28 March 2012
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ON THE FIRST MEETING OF THE:
INTERNATIONAL INQUIRY COMMITTEE FOR THE PROTECTION OF BASIC HUMAN RIGHTS IN THE FACE OF GLOBALISATION
The first meeting of the "Committee on Basic Rights and Globalization" took place in Genoa, on 6 April 2002. Many statements, all of great interest and containing highly thought-provoking material were presented. The purpose of this note therefore is to highlight those elements which, in my opinion, were of the greatest significance. This paper, however, is intended not just to present a brief overview of that day's meeting, but also to stimulate members of the Committee to further thought, to assimilate new ideas, and to contribute suggestions and proposals for the work that we're going to do together in the future.
A symmetry emerged between the introductory statement by Rudolf Schaller and the closing statement by Nuri Albala, in that both pointed to the obvious attempt being made world-wide to create a kind of permanent state of war, making it possible to place the observance of basic human rights in abeyance. The urge to do something to counter this situation must be accompanied by an awareness that, however difficult, opposition is possible. Human rights are not an abstraction invented by lawyers: they are the achievements won in heated battles waged by human beings, in sweat and tears, fighting for the eternal ideals of equality and freedom. Exemplifying this was the deep surge of emotion which greeted the statement made by Carlo Giuliani's mother. Equally obvious is the need to have the means to make the enjoyment and the observance of human rights possible: the key issue remains their effective implementation, so that abstractions written on paper may be reach the stage of conscious and tangible realization. The speakers touched on various aspects but, on the whole, the issues they raised were the same, viewed from different standpoints and in different perspectives, which is precisely why they were so thought-provoking.
Here are what I consider to be the main themes that emerge for further reflection.
Police and other law-enforcement forces
During the G8 meeting in Genoa we witnessed a clear and unambiguous suspension of the freedom of movement and of assembly. In this connection, it was striking to hear the Mayor of the city explain that prior to the summit meeting it was taken for granted that no demonstrations would be allowed while it was in progress. Only after the repeated protests and determined intervention of the NGOs were street demonstrations authorized, offering tangible evidence of the indispensable role of the NGO s in safeguarding basic rights.
It is equally important to note that denying the right to demonstrate was a security strategy adopted by the preceding, Center-Left, Government: in this regard, there are no significant differences between the various Governments in power. However, the demonstration was subsequently authorized (cf. "Genoa Social Forum") and this fact makes the conduct of the police even more shocking. The reports of many speakers referred to generalized forms of brutality having been exercised by the Police, directed at sensitive parts of the human body (e.g. the head), as well as to unusual forms of humiliation inflicted on people detained for questioning or those under arrest. Another aspect mentioned in the reports was the fact that these violent actions on the part of the Police were exercised most often against completely peaceful demonstrators, while Police failed to intervene against those few and easily identifiable individuals who had engaged in violent acts. These reports raise some serious questions.
First of all, the deployment of the police forces, concentrated in the Red zone (cf. Pericu and Montaldo, Mayor and Deputy-Mayor of Genoa, respectively), demonstrated serious organizational flaws, not least from the strict point of view of the maintenance of public order: the crying misjudgment of what was going on culminated in police passivity in regard to individuals engaged in committing acts of violence combined with an indiscriminate and heavy-handed reaction towards those who were taking part in the procession.
A kind of green light seems to have been given, an unspoken permission that anything could be done and that it would go unpunished; this was dramatically corroborated by the exceptional brutality inflicted in the Bolzaneto barracks on people who had been arrested, and by the search carried out inside the Diaz School. As regards the latter episode, speakers voiced great concern (cf. Montaldo) over the possibility that these acts might have been unleashed by a clear and unequivocal order to proceed. Thus,as several speakers said, the key question to be clarified has to do with the chain of command, the master plan for the orders, and who were the people in command in the several separate situations.
Transparency and the need for answers to these questions are of vital importance for maintaining the present level of democracy.
The representative of the European Committee for the Prevention
of Torture (Palma), while defining this Committee s function
as essentially preventive, emphasized that in order to curb abuses
a State must
obtain an evaluation of suspicious cases, which makes it essential that the monitoring bodies performing this evaluation enjoy the highest degree of independence.
This was absolutely not so in the Italian situation, since this function was entrusted to the penitentiary, i.e. the very system which was in charge of detention. Prevention is first of all the ability to prosecute and punish abuses.
