The Arbitral Award in the Enrica Lexie Case and its Questionable Recognition of Functional Immunity to the Italian Marines Under Customary International Law

2021 ◽  
Vol 30 (1) ◽  
pp. 209-225
Author(s):  
Raffaella Nigro
Keyword(s):  
International Law ◽  
Current Practice ◽  
The State ◽  
Arbitral Tribunal ◽  
Customary International Law ◽  
Criminal Jurisdiction ◽  
State Practice ◽  
Majority Judgment ◽  
Functional Immunity ◽  
The Military

The dispute between Italy and India on the Enrica Lexie incident has finally been decided by the Award handed down on 21 May 2020 by the Arbitral Tribunal to which the Parties had referred the case. After having concluded that it had jurisdiction on the issue of the immunity of the two Italian marines involved in the case at hand, the majority judgment (by three votes to two) affirmed that under customary international law the latter enjoyed functional immunity from the criminal jurisdiction of India. This article will argue that the Arbitral Tribunal’s conclusions are unconvincing, first and foremost, considering that, based on State practice, it is not possible to affirm without reservations that a settled customary rule exists under international law conferring immunity to all State officials, and regardless of the type of functions they perform. In fact, immunity has often been recognized as applying only to certain categories of State officials, and on the basis of the governmental nature of the functions they perform on behalf of the State. Given the doubtful existence under customary international law of a clear rule establishing the functional immunity of all State officials, for all the acts performed in the exercise of their functions, this article argues that the Arbitral Tribunal should have firstly ascertained the existence of a specific customary rule on the immunity of the military abroad, together with the exact content of such rule and, secondly, whether this was applicable in the case of the Enrica Lexie. As current practice stands, military forces abroad are entitled to immunity only under specific circumstances, which do not seem to occur in the present case. In particular, this article maintains that the Italian marines were not entitled to functional immunity. While the acts they performed did indeed fall within their typical functions, they were exercised on behalf of a private subject and not on behalf of the Italian State.

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

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.

scholarly journals Limits of Targeted Killing in Counterterrorism Operations: An International Law Perspective

2017 ◽  
Vol 3 (1) ◽  
pp. 1-38
Author(s):  
Brian Sang YK
Keyword(s):  
International Law ◽  
Case Law ◽  
The State ◽  
Policy Implications ◽  
Targeted Killing ◽  
Customary International Law ◽  
Lethal Force ◽  
Legal Challenges ◽  
State Practice ◽  
Clear And Present Danger

Despite criticism of targeted killing of suspected terrorists, states continue to justify extensive bases for lethal-force responses to terrorism by arguing that rigid adherence to prescriptive law cannot always be observed in the context of clear and present danger. But, while seemingly cogent, this view wrongly presumes the mutual exclusivity of security considerations and the imperatives of law. It risks exceeding the limits of permissible use of lethal force prescribed in conventional and customary international law. A contrary and more balanced view is advanced in this article. It argues that current international law protecting individuals against intentional killing offers sufficient and practicable guidance for states confronting terrorism. Systematic legal criteria are thus expounded to clarify the legality and admissible limits of targeted killing of suspected terrorists in three contexts: law enforcement, self-defence and armed conflict. With reference to treaties, policy documents and state practice, the article critically examines the preconditions for lawful state-sanctioned killings in counter-terrorist operations. It also identifies the legal challenges and policy implications of resorting to targeted killing. Using comparative case law and operational practice, a legal basis is offered on which Kenya and other nations can effectively tackle the spectre of terrorism within the fair strictures of the law. Every struggle of the state – against terrorism or any other enemy – is conducted according to rules and law. There is always law which the state must comply with.

La disciplina dei militari impegnati all'estero in missioni umanitarie: in margine al caso Lozano

2009 ◽  
pp. 565-590
Author(s):  
Raffaella Nigro
Keyword(s):  
International Law ◽  
Armed Forces ◽  
Foreign Affairs ◽  
Customary International Law ◽  
Exclusive Jurisdiction ◽  
Head Of State ◽  
State Practice ◽  
Functional Immunity ◽  
Head Of Government ◽  
Domestic Law

