the terrorist group to its victims and those who were responsible for them must be confronted squarely.

After the Foundation for Victims of Terrorism (FVT) lodged before the Public Prosecutor's Office of the Audiencia Nacional (Spanish National High Court) a list of 270 lawsuits on ETA murders requesting their state of proceedings, the Prosecution Office, first in 2011, and the President of this court, in 2013, responded each with a report converging on a conclusion that not only generates uneasiness, but requires responses and precise actions. More than 300 murders by ETA would have been left unsolved, which means that more than 30% of the criminal history of the organisation would be marked by oblivion, doubt or outright impunity. Of the 270 cases under review, 258 were physically located; of these, 163 had been filed, 83 had been ruled, 13 had been reopened and 12 were ‘in unknown proceedings status’.

The documentary work of Calderín is of enormous magnitude, but when measuring the scope and extent of everything that is told in the book, some observations should be added. It would be necessary to define precisely what is meant by an unsolved case because it is essential to specify the core of the problem, that is, impunity, which would have caused unexplainable malfunctions in the operation of the Rule of Law. Certainly, one cannot demand a full elucidation of 100% of the crimes, nor can anyone escape justice. In the same sense, neither should an acquittal be considered, in itself, a breakdown of the Court system. Sometimes, the pending clarification is limited to the actual perpetrator of an attack–who pulled the trigger, who detonated the bomb–which, however, does not modify the criminal liability of the other members of the terrorist group which perpetrated the attack, convicted in the same terms as co-authors. And sometimes, too, the elements discovered by the Security Forces did not have such a conclusive incriminating value as they thought they would have.

In specific periods, the political situation outside legal action in itself, has indeed had its influence. This is the case of the agreements with France to deport members to third countries in the 80s, the profits made by activists of ETA political-military after its dissolution, or the well-known fact that for a long time, fleeing Spain guaranteed terrorists, almost anywhere in the world, that they would not be delivered to the Spanish justice. These were times when the State's capability to combat terrorism was pushed to the limit, and also years of enormous solitude in the fight against this scourge that, fortunately, has little to do with the international solidarity and new legal instruments which have enabled to close in on impunity through an international cooperation until recently unthinkable, especially at a European level.

Against this backdrop, what is undoubtedly serious is the succession of acquittals in cases involving terrorist attacks which, in violation of the jurisdiction of the Audiencia Nacional, were ruled by several trial courts in the Basque Country, especially between 1977 and 1980. There is also no satisfactory response in cases where the actions of the Security Forces, which pointed in one direction for the clarification of previous attacks, were not added to the corresponding lawsuits to keep them alive. Cases, in view of the research offered in this book, that could have remained open and which ended time-barred. It can be argued that, in many cases, the presumed perpetrators of unsolved murders were convicted by other attacks. This is but small consolation and it cannot compensate in any way whatsoever the fact that they managed to elude being tried for all their crimes.

I think the value of this documented account is not to subject justice to a pejorative judgment. Its value is that it emerges as a timely reminder amid the emergency to ‘turn the page’ and to accept a peculiar way of understanding ‘normalization’ in the Basque Country, i.e. simply to accelerate the fossilization of oblivion in the deepest strata of Basque society. A reminder, as described by the author himself in his presentation, before the sleight of truth and the trivializing of the suffering of the victims. These ‘holes’ show very clearly that many pages can still be written and that there is plenty of history to recover, to which substantial political commitments, institutional efforts and social awareness shall have to be devoted, moved not by an instinct of revenge, but an imperative of justice .

It is necessary to remember that the clarification need that the book calls for, reinforces, in one way or another, the requirement that terrorist prisoners must effectively collaborate with justice, as required by law, if they want to access reintegration processes or obtain certain prison benefits. Calderín's book particularly highlights this point regarding the meeting that the President of COVITE, Consuelo Ordóñez, held with Valentín Lasarte, member of the commando which killed her brother Gregorio. Lasarte has accessed the reintegration process called ‘via Nanclares’, he has left the terrorist organization and has asked for forgiveness to the family of Gregorio. But he has remained having a suspicious ‘amnesia’ that has made it impossible to determine who was the perpetrator of the shooting that day in January 1995 at the bar ‘La Cepa’ of San Sebastián, and which has prevented the conviction of the ETA member Carasatorre for the murder of the municipal policeman of the same city, Alfonso Morcillo, in December 1994. In a recent interview, the leader of Sortu–formerly Batasuna, formerly Euskal Herritarrok, formerly Herri Batasuna–Pernando Barrena smugly stated that repentance and what he called ‘accusation’ were red lines for an ETA prisoner. Well, those same lines, but in the opposite direction, should be drawn in the field of democracy and law for terrorists who demand a process of reintegration for it to be credible and consistent. There can be no reintegration without willingness to cooperate.

Clarity should also interest those who claim that the victims should be willing to forgive. As Fernando Altuna said, son of a captain of the National Police killed in Erenchun (Álava) in 1980, ‘We cannot forgive those who we don't know’.

No doubt the decision, implemented in 2010, that terrorist crimes should not be subject to a statute of limitation–confirmed in the draft Penal Code which is pending in Congress–is a first response long overdue and a necessary message. But we must go further.

A demanding job and not easy at all to do is to recover missing links in the long criminal chain. This should be an area of cooperation and honesty rather than of confrontation and reproach, despite the profound disappointment in the victims' testimonies who rightfully want to know.

The fight against ETA’s terrorism, which now seeks to survive in ETA’s political project, has been the committed fight of the Rule of Law which cannot be explained without the work of the courts and the Security Forces. And this fact is not undermined by any retrospective look, however justifiably critical it may be.

Moreover, against any doubt, any failure of Rule of Law, any personal impunity, what we do know is that these crimes were perpetrated by the terrorist group ETA, that this organization survives and refuses to disappear, that it exists within those that still legitimize it, in terrorist prisoners who do not cooperate with the law and deny that the terror they caused may be qualified as evil. To those, neither society, nor democracy, nor the Rule of Law owes them anything at all.