After what occurred, albeit with differences, at Goteborg, Davos, Genoa and Barcelona, a new theme emerges: new, improved and more effective methods are needed to protect fundamental rights, offering specific answers to questions such as: where are arrested individuals held, are they placed in the normal detention structures; a comprehensive monitoring system for people under police arrest is needed, and verification that doctors, lawyers, etc. can have immediate access to them at the place of detention.
In Genoa, the long delay before those under arrest were able
to see their attorneys was in clear violation of the provisions
of the Italian code on legal procedure and was vigorously denounced
as an elementary breach of
legality (cf. Menzione, Attorney); this is not altered by the fact that lawyers had been able to voice a strong protest at the time and that the Consiglio Superiore della Magistratura later ordered the matter to be investigated.
The possibility for client and legal counsel to be in contact immediately is fundamental, not so much for what they may have to say to each other but precisely because the denial of this possibility is what sparks further violence.
Another element which was highlighted by a number of speakers is the impunity enjoyed by the law-and-order forces. In this connection, the importance of knowing the key elements mentioned above, i.e. the hierarchical chain of command, the plan on which the orders are based, and the identification of those in charge of the separate situations cannot be overemphasized.
An additional, unavoidable and pressing issue is the general
mentality among the members of the police force (see Notari,
SIULP - Police Union). Police schools which, at present, concentrate
solely on formal issues should undergo a reform. Instead, in
Italy, Governmental technical departments are envisaging a militarization
of the police, raising a touchy problem in connection with the
abolition of compulsory military training, since the projects
envisage that 60% of the posts in the police force filled by
competitive examinations must be reserved for those who had been
professionals in the military services, leading to consequences
that can easily be imagined. There is a serious risk involved
in setting up the police force as something extraneous and antagonistic;
for we must never forget that the police belongs to all the people,
and citizens should show and interest in, ask for and insist
on getting answers about what the law-enforcement forces do.
Lawyers and jurists
Many speakers referred to the increasingly important role that legal experts and lawyers play in monitoring the fundamental right to information and freedom of movement of persons, key issues at the present stage of globalization. The many lawyers and jurists who came to Genoa and to other meeting venues did so spontaneously because of a feeling that there might be a general violation of human rights, though no one could imagine the proportions that it would take.
To lawyers and attorneys, marching in the street represented turning the traditional way of practising their profession on its head: they were there to prevent illegal acts from being committed, rather than acting to restore legality following a violation, which is what they do in the customary exercise of their profession, in the Courts (cf. Menzione, Attorney).
We must think about the implications of this new role, which is not an easy one. In line with this, speakers (cf. Maesschalk, Lawyer) insisted that when meetings and demonstrations are held, it is imperative for lawyers to act in a coordinated way and to set up actual legal teams, focusing on three specific objectives and areas of action.
The first objective should be to inform the citizens and the demonstrators about their rights. This is all the more important as laws and regulations have become increasingly more complex and more difficult to understand even for experts; in addition, an equally important factor is what actually happens in practice, as this diverges more and more often from what the law prescribes, making this information essential for an effective defense of rights.
The second should be focusing on the fact that preventive measures intended to combat organized crime are also being taken in connection with human rights, with operational decisions being made by intergovernmental working groups and special lobbies. There is real danger that EUROJUST may be broadened by distorting its implementation, and that its extensive information files on individuals, containing references to their sexual tendencies, their origin, etc., might be made into a system to combat dissent.
Third, the legal teams should act not only as observers but also as mediators, playing an important role in street demonstrations by helping to avert excesses and the cause of tragedies.
Furthermore, contact must be maintained with lawyers outside
Europe, especially those in the USA and Canada, where legal teams
already exist; their experience may prove invaluable, bearing
in mind that it may become
necessary to defend the lawyers themselves when subjected to repressive measures precisely as a result of their new, extended activities. In this connection, the Police break-in into the headquarters of the Genoa Social
Forum and the confiscation of documents was stigmatized as an act arousing extreme concern (cf. Menzione, Lawyer). The idea of creating legal teams was mentioned by a number of speakers, confirming this need (cf.Sabata, Lawyer) as well as that for a coordinated presence of lawyers, who might be named "white helmets" (cf. Comte, Lavyer) to act as witnesses of the events during demonstrations.