- In the well-known Lozano case, an Italian intelligence agent, Mr Nicola Calipari, remained killed in 2005 by an American soldier, Mr Mario Luis Lozano, while entering a US checkpoint on the way to the Baghdad airport soon after securing the release of an Italian journalist from Iraqi kidnappers. In the ensuing case, Italian courts addressed a number of sensitive questions, including that of jurisdiction over national troops involved, directly or indirectly, in so-called "humanitarian missions" abroad. Italian courts did have jurisdiction over the killing under Italian domestic law. Indeed, the murder of Mr Calipari can be regarded as a "political crime" under Article 8 of the Italian penal code. On such a premise, the question is whether Article 8 was superseded by a customary international law rule under Article 10 of the Italian Constitution aimed at excluding jurisdiction over Mr Lozano. State practice suggests that neither a customary rule on the exclusive jurisdiction of the sending State (as claimed by the Court of Assise of Rome in 2007) nor a customary rule on Mr Lozano's functional immunity (as claimed by the Court of Cassation in 2008) are established in customary international law. Rather, State practice reveals that a number of States are likely to recognize immunity from jurisdiction to the armed forces only in certain specific circumstances. Moreover, such immunity is quite different from the functional immunity traditionally enjoyed by diplomatic and consular agents, as well as from the immunities enjoyed by other high-ranking State officials, such as the Head of State, the Head of Government and the Minister for Foreign Affairs.

How to Limit Immunity of State Officials from Foreign Criminal Jurisdiction

2019 ◽  
pp. 146-170
Author(s):  
Pavel Šturma
Keyword(s):  
International Law ◽  
Foreign Affairs ◽  
Crimes Against Humanity ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Criminal Jurisdiction ◽  
Head Of State ◽  
International Court ◽  
State Practice ◽  
Head Of Government

This contribution aims to shed more light on the question whether international law on immunities is in crisis and, if so, how to overcome the crisis. It will not deal with all kinds of immunities under international law but will focus only on immunity of state officials. Immunity of state officials from foreign criminal jurisdiction is governed by customary international law whose exact scope is often debatable both in theory and in practice, particularly in connection with the international effort to end impunity for the most serious crimes under international law, such as genocide, war crimes, and crimes against humanity, including torture and enforced disappearances. Although state practice and case law of the International Court of Justice supports the absolute immunity ratione personae of the highest officials, such as head of state, head of government, and minister of foreign affairs, as long as they are in office, the situation of immunity ratione materiae that protects the official acts of other state officials seems to be less clear. There are good arguments in favour of exceptions to such immunity, at least in respect of crimes under international law.

scholarly journals Introduction to the AJIL Unbound Symposium on Recognition of Governments and Customary International Law

AJIL Unbound ◽  
2014 ◽  
Vol 108 ◽  
pp. 199-200
Author(s):  
James Gathii
Keyword(s):  
Human Rights ◽  
Cold War ◽  
International Law ◽  
Democratic Governance ◽  
The State ◽  
Effective Control ◽  
Post Cold War ◽  
Customary International Law ◽  
Regime Changes ◽  
State Practice

In the lead essay in this symposium, Professor Erika de Wet contends that notwithstanding all of the post-Cold War enthusiasm for a right to democratic governance and the non-recognition of governments resulting from coups and unconstitutional changes of government, a customary international law norm on the nonrecognition of governments established anti-democratically has not emerged. De Wet’s position, primarily based on state practice in Africa, is vigorously debated by six commentators.Jure Vidmar agrees with de Wet that the representative legitimacy of governments still lies primarily in effective control over the territory of the state. Vidmar, in his contribution, examines recent collective practice when neither the incumbent government nor the insurgents control the territory exclusively, arguing that in such cases states may apply human rights considerations. Like de Wet, however, Vidmar regards state practice as ambivalent and unamenable to ideal-type distinctions between coups (against a democratically legitimate government) and regime changes (to a democratically legitimate government).

scholarly journals Immunity Ratione Materiae of State Officials from Foreign Criminal Jurisdiction: Where is the State Practice in Support of Exceptions?

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 4-8 ◽  
Author(s):  
Sean D. Murphy
Keyword(s):  
International Law ◽  
War Crimes ◽  
The State ◽  
Crimes Against Humanity ◽  
Draft Article ◽  
Criminal Jurisdiction ◽  
State Practice ◽  
International Law Commission ◽  
Law Commission

In the summer of 2017, the UN International Law Commission adopted Draft Article 7 and an associated draft annex for its project on immunity of state officials from foreign criminal jurisdiction. The draft article identifies six “crimes under international law in respect of which immunity ratione materiae shall not apply”: genocide; crimes against humanity; war crimes; crime of apartheid; torture; and enforced disappearance. Given the divergences within the Commission when considering and adopting Draft Article 7 (as evidenced by the plenary debate in 2016 and 2017, the unusual recorded vote on whether to refer the matter to the Commission's drafting committee, and the Commentary), it is difficult to conclude that the Commission is expressing a view that Draft Article 7 reflects lex lata.

scholarly journals The “International Crime” Exception in the ILC Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction: Two Steps Back?

