The Army Lawyer | Issue 1 2021View PDF

null The 1985 Sigonella Episode and the Limits of the United States-Italian Relationship

Mount Etna, an active volcano on the island of Sicily, is in full view behind Naval Air Station Sigonella. (Credit: Mass Communication Specialist 3d Class Jacques-Laurent Jean-Gilles)

No. 1

The 1985 Sigonella Episode and the Limits of the United States-Italian Relationship

Picture this: It is the night of 10 October 1985. Four Islamic terrorists with American blood on their hands are huddled in a grounded airplane in Sicily, Italy. They are surrounded by Italian and U.S. forces, but the two allied militaries are pointing their guns at one another, not at the terrorists. With the plane in the middle, the first ring is composed of Italian airmen with weapons pointed at U.S. Special Forces, who are surrounded by armed Italian Carabinieri. This is not science fiction. This chaotic scene took place at Naval Air Station Sigonella during the height of the Cold War; it demonstrated both the limits of the United States-Italian relationship and the constraints of international agreements, most importantly the North Atlantic Treaty Organization (NATO) Status of Forces Agreement (SOFA).

Italy is a key platform to project power in Europe, the Middle East, and Africa. Once known for its automatic vote in favor of the United States and NATO, the friction in Sigonella showed that Washington could push Rome too hard. In an environment in which the bilateral relationship is no longer bounded by the Cold War, the incident leaves us with a question: What risks does Washington run if it bends international agreements or does not take the political context into account?

History of U.S. Presence in Sigonella

In 1985, Italy maintained critical installations for the U.S. Army, Air Force, and Navy, and—thereby—met an indispensable need for the United States in its mission to face down the Soviets. The most important of these were the Army’s sites in Vicenza and Pisa, the Air Force’s in Aviano, and the Navy’s in Naples and Sigonella. After World War II, U.S. forces left Italy, but returned in the 1950s for a number of reasons: to resupply U.S. forces in Germany; to establish Cold War outposts; and to project force in the Mediterranean and Middle East.

Naval Air Facility Sigonella (now Naval Air Station (NAS) Sigonella) was established in 1959 because the British facilities in Malta were unable to handle all of the U.S. military air traffic. Naval Air Station Sigonella is located near Catania on the eastern coast of Sicily. The U.S. Navy obtained NATO backing for the site, and its importance has steadily grown, with the Navy nicknaming it “Hub of the Med.” Naval Air Station Sigonella now hosts thirty-six tenant commands representing the U.S. Navy, Army, Marine Corps, Air Force, and NATO.1

Naval Air Station Sigonella is an Italian Air Force installation that hosts U.S. forces under the NATO SOFA and other bilateral United States-Italian agreements. All installations in Italy that host U.S. forces are Italian installations that have Italian commanders, with specific rights, privileges, and obligations delineated to U.S. forces.

Geopolitical Situation in 1985

Additionally, 1985 was the year that President Ronald Reagan began his second term; his administration could see progress in its more aggressive prosecution of the Cold War. Reagan believed the way to end the Cold War was through a tough foreign policy, not obsequiousness to Moscow, and he and members of his administration became frustrated with European allies that took a softer approach. After four decades in power, the centrist Christian Democrats in Rome—longtime American allies—no longer held the Prime Minister’s office. The Socialist Party (PSI) now led Italy’s coalition government, with Prime Minister Bettino Craxi taking office in 1983. At the same time, international terrorism was on the rise, primarily originating from the conflict between Israel and the Palestinians.

