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ARLINGTON, Va. — An Italian prosecutor requesting the indictment of a U.S. servicemember for murder in the shooting of an Italian intelligence agent in Iraq has little, if any, legal ground to back him, according to an Army legal expert specializing in international law.

Asked by e-mail whether it is possible for a servicemember to be extradited to a foreign country to stand trial for an alleged crime committed in a combat zone, a member of the Army’s Judge Advocate General (JAG) Corps replied “in my opinion, no.”

The pending indictment involves Spc. Mario Lozano, a member of the New York National Guard’s 69th Infantry Regiment, who was involved in a checkpoint incident on the road to the Baghdad airport on March 4, 2005.

As a rental car carrying agent Nicola Calipari, another agent, and newly freed Italian journalist Giuliana Sgrena approached the checkpoint, Lozano and other members of his unit opened fire. Calipari was killed, while Sgrena and the driver were wounded.

If Italy does request an extradition, the Army lawyer said a key issue in this case would involve status of forces agreements, or SOFAs — agreements that define the legal status of U.S. personnel and property in the territory of another nation.

The U.S. and Iraq — the location of the Italian prosecutor’s alleged crime involving Lozano — have not entered into a SOFA.

Italy and the United States do have a SOFA in place, under the NATO agreement.

However, “the NATO SOFA would only apply to the status of troops stationed in one of the NATO countries,” the lawyer said.

“It would not apply to the status of our forces outside the NATO countries’ territory, such as Iraq.”

Moreover, “the NATO SOFA is not an extradition agreement,” the lawyer said.

“Italy can’t rely on the NATO SOFA to obtain the extradition of a U.S. soldier for a crime allegedly committed against an Italian national in Iraq.”

Lozano could be tried “in absentia,” or without his presence in Italy.

But a “guilty” verdict would be meaningless, unless Lozano voluntarily agreed to travel to Italy and deliver himself into custody, another Army JAG, who asked not to be named because he is not involved in the case, told Stripes on Tuesday.

A U.S. military investigation into the incident concluded that the driver approached the checkpoint with excessive speed and failed to stop when signaled to do so.

The report said that Lozano and the other members of his unit responded appropriately to what they believed to be a suicide bomber.

An Italian investigation however, concluded that while the killing was accidental, miscommunications and confusion over rules of engagement at checkpoints contributed.

Lt. Cmdr. Joe Carpenter, a Pentagon spokesman, told Stripes on Tuesday that officials “will not speculate about a U.S. response in the event of an extradition request.”

“We stand behind the coalition investigation,” including the conclusion, which recommended no further action be warranted against individual soldiers, Carpenter said.

In New York, Lozano was “blindsided” by the news of the pending murder indictment, according to a Tuesday story in the New York Daily News.

“He was devastated. He couldn’t sleep after that,” the Daily News reported a fellow soldier, Staff Sgt. Edwin Feliciano, saying of Lozano’s reaction to the shooting.

“We just had to keep telling him, ‘You did what you had to do. You had to do your job.’ He felt really bad. We all did.”

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