The Culture of Emergency in Italy and Spain: State Antiterrorism

Abstract

After nearly six decades, on May 2, 2018, Euskadi Ta Askatasuna (ETA) announced its dissolution. This announcement brought an end to the last ripples of the wave of political violence in Europe that began in the sixties, which coincided with a cycle of protests during the sixties and seventies. In response to serious political conflict and its drift toward armed violence, some liberal-democratic states established an antiterrorism framework involving legislative and practical transformations at every level of the criminal justice system. From a critical criminology perspective, the concept of a ‘culture of emergency’ was developed in the field of il garantismo in order to analyze the phenomenon. The present article explores the construction of this exceptionalism in two cases: that of Italy (‘revolutionary wave’) and of Spain (ETA). While attempting to identify a common pattern of emergency, this study also identifies the specificities of each conflict.

Keywords

Antiterrorism critical criminology culture of emergency Italy political violence Spain

Introduction

After nearly six decades, on May 2, 2018 Euskadi Ta Askatasuna (ETA) announced its dissolution. This announcement brought an end to the last ripples of the wave of European political violence that began in the sixties, which coincided with a cycle of protests during the sixties and seventies (Tarrow, 1990, 1998). In response to the serious political conflicts and radicalization of the social struggles of the time (with some resulting in armed violence) several liberal democracies in Europe developed a complex antiterrorism response in the last third of the 20th century: a veritable ‘culture of emergency’ (Baratta and Silbernagl, 1983; Bergalli, 1988) that comprised different elements (Muro, 2010). One of the characteristics of this response was resorting to illiberal measures (Bigó et al., 2006), which was apparent both in the transformation of legislation and in the introduction of new practices at various levels of the criminal justice system: the police, the courts, and the prison system. Together, all of these factors resulted in changes in public opinion that justified these actions in the name of the greater good.

In Western Europe, some countries stand out in particular as having developed an emergency culture during the period in question, in which exceptionalism was introduced as an antiterrorism logic. These were the years of the autunno caldo (Hot Autumn), the autonomist movement, and the Brigate Rosse (Red Brigades) in Italy and the radicalism of the German far left with the Rote Armee Fraktion (Red Army Faction) as the most extreme expressions. Additionally, armed organizations such as Euskadi Ta Askatasuna (ETA) and the Irish Republican Army (IRA) were a direct challenge to their respective states in their nationalist / independentist disputes. However, although these conflicts emerged around roughly the same time and place, the resources marshalled in each wave of protest and the bases from which the disputes arose differ: the first two were largely centered on radicalized workers and students in a plural and heterogeneous political body composed of activist communities in a loosely connected network (left-wing extremism: Sönmez, 2019); the latter two were national in nature in a more uniform and homogeneous political body, with territorially cohesive communities (ethnic radicalism: Waldmann, 1997).

This study adopts a comparative approach by examining two cases¹: the way in which the state reacted to conflictive challenges in Italy and in Spain. These two instances were chosen as they are essentially disputes of distinct natures (the former revolving around left-wing extremism, and the second, ethno-territorial radicalism) that produced similar state responses. At the same time, they are both Mediterranean countries, with analogous historical, social, and institutional particularities, a fact which aids in controlling for other possible intervening variables.² The main hypothesis of this analysis notes that, from the seventies in Italy and the eighties in Spain, emergency modes – with parallels both in patterns and in substance – were developed to respond to serious conflicts that led to armed struggle. The secondary hypothesis points out that the type of conflict conditions the way in which the emergency mode impacts the development of the conflict, as well as the state’s ability to end the clash through repressive measures.

This study begins with a theoretical and methodological approach to the problem, based on the concept of the ‘culture of emergency’ developed in the area of il garantismo, which emerged from studies in critical criminology,³ as well as making use of analytical tools devised by the literature of social movements and their impacts. Secondly, as they are the focus of the analysis, the conflictive contexts in Italy and Spain are outlined. Thirdly, the way in which the state’s response was formulated is traced in both cases, which clearly reveals how the culture of emergency developed. Finally, there are some conclusions emphasizing the dialectical relationship between the culture of emergency and the development of conflict, as well as how the mode of engagement informs the state / movement interaction.

Theoretical and Methodological Discussions

The particular concept of emergency employed in this article was introduced by Italian academics and legal professionals at the end of the seventies during the framing of an antiterrorism strategy to address the major social and political conflicts, one of whose significant offshoots was terrorismo rosso (left-wing terrorism), that the country was experiencing. The main contribution of i garantisti was the focus on minimizing the operation of the penal system through decriminalizing and depenalizing strategies, as well as by increasing the level of substantive and procedural safeguards (Baratta, 1982; Ferrajoli, 1989). This also approach applies to other contexts, as in the Spanish case (Andrés Ibáñez, 1978).

The current of legal thought experienced an evolution in the fields of legal-penal sociology (Baratta, 1974)⁴ and critical criminology (Van Swaanigen, 1997, 1999). From the development of culturalist perspectives in sociological theory, the concept of the ‘culture of emergency’ (Bergalli, 1988) arose in the effort to describe and interpret something broader than the implementation of certain illiberal regulations. This culture permeated every level of the criminal justice system, as well as that of political debate and the media. The present article argues that a phenomenon of this kind came into being in Italy during the second half of the seventies and the early eighties, and in Spain from the eighties. Two concepts they introduced are useful in considering the theoretical and methodological model: 1) The centrality of ‘punitive control’, which is linked to the idea of the monopoly of force and the theory of the state, but which is distinct from the notion of ‘social control’ as conceived of in the sociology of control (Melossi, 1992). 2) The concept of the ‘dynamic criminal justice system’, which takes the internal and external dynamics of the different components of the criminal justice system as the object of study: the police, the courts, and the prison system (Bergalli, 1996, 2003).

Recourse to these sorts of measures was initially rationalized by the exceptional circumstances, but over time they became normalized and incorporated into the established order (Moccia, 1997). Brandariz (2007) notes that this antiterrorism framework was manifest in different domains. The first was in the legislative arena: laws that allowed for an expansion in disproportionate punishment, the categorization of crimes in violation of the principle of minimum penal intervention (as with the crime of ‘glorifying’ terrorism), the proliferation of crimes of association (belonging to armed groups or unauthorized associations), and other activities deemed unlawful to a highly subjective degree. The second was procedural: the extension of periods of both solitary confinement and preventive detention, and the legalization of the practice of ‘repentance’. The third was organizational: specialized police forces and special courts were created. The fourth concerned the penitentiary environment: special maximum security prisons, harsher prison regulations (isolation, continuous surveillance, transfers), and a reduction in measures for reintegration into society (furloughs, probation, imprisonment near one’s family).

In Western European democratic states governed by the rule of law that were experiencing high levels of conflict, the culture of emergency facilitated illegal and illegitimate incidents that undermined the very foundations of those democracies. They were ‘illiberal means in a liberal democratic regime’ (Bigó et al., 2006) and may be observed in both cases studied. State crimes, defined as ‘illegal or deviant acts perpetrated by, or with the complicity of, state agencies’ (Green and Ward, 2005: 431) are an element of the first phase of the emergency in both Italy and Spain identified in this work, with their victims falling within as well as outside the state (Kauzlarich et al., 2001). State terrorism developed according to the logic of ‘cloning the enemy’ (Ruggiero, 2003): terror against terror. However, dynamics radicalized to such an extent are difficult to sustain long-term in democratic settings and end up mutating: adapting itself and at the same time forcing the legal framework to adapt it. In both cases, dirty war was replaced by measures in greater accordance with the law and the constitution (at least formally).

The emergency described by the initial researchers sought to respond to the serious waves of conflict from which flowed the phenomenon of ‘revolutionary terrorism’ (Bell, 1978; Crenshaw, 1972), ‘left-wing terrorism’ (Della Porta, 1990), or ‘political terrorism’ (Bonanate, 1979; Wardlaw, 1982). As Crenshaw, outlined (1972: 385): ‘1) Terrorism is part of a revolutionary strategy – a method used by insurgents to seize political power from an existing government. 2) Terrorism is manifested in acts of socially and politically unacceptable violence. 3) There is a consistent pattern of symbolic or representative selection of the victims or objects of acts of terrorism. 4) The revolutionary movement deliberately intends these actions to create a psychological effect on specific groups and thereby to change their political behavior and attitudes’. From this perspective, they understood that political and armed violence are part of an insurgent strategy – that is to say, they are a range of possible actions that are cultivated within the context of wider conflicts. The author’s approach also presupposes that political actors are guided by reason and logic – ‘Terrorism occurs under these conditions when it appears functional to the insurgents’ (1972: 394) – which occludes viewpoints that understand armed conflict as the result of motivations that stem from psychological conditions or individual pathologies. In contrast, this latter approach reveals the importance of the interrelation between conflict and the state’s response.

Studies of social movements are excellent avenues for approaching the analysis of conflictive contexts as well as the phenomenon of political violence (Ruggiero, 2010, 2017), as well as for understanding the mutual effects exchanged between social actions (conflict) and states (repression) (Ruggiero, 2005). More specifically, the analytical tools offered by the literature of ‘unintended’ consequences of social movements in politics and polity should be considered (Giugni et al., 1998, 1999; Giugni, 1995). In this respect, Della Porta (1995) employs the concept of the ‘policing of protest’ to analyze the policies for the management of public order that are adopted to deal with conflict in order to understand the relationship that this establishes between social movements and the state. She asserts that while the ‘policing of protest’ is a key factor in explaining the escalation of violence and radicalization of social movements, it is the radicalization of conflict itself that leads to the emergence of new police practices and cultures. Consequently, a dialectical relationship forms between protestors and the police. She and her team examine armed radicalization in detail (Della Porta and Reiter, 1998, 2003).

Thus, from the perspective of political processes (Jenkins and Schock, 1992) the present article analyzes conflict-state interactions to trace the construction and evolution of the culture of emergency in Italy and Spain. The case studies focus on two waves of protest and the resulting reactions of the respective states: the Italian ‘ondata rivoluzionaria’ (Balestrini and Moroni, 1997) and the Basque nationalist struggle. No direct comparison of the two cases is made despite their occupying similar moments in history, but a diachronic examination of both waves of protest and the reaction of the states in which they flowed is performed (Collier, 1991). These two analyses are then compared to reveal key insights into the way in which a certain kind of state reaction has operated in the last third of the twentieth century in Western Europe.

Two Conflictive Contexts

Italy

After the ratification of the Constitution of 1948, Italy entered a new stage of democratic normalization, economic expansion, and building of the welfare state (il miracolo economico, 1951-63) under the leadership of the Christian Democrats (Democrazia Cristiana or DC) (Silveira, 1998). Although Italy had the best-supported Communist party in Europe, it never managed to govern. Rapid industrialization, urbanization, and internal migrations together spawned new imbalances and inequalities. With the onset of an economic contraction at the beginning of the sixties, the DC agreed to form a center-left coalition (1963-1974) with the Socialists. During this period, social conflict was on the rise and there were two major proponets: workers (whose struggle culminated in the autunno caldo of 1969) and students (who, unlike other youth movements of the time, were significantly Marxist-Leninist), who at times converged.

Starting in the sixties, demonstrations and making demands were no longer a monopoly of the labor-union and political left, and it was in these circumstances that Workers’ Power (Potere Operaio or PO, 1967) and Continuous Struggle (Lotta Continua or LC, 1969) were founded. The range of activities was extended (including highly spontaneous acts, such as the political strike – or ‘sciopero selvaggio’) and new organizational forms appeared (committees, assemblies, etc.). Antonio Negri (1981) describes the emergence of a social category, which he calls operaio massa, of workers who had migrated from the south with little to no skills and worked on assembly lines, who had no tradition of labor-union participation, but were keen to protest against their living and working conditions. The elevated level of conflict during the second half of the decade provoked a harsh response from the state: between October 1966 and June 1968, 10,000 people were convicted of or awaiting convictions for demonstrating. During this period, there were also deaths and injuries during demonstrations (Balestrini and Moroni, 1997). The temptation to pursue a ‘strategy of tension’⁵ to deal with conflict arose from the discourse of political and police representatives, as well as a certain tolerance for far-right violence (Guagliardo, 2002). It is against this backdrop that the stragi di Stato ⁶ apparent in the bombings of the Piazza Fontana (1969), Treno del Sole at Gioia Tauro (1970), Piazza Loggia (1974), and the Italicus Express (1974), among others, must be considered.

During this time, major armed organizations were established (Ruggiero, 2005). The pioneers were the October 22 Group (Gruppo XXII Ottobre) and Partisan Action Groups (Gruppi di Azione Partigiana or GAP), who were inspired by Latin American guerrillas ( Progetto Memoria, 1994). In 1970 the Brigate Rosse (BR) were set up by activists with Catholic and working class backgrounds along with Marxist-Leninist ideology. After an initial stage of activity involving armed propaganda and sabotage, they pivoted toward violence against persons as part of what they called ‘attacking the heart of the state’. The Armed Proletarian Cells (Nuclei Armati Proletari or NAP) formed in 1974 from a large number of former socio-political prisoners with antirepressive and ‘justicialist’ objectives. Lastly, in 1974 the Prima Linea (PL) brought together former adherents of the LO and PO with a more movementist outlook than the BR. Apart from these groups, there were other subjectivities operating during the period through the logic of armed violence.

In the mid-seventies, a new phase of ‘national solidarity’ coalitions (1974-78) began, in part due to the electoral gains of the PCI (Partito Comunista Italiano). These years saw a DC minority government, first through the abstention and then with the parliamentary support of the center-left and communist parties, which found it increasingly difficult to govern. The era’s financial crisis had both internal and external causes. Conflict flooded from both the classrooms and factory floors to wash over different areas of society: neighborhood battles and autoriduzioni (no payment of electricity, water, rent), occupations of schools and universities that were trying to introduce new teaching methods, prison riots and escapes, antipsychiatric groups, antirepressive organizations, feminist militancy and sexual liberation groups, counter-information and free-radio networks (Capelli & Saviotti, 1977), and so on. In this context of widespread conflict, the Autonomia Operaia (1976) was formed as an umbrella organization from the convergence of different elements of the far left: some were more Marxist-Leninist, others more libertarian or councilist (Castellano, 1980). The Movimento del ‘77 increased the number of autonomist activists exponentially, who sometimes came into conflict with those in the communist sphere (the PCI and CGIL or Confederazione Generale Italiana del Lavoro).

On March 16, 1978, a confidence vote in the new ‘national unity’ government was to have taken place. Instead, the BR kidnapped President Aldo Moro, who was assassinated 54 days later. Antiterrorism legislation and criminal laws of exception were ushered in along with the new laws and development of combatant judicial practices (Ferrajoli, 1983). The classic example is the 7 aprile 1979 trial. Ruggiero (1994:56) points out that between the seventies and mid-eighties, 20,000 people were indicted, with a record 4,000 imprisoned. This marked the end of movementist activity for worker autonomy in Italy. The assassination halted the leftward drift of governmental coalitions, with a new pentapartito (coalition government of five political parties) period dawning in 1980. The rise to power of the Socialist Bettino Craxi in 1983 did not result in greater collaboration with the PCI, but rather the contrary. The ‘counter-revolution’ (Virno, 2003) had begun.

Spain

While this major conflict was upending Italy, Spain was still under the sway of Franco’s dictatorship. ETA was established in 1959 from a schism with the Basque Nationalist Party (Partido Nacionalista Vasco or PNV), who were nationalist Christian Democrats. The ideological frameworks of these youth now came not from Sabino Arana, the founder of the PNV, but rather from the discourse of national liberation movements. There was a certain shared sense in the diverse experiences of ‘revolutionary terrorism’ (Crenshaw, 1972), conflicts involving either left-wing extremism or ethno-territorial radicalism: it drove the left-wing youth who were deeply committed to the political and social reality of the moment. ETA’s first act came in 1961 with a Molotov cocktail attack on two police officers. In the V Assemblea (Fifth General Meeting of ETA members, 1966-1967), the organization committed definitively to embracing both nationalism and socialism in its ideology. Their first killing was that of the Civil Guard officer José Pardines, who was on duty at a police checkpoint, in 1968; in the same year Melitón Manzanas, chief of the secret police (Brigada Político-Social) and notable torturer, was assassinated. During the Franco era, armed activity was positioned as being part of the fight against the dictatorship and engendered considerable sympathy among the anti-Franco opposition (on the rise and development of ETA, see Letamendia, 1994; Muro, 2008; Sullivan, 1988; Wieviorka, 1988).

Franco died in 1975. Although the Spanish transition to democracy has been held up as a model, the truth is that it was not free from tensions or violence. The massacres of workers in Vitoria (1976) and of lawyers in Atocha, Madrid (1977), were the events that most affected the public, with the first involving violence by the police and the second that of the far right. The new Constitution was ratified in 1978 and with the advent of democracy, the conditions changed, but ETA continued. It was mainly after the VII Assemblea (Seventh General Meeting of ETA members, 1976) that the number of victims increased substantially. The attacks became notably regular and ETA’s violence chronic. The highest number of killings, of 94 people in total, came in 1980 alone. A significant portion of Basque nationalism did not accept the constitutional and statutory path: the Abertzale (Basque nationalist) left (Ibarra, 1989). It was built as a political family (Ibarra, 2003): there was an armed member (ETA), an electoral member (Herri Batasuna or HB), a youth member (Harrai), and so on. Within it, diverse spirits and sensibilities coexisted and contended.

