A Historic Judgement

Absolved of international terrorism. A historical judgement by a courageous Italian judge, Clementina Forleo, Giudice di Udienza Preliminare (the Judge for the Preliminary Hearing) that should not go unnoticed. This it how it finished on 24th January at Milan, the case against three of five North African Muslims arrested in 2003 on the charge of being part of a terrorist cell attached to Al Qaeda. Instead the three were judged guilty of favouring illegal immigration, possession of false documents. The motivations for this sentence have yet to be disclosed. The case against the other two, suspected to be part of the same organisation, was sent to the tribunal of Brescia because the judge considered that it was not in the competence of the Milan court but that of Brescia. In the meanwhile the magistrate revoked the order of preventive detention against these two.  The reasons given in this order are of a historical nature. This is an extremely important judgement that has infuriated the Italian Government and the right wing parties with unprecedented furious attacks on the judge from amongst others the Ministers of Justice and Interior.  This judgement in the case of the last two was later, on 1st February, overturned by Roberto Spanó, Giudice di Indagini Preliminari (the Judge for Preliminary Investigations) of Brescia and the whole episode is worth commenting on for its opening up a debate on the nature of terrorism and guerrilla warfare and for the future the legal system in Europe.


According to the magistrate, Clementina Forleo of Milan, even if it was proved that there were contacts between the accused and a paramilitary group nevertheless one could say at most that they were supporters of the guerrilla war in Iraq and Afghanistan, but that this did not signify that they were terrorists because there was an enormous difference between guerrilla action and terrorism. According to the magistrate at most they formed part of an organisation that financed and recruited volunteers ready to go to Iraq to fight against the US occupation, but there was nothing that could suggest that they had any intentions of organising terrorist acts, even less outside Iraq and Afghanistan. According to the magistrate guerrilla war is one thing whereas international terrorism is something else completely. In her words “One who commits attacks in the context of an armed conflict, if these do not involve civilians, is not a terrorist.” This is a fundamental distinction which has until now not been treated adequately in any European court. According to Ms. Forleo “The notion of terrorism diverges from that of subversion and as such is not defined in a normative way”. She makes an appeal to the United Nation’s Global Convention on Terrorism of 1999 and affirms: “Violent or guerrilla activity taking place in the context of an armed conflict, even if conducted by armed forces different from institutional ones cannot be persecuted not even at the level of international law, unless international humanitarian law is violated” She went on to say: “Terrorist activities which are relevant and prosecutable on the level of international law are those which are directed towards the dissemination of indiscriminate terror amongst the civilian population in the name of an ideological and/or religious creed, setting itself as a crime against humanity.” According to her punishing a guerrilla act done during a conflict “could inevitably lead to an unjustified taking of a position in support of one of the forces in the field”. She also maintained that in making a penal judgement about a violent reaction against an occupying force, that act should be evaluated and judged in the context of the general use of ” instruments of extremely high offensive potential”.  Her words were “it is well known that in the bellicose conflict in question instruments of extremely high offensive potential have been used by all the forces in the field”.  In other words, in a country enveloped in war, with tens of victims every day, why should one judge only the activities of the resistance or some fundamentalist Islamic groups? This means, according to the magistrate, that it is very difficult to distinguish between barbarism and civilisation in this war context and in any case it is not in the competence of Italian justice. One can see that she is trying to make a difference between different groups fighting in Iraq unlike others who call everybody who is resisting the US occupation as terrorists.


The magistrate recognised that the activities of the accused were aimed at “the support of the structures of paramilitary training presumably in the north of Iraq” but “the concrete programming of objectives transcending guerrilla activities” was not proved. The magistrate also based her judgement on another important consideration. According to her even if one admits that they formed part of an organisation “no penal relevant links of such groups have been proved with those, even if of the same ideological stance, responsible for attacks of a terrorist nature “; and in a court it is not sufficient to demonstrate the contrary using intelligence, which may be useful to the police but which in a judicial process are to be considered as “evidence infected with pathological uselessness because they are devoid of any support worthy of  procedural acceptability and not immediately confirmed by procedurally acceptable evidence”. In other words data coming from not well specified “intelligence sources’, “informative or investigative acquisitions” are pathologically unusable in court. One cannot condemn on the basis of “intelligence from American organisations” or on the basis of “data provided by the Bka (the German intelligence agency)”.


I believe that this is the first time that there has been such a judgment in the West. This judgment I believe behoves all of us on the left to think hard about the resistance in Iraq. We must recognise that the there is an inalienable right to resist a foreign occupation recognised in international law. One must distinguish between legitimate armed resistance that targets occupation forces and their puppet armed forces in Iraq from the indiscriminate car bombs and killing of civilians carried out by some groups that are clearly terrorist groups. The fact that there are these terrorist acts should not blind us to the fact that those fighting in Fallujah, Najaf, Nassiriyah against occupying forces are genuine resistance fighters and they need all the moral and material assistance that they can get.


