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Col. Domenico Libertini

MSU and their military task assignment

Thank you Mr President. With my intervention I would like to try to approach some aspects of the national juridical framework that have significant repercussions on the nature of the Multinational Specialized Units. As already stressed by my predecessors we are talking about military units entrusted with specialised ordinary police duties that can be translated, therefore, in something new within the military instrument. In other words, MSUs in possession of experience and of ordinary police capabilities grant the Armed Forces with a new additional capability, highly specialised and particularly useful for the conduct of a military mission. It is exactly the historical and normative innovation that presumes the need to rationally set out MSU’s experience within the system. I believe, therefore, that it is necessary to verify the compatibility of the existence of a military instrument with ordinary police duties with the tasks assigned by the law to the Armed Forces and subsequently with the responsibility of the management of such components should they be included within a Force deployed in a mission abroad.

In relation to the first problem I would like to remember that the normative framework concerning the Armed Forces’ duties proves to be rather complex because deducible from numerous dispositions that have stratified with time starting from law n. 382 dated 11 July 1978, “normative principles on military discipline”. Such stratification, fruit of a general decoding process of the organisational structure, has had a great impulse especially due to the Armed Forces’ evergrowing commitments in multinational missions and has brought to a profound revision of both the organisation and of the tasks assigned to the Armed Forces. On the matter, there has doubtlessly been room for criticism in relation to the new defence model exactly in relation to the possible employment of personnel beyond the national boundaries, which was believed to be unconstitutional . The problem arises because the Constitution doesn’t indicate the Armed Forces’ tasks, which must be extracted from the combined examination of a plurality of norms.

On the contrary, other Constitutional Charters concerned on establishing the principles that provide clarity have ended up stiffening the system. As an example you may recall the Spanish Kingdom’s Constitution of 27th December 1978 which in art. 8 reads “The Armed Forces made up of land army, navy and air force, have the task to guarantee the sovereignty and the independence of Spain, defend its territorial integrity and constitutional structure” . In a coherent manner, at first legislative decree n. 464 dated 28th November 1997, which sets out the operational-technical level tasks of the defence’s Administration, in art. 1, states that the military instrument is meant to consent the permanent availability of command and control structures of the Armed Forces or joint forces entrusted with the task to guarantee the defence of the national territory and of the maritime and air communications, as well as “to participate also in multinational missions for peace support interventions”.

I feel it necessary to underline that in relation to the aforementioned norm, doubts have been expressed on its constitutional legitimacy for violation of the legislative delegation foreseen by law n. 549 dated 28th December 1995. 134 Wisely, however, it has been observed that the delegation of the reduction of bodies and units of the Armed Forces, finalised to guarantee a more effective and functional articulation of the military instrument, should be necessarily preceded by the Armed Forces’ nature, goal and attributions for which the redefinition of the tasks must be considered as a consequence of the structural reform of the military instrument. Subsequently, law n. 331 dated 14th November 2000, concerning the establishment of the professional military service, in art. 1 subsection 2, stipulates that the Armed Forces’ organisation and activities are to be in line with art. 11 of the Constitution.

The following subsection 3 underlines the fact that the Armed Forces’ main task is the defence of the State, while the following subsection affirming that “the Armed Forces also have the task to operate in order to establish peace and security, in compliance with the international rights regulations and with the determinations of the international organisations of which Italy is part of ” matches with the main task of defence of the State i.e. the establishment of peace and security within the International community. As a result it is clear that the normative framework has by now completely exceeded the vision of security previously identified through the forms of safeguard ascribable to the concept of national defence, i.e. defence of the institutions, the territory, the population and of those values and principles that constitute the foundation of the juridical system. Today, the law considers security with an extremely wider vision, i.e. as a good that must be ensured way beyond the national territory, because it invests relations between States in the most different geographical areas with the condition that there be a link to national interests.

