¹ See UN Security Council Resolution 1088 (1996) of December 12, 1996, on the situation in Bosnia and Herzegovina, authorizing

the Member States acting through or in cooperation with the organization referred to in Annex 1–A of the Peace Agreement [NATO] to establish for a planned period of 18 months a multinational stabilization force (SFOR) as the legal successor to IFOR under unified command and control in order to fulfil the role specified in Annex 1–A and Annex 2 of the Peace Agreement. (Para. 18)

It further authorized “the Member States to take all necessary measures, at the request of SFOR, either in defence of SFOR or to assist the force in carrying out its mission” (para. 20). The U.S.-led SFOR mission was approved on December 17, 1996, by the NATO Defense Ministers. On December 21, 1996, air force units previously associated with Operation Decisive Endeavor in support of IFOR were transferred to Operation Deliberate Guard in support of SFOR.

² The victims were eight Germans, five Belgians, three Italians, two Poles, one Dutch woman and one Austrian man.

³ Article 112 reads: “The Public Prosecutor is responsible for instituting penal proceedings.” Const. Art. 112, translated in 9 Constitutions of the Countries of the World (Albert P. Blaustein & Gisbert H. Flanz eds., 1987).

⁴ Under Article 20 of the Italian Code of Criminal Procedure, jurisdictional questions may be raised at any stage or phase of the proceedings by the courts on their own motion.

⁵ Agreement between the Parties to the North Atlantic Treaty regarding the Status of Their Forces, June 19, 1951, 4 UST 1792, 199 UNTS 67, 48 AJIL Supp. 83 (1954).

⁶ The Italian Government had requested a waiver of jurisdiction both for the seriousness of the incident, which had sparked a public outcry, and for the opportunity to make a complete assessment of responsibilities in a single trial, should Italian nationals also be charged with responsibility for the accident. According to Article VII, paragraph 3(c), of the NATO SOFA, however, the state with the primary right to exercise jurisdiction must give “sympathetic consideration” to a request for a waiver in cases where me other state considers the waiver to be of “particular importance.” The United States declined to waive its jurisdiction.

⁷ The Trento judge’s decision was subject to appeal to the Court of Cassation, but no appeal was taken within the requisite time.

⁸ Article VII, paragraph 6 of the NATO SOFA, supra note 5, requires that the authorities of the receiving and the sending states assist each other in investigations and the production of evidence.

⁹ Emphasis in original. The board’s findings were annexed to the prosecutor’s request for committal to trial. The board’s findings were summarized in N.Y. Times, Mar. 12, 1998, at A1.

¹⁰ Capt. Richard Ashby, the plane’s pilot, Capt. Joseph P. Schweitzer, the navigator, and Capts. Chandler Seagraves and William Raney, who manned the aircraft’s rear seats.

¹¹ Request for committal to trial to the Judge of the preliminary hearing of the Court of Trento, No. 113/98 (May 27,1998) (unpub.). This request followed the findings and recommendations of the Italian and U.S. joint investigation board but preceded the results of “Article 32 hearings” on whether or not to court-martial the four crew members. Italian criminal procedure sets a time limit of six months for the “preliminary investigation” phase (and provides for an extension if the investigators’ needs so require). Thus, the prosecutor could well have postponed the request until after the U.S. military hearings, which were already scheduled for the months of June and July.

¹² The VMAQ-2 Squadron’s commanding officer, Lt. Col. Richard A. Muegge, and the commanding officers of the 31st Fighter Wing stationed at Aviano air base, Timothy Peppe and Marc Rogers.

¹³ Both charges were filed with aggravating circumstances: manslaughter causing the “death of more than one person,” and endangering the safety of public transport “followed by disaster,” under Article 589, paragraphs 1 and 3 (Count a), and Articles 432, paragraphs 1 and 3, and 499 (Count b) of the Italian Criminal Code, respectively.

¹⁴ The pilot, Capt. Ashby, faces charges of involuntary manslaughter, negligent homicide, damage to military property, damage to private property and dereliction of duty; the navigator, Capt. Schweitzer, faces charges of negligent homicide, damage to military property, and dereliction of duty. After a new “Article 32” hearing, additional charges were brought against them of obstruction of justice and conspiracy to obstruct justice by removing a tape from the cockpit and attempting to stop the investigation by hiding or destroying evidence. Courts-martial were scheduled for December 7, 1998, and January 4, 1998, respectively.

¹⁵ The latter’s attorneys had argued that they had limited visibility from the rear cockpit and had no control over where the plane flew. Lt. Gen. Pace agreed with that recommendation.

¹⁶ Law No. 1335 of Nov. 30, 1955, Gazz. uff., Jan. 10, 1956, No. 7.

