Francoist repression in Spain and the crime of genocide

Introduction

Criminology did not pay due attention to the problem of genocide for a considerable period of time, attaching greater importance to explanations for common crime (Brannigan, 2013: 3; Hagan and Rymond-Richmond, 2008: 57; Rafter, 2016: 4; Rymond-Richmond, 2014). After several decades of oversight and of potential difficulties regarding the inclusion of ‘genocide studies’ in the subject of criminology (Morrison, 2003; Savelsberg, 2010), increasing emphasis is now being placed on the need to conduct criminological research in areas related to genocidal practices and crimes against humanity (Hagan and Rymond-Richmond, 2009; Haveman and Smeulers, 2008; McGarry and Walklate, 2016; Maier- Katkin et al., 2009; Parmentier, 2013). In this regard, despite the considerable interest shown by criminological research, particularly based on critical perspective, in explaining cases of genocide in the 20th century, not all crimes with signs of genocide have received sufficient coverage. One of these notable omissions is the mass extermination of supporters of leftist ideology carried out by the Francoist government during and after the Spanish Civil War of 1936–1939.

For decades, issues related to the Francoist repression in Spain have been almost exclusively the subject of research by historians, political scientists and specialists in criminal law. Criminological research in this field of study is scarce and has been conducted almost exclusively on the issue of how the Spanish state has treated the victims of Franco’s repression (De la Cuesta and Odriozola, 2018; Tamarit, 2011, 2012, 2014). Hence, the question regarding the nature of the mass murders carried out by the punitive institutions of the Franco dictatorship, as well as the question of whether this repression can be considered an act of genocide has not been the subject of criminological analysis.

It is widely known that during the consolidation of the Francoist dictatorship during the Spanish Civil War of 1936–1939 and the immediate years following its conclusion, there were mass killings, imprisonment and other forms of persecution of citizens based on their adherence to leftist ideology. From the outset, one of the goals of the Francoist regime was the physical elimination of a social group identified as ‘enemies of Spain’, which included liberal and left-wing individuals (Babiano et al., 2018: 89; Casanova, 1999: 59; Miguez Macho, 2013). Thus, it could be assumed that the purpose of carrying out the mass repression of political opponents was to eliminate any kind of ideological opposition rather than to destroy, in whole or in part, any national, ethnic, racial or religious group as such. In this sense, it seems logical to reason that due to the fact that the repression was directed against political groups and due to the absence of a racial or national component, the mass killings committed by the Francoist regime cannot be treated as genocide as prescribed in Article II of the Convention on the Prevention and Punishment of the Crime of Genocide (United Nations (UN), 1948), ¹ but should be considered typical excesses occurring in any civil war based on a personal vendetta (Ruiz, 2005, 2011) and therefore unconnected with any genocidal practices. Nevertheless, it is the opinion of this author that, when considering the Francoist repression, it is possible to identify a number of indications that directly point to an interpretation of the mass executions carried out by the Francoist authorities in terms of the crime of genocide. This is so because the victims of these murders were viewed not only as individuals who were members of an antagonistic political movement but also as individuals belonging to a different race, to the race of non-authentic Spaniards. ²

In this regard, the main purpose of this article is to show that, despite the fact that the victims of Francoist violence were political groups mainly composed of Spaniards, which presumably indicates the absence of the actus reus of the crime of genocide in accordance with the aforementioned UN Convention on the Prevention and Punishment of the Crime of Genocide, the racial element did in fact play a rather significant role in the use of repressive practices, and, therefore, the mass killings in Spain can indeed be treated as genocide. ³

To achieve this goal, first, the nature and scale of Francoist repression in Spain are described. Second, attention is paid to the problem of including political groups as possible victims within the groups whose interests are protected by the 1948 Convention. For this purpose, the criticism that has been expressed by the academic community regarding the exclusion of political groups from the list of victims of genocide is presented and the main arguments in favour of interpreting this crime in the most inclusive terms are noted. Third, it is emphasized that despite the exclusion of political groups, the 1948 Convention can be directly applied to the Spanish case since leftists who were victims of mass extermination were not only persecuted on the basis of their ideology, but also on the basis of belonging to a different race. In this sense, fourth, the influence of positivist studies on the configuration of Franco’s criminal policy is emphasized and it is noted that the aggressors’ perception that the victims belonged to a different race also determined the implementation of a policy of extermination. Finally, the conclusion specifies a number of indications that allow the Francoist repression to be considered genocide in accordance with the provisions of international law.

