Use of the Sigonella base and armed drones. Italy's role in the fight against ISIS in Libya

(To Giuseppe Paccione)
05/08/16

With regard to the issue of Italian participation in the fight against ISIS in Libya, alongside the United States, some delicate passages must be highlighted to end up, as unfortunately happens, in total confusion. This refers to the use of the Sigonella military base, where the green light was given for the presence of US drones that are engaged in military missions in Libya against the terrorist group linked to the Islamic State. Everything is part of a negotiated agreement between Italy and the United States. The use of drones must be addressed, (in primis), on the purely legal level of an agreement about having given the green light for the use of a military base on Italian soil for the storage and use of armed drones in war operations against third countries, as in the case of Libya ; in secundis, that of the ways in which this bilateral agreement will have to operate.

It is necessary to circumscribe the legal framework within which the last agreement we are dealing with, not yet made public, arises. The legal basis is contained in the 3 article of the Atlantic Pact on the basis of which each Member State is bound to maintain and develop its capacity - both unilaterally and collectively - to resist armed attacks. Regarding the commitment to mutual collaboration, the NATO States Parties established a convention in the city of London that regulated it status of its own armed forces in the context of Atlantic Alliance operations, termed NATO-SOFA. In addition, NATO member states have concluded bilateral agreements concerning mutual relations aimed at implementing the goals contained in the Atlantic Treaty of 1949. You can, for example, cite the cd BIA (Bilateral Infrastructure Agreement - Bilateral infrastructure agreement) between our country and the United States, concluded in the 1954 and never made public, which regulates the methods of use of the bases present on the Italian territory that are granted to the US military forces. We could define this bilateral agreement as umbrella agreement, in the sense that it remains within the limits of the moment in which general guidelines must be given on the allocation of US military troops in the bases on the soil of our country. The CD is attached to this agreement Memorandum of Understanding, wanted both by our Ministry of Defense and by the Pentagon (headquarters of the Department of Defense), signed in the 1995, related to the facilities and infrastructures of the Americans on the Italian territory. This memorandum, which we could also define as Shell Agreement, prepares in a certain sense a general outline for the specific agreements of each base and on this the so-called agreement has been reached Technical Arrangement on Sigonella, in the April of 2006. What does the latter agreement provide? Determines the presence of US military forces in the military structure Naval Air Station Sigonella well known as The Hub of the Med, due to its strategic position in the Mediterranean Sea.

Il Technical Arrangement on Sigonella is in charge of dividing the tasks between our host and landowner state of full territorial sovereignty and the United States, as sending State, which has full jurisdiction over its men stationed at the Sicilian base in Sigonella. It is determined that installations at Sigonella are considered military installations in peacetime, based onBilateral infrastructure agreement, of which already mentioned before. After that it was determined that the Sigonella base is under the command of Italy, the US commander is given the task of managing the full military command over American personnel, equipment and military operations between the use of armed drones that are used in Libya to hit the ISIS strongholds (operations that started with the consent of the Government of Libyan national agreement and the UN Security Council Resolution 2259 / 2015, even if it makes no reference to Chapter VII of the Charter, must be interpreted through the consideration of previous resolutions, so much so that it is precisely the Security Council that recalls that the situation in Libya constitutes a threat to international peace and security). Let it be clear that these operations fall entirely within the sphere of the competence of the Americans, the important thing is that there is a net notification constraint to the authority of the Italian State about every fundamental US activity implemented, with particular reference to that of training and operations. The particular expression is intended to exclude each routine activities, in the sense that all military operations must be brought to the knowledge of Italian commander, As official body and guarantor of the sovereignty of the State of residence and which is responsible for warn his American colleague if he considers that the activities of US military troops fall outside the confines of domestic law, as well as that of intervening to obtain the immediate interruption of American activities by the US commander that can endanger life and public health and that violates the rules of domestic law.

It exists, alongside the first limitation de quo mentioned, another that circumscribes the sovereignty of the Americans over operations, based on which the permanent increase in the operational component and the relative support must be authorized by the Italian national authorities. The hypothesis envisaged concerns a non-modification Interim military operations to be made concrete starting precisely from the Sigonella base, of which the Minister of Defense himself, during the question time of 3 August 2016 (photo), wanted to reiterate, change that needs the consent clear of the Rome authorities. It is, in fact, from this angle that the agreement on the use of armed drones between the two governments last February, as well as another agreement, signed in the 2010, never made public, through which the Italian authorities at that time had given the green light to the use of some drones not to attack, but only for reconnaissance reasons - the cd intelligence, surveillance and reconnaisance - ISR.

Starting from the first point, the legal meaning of the agreement under consideration can only be the same as the agreement on the granting of the base to which it accesses. These concession agreements would take the form of agreements in simplified form and that involves instead the agreement immediately enters into force as soon as it is signed by the representatives of the executive, given that they concern matters with a high level of technicality and that they do not fall within the scope of a political agreement, by virtue of Article 80 of our Constitution which recalls that the Chambers authorize by law the ratification of international treaties which are political in nature (...), and, therefore, not needing the solemn procedure, the agreement Technical Arrangement on Sigonella would in any way and effectively be considered an agreement, on a purely legal, binding basis for Italy and the United States.

But it is also believed that an agreement concerning a subject hidden by the legal reserve, according to the article 80 mentioned above, not taking the form of a simple technical agreement, would not cover theprocess conclusive in simplified form. Ergo, if there is a lack of consent of the Parliament not mentioned, the agreement itself would be a non-agreement de jure (legally) binding.

Although in the agreement Technical Arrangement on Sigonella there is no indication of substantially carried out military or military operations, limiting itself to the sole use of the structures and the division of competences, the agreement on armed drones, if it establishes the storage and the main references for their use, it does not remain within the limits to execute the concession agreement, indeed it integrates it. Indeed, it has the effect of authorizing military operations that are based on a technology that does not give rise to doubts of a characteristic trait and of a completely new potential such as the drones that are used for surveillance purposes and also for possible armed attacks, with clear contrasts with some constitutional provisions such as the article 11, which contains an autonomous rule on the prohibition of the use of force, in the sense that it does not inhibit any war, but only that of aggression aimed at offending the freedom of other peoples ; moreover, a war in legitimate defense is not forbidden, whether it is to defend one's own territory, or to provide assistance to a third State that is attacked; as well as the 78 article which determines that the Chambers decide it state of war and give the Government the necessary powers, in the sense that, before an extraordinary situation, which is created when the state of war is deliberated, justifies the application of a particular regulatory system, defined internal law of war; and, finally, like the article 87, paragraph 9, according to which it is up to the Head of State to declare the state of war deliberated by the two branches of the Parliament (Chamber and Senate).

Returning to the supplementary content of the agreement Technical Arrangement on Sigonella certainly identifiable in the constitutional framework of a political agreement, in order for there to be a control by the two branches of Parliament, it is possible to highlight a valid argument in favor of the qualification of the agreement on drones as an understanding on the non-binding legal level.

Two points must be clearly identified, the first on formal plan, concerns the legal nature of the agreements that are the premise of what concerns us. On the agreements BIA e Shell Agreement, which fall within the circle of the bilateralism of the Atlantic Pact, these have been brought to a conclusion without the necessary ratification of the legislative body that is to say of the Parliament, based on the relief that would concern mere instrumental agreements with respect to agreements or treaties of alliance and military cooperation of which our country is a contracting party and which must be placed in the prerogatives of the government. This analysis refers to some articles of theOrganization of the North Atlantic Treaty - Article 3 which states that in order to achieve the objectives of this Treaty more effectively, the parties, acting individually and jointly, in a continuous and effective manner, through the development of their resources and providing mutual assistance, they will maintain and increase their individual and collective ability to resist an armed attack, and the article 9 which, in its turn, establishes that the present Parties will establish a Council, in which each of them will be represented to examine questions relating to the application of this Treaty and that the Council will be organized in a manner furthermore, the Council will be able to meet those subsidiary bodies that may be necessary; in particular it will immediately establish a Defense Committee which will recommend the measures to be adopted for the application of the articles 3 and 5 - although from the military type mutual support, it can only arise for the government the advantage of giving you real implementation even thanks to agreements in form simplified, without the need for intervention by the legislator. In favor of this thesis we recall the moment, according to which the single article of this law not only authorizes the head of State to ratify the Treaty, but also asks the executive to give full and total execution to it. The textual content, inter alia, would be in favor of those who attribute to the agreements on military bases a purely technical nature, considering them nothing more than a clear specification of agreements previously made in relation to which parliamentary ratification has intervened.

On the other hand, the difference between the simply executive agreement and the integrative agreement remains. Both the agreements concerning the military bases, and those on the use of establishing military technologies in these bases - such as that of the drones - can only be incorporated in whole in the latter category and remain with the need for the legislator's authorization to ratify, on the contrary, the concrete paralysis of the guarantee of the constitutional charter.

The second clarity is purely realistic and is excluded from the solution to vexta quaestio (complex issue) of the juridical value of the agreement that is to say that one cannot but consider the occasion of a reflection that revolves around the ways in which this agreement will develop its effects. It would seem that the Rome government had given the green light, thanks to its positive opinion, to the use of armed drones from the Sigonella base, making it clear that the technology must be used with the authorization of the competent Italian military authorities. As we have already had occasion to remember, this way of working does not differ from the logic of Technical Arrangement on Sigonella which, on the other hand, places a notification obligation on the Italian Commander for those activities that do not fall within the system of not routine, implemented by US military forces.

These devices can then be legitimately used only for defensive and not offensive reasons. From the military base of Sigonella, therefore, the order to fire can only start if the identified objectives of ISIS, present on the Libyan territory, especially in the city of Sirte, where the American air raids began, from where they were preparing an armed attack by ISIS against military troops deployed in the area. Should this not happen, the Italian Commander, immediately acquainted, could object to the violation of the rules of domestic law, id est theapplicable Italian law, through the application of veto by the Italian State against a particular activity carried out by the US State.

So much so that the English wording applicable Italian law it is not limited to enclosing only the technical provisions, but also those fundamental provisions for the Italian legal system. Among these are the provisions of our Constitution and the ordinary rules governing the war, where it is believed that the war on terrorism can be framed as international law of unarmed conflicts. On this point it must be said that such a solution should lead de facto to reconsider the terms of the agreement with the Americans, for the reason that our country would risk being fully involved in one status of co-belligerency (hence the prudence of Defense Minister Pinotti in his speech to the Chamber of Deputies of 3 August 2016).

It can be concluded that the agreement stipulated between Italy and the United States expresses a deep concern before the use of a technology of war that, if, on the one hand, ensures a maximum precision in hitting a target, on the other hand, provides just suspicions about compliance with our legal system, making the contours of the international community's strategy in the fight against the Islamic state more grim.

Note - Some contents of this article are taken from the following site: http://www.sidiblog.org/2016/05/12/droni-a-sigonella-quale-valore-ha-e-quale-impatto-produrra-laccordo-italo-americano

(photo: US DoD / US Air Force / Northrop Grumman / Parliament)