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Dr. Antonio Intellisano

I shall talk of certain juridical issues arising from our daily experience.

A merely juridical daily experience, though not exclusively so, because there is a set of concrete, practical events that often lead operators on the field to face heterogeneous issues for which one often needs to ask for help from those who, comfortably sitting in their offices surrounded by codes, and encyclopaedias, might have an immediate answer. I shall approach the matter pragmatically to try to isolate certain significant cases or events. In the course of this seminar, we have often heard that peacekeeping operations or, as we should say, PSO as they are usually called, with the acronym now in use (because they involve a range of different missions and aims that go from peacekeeping operations to peace making operations and even to multifunctional missions that can even achieve nation building aims), have a heterogeneity of tasks and approaches, according to their aims, which are in turn conditioned by contingent problems, of a geographic, historical and social character that they cannot be reduced to units.

At normative level, this creates a series of particular situations, really needing flexibility, a particular incidence, adaptation to the different cases - often very heterogeneous, that one has to face. To simplify the problem, we must refer to the normative picture (even though we shall later see the degree of value of this normative) that must regulate relations among the different military contingents and among the various units of the different nationalities. “At first it was the famous rules of engagement” and if on the one hand these aim at establishing the aims of a mission, on the other hand they rule directives, the framework within which the mission itself must be carried out. A step lower are the standing operation procedures, with the usual acronyms within the SOP’s international ambit, which introduce detail dispositions; dispositions that, by a subsequent approach as regards the rules of engagement, govern the various methods, means, forms and intervention modules within the international military integration. According to the hierarchic principle of the normative sources, all these rules, however, must comply with potion value rules, for this is a customary principle, an international law principle of a customary nature (as well known), the one according to which military contingents take their own flags abroad, as well as their laws and judges.

Of course, in general, the laws have a potion value (with the exceptions we shall see when the so-called domestic norms become true and proper bilateral laws of a pactional nature). As we shall see, this can greatly complicate relations; though I doubt there can be a solution that can be taken out of a hat like a rabbit. Any solution would require a high degree of flexibility and would have to be found when needed, with all the limits - as regards the certainty of the law and homogeneity - arising from such a magmatic situation. We can now attempt to group the different problems. The simplest one - in terms of relativity - is to find a point of homogeneity and convergence between the sanctioning system - from disciplinary and penal viewpoints - and the different national contingents. 106 This is important because in the face of homogeneous situations of employment, we often have norms that do not consider - nor can consider - this situation in detail.

The viable models are theoretically two: the ECD model (European Community Defense) goes back to fifty years ago when the creation of a common European army was considered - on the wave of a Europeanist drive that had risen in many countries after the world conflict. This has recently been a very topical issue and the ECD has been widely recalled, not only because fifty years have passed since its failure, but also because the need for an integrated army has been strongly felt. In the ECD’s institutive treaty, or in the project of an institutive treaty, there was a protocol reserved for the integration from a disciplinary and penal viewpoint regarding the deontology of military men that were to become part of this European army.

This model was pursued to the point of reaching a complete, thus definite, articulation as regards principles and behaviours that could be sanctioned from a penal viewpoint, as well as assessed from a disciplinary point of view. The other model, instead, is the one followed at present within the international military co-operation; that is, the model according to which each State, each country, applies its own laws. Naturally, there are agreements within this ambit (the famous SOFA), that can also lead to forms of integration or co-operation that tend to solve problems arising from the apparent co-existence of several norms, such as the NATO system, for example, where the matter became the object of a specific provision of the London Convention of 1951 and was ratified and enforced by Italy by law n. 1335 of November 30 1955. This system foresees a kind of exception, an extraterritoriality duplicity as regards the national territory (in the Italian case) when troops and units of forces of other NATO countries are involved.