The repressive state

There is still no consensus in academic circles regarding the classification of the nature of the political regime established by Generalissimo Franco in Spain after the Civil War of 1936–1939. Some scholars expressly view the Francoist regime as a dictatorship with a fascist ideology (Gómez Bravo, 2014; González-Ruibal, 2013; Portilla, 2009: 10). Other researchers also point to the fascist features of the established political regime, but note that over time, the regime reduced its radical rhetoric and used political flexibility to ensure its survival after the defeat of the ‘axis powers’, with which it was in close relations throughout the civil war (Babiano et al., 2018: 18; Hernández De Miguel, 2015: 188).

In this regard, it should be noted that immediately after the creation of the UN, the international community characterized the Francoist regime as a fascist dictatorship (UN, 1946). However, in the future, with the beginning of the Cold War, Western powers began to perceive the Franco government as opposed to the Soviet Bloc, which led to a softening of the criticism towards the Spanish government and to the legitimization of the authoritarian regime (Anderson, 2010: 4; Babiano et al., 2018: 27; Jimeno, 2018: 24). On the contrary, the Francoist regime itself had to adapt to the new reality and accept a certain political configuration after the end of the Second World War. In view of the widespread negative perceptions of the fascist movement in the post-war world, Franco tried to dissociate himself from any connection with the ideology responsible for the Holocaust and other crimes against humanity (Preston, 2019: 403–404). Thus, the Francoist regime, although retaining its authoritarian character, publicly began to distance itself from fascism, softened its rhetoric and accepted the ideology it defined as National Catholicism (Babiano et al., 2018: 40). This ideology is a mixture of various ideas, notably, patriotism based on the existence of the Spanish race, national unity, uncompromising defence of Catholicism and opposition to liberalism and to any leftist ideology (Díaz-Salazar, 2006; Muñoz Mendoza, 2012: 35–37).

Regardless of the categorization that can be applied to the dictatorship that was established in Spain, it cannot be denied that the Francoist regime implemented a policy of mass repression of political dissidence resulting in large numbers of ideological dissenters being imprisoned or physically eliminated (Babiano et al., 2018: 38). Despite the fact that violence was used throughout the entire period of the regime’s existence, it should be noted that it reached its peak during the Civil War of 1936–1939 and in the decade that followed, when Franco’s personal dictatorship was consolidating its power (Portilla, 2009; Preston, 2019: 363–364). As a result of the implementation of this repressive policy during this period, more than 100,000 civilians were executed (Ferrándiz, 2017; Hilbink, 2017) and a significant part of these were buried in approximately 2000 mass graves. This puts Spain in second place in the world (after Cambodia) for countries with the most unidentified mass graves (Babiano et al., 2018: 97).

During the civil war and immediately after its conclusion, the persecution of political dissidence was mainly carried out through the physical elimination of unwanted actors, as well as through the use of a wide network of prisons, and concentration and labour camps (Gómez Bravo, 2014; Gómez Bravo and Marco, 2011: 83; Jimeno, 2018: 14; Moreno, 1999: 288–289). In this context, the use of extrajudicial executions took on enormous importance for the repressive institutions (Fernández Prieto and Miguez Macho, 2014; Ferrándiz, 2017), which began to use them widely during the military conflict (Casanova, 1999; Gómez Bravo and Marco, 2011: 63; Tébar Rubio and Manzanares, 2017: 30–33), as well as after its conclusion (Babiano et al., 2018: 154; Moreno, 1999: 334–336). Over time, extrajudicial executions diminished, and justice was administered by military tribunals, both for combatants and for civilians. These trials, which proceeded quickly and without adherence to basic procedural principles and legal guarantees for the accused, became the main tool in the physical elimination of political opponents (Gómez Bravo and Marco, 2011: 79–81). In this sense, it is not surprising that the wide-ranging implementation of a mass extermination policy by the Francoist authorities has allowed some researchers to begin to inquire about the possibility of interpreting it not only in terms of a military conflict, but also in terms of the crime of genocide (Miguez Macho, 2013; Moreno Gómez, 2008).