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 27-32 ◽  
Author(s):  
Rosanne van Alebeek
Keyword(s):  
International Law ◽  
International Crime ◽  
Customary International Law ◽  
Draft Article ◽  
The Real ◽  
Criminal Jurisdiction ◽  
International Crimes ◽  
Functional Immunity ◽  
International Law Commission ◽  
Law Commission

In addressing the topic of the immunity of state officials from foreign criminal jurisdiction, the International Law Commission (ILC) took on one of the most contentious issues in contemporary international law. The question whether functional immunity applies when officials are accused of having committed international crimes has divided courts and scholars alike, and the ILC was deeply split. The “international crimes” exception set forth in Draft Article 7 was, exceptionally, put up for a vote, with twenty-one votes cast in favor of provisional adoption, one abstention, and eight negative votes. Because the ILC has a mandate to both codify and progressively develop international law, these figures do not help resolve what was arguably the real bone of contention: whether or not the exception is already part of customary international law—that is, whether it is lex lata.

The Persistent Objector Rule in the Work of the International Law Commission on the Identification of Customary International Law

2018 ◽  
Vol 27 (1) ◽  
pp. 175-188
Author(s):  
James A. Green
Keyword(s):  
International Law ◽  
The State ◽  
Customary International Law ◽  
Specific Focus ◽  
State Practice ◽  
International Law Commission ◽  
Law Commission

The persistent objector rule is a well-known but controversial mechanism for a state to exempt itself from norms of customary international law. This article examines the rule with a specific focus on the work of the International Law Commission (ILC) on the Identification of Customary International Law, through a consideration of Conclusion 15 and the commentary to it that have been adopted, as well as the ILC plenary debates on the topic. The state usage and, indeed, very existence of the rule will be considered, given that this has been so controversial in the ILC and wider literature. The article further examines whether the rule rightly formed an aspect of the Commission’s work, and looks at the terminology employed in Conclusion 15. Finally, it assesses the requirements for the operation of the persistent objector rule as expressed by the ILC, through comparison to the manner in which the criteria have been employed in state practice.

scholarly journals Wprowadzenie dyktatury wojskowej w wyniku zamachu stanu a kwestia międzynarodowego uznania rządu na przykładzie przewrotu wojskowego w Mjanmie z 1 lutego 2021 roku

2021 ◽  
Vol 43 (3) ◽  
pp. 259-275
Author(s):  
Maciej Gajos
Keyword(s):  
International Law ◽  
Authoritarian Regime ◽  
The State ◽  
Customary International Law ◽  
Uniform State ◽  
State Practice

The article reflects on the question of recognizing a government in international law in relation to the coup that took place in Myanmar on 1 February 2021. First, the author defines the recognition of a government, emphasizing that the institution of recognition applies exclusively to unconstitutional changes of governments. The circumstances of the coup in Myanmar are recounted, exhibiting that the authoritarian regime of the junta has been established in a manifest violation of provisions established in the Constitution adopted in 2008. Second, the competing criteria for recognition of a government in international law are discussed with reference to Tobar (favoring legitimacy) and Estrada doctrines (according to which effectiveness shall prevail). The author presents the evolution of opinions in scholarship and in the practice of states that occurred over the course of decades and led to the dominance of the latter concept. It is demonstrated that upon the application of the criterium of effectiveness with regard to the junta in Myanmar, it should be recognized as a body entitled to represent the state. Finally, acknowledging the tendency that originated in the 1990s to take into account the democratic norm as an alternative basis for recognition of a government or its denial, the author claims that in the lack of coherent and uniform state practice in that field, such a norm cannot create a normative obligation as a norm of customary international law, and therefore does not justify nonrecognition of junta. 

The Tension between State Duties to Investigate and Prosecute ius Cogens Crimes and Immunity of the Highest State Representatives from Foreign Criminal Jurisdiction

2020 ◽  
Vol 20 (5) ◽  
pp. 841-861
Author(s):  
Héctor Olasolo ◽  
Juan Ramón Martínez Vargas ◽  
Laura Quijano Ortiz
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
The State ◽  
International Criminal Law ◽  
Special Rapporteur ◽  
Public International Law ◽  
Criminal Jurisdiction ◽  
Functional Immunity ◽  
Definition Of

The lack of a demarcation between international criminal law (icl) and public international law (pil) creates a set of complex issues resulting from their overlap. A prime example of this situation is the tension between the state duties under icl, to investigate and prosecute ius cogens crimes, even if they are committed by the highest representatives of foreign states, and the pil customary rules on the latter’s personal and functional immunity from foreign criminal jurisdiction. Attempts by the icj and the ilc Special Rapporteur to limit this tension have been met with strong criticism. The various arguments against both approaches show the significant difficulties to overcome the tensions caused by the overlap between icl and pil. In light of this situation, a stricto sensu definition of icl should be adopted as a way to establish a clearer demarcation between icl and pil and to limit the scope of their overlap.

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