Italy, june 2002


by Giuseppe Pelazza, lawyer.

The world war started by USA is going on since months, and it is producing its wasting effects not only on the ground of the violence spread by soldiers (that is not very publicized by mass-media), but also on the ground of internal code's remodelling into western countries.
So, we have to deal, though shortly, with deep juridical changes of the so called "democracies". And we are doing this not to say how much bad the enemy is, but to reflect about the limits within we are working, which yet in the past frequently have changed without we had a deep perception . I want to refer to the armed forces reorganization project (started in 1990), directed towards the building of a professional army for external actions, with the aim to defend the "Country", as it is written in the Constitution's article n52 , linked to the article n11 that rejects the war; but Italian enterprises' economic interest, the availability of raw materials and not very expensive energetic sources, the international order functional to trade's rule (that is the rule of great industrial and financial groups). I refer, for example, to the introduction in our code of elements of a different law for nationality, "special" in the violation of old principles of juridical society, that has brought to the construction and diffusion of administrative detention camps.
Then, I refer to the concrete experience of wars, which Italy has took part, first against Iraq, then against Yugoslavian Federal Republic; this last has been a wasting experience for our constitutional system, and it has been introduced into a psychological mass level, as a relation model between the power of the State and social antagonist parts.
Let's look at juridical changes, for a greatest consciousness. Let's start from some elements regarding the "pilot" state, the USA: here, after September 11th , started a wide law production, which has introduced the possibility of provisory detention for every people who is not a United States citizen (alien), for a period, also for months, without needing indicting proves. The Congress has passed also a new anti-terrorism law with the aim to hit above all foreigner people, providing for obligatory detention if they are thought to be terrorist by the Justice Minister. This law allows to expel or to arrest for an indeterminate period every foreigner who gives humanitarian help or material support to associations called terrorist because of a so wide notion that they could be included also liberation movements as the South African "African National Congress", or groups as the IRA in Ireland, or non-violent associations belonging to the Civil Society, as "Greenpeace".
Now, we want to remember other laws about interceptions (systems to inspect electronic mail could be used), new powers of "infiltration" into organizations, the criminalization of everyone who doesn't give information to the FBI about people which could be suspected of doing a terrorist action (this law is very indeterminate).But we can say that the real centre of democracy's unhinging is into the institution of special military courts, after a Presidential order on 13th November 2001: this measure puts armed forces at the basis of the so called antiterrorist activity ("to identify terrorists and their supporters, to separate their activity and to cancel their capacity to attack"), and it subjects to the jurisdiction of Military Commissions - that is Special Courts- non citizens who have only the "intention to damage the USA, their citizens, their national safety, their foreigner policy or economy"; this measure provides not to apply to Military Commissions "measures regulating the acquisition of proves "; and it establishes that "detention power" belongs to the Defence Secretary, so as the jurisdiction of Military Commissions, and he has to decide "procedures regarding inquest, trial and judgement, and the acquisition of proves", and also the power to "unite Military Commissions every time in every place". The procedure report, including the verdict, will be seen " for every revision or decision", to the President or to the Defence Secretary.
So, nothing remains of the classical power tripartition , nor of the international right about the relation among different state codes. The USA President creates a jurisdictional "structure" claiming to have territorial competence all over the world, a structure that is directly driven by the Executive.
So it is right Domenico Gallo's comment: "This is not only a judicial structure, but only an instrument for the prosecution of the war with other means: a legal equipment allowing to continue the attack started with bombings".
It could have a sense to make an analysis about the nature of State and Juridical Right, and about the necessity not to fall into ideological traps which want to show them as "neutral".
But our aim is only to give elements of reflection.
We can add that a similar mechanism and its concrete realization moods, give the world an image of a terrible USA power: deportations, arrest without charges, torture, and the establishment of a colonial power at Guantanamo, one of the last socialist states.
This image is intentionally reintroduced to compensate that of the Twin Towers and that, censured, of the burning Pentagon and that of adrift Air Force One . War strategists also deal with the imaginary.
Legislative changes are done even in other western countries.