Political groups as victims of genocide

The crime of genocide is consolidated at the international level in the Convention on the Prevention and Punishment of the Crime of Genocide (UN, 1948). According to Article II of this convention, genocide mainly means the implementation of mass killings with the aim of total or partial annihilation of any national, ethnic, racial or religious group. Thus, the Convention contains a specific list of groups that may be the object of genocidal policies, which has generated debate and concern for some members of the scientific community (Fournet, 2007: 51–55; Miguez Macho, 2017: 22–23; Nersessian, 2010; Schabas, 2009). Criminologists have criticized the concept of genocide for its exclusionary nature, as it focuses only on protecting the rights of national, ethnic, racial or religious groups, while other collectives, including political groups, ⁴ remain outside of the scope of the Convention (Brannigan, 2013: 51; Feierstein, 2014: 16, 2015; Rafter, 2016: 53).

Nevertheless, it should be noted that there is no consensus among the scientific community regarding the types of groups that may be victims of genocide (Marco, 2012; Straus, 2001). Discussions continue to develop among scholars about the need to include political groups in the list of protected collectives and regarding the possibility of extending the application of the 1948 Convention to the repression carried out by the Francoist regime (Miguez Macho, 2012). While some scholars insist on the inclusion of political groups in the concept of genocide (Chalk and Jonassohn, 1990; Charny, 1994; Drost, 1959; Kuper, 1981), others are cautious about including them in the list of victims of this crime (Bauer, 1999; Harff and Gurr, 1988). Researchers, as a consequence of their affiliation with a particular field of social sciences, attempt to use various arguments to defend their position regarding the definition of genocide, which may not necessarily be shared by others or be in full accordance with the classification of genocide provided by the Convention (Straus, 2001).

In any case, when considering the concept of ‘genocide’, it is necessary to take into account that the definitions used in the social sciences are social conventions and are not perceived as empirical truths and, therefore, the phenomena cannot be inherently genocide or not genocide (Moshman, 2001). The laws regulating genocide are social constructs (Woolford, 2006) and, therefore, when definitions are used in the research process, no hidden ontological truth is revealed that proves that the event that occurred is genocide; rather, a decision is made about which events may or may not be regarded as genocide (Marco, 2012). Consequently, with regard to typifying a criminal act as genocide, some criminologists emphasize that genocide is not strictly limited to the definition used in international law. In this sense, it is possible to use the concepts in a broader and more inclusive meaning and thereby understand this ‘crime of crimes’ at least in terms of the implementation of a plan of mass annihilation with the aim of complete or partial extermination of any social group, consisting of both non-combatants and defenceless combatants, regardless of racial or ethnic connotations (Brannigan, 2013: 22; Feierstein, 2014: 36).

In criminological studies of genocide, it has already been noted that the categories of race and ethnicity can represent mere social constructions (Hagan and Rymond-Richmond, 2008, 2009), and therefore it is not always easy to employ these concepts when identifying a policy of genocide. The victim and the aggressor may have the same cultural background and belong to the same linguistic and religious group, but at the same time, they can be mutually perceived by each other as subjects belonging to different, antagonistic collectives (Miguez Macho, 2017: 23). Therefore, ethnic and racial identity is not an ontological reality but a social construction. ⁵ The victims and aggressors may represent different national, racial or ethnic groups, but there are also cases of so-called ‘self-genocide’ or ‘auto-genocide’, in which the perpetrator and the victim belong to the same ethnic group but have different political positions (Brannigan, 2013: 22; Feierstein, 2014: 36).