In 1982, the Socialist Party (Partido Socialista Obrero Español or PSOE) won an absolute majority in the Congress of Deputies, the lower house of parliament. This heralded a period of stability in both the executive and legislative branches. Democracy became well established, with Spain entering the European community, undergoing a process of industrial restructuring and economic transformation, and developing the welfare state. This was also the era when the model of territorial organization was defined. With the fight against terrorism an ongoing concern, during Felipe González’s first legislative session the Spanish government introduced the Plana Zona Especial Norte (ZEN) – whose aim was not so much to prosecute crimes classified in the criminal code as to punish those in the same social environs as armed organizations – and so the Antiterrorist Liberation Groups (Grupos Antiterroristas de Liberación or GAL) were formed (Batista, 1999). The GAL were a paramilitary group that carried out state terrorism during the eighties.

In the second half of the eighties, ETA again intensified its attacks. The car bombing in Madrid (1985), its first, as well as the Hipercor supermarket car bomb in Barcelona (1987), in which 21 people died, stand out in particular. Despite ETA having established a community and electoral base, the number of people critical of armed struggle and the existence of ETA proliferated. It was under these conditions that the Ajuria Enea Agreement was signed on January 12, 1988, by all political parties except Herri Batasuna. After the failure of the negotiations at the Algiers peace talks between ETA and the Spanish government in 1989, the pressure on ETA began to mount. Comprehensive antiterrorism legislation covering extraditions, deportations, and a penitentiary dispersion policy was passed. ETA’s armed activity increased in response, reaching one last peak of 45 killings in 1991, in the cycle of action-reaction.

In the mid-nineties, several antiterrorism social movements grew from various political orientations and citizen initiatives that were in favor of a negotiated end to the conflict (Funes, 1998). On the Abertzale left, there were also an increasing number of voices in favor of abandoning the armed strategy. However, despite these changing conditions, or perhaps because of them, ETA made a strategic shift: the Oldartzen Report (1994) prioritized the ‘socialization of suffering’. With this shift, even hard-liners within political parties, primarily those in the People’s Party (Partido Popular or PP) and PSOE (De la Calle and Sánchez-Cuenca, 2004), became ETA targets. The killing of town councilor Miguel Angel Blanco (1997) shocked civil society (Mees, 2003). Nevertheless, there was a desire in Basque society to leave the conflict behind: the Elkarri Peace Conference was held in 1995 and a year later, the Northern Ireland Forum. The leaders and members of HB played a prominent role in organizing this conference. On September 12, 1998, the Lizarra-Garazi Declaration was signed by Basque nationalist and left-wing authorities in which the principal accord was to facilitate the path to a peace process and democratic agreement. Four days later, ETA announced a unilateral and indefinite ceasefire that would last for 14 months. Subsequently, the Abertzale left obtained one of their strongest results in the 1999 elections.

On March 11, 2003, a new actor intervened in Spain: A jihadist cell attacked the city of Madrid, killing 200 and injuring hundreds more. Three days later, the sitting PP government lost the general election, contrary to all expectations. Voters punished the party at the ballot box for their lies and mismanagement in the aftermath of the attack. A new government took power, led by the Socialist José Luis Rodríguez Zapatero, with a clear reliance on left-wing and peripheral nationalist parties in parliament. In this new and unexpected situation, on March 22, 2006, ETA announced a permanent ceasefire, in effect saying that it was time to begin negotiating. Three months later Zapatero reported that a dialogue had been opened with ETA. During the talks, two important challenges emerged. On the one hand, the PP rallied considerable institutional and social opposition to the progress of the negotiations. On the other, the punitive pressure on the ‘environs’ (supporters and groups of the Abertzale left who did not participate in armed struggle), particularly by the judiciary but also by the police, created tensions and rifts within the Abertzale left and ETA. On December 30, 2006, ETA broke the ceasefire, putting an end to the last round of negotiations (Ubasart-González, 2019). From this moment on, ETA’s attempts to abandon armed action could only be achieved unilaterally (Zabala and Saratxo, 2015).

The State’s Response: The Culture of Emergency

Both in the Italian and in the Spanish case, and despite having evolved from diverse historical situations, organizational realities, and demands, emergency modes (or emergency cultures) developed that were similar in both substance (changes in legislation; in police, judicial, and penitentiary practice; and in public opinion) and pattern: they both passed through three phases in their creation, with similar elements in each phase. In the first phase, that of what might be called illegal emergency, state practices for dealing with conflict that lay outside the law may be detected: in Italy, police overreach and inaction toward the far right were evident; in Spain, one might add the creation of the GAL. In a democratic state it is very difficult to engage in certain activities outside or on the margins of the law. The media, social organizations, and the political opposition, as well as members of the judiciary, played an important role in moving to the next phase. In the second, of legal emergency in which the central actors were the police and prisons, practices that were previously employed only in emergencies were ‘legalized’, which also resulted in legislative changes. When armed organizations are at their weakest, it is tempting to try to accelerate their demise by extending punishment to those around them. State authorities, in this case parts of the judiciary, expanded judicial activism in defense of a supposed greater good. In the third phase, of legal emergency in which the judiciary played a leading role, there were also regulation changes, though at this juncture judges were the driving force behind the emergency.