For example, in Great Britain , resorting to the article n 15 of the European Convention for the Protection of Human Rights and Basic Freedom (which allows to derogate from duties imposed by the Convention itself, in a war situation), it is allowed the non-application of the art. n5 regarding juridical authority's control on deprivation of liberty, and it is introduced the administrative detention for "suspects". In particular, among other laws the Anti-Terrorism Crime and Security Bill, "provides for the availability for an indefinite time to keep foreigners which, for an Interior Minister's decree, are said to be members of a terrorist organisation, to support it, to be sympathiser or to have some relationship with its members (art. n 21)...". It is paradoxical that this detention can be applied to those foreigner people which cannot have a trial in Great Britain just because there are no sufficient proves!
In Canada, the new Public Security Act establishes that every territorial are can be declared "military security zone", sending out everyone who is not authorised to enter; and it is clear how that disposition is totally functional to the organisation of G8 meeting on next June.
In Spain they are trying to classify as "terrorist organisation" the legal groups in support of Basque political prisoners, and some juvenile organisations near to Herri Batasuna.
But let's look what has happened in Italy.
On 18th October 2001, "for the extraordinary urgency to strengthen preventive instruments against international terrorism providing for the introduction of sanctions and adequate operative devices" it has been issued the law decree n374, then turned with some change into the law n438, 15th December 2001: let's see some basic elements.
Inside the article 270bis of the Penal Code (article introduced on December 1979 by the so called Cossiga decree, that yet punished terrorism purpose organisations), it has been introduced even the hypothesis of "international terrorism" purpose association. They have been tightened up some penalties: the lowest between 4 and 5 years, the highest between 8 and 10 years, only for participation to the organisation. To better understand the repressive fury, we have to think that the fascist legislator through the art. n 306, gave penalties between 3 and 9 years for the participation.
But the problem is the imprecision of the method to indicate a punished behaviour, which seems to be realised by the simple "purpose" of violent acts. Then, it is not determinate the type of violent acts the association is going to do. This violation of the art. n 25 of the Constitution yet was present in the art. n 270bis (Cossiga), but not many people have moaned about it.
From the new formulation of the general notion of terrorism purpose, follows that for "violent acts...against a foreigner country, an international organ or institution," it is applied the aggravating provided by the art. n 1 (Cossiga decree), which increases the penalty of its half, with the unavailability to cancel the aggravating itself with the acknowledgement of extenuating elements. And the legislator wants to equalise any kind of violence against foreigner countries or international organs, with terrorism purpose: this could allow to hit not only members of small associations, but also mass movements with internationalist aspects.
Another new is the introduction of the art. n270ter in the Penal Code, which punishes till 4 years of detention who "out of cases of complicity in a crime or abetting, gives hospitality, transport, or communication instruments" to whom is member of those associations punished by the art. n 270bis and by the old art. n 270 ("simple" subversive association).
The aim is to hit who is near to subversion (the art. 270 was made to hit communist, socialist maximalist, and anarchist people, during Fascism), and paradoxical effects are not important: who drives a subversive is punished more than the subversive himself; and it is more good to give hospitality to a member of an armed association than to someone who wants to establish a social class dictatorship (till 4 years of penalty). Or maybe, in this last case, the legislator recovers the consciousness that ideology and politic theory can be much dangerous? And that it is necessary to make their life impossible?
The art. n3 provides for searching for "block of building", with the possibility to stop "people and vehicles circulation in interested areas": so, something like a round up.
The art. n 5 introduces the possibility of "preventive interceptions", yet provided for Mafia crimes, even for terrorism purpose crimes with penalties between 5 and 10 years. Those interceptions (even in telematics, ambient or into private homes ) are not limited to whom is inquired, but they are allowable in general "when it is necessary for the acquisition of information regarding the prevention" of terrorism crimes: it is clear that every ambient can be put under interception. On the journal "Guide To Juridical Right" a Carabineer Major finds satisfaction because "it is more clear that...a new phases of inquiry is going to start, before or extra procedural", a phases (I say) out of the trial scheme.
