Exercising Passive Personality Jurisdiction Over Combatants: A Theory in Need of a Political Solution

• Published in: The International lawyer Vol. 42; no. 3; pp. 1107 - 1127
• Main Author: Jensen, Eric Talbot
• Format: Journal Article
• Language: English
• Published: Chicago American Bar Association's Section of International Law and Practice 22.09.2008; American Bar Association
• Subjects: Agreements; Armed forces; Combatants and noncombatants (International law); Countries; Court hearings & proceedings; Criminal jurisdiction; Criminal law; Criminals; International agreements; International law; Iraq War-2003; Judges; Judges & magistrates; Jurisdiction; Laws, regulations and rules; Legislation; Military personnel; Murders & murder attempts; Privileges & immunities; Soldiers; Sovereignty; Terrorism; Treaties
• ISSN: 0020-7810; 2169-6578

On March 4, 2005, a car carrying Nicola Calipari and Andrea Carpani, members of the Italian Ministry of Intelligence, and Giuliana Sgrena, a journalist who had been taken hostage one month before and who had just been released and was on her way back to Italy, was traveling to the Baghdad Airport. The car was fired on by U.S. forces from a checkpoint, killing Mr. Calipari and wounding Ms. Sgrena and Mr. Carpani. As a result of this tragic event, a joint investigation occurred, but Italy and the United States could not agree on the results. The United States determined that the soldiers involved had acted appropriately. Italy disagreed, and on February 7, 2007, Mario Lozano, a U.S. Army National Guardsman, was indicted by Italian prosecutors who declared that Lozano could be tried in absentia because the case was "political." The trial occurred, and the decision was announced on October 25th. Judge Gargani ruled that the law of the flag, or the law of the soldier's sending state, prevails over a claim of passive personality jurisdiction in a case like this. This paper analyzes Judge Gargani's decision and determines that he is correct. Absent another international agreement, the exercise of passive personality criminal jurisdiction over a combatant for combatant acts is inappropriate when the combatant's sovereign is seized of the case. Rather, because the combatant is acting on behalf of the sovereign, any claim against the combatant should be resolved through political means.