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Mario Luiz Lozano v. the General Prosecutor for the Italian Republic

This case summary is being revised and will be updated soon

Court Supreme Court of Cassation, First Criminal Chamber, Italy
Case number 31171/2008
Decision title Sentenza
Decision date 24 July 2008
  • General Prosecutor of the Appeal Court of Rome
  • General Prosecutor of the Tribunal of Rome
  • Giuliana Sgrena
  • Mario Luiz Lozano
Categories War crimes
Keywords Immunity (diplomatic), jurisdiction, war crimes
Other countries involved
  • United States
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Procedural history

On 3 January 2008, the Court of Assize of Rome stated that according to customary international law, offences committed by members of a military force deployed on the territory of a foreign state and therefore multinational forces in Iraq were under the exclusive jurisdiction of the sending country. For this reason the Court declined jurisdiction in the case.

Nevertheless, the General Prosecutor of the Appeal Court of Rome, the General Prosecutor of the Tribunal of Rome, and Giuliana Sgrena, appealed the Italian Supreme Court of Cassation. 

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Legally relevant facts

On 4 March 2005, the Italian SISMI (Military Intelligence and Security Service) agent, Nicola Calipari was killed while escorting to Baghdad Airport the recently-released Italian journalist, Giuliana Sgrena, kidnapped by Iraqi insurgents in February. On the way back to the airport, the car in which they were travelling was fired upon by Mario Lozano from a US army checkpoint. Lozano claimed that after seeing a car approaching at high speed he acted within the bounds of his duties. The US authorities agreed, and decided not to prosecute Lozano. However, Lozano was tried in absentia by the Italian authorities.

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Court's holding and analysis

The Court held that, on the basis of the 'passive personality principle', no rule of international law prevented the exercise of jurisdiction by a state over acts committed by the personnel of a sending nation. However, it further held that acta iure imperiiperformed by organs of a state in the discharge of their functions were covered by immunity (diplomatic immunity) and could therefore not be prosecuted under the jurisdiction of a foreign state. Though the Court recognised that a customary international rule was emerging that crimes under international law are not protected by the immunity, Lozano’s crimes were neither crimes against humanity nor war crimes. The Italian Supreme Court therefore confirmed that the jurisdiction of Italian courts was precluded by reason of immunity.

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Additional materials