Lawyers and jurists have another very important mission, that of opposing and preventing the extension of the meaning given to "acts of terrorism", particularly as used after the events of 11 September, and bearing in mind a new European Directive on the subject, where the definition given could easily be broadened to embrace acts having nothing to do with terrorism but which are to be made the target of a repression aimed specifically at people opposing State policies. This concern was voiced by many speakers (cf. Comte; Ratzmann, Lawyers); a sharp observation by Ratzmann was that a good way to judge the degree of democracy of a system is, precisely, by analysing how a State reacts to and deals with its opponents.
Doctors and medical workers
It was pointed out (cf. Costantini, MD, Genoa Social Forum) that the tenor of events in Genoa differed from those in other places on analogous occasions.
Numbers tell the story: 450 consultations in medical units; 300 admissions; 500 interventions; and it must be borne in mind that many demonstrators felt too afraid to consult a First-Aid center.
A woman who was seriously wounded said: "if I have to
choose between the risk of an embolism and the risk of falling
into the hands of those people, I'll choose the embolism".
Equally alarming is what happened inside the hospitals, where doctors, filling out forms that seemed to have been printed ahead of time, declared that everything had taken place normally.
Over and beyond the tragic events in Genoa, attention was drawn to the fact that more and more often, foreigners who are ill and in need of care are expelled. An entirely new approach is required in this century of human rights; doctors and lawyers working together in order to oppose and prevent the violation of fundamental rights. A collaboration which should make us realize, in a framework of continued mistreatment of the weakest members of society, that these are at present mostly foreigners from non-EU countries.
Newspaper reporters and photographers
We cannot emphasize enough the importance of the role played by the media and of the press people present in Genoa; speakers highlighted the preventive law-keeping function they fulfilled as well as the importance of their having witnessed and reported the events. A common opinion stood out: nothing of what happened in Genoa happened by chance (cf. Cuccor Pederazione della Stampa).
It was also pointed out that the what was going on in Genoa was filmed on numerous videos, which shoved not only dramatic scenes but also recorded the joyous atmosphere and the rich mix of cultures present, though the official TV unfortunately often censored and cut many scenes. The world of the arts was galvanized and even the theatre circles are moving into action (cf. Chiera, Theatre director).
Another determining factor, it was agreed, was represented by electronic communications and transmission of information, with the consequent requirement to guarantee anonymity. Nev forms of struggle are opening up: ways of blocking a site and organizing a "net strike". In reaction to this, methods of repression are being elaborated inside the web, which impose a difficult and complex task of research and information on these moves: the searches carried out on the premises of Media Center, where Indymedia had its office, acquire considerable significance in this connection.
Freedom of movement of persons
Freedom of movement is a topic of paramount importance; it also represents a good yardstick to determine the level of democracy existent in a system. What happened in Genoa is quite noteworthy from this point of view, even though similar reactions were observed on the part of other Governments during the summit meetings in their countries. It is extremely instructive to consider the analysis (cf. Pastore, Lawyer) of the security measures enacted by the authorities prior to the meeting as well as those taken subsequently. In the Genoa case, information about these measures is based among other things on a prefectoral (Police) report presented to Parliament. This document refers to the predictive studies carried out concerning potentially violent demonstrators whose entry into Italy must be prevented, requiring the setting up of special structures both in regard to legislation and in regard to the coordination of the various Police forces, consequently giving rise to an information system linked to the Schengen Information System (SIS).
An empirical border control system is officially confirmed: entry was denied to 2093 persons, seemingly a high figure quantitatively, but not substantiated by quality, considering the motivation given in some of the documents refusing entry; the most crying example being the motivation denying entry to a European Community interpreter, who had arrogantly declared wanting to go to Genoa in order to take part in the demonstration. The strongly-worded note of protest signed by 120 colleagues and addressed to Prodi received only an evasive reply.
Many British citizens were refused entry at the Genoa airport
not because of any previous criminal record but on the basis
of allegations that they had taken part in protest/sit-ins. Standing
out alone against the general
absence of any reaction to this increasingly repressive apparatus was Watson's report to the European Council (of Ministers), warning that an indiscriminate closing of borders would constitute barriers to the free circulation of ideas.
