Friendly Fire Killing of Italian General in Iraq. Calipari Case. Supreme Court of Cassation, Decision No. 31171 of 19 June 2008

Decision No. 31171 of 2008 of the Corte di Cassazione (Court of Cassation) marked the conclusion of the Calipari case before Italian tribunals. It confirmed the decision through which the Trial Court of Rome ruled that: a) the 'friendly fire' killing of the Italian SISMI General Nicola Calipari in Iraq is not a crime falling within Italian jurisdiction; and b) the US have exclusive jurisdiction for proceeding against the US citizen Mario Lozano, the member of the US contingent in Iraq who caused the Calipari's death and the wounding of two others Italian citizens. The reasons that founded the two decisions, however, are different. For the Trial Court it exists a customary norm of international law applicable in peace-keeping operations, under which each contingent participating in a multinational force is subject to the exclusive jurisdiction of its sending State (in the words of the Trial Court: 'law of the flag' principle). Happily, this argument, which raised criticism among jurists, has been completely rejected by the Corte di Cassazione. In the views of the latter, it is by virtue of the customary norm on functional immunity of state officials that Lozano enjoys full exemption from Italian jurisdiction; nor could the killing of Calipari be described as a war crime, a circumstance that would allow a derogation, and thus giving rise to the exercise of Italian jurisdiction. As disappointing this conclusion may be from the standpoint of the protection of the victims, the arguments put forward by the Corte di Cassazione seem more in conformity with international law.