In addition to this correlation of phases, the interaction between the respective conflicts and states in both conflictive contexts should also be highlighted. The range of specific activity undertaken in each wave of demonstrations caused the state to respond with its own particular kind of activity; as well as the various repressive policies adopted, they made the resisting actors adapt to the context and the repertory of action. Balbus’s classic work (1973) opened up a research area that explores this kind of logic in conflict escalation. Regarding the development of Spanish antiterrorism and the effects of its measures, Argomaniz and Vidal-Diez’s (2015) findings indicate that severe-state responses may exacerbate political violence, as well as foster the setting of an analytical framework that increases support among the public. From a similar perspective, Ruggiero affirms (2005: 304): ‘I have suggested that the type and degree of violence displayed by the BR is to be understood against the interactive framework linking that violence with the violence performed by the Italian state’. Although the variety of acts differed, in both cases a downward spiral of action and reaction that led to radicalization and the escalation of conflict may be noted (Figure 1).

Figure 1.

Interrelationship between phases of demonstrations and construction of emergency. Source: Author’s own work.

Illegal Emergency (Italy: 1967-74; Spain: 1977-87)

There were significant repressive elements in the police forces in both countries when compared to other European police.⁷ This fact may be traced to historical roots. In Italy, the government’s entrenchment after the Second World War (when the communists and socialists were excluded in 1947) was accomplished by dealing with the most radical elements of the anti-fascist opposition, who wanted to radicalize the system, and with the southern farmers who were fighting for agrarian reform. A spike in conflict occurred with worker protests from 1960-62, climaxing with the Piazza Statuto riot in Turin. Subsequently, student and worker unrest began to increase during the second half of the sixties.⁸ The police forces, some of them paramilitary, were extremely active throughout the period in tackling the ‘enemy within’ and underwent no structural reforms during the Trente Glorieuses (the ‘Glorious 30 [Years]’ of post-war economic growth and prosperity). Spain transitioned from a dictatorship to a democracy by means of a pact among the elites, despite being overwhelmed by the social protests that took place during the years after Franco’s death in 1975 (Alonso and Muro, 2011). There was a general continuity in institutions and individuals in power, which was also the case in the police forces until well into the democratic years, when during the first and especially the second legislative session under Felipe González (1982-89) (Jaime-Jiménez, 1996) structural reforms were pushed through.

Another factor to consider is the geopolitical situation, as it facilitated the rise of exceptional dynamics. The division of the world into East-West affected the political development of both countries studied. The Yalta Conference (1945) and the global split into these two blocs effectively sentenced Spain to 40 years of Francoism: better an anticommunist dictatorship than a democracy in which the left played a major role, or so the thinking went. During this era, policy was influenced to a certain degree by corresponding developments on the international stage. Accordingly, during the spring of 1947, socialists and communists were expelled through the so-called conventio ad excludendum (exclusion agreement) by the government of ‘national unity’. Thus it was that the Communist Party of Italy (PCI), the largest in the western bloc, was never allowed to participate in government. What is more, there were international interventions to prevent it from happening.

In the first phase of illegal emergency, several strategies outside the law were adopted to deal with left-wing and independentist conflicts: police overreach, inaction toward the far right, and the advent of state terrorism. State crimes were committed within the democratic framework of Western Europe nations.

Italy – From 1967-74, two types of violence proceeding from the widening of worker and student social conflict (demonstrations – some involving riots – and labor and political strikes were essentially the scope of their activity) proliferated: police violence⁹ and far-right violence.¹⁰ The latter was of two types: the violence perpetrated by far-right groups mainly against left-wing activists and the various attacks carried out by the far right – which may have had links to members of the civilian and military secret services, both Italian and international (still under discussion) – as a consequence of the deliberate strategy of tension: in effect, the stragi di Stato (Ganser, 2006). The harsh approach to maintaining order created tension and enabled the escalation of violence (Figure 2). At the same time, students and workers were intensifying the violence of their activities while taking what they called self-defense measures. Protective equipment, and even weapons, began to proliferate among the most radicalized elements of the movement. Mass demonstrations and workplace strikes were progressively replaced by smaller but more radical protests.

Figure 2.

Italy: deaths due to political violence by cause (1969-80). Source: Galleni (1981).

Spain – The decade between 1977-1987 was similarly bloody. Police violence resulted in 43 deaths between 1976, the year following Franco’s passing, and 1981 (Adell, 1989). The armed activity of the far right also claimed a significant number of victims: 210 during the same period (Piñuel, 1986). Between 1977-82, far-right groups such as the Triple A, Basque Spanish Battalion (Batallón Vasco Español or BVE), Antimarxist Commandos (Comandos Antimarxistas), as well as the Spanish Armed (Grupos Armados Españoles) and Anti-ETA-Terrorism (Antiterrorismo ETA) Groups came to life. What many of these – nostalgic for Francoism and linked with some segments of state institutions – wanted was to destabilize the transition to democracy to prevent changing the political regime (Figure 3). With the establishment of democracy between 1982-1987, former manifestations declined but a new element emerged: the dirty war of the state through the GAL, its mirror organization (Guittet, 2006). The GAL was set up illegally by state officials, financed by specially allocated funds, and organized by the Interior Ministry, as became apparent in later judicial convictions. The kidnapping and subsequent murders of Joxe Antonio Lasa and José Ignacio Zabala in October 1983 and the abduction of Segundo Marey in 1984 were the beginnings of GAL activity. It was active until 1987 and operated primarily in the French Basque Country. It attacked ETA activists and sympathizers, but also people unrelated to the organization, committing 23 murders and numerous kidnappings, torture, and financial crimes.

Figure 3.

Spain: deaths due to political violence by cause (1972-82). Source: Piñuel (1986).

Both – One difference between these two cases is that during the first phase of the development of the emergency culture, ETA was already operating as an armed organization in Spain, whereas there was still no armed left-wing violence in Italy. However, not until the period 1977-79 did the violence stemming from Basque independence claim more victims than that of the Terrorismo Negro in Italy (89 deaths from 1977-79 and 200 as of 1982).¹¹ Another contrast is that the political regimes were notably different. Italy was already an established democracy and while Spain, on the other hand, was a regime in transition, there were still remarkably strong continuities with the dictatorial era. Nevertheless, the state response in this first phase was very similar in both situations.