Craxi’s PSI was a minority party, but it was a dynamic one compared to the much bigger sclerotic Communist Party and Christian Democratic Party. The PSI became a kingmaker. Craxi reportedly said, “I’ll show you what can be done with only 10 percent of the votes.”2 Craxi’s foreign policy was firmly pro-NATO and anti-Communist. The clearest demonstration was his willingness to accept American cruise missiles, also known as “Euromissiles,” on Italian soil in 1984 as a western response to the Soviet Union’s SS-20 missiles in Eastern Europe.3 At the time, it was a controversial decision for one of the leaders of the European Left. But for Craxi, the relationship with America was fundamental. When he addressed the U.S. Congress on 6 March 1985, Craxi said, “Italians and Americans have the same faith, honor the same values, defend together the same principles: peace and liberty. We understand each other. Our relationship is precious.”4

However, Craxi also led the most independent foreign policy of any postwar Italian government, principally demonstrated by Rome’s interest in playing a bigger role in the Mediterranean. “We cannot accept the fact that things are done and undone in the Mediterranean without our opinion being heard or our interests being respected,” Craxi said.5

Craxi was in favor of a Palestinian state and regarded Yasser Arafat’s Palestinian Liberation Organization (PLO) as a legitimate partner to move toward the establishment of that state. After Craxi met with Arafat in Tunisia in 1984, he said that both the rights of the Palestinians and the legitimacy of an Israel state must be recognized.6

Hijacking in the Mediterranean

In October 1985, the Italian cruise ship Achille Lauro toured the Mediterranean with 800 passengers and crew, including 16 Americans. On 7 October, most of the passengers disembarked to visit Cairo, leaving 200 people on board. A waiter surprised four of the remaining passengers who were cleaning Kalashnikov rifles in their cabin. These passengers reacted by taking first the waiter, and then the entire ship, hostage.

The Palestinian terrorists later told authorities that their intent was not to hijack the Achille Lauro, but to launch an attack in Israel—a later stop of the cruise.7 Once the unplanned hijacking began, the terrorists demanded the release of fifty Palestinians detained by Israel.8 Arafat denied any PLO involvement in the hijacking and offered the PLO’s diplomatic assistance.9

At midnight on 7 October, Italy readied its special forces to liberate the ship, prepositioning them in Cyprus.10 On 8 October, Craxi rejected Reagan’s offer to use U.S. forces because the Achille Lauro was an Italian-flagged vessel. However, Rome favored negotiation, fearing a rescue operation would result in casualties. Although Washington deeply distrusted Arafat, Craxi believed the Palestinian leader was critical to a negotiated solution.11

On the second day of the hijacking, 8 October, the terrorists took a fateful action that would shape the international perception of the incident and have a significant impact on United States-Italian relations. Magid Youssef al-Molqi, one of the four terrorists, murdered an American passenger. The twenty-three-year-old native of Jordan selected Leon Klinghoffer—a sixty-nine-year-old Jewish New Yorker confined to a wheelchair—shot him twice, and threw his body overboard.12 In his court testimony, and later comments, al-Molqi indicated the murder was not part of a clear plan, but rather an increasingly desperate improvisation.13

Rome, Cairo, and the PLO were seeking a negotiated solution, and later claimed that on 8 October, they were unaware of Klinghoffer’s murder.14 In a deal brokered by the PLO, al-Molqi and three of his fellow terrorists were joined by Egyptian government officials and two PLO representatives. They flew on an Egypt Air flight toward PLO headquarters in Tunisia. Arafat said that he would take responsibility for the prosecution of the terrorists.

By the next day, 9 October, the Italian and American authorities were clearly aware of Klinghoffer’s murder, and Washington found the PLO’s negotiated solution unacceptable. Four U.S. fighter jets intercepted the Egypt Air flight and compelled it to change course towards NAS Sigonella.15

The legality of the U.S. approach was questionable. Even assuming that the United States enjoyed jurisdiction over the terrorists, there is the question of whether unilateral use of force was permissible under international law, namely under the Charter of the United Nations (the U.N. Charter)16 and customary international law. The interpretation of the prohibition of the use of force and the exception of self-defense under the U.N. Charter has arguably broadened over the decades in the framework of the war on terror. In the 1980s, the exceptions to the prohibition of the use of force under Article 2 of the U.N. Charter were defined narrowly.17 As provided under Article 51 of the U.N. Charter and customary international law, this assessment holds particularly true with regard to unilateral use of force as self-defense.18