Coming back to the judgement and subsequent developments on the one hand it showed that the independence of the judiciary still exists in Italy in spite of three years of attacks on it by the Berlusconi government. On the other hand the Italian right used the Milan judgement to attack precisely this independence that it cannot tolerate.  Here are some of the reactions from government ministers and right wing politicians. “Anger and incredibility” from Gianfranco Fini, ex-fascist and present Foreign Minister and according to him the magistrate did not distinguish between “victims and perpetrators”. The Northern League Minister Calderoli said that his stomach revolted and he invited the magistrate to watch videos of the decapitations. He said that “the sentence has legitimised terrorism by passing it off as guerrilla war” and further “it is evident that something is not right, or the laws are wrong or the judges are wrong”. The Minister of Communications, Maurizio Gasparri, also an ex-fascist, requested the Superior Council of Magistrates, the constitutional body governing the judiciary, to “punish guilty judges”. For another member of the Northern League, the vice-president of their parliamentary group, Federico Bricolo one could only comment on the Milan judgement with a vulgarity. He further said, “The Islamic terrorists in Italy will surely nominate this judge as their protector”.


But the worst and the most telling reaction was that of the Minister of Justice, Roberto Castelli. also of the Northern League. He announced that he was setting up an inquiry. He said “I have instructed my inspectors to evaluate whether there was ignorance or whether there had been grave distortion of facts” He went on to say that in the last year there had been too many sentences which had upset public opinion. His most damaging statement was “According to me it is a question of a cultural character: when there are too many sentences which upset public opinion this means that many magistrates are distancing themselves from the common sentiments of the people”.


This is a very grave statement from a Minister of Justice of a European democracy. He above all should know that judges are not supposed to follow public opinion that can be misguided by propaganda in the press and usually does not know the details of the case. Obviously this statement of the Minister influenced the subsequent developments of the story.


As mentioned earlier in the case of the two sent for judgement to Brescia, the Judge for Preliminary Investigations of Brescia disagreed with his colleague in Milan much to the delight of the right in Italy. The reasoning of this judge is dangerous as it follows what the Minister of Justice said. This judge reinstated preventive detention for the two for international terrorism. He used a procedural argument to overturn Ms. Forleo’s order. According to him she forced the legal process because at the moment that she declared herself incompetent to judge the two, referring the case to Brescia she should also have suspended judgement concerning their detention. He could have stopped here but he went further. He said that the motivations given by Ms. Forleo were “confused and depended on her personal opinion”. However Mr. Spanó then goes on to express his personal opinions. He argues, “Laws are the expression of the common sentiments of a community rooted in a determined historical and geographical context. In view of the common sentiments of the political community that approved article 270bis (on international terrorism) it must be accepted that actions undertaken also making use of kamikaze attacks by promoters of extremist Islamic ideology against military units deployed in Asia, among which there is an Italian contingent, cannot be considered as legitimate and justified guerrilla actions, but without doubt must be defined as acts of terrorism”.


Independent judges cannot submit the law to pressure from the government in power or to public opinion. The legislative bodies make the law and it is the duty of the judiciary to apply this law without fear of public opinion and without pressure from the government. If judges were to give into public pressure or common sentiment we would descend into a lawless state of lynch or jungle law where the mob hangs and executes the guilty and innocent alike without due process. This appeal to common sentiment by a Minister and a judge is extremely dangerous as this opens the road to lynch law. In the present context it means that you are guilty of international terrorism simply from the fact that you are a Muslim and according to “common sentiment” you are considered as a terrorist. The modern legal system was developed precisely to avoid the mob taking the law into its hands.


Apropos of “common sentiment” a vast majority of Italians and Europeans are against the war in Iraq but the government in power has completely ignored this sentiment! It seems that “common sentiments” are to be considered only when it serves the war party.


The other aspect of the modern legal system is that it protects the people from the arbitrary power of the executive. Giving into political pressure from the government negates the very essence of modern democratic states. Over the last few hundred years Europe and the United States have developed mechanisms to protect from these two dangers, justice at the mercy of the executive and justice which gives into popular pressure. Mechanisms have been developed to control the executive branch and to protect the rights of the population from being usurped. These are precisely the conquests of democracy in the West that we in the developing countries envy and long for and these are precisely those that are now in danger in the countries where they were developed. These aspects of democracy are now in danger not only in the United States, which is rapidly moving towards a fascist state, but also in Europe. The reactions of the right wing government in Italy are alarming in this context as is the situation in the UK. There the new Home Secretary, Charles Clark, is trying to get around the Law Lords ruling that detention without due process as practised by his predecessor, David Blunkett, is illegal by proposing house arrest, electronic bracelets, banning the use of the telephone, internet, etc, again without due process and solely on the judgement of the government. This is a very slippery road. Fortunately both in Italy and the UK there are strong forces opposing this and one hopes that saner voices will prevail.


Coming back to Italy the magistrate in question has been strongly defended by her colleagues and by the National Association of Magistrates and other associations. A strong defence of her independence has come from the Vice-President of the Superior Council of Magistrates. This is very significant as the statutory President of the Superior Council is Signor Ciampi, the President of the Republic of Italy and therefore it is the opinion of many that the statement of the vice-president must reflect Ciampi’s views. Signor Ciampi has been struggling during the last two years to save the independence of the judiciary from attacks from Berluconi’s government.


This episode must be seen not only in the international context of distinguishing between terrorism and guerrilla war but also within the Italian national context of the attack on the independence of the judiciary. In this context the embarrassed silence on the left is significant. Only a few voices in the opposition have spoken up to defend the Milan magistrate. The left is afraid of speaking clearly as it fears that it may offend public opinion specially at a time when there are Italian forces in Iraq. In my opinion this is a cowardly stand. The left must clearly state that this war is illegal and that Italian troops should be withdrawn immediately from Iraq. It must have the courage to say that those fighting against occupation forces in Iraq, whether they are US or Italian troops, are resistance, guerrilla fighters and must not hind behind a false patriotism.



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