There is a compound principle that may be linked to the aggrieved interest: in practice, the fictio of extraterritoriality does not always work, but it does under certain circumstances that, generally speaking, could identify the existence of close links with service achievements. The rather recent Cermiss case, is the practical application of this particular situation that was also examined, as regards the lack of the Italian jurisdiction, by our Supreme Cassation Court that, on the occasion of the appeal, further pronounced itself regarding the complex juridical matters provided for by law 1335 of 1955. The issue closest to us regarding this theoretic aspect, this approach of a general nature, is that regarding forces (such as the MSUs) that are carrying out security police and even judicial police tasks in a foreign country. We cannot generalize because the experience of the ’90 raises a range of very different issues. There is a big difference, for instance, between the Albanian and the Somali situation lacking not only a form of government, but also indeed a form of State.

There were inter-tribal relations with all that this entails. In other cases of PSO operations (Peace Support Operation), instead, the latter were carried out on request of the host State and in the presence of a government or at least of forces that are, the expression of the still existing State’s sovereignty, though with all the limits of certain situations. In this case forms of co-operation arise that turn into a sort of operational collateralism or even reach forms of approach or rootedness of the local police forces that are trained, instructed and supported. Thus, situations that are absolutely different. I would say that from the point of view of security police operations there are no particularly complex problems as is indeed the case regarding judicial police functions.

They are less complex, but I cannot say that they do not exist: suffice it to think of all the norms that can be applied such as the local norms that are little and badly known by the units forming integrated contingents. How must these units behave when the principles inspiring international legislations admit no derogation as regards human rights or forms of human dignity safeguard that are not always adequately guaranteed by local legislation? In this case there is a clear contrast, a hiatus, a conflict of principles and, consequently, national principles are destined to prevail.

Therefore, integration at an operational level is not always supported by rules ( such as those that - I repeat - are summarized in the standard operation procedures) apt to meet the different needs in a clear, precise, univocal and non-conflicting manner. It is however mainly regarding judicial police functions that the hiatus arises, not only in respect of the relation between the legislation of the host country and the different contingents’ legislation of origin, but also as regards the rules that are summarized, incisively, in the saying: “the law of the flag”. The above is less theoretical than it appears and heralds issues that have already arisen. Before looking into the problems that could arise, let us have a look at the penal status of our contingents (at least as regards Enduring Freedom and Ancient Babylon operations). As well known, the war military criminal law was first applied after the Second World War.

I believe that as regards penal dispositions we have a binary situation because (article 16 of the Enduring freedom decree that later became article 12 is the last decree authorizing the continuation of the mission to June 30) it provides for the application of the war military criminal code only and exclusively for those belonging to the Italian military contingent as regards the foreigner committing, for instance, acts against the men of the national contingent. At first this may seem an incongruity, but the binary approach presents difficulties linked to the qualification of missions and, lastly, to dispositions of a constitutional nature: suffice it to think - from a jurisdictional viewpoint - of the last paragraph of article 103 of the Constitution. Situations of compromise are not entirely casual: they arise from the complexity of certain issues. Why, then, decide to apply, at least as regards the Italian contingent - the war military criminal code? Because, paradoxically, the application of the peace military criminal code alone - due to its present conformation - would have reproduced a series of problems that would have led Italy to a condition of dereliction from a penal safeguard viewpoint, like the one already experienced in Somaliland.

In fact, national legislation, from a penal viewpoint, that is both the 1930 criminal code and the 1941 peace military criminal code, do not fully provide for those aspects that can be linked to PSO, which are a tertium genus, that is something quite different from war and peace. As already mentioned, humanitarian missions do not only mean distributing cookies for they often require the deployment of force, when needed, to pacify or enforce peace among the fighting factions. In fact, one of these PSOs is called peace enforcement and, therefore, the term itself explains the nature of the mission. In Somaliland, charges regarding Italian soldiers did not find a satisfactory judicial response. The above because if we look into our criminal code (articles 7, 8, 9 and 10) as well as our common criminal procedure code (article 10) the situation regarding the prosecution of offences committed abroad and the relative jurisdiction, we see that it is not exactly tailored to the requirements. In particular, common offences are mostly subject to a double prosecutable condition; the Minister of justice’s request and the subject’s presence on the territory of the State.