¹⁷ The NATO SOFA was held to be restating the well-established principle of customary international law of the “law of the flag.” The status of forces abroad in the absence of a treaty providing for the exercise of criminal jurisdiction was discussed by Serge Lazareff, Status of Military Forces under Current International Law 11–18 (1971). For a thorough analysis of state practice before World War II, see G. P. Barton, Foreign Armed, Forces: Immunity from Criminal Jurisdiction, 27 Brit. Y.B. Int’l L. 186 (1950); and G. P. Barton, Foreign Armed Forces: Qualified Jurisdictional Immunity, 31 Brit. Y.B. Int’l L. 341 (1954). See also D. S. Wijewardane, Criminal Jurisdiction over Visiting Forces with Special Reference to International Forces, 41 Brit. Y.B. Int’l L. 122, 141, 146, 194 (1965–66) (holding that Article VII, far from being a “radically new system,” is a coherent statement of the principles and practices that had already emerged in international law). The view that no general rule of international law supports foreign forces’ immunity for actions taken in their official capacity was recently advanced by Pasquale de Sena, Diritto internazionale e immunità funzionale degli organi statali 244–50 (1996).

¹⁸ Agreements referred to included the Bilateral Infrastructure Agreement (BIA) of October 20, 1954; the Memorandum of Understanding (MOU) on the use of the Aviano air base of November 30, 1993; and the Shell Agreement of February 2, 1995, between the Italian, Minister of Defense and the U.S. Department of Defense. Because of their nature as “classified information,” the content of these agreements was known to the prosecutor but could not be revealed. “Declassification” had been requested but not yet granted.

¹⁹ Presidential Decree of Dec. 2, 1956, No. 1666, Gazz. Uff., Mar. 16, 1957, No. 70. Article 1 states that the Executive may waive jurisdiction under the NATO SOFA; courts verify only that the waiver is “admissible and valid.”

²⁰ Article 101, clause 2 of the Italian Constitution, supra note 3, reads: “The judges are subject only to the laws.”

²¹ Whether an offense is “done in the performance of official duty” and who decides this question is one of the major legal problems arising under the NATO SOFA. For the view that “[t]o make the commanding officer or to make the courts of the receiving State the final arbiter of this question seem to be equally objectionable alternatives,” see R. R. Baxter, Criminal Jurisdiction in the NATO Status of Forces Agreement, 7 Int’l & Comp. L.Q. 72, 79 (1958). For the proposition that the military authorities of the state of origin are the proper authority to make this determination, based on the travaux preparatoires of the NATO SOFA and subsequent practice, see Joseph M. Snee & A. Kenneth Pye, Status of Forces Agreements and Criminal Jurisdiction 46–54 (1957); and Lazareff, supra note 17, at 170–93. On Italian courts’ practice, see Vassalli di Dachenhausen, L’art. VII delta Convenzione di Londra sulleforze militari NATO e il giudice penale italiano, 26 Comunicazioni e Studi 487, 512–25 (1980). The U.S. position that “determinations of duty status by the sending state are similar to statements of status issued by the Department of State which conclusively declare who is entitled to diplomatic status” is reported in Joseph H. Rouse & Gordon B. Baldwin, The Exercise of Criminal Jurisdiction under the NATO Status of Forces Agreement, 51 AJIL 29, 41 (1957).

²² Article VII, paragraph 8 of the NATO SOFA, supra note 5, reads:

Where an accused has been tried in accordance with the provisions of this Article by the authorities of one Contracting Party and has been acquitted, or has been convicted and is serving, or has served, his sentence or has been pardoned, he may not be tried again for the same offense within the same territory by the authorities of another Contracting Party.

²³ Article 32 hearings are the military equivalent of grand jury proceedings and therefore constitute per se a form of exercise of jurisdiction, whatever their outcome. See Snee & Pye, supra note 21, at 71. These authors discuss what type of action by the United States constituted an exercise of jurisdiction in the Whitley case and express doubts that even the formal procedure provided for in Article 32 of the Uniform Code of Military Justice could represent an exercise of American jurisdiction and subsequently bar a trial in the receiving state. In Aitchison v. Whitley, Trib. correctionnel de Corbeil, Apr. 5, 1954, reported in 43 Revue Critique de Droit International Privé 602 (1954), the issue was whether France, despite having waived its primary right to proceed, could regain its jurisdiction over the case once the United States decided not to try the accused. As was noted by Snee & Pye, supra, at 70, the question is very similar to the problem arising when a state has the primary right to exercise concurrent jurisdiction under Article VII, paragraph 3(a): “The only difference would appear to be that in the latter instance the primary right is vested in the sending State from the date of the offense, while in the former situation the sending State obtains the right to proceed only after a waiver has been granted by the receiving State.”

²⁴ On August 9, Lt. Gen. Pace called for additional hearings regarding four squadron supervisors on the charge of dereliction of duty: the commanding officer, Lt. Col. Muegge; the executive officer, Lt. Col. John G. Koran III; the Director of Standardization and Safety, Maj. Max A. Caramanian; and Operator Officer Maj. Kirk S. Shawhan. After a military probe into whether they should be disciplined for dereliction of duty, Lt. Col. Muegge was relieved of his duties, reprimanded and reassigned, and Maj. Caramanian received a letter of reprimand. Apparendy, no action was taken against commanding officers Rogers and Peppe, who were among the accused in the Italian proceedings.

²⁵ See supra note 23.

²⁶ Proceedings are still pending in Italy against a U.S. serviceman (Thayer Brian Mahoney) on the charge of having given false statements to the public prosecutor during the preliminary investigation. See Annalisa Ciampi, Quale Sorte per i procedimenti delta magistratura italiana rispetto alla strage della funivia del Cermis? 81 Rivbta di Diritto Internazionale 475, 478 (1998).