Vol. 3 No. 6 (June, 1993) pp. 51-53
TERRORISM IN EUROPE: AN INTERNATIONAL COMPARATIVE LEGAL ANALYSIS
by Antonio Vercher. Oxford: Oxford University Press, 1992. 412
pp. Cloth $89.00.
Reviewed by Priscilla H. Machado, Department of Political
Science, The United States Naval Academy.
The overarching goal of Antonio Vercher's work, TERRORISM IN
EUROPE: AN INTERNATIONAL COMPARATIVE LEGAL ANALYSIS is world
peace. The book is dedicated to "the future generations in
the name of peace." From this passionate and lofty position,
Vercher presents a scholarly interpretation of the legal systems
of a number of European countries to see whether a unified
approach to combat terrorism is possible. The purpose of the book
is to develop "a more effective, coherent and fair policy on
counter- terrorism in Europe." Specifically, this means a
unified system which fights terrorism yet is mindful of human
rights. Vercher argues that the EEC could provide the framework
to coordinate the fight against terrorism.
Vercher describes, explains, and analyzes the legal systems of
Great Britain, Germany, Italy, France and Spain. He presents the
similarities and differences between the common law system of the
English and the civil law continental systems to ascertain if any
common policies can be derived.
Vercher argues that some internal mechanisms used by countries to
combat terrorism are similar enough to justify a consolidated
policy. This, in addition to the already present legal structure
of the EEC, could be the basis for a unified European system to
counter terrorism. This unified state response to terrorism would
be an important contribution toward world peace.
Up until now the EEC has not developed a unified system because,
Vercher argues, it is not politically expedient and bilateral
cooperation gives states more freedom to deal with such a
sensitive issue. Can these two drawbacks be overcome? Vercher
needs to explore this point fully because it is important for the
reader to understand why coordination would work now but did not
in the past. A discussion why the time is now ripe for such
coordination never fully takes place. The book is penned before
the December 1991 Maastricht conference. However, even the brief
postscript does not indicate that Community cooperation is
preferred to independent national action. The reader needs to be
convinced that past obstacles to a consolidated policy are no
longer a hinderance and that the environment now is conducive to
a unified counter-terrorism approach. This is an important step
in accepting the rest of Vercher's argument.
Vercher's methodology is not one of comparative doctrinal
analysis. Instead he compares and contrasts certain key features
of the common and civil law systems. Particularly, he considers
internment, exclusion orders, arrest and detention, the use of
informers and accomplice evidence, and the procedural functioning
of courts. to illustrate that coordination among these countries
is possible. These measures are given more depth and breadth by
including a discussion of their history, their relationship with
non-terrorism legal mechanisms, and the social and political
context of these tools.
Vercher however, never gives the advantages and disadvantages of
the legal features he chooses to analyze. He does not explain the
link between these legal tools of the states and how they will
aid in achieving the goal of a unified European approach to
terrorism. How and why does he select these particular items? A
discussion of the strengths and weaknesses of his methodology
would be useful to the reader and moreover, would link the
methodology to his thesis. At times the reader is left wondering
why he analyzes a particular legal mechanism and how this relates
to his larger proposal.
The discussion of each of the state tools to combat terrorism is
interesting indeed. He begins with the British system. Vercher
first discusses internment, defined as detention without trial of
persons dangerous to the state. The historical development of
this executive power is
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fascinating, with references to the infamous American internment
of Japanese-Americans during World War II. In dealing with the
IRA, internment is not just tied to emergency powers during time
of war, but is a negotiating tool and a mechanism to repress
disorder.
Exclusion orders, expulsion orders, restriction orders, and
deportation all refer to banning persons from certain territories
who are labeled terrorists. The aim is to prevent, not to punish.
The general rule of due process is not necessarily applicable to
terrorists with regard to arrest and detention. The police can
arrest without a warrant persons suspected of terrorism and
detain them for 72 hours. It was once possible to arrest and
rearrest someone under the same question of law, resulting in a
protracted detention. PACE in 1984 eliminated this practice.