For its part, international jurisprudence also notes the subjective nature of the concepts of ethnicity and race and emphasizes that when defining an act of genocide, it is necessary to take into account not so much whether the aggressors and victims differ in ethnic or racial characteristics, but how much the aggressors perceived the victims as a separate group that must be destroyed (International Criminal Tribunal for Rwanda (ICTR), 1999: 27). Therefore, the most important factor in delimiting the main features of groups in the crime of genocide is not the need to confirm the presence of racial, ethnic, national and religion diversity between aggressors and victims, but the need to determine the presence of antagonisms at the group level, which were used as a justification for the policy of extermination. Thus, the perception of the perpetrators could be essential for the possible classification of an act as genocide (ICTR, 2001: 29–30; International Criminal Tribunal for the former Yugoslavia (ICTY), 1999: 22, 2004: 244; Van den Herik, 2007). The people responsible for genocide carry out acts of mass annihilation, as a rule, on the basis of a preliminary and subjective definition of groups that involves developing certain criteria for membership with which to be able to identify individuals belonging to these groups as well as potential victims (Fournet, 2007: 52; Nersessian, 2010: 30).

Any manifestation of genocide is based on labelling attitude, since the image of the enemy is constructed and specific qualities are attributed to this enemy that justify its annihilation (Hiebert, 2017: 13; Miguez Macho, 2012, 2013, 2017: 25; Nersessian, 2010: 50; Rafter, 2016: 44). An essential feature of genocide is the widespread practice of stigmatizing and dehumanizing a certain collective, which contributes to its persecution and extermination (Feierstein, 2014: 209; Hagan and Rymond-Richmond, 2008; Winton, 2011). In this process, the victims are not only perceived as inferior and subhuman (Chalk and Jonassohn, 1990: 27–28; Chirot and McCauley, 2006: 84–85; Fournet, 2007; Gómez Bravo and Marco, 2011: 66; Miguez Macho, 2017: 75–76), but also as a group of people who represent a threat to the survival of the whole political system of a state (Hiebert, 2017: 141–143).

Thus, there is reason to consider the crime of genocide in a broader context than in the 1948 Convention and to extend the application of international norms to political groups, taking into account the existence of cases where a state implements a policy of mass annihilation in order to achieve a particular ideological homogeneity of its citizens (Fein, 1993). In this regard, repression in Spain can also be perceived as genocide, since it cannot be denied that the aggressors intended to achieve, at least, the partial annihilation of a certain group because of its political orientation. However, in practical terms, there will always be legal difficulties to defend a position on genocide in relation to political groups. States will constantly be able to refer to the literal interpretation of the provisions of the 1948 Convention, and thus its application will be carried out only in relation to a limited number of groups. Nevertheless, despite this situation, this article argues that the Francoist repression can be subject to direct application of the provisions of the 1948 Convention: citizens with left-wing views who became victims of mass extermination were persecuted not only on ideological grounds, but also due to the fact that for the Francoists, these citizens were members of a different race. Their belonging to a supposedly different race was unequivocally presented as the fundamental reason for carrying out the aggression.

Persons with leftist views as another race

The victims of genocide cannot be considered as such only because they belong to a particular racial or ethnic group, since the lack of any genetic homogeneity among large social groups means these categories do not have a reliable biological basis (Straus, 2001). There are no natural groups with constant racial or ethnic identity, and these categories are the result of social construction (ICTR, 2001: 29). In this regard, in order to understand genocide, it is necessary to pay attention to the meanings that the perpetrators assign to the victims (ICTY, 1999: 22, 2004: 244). This is because annihilation is not carried out in relation to groups with essential internal characteristics, but in relation to groups that, according to the perpetrators, allegedly have certain internal characteristics that transform them into a separate biological entity (ICTY, 2001: 195). Thus, political groups can be the target of genocide, and therefore fall under the protection of the 1948 Convention, if the perpetrators attribute certain biological qualities to these groups and perceive them as a different race or ethnicity.

It must be borne in mind that the repression of left-wing opponents in Spain carried out by Francoist institutions were often based not on the actions of the alleged offenders, but on the pathological characteristics of their personality. Left-wing parties were perceived as a distinct non-human subspecies that developed a perverse and wild personality (López García, 2018). The development and scientific basis of this idea belongs to Vallejo Nágera, who was the most famous psychiatrist under the Francoist dictatorship and who served as Commander of Military Psychiatric Services and Director of the Office of Psychological Research Concentration Camps.

Throughout 1938, Vallejo Nágera carried out various studies with prisoners of war in concentration camps, the results of which were later used to justify the persecution of political opponents (Huertas, 1998). These studies concluded that individuals with a leftist ideology have symptoms of dementia and psychopathy. In addition, it was emphasized that Marxist ideology is very propense to internalization by the mentally disabled and by poorly educated people, as well as individuals suffering from antisocial psychopathy, who, due to a lack of spiritual ideals, often join the ranks of the left-wing forces (Vallejo Nágera, 1938b: 174–175, 1939). People are able to accept leftist ideals because their mental and moral state was initially weakened and was therefore highly predisposed to assimilate pathological values. In this sense, the interiorization of the leftist ideology appears as a consequence, while the mental inferiority of the subjects is seen as the cause for this (Vallejo Nágera, 1937b: 104). Moreover, Vallejo Nágera (1937b: 52) perceived the followers of the Republican movement as psychopathic criminals, while Franco was presented as a person who, through strict social discipline and the use of punishment, could save Spain from the spread of mass psychopathy.

Vallejo Nágera, influenced by Lombrosian positivism, developed his own idea of race (Huertas, 1996) that, unlike the National Socialist doctrine which carried a certain weight at that time (Ambos, 2020), emphasized that it is not so much influenced by genetic factors as by factors of a socio-cultural nature, such as language, religion and patriotism (Vallejo Nágera, 1937a, 1938a). Thus, the emphasis was placed on the fact that the influence of the external environment on the individual is much higher than his or her biological dispositions (Vallejo Nágera, 1937a: 11–13). The people that made up the Spanish race did not represent a biological group, but were seen as a community that was able to be educated in traditional aristocratic values and acquire a variety of psychological qualities associated with patriotism, austerity and moral responsibility (Vallejo Nágera, 1937a: 108–111). Therefore, based on the interiorization of particular values, Spanish society was divided into two large groups: the first – real Spaniards with a traditional worldview, the second – people with pathological deviations and leftist views. Despite the marked etiological discrepancy with the National Socialist doctrine on race issues, Spanish positivism also recognized the existence of racial division in the country, on the basis of which it justified the use of violence by the real representatives of the Spanish race against individuals who were seen as a threat to its continuation. ⁶ The ideas of racial hygiene and the need to achieve a Spanish supercaste dominated the thinking of Vallejo Nágera (1934, 1938a).

With his psychiatric research, Vallejo Nágera legitimized the Francoist authoritarian regime and laid the scientific foundations for the fight against political dissidence (Campos, 2016; Campos and Novella, 2017; Cobo Romero and Ortega López, 2014; Richards, 2012). The inhuman nature of leftist people has been highlighted many times in the Francoist media and noted at public, political and religious events (Miguez Macho, 2013). The issue of race was a recurring argument in Francoist propaganda (Pizarroso Quintero, 2005; Sánchez Biosca, 2009) that showed Republicans as possessing an unbalanced and degenerate psychopathic personality (Sevillano Calero, 2014) or as barbarians or a crazed mass that represents the opposite of an authentic Spaniard (Barrios Rozúa, 2008; Diez, 2000; Langa Nuño, 2000). For their part, the Francoist judicial system perceived republicans as a separate subspecies that were presented as born criminals, whose inherent threat came from their psychosocial degenerative nature. ⁷ In order to justify punishments in sentencing, judges often cited the inherent danger of Marxists as a result of their mental disability (Portilla, 2009: 158) and the perverse nature of their personality (Espinosa Maestre, 2013; Vega Sombría, 2005: 132).

In addition, the works of Vallejo Nágera contributed to the spread of racist ideas among the Spanish population, as there was an internalization of the belief that the perverse nature of people with leftist ideology is transmitted not only through ideological channels, but also through blood (Miguez Macho, 2012, 2013, 2017: 38). This belief was especially characteristic of law enforcement officials, who believed that individuals with leftist views could only have descendants with this ideology. In this regard, for example, arrested Republican women, including pregnant women, were often subjected to physical measures to minimize their reproductive capacity (Abad, 2009). Therefore, it is possible to establish the mens rea element of the crime of genocide in the repression carried out by the Franco regime. According to international jurisprudence (ICTR, 1999: 28; ICTY, 1999: 20, 2000: 255) and doctrine (Akhavan, 2012: 44–45; Ambos, 2009; Clark, 2015; Fournet, 2007: 61; Nersessian, 2010: 160; Schabas, 2009: 260–263), in crimes of genocide it is essential that dolus specialis is present, that is, special intent on the part of the aggressor to partially or totally destroy a group protected by the 1948 Convention. In other words, it is necessary that the intention to carry out an attack on persons on the basis of their ethnic, racial or religious characteristics is accompanied by the intention to destroy, in whole or in part, the group to which the victims of genocide belong (ICTR, 2001: 28; ICTY, 2000: 255, 2004: 247). And the presence of this special intent can be identified in the Spanish case when the perpetrators intended to destroy leftists not only because of their political orientation, but also because they allegedly belong to another race.

Of course, the scale of the annihilation of Republicans in Spain cannot be compared to the scale of the implementation of racial politics in National Socialist Germany (Cayuela Sánchez, 2009). It should be borne in mind that Francoist Spain was formed as a strictly Catholic state, in which the official ideology was formed under the influence of Christian morality. In this regard, the Catholic education of Francoist scholars made it impossible for them to develop ideas about racial purity based only on the influence of biological factors (Álvarez Peláez, 1998; Cayuela Sánchez, 2011; Gómez Bravo, 2014).

However, this cannot be used to deny the existence of a genocidal policy during the Spanish dictatorship. Racial elements, albeit in their own particular interpretation, were present in the Francoist ideology. An image of the enemy was constructed and the enemy was assigned certain qualities, which made it possible to further substantiate the use of violence in order to destroy it (Campos and Novella, 2017; Miguez Macho, 2013, 2017: 46–47). Persons with leftist ideology who were victims of the Francoist repression were perceived as belonging to a different racial group, which is the basis for the direct application of the 1948 Convention to cases of mass extermination in Spain.

Conclusion

The establishment of a dictatorial regime in Spain was associated with the implementation of a repressive criminal policy, as a result of which thousands of people of leftist ideology were killed. The 1948 Convention on the Prevention and Punishment of the Crime of Genocide was never applied to this case, as it was developed only to protect racial, ethnic and religious minorities, and, therefore, political groups were excluded from the list of possible victims of genocide. Despite this, it ought to be possible to expand the application of this convention to the Spanish case in view of the fact that when the act of mass annihilation is typified as genocide, it is not the socially constructed categories of race and ethnicity that are of greatest importance, but how the victims are perceived by the aggressor. It is possible to speak of genocide if in the process of the systematic use of violence, the perpetrators assigned certain characteristics to the victims, the presence of which turned the victims into a collective that deserved complete or partial annihilation.

In addition, the mass political repression of the Franco regime can also be viewed as genocide due to the fact that the racial element played a significant role in the justification of the annihilation of Republicans. Individuals with leftist ideologies were presented as another race, whose development took place outside the influence of the traditional values of the Spanish race and who were perceived as subjects that had developed a dangerous pathology as a consequence of a perverse personality. In this regard, the leftist political orientation is not seen as the cause of their pathology, but on the contrary, it acts as a consequence: the presence of mentally degenerative processes in subjects inevitably leads to the fact that in the future they will internalize the left ideology.

Accordingly, the mass killings of political dissenters carried out by the Francoist regime can be qualified as an act of genocide in full compliance with the 1948 Convention. In Francoist Spain, people were killed not only for their political orientation, but also because they belonged to a different racial group. The presence of leftist ideology was regarded as the result of degenerative mental processes in individuals and was used by the perpetrators as a sign that allowed them to identify non-authentic Spaniards. People with leftist views were part of a different racial group that represented a threat, and therefore deserved to be exterminated.

On the basis of the above, the intention is not to assert that all episodes of Franco’s repression should be perceived as a crime of genocide, but rather to show that there is sufficient evidence to be able to interpret this repression also, at least in part, as a crime of genocide.