The traditional approach is spelled out in the Nicaragua case from the International Court of Justice, which set a threefold limitation to the permissibility of unilateral use of force against terrorists.19 First, self-defense against armed attacks by non-state actors was admitted in principle, but only under rather stringent rules on attribution—i.e., that the state against which self-defense was directed had to exercise “effective control [over] the military or paramilitary operations” in question.20 Second, self-defense should be available only in response to grave infractions of the prohibition against the use of force.21 Finally, under the traditional approach, Article 51 and customary international law entitled states to “resort to force only defensively, in the presence of an armed attack and to the extent necessary to repel it.”22

United States forces’ interception of the Egypt Air flight was an act directed against a third state, to which the terrorists’ acts were not attributable. It would not be regarded as “necessary to repel” the “armed attack,” as the interception took place after the terrorists surrendered to the Egyptian authorities. In sum, it is hard to make the argument that the interception of the plane was permissible under international law.23

At the time, an internal Italian Ministry of Foreign Affairs legal analysis cited the NATO SOFA and the 1954 Bilateral Infrastructure Agreement and concluded two things: 1) the United States’ use of NAS Sigonella as a landing ground for forcing down the Egypt Air plane was “inappropriate” and 2) there were legal grounds to complain to NATO or U.S. authorities.24

As the planes approached Sicily, Reagan called Craxi and asked for permission to land at NAS Sigonella. Craxi granted permission; but, because he knew that the United States wanted to capture the terrorists, he had an armed force surround and protect the plane.

Immediately after the plane landed, a U.S. military plane landed and fifty Special Forces Soldiers disembarked. These Soldiers formed a ring around the Italian airmen. Wanting to further reinforce its position, the Italian government then sent in Italy’s militarized police, the Carabinieri, to form an outer ring. Now, there were two NATO allies facing off on an Italian Air Force installation that hosted the U.S. Navy. Italian Admiral Fulvio Martini recalled: “There were three concentric circles around the airplane. Ours were in Italian territory defending national law and would not move without precise orders. At all costs, the Americans intended to bring the four terrorists to the United States.”25

At the time, the New York Times offered this account:

When the Egyptian 737 pulled to a stop on the runway, several dozen Americans from the Army Delta Force clambered out of a C-141 transport plane that had just arrived and surrounded the civilian plane. Italian paramilitary Carabinieri also quickly converged on the plane. “Our intentions were to take the Palestinians off the 737, hustle them onto the C-141 and take off for the United States,” an Administration official said. “The Italian commander objected. We surrounded the plane, and then the Italians surrounded us.” Outside the closed airplane, the commanding general of the Delta Force unit and an Italian colonel argued over custody of the hijackers while more and more Italian troops from the joint United States-Italian air base converged on the scene . . . . An Administration official said the Americans had placed trucks in front of and behind the Egyptian plane to keep it from moving. The Italians did the same with the American plane. “There were some heated exchanges,” an official said.26

These servicemen, used to serving alongside one another, had to answer to their political masters—a cold warrior in Washington who gave no quarter to terrorists, and a prime minister in Italy who wanted to be loyal to NATO, but also wanted his nation to be a bridge between Europe and the Arab world.

Whose Jurisdiction?

The United States forced the Egypt Air flight to land at NAS Sigonella because it was the closest military facility with a U.S. presence. However, the use of Sigonella in this manner raises questions about America’s adherence to the NATO SOFA. Article VII of the NATO SOFA prescribes that the sending State enjoys “exclusive jurisdiction over persons subject to the military law of that State with respect to offences . . . punishable by the law of the sending State, but not by the law of the receiving State.”27 The sending State enjoys concurrent jurisdiction with the receiving State with regard to offences punishable by the law of both States.28 The NATO SOFA did not entrust the sending State with jurisdiction over nationals of a third party with regard to offenses committed on a vessel cruising under the flag of the receiving State.

