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The Incident at Cavalese and Strategic Compensation

Published online by Cambridge University Press:  27 February 2017

W. Michael Reisman  and
Robert D. Sloane
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Extract

Penny wise, pound foolish.

—Benjamin Franklin, Poor Richard’s Almanack

In 1953 the United States ratified the North Atlantic Treaty Organization’s Status of Forces Agreement of 1951 (SOFA), which set forth “conditions and terms which will control the status of forces sent by one state, party to the Agreement, into the territory of another state, party to the Agreement.” The drafters foresaw that the presence and training of foreign military forces within and between their territories would probably, if not inevitably, cause injury to civilians, giving rise to claims that, if not settled quickly and satisfactorily, could spark incidents disruptive to their cooperation in mutual defense. To this end, the SOFA established ajurisdictional regime designed to minimize the political friction these incidents threatened to generate, by providing prompt and manifestly fair settlement procedures. The SOFA’s jurisdictional framework protects nationals of a foreign military force from the criminal processes of the alienjurisdiction in which they reside and train, yet permits injured citizens of the host state to pursue civil damages for the tortious acts of foreign forces without fear that their claims might receive prejudicial treatment in the foreign state’s local courts.

Type
Notes and Comments
Information
American Journal of International Law , Volume 94 , Issue 3 , July 2000 , pp. 505 - 515
Copyright
Copyright © American Society of International Law 2000

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References

1 Agreement Between the Parties to the North Atlantic Treaty Organization Regarding the Status of Their Forces, June 19, 1951, 4 UST 1792, 199 UNTS 67 [hereinafter SOFA]. The United States ratified the SOFA on July 24, 1953, subject to Senate reservations intended to ensure that no “person subject to the military jurisdiction of the United States” would be tried by a foreign court under a legal regime that neglected “procedural safeguards contained in the Constitution of the United States.” Statement Included in the Instrument of Ratification of the United States of America, 199 UNTS at 68 Google Scholar.

2 Schwartz, Murray L., International Law and the NATO Status of Forces Agreement, 53 Colum. L. Rev. 1091, 1091 (1953)CrossRefGoogle Scholar.

3 See U.S. Military Blamed for Fatal Crash at Italy Resort; Alps: Up to 20 Killed When Low-Flying Marine Plane Cuts Cable, L.A. Times, Feb. 4, 1998, at A12 Google Scholar. According to Senator Robb, a former marine who subsequently introduced a bill to compensate the victims directly:

Just minutes from [the plane’s] scheduled return to base, the pilot suddenly caught a glimpse of a yellow gondola off to his right at eye level.

A split second later, he spotted the two cables that carried the gondola, and, fearing for his life, he put the plane into a dive. His actions probably saved the lives of the four-member crew, but it was not enough to prevent the wingtip from clipping the cables.

. . . .

The plane’s wing had stretched and then snapped the cables supporting the gondola, which was then 307 feet above the valley floor.

145 Cong. Rec. S3076–02, *S3086 (daily ed. Mar. 23, 1999) (statement of Sen. Charles S. Robb).

4 The deceased included a Polish mother and her 14-year-old son, seven German friends, and five Belgian friends, including a recently engaged couple. See 145 Cong. Rec, supra note 3, at *S3086.

5 Ciampi, Annalisa, Case Note, Public Prosecutor v. Ashby, 93 AJIL 219, 219 (1999)CrossRefGoogle Scholar.

6 Richter, Paul, Cohen Calls for Review of NATO Rights; Military: U.S. Defense Chief Meets with Italian Counterpart in Wake of Italian Ski-Lift Crash, L.A. Times, Feb. 8, 1998, at 19 Google Scholar (home ed.).

7 Boudreaux, Richard, Tolerance Is Low for Low-Flight Training, L.A. Times, Feb. 23, 1998, at A1 Google Scholar.

8 See U.S. Military Blamed for Fatal Crash at Italy Resort, supra note 3.

9 See Ciampi, supra note 5, at 219–21.

10 SOFA, supra note 1, Art. I(d)-(e).

11 See id., Art. VII(1)-(2).

12 See id.

13 Id., Art. VII(3)(a)(i)-(ii). Article VII(3) (c) stipulates, however, that the state enjoying primary jurisdiction shall give “sympathetic consideration” to requests from other states for jurisdictional waiver “in cases where that other State considers such waiver to be of particular importance.”

