Sigonella Naval Air Base in Sicily, Italy, is of strategic importance for US drone operations, in particular in North Africa. Based on a – publicly undisclosed – agreement between Rome and Washington, it is understood that the US can operate armed drones from Sigonella, subject to formal authorization by the Italian Commander. This would make Italy directly complicit in drone attacks.
ECCHR is seeking access to information on the legal framework regulating the presence and use of US drones at and from Sigonella by filing requests under Italy’s Freedom of Information Act (FOIA).
In July 2017, ECCHR filed a judicial complaint to the administrative tribunal (Tribunale Amministrativo Regionale, TAR) in Rome to obtain access to the documents. In December 2018, the TAR declared the complaint inadmissible on procedural grounds. In March 2018, ECCHR appealed this decision to the Supreme Administrative Court (Consiglio di Stato). In October 2019, this court referred the case back to the regional court. The next hearing in this case is scheduled for 1 July 2020.
The US program of targeted killings by drone in many cases violates international law, including strict rules on the use of force and self-defense (ius ad bellum), principles and customs of war (ius in bello), and fundamental human rights (namely the right to life and physical integrity). The practice of using lethal force against individuals outside of any armed conflict, or – in the case of attacks conducted during an armed conflict – without determining their status (whether military targets or civilians) results in egregious violations of human rights and international (humanitarian) law.
European countries have been playing a key role in the US drone program of targeted killings overseas, which risks making them – lamong them Italy – complicit in violations of international law and/or criminal conduct.
Questions and answers regarding the FOIA request in Italy.
The Sigonella Air Base in Sicily is of strategic importance for US drone operations, in particular in Libya and other North African countries. Based on a – publicly undisclosed – agreement between Rome and Washington, it is understood that the US can operate armed drones from Sigonella subject to formal authorization by the Italian Commander. This could make Italy directly involved in drone attacks.
Under Article 5 of Legislative Decree No. 33/2013, as amended in 2016, everyone is entitled to request access to any documents held by the public administration; a denial is possible but limited to exceptional cases set out in Article 5-bis. It is a general principle of administrative law that a comprehensive justification must be provided for any such denials.
A public administration body must respond to a request for information within 30 days; if it fails to do so, or denies access, according to Article 5 Paragraph 7 of Legislative Decree 33/2013 the applicant can file a request to a higher authority (“Responsabile della prevenzione della corruzione e della trasparenza”) within the administration to have the decision reviewed within a maximum of 20 days. This authority denied ECCHR’s requests for review in this case. ECCHR then filed a complaint to the administrative tribunal (TAR) and ultimately appealed to the Italian Supreme Administrative Court.
Measures taken by administrative authorities can generally be challenged at the regional administrative tribunal (Tribunale Amministrativo Regionale, TAR) in Rome. In July 2017, ECCHR filed a judicial complaint to the TAR regarding the denial of access, on the basis that insufficient reasons were given for the decision. In particular, Italian authorities failed to properly justify why the publication of the requested documents would endanger Italy’s defense or security interests or international relations and failed to properly consider the right to be informed about issues that are extremely relevant for public interest.
In December 2017, the TAR dismissed ECCHR’s complaint on procedural – and not substantial – grounds. In particular, the TAR found that the complaint was inadmissible due to the failure to notify possible counterparts of the complaint. These counterparts were generically identified by the administrative judge as “the Government of the United States of America.” In March 2018, ECCHR filed an appeal against the decision of the TAR before the Consiglio di Stato (Supreme Administrative Court).
The appeal to the Consiglio di Stato was filed by ECCHR in March 2018 and a decision was delivered in October 2019. The court referred the case back to the regional court still reaffirming the procedural obligations for ECCHR.
ECCHR resumed the case at the TAR, complying with the Consiglio di Stato procedural request. The new hearing is set for 1 July 2020.