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.