As some speakers said (cf. Sabata, Lawyer}, it is possible to suspend the Schengen Agreements in particular circumstances but only under certain well specified conditions and, in any case, without leading to collective measures affecting entire groups - which is what happened at Genoa and at the other summit venues.
As was aptly observed, the steps taken by the German police authorities with a view to preventing certain persons from going to Genoa were legally untenable: not only does such a law-and-order prohibition exert its effects on another state but it is also directed at possible future events.
It is clearly necessary to prevent "black lists" being drawn up outside the purview of the SIS, which is itself a source of various abuses, as it is.
The Schengen Agreements cannot be suspended in an across-the-board manner; the 1,439 persons on file in the system are there only for having been involved in minor misdemeanours connected with demonstrations.
In this connection, great concern was expressed about a new piece of legislation in Spain (cf. Sabata, Lawyer), relating to the criminalisation of minors having taken part in demonstrations where violent acts had been committed; a special judge is to be appointed having authority to impose heavy sentences, special detention structures and special juvenile reform programs are to be set up, accompanied by provisions depriving these individuals of their civic rights for potentially lengthy periods of time.
This legislation is a matter of grave concern; it was adopted prior to the events of 11 September but there is a serious risk that it might now be imitated in other European countries.
Coming back to the subject of Genoa and the measures taken after the Summit: a fact of considerable significance is that, upon being released from detention after their arrest, almost all the demonstrators from other European and from non-European Union countries were ordered expelled from Italy with the provision of an immediate escort to the border. Equally noteworthy and in some ways sensational is the fact that of the 94 judicial appeals lodged against these orders, 80 were won, 12 declared unacceptable because they had been handed in late, and only 2 were rejected.
This shows that where the lawfulness of the orders had been passed on by judicial authorities, the expulsion orders could be nullified.
In addition, it is absurd to speak of a threat to law-and-order posed by people just released from hospitals, where they were admitted for injuries suffered during the search carried out at the Diaz school, and it is even less legally justifiable to order the expulsion of persons whose arrest had earlier been annulled by the penal authorities. There is, therefore, a legitimate suspicion that in actual fact, what was being sought was to send out of the country people who could give embarrassing testimony about what had taken place at the Diaz school.
Then there are, as usual, personal stories which demonstrate the iniquity of the system, like that of the Turkish woman who was a refugee in Switzerland as defined by the Geneva Convention and who came close to being sent back to Turkey; or the case of a Moroccan citizen, legally residing in Italy, who was expelled under the expulsion provisions issued in connection with the Genoa events when he quite innocently appeared several months after these events at Police headquarters in order to have his resident permit renewed. In this doleful case too, the appeal resulted in a cancellation of the order by the judicial authorities, but only thanks to a general mobilization of lawyers who were able to react immediately and effectively. These stories indicate, furthermore, that there may be other expulsion orders pending that have not yet been notified to other persons.
Use of tear gas
The events in Genoa were marked by the use of huge quantities of tear gas, which, incidentally, was resorted to quite generously at the other venues as well. As various speakers said (cf. Lee, Amnesty International; Magnone, Chemical engineer; Canestrini, Lawyer), this topic must be explored in depth. In particular, it was pointed out (cf. Canestrini, Lawyer) that in Genoa, more than 6000 tear-gas canisters were exploded in just two days, so that we witnessed "the biggest operation of chemical warfare in peace-time'. (cf. Martone, Senator, Group of the "Greens"). We must get an answer first in regard to what is called "a non-lethal method of repression" : is the use of CS, (orthochlorobenzylmalononitrile) as gas or chemical compound, legal ?
Is there a regulation authorizing its use by the law-enforcement forces, and if so, in what circumstances and when is this use legitimate? (cf.Canestrini, Lawyer).
CS became part of the standard arms equipment of the Public Security forces in 1991, DPR 5.10.91, nE359, where reference is made to "a vessel containing a mixture of CS or similar substances having a reversible neutralizing effect".
It was also pointed out (cf. Canestrini, Lawyer) that this regulation must be read in conjunction with Law nE 110, 18.4.1975, which covers the general topic of weapons, and where U aggressive chemicals" are placed in the category of weapons of war.
According to a decision handed down by the Court of Appeals (30.1.1982), teargas bombs are comprised in the category of war weapons. And following the acts of 11 September, the Minister for Public Health himself warned health officials in his high-priority circular issued on 12.10.2001 of possible terrorist attacks using aggressive chemicals, and mentioned Cs gas among other substances; and yet this same gas is used in all tranquillity and in massive doses during demonstrations as a "non-lethal method of repression'.
