A Civil War (124 page)

And a book of memoirs reads that, before managing to create tribunals, ‘in the early days sentences were passed in a somewhat primitive way by all the formations'.
⁵⁷

The military penal code was in fact appealed to fairly often in the sentences of the partisan tribunals, a case in point being a Command of the Piacenza area, which did however take care to describe the Royal Army as ‘ex'.
⁵⁸
In legal jargon, these references can be said to have been more often than not material, not formal: that is to say, they paid lip-service to the content of some norms, but did not regard the norms themselves as being in force as such. And indeed, when traditional legality came back into its own after the Liberation, the
res
judicata
value of the sentences passed by the partisan military tribunals was not always recognised.
⁵⁹

On the other hand, appealing to the norms of the code could have the paradoxical effect of highlighting the makeshift character of the procedure that was followed.
⁶⁰
And those who, like Major Mauri, in his proclamation mentioned earlier, explicitly referred to the fundamental norms ‘of the war military penal code of the Italian Royal Army', as far as procedure was concerned took no steps at all towards setting up tribunals, but bestowed the power to punish directly on the division, brigade and detachment commanders.
⁶¹

In partisan justice, therefore, the stress fell necessarily on substance rather than form. In Weberian terms, partisan justice can be broadly classed under the ideal type of the justice of the Muslim
kadi
.
⁶²
In Mosso the real partisans arrested four false partisans who were extorting money from the population, led them into the square and asked the crowd what they wanted to do with them; and the crowd replied that they should be taken into the mountains and made to suffer starvation.
⁶³
The almost total absence of legal experts in the bands accentuated this state of affairs and would subsequently be polemically remarked on by the partisans brought before the tribunals for not having greatly respected courtroom regulations: ‘Signor giudice, that's true, only you were not there and so
I
had to do it.'
⁶⁴
Which is not to say that there was a mere ‘simulacrum of jurisdiction' resorted to only to ‘set one's conscience at rest'.
⁶⁵
The ritual of the trial channelled the desire for vengeance, stirred a sense of guilt in the accused, encouraged all the other members of the group to question themselves about what was just and what was unjust, and reaffirmed that even in the most exceptional situation there existed a general norm – in this case on the confines between morality,
politics and legality – to which everyone had to submit. Roberto Battaglia has put this very well: ‘Precisely because we were fighting for a need for justice and that need was the true reality that had rallied us from far and wide around the same banner, in our law we instinctively aspired to a norm that was superior and not practical in character.'
⁶⁶

The tragic sense of administering justice was made more acute by the impossibility of inflicting sentences of imprisonment. The penalties inflicted with bodily violence thus leapt to the forefront: the utmost in violence, like execution, or partial but humiliating violence, as in the use of the stake. The partisan formations frequently resorted to this archaic form of punishment,
⁶⁷
even in the very rare cases in which they were commanded by a woman.
⁶⁸
A perverse continuity, almost by way of retaliation for the worst practices of the Royal Army, appears in this episode:

The sobriety of this comment of Artom's is a reminder that not everyone saw eye to eye about the stake as a form of punishment, widely used though it was. If the stake inflicted on two partisans who had dozed off during night guard duty was considered by the very men who had undergone it ‘a more than just punishment because they could have come up from the Val de Susa and done the lot of us in',
⁷⁰
in the Tollot Garibaldi brigade fighting in Veneto it was collectively decided to abolish the stake and all other forms of corporal punishment.
⁷¹
In another formation, ‘after careful examination', a whole series of punishments were abolished ‘as not in keeping with the spirit of the Garibaldi formations.
Above all it is stressed that the partial withholding of food rations is not moral. Let there be rather the application of simple and solemn disarmament, in front of the assembled unit, temporary or definitive.'
⁷²

This is the spirit inspiring the directives that the General Command of the Garibaldi brigades came to issue in this regard: ‘We are against this old barrack-room form of punishment. The “stake” almost always depresses, it does not re-educate, it is a punishment with negative effects.'

Instead, a whole series of other punishments are suggested, from publishing the reprimand in the mural newspapers to expulsion.
⁷³
A cook who stole some salami and was then sent packing aroused general satisfaction.
⁷⁴
In the Republic of Montefiorino the possibility of sending undesirables behind the line of the front was adopted as an alternative to the execution of the sentences.
⁷⁵

If what has been described so far is the treatment, containing a high dose of violence, given to false friends and to friends who stepped out of line, things were only apparently simpler when it came to the way enemies were treated. Obviously I am not referring here to combatants in open battle, who were treated in the same way as in regular warfare, even when the typical partisan tactic of the ambush and the surprise attack was resorted to. What I have in mind rather are several features in which the partisan war most clearly displays its specific character. A word or two is therefore in order about the treatment given to prisoners, Fascist deserters, and spies.

