Exercising Passive Personality Jurisdiction Over Combatants: A Theory in Need of a Political Solution

The International Lawyer, Vol. 42, p. 1107, Fall 2008

22 Pages Posted: 1 May 2008 Last revised: 9 Jun 2015

Eric Talbot Jensen

Brigham Young University School of Law

Abstract

On March 4, 2005, a car carrying Nicola Calipari and Andrea Carpani, members of the Italian Ministry of Intelligence, and Giuliana Sgrena, a journalist who had been taken hostage one month before and who had just been released and was on her way back to Italy, was traveling to the Baghdad Airport. The car was fired on by US forces from a checkpoint, killing Mr. Calipari and wounding Ms. Sgrena and Mr. Carpani.

As a result of this tragic event, a joint investigation occurred and but Italy and the United States could not agree on the results. The United States determined that the soldiers involved had acted appropriately. Italy disagreed and on February 7, 2007, Mario Lozano, an U.S. Army National Guardsman, was indicted by Italian prosecutors who declared that Lozano can be tried in absentia because the case was policial.

The trial occurred and the decision was announced on October 25th. Judge Spinaci ruled that the law of the flag, or the law of the soldier's sending state, prevails over a claim of passive personality jurisdiction in a case like this. This paper analyzes Judge Spinaci's decision and determines that he is correct. Absent another international agreement, the exercise of passive personality criminal jurisdiction over a combatant for combatant acts is inappropriate when the combatant's sovereign is seized of the case. Rather, because the combatant is acting on behalf of the sovereign, any claim against the combatant should be resolved through political means.

Keywords: Law of War, war crime, murder, passive personality, jurisdiction, iraq, investigation, criminal law, soldier, international law, humanitarian law

JEL Classification: H56, K14, K33

Suggested Citation

Jensen, Eric Talbot, Exercising Passive Personality Jurisdiction Over Combatants: A Theory in Need of a Political Solution. The International Lawyer, Vol. 42, p. 1107, Fall 2008. Available at SSRN: https://ssrn.com/abstract=1127673

Eric Talbot Jensen (Contact Author)

Brigham Young University School of Law ( email )

504 JRCB
Provo, UT 84602
United States

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