The regulation which authorizes the use of CS refers explicitly to its neutralizing effect being "reversible". In actual fact it is far from proven that the effect of tear gas, especially if used in massive quantities, is reversible. Indeed, cases are coming to light of people with complaints of permanent effects on their respiratory tract, persistent skin and eye pathologies, allergies, and, according to some studies, even possible modifications of the DNA (cf. Magnone, Lawyer). From a strictly legal angle, it was pointed out that at the international level the Geneva Protocol, 17.6.1925, prohibits the use in war of toxic asphyxiating or other gases as well as bacteriological methods; while the BWC, i.e. Biological and Toxin Weapons Convention (10.4.1972), prohibits the development, production and storing of bacteriological weapons, though without any provision for verification.
Forms of verification with the appropriate procedures are, however, provided in the Chemical Weapons Convention (CWC) of 1993, with the establishment of a supra-national body, the organization for the Prohibition of Chemical Weapons.
What is absolutely necessary is a thorough analysis of the contents, aside from Cs, of the tear-gas canisters fired in Genoa: only a precise identification of the chemicals used can help us to determine whether or not they are allowed by the international Conventions in force.
As to the legitimacy of their use in the specific situation, unfortunately the anonymity of the members of the police force, as already stated, is a major obstacle to determining individual responsibility; the crucial point is to find out who gave orders for the unbelievable and unprecedented number of tear-gas bombs to be fired.
Under the Italian legal system, only the obligation to repel an attack or to overcome resistance can constitute grounds, with certain conditions, for the use of weapons. Quite in contrast, and anything but #legitimate. seem to have been, as shown in numerous scenes filmed on videos in Genoa, the spraying with gas and the beating with batons of unarmed, peaceful demonstrators marching in duly authorized processions, who were subjected to indiscriminate volleys of deadly tear-gas rockets fired from the sea, from the air, and even on the ground, straight into the crowd.
This is a very difficult moment in history. The model of shrinking liberties is gaining ground. What obtained in relation to prison inmates condemned for crimes is now being extended, for example, to foreigners awaiting their expulsion in detention centres, pointing to the evolution of a specific mentality in that direction. The overall picture is alarming, characterized as it is by a systematic violation of rights and continuous abuses (cf. Lee, Amnesty International). First we see completely peaceful demonstrators being arrested at the borders and there, being brutalized; then we see the use of huge quantities of tear-gas, the beating-up of doctors and media people; a systematic denial of basic rights, culminating in the inconceivable actions in the Diaz school and inside the Bozanetto barracks. All of this accompanied by a constant phenomenon: complaints and charges lodged in very great numbers (cf. Lee, Amnesty International). The official investigations at parliamentary level were totally worthless, while those of the Judiciary seem to be still very far from yielding any satisfactory results, and raise in an acute manner the painful issues of long delays and inefficiency.
Worthy of mention is the fact that just recently (end of April, beginning of May 2002), the Naples Judiciary has ordered some members of the police force to be placed in preventive detention under house arrest, in connection with the brutality inflicted on individuals during the demonstration.
It was Amnesty International which highlighted the brutality during the Naples demonstration. Of course, the Judiciary's intervention and its modus operandi in protecting human rights is of fundamental importance in assessing the real degree of democracy in a country. In connection with the on-going inquiries two major risks were referred to:(cf. Menzione, Lawyer) first, that the prosecution would be broken up into a number of mini-trials whereby separate defendants would receive a crushing sentence, instead of a general, comprehensive trial proceeding being held, which alone would be capable of revealing the truth of what had happened. Second, in connection with the central issue, referred to as the "moral core" of the G8 meeting, i.e. the events in Piazza Alimonda and the shooting of Carlo Giuliani, the risk that the inquiry might classify the case under the heading of "unpremeditated excessive reaction in legitimate self-defence., with the possibility - the worst, as Carlo's friends see it - that the charge would then be linked to attempted homicide. As already stated, the Judiciary's interventions and its activities in protecting human rights are of fundamental importance for maintaining democracy in a country and this is precisely the reason why all the democratic forces must take part in controlling, stimulating and constantly monitoring its functioning.
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