Craxi rejected Reagan’s request to immediately fly the terrorists to the United States, saying that would not be legal without Italy’s judiciary reviewing the extradition request.29 Craxi insisted that Italy had the right to try the terrorists because the criminal acts took place on an Italian ship in international waters.30 The stance of the Italian government was, at this stage, supported by international law. Article 92 of the Law of the Seas Convention of 1982 states, “ships shall sail under the flag of one State only and . . . shall be subject to the exclusive jurisdiction on the high seas.31

The U.S. claims of jurisdiction were weaker. United States officers labeled the acts of the terrorists as piracy and, in 1992, so did the U.S. District Court for the Southern District of New York.32 Effectively, the terrorists met the definition of “pirates” under U.S. law and practice, but the same is not as clear under international law.33 The law of nations considers pirates hostis humani generis—enemy of the mankind—“whom any nation in the interest of all capture and punish.”34 It is the so-called universal jurisdiction, entitling all states to prosecute the authors of certain crimes. The 1982 Law of the Sea Convention states that pirates must be onboard a different ship from that seized. Therefore, the framing of the seizure of the Achille Lauro as piracy is doubtful, especially in that it fails to meet the so-called two ship requirement. And, it is worth noting that—in this case—the terrorists were passengers of the Achille Lauro.35

Alternatively, the United States could rely on the passive personality doctrine, according to which states enjoy extraterritorial jurisdiction if one of their nationals is the victim of the offense. However, the doctrine’s legitimacy was questioned in the Lotus case from the Permanent Court of International Justice;36 and, most importantly, one of the doctrine’s major opponents has traditionally been the United States itself.37 Finally, the United States could claim jurisdiction under the United States-Italy Bilateral Extradition Treaty of 1983, also known as the “Extradition Treaty.”38 The terrorists were accused of piracy, murder, kidnapping, and hijacking. Each of these acts qualify under Article II of the Extradition Treaty, which makes any offense which is punishable by deprivation of liberty for more than one year an extraditable offense. According to Article VII of the Extradition Treaty, however, extradition may be refused if “the person caught is being proceeded against by the requested Party for the same acts for which extradition is required.”39 Because the acts committed by the terrorists aboard the Achille Lauro were punishable under Italian criminal law, in so far as Italy had intended to exercise and effectively exercised jurisdiction against the terrorists, it could legitimately refuse extradition.

The U.S. State Department’s Italy Desk Officer, Thomas Longo, who was called in to interpret between Reagan and Craxi, recalled,

Citing constitutional and legal reasons—since the ship was Italian and at Sigonella the culprits were now within Italian territorial jurisdiction—Craxi refused, begging Reagan’s understanding. I can still hear Craxi’s voice quavering at the prospect of Americans and Italians shooting at each other on the runway. Reagan and Craxi agreed the Italians would assume custody pending a legal extradition request from Washington through diplomatic channels.40

Stepping Away from the Edge

United States and Italian forces were in a standoff starting at 0016 on 11 October when the Egypt Air plane landed at Sigonella. When Craxi did not back down, the U.S. forces withdrew at 0530. Escorted by two Italian fighters, the plane then flew to Ciampino airport in Rome. It was also followed by a U.S. fighter, which requested permission to execute an emergency landing immediately after the Egypt Air plane landed. The pilot claimed mechanical problems. The U.S. plane landed and then taxied in front of the Egypt Air plane to block its departure. The U.S. plane withdrew only after the airport commander threatened to bulldoze the plane off the runway.41

At this point, Craxi made a fateful decision. Because the Egypt Air plane had an extraterritorial status, he asked Cairo for permission to arrest the four terrorists, which Cairo granted.42 The Egypt Air plane qualified as a “state aircraft” under Article 3(b) of the International Convention on Civil Aviation of 1944, according to which: “aircraft used in military, customs, and police services shall be deemed to be state aircraft.”43 Under customary international law, state aircraft enjoy immunity from foreign jurisdiction in respect to search and inspection and, of course, arrest.44 The waiver of immunity is ordinarily negotiated at the time when authorization to land is requested. In this case, the Egypt Air plane was forced to land at Sigonella by U.S. fighters; permission to arrest had to be requested afterwards.