Security, therefore, must be considered in theological relation to national interests and to the more general ones of the International community. From a different perspective emerges that Italy has endowed itself with the necessary juridical instruments to become a Nation that exports security and that, therefore, is capable of assuming a more modern role and of great importance within the International Community. What remains to say is that the connection that allows the expansion of national interests outside the territory subject to the State’s sovereignty may occur in two different hypotheses. First of all, when the national commitment is a consequence of a specific request by the international organisations, and secondly when it’s a consequence of the activation of specific norms of international rights.

The norm, therefore, appears to be very broad because it allows interventions that are justifiable both to the norms of the international humanitarian law and to the decisions made by the competent bodies of the international organisations. Furthermore, at the following art. 2, subsection 1, nn. 1 and 2, with reference to the criteria of maintenance of different forms of mandatory military service the law has equalised the different hypotheses of state of war deliberated by ex art. 78 Const. and of “serious international crisis in which Italy is directly involved or in relation to its affiliation to an international organisation”. The legislative formulation, therefore, has drawn nearer the hypothesis of the state of war to that of serious international crisis, filling, as so, what had been long considered a legislative gap and widening the spectrum of States that allow the employment of the military instrument. Up to now I have mentioned the tasks assigned to the Armed Forces in their entirety.

I must add that the aforementioned tasks are integrated and specified by lgs. Decree n. 297 dated 5th October 2000, concerning the Carabinieri reform. Without adventuring myself in a detailed examination of the military duties assigned to the Carabinieri, that would also be very interesting, I must recall that art. 5, subsection 2, of the decree explicitly establishes that the Carabinieri within the participation in military operations abroad participate also in operations for the maintenance and re-establishment of peace and international security, in particular for the realisation of security conditions and orderly cohabitation in the area of intervention. The norm, therefore, considered in the more general system of tasks assigned to the Armed Forces, individuates a specialised task for the Carabinieri.

In other words, within the Armed Forces the Carabinieri, in virtue of their characteristics and professionalism, are meant for that particular task, to realise security conditions and orderly cohabitation in the areas of intervention, which is an expression of the police function. In this way, the norm that seems to be “sewn” on the historical experience of MSU, has affirmed the affiliation of the specialised police function to the spectrum of capabilities that the Italian military instrument must express in missions abroad. For further conceptual clarification I must underline that the participation in police missions abroad within peace support operations is ensured by the Carabinieri always in virtue of the aforementioned law disposition that, per tabulas, assigns a military task to the Carabinieri. By the same emerging framework, therefore, the participation in solely police missions, such as the employment of Integrated Police Units (IPUs) on behalf of the European Union, for the Carabinieri represents the execution of a military task. This last aspect seems to be congruent with the discipline foreseen for the operational management of MSU.

In fact, the provisions of legislative decree n. 300 dated 30th July 1999, related to the organisational reform of the Government, while setting out in art. 20 the assignments of the Minister of Defence, in the first subsection expressly indicate the participation in peace support missions. In the second subsection they establish the competences of the functions and tasks related to the technical-operational area, in other words, to the single Armed Forces. The disposition has an important systematic value because it has crystallised an institutional competence of a multi-structured branch of the State’s administration of which it is responsible under the politicaladministrative aspect towards the constitutional organs. Therefore, the Armed Forces may be employed ordinarily in operations other than war. The disposition, furthermore, has an additional important profile of a systematic character because art. 14 of the decree, while setting out the attributions of the Minister of Interior, doesn’t mention any function within the international peace support operations.

A matter that results to be congruent with the need to handle singularly the instruments employed abroad in activities which are the expression of the Nation’s international politics, as well as, with the institutional roles attributed on the one hand by the Armed Forces and on the other by the Minister of Interior and resolve in guaranteeing internal public order and security within the assigned nation and that however derive from the principle of territoriality which presupposes penal and police laws. Although I’m convinced that I haven’t been exhaustive, I hope to have contributed to the conceptual layout of the MSU experience. I thank you for your kind attention.

(*) - Colonel of the Carabinieri Force, Commander of the Carabinieri Provincial Command of Latina.