Behind all this treatment were the admonitions, warnings and condemnations that were levelled
en bloc
against the enemies. These solemn stances varied considerably, according to whether they were addressed to the Germans or the Fascists and, in the case of the latter, to army draftees or to volunteers of the Black Brigade, Muti, and so on. Orders issued by the CVL General Command and the CLNAI do not always tally with what was actually practised in single zones and by single formations. They were issued rather in the not always successful attempt to discipline widely divergent behaviour. In these documents, the Germans are, generally speaking, more bluntly named because all that could be asked of them was a pure and simple surrender, with the promise that they would be treated as prisoners-of-war and, in the final phase, handed over to the Allies.
⁷⁶
As we have had occasion to see, it was not an unfamiliar phenomenon
for German troops to desert and go over ‘with arms and baggage to the side of the patriots';
⁷⁷
but the trust that could be placed in such conduct was minimal, and the arguments that had prompted it inevitably less mordant than in the case of the Fascists. In the case of the Germans, rather, doubts were expressed, explicitly or implicitly, against war criminals, of whom the absolute need to punish was particularly insisted upon by the Actionists and Communists. On 27 March 1944 the CLNAI itself, denouncing the atrocities committed against the Italian soldiers interned in Germany, warned that those responsible would be executed as war criminals.
⁷⁸

At times a distinction was made between the German army and the SS; at other times the Germans were bracketed with the Fascist volunteer forces rather than the ‘regular' ones, almost as it were to disqualify their army more effectively, reduced as it was by now to ‘a band of savages and predators'. In some cases even class appears as a discriminating factor, interwoven with a bias in favour of the Austrians. Thus the commander and commissar of a Pisacane brigade have no doubts about executing two ‘chiefs', a captain and corporal ‘of Germanic nationality'; but for four soldiers ‘of Austrian nationality', who were elderly and all ‘workers and peasants', they proposed further distinctions. And they were thus inclined to shoot a tailor ‘with a petit bourgeois, arriviste and wait-and-see mentality' who, coming from the Alto Adige, voted for Germany in the 1939 plebiscite and ‘can never be of any use to the people', whereas, in agreement with ‘almost all the Garibaldini', they intended to be clement with a second soldier who ‘is in a wretched physical condition and has clearly worked very hard', with the third, Trentino in origin, who had become ‘a poor peasant of Austria', and with the fourth, a bricklayer who ‘is our brother and the red partisans haven't killed Italian workers either'.
⁷⁹

Behind the appeals – promises and threats – made to the Fascists lay a dual purpose. Above all they aimed at fostering the breakup of the enemy forces, by alternating the awesomeness of the punishments provided for with the offer of a way out for those who surrendered or mended their ways.
⁸⁰
The final manifesto,
Arrendersi o perire!
(surrender or perish!), declared: ‘May no one be able to say that, at death's door, he was not warned and not offered an extreme and ultimate path to salvation', and pointed out that, once disarmed, the soldiers of the RSI army would have to be allowed to go free, the Germans handed over to the Allies, and the Fascists of the Black Brigades, the Muti, etc. be ‘kept in conditions in which they can do no harm'.
⁸¹
Again, on 22 April 1945
L'Unità
published an appeal to the militiamen to desert and surrender their weapons as the only path to salvation: ‘Make up your minds, tomorrow will be too late!'

The second purpose was to give a priori endorsement to the physical elimination of Fascists and collaborationists who ‘have shown particular initiative and industry or in one way or another have acted in an executive capacity'. These were all condemned to death and their property confiscated; in the territories still occupied by the Nazi-Fascists ‘
the patriotic and armed formations
and
the partisans
, in the first place, are assigned the task of applying these orders,
without any formalities
'. Both in its Garibaldi brigade Command version, and in the subsequent CLNAI one, the decree blueprint from which these words are taken concludes with the invitation to the partisans to apply the orders without fail ‘as from today' (‘as from now').
⁸²
Neither of the decrees, however, forgot the first of the purposes mentioned above: they made exception for those who, compelled to collaborate with the enemy, had redeemed themselves by doing him damage with acts of sabotage and by collaborating with the patriotic forces.

On 14 February 1944, in reply to the proclamation issued by Guido Buffarini Guidi, minister of the interior, the CLNAI had already laid down: ‘All those who apply the proclamation of on-the-spot execution to
patrioti volontari della libert
à caught in the possession of arms will be deemed guilty of high treason against
the
patria
and as such condemned to death. The criminals whom the justice of the patriotic armed formations fails to reach will be inflexibly judged tomorrow by the people's tribunals.'
⁸³

In line with this, a GL newspaper wrote: ‘Let the partisan war tribunals condemn as from now the definite culprits, even those in hiding. Their execution is deferred to the Liberation, but will need no other judgment (which will, on the contrary, be necessary for the uncertain cases).'
⁸⁴

Directives of this kind clearly had a spin-off on the way prisoners were to be treated, once their membership of a certain category that had been condemned to death
en bloc
had been ascertained. In the forces of the left the tendency was to interpret these texts extensively, at times by following the words used in them to the letter. As we saw in the previous chapter, this could lead to at least some of the class enemies being included among the recipients of the warning and condemnation. A couple of months after 8 September,
L'Unità
wrote: ‘Those who, militarily or economically, actively or passively – functionaries, agents, soldiers – aid the enemy are to be outlawed from the nation and condemned to death'.
⁸⁵
Pursuing this path of widening the field of those who were punishable, the Tuscan edition of the same paper warned tradesmen against speculating on the misery of the population.
⁸⁶
When on 4 December 1944 the CLNAI issued a decree establishing a special war tax to be paid by ‘all well-to-do persons and organisations', it stipulated that those who evaded were to be denounced ‘as traitors of the national cause to the patriots' organs of justice which shall apply to them, by way of example, all those punitive sanctions which the organs themselves shall deem fit'.
⁸⁷
The Communist leadership interpreted these words as follows: