The Italian Court of Cassation Misapprehends the Notion of War Crimes: The Lozano Case

Abstract

In July 2008, the Italian Court of Cassation held that Italian courts lacked jurisdiction over the 2005 killing in Baghdad by a US serviceman of an Italian intelligence officer in civilian clothes and the wounding of another officer and a reporter. The Court asserted that the action was accomplished by the serviceman while fulfilling his official duties, and that he therefore enjoyed functional immunity from foreign courts. According to the Court, this immunity was not removed by the fact that the killing allegedly amounted to a war crime. The Court took the view that war crimes are ‘grave breaches’ of international humanitarian law, and must be large-scale, odious and inhuman, as well as intentional acts, whereas the killing at issue was not. The author argues that the Court premised its reasoning on a clearly erroneous definition of war crimes.