The USA and Italian Sovereignty

A quick update on Lorenzo's post below, concerning the alleged involvement of the CIA in the extradjudicial kidnap and deportation to Egypt of the Milanese Imam, Abu Omar. Berlusconi's government has explicitly denied any prior knowledge, let alone authorisation, of the operation, referring in the process to reports in the Washington Post (see here - registration required) and other US newspapers to the contrary. Although the Post also (conveniently) suggests that both governments had agreed to deny all knowledge should information of the operation become public.

The Italian government has expressly refuted the allegations contained in that article. If true, it is very clearly a violation of international law, with echoes of the manner in which Adolf Eichmann was captured on Argentinian territory by Israeli special forces. Israel and Argentina, however, were able to sort out their differences diplomatically, and as such the Israeli courts felt no need to entertain the question of the effect of the illegal kidnap may have had on their jurisdiction to hear the case. The international legal wrong had been settled "out of court", as it were, and was thus held to be of no bearing in the case. Scant consolation, certainly, to the kidnapee, but probably legally sound; the relevant international duty is, after all, owed by states to states in terms of respect for sovereign equality, and not to individuals in terms of a right not to be kidnapped.

The US supreme court has, on the other hand, dealt with the issue, in its judgment - viewed by many as deeply flawed - in the (in)famous United States v. Alvarez-Machain case in 1992. Here a Mexican doctor, accused of using his skills in order to prolong the life of a US DEA agent who was being tortured by drug cartels, was kidnapped with the complicity of the US authorities and brought to the States to face trial. He claimed that the illegal manner of his arrest and deportation, coupled with the involvement of the US authorities, meant that the US courts lacked jurisdiciton over him. The Supreme Court rejected this, holding essentially that the manner in which a suspect is brought before them has no effect on its jurisdiction to hear the case. Alvarez-Machain was later acquitted.

There are, of course, significant differences as well as parallels between these cases and that of Abu Omar. Perhaps the most important of these being that both Eichmann and Alvarez-Machain were abducted with a view to placing them on very public trial. In the case of Omar, on the other hand, the rationale seems to have been quite the opposite - to take someone away from the public eye and from any possibility of a trial. Add to this the allegations of torture - prohibited both by treaty and custom, and veiwed by many as having crystallised into a peremtory norm of international law - that routinely accompany instances of "extraordinary rendition", and the issue of the potential jurisdiction of any court becomes murkier still. This, of course, is purely academic, as it seems that a trial was the very last thing on the minds of the CIA officers involved. Interesting to note, however, that the Milanese magistrate has complained that Abu Omar's kidnap has been a serious setback for attempts to combat terrorism in Italy, where he was under more conventional forms of investigation and surveillance for his alleged involvement in terrorism.

Again, however, the international legal question may quickly become of little practical import, if it is not already so. Meetings between Berlusconi and the US ambassador have resulted in some very formulaic pronouncements concerning the "full respect now and in the future" for Italian sovereingty on the part of the US. Reading these, it seems most likely that the Italian government plans not to make too much of a fuss over the incident, much as happened in the Eichmann case - although some opposition politicians have pointed out the absurdity of accepting US assurances that they have always fully respected Italian sovereignty and will continue to do so, in the light of the nature of the specific allegations. More importantly, however, the scope of public international law has widened considerably since the Eichmann incident. No longer are duties owed only between states; many now argue that individuals (thanks, in large part, to the importance of international human rights law) now have a limited subjectivity in the international legal system. If so, such blatant violations of the central rights to due process, not to mention the serious allegations of torture, must in themselves make the US liable under international law, regardless of the acquiesence or otherwise of the Italian government.

A moot point, of course, when evasion of the law and legal processes was the entire rationale for the operation in the first place...