However, the author points out that many police arrest to seek
out information despite the law. In Northern Ireland a great
percentage of those that are arrested are not charged, meaning
that they are brought in to gather information rather than to
fulfil an arrest.
Vercher teaches the reader about British intelligence gathering,
referring to informers as "supergrasses." The term has
an interesting origin beginning with calling informers
"coppers" because of their alliance with the police.
The Cockney slang of "copper" became
"grasshopper," then "grass" for short.
"Super" was added to suggest a large scale informer.
These informers are participatory witnesses, meaning that they
have been involved in criminal activity and in exchange for
information, they receive some form of immunity from prosecution.
Supergrass status comes with privileges. Typically they have a
cell to themselves at police stations rather than prisons. They
have longer visitation, recreation, and exercise periods, and are
rewarded with televisions and other creature comforts. Some argue
that using supergrasses is immoral and unethical, especially when
the information is uncorroborated. The risk of being a supergrass
runs high in Ireland, where IRA informers are killed.
One of the most interesting legal variations of the British is
Diplock Courts. These courts, created by a commission headed by
Lord Diplock, alter the judicial process to deal with terrorism
in Northern Ireland. Trial by jury is abolished and these trials
only occur before a judge. One concern is that over forty percent
of cases in Diplock courts do not involve terrorism. The author
goes on to fully explore the advantages and disadvantages of
Diplock courts.
For American readers, the use of confessions is in sharp contrast
to the well known Miranda rule. Miranda is not seen as effective
in Northern Ireland because "robust and persistent"
questioning is needed to reach the truth. Confessions are
important in fighting terrorism, with 75 to 80 percent of
prosecutions relying on confessions. The principle of fairness at
trial concerning confessions is not applicable in pre-trial. For
example, in Northern Ireland judges can draw inferences from
silence as corroboration of evidence.
The second half of the book is devoted to the continental legal
systems of Spain, France, Italy, and Germany. In the same format
as for the British legal system, Vercher lays out the equivalent
legal tools of internment, exclusion orders and the like. Vercher
does an excellent job of explaining the struggle of the Spanish
to deal with ETA, the French with OAS, the Italians who were
faced with 14,000 episodes of violence between 1969 and 1987, and
the Germans with the threats by Baader-Meinhof. Vercher is
careful to give the reader a sense of different principles of
fairness. For example, in Spain one cannot remain in custody for
longer than four years for a serious offense and two years for a
minor offense awaiting trial! In Italy, punishment is reduced for
terrorists who are repentant. Even legal terms have different
meanings in various countries. Arrest in Spain is a form of
punishment whereas detention is the equivalent to arrest in the
United States.
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Vercher concludes that there are enough similarities between the
continental and common law systems to develop a unified European
response to terrorism. It is slightly difficult for the reader to
see this clearly since the comparative material is by and large
set apart in separate chapters rather than integrated in one
discussion. When Vercher reaches this stage, he spends little
time telling the reader what a unified EEC counter-terrorism
proposal could do. He notes that converting an economic
organization like the EEC to deal with this issue would work
particularly well in extradition, creating a Community-wide penal
system, and a central tribunal to try terrorists. However,
Vercher concludes that "while the EEC has so far been an
essential instrument for bringing democracy and peace to Europe,
it seems that its members lack the necessary commitment and
imaginative thinking to solve a threatening problem such as
terrorism..." This is not exactly a ringing endorsement of
Vercher's proposal.
TERRORISM IN EUROPE is thoroughly researched. Vercher does an
excellent job of explaining the similarities and differences
among the five European countries; however, his link between the
legal systems and a unified approach to counter-terrorism is less
convincing. The book is a rich source of information. TERRORISM
IN EUROPE is written in a serious manner, with few bits of lively
discussion or examples. Still, it contributes to the ongoing
discussion of how the state can and should respond to terrorism.
Copyright 1993