However, instead of acceding to the United States’ request to also arrest alleged mastermind Mohammed Abbas and the PLO official with whom he traveled, Italy arranged for them to leave Italy on 12 October via a chartered flight to Yugoslavia.45

Rome justified this move, arguing that the extraterritorial status of the airplane prevented it from arresting the PLO representatives without Egypt’s permission and that it was not possible to immediately verify their culpability in the attack.46 The United States filed a formal request of immediate arrest of Abbas and his PLO colleague under Article XII of the Extradition Convention to the prosecutors of Syracuse and Genoa, as they asserted jurisdiction on the case. However, the request was rejected on the grounds that the United States had not presented sufficient evidence of the involvement of Abbas and his colleague in the crimes charged.47 The Reagan administration, however, firmly held Abbas responsible, and his release without an investigation or trial created friction between Washington and Rome.48 It is still unclear whether the operation was authorized by the PLO or was taken independently by a faction.49

Ultimately, both PLO representatives would be convicted in absentia 50 and sentenced to life in prison.51 In 2003, Abbas was captured by U.S. forces in Iraq. He died the following year in U.S. custody. The four hijackers were all convicted and sentenced to long prison sentences in Italy. Al-Molqi pleaded guilty to the murder of American passenger Leon Klinghoffer and was sentenced to thirty years’ confinement.52

Repairing the Relationship

Rome was frustrated and felt that Washington was trying to bully it. In Washington, there was anger and a feeling that Rome was shielding terrorists who killed an American citizen. However, in October 1985, there was no space for such emotions. At the peak of the Cold War, America needed Italy. After all, Italy was a key host to U.S. forces, a founding member of NATO, and a nation with a dangerously large Communist Party. The Craxi government also could not stray too far from its American partners or risk a government collapse and leave Italy adrift from its traditional Euro-Atlantic foreign policy orientation.53

There was a mixed reaction in Rome, with Craxi’s defenders noting that the loss of life could have been much higher. Former President Sandro Pertini hailed Craxi’s approach as defending “the independence of Italy.”54 In the preface of a recent book The Night of Sigonella published by the Craxi Foundation, the authors make the following assessment: “Craxi, with his courageous rejection, demonstrated the boundaries of the Atlantic alliance, and the strong ties of friendship with the United States of America could and must coexist with the principles of international justice.”55 Those authors concluded that a conflict between Craxi and Reagan was inevitable given the black and white “intransigence” of the Reagan administration in contrast with Craxi’s desire for negotiated solutions.56

However, Craxi’s coalition creaked under the pressure of a confrontation with Washington. Defense Minister Giovanni Spadolini resigned, and his small Italian Republican Party (PRI) withdrew its support from the government. Without PRI’s support, Craxi was compelled to resign on 17 October; but he quickly reformed his government, and remained in power until 1987.57 Craxi’s foreign policy also did not bend to Washington’s will. In 1986, Washington blamed Tripoli for a series of terrorist attacks and asked European allies to use bases on their territory to launch this attack. Craxi rejected Reagan’s request. At the time, Craxi complained that military action would only further destabilize the international environment and lead to more terrorism.58

For Washington, there was no time to punish Italy or freeze it out of international relations.59 Seeking to move past the incident, on 18 October, Reagan wrote to Craxi: “Italian-American relations have been and will remain broad, deep, and strong; and I am sure our personal ties will continue to be solidly grounded in that tradition.”60 However, a 17 October 1985 Washington Post editorial illustrates the emotional environment:

Egypt and Italy are caught in the turbulent wake of the Achille Lauro affair. This is, in any long-range scheme of things, a matter for keen regret. As Americans move beyond their anger at seeing the two countries do less than they could have to apprehend the killers, a concern for their political health cannot fail to come to the fore.61

Reagan had invited the major Western powers to meet on 24-25 October 1985 in advance of a summit with Mikhail Gorbachev, former President of the Soviet Union. Washington needed to show that the West was united. On 25 October, Reagan told Craxi: “The incident is closed. We are friends like before.”62 On 4 November 1985, Craxi told Parliament that friendship with the United States was a cornerstone of his foreign policy, and commented on Sigonella saying that it was the result of “a defect in information and comprehension.”63