This makes the punishment of crimes, which often contrast with the collective sensitiveness, very difficult. The war military criminal code, at least in what concerns the application of humanitarian law regulations, can satisfy these demands. This binary situation, which under certain aspects may actually appear contradictory, arises from the result of all these issues, polemics and problems linked to the constitutional Chart. Common offences committed by foreigners, according to the latest disposition (as already mentioned, I refer to art. 12 of the decree - later converted into law - authorizing the deferment of the mission to the end of June), are the ordinary judge’s competency and thus of the ordinary judicial authority. Here, however, an afore lacking rationalization was inserted: just as far back as 1981 it was decided that the Rome Attorney General was responsible for military offences, the ordinary Court, and thus the ordinary Rome Attorney is competent for common offences.

All this, to concentrate the assessment and give an efficient and homogeneous judicial response to the various relevant issues from a penal viewpoint. However, if, in compliance with this binary approach, we look into what prevailingly occurred in Afghanistan, we see that there were many remarkable problems from a judiciary police viewpoint and as regards linkages with the different national contingents. In Afghanistan, for instance, also due to the scanty number of our forces, we do not have a field or a structure that may be compared to the one designed for the judicial prison (as once called). Thus, within the integrated co-operation, there was a division of tasks between our armed forces and the American armed forces, besides those of other countries, even though in Afghanistan there is an up-coming, an in fieri, national government, which at international level and though on crutches is trying to rise again and reconstruct itself, establishing forms of organization compatible or at least worthy of the various expressions of sovereignty.

Therefore, if hostile subjects carry out a determined activity against our armed forces they may be prosecuted according to the common criminal code because here a national interest is aggrieved. We know that the competency belongs to the Rome Attorney, which, in the cases verified so far, emanated provisions foreseen by our criminal procedure code for the preliminary investigation stage or the precautionary provisions foreseen at present. An important datum, both in ordinary and in military jurisdiction, is that as regards the procedural part in time of war the criminal procedure code - the one in force in Italy since 1989 - is the one generally applied and not book III of the war military criminal code. However, considering that we do not have adequate structures and co-operate with other forces, these other forces intervene without always respecting the principles and all the rules provided for by article 111 of the Constitution that provides for a “fair trial”, which does not only regard the hearing stage, but includes all the stages of the trial, globally considered from the viewpoint of guarantees right from when the first news of the offence is communicated. This has created rather big problems from a procedural viewpoint; because there is a substantial difference between art. 111 of the Constitution and the regime applied in Guantanamo, and this causes the operator rather disturbing issues. The operator represents the judicial authority, whether military or common, and thus the judicial authority demands that the most supporting rules be applied, which, in the face of such cases, are difficult to respect fully, not so much for the lack of good will, but for the particular conditioning of circumstances.

I would here like to profess a civil rights defense integralism, a judicial integralism. I am denouncing a problem for which I have no solution and it is difficult to find one. Until now, thanks to the common sense, equity and mental flexibility of our operators, there have been no really big problems because basic good manners and respect of the person have always prevailed, and this has formed the features of the particular service actions, though we cannot exclude that conflicts among organizations may arise in future. The Venetia case (from the name of the plaintiff, not of the city), well known to the experts, over which our constitutional Court and our Court of Cassation intervened, does not refer only and exclusively to the aspect of extradition but concerns a whole set of problems in which the contrast or the contraposition among organizations may lead to determined situations that - in a certain way - darken the profile of the international judicial co-operation as well.

These are but some of the problems surfaced from daily application, the concrete application that the juridical dishomogeneity (and in some cases even cultural in its vastest term, that is anthropological) determined among the various countries that send their forces on integrated missions and that the States should overcome by making an effort to prepare standing operation procedures, which have so far concerned almost exclusively the procedural aspects “on the field” and not aspects of the co-operation and defense of human rights profiles apt to dissolve or at least solve the possible contrasts that may derive from the law of the flag principle. Thank you.

(*) - Transcript from an audio recording corrected by the author.
(**) - Military Prosecutor of the Republic of Rome.