In this respect, it may be asserted that there was an escalation in the cycle of action-reaction, in the first case stemming from the radicalization of social movements and drift toward armed violence, and in the second from armed violence becoming chronic in the transition to democracy. The most radicalized sectors saw their aspirations to intensify the degree of violence employed by their movements (Italy) legitimized, while in general civil society’s tolerance levels for armed activity (Spain) also grew. In the first instance, students and workers adapted to the harsher and higher-risk rules of engagement governing their conflicts in their universities, neighborhoods, and factories. In the second, the acceptance by part of society of the activities of an armed organization that arose during democracy continued. The overall level of violence during the transition years in Spain, as well as the uncertainty surrounding the change in governance, helped to bolster justification for ETA’s existence and actions among significant portions not just of Basque but of Spanish society.

Legal Emergency with the Police Forces as Central (Italy: 1974-78; Spain: 1988-1995) (and the Penitentiary System in Support)

After the initial phase of an ‘informal’ response to disruptive opposition, a comprehensive response to both non-armed and armed resistance was formulated. The most noteworthy aspect of this phase is the establishing of new legislative frameworks. The police forces became central as they were conferred greater powers. In Italy, the police were granted wider latitude in maintaining order (legalizing previous courses of action taken in demonstrations and strikes) and prisons (clearing prison law of progressive measures). Political conflict continued to increase throughout the country in different settings. A hard line was adopted in legislation and was legitimized in the discourse of government and political representatives. In Spain, an antiterrorist framework that increased the purview of law enforcement, with less judicial oversight in the arrest and detention of those accused of terrorism, was formulated. The police also began to play a greater role during the investigation of cases. Antiterrorism exceptionality would eventually divide criminal law into two streams: the ordinary and the exceptional. By this time, the legal emergency had been established. It was legal in a dual sense: there was a change in policy and the acts carried out were both public and within the law (without entering into the argument of whether these policies contained the necessary safeguards).

Italy – Measures aimed at allowing the police forces a free hand were passed. Demonstrations, civil unrest, and political strikes were managed by the police forces and these required a certain latitude for discretionary action. From 1974-78 the most prominent feature of the emergency was the ‘criminal code of the police’ (Ferrajoli, 1989): the regulations focused on issues of public order and not so much on clandestine violence or organized crime. In this regard, the ‘Bartolomei Law’ (497/74) reintroducing police interrogation, along with the Legge Reale (152/75) – with measures increasing police powers of arrest, widening search powers without a warrant, and sanctioning officers to use firearms more freely to prevent possible serious crimes, etc. – stand out in particular. Law 533/77 and Executive Order 59 (1978) were along the same lines.

With this in mind, Ferrajoli (1989) maintains that there were in fact three penal subsystems: the regular one and one each for the police and for the emergency culture. The first of these had the highest level of safeguards, which diminished as one moved to the second and the third. Thus, in the period in question, ‘There was a throwing out of almost all criminal and procedural safeguards and a growing administrativization of criminal law, which evinced the trend of mutating from a strictly retributive system that aimed to prevent future offenses based solely on the punishment of past and already tried crimes, to a primarily preventive system that aimed to confront those who were deemed suspicious for merely having committed past crimes or who presented the mere risk of committing future crimes’ (1989: 725-726).

These years also witnessed the introduction of measures that essentially reversed the penitentiary reforms of 1975. Executive Order 99 (later passed as Law 220/74) extended preventive detention sentences; the ministerial executive order of May 4, 1977, granted the Carabinieri (Italian national police) power to conduct surveillance outside of prisons; Law 374/77 allowed police to fire on the arrested to prevent their escape; and Law 450/77 restricted furloughs, as well as clearing the way for the creation of special prisons. In these conditions, in addition to the emotional impact of the stragi di Stato on the general public and on activists, the first armed organizations began to form. While their first acts were spontaneous and occasional, they would eventually develop to be more organized and regular. The ‘us vs them’ dichotomy became increasingly evident in the relationship between the state and protest movements. Institutionally, the ruling party (DC) held sway, though the main opposition party (PCI) grew in influence over time.

Spain – Beginning in 1988, comprehensive antiterrorism measures were passed that normalized and unified previously implemented regulations, which granted the police forces broad powers to investigate even before receiving permission from a judge. The 1978 Constitution laid the foundations for the future development of special antiterrorism law: Article 13.3 declared that terrorism offenses were not political crimes; and Article 55.2 opened the door to restricting the rights (against preventive detention and for the inviolability of the home and of communications) of persons linked with armed or terrorist groups (López Garrido, 1987). Moreover, the antiterrorism legislative framework was formally implemented with Organic Laws 3/1988 and 4/1988 on the Reform of the Criminal Code and the Code of Criminal Prosecution. These two regulatory changes established twin tracks in the law: one for ordinary crimes and the other for those carried out by members of armed organizations (subsequently incorporated into the Criminal Code of 1995, Articles 571-580). The most important distinctions concerned the status of the ‘incomunicado’ and the possibility of intercepting the communications of a ‘suspect’ without a warrant.

The status of the incommunicado granted the police wide latitude, allowing the period of detention under police custody to be extended to 5 days. Numerous international organizations and human rights associations denounced the use of solitary confinement because it was considered to be excessive and an interval during which there was an elevated risk of torture and mistreatment (Ubasart-González, 2013). Changes were also made at this time to the penitentiary policies that, from 1990, had established the policy of penitentiary dispersion as an antiterrorism measure. This involved the deliberate distribution of ETA prisoners throughout the Spanish state, allegedly for security reasons. Several other practices of the isolation regime were also widely applied to these prisoners.