However, even as Craxi stepped back from the edge, he reminded Washington that the bilateral relationship and American use of installations was bounded by NATO agreements. “NATO bases in Italy can be used by our allies only for specific purposes of the alliance,” Craxi told Parliament. What happened at Sigonella “must, in the interest of both countries and NATO, never be repeated.”64

Implications for Today

Sigonella is a distant memory for most, although one U.S. Ambassador to Italy did refer to it as “the only exception” to the normally solid relationship.65 However, there are lessons to be learned from this episode, both in foreign relations and the law.

A study of the relevant laws and precedent leaves doubts as to whether the United States conducted itself in accordance with its rights and obligations. As a result, Italy had the space to oppose America’s requests with an unprecedented firmness. However, the United States’ fundamental allegiance to the rule of law ultimately prevailed, which—in addition to the pressing political considerations—helped close the incident.

In the longer run, the episode of Sigonella arguably paved the way to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation of 1988 and related IMO Protocol of 2005.66 Moreover, some legal scholars claim that the Sigonella episode contributed to the current shift towards a less restrictive approach to unilateral use of force in the war on terror under international law.67 In fact, state practice has a decisive weight in shaping international law, including when it comes to the construction of the most fundamental treaty rules, such as the prohibition of use of force under Article 2 of the U.N. Charter. However, state practice that is not backed by opinio iuris (the belief of acting in accordance to the law) is insignificant under international law. When it decided to force the Egypt Air plane to land, the United States did not claim to act in accordance to the law, nor did it when it ordered the fighter to “escort” the Egypt Air plane from Sigonella to Ciampino. Washington’s acceptance of Rome’s decisions proved the strength of the international rule of law and of international legal obligations.68

“Italian-American relations have been and will remain broad, deep, and strong; and I am sure our personal ties will continue to be solidly grounded in that tradition.”

The U.S. Army JAG Corps’s newest court reporters graduate from the 64th Basic Court Reporter Course in February 2021 in a ceremony at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia. (Credit: Jason Wilkerson, TJAGLCS)

The United States and Italy are no longer bound together through the Cold War. Although they share many of the same interests, there is no existential threat. As a result, there is some drift in the relationship. They remain bound together through the NATO alliance, a shared commitment to the war on terror, as well as a trade relationship and strong cultural ties. Although Rome values the alliance with Washington, it makes no apologies about its desire for strong relationships with Moscow and Beijing. For example, Italy is at the front of the line to sign up for China’s Belt and Road Initiative.69 Without the boundaries of the Cold War, should another incident like the one in Sigonella occur, there are greater risks that could endanger the long-term health of the United States-Italy relationship. Washington should weigh any immediate advantage against the potential erosion of the relationship. TAL


Mr. Brownfeld is the U.S. Army’s Host Nation Advisor for Italy and Slovenia and is based in Vicenza, Italy.

Ms. Baino is an Italian lawyer based in Pavia, Italy. She has specialized in international law and regularly works with American and European clients.



Notes

1. History, Naval Air Station Sigonella, https://www.cnic.navy.mil/regions/cnreurafcent/installations/nas_sigonella/about/history.html (last visited Jan. 7, 2021).

2. Spencer M. Di Scala, Renewing Italian Socialism: Nenni to Craxi 201 (1988).

3. Id. at 233-34.

4. Massimo Pini, Craxi: Una Vita, Un’Era Politica 297 (2006).

5. Di Scala , supra note 2 , at 207.

6. Pini , supra note 4, at 301-02.

7. Indro Montanelli & Mario Cervi, L’Italia degli Anni di Fango: 1978-1993, at 186-87 (1993).

8. Luigi Musella, Craxi 272 (2007).

9. Id. at 272-73.

10. Pini, supra note 4, at 302.

11. Id. at 303.

12. Id. at 303-04. See also Trial of 5 in Ship Hijacking to Begin Monday in Italy, L.A. Times (Nov. 13, 1985, 12:00 AM), https://www.latimes.com/archives/la-xpm-1985-11-13-mn-5455-story.html.