The art. n 4 shows how they want to turn the penal procedure into a police procedure, and without any reserve it introduces the regulation of "activities under cover" by Judicial Police. Those activities are provided by the Chief Policeman, by the General Carabineer Commander or by Revenue Guard Corps, and they are carried into effect by inquiry organs "specialised in the activity against terrorism or subversion". The Public Minister has to be informed beforehand: operations' aim is to "reach proves regarding terrorism purpose crimes" and policemen are not punishable "even if through a third party they buy, replace or hide money, weapons, papers, drugs, goods (that is things to commit the crime), or if they obstruct their origin identifying, or they allow their use". Those policemen can participate in the crime, so it is clearly provided the infiltration/provocation activity (with Magistracy's connivance).
At the same time the current Secret Service's reform gives it unpunishability for many crimes (except for homicide and personal injury).
The art. n 10bis creates special Public Minister and Preliminary Inquiries Judge.
All this law code intersects with the definition of terrorism they are going to give in Europe, towards which it's right to be worried, because it refers even to abusive occupation, public and state infrastructures, public places and goods, water and energy interruption.
And it intersects also with the construction, by USA and Europe, of terrorist groups list: for example in the USA list there are PKK, PFLP, FARC; if Italy and its Magistracy are going to do the same thing, whoever gives hospitality to a member of these organisations will be punished (art.270ter P.C.). The ground is promptly prepared.
In Europe many innovations are coming with the starting of "European Warrant ". This code provides for the acknowledgement , and execution, of verdicts and captures done by judicial authorities of every European Union country, without any control nor on the matter neither on procedures (to focus the importance of the problem, we have to remember the Italian "exiles" community in France, not extradited because at that time it was provided a valuation on the matter, judicial and political too).
For some crimes it is also provided the abolition of the "double incrimination", for which the extradition was possible only if the facts were crime even for the "requested" country.
Among the reasons brought to refuse to hand over, absolutely listed, the politic nature of the accusation is not included, while articles n 10 and 26 of our Constitution don't allow extradition for political crimes.
Italian legislative production linked to the war includes the laws regarding "Sanction Dispositions for violation of measures against the Taleban faction.
These laws are linked to those of European and international origin (UNO's Safety Council): they punish who violates provisions of European Community Code, for the block of goods belonging to people identified by Sanction Committe (instituted by the Safety Council).
It is striking that those laws hit a politic/religious community, providing for measures against specific people.
In this way they exclude from civil society who belongs to an "enemy" community, and people identification is made out of any warrant .
This "ban" decreed through political/administrative way, reminds to a terrible past and it is worrying for the future...

These "war laws" are becoming part of a situation which was yet preparing them: repression's military form was acknowledged in Italy by the law of Carabineer reorganisation, which increased their autonomy and power of control on the whole society. So, it is peculiar that an Armed Force is the most large and important police in the country, doing military police tasks and war roles too.
The next decree gave to Carabineer the task to "contrast activities against the efficiency of Armed Forces", and Carabineer General Command said that "among the most important tasks they have to face the so called threat or non-orthodox war: spying, sabotage, subversion, terrorism, guerrilla, psychological war, interference, propaganda, influence, misinformation, separatism...".
But the whole society has been influenced with an "enemy" logic, with the immigration law.
The war was yet going on, even if in a not clear mood, with the economic strangulation of the South world and with institutional changes.

The law decree for the military participation to Enduring Freedom establishes that "It is applied the military penal code to the Italian task force taking part to the operation of legal restoration".
Now war is not anymore a taboo. With the conversion law it has been abrogated the art.87 (Military Penal Code) which punished whoever said invectives against war, while it's still in force the art.86, which punishes whoever conducts the Government towards stopping the war.
If now the war code applies only to military people, the conversion extended it also to support people in national territory, and it provided also task forces in foreigner countries, including peace keeping missions, etc.
We understand that humanitarian missions are not so humanitarian as they seem...
Spread war outdoor, silent war indoor, destruction of bourgeois democracy forms: is this a sign of power will without limits, or the sign of a justified "imperial" fear?