Recourse to exceptional criminal law left considerable scope for discretion and blind spots in the system, making it possible for violations of fundamental rights to be committed. Additionally, the uncritical justification of police and penitentiary practices in pursuit of a higher objective, in this case the fight against terrorism, allowed numerous errors and injustices to occur. These dynamics, combined with the exercise of state terrorism during the eighties, resulted in a sort of discrediting of the state that affected its legitimacy and, consequently, its effectiveness. This meant that ETA continued to find a degree of acceptance, in part, due to state abuses. In the world of the Basque nationalist left, it remained difficult to open a debate on armed struggle due to the existence of institutional violence and punitive excesses.

Both – In Italy during the second phase, conventional collective action was coupled with a documented range of violent activity running from riots to sabotage to armed acts against persons. The first victim on the far left was killed in 1972, although in these initial years armed activity against persons developed spontaneously and only in response to fascist attacks or police violence. However, beginning in 1977-78, armed violence became central to the methods of activity on the far left. From that time, armed organizations gained importance and increased their activity. In Spain, the failure of the Algiers peace talks (1989) led to an intensification in ETA activity, with the number of victims increasing until reaching its second peak in 1991. As previously mentioned, during this period the Abertzale left and its allies were also taking conventional and electoral action.

Legal Emergency with the Judiciary as Central (Italy: 1978-85; Spain: 1996-2011)

Italy – The assassination of Aldo Moro transformed the dynamics of the Italian state. It was not until the end of 1979 that one could speak of antiterrorism legislation proper and a ‘criminal code of the politics of exception’ (Ferrajoli, 1989). Around this time, a new regulatory framework was approved and new legal practices were adopted. Executive Order 59/1978 (later passed as Law 191/1978) explicitly defined ‘terrorist ends’ and allowed for the reduction of sentences in the event of remorse or cooperation with the police. The Cossiga Decree (afterward passed into law on December 15, 1980) set forth an extensive classification of crimes of association to intensify the systematic application of preventive detention; extended preventive detention sentences (to up to 10 years), with ‘terrorist ends’ being a particularly aggravating circumstance; allowed for interrogations outside the presence of a lawyer; and issued regulations on connecting and exchanging information between judicial offices. The Legge dei Pentiti (Law 304/1982) provided for reductions in punishment and leniency in the pre-trial phase for confessions or collaboration. Issues relating to ‘dissociation’ and ‘collaboration’ were also covered.

These measures are essential to understanding the type of conflict that Italy faced against left-wing extremism, whose roots lay less in common grievances than in ethno-territorial radicalism. For this reason, methods involving confession and collaboration, in which one betrayed one’s professed community, were widely used for and decisive in breaking up student and worker subversion. The fragmentation of the movement, the lack of communal spirit, and its loose organizational structure facilitated the search for individual responses to repression. Punishment was meted out to members of armed organizations, but also to thousands of activists throughout the country. Accordingly, the judiciary became central in this extension of repression.

In parallel to these legislative transformations, the culture of judges and the judiciary also mutated. The height of the judicial emergency was the mass trials of the late seventies. The best known is the ‘7 aprile’ case (1979), in which members of the Autonomia Operaia were indicted according to the so-called ‘Calogero Theorem’, which established the figure of the judge-as-combatant.¹² Ferrajoli (1989: 858) emphasizes three structural aspects: the distortion of every stage of the criminal proceedings (crime, trial, and punishment); the enormous scale of the mass trials and legal abuses; and the general implications of specific actions by the police. During this period, the boundaries of repression extended to include members of far-left organizations and social movements. It has also been described as an illiberal shift (Bigó et al., 2006) or as pre-modern law (Ruggiero, 1994).

Spain – José Maria Aznar’s People’s Party became the ruling party in 1996. From the second legislative session in particular there was a toughening of the antiterrorism legislation (Catalina and Manso, 2014). Organic Law 7/2000 regulated the criminal responsibility of minors and allowed youths who participated in urban vandalism (kale borroka) to be indicted from the age of 14. Organic Law 5/2003 created the Prison Supervision Court of the National Court (Audiència Nacional). Organic Law 7/2003 included reform measures for the full and effective fulfillment of custodial sentences. Organic Law 15/2003 extended the five-day incommunicado period while under police custody by eight additional days after prison admission. Lastly, Law 6/2002 or the Law of Political Parties was an ad hoc reform designed to outlaw the parties of the Abertzale left (Arzuaga, 2007).

Concurrently in this phase, the central role in the emergency also swung from the police forces to the judiciary, which went hand in hand with the extension of punishment to people not directly involved in armed action. This was an application of the phenomenon of the ‘judge-as-combatant’ previously mentioned, as was (among others) the so-called ‘18/98 Macro-Indictment’ against members of the Abertzale left and other social organizations that had operated openly and legally until then. The concept of ‘terrorist’ had been stretched like chewing gum to include persons merely present in the ‘environs’. Acts considered to be ‘glorifying’ terrorism were now also subject to punishment (Terwindt, 2014).

Paradoxically, this extension of punishment beyond the members of or collaborators with ETA made it more difficult to close the book on armed struggle. In contrast to the Italian case, in Spain continued repression caused the community to remain united: regional and even blood ties were stronger than ever under these conditions. The growing criticism of the legitimacy of armed struggle within the circles of the Abertzale left was tempered by state abuses, which caused them to close ranks. Compounding the difficulty was the fact that, despite two opportunities opening up for a peace process – in many ways mirroring what happened in Northern Ireland – judicial activism, as well as a part of the police forces, was one of the major contributors to its failure. Thus, neither the conservative José Maria Aznar nor the socialist José Luís Rodríguez Zapatero was able to achieve a negotiated closure to the conflict.

Both – The Italian ‘revolutionary wave’ was reduced, in its last days, to the activity of clandestine armed organizations. Conventional and non-violent disruptive action all but disappeared. While the escalation of action-reaction led to the radicalization of the movement, it also cut short its future. By contrast, conventional and electoral action continued in parallel to armed action in Spain (Muro, 2010). The state of emergency not only failed to end armed violence, it instead prolonged it and made it more difficult to arrive at a negotiated conflict resolution process (Conversi, 2006). The last major attempt to make it possible, the negotiations during the Zapatero era, came to nothing partly due to the continued escalation of repression (Ubasart-González, 2019).

Conclusions: Similar Emergency Modes but Different Impacts

As highlighted in the main hypothesis, from the seventies in Italy and the eighties in Spain emergency modes that were similar in both pattern and substance were developed to respond to serious conflicts that resulted in armed struggle. The state’s response over the last third of the twentieth century in Europe in the face of serious conflict involving armed violence is encapsulated by what has been called the culture of emergency from the perspective of critical criminology. This entailed an illiberal shift in standards and practices in the fight against terrorism in terms of substance (legislative amendments, changes in police, judicial and penitentiary practices, and transformations in public opinion) and follows a similar pattern in both the Italian and Spanish cases analyzed. The same sequence of phases and the same leading actor driving the exceptionalism may be observed in each. Thus, an initial phase of illegal emergency is followed by one of legal emergency with the police forces at its core, before passing on to the final phase of legal emergency in which the judiciary assumes the central role. In Italy, the development of conflict and the state response occurred between the years 1967-85, whereas in Spain it lasted from 1977-2011, from the return to democracy to the announcement of the definitive end of ETA activity. However, certain exceptional practices and legislation remained when the exceptionalism that justified them disappeared.

The secondary hypothesis emphasizes that the type of conflict may determine the manner in which the emergency mode impacts the development of the conflict, as well as the state’s ability to end the dispute through repression, as may be seen in both the Italian and the Spanish cases. While the emergency framework was the same in both cases, the two conflicts were founded on different grounds for grievance: the former on major elements of left-wing extremism and the second on ethno-territorial radicalism. In Italy, the protests stemmed from the struggles of workers and students; in Spain, they sprang from the territorial debate and demands for Basque independence. This diversity in the respective demands and in the forms of conflict would introduce particularities to the type of emergency culture that developed in both countries, as well as to the consequences that followed. Thus it may be stated that the mode of engagement in both cases considered set the conditions for the interaction between conflict and repression, informing the construction of the emergency itself.

The conflict in Spanish was one of ethno-territorial radicalism in which the community played a significant role and where there was greater freedom of movement relative to repressive processes. The resources drawn from the community and ties (personal and family) provide a greater degree of freedom in resisting external factors, among which the turn toward repression is extremely important; they also encourage the existence of a plurality of actors and range of actions within the same area. Consistent with this argument, the Basque conflict maintained the development, along with armed action, of conventional collective action as well as electoral engagement throughout the period under study.¹³ In addition, a decline in armed action did not mean a diminishing of the conflict. On the contrary, in the Italian case the development of engagement was even more conditioned by the development of repressive strategies. Conventional and non-violent disruptive action were replaced by varying degrees of violent action due in part to the state’s repressive actions. The end of armed action due to the action of the state brought an end to the wave of protest. No other scope for action remained and the parts of the movement not involved in the armed struggle simply went home.

Additionally, it is worth highlighting that states such as Spain that experience territory-based conflicts seem to fall further into the expansion of emergency. In the cases under study, several measures implemented in the last phases of the emergency in Spain were not present in Italy, where armed violence arose as an extreme consequence of differences in ideology. The greater degree of freedom that ethno-territorial conflicts may afford means that they last longer and renders certain repressive measures less effective. For example, some measures that were adopted to defuse particular conflicts in Italy (the pentiti or dissociati) were of no use in the Basque conflict; community ties hindered the success of these measures. Consequently, the state resorted to extending punishment beyond the armed organization itself to actually cover the entire social fabric involved in the conflict. Italy experienced these kinds of measures through the construction of macro-indictments, as in the ‘7 aprile’ case, but in Spain these measures went even further: outlawing political parties, closing media organizations, and criminalizing social organizations and companies.

In conclusion, in the Italian case the invoking of emergency might have been the catalyst for the emergence of violent armed action in an escalating cycle of action-reaction. In the Basque case, the issue is more complex. The greater freedom of movement, as well as the invoking of emergency after the armed struggle had already begun – the emergency strategies were developed during the democratic period, but ETA was founded before – mean that the Spanish emergency can only be interpreted as one factor that prolonged the armed violence. Nevertheless, this could have impeded the development of dialogue strategies and the progress of negotiating processes that might have ended the armed violence earlier, not to mention preventing the interested parties from settling the dispute in a more satisfactory way once ETA had been dissolved.

This article’s tracing of the culture of the emergency that evolved in various countries in Europe from the seventies is of historical interest as it allows us to assess the management of serious conflicts during the last quarter of the twentieth century. However, this work may also be applied to the analysis of current events. As in other areas of public policy, there is significant path dependency in state responses to challenges to its authority or integrity. The first example is the reason why ‘special’ or emergency legislation is essentially permanent, as once it has been passed into law it becomes normalized. In Spain for example, although the state’s conflict with ETA has ended, no measure enacted during that period has been repealed or modified. A second is that the logic of cooperation between public actors and institutions is formulated over time through accumulated experiences.

It would be difficult to find parallels between the state of illegal emergency (which included instances of state terrorism) outlined above and conditions today. However, several of the dynamics that emerged in the third phase of Legal Emergency II already discussed, in which the judiciary becomes central, have recently been repeated. For instance, the management of the Catalan independence process cannot be understood without considering what occurred in the last stage of the Spanish state’s fight against ETA. In October 2017, after the Catalan independence referendum was held and independence formally declared (Ubasart-González, 2021), in contrast to the alleged inaction of political leaders to this challenge to the Spanish state’s authority and integrity, the judiciary took charge of the dispute and again a sort of judicial activism awoke. The high courts understood that they had to stand up as partisans in defense of a greater good that affected the state. This use of the law for political ends, to protect a supposed general interest, harks back to the past (Ubasart-González, 2020).

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Gemma Ubasart-González

Notes

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