13. P.J. Grisar, Q&A: Author Julie Salamon on Leon Klinghoffer and the Hijacking That Horrified the World, Forward (June 24, 2019), https://forward.com/culture/426407/qa-julie-salamon-author-of-an-innocent-bystander-the-killing-of-leon/.

14. Pini, supra note 4, at 303. Ford Introduce la Catena di Montaggio, a Broadway Debutta il Cats, Scoperit i Resti Dell’ Uomo di Altamura, Identificato Meteorite Contro la Terra, Rai Televideo , http://www.televideo.rai.it/televideo/pub/articolo.jsp?id=3159 (last visited Mar. 3, 2021).

15. See generally Andrew L. Liput, An Analysis of the Achille Lauro Affair: Towards an Effective and Legal Method of Bringing International Terrorists to Justice, 9 Fordham Int’l L.J. 328 (1985).

16. U.N. Charter Article 2(4) forbids states from using force in their international relations. Exceptions to this prohibition are acts taken in self-defense under U.N. Charter Article 51 or under the auspices of a U.N. Security Council authorization to use force under Article 42. See U.N. Charter arts. 2(4), 51.

17. Christian J. Tams, The Use of Force Against Terrorists, 20 European J. Int’l L. 359, 367-73 (2009).

18. See U.N. Charter art. 51.

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Id.

19. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. 14 (June 27). See also Tarcisio Gazzini, The Changing Rules on the Use of Force in International Law 117-74 (2006) (discussing the evolution of the right of self-defense in relation to state practice since the end of the Cold War, namely in the framework of the fight against terrorism); Tams, supra note 17. Both authors underline that the international community has recognized a right of states to use unilateral force against terrorists, framing such practice under the right of self-defense.

20. Nicar. v. U.S., 1986 I.C.J. ¶¶ 109, 115.

21. Id. 191.

22. Enzo Cannizzaro, Contextualizing Proportionality: jus ad bellum and jus in bello in the Lebanese War, 864 Int’l Rev. Red Cross 779, 782 (2006) (summarizing the findings of Nicar. v. U.S., 1986 I.C.J. 14, especially paragraphs 194-95, 211).

23. See generally Gregory V. Gooding, Fighting Terrorism in the 1980s: The Interception of the Achille Lauro Hijackers, 12 Yale J. Int’l L. 158 (1987). See also Oscar Schacter, In Defense of International Rules on the Use of Force, 53 U. Chi. L. Rev. 113, 139-71 (1986). But see Andrew J. Calica, Self-Help Is the Best Kind: The Efficient Breach Justification for Forcible Abduction of Terrorists, 37 Cornell Int’l L.J. 390, 419-21 (2004).

24. Memorandum by Ministero degli Affari Esteri, subject: Regime guiridico della base di Sigonella [Legal Status of the Sigonella Base], Wilson Ctr. (Oct. 24, 1985), https://digitalarchive.wilsoncenter.org/document/155266.

25. Sigonella 1985: “Così fermammo gli Usa,” Repubblica (Apr. 16, 2003), https://www.repubblica.it/online/esteri/abbas/sigonella/sigonella.html (translation by author).

26. Bill Keller, Aides Say Reagan Put End to Troop Standoff, N.Y. Times Oct. 19, 1985, sec. 1, at 4.

27. Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces art. 7, June 19, 1951, 4 U.S.T. 1792.

28. Id.

29. Pini, supra note 4, at 306.

30. Musella, supra note 8, at 277.

31. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS].

32. Klinghoffer v. SNC Achille Lauro, 795 F. Supp. 112 (S.D.N.Y. 1992).

33. See Jeffrey Allan McCredie, Contemporary Uses of Force Against Terrorism: The United States Response to Achille Lauro–Questions of Jurisdiction and Its Exercise, 16 Ga. J. Int’l & Compar. L. 435 (1986); Gerald P. McGinley, The Achille Lauro Affair—Implications for International Law, 52 Tenn. L. Rev. 691, 693-701 (1985).

