Alleged CIA Kidnapping of Muslim Cleric in Italy

Introduction

 

In late June 2005, it was reported that an Italian judge had issued arrest warrants for 13 U.S. CIA agents accused of kidnapping imam Hassan Mustafa Osama Nasr in Italy in 2003, and sending him to Egypt for questioning regarding possible terrorist activities. Nasr apparently is an Egyptian national, although he was living in Italy when he was abducted. Allegedly, when he arrived in Egypt he was imprisoned and tortured during interrogations. The Italian government has denied that it condoned his abduction, but former CIA agents have said that an Italian intelligence official gave his implicit approval.[1]

 

The case raises several questions under international law. Did the United States violate Italy's sovereignty if CIA agents abducted Nasr in Italy, as alleged? Did the United States violate its international legal obligations if it delivered Nasr to the control of a government that would be likely to torture him or to acquiesce in acts of torture against him? Could Italy obtain extradition of the CIA agents (who apparently are no longer in Italy)? If Italy does get custody of them, would they be immune under international law from prosecution in Italian courts?

 

Italy's Sovereignty

 

In 1927 the World Court set forth a basic rule: "the first and foremost restriction imposed by international law upon a State is that - failing the existence of a permissive rule to the contrary - it may not exercise its power in any form in the territory of another State."[2] Agents of one State who abduct someone in another State would be exercising State power. There is no general rule of international law permitting that kind of State power in the territory of another State. Nevertheless, the latter State -Italy in this case - could waive its right to object, by consenting to the exercise of power. If Italian officials did consent, even tacitly, that should do away with the violation-of-sovereignty issue.

 

The Torture Issue

 

Torture is universally regarded as a violation of international law. No government openly asserts that torture is lawful. It is condemned under several treaties, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a multilateral treaty to which 139 States (including Egypt, Italy and the United States) are parties. Article 3 of the Convention against Torture says, "No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." It goes on to say that the existence of a consistent pattern of gross, flagrant or mass violations of human rights should be taken into account in ascertaining whether that standard is met. The United States understands "substantial grounds for believing that he would be in danger of being subjected to torture" to mean "if it is more likely than not that he would be tortured."[3]

 

It could be argued that even if U.S. agents kidnapped Nasr and had him delivered to Egypt for questioning, the United States did not "expel, return or extradite him" within the meaning of the Convention. Clearly, the United States did not extradite him, and it probably could not be said to have "expelled" him within the meaning of the Convention. The question then would be whether it "returned" him to Egypt. Arguably not, since he apparently was living in Italy and had not come there from Egypt. But the contrary argument could also be made, since he apparently is an Egyptian national who lived in Egypt at some time in the past.

 

It could also be argued that there were not substantial grounds for believing that Nasr would be in danger of being subjected to torture, even if Egypt had tortured some prisoners in the past. But here again, a counter-argument could be made -- particularly if the United States had substantial grounds for believing that Egypt in the past had consistently tortured prisoners, or had in particular tortured prisoners like Nasr (for example, those suspected of terrorist activities).[4] If there were substantial grounds, it would not matter for purposes of Article 3 of the Convention whether he was actually tortured once he got there. If there were not substantial grounds in advance to believe he would be in danger of torture, Article 3 would not be violated even if he was actually tortured after he arrived. Article 3, in other words, looks to what could be expected rather than to what actually happened after the individual has been turned over.

 

Extradition

 

News reports have not indicated where any of the 13 CIA agents are now. Since they apparently are not in Italy, the Italian prosecutors are hoping to have them extradited back to Italy for trial if they can be located.[5] Extradition is normally accomplished under an extradition treaty between the requesting and the requested State. Extradition requests are made through diplomatic channels, not directly by prosecutors or by the judge who issued the arrest warrants. If the Italian government acquiesced in the kidnapping, it is unlikely that it would request extradition of those who carried it out. That would end the matter, at least if none of the 13 return to Italy on their own.

 

If an extradition request were made to the United States government, and if any or all of the 13 agents are in the United States, the controlling international legal instrument would be the 1984 Extradition Treaty between the United States and Italy.[6] It says that an extraditable offense is one that is punishable under the laws of both States by a prison sentence of one year or more. Assuming that the conduct of the 13 agents would be treated as kidnapping under Italian law, the next question would be whether it would fall within a relevant kidnapping statute in the United States. Looking just at the federal kidnapping statute (which does provide for sentences of at least one year), it applies to "[w]hoever unlawfully . . . kidnaps . . . or carries away and holds for ransom or reward or otherwise any person . . . when the person is willfully transported in interstate or foreign commerce . . . ." Because of the words "or otherwise," the statute has been held not to require that the abductors' purpose be pecuniary gain. But the U.S. Supreme Court has said that Congress' evident purpose in adding the words "or otherwise" was to reach abductors who seek some benefit for themselves, even if it is non-pecuniary.[7] That probably would not be the case with respect to the CIA agents, who presumably would not have been seeking direct benefits for themselves if they were carrying out instructions from their superiors in the U.S. government.

 

The United States-Italy Extradition Treaty does not permit either State party to decline extradition simply because the person sought to be extradited is its own national. But the Treaty does say that extradition shall not be granted when the offense for which extradition is requested is a political offense. Many other extradition treaties say the same thing. There is doubt about just how far the "political offense" exception extends. It has been said that "[t]he purpose of the political offense exception is to shield persons whose prosecution or punishment by the requesting state is politically motivated or for an offense whose genesis is the criminalization of conduct which constitutes an expression of political or religious belief."[8] It has also been noted that in practice, the political offense exception is rarely used successfully.[9] The exception certainly could be asserted in the case of the CIA agents, but whether it would be successful (assuming that the kidnapping is otherwise covered by the Treaty) is hard to predict.

 

Possible Immunity from Italian Prosecution

 

One of the American suspects apparently is a retired diplomat.[10] Others may have been diplomats at the time of the abduction. Members of the diplomatic staff of an embassy or other diplomatic mission are immune from the criminal jurisdiction of the receiving State, unless the sending State expressly waives their immunity.[11] Diplomats whose functions come to an end lose their immunity once they leave the country (or have had a reasonable opportunity to do so), except that they retain their immunity for acts performed in the exercise of their functions as members of the diplomatic mission.[12] Whether an act is performed in the exercise of those functions probably turns on whether it was ordered or sanctioned by the government of the sending State, rather than on whether it is the type of act normally performed by diplomats.[13] If it was ordered or sanctioned by the sending government (in this case the United States), a proceeding against the individual may be regarded as a proceeding indirectly against his or her government,[14] and that government is itself immune from criminal proceedings in the courts of other States. This argument might fail in a case against an individual accused of particularly egregious violations of human rights, such as crimes against humanity, but kidnapping, in itself, would not fall in that category.

 

The same rationale could apply even to any of the CIA agents who were not diplomats. It could be argued that they should enjoy the same sovereign immunity from a kidnapping charge in an Italian court as their government would.

 

Conclusion

 

It is unlikely that the CIA agents will ever successfully be prosecuted in an Italian court, even if the abduction of Nasr or the rendering of him to Egyptian authorities violated international law.

About the author

Frederic L. Kirgis, an ASIL member, is Law Alumni Association Professor of Law Emeritus at Washington and Lee University. He has written books and articles on international law, and is an honorary editor of the American Journal of International Law. The author is grateful to David A. Martin for his helpful comments on a draft of this Insight. Any errors or omissions are the author's own.

 

Footnotes

[1]N.Y. Times, June 24, 28, 29 and July 1, 2005.

[2] Case of the S.S. "Lotus" (France v. Turkey), P.C.I.J. Series A, No. 10, at p. 18. The Court was then formally called the Permanent Court of International Justice. It is now the International Court of Justice.

[3] United States' formal "Understanding" attached to its ratification of the Convention.

[4] Some of the relevant factors have been enumerated by the U.N. committee that administers the Convention. See the 1998 Report of the Committee against Torture, U.N. Doc. A/53/44, Annex IX.

[5] N.Y Times, June 28, 2005.

[6] 35 U.S. Treaties and Other International Agreements 3023, signed in 1983, entered into force Sept. 24, 1984.

[7] Gooch v. United States, 297 U.S. 124 (1936).

[8] M. Cherif Bassiouni, International Extradition: United States Law and Practice 602 (4th ed. 2002).

[9] Ilias Bantekas & Susan Nash, International Criminal Law 187 (2d ed. 2003).

[10] N.Y. Times, June 28, 2005.

[11] Vienna Convention on Diplomatic Relations, arts. 31 & 32, in 23 U.S. Treaties 3227.

[12] Id., art. 39(2).

[13] Eileen Denza, Diplomatic Law: A Commentary on the Vienna Convention on Diplomatic Relations 361 (2d ed. 1998).

[14] Id.