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 On such a premise, the question is whether Article 8 was superseded by a customary international law rule under Article 10 of the Italian Constitution aimed at excluding jurisdiction over Mr Lozano.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.

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.

5 Formal Requirements for Valid Consent to Direct Military Assistance

2020 ◽  
Author(s):  
De Wet Erika
Keyword(s):  
International Law ◽  
Ad Hoc ◽  
The Political ◽  
Legal Basis ◽  
Military Assistance ◽  
Customary International Law ◽  
Head Of State ◽  
Valid Consent ◽  
Formal Requirements ◽  
Domestic Law

This chapter explores potential formal requirements that may affect the validity of consent to direct military assistance. Customary international law only imposes two specific, formal limitations on the legal construct of military assistance on request. The first would be that the request for or consent to military assistance must be issued (and withdrawn) by the highest officials of a state, namely, the head of state and/or government. Where these two positions are not combined within the same person and there is disagreement between them as to whether consent exists, the domestic law of the country in question may be decisive in determining who has the final say in the matter. However, such disagreement between the two highest state officials is likely to be an indication of the political fragility of the consent, which should caution against relying exclusively on consent as the legal basis for the forcible measures. The second constraint imposed by customary international law concerns the requirement that ex ante consent as expressed in pro-invasion treaty clauses must be complemented by ad hoc consent at the time of the forcible measures. Apart from these two constraints, customary international law does not seem to impose any particular formal requirements on states expressing consent to forcible measures on its territory.

Sources of International Law in Domestic Law

2018 ◽  
Author(s):  
Cedric Ryngaert
Keyword(s):  
International Law ◽  
Social Relationships ◽  
Court Decisions ◽  
International Courts ◽  
Customary International Law ◽  
Legal Norms ◽  
State Practice ◽  
Municipal Court ◽  
Domestic Law

This chapter maintains that as both municipal and international law use legal norms to regulate social relationships, a space for inter-systemic interaction between both legal spheres emerges. Municipal legal practice can have an ‘upstream’ impact on the formation of the content of the sources of international law, where these require proof of State practice and/or opinio juris for valid norms to be generated. Particularly, domestic court decisions can have a jurisgenerative effect on customary international law, where they become part of a transnational dialogue between domestic and international courts on questions of international law determination. Admittedly, this dialogical process is hamstrung by the particularities of domestic law and the hard-to-eradicate selection bias of international law-appliers. However, a more objective comparative international law process can be grounded, geared to effective problem-solving guided by the persuasiveness and quality of reasoning of municipal court decisions relevant to international law.

International Comity in the Fourth Restatement

2020 ◽  
pp. 319-334
Author(s):  
William S. Dodge
Keyword(s):  
International Law ◽  
Foreign Relations ◽  
The United States ◽  
Minor Role ◽  
Customary International Law ◽  
The Third ◽  
State Practice ◽  
Recognition And Enforcement ◽  
A Minor ◽  
Domestic Law

This chapter reflects on the treatment of international comity in the Third and Fourth Restatements of the Foreign Relations Law of the United States. International comity played a minor role in the Third Restatement, and the distinction between international comity and international law helps to explain why. The Third Restatement recognized comity as the basis for U.S. rules governing the recognition and enforcement of foreign judgments, but generally it attempted to show that rules originating in comity had developed into customary international law. Some of these attempts were criticized as unsupported by state practice and opinio juris. The Fourth Restatement takes a more restrained approach to restating rules of customary international law and correspondingly embraces international comity as a way of distinguishing limits on jurisdiction that are required by international law from limits on jurisdiction that are required only by domestic law. The chapter then considers some of the implications of looking at doctrines of foreign relations law through an international-comity lens.

IMMUNITY FOR INTERNATIONAL CRIMES: A REAFFIRMATION OF TRADITIONAL DOCTRINE

2002 ◽  
Vol 61 (2) ◽  
pp. 239-294 ◽  
Author(s):  
Xiaodong Yang
Keyword(s):  
International Law ◽  
Foreign Affairs ◽  
Criminal Proceedings ◽  
International Court Of Justice ◽  
State Immunity ◽  
Court Of Justice ◽  
Head Of State ◽  
International Court ◽  
Republic Of The Congo ◽  
Head Of Government

InArrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), decided on 14 February 2002, the International Court of Justice held that an incumbent Minister for Foreign Affairs was immune from criminal proceedings before a foreign domestic court, even if the charges involved crimes against humanity. Human rights advocates might well regard this decision as a serious setback. Decided against a widespread euphoria brought forth by, and largely due to a neglect of an important dictum in, the historic holding in Pinochet No. 3 [2000] 1 A.C. 147, the case serves further to clarify a crucial point of State immunity in current international law. The Pinochet case dealt with the immunity of a former, as opposed to a serving, Head of State. While the majority of the Law Lords only mentioned in passing that the immunity enjoyed by a serving Head of State ratione personae was absolute, the International Court of Justice stated, in unambiguous language, that: … in international law it is firmly established that, as also diplomatic and consular agents, certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal.

THE LIBERAL CONSTITUTION AND FOREIGN AFFAIRS

2010 ◽  
Vol 28 (1) ◽  
pp. 115-149
Author(s):  
Fernando R. Tesón
Keyword(s):  
International Law ◽  
Foreign Relations ◽  
Foreign Affairs ◽  
Customary Law ◽  
Trade Barriers ◽  
Customary International Law ◽  
Liberal Government ◽  
The Government ◽  
Improved Methods ◽  
The U.S

AbstractScholars have debated the meaning of the foreign-relations clauses in the U.S. Constitution. This essay attempts to outline the foreign-relations clauses that an ideal constitution should have. A liberal constitution must enable the government to implement a morally defensible foreign policy. The first priority is the defense of liberty. The constitution must allow the government to effectively defend persons, territory, and liberal institutions themselves. The liberal government should also contribute to the advancement of global freedom, subject to a number of conditions, especially cost. The essay recommends improved methods to incorporate treaties and customary international law into the constitutional structure. Treaties should be approved by the whole legislature and should generally be self-executing. Customary law should be genuine, not fake, and consistent with liberal principles. Finally, based on economic theory and evidence, the essay recommends that liberal constitutions prohibit the government from erecting trade barriers. It concludes by tentatively proposing concrete constitutional language to implement these recommendations.

scholarly journals States’ Mouthpieces or Independent Practitioners? The Role of Counsel before the ICJ from the Perspective of the Legal Value of their Oral Pleadings

2021 ◽  
Vol 20 (1) ◽  
pp. 54-76
Author(s):  
Marco Longobardo
Keyword(s):  
International Law ◽  
State Responsibility ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
State Practice ◽  
The Icj ◽  
Treaty Interpretation

Abstract This article explores the role of counsel before the International Court of Justice, taking into account their tasks under the Statute of the Court and the legal value of their pleadings in international law. Pleadings of counsel constitute State practice for the formation of customary international law and treaty interpretation, and they are attributable to the litigating State under the law on State responsibility. Accordingly, in principle, counsel present the views of the litigating State, which in practice approves in advance the pleadings. This consideration is relevant in discussing the role of counsel assisting States in politically sensitive cases, where there is no necessary correspondence between the views of the States and those of their counsel. Especially when less powerful States are parties to the relevant disputes, the availability of competent counsel in politically sensitive cases should not be discouraged since it advances the legitimacy of the international judicial function.

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.

scholarly journals Customary International Rules in Contemporary International Law // Međunarodna običajna pravila u savremenom međunarodnom pravu

2019 ◽  
Vol 9 (9) ◽  
pp. 136
Author(s):  
Duško Glodić
Keyword(s):  
International Relations ◽  
International Law ◽  
Legal Framework ◽  
International Community ◽  
Point Of View ◽  
Customary International Law ◽  
Practical Point ◽  
Legal Norms ◽  
State Practice ◽  
The Creation

This article explores the role and importance accorded to customary international law in contemporary international law. First of all, the author has explored a number of issues related to this topic. Particluarly, the manner in which norms of customary international law are being established through the relevant State practice and the formation of opinio juris, as well as how the changes in contemporary international relations generated some chages in custromary international law were examined from both theretical and practical point of view. Than, the article elaborated, in a more concrete manner, different ways of impact of changes in international relations and subjects of international law to the formation of customary international rules. It has also paid attention to the evolution in international law and its reflection to the creation of international legal norms, including customary rules. The article concluded that, despite an ever increasing number of treaties, customary rules are still present in international law and are important for regulation of international relations, thus ensuring that dynamics and developments within the international community are followed by the development of legal framework.

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