34. SS Lotus (Fr. v. Turk.) 1927 P.C.I.J. (ser. A) No. 10, at 70 (Sept. 7).

35. Antonio Cassese, Il caso Achille Lauro: Terrorism, Politics and Law in the International Community 84-88 (1987). See also McGinley, supra note 33, at 693-702.

36. Cf. Cassese , supra note 35, at 25.

37. Cf. McGinley, supra note 33, at 711-12 (discussing the application of the passive personality principle to the Achille Lauro case).

38. Extradition Treaty Between the Government of The United States of America and the Government of the Republic of Italy, It.-U.S., Oct. 13, 1983, 35 U.S.T. 3023.

39. Id. art. VII.

40. Tom Longo, The Achille Lauro Affair, 1985, Foreign Serv. J., Apr. 2019, at 60, 60.

41. Sigonella 1985: “Così fermammo gli Usa ,” Repubblica (Apr. 16, 2003), https://www.repubblica.it/online/esteri/abbas/sigonella/sigonella.html.

42. Musella, supra note 8, at 278.

43. Convention on International Civil Aviation, Dec. 7, 1944, 15 U.N.T.S. 295.

44. United Nations Convention on Jurisdictional Immunities of States and Their Property, A/RES/59/38, art. 3(3) (Dec. 2, 2004) [hereinafter U.N. General Assembly on Jurisdictional Immunities] (the rule of customary international law has been acknowledged in the U.N. General Assembly).

45. Pini , supra note 4, at 308.

46. Musella , supra note 8, at 280; Montanelli & Cervi , supra note 7, at 192.

47. Details and sources for this case were reported in Cassese, supra note 33, at 44-48, 224-28.

48. Montanelli & Cervi , supra note 7, at 189.

49. Pini, supra note 4, at 304.

50. In absentia, Merriam-Webster , www.merriam-webster.com/dictionary/in%20absentia (last visited Mar. 26, 2021) (in absentia is a Latin term that means “in absence”).

51. See N.Y. Times, Ship Hijackers Sentenced Klinghoffer Daughters Are Outraged, S. Fla. Sun-Sentinel (July 11, 1986), https://www.sun-sentinel.com/news/fl-xpm-1986-07-11-8602100860-story.html (originally published by the New York Times). See also Roberto Suro, Italian Jury Gives Cruise-Ship Killer 30-Year Sentence, N.Y. Times, July 11, 1986, at A1.

52. N.Y. Times, supra note 51; Suro, supra note 51.

53. Bettino Craxi, La Notte di Sigonella 130-40 (2015).

54. Pini, supra note 4, at 309.

55. Craxi, supra note 53, at X (translation by author).

56. Id. at XI.

57. Id. at 130-40.

58. Musella, supra note 8, at 291.

59. Rudy Abramson & James Gerstenzang, U.S. Planned to Keep Hijackers: Bid to Sidestep Italy Led to Confrontation, L.A. Times (Oct. 19, 1985, 12:00 AM), https://www.latimes.com/archives/la-xpm-1985-10-19-mn-14994-story.html.

60. Craxi, supra note 53, at 162.

61. In the Wake of the Achille Lauro, Wash. Post, https://www.washingtonpost.com/archive/politics/1985/10/17/in-the-wake-of-the-achille-lauro/f7ad014d-2d57-4d04-8e6d-3fceb2ac4591/ (last visited Jan. 8, 2021).

62. Pini , supra note 4, at 310.

63. Id. at 312.

64. Craxi Criticizes U.S. On Use of Base in Crisis, N.Y. Times , Nov. 5, 1985, at A9.

65. Pini, supra note 4, at 310.

66. Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Mar. 10, 1988, 1678 U.N.T.S. 221; International Maritime Organization, Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, Oct. 14, 2005, IMO Doc. LEG/CONF. 15/21.

67. Gooding, supra note 23, at 175.

68. Liput, supra note 15.

69. China’s Belt Road Initiative is a massive infrastructure project that aims to link Europe and Asia.

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