Within the Italian legal framework, the Supreme Court has grappled with the intricate relationship between national criminal law and principles of customary international law on several occasions. In this article, we will delve into the judgment of the Court of Cassation dated June 19, 2008, No. 31171, Section I of the Criminal Division, which has sparked considerable debate and interest.
The Context of the Calipari Case
The judgment in question resulted from appeals filed by the Public Prosecutor at the Tribunal of Rome, the Prosecutor General at the Court of Appeals of Rome, and the counsel for the civil party. They contested the verdict handed down by the Assize Court of Rome on October 25, 2007, concerning the killing of Nicola Calipari, the injury to another SISMI official, Andrea Carpani, and journalist Giuliana Sgrena from “Il Manifesto.” These tragic events occurred following the abduction by Iraqi militants and involved U.S. soldier Mario Lozano.
Interpretation by the Court of Cassation
The Court of Cassation established a significant legal principle: “There is no criminal jurisdiction of the Italian State, nor of the territorial State, but rather exclusive jurisdiction of the USA, the sending State of military personnel participating in the Multinational Force in Iraq.” This decision is based on the customary international law principle known as “functional immunity” or “ratione materiae.” According to this principle, individual officials of a foreign state are exempt from the criminal jurisdiction of another state for acts carried out in the course of their official functions. This principle is non-derogable, unless exceptional circumstances such as a “serious violation” of international humanitarian law are present.
Implications and Significance of the Calipari Case
What emerges from this judgment is the significance of the “functional immunity” principle in the realm of international relations. In particular, this decision highlighted that Article 10, paragraph 1, of the Italian Constitution can support the prevalence of this principle over national criminal jurisdiction. This means that individual officials of a foreign state acting in the scope of their public functions may be exempt from Italian criminal jurisdiction.
In conclusion, the Calipari case represents a pivotal landmark in Italian jurisprudence concerning international law. This judgment underscores how principles of international law can impact national criminal jurisdiction, emphasizing the importance of “functional immunity” in state-to-state relations. For a comprehensive understanding of the legal implications in similar situations, it is essential to consult a legal expert in international law.
