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The Priebke Case before the Italian Military Tribunals: A Reaffirmation of the Principle of Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity*

Published online by Cambridge University Press:  17 February 2009

Sergio Marchisio
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Extract

The complex case of Erich Priebke can be analysed through two different phases. The first runs from the massacre of 335 Italian citizens at the Ardeatine Caves in Rome in 1944 to the conviction of Herbert Kappler and other Nazi officers involved in that shooting on 20 July 1948. During mis four-year period, Priebke became untraceable and escaped justice. The second phase starts when the former SS officer was detected in Argentina in May 1994 and, following extradition proceedings there, was extradited to Italy, where he underwent two criminal trials in front of the Italian military jurisdiction.

Type
Current Developments: The Case of Erich Priebke
Information
Yearbook of International Humanitarian Law , Volume 1 , December 1998 , pp. 344 - 353
Copyright
Copyright © T.M.C. Asser Instituut and the Authors 1998

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References

1. For a consideration of the Argentine leg of the case, see Consigli, p. 341.

2. Cf., Bohlen, C., ‘Italian Court Throws Out Case in 1944 Rome Massacre’, The New York Times, (2 08 1996) p. A3Google Scholar.

3. For both defendants, a ten year-imprisonment was pardoned because of post–1945 amnesties, which entailed the immediate release of Hass.

4. On the juridical status of partisans, see Bierzanek, R., Le status juridique des partisans et des mouvements de résistance armée: évolution historique et aspects actuels, Mélanges offerts a Juraj Andrassy (The Hague 1968) pp. 54–77Google Scholar.

5. Cf., Peretti-Griva, D., ‘L'attentato di via Rasellae la responsabilità per l'eccidio delle Fosse Ardeatine’, Giurisprudenza italiana, Vