Our country, even if it reaches the finish line slowly, has a clear and organic law for our armed forces on foreign missions. We refer to the law of 21 July 2016 n.145, published in the Official Gazette n.178 of 1 August 2016 and in force since 31 December of 2016, with title "Provisions concerning Italy's participation in international missions".
Going into the merits of this new law, the range of types of missions, the fundamental principles to be respected and the new procedural procedure to be followed must be identified.
Except for the cases referred to in Articles 78 - which governs the deliberation of the state of war which must be resolved by the Chambers that confer the necessary powers on the Government - and 87, paragraph 9, of the Constitution - on the basis of which the declaration of war it is the prerogative of the President of the Republic, the participation of the armed forces, military or civil police forces and civilian peacekeepers in international missions established within the United Nations Organization or other international organizations such as, by way of for example, NATO to which Italy belongs or in any case established in accordance with international law, including military operations and civilian police and EU rule of law missions, as well as missions aimed at exceptional humanitarian interventions, is allowed , in accordance with the provisions of this law, provided that it is carried out in compliance with the principles referred to in Article 11 ofConstitution. There are limits in this last article such as the inhibition of war as an instrument of aggression, but it allows for armed coercive action in case of self-defense. Clearly, it should be emphasized that the sending of personnel from our country, beyond its national borders, can be carried out in compliance with the bonds with international alliances or agreements or for reasons of a human nature, provided that the use of the armed forces and civil law falls within the parameters of international lawfulness and the norms and purposes of our Constitution.
The missions of our troops abroad must be framed in the context of the principles established by the norms of the article 11 of the Constitution (Italy rejects war as an instrument of offense against the freedom of other peoples and as a means of resolving international disputes; allows, on an equal footing with other states, the limitations of sovereignty necessary for an order that ensures peace and justice between nations; promotes and favors international organizations aimed at this purpose.), general international law, international human rights law, international humanitarian law and international criminal law.
On the procedural procedure regarding the participation of our country to cooperate in foreign missions with other countries, putting itself at the service of the international community for the maintenance of international peace and security, it is necessary to consider the role of the two branches of our Parliament which is made fundamental, which rationalizes a practice that preceded the sending of our military forces across the Italian border from a debate by the Senate and the Chamber of Deputies. Unfortunately and often the ratification of the Parliament materialized a posteriori, when the decree-law for financing the mission was converted into law.
With the new law, which came into force in December last year, it happens that the participation of our armed forces, in some hot parts of the planet, is deliberated by the Council of Ministers, subject to communication to the Head of State and a possible convocation of the Supreme Defense Council (photo - of the 2015 - on the right). The resolution that is adopted by the government must be sent to the Parliament which, with appropriate acts of address, can give green light or not. This authorization may be subject to conditions. Since we are in the presence of the total involvement of the two branches of Parliament and that, if the assent is not given by the deputies and senators, the international mission is not realized.
Reading the content of this law, there is a problem inherent in the criminal laws. The military penal code of peace applies to the armed forces operating abroad, but the government could also enforce the military penal code in time of war for a given mission. In this way it is necessary to write a legislative provision that the two branches of Parliament will have to approve.
For those who read the entire body of this framework law, they become aware of its complexity, which does not only outline the principles that must be respected and implemented regarding the sending of armed forces abroad and its procedural procedure, but it also addresses the question of the financing of the economic treatment of the personnel and of the penal provisions.
In essence, this framework law has terminated the practice of adopting legislative decrees every six months for international missions.
(photo: US DoD / Ministry of Defense)
