Eric Talbot Jensen, 𝘌𝘹𝘦𝘳𝘤𝘪𝘴𝘪𝘯𝘨 𝘗𝘢𝘴𝘴𝘪𝘷𝘦 𝘗𝘦𝘳𝘴𝘰𝘯𝘢𝘭𝘪𝘵𝘺 𝘑𝘶𝘳𝘪𝘴𝘥𝘪𝘤𝘵𝘪𝘰𝘯 𝘰𝘷𝘦𝘳 𝘊𝘰𝘮𝘣𝘢𝘵𝘢𝘯𝘵𝘴: 𝘈 𝘛𝘩𝘦𝘰𝘳𝘺 𝘪𝘯 𝘕𝘦𝘦𝘥 𝘰𝘧 𝘢 𝘗𝘰𝘭𝘪𝘵𝘪𝘤𝘢𝘭 𝘚𝘰𝘭𝘶𝘵𝘪𝘰𝘯, 42 Iɴᴛ'ʟ Lᴀᴡ. 1107 (2008).
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.
42 Int'l Law.