Status of Forces: Criminal Jurisdiction over Military Personnel Abroad

Functional Immunity of the Marines on the Enrica Lexie: A Reply To Raffaella Nigro

The Italian Yearbook of International Law Online ◽

10.1163/22116133-03001013 ◽

2021 ◽

Vol 30 (1) ◽

pp. 227-236

Author(s):

Natalino Ronzitti

Keyword(s):

International Law ◽

Military Personnel ◽

Arbitral Tribunal ◽

Customary International Law ◽

Criminal Jurisdiction ◽

Functional Immunity ◽

Short Reply

This article is a short reply to Raffaella Nigro’s assessment of the Arbitral Tribunal award in the Enrica Lexie case. Professor Nigro analyzes the rule of functional immunity of State officials from foreign criminal jurisdiction and argues that it cannot be applied to the two marines, even supposing that military personnel are covered by such a rule. Professor Nigro bases this conclusion on the facts that the marines were stationed on a commercial vessel and were servicing the interests of the private shipowner. In reply, this author reaffirms the existence of a rule of customary international law on functional immunity and argues that military personnel assigned to commercial vessels are carrying out these duties in order to protect Italian interests and contribute to the defeat of piracy. Therefore, the marines on board the Enrica Lexie were (and still remain) under the protection of the rule on immunity from foreign criminal jurisdiction.

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National Criminal Jurisdiction Over Australian and US Military Personnel

Criminalising Peacekeepers ◽

10.1007/978-3-319-57729-6_2 ◽

2017 ◽

pp. 59-75

Author(s):

Melanie O’Brien

Keyword(s):

Military Personnel ◽

Criminal Jurisdiction ◽

Us Military

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The Relevance of Disciplinary Authority and Criminal Jurisdiction to Locating Effective Control under the ario

International Organizations Law Review ◽

10.1163/15723747-01302006 ◽

2016 ◽

Vol 13 (2) ◽

pp. 341-378 ◽

Cited By ~ 2

Author(s):

Zsuzsanna Deen-Racsmány

Keyword(s):

International Law ◽

International Organizations ◽

Military Personnel ◽

Effective Control ◽

Special Importance ◽

Special Rapporteur ◽

Unique Role ◽

Criminal Jurisdiction ◽

Legal Literature ◽

Military Discipline

The commentary to Article 7 of the Articles on the Responsibility of International Organizations (on lent organs) clearly singles out disciplinary authority and criminal jurisdiction as factors relevant to locating effective control and, in turn, attribution. The present study scrutinizes the function and significance of these factors in that context. As the International Law Commission’s Commentary apparently fails to justify their special importance, alternative explanations provided in legal literature are considered together with the idea that reference to these factors originates from Special Rapporteur Gaja’s preoccupation with military personnel. The author concludes that while military discipline and military criminal jurisdiction play a unique role in relation to military personnel, a broader approach focusing on all relevant manifestations of the persisting organic link may provide a more appropriate framework for the attribution of the conduct of lent State organs (military and civilian alike) under the effective control test.

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The Enrica Lexie Incident: Law of the Sea and Immunity of State Officials Issues

The Italian Yearbook of International Law Online ◽

10.1163/22116133-02201002 ◽

2013 ◽

Vol 22 (1) ◽

pp. 1-22 ◽

Cited By ~ 2

Author(s):

Natalino Ronzitti

Keyword(s):

Military Personnel ◽

Law Of The Sea ◽

Indian Coast ◽

Fishing Vessel ◽

Criminal Jurisdiction ◽

Functional Immunity ◽

High Seas

This article examines the case of the Enrica Lexie, a commercial ship having on board military personnel engaging in anti-piracy duties who was involved in an incident with persons on a fishing vessel off the Indian coast. It takes into consideration India’s claim to exercise its criminal jurisdiction over the Italian marines indicted of having killed two Indian fishermen, the judgments passed by India’s courts and the multiple aspects of the ensuing controversy between India and Italy. It is argued that the two marines enjoy functional immunity, even if it is admitted that India has jurisdiction over the case. The article concludes that new conventional law is needed for incidents like that of the Enrica Lexie paralleling Article 97 UNCLOS on collisions on the high seas.

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