Friday, February 17, 2006

Italian Court: Suicide Bombings Directed Against US Soldiers Not Terrorism

In a decision bound to upset the US government and most Americans, an Italian appellate court has upheld a lower court's acquittal of three North African men accused of recruiting suicide bombers to attack US soldiers in Iraq. The men had been charged with international terrorism, a crime adopted in Italy following 9/11. The appellate court ruled that, in the context of an armed conflict, suicide bombings directed against the armed forces of one of the parties to the conflict represent guerrilla warfare, not terrorism; such bombings are terrorist acts only when directed against civilians.

The AP describes the appellate court's decision as indicative of "the frequent failure by prosecutors in Italy to win cases against terror suspects." Nevertheless, the horrific nature of the acts in question notwithstanding, it's unclear whether the decision is incorrect. As Philip Carter has pointed out with reference to the infamous attacks on the four civilian contractors in Fallujah,

The Iraqi guerillas define themselves as freedom fighters fighting an unjust occupation. If the Iraqi insurgents can be categorized in some way as combatants, then they are entitled to lawfully kill in wartime just as American soldiers can. Essentially, this doctrine of "combatant immunity" allows soldiers to kill in war as a form of justifiable homicide.

Obviously, American and Iraqi authorities have branded the Iraqi insurgency a criminal -- and indeed, terrorist -- enterprise, and branded its acts unlawful as a result. But there is at least a colorable argument that there should be combatant immunity on the part of the Iraqi insurgents.

Indeed, the US Defense Department's definitions of "guerrilla," "insurgent," and "terrorist" seem to indicate that the Iraqi suicide bombers are guerrillas (or insurgents), not terrorists:
Doctrinally, we (DoD) define terrorism as “the calculated use of violence or threat of violence to inculcate fear; intended to coerce or to intimidate governments or societies in the pursuit of goals that are generally political, religious, or ideological.”

Doctrinally, we (DoD) define insurgency as “an organized resistance movement that uses subversion, sabotage, and armed conflict to achieve its aims. Insurgencies normally seek to overthrow the existing social order and reallocate power within the country. They may also seek to: (1) Overthrow an established government without a follow-on social revolution; (2) Establish an autonomous national territory within the borders of a state; (3) Cause the withdrawal of an occupying power. (4) Extract political concessions that are unattainable through less violent means.”

Doctrinally, guerrillas are the “overt military aspect of the insurgency.” They exist alongside their counterparts, the auxiliary and the underground.

On the other hand, the Italian Penal Code's current definition of terrorism -- obviously the only relevant definition here -- does not seem to categorically exclude branding suicide bombings directed at US soldiers as terrorism:
The definition of terrorism in Article 270 bis of the Italian Penal Code has been widened by Law 155/2005, which came into force on 2 August 2005, and includes promoting, constituting, organising, managing or financing organisations which intend to carry out violent activities, or assisting any individual (excluding a close relative) who participates in such organisations. It also includes enrolling or training individuals to carry out violent activities if, in view of their nature or context, such activities might cause grave harm to a country or international organisation, and are intended to intimidate the population or to constrain the powers of the state or international organisations to carry out or not carry out any activity, or to destabilise or destroy fundamental political, constitutional, economic and social structures of a country or of an international organisation. This includes foreign states and international organisations or institutions. This definition is in addition to other acts defined as terrorism or as carried out for terrorist purposes in international conventions or laws to which Italy is bound.
The basic question, I imagine, is whether attacks on US soldiers -- as opposed to Iraqi soldiers -- satisfy Article 270, given that (1) the US military is clearly not part of Iraq's political, constitutional, economic, or social structure; and (2) the US military is probably not an "international organization" for purposes of the Article. If such attacks to do not satisfy Article 270, the appellate court's decision is most likely correct.

In the end, I am simply not competent to pass judgment on the merits of the decision. I am not an expert in Italian substantive criminal law, nor have I read the decision itself. If there are any Italian readers of Opinio Juris who know more about the issue, their thoughts would be most welcome.

UPDATE: Lorenzo Zucca, who blogs at the always interesting Transatlantic Assembly, notes that the Italian Court of Cassation will review the decision. He says that the appeal will apparently focus on the appellate court's conclusion that "only acts exclusively directed against the civilian population" qualify as terrorism. That makes sense, given that a civilian population does not lose its protected status under the Geneva Conventions simply because there are soldiers in its midst. A better rule, therefore, might be that although a suicide bombing that is exclusively directed at soldiers does not qualify as terrorism, a suicide bombing that targets soldiers but also injures or kills civilians does.

Zucca's post is here.


Blogger Lorenzo Zucca said...

Hi Kevin, interesting post.
I believe Italian law is not very clear about the issue. Also, this is by no means the final decision on the matter. The Supreme Court has still to say its word.
I say a little more on my blog:

2/17/2006 6:12 AM  
Blogger Kelly Scott said...

Hmmm... quote: "might be that although a suicide bombing that is exclusively directed at soldiers does not qualify as terrorism, a suicide bombing that targets soldiers but also injures or kills civilians does."

Not sure I understand. A US bomb that kills soldiers but also kills civilians is not 'terrorism' if it is used discriminately, proportionaly and under military necessity - yet civilians still die. Shouldn't the same calculus be applied to suicide-bombers? That is, if their action is directed against combatants, used discriminately, proportionaly and under military necessity, and civilian death are only incidental, then neither should suicide bombers be terrorists. Unless the significant difference is suicide? But that seems to make neither practical nor legal sense...

2/17/2006 2:20 PM  
Blogger Eric Iverson said...

It seems to me that what is missing in this conversation is the concept of “perfidy” in the law of war. If a suicide bomber attacks military objectives during periods of armed conflict (i.e. US Soldiers in this example) the attack may not constitute a war crime of terrorism in that the purpose of the attack would not be to spread terror among the civilian population. However, such attacks almost always violate the law of war because they are almost always perfidious. Suicide bombers generally feign civilian status to gain the trust of a defender or to camouflage their intent. They use this feigned civilian status to maximize their effect. The crime that suicide bombers commit when attacking soldiers is not a crime of terrorism but the war crime of perfidy. (See, e.g., Art. 37, Additional Protocol I).

2/17/2006 3:44 PM  
Blogger Seth Weinberger said...

Interesting post...

One thing that I haven't seen discussed (although I do mention it over at my blog) is whether the nationality of the acquitted matters. That is, I certainly agree that Iraqis have the right to resist the occupation of their country and that using violence against the occupiers (i.e. the US military) is a legitimate use of force and not terrorism. But these guys weren't Iraqi, they were North African. It seems as if there's a question of "standing" here. These people weren't and aren't directly harmed and affected by the occupation; nor do they seek a political alternative to the occupation. Perhaps that changes the nature of their actions?

2/17/2006 4:31 PM  
Blogger Patrick said...

This would all make perfect legal sense, except that Italy is a member of NATO. As a member of NATO they are obligated to the principle that an attack on one is an attack on all. If their legal system is unable to prosecute attackers, that is fine.

Italy merely neeeds to turn over the recruiters to a juridiction that can prosecute them, or repudiate its NATO membership. I'm sure that Croatia will be overjoyed to provide us with bases, and will be quite happy to prosecute persons who attack their treaty partners.

2/18/2006 3:07 PM  
Blogger reliapundit said...

not only does NATO make this itlaian judicial decision WRONG, but so does the fact that the US occupation is entirely LEGAL and endorsed by the UN. Attacks against the US are illegal terror attacks, not an insurrection against an illegal occupying force.

also: the chief victims numericially are muslims/shias not US armed forces.

2/18/2006 3:17 PM  
Blogger Patrick said...

Also, the testimony of suicide bombers who were tricked into suicide attacks is not being taken into account. The bad faith of the recruiters is not being taken into account when defining their legal standing. Which brings us to the fundamental failure of this ruling, it presupposes civilized behavior as a baseline that is not in evidence.

2/18/2006 3:39 PM  
Blogger KA said...

The Italian court's view is in line with the definition of terrorism that the US was eager to push through as part of UN reform last year. That definition, which began diplomatic life as a draft comprehensive anti-terrorism convention offered by India in General Assembly Sixth Committee discussions, was picked up and expanded by the SG's High Level Panel report. It defines terrorism exclusively in terms of being directed against civilians and noncombatants. I think this presents a very significant problem, given that it would then permit under the definition attacks by, say, the IRA against British soldiers in Gibraltar, or ETA attacks cross border from France against Spanish soldiers. And worst of all, it tacitly accepts the idea - since it is drawn directly from the law of war concept - that a permitted attack directed upon soldiers might have permissible collateral damage to civilians and not qualify as terrorism. I understand all the reasons why the SG and the US believe it a large step forward to get through a definition which rules out suicide bomber attacks directed against civilians, but it leaves a gaping hole on acts which the US and most countries, even Italy if its soldiers were being targeted, would characterize as terrorism. Any in any case, Egypt and others of the Islamic conference scuttled this 'new' definition of terrorism on the same old-same old 'resistance to colonial and racist occupation grounds'.

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