Jenks on Italy, the Abu Omar Rendition Prosecution, and Violation of the NATO SOFA

The following is a guest post from Chris Jenks. Chris formerly was a Judge Advocate and Chief of the International Law Branch at the U.S. Army’s Office of The Judge Advocate General. Now he is an assistant professor of law and director of the criminal justice clinic at the SMU Dedman School of Law.

On Wednesday, Italy’s highest court upheld the 2009 convictions of 22 CIA operatives and a US Air Force officer, then Lt Col Joseph Romano, stemming from the 2003 extraordinary rendition of Abu Omar. While issues abound from the abduction and the subsequent in absentia trials, that Italy violated the NATO Status of Forces Agreement (SOFA) has largely escaped comment let alone criticism. This post builds on a longer piece published in Harvard’s National Security Journal following the initial trial.

The CIA agents, working with Italian military intelligence (some of whom Italy also prosecuted), abducted Abu Omar, a member of Egyptian extremist organization Gama’a al Islamiya, on his way to noon prayers in Milan. Omar was transported onto Aviano Air Force Base, where Romano served as the commander of military security forces that controlled access into, and provided security on, the base. Allowing the proverbial windowless van onto the base was the extent of Romano’s “involvement” in the abduction. Omar was flown to Egypt, where he was held incommunicado and reportedly tortured for several months.

An Italian trial court sentenced the CIA operatives and Romano to jail terms ranging from 5 to 8 years. The court also awarded Omar €1 million in damages, to be paid by the defendants. To that end, the Italian prosecutor seized and sold the retirement home of one of the CIA operatives who was planning to retire in Italy. The sentences were affirmed – and increased – by an intermediate appellate court in 2010.

Abu Omar’s abduction has (appropriately) received considerable attention and criticism. But as discussed in the earlier piece, Italy’s in absentia prosecutions were hardly a human rights victory. And in Romano’s case, missing from the rhetoric is Italy’s violation of the NATO SOFA. Article VII of the NATO SOFA provides that the military authorities of sending State, here the U.S, “shall have the primary right to exercise jurisdiction over a member of the force [like Romano]…in relation to… offences arising out of any act or omission done in the performance of official duty.”

The NATO SOFA drafters were unable to reach consensus on the definition of “official duty”. But over 60 years of State practice have made clear both that the sending State determines official duty and that the determination is conclusive. There have been rare instances of local prosecutors initiating criminal investigations and even charges where a NATO sending State has asserted a primary right of jurisdiction. But Romano’s case is the first time in NATO’s history where a breach of the SOFA has continued through, and was perpetuated by, all levels of the receiving State’s criminal court system. With the Court of Cassation’s ruling, Italy’s breach of the NATO SOFA is now final.

The Italian trial court rejected the U.S. assertion, submitted through the Italian Minister of Justice, that Romano’s acts or omissions arose from official duty. The trial court claimed that there was no U.S. analog to the charged offense, article 605 of the Italian Penal code, which covers illegal detention, and thus no concurrent jurisdiction issue to resolve. While that is literally true, the U.S. indeed does not have an article 605 dealing with illegal detention, the U.S. in both federal and military law has kidnapping statutes. Thus the trial court conducted the wrong inquiry (attempting to discern applicable U.S. law) and did so incorrectly (ignoring kidnapping), thus ducking the jurisdictional dispositive issue-the official duty determination. This legal sophism continued at both the appellate and now Italy’s highest Court.

The U.S. attempted diplomatic measures to press Italy to follow the NATO SOFA and respect the U.S.’ primary right of jurisdiction. http://www.cablegatesearch.net/cable.php?id=10ROME172 And, later, the State Department expressed its disappointment at the verdicts. That was three years ago.

At what point will the U.S. government do more on behalf of Romano? Romano has spent the last three years facing the prospect of arrest. While Italy has stated they will not request his extradition, that doesn’t mean Romano isn’t at risk of apprehension. Between the European Convention on Extradition and Italy’s extradition agreements around the world, there is virtually no place in the world outside of the United States and its territories where Romano is safe from apprehension. And his assets remain at potential risk of forfeiture and seizure by the Italian prosecutor to pay Romano’s portion of the damage award to Omar.

The U.S. could report Italy’s NATO SOFA violation to the NATO Secretariat. Even official statements from the Defense or State Department condemning the ruling and expressing support for Romano would be a positive step. But instead there is deafening silence from inside the beltway.

There are any number of strategic reasons behind the U.S. not publicly raising Italy’s treaty breach. Italy’s support for ISAF and the war in Afghanistan, U.S. headquartering U.S. Army Africa in Italy, and even maintaining NATO’s viability. And while people are often the currency and thus the opportunity cost in the cold calculus of foreign policy, the cost and the people associated with it are amorphous, nameless, numbers. But here the foreign policy opportunity cost has a face and a name – U.S. Air Force Colonel Joseph L. Romano III.