Exercising Passive Personality Jurisdiction Over Combatants: a Theory in Need of a Political Solution
Exercising Passive Personality Jurisdiction Over Combatants: A Theory in Need of a Political Solution ERIc TALBOT JENSEN* Abstract On March 4, 2005, a car carrying Nicola Calipariand Andrea Carpani,members of the Ital- ian Ministry of Intelligence, and Giuliana Sgrena, a journalist who had been taken hostage one month before and who hadjust been releasedand was on her way back to Italy, was traveling to the Baghdad Airport. The car wasfired on by U.S. forces from a checkpoint, killing Mr. Calipariand wounding Ms. Sgrena and Mr. Carpani. As a result of this tragic event, a joint investigation occurred, 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, a U.S. Army National Guardsman,was indicted by Italianprosecutors who declared that Lozano could be tried in absentia because the case was "political." The trial occurred, and the decision was announced on October 25th. Judge Garganiruled that the law of the flag, or the law of the soldier'ssending state, prevailsover a claim of passive person- ality jurisdiction in a case like this. This paper analyzes Judge Gargani'sdecision and determines that he is correct. Absent another internationalagreement, the exercise of passive personality crim- inaljurisdiction over a combatantfor combatant acts is inappropriatewhen the combatant's sover- eign is seized of the case. Rather, because the combatant is acting on behalfof the sovereign, any claim against the combatant should be resolved through political means. In brief, between the criterion of passive authority and that of the flag there can be no doubt that the latter, also taking the contigent [sic] situation, which is provisional and * Lieutenant Colonel, Chief, International Law Branch, Office of The Judge Advocate General, U.S.
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