14 See id., Art. VII(6).

15 See Ciampi, supra note 5, at 220.

16 Findings of the board, annexed to prosecutor’s request for committal to trial, quoted in Ciampi, supra note 5, at 220; see also Steven, Lee Myers, Pentagon Blames Jet’s Crew for Ski-Lift Disaster in Italy, N.Y. Times, Mar. 12, 1998, at A1 Google Scholar (summarizing the board’s findings). Myers reported that the

Pentagon has concluded that the American pilot and crew were responsible for the accident last month that killed 20 people when a Marine Corps jet struck a ski lift’s cable in Italy . . . .

. . . [T]he Marine jet, an EA-6B Prowler, was flying too low and too fast when it sheared the cable near the resort town of Cavalese, sending a gondola full of skiers hurtling more than 300 feet to the ground . . . . Id.

17 See Ciampi, supra note 5, at 220. Ciampi argues that, under the terms of the SOFA, the judge correctly dismissed Granero’s request for an indictment of the four crew members in deference to the formal proceedings initiated against them under Article 32 of the U.S. Uniform Code of Military Justice. But with respect to the three supervisors, Italy arguably retained jurisdiction, for

[w]hen the sending state’s action is limited to disciplinary measures, there is reason to doubt whether the receiving state is barred from exercising its subordinate right to prosecute. It is even more doubtful that a bar to subsequent trial arises from a decision not to prosecute that has been reached after only an informal investigation.

Id. at 223–24. Whether or not U.S. disciplinary proceedings against the supervisory officers divested Italy of criminal jurisdiction over them, Ciampi’s observation highlights the broad dispersal of responsibility that distinguishes the circumstances surrounding the Cavalese tragedy. Blame for the incident may have resided not only with the aircrew, but also with its supervisors and, perhaps most critically, those responsible for drafting and updating the air maps relied upon by Ashby’s crew. See Thompson, Estes, Flawed Map Cited in Ski Gondola Deaths, Phila. Inquirer, Feb. 1, 1999 Google Scholar (noting that Ashby’s defense counsel argued that, had he not relied upon a dated map— which failed to indicate the resort cables even though the system had been built in 1966—he would not have flown into the Cavalese valley at all); see also Wald, Matthew L., U. S. Maps Become Legal Issue in Alpine Cable Accident, N.Y. Times, Mar. 13, 1999, at A3 Google Scholar (speculating that, perhaps to deflect culpability from the U.S. government, the Defense Department has refused to update the maps in the wake of the incident and insisted on their adequacy). Skepticism about the accuracy of the maps appears to have figured prominently in Ashby’s ultimate acquittal.

18 See Marine Fliers Tried to Hide Evidence, Prosecutors Say, L.A. Times, Sept. 22, 1998, at B4 Google Scholar.

19 See Newman, Richard J., An Accident, an Acquittal, U.S. News & World Rep., Mar. 15, 1999, at 43 Google Scholar, available in 1999 WL 8432404. The military jury acquitted Ashby largely because “of mistakes beyond his control, including the Marine Corps’s failure to mark the ski lift on aviation maps.” Id. In May the jury sentenced Ashby to six months’ imprisonment and a dishonorable discharge for helping to destroy the videotape evidence. See Thompson, Estes, Ski Tragedy Pilot Sentenced, Atlanta J. & Const., May 11, 1999, at A3 Google Scholar. Ashby was released on October 12, 1999, approximately one month early, “for good behavior,” according to Marine Corps spokesman Bill Lisbon. See US Pilot Who Caused Italian Gondola Disaster Gets Early Release from Prison, Agence France-Presse, Oct. 12, 1999 Google Scholar, available in 1999 WL 25123088.

20 See Marine Guilty in Gondola Crash, Cincinnati Post, Mar. 30, 1999, at 2A Google Scholar; Serrano, Richard, Marine Pilot in Gondola Deaths Gets Six Months and Discharge, Buffalo News, May 11, 1999, at A2 Google Scholar.

21 10 U.S.C. §851 (1994).

22 Lothar Naumann, mayor of the German city of Burgstaedt, where seven of die eight Germans killed were members of a ski club, stated, “Until now, I have been a convinced supporter of the American justice system. But this is incomprehensible.” Marine Pilot Ashby Acquitted on All Cavalese Charges, Deutsche Presse-Agentur, Mar. 4, 1999 Google Scholar, available in LEXIS, News Group File, Most Recent Two Years. Sindy Renkewitz, whose father and sister died in the crash, said she was “shocked” and could not “understand that the man who killed 20 people . . . is not guilty.” Lowisch, Henriette, Jury Acquits Marine Pilot in Italian Ski Lift Disaster, Agence France-Presse, Mar. 5, 1999 Google Scholar, available in 1999 WL 2557811.

23 An editorial in La Repubblica characterized the verdict as “impunity of the mighty” and evidence of the power of America’s “military-industrial complex.” See Bloch, Suzette, Italy Shocked by Acquittal of U.S. Pilot over Ski Lift Disaster, Agence France-Presse, Mar. 5, 1999 Google Scholar, available in 1999 WL 2558483. Klaus Stampfl, the son of Maria Steiner, a 60-year-old retired shopkeeper who died in the crash, attended Ashby’s court-martial at the U.S. Marine base at Camp Lejeune, North Carolina. At its conclusion, he reportedly remarked, “It’s a shameful verdict.... It was certainly not a serious trial, not as serious as it would have been in Italy.” Italian Reaction Decidedly Bitter: Families, Officials Decry Injustice, News & Observer (Raleigh, N.C.), Mar. 5, 1999, at A14 Google Scholar.

24 See Marine Pilot Ashby Acquitted on All Cavalese Charges, supra note 22.

25 Italian Reaction Decidedly Bitter, supra note 23.

26 See id.; see also Pilot’s Acquittal Stuns Italy, AP, Mar. 4, 1999, available in 1999 WL 1383487.

27 Joint Press Conference of the President and Prime Minister D’Alema of Italy, M2 Presswire, Mar. 9, 1999, at 3–4 Google Scholar, available in LEXIS, News, Publications.

28 America’s Obligation in Italy, N.Y. Times, Mar. 10, 1999, at A18 Google Scholar.

29 Richter, supra note 6; see also SOFA, supra note 1, Art. VIII (setting forth compensatory provisions).

30 SOFA, supra note 1, Art. VIII(5).

31 Id., Art. VIII(5) (e) (i). This division serves to prevent the host state from exploiting accidents in which the sending state is principally at fault by authorizing potentially outrageous damage awards. By apportioning a 25% share to the host state, the SOFA regime seeks to ensure that the host state’s courts or legislative processes calculate any resultant civil damage award in an equitable and unbiased manner.

32 Emergency Supplemental Appropriations Act of 1999, Robb (and others) Amendment No. 131, S. 544, 106th Cong. §203(a) (1999).

33 Id. §203(e) (emphasis added); see also 10 U.S.C. §127 (1994) (authorizing the Secretary of Defense to make “emergency and extraordinary expenses”).

34 See Gondola Victims’ Redress Dropped, Atlanta J. & Const., May 15, 1999, at A6 Google Scholar.

35 Open Letter from U.S. Sen. Charles S. Robb (Va.) to the U.S. Senate (Mar. 10, 1999) (on file with authors).

36 Id.

37 145 Cong. Rec, supra note 3, at *S3087.

38 Staff Notes for U.S. Sen. Charles S. Robb on the Robb-Snowe Amendment (on file with authors) [hereinafter Robb Staff Notes].

39 145 Cong. Rec., supra note 3, at *S3087.

40 See Legislative Notes on the Robb-Snowe Amendment (on file with authors).

41 Bargainers in Congress Drop Gondola Payments, Columbian (Vancouver, Wash.), May 14, 1999, at A8 Google Scholar (quoting Senator Robb).

42 The Namibia crash killed nine U.S. Air Force servicemen, and subsequent separate investigations, conducted by German and U.S. authorities, “both assigned responsibility for the collision and deaths to the German crew, who not only filed an inaccurate flight plan, but were flying at the wrong altitude.” Open Letter from U.S. Sen. Strom Thurmond to the U.S. Senate (May 6, 1999) (on file with authors). For a discussion of Thurmond’s efforts to condition compensation to German victims of the Cavalese incident on “comparable” payments by the German government for the Namibia incident, see generally Wald, Matthew L., Claims Collide in 2 Accidents as Next of Kin Await Redress, N.Y. Times, Apr. 25, 1999, §1, at 7 Google Scholar.

43 While Senator Thurmond requested “comparable restitution” for the families of the U.S. aircrew killed in the Namibia incident, see Open Letter from Sen. Strom Thurmond, supra note 42, several factors distinguish the two tragedies; and it is not obvious, as a matter of either law or policy, that they should be resolved in like fashion. Among other salient differences, the SOFA does not, by its terms, govern the claims in the Namibia incident, and the victims of the German-U.S. collision were exclusively military personnel, rather than, as at Cavalese, civilians.

44 Indeed, in an effort to address Thurmond’s objections, Robb wrote to German Ambassador Jürgen Chrobog and requested that, to ensure timely compensation to German victims of the Cavalese crash, he make every effort “to press for the rapid resolution of the claims [the Namibia incident’s victims’ families] have filed with your government.” Letter from U.S. Sen. Robb, Charles S. to Jürgen Chrobog, ambassador of the Federal Republic of Germany (Apr. 22, 1999)Google Scholar (on file with authors). The revised draft of the Cavalese bill that Robb then introduced in May provided:

No payments under this section . . . shall be made to citizens of Germany until the Government of Germany provides a comparable settlement of the claims arising from the deaths of the United States servicemen caused by the collision between a United States Air Force C-141 Starlifter aircraft and a German Luftwaffe Tupelov TU-154M aircraft off the coast of Namibia, on September 13, 1997.

National Defense Authorization Act for Fiscal Year 2000, Amendment No. 461, S. 1059, 106th Cong. §349(g) (1999) [hereinafter Robb-Snowe Amendment].

45 Telephone interview with Herbert S. Cupo, legislative assistant to Sen. Charles S. Robb (Oct. 19, 1999).

46 Letter from U.S. Secretary of Defense William Cohen to Sen. Charles S. Robb (July 1999) (on file with authors) (emphasis added). Secretary Cohen’s position finds support in case law that precludes certain civil claims that fall within the SOFA’s jurisdictional regime. See, e.g., Laskero v. Moyer, No. 89-C-5966, 1990 WL 93276 (N.D. III. June 18, 1990) (finding plaintiffs civil action for damages sustained at a British Royal Air Force base barred by the operation of Article VIII(5) of the SOFA). Indeed, U.S. District Judge Malcolm Howard dismissed a civil suit brought by relatives of five Belgians killed in the Cavalese incident on essentially these grounds. See Belgians’ Lawsuit Is Dismissed, News & Record (Greensboro, N.C.), Feb. 9, 2000, at B6A Google Scholar. Echoing Secretary Cohen’s concern, Judge Howard wrote that to decline to apply the SOFA “could conceivably undercut the treaty and create a cause of action for any overseas military accident. . . . Such a result would severely impair the viability of the claims procedure provided for in the NATO SOFA.” Id. It bears emphasizing, however, that Robb’s proposal contemplated a one-time legislative allocation; it did not purport to authorize civil suits outside the SOFA’s jurisdictional regime.

47 Letter from Secretary Cohen to Senator Robb, supra note 46.

48 Letter from U.S. Secretary of Defense William Cohen to Sen. Charles S. Robb (May 12, 1999)Google Scholar (on file with authors).

49 The Federal Tort Claims Act (FTCA), which waives the sovereign immunity to civil suit of the United States for certain torts committed by its agents or employees, ordinarily does not apply to “[a]ny claim arising in a foreign country.” 28 U.S.C. §2680(k) (1994); see Smith v. United States, 507 U.S. 197 (1993) (holding an FTCA suit for injuries arising out of acts or omissions in Antarctica barred, on the grounds that Antarctica falls within the “foreign country” exception to the FTCA’s waiver of sovereign immunity); Meredith v. United States, 330 F.2d 9 (9th Cir.), cert, denied, 379 U.S. 867 (1964) (dismissing under the “foreign country” exception to the FTCA a suit for injuries sustained at the U.S. Embassy in Bangkok). Under the “operative effect” doctrine, however, FTCA claims that have their “operative effect” (the injury) in a foreign country can nonetheless be deemed to “arise” in the United States if the negligent acts resulting in injury occurred wholly or principally in U.S. territory. See, e.g., Sami v. United States, 617 F.2d 755 (D.C. Cir. 1979) (upholding plaintiffs FTCA claim for false arrest against a §2680(k) challenge because, although the arrest was effected in Germany, the instructions to make the arrest and other operative facts giving rise to plaintiffs injury had occurred in the District of Columbia); see also Leaf v. United States, 588 F.2d 733 (9th Cir. 1978).

50 145 Cong. Rec, supra note 3, at *S3086.

51 Id. at *S3087 (emphasis added).

52 Italian Justice Minister Oliviero Diliberto said that the United States “ha[s] made fools of us for the second time . . . . It’s another insupportable slight to the . . . victims of a slaughter that still, today, one year later, hasn’t found justice.” Congress Kills Cable Car Reparation Provision, News & Rec. (Greensboro, N.C.), May 15, 1999, at B4A Google Scholar. Cabinet Undersecretary Minniti, expressing the discontent of the Italian public over both the court-martial and the refusal to award direct compensation, stated, “We do not consider this matter closed . . . . It is even more upsetting when one considers the two sentences, which created deep dissatisfaction.” Compensation Issue Angers Italy, Reuters, May 16, 1999, available in 1999 WL 17592214. Senator Robb noted in his floor speech that “[o]ur allies, especially Italy where we have strategically important basing agreements, are outraged by our lack of accountability. They feel angry and betrayed.” 145 Cong. Rec., supra note 3, at *S3087.

53 145 Cong. Rec, supra note 3, at *SS087; see also Letter from German Ambassador Jürgen Chrobog to U.S. Sen. Ted Stevens (May 11, 1999)Google Scholar (on file with authors) (expressing support for the Robb-Snowe Amendment).

54 Robb Staff Notes, supra note 38.

55 See 144 Cong. Rec. H8657–07, *H8670 (daily ed. Sept. 25, 1998); id. at S9695–01, *S9710 (daily ed. July 30, 1998).

56 145 Cong. Rec, supra note 3, at *S3087; see also Letter from U.S. Sen. Charles S. Robb to U.S. Secretary of Defense William Cohen (Oct. 1, 1998)Google Scholar (on file with authors) (arguing that if “Section 8113 of H.R. 4103 [which authorized payments under the previous year’s Defense Appropriations bill to those who suffered property damage as a result of the Cavalese incident] violates the Status of Forces Agreement,” then “it would appear that as a policy matter we are willing to violate the SOFA for loss of property but not loss of life”).

57 Congress Kills Cable Car Reparation Provision, supra note 52.

58 See id.

59 Compensation Issue Angers Italy, supra note 52.

60 See Italy: Cable Car Victim Compensation Bill Nears Approval, World News Connection, Nov. 16, 1999, available in 1999 WL 26463407.

61 See Gondola Accident Victims’ Families to Get Damages, L.A. Times, Dec. 2, 1999, at B17 Google Scholar; U.S. Envoy Hails Compensation Law After Italian Ski-Lift Disaster, Agence France-Presse, Dec. 1, 1999 Google Scholar, available in 1999 WL 25153776.

62 See Gondola Accident Victims’ Families to Get Damages, supra note 61.

63 See note 27 supra and corresponding text.

64 Ashby’s acquittal from individual criminal liability does not, of course, impute any greater legal obligation on the United States to provide civil compensation. But it contributed to a perception that the United States had refused to accept responsibility for the incident, and it therefore bears consideration as part of the overarching political context in which the merits of Senator Robb’s supplementary compensation scheme should be evaluated. Independently of its legal ramifications, national policy should evince sensitivity to the potential political impact of Ashby’s acquittal.

65 Joint Press Conference of the President and Prime Minister D’Alema of Italy, supra note 27, at 6.

66 See Michael Reisman, W., The Lessons of Qana, 22 Yale J. Int’l L. 381, 397–98 (1997)Google Scholar.

67 Outside the NATO context, recognition of these political requirements has at times motivated the provision of substantial ex gratia payments to foreign nationals injured by U.S. military activities. For instance, during World War II, U.S. planes mistakenly bombed Schaffhausen, a Swiss city located at the Swiss-German border on the north bank of the Rhine. The United States apologized to Switzerland for inadvertently violating its neutrality and provided compensation both for property damage and for the death and wounding of civilians. See Vagts, Detlev F., Switzerland, International Law and World War II, 91 AJIL 466, 468 (1997)Google Scholar (editorial comment); see also Vagts, Dedev F., The Role of Switzerland: Neutrality Law in World War II, 20 Cardozo L. Rev. 459, 466 n.32 (1998)Google Scholar (noting the $14, 371, 000 U.S. settlement of Swiss claims for civilian deaths and property damage sustained during World War II as a consequence of U.S. military action). More recently, the United States offered to pay compensation to the families of the 290 civilians killed when the USS Vincennes mistakenly destroyed an Iranian commercial airliner on a regularly scheduled flight from Bandar Abbas to Dubai. See Peace, David L., Major Maritime Events in the Persian Gulf Between 1984 and 1991: A Juridical Analysis, 31 Va. J. Int’l L. 545, 558–60 (1991)Google Scholar.

68 The closure of the Clark Air Force Base and the Subic Bay Naval Station in the Philippines is a case in point. See generally Rafael A., Porrata-Doria Jr., The Philippine Bases and the Status of Forces Agreement: Lessons for the Future, Mil. L. Rev., Summer 1992, at 67 Google Scholar.