The prosecution of war crimes committed by Nazi forces in Italy

Journal of International Criminal Justice

Volumn 3, Issue 2, 2005, Pages 422-433

  Rivello, Pier Paolo ^a  

^a Military Tribunal at Turin   (Italy)

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EID: 26844480733     PISSN: 14781387     EISSN: None     Source Type: Journal    
DOI: 10.1093/jicj/mqi034     Document Type: Article

References (32)

1. The importance of this joint trial had been underscored in a meeting called at the behest of the US State Department and held in Rome on 20 August 1945 at the headquarters of the Interim Italian Prime Minister. It was grounded on the notion that the Germans systematically and scientifically planned a programme of 'reprisals' covering the whole peninsula.
2. Sävecke is one of two persons for whom the author sought and obtained a life sentence for war crimes committed against the Italian people.
3. See, in particular, G. Neppi Modona, 'Il problema della continuità dell'amministrazione della giustizia dopo la caduta del fascismo', in L. Bernardi, G. Neppi Modona and S. Testori, Giustizia penale e guerra di liberazione (Milano: Angeli, 1984), at 34ff.
4. Kappler and others, Rome Military Tribunal, 20 July 1948, available online at http://www.difesa.it/NR/exeres/ 4DFCDD84-B4D4-48F9-8B15-6F49EC68BDD1.htm (visited January 2005).
5. Kappler and others, Supreme Military Tribunal, 25 October 1952, available online at http://www.difesa.it/NR/exeres/ 4DFCDD84-B4D4-48F9-8B15-6F49EC68BDD1.htm (visited January 2005).
6. August Allers, former commander of the Risiera di San Sabba camp, as from June 1944, died in 1975. Three other indictees were also dead: Wirth had been killed by partisans in 1944, Hering died after his return to Germany, and Stangal died in 1973 in a Dusseldorf prison.
7. On appeal, the Bologna Assize Court of Appeal remitted the case to the Military Prosecution of Verona, holding that the Italian ordinary judiciary lacked jurisdiction. On 15 November 1988, the accused was again sentenced in absentia to life imprisonment; see Schinholzer and others, Verona Military Tribunal, 15 September 1988.
8. Where there is good reason to believe that a person, because of his health or other serious impediment, may not be able to take part in oral proceedings, the Prosecutor may request the pre-trial judge, pursuant to Art. 392 of the Code of Criminal Procedure, that the testimony be obtained before the trial (incidente probatorio).
9. My capacity to do so was provided for by Art. 359 of the Code of Criminal Procedure.
10. Article 185 of the Military Criminal Code on War, relating to violence against enemy civilians, but also applicable to enemy servicemen, on the strength of Art. 13 of the same code, sets out in its §2 the notion of violence in the form of murder. Article 575 of the Italian Criminal Code prescribes imprisonment of no less than 21 years for murder, envisaging, however, life imprisonment when the aggravating circumstances provided in Art. 576 or 577 are present - among these last circumstances, one may recall premeditation - as well as those provided for in Art. 61, §§ 1 and 4 of the Italian Criminal Code (to which reference is made in Art. 577 of the Criminal Code).
11. See, to this effect, Priebke ed Hass, Rome Military Tribunal, Judgment of 22 July 1997, in Rassegna della Giustizia Militare, 1999, at 103ff (also available online at http://www.difesa.it/NR/exeres/ 6C51E7E2-0CA1-4F6D-87B3-2409AD7FF5B1.htm (visited January 2005), as well as the decision of the Court of Appeal, Judgment of 7 March 1999, ibid., at 2165ff and available online at the web address indicated above.
12. The notion of 'abuses' (sevizie) is fairly clear: It encompasses the voluntary infliction on the victim of particular suffering for the mere sake of making him or her suffer. In contrast, the notion of cruelty is more loose and sweeping. In this respect, legal grounds given by the Rome Military Tribunal in Priebke cast some light on the matter. The Tribunal held that cruelty encompasses any action denoting the irrepressible desire of the agent to satisfy his will to inflict suffering on other human beings. These are actions manifesting a particular wickedness or cruelty, as well as the total lack of sensitivity to any humanitarian concern. The Rome Tribunal emphasized that the purpose for applying the aggravating circumstance is to punish more severely persons who completely lack moral sensitivity and mercy.
13. Another aggravating circumstance is that of premeditation, which may be held to be present when, in the span of time between the planning and the execution of the crime, the criminal intent consolidates, and through the establishment of the modalities and means for the perpetration of the crime.
14. Article 59, §1 of the Military Criminal Code applicable in time of peace, which can also be applied to war crimes on the strength of Art. 47 of the Military Criminal Court applicable in war.
15. I was able to use these thanks to Art. 78, §II (Norme di attuazione - Implementing Rules) of the Italian Code of Criminal Procedure.
16. The Nazi Commander in Italy, Kesserling, had given orders that for every German soldier killed, 10 Italians should be executed.
17. Turin Military Tribunal, Judgment of 9 June 1999, available online at http://www.difesa.it/NR/exeres/6038911B-F58D-48AE-8E14-170C6FF69EDB.htm (visited January 2005).
18. Engel, Turin Military Tribunal, Judgment of 15 November 1999, available online at http://www.difesa.it/NR/exeres/ 792DCF88-E058-446D-B854-7E5C8A6AA235.htm (visited January 2005).
19. The initial investigation was conducted by the public prosecutor of Dortmund, but the proceedings were transferred to Hamburg at a later stage.
20. BGH St 3, 180.
21. BverfG E 45, 187.
22. BGH St 30,105.
23. Italy ratified the Convention on 30 September 1993 (Law no. 388).
24. See V. Mogini, 'I magistrati di collegamentd', in Documenti Giustizia (2000), n. 6, col. 1135ff.
25. F. Lattanzi, 'La nuova dimensione della cooperazione giudiziaria, in Documenti Giustizia, 2000, n. 6, cols 1040-1041.
26. N. Parisi, 'I crimini di guerra fra giurisdizioni nazionali e Corti penali internazionali', in 14 Rivista internazionale dei diritti dell'uomo (2001), 62-96.
27. See P. Rivello, 'Le "risposte" nazionali ai crimini di Guerra: Analisi di una serie di incertezze e lacune', in 58 La Comunità Internazionale (2003), at 47ff.
28. For these data on war trials, see A. Intelisano, 'I processi ai criminali di guerra nazisti', in 12 Storia e memoria (2003), at 169ff.
29. As has been described elsewhere, in the Federal Republic of Germany, most of the judges, after their so-called 'denazification', returned to their old posts, as if nothing had happened. C. Schminck Gustavus, 'Complici togati. L'inchiesta delle autorità giudiziarie germaniche sulla strage di Boves (1964-68)', in L. Klinkhammer et al., Boves. Storie di guerre e di pace (Cuneo, 2002), 46.
30. See also J. Perels, Das juristische Erbe des 'Dritten reichs'. Beschädigungen der demokratischen Rechtsordnung (Frankfurt/New York: Peters, 1999).
31. On this theme, see D. Tutu, No Future Without Forgiveness (Italian edition: Non c'è futuro senza perdono, Milano: Feltrinelli 2001);
32. see also A. Gentili and A. Lollini, 'L'esperienza delle Commissioni per la verità e la riconciliazione: Il caso sudafricano in una prospettiva giuridico-politica', in G. Illuminati, L. Stortoni and M. Virgilio (eds), Crimini internazionali tra diritto e giustizia. Dai Tribunali Internazionali alle Commissioni Verità e Riconciliazione (Torino: Giappichelli, 2000), at 163ff.