While many commentators agree that the whole affair is incomprehensible without this political context, some experts also support Garzón on purely judicial terms. Magistrate Clara Bayarri, a colleague of Garzón's at the National Court, wrote recently that she had, in fact, supported Garzón's investigation into the Franco regime, and that she did not consider him to lack the powers to continue investigating, because his reasoning was valid: Article 6 of the judicial code binds judges and tribunals to the Constitution. Article 10 of that very Constitution binds Spain to the Universal Declaration of Human Rights.
The relationship of national laws with international law is, of course, the knot at the heart of the Garzón affair. Should Spain's 1977 Amnesty Law, which predates the Constitution, stand in the way of international legislation to which Spain is now signatory?
One man with a unique perspective on this vexed question is the Chilean judge, Juan Guzmán, who led the main investigation against General Pinochet. The ex-dictator was put under house arrest in 2006 after Chile's Supreme Court stripped him of immunity. For its part, Argentina swept aside its own amnesty laws in 2003. Both were processes that Garzón's own, earlier, Spain-based investigations against Pinochet and Scilingo had played their role in helping to bring about.
Speaking by phone from Chile, Guzmán was unequivocal: "Spain's Amnesty Law only covers common crimes. The Franco regime committed crimes against humanity. Such crimes never expire, and can never be amnestied."
Critics of Garzón's investigation often point out that even if the Franco regime committed crimes of this order, it did so long before relevant human rights legislation, such as the 1998 Statute of Rome.
In response, Guzmán argues that there have been cases where crimes against humanity have been judged with a framework based on little more than "humanitarian decency," such as the Nurenberg trials after the Second World War. "Baltasar Garzón is in a situation in which he must interpret to what extent he has the power to proceed," Guzmán insists: It is a process open to interpretation, but which in his case is not a perversion of justice. "The accusation against Garzón" he told me, "is abusive and unjust."
Amid the Garzón furore at the end of April, the Socialist government published a map of Spain with the locations of known mass grave sites. Regional Conservative authorities refused to cooperate with the project, so those areas were left blank. Both parties accused each other of using the graves for their own electoral ends.
The upcoming trial of Garzón can only aggravate such deep social and political rifts. The pro-Garzón protests have already emboldened the grandchildren and even great-grandchildren of the disappeared to demand an honor long denied them. It is a measure of Garzón's courage that while he may have touched off this social transformation, he has not retired to watch it from a safe distance.
At least not yet. If he is found guilty and his career in Spain is over, he has any number of posts he might take up abroad. In such an event, Baltasar Garzón would be, as one commentator recently stated, "Franco's last exile." Whatever the world's gain, the loss to Spain's credibility would be enormous.