Francesco Messineo will join Kent Law School (Canterbury) as a Lecturer in Law in October 2010. He is currently a PhD candidate at the University of Cambridge.  Between 2004 and 2006, he was the Refugee Coordinator of the Italian Section of Amnesty International. His most recent publications include an aritcle in the Journal of International Criminal Justice  on the Abu Omar Case

Doves and hawks?

Judgments delivered by the Fourth Criminal Section of the Tribunal of Milan, in Italy, do not generally make compelling reading for admirers of John Le Carré or Ian Fleming. Nevertheless, the one delivered in February 2010 by Dr Oscar Magi is a remarkable exception, for it contains a graphically detailed account of how the CIA and the Italian secret services conducted their ‘anti-terrorism’ operations in 2003 – down to the mobile phone numbers they used, the Internet map services they employed, and the type of private jets they chartered.[1] Above all, however, a rather chaotic state of affairs emerges from all this. Those CIA agents whose job was to abduct people in the ‘extraordinary renditions’ program probably believed that they were welcome to act as they pleased in Italy, and that they would be allowed to do so irrespective of Italian law.[2] Judge Magi strongly affirmed that they were not – and long prison sentences were imposed on many of them. One does not very often see CIA agents convicted by the courts of a friendly state. This may explain why the CIA committed one of its worst strategic mistakes in the last decade and overlooked both the constitutional independence of the Italian judicial system and the strong institutional tensions between different branches of the Italian government. In practice, because all the convicted Americans were tried in absentia, this simply means that they will not be able to travel to Europe for quite some time – or will have to do so under different identities, which presumably should not be an insurmountable problem for them. Yet, this case is quite remarkable because it is the only ‘renditions’ trial that reached the verdict stage. As such, it had quite some impact in the multifaceted relationship between Italy and the United States (see here and here for the ‘concerns’ and ‘disappointment’ of the State Department). In addition, it highlighted the untenability of some aspects of the fight against terrorism: not surprisingly, Human Rights Watch declared that this case ‘put the war on terror on trial’. Because it would be inappropriate for an international lawyer to comment on the former aspects (Italo-American relationships are best left to those who know more about them), I will focus on the latter issues – why renditions are untenable as a matter of law and policy. To do so, I will start by describing the evident conflict of power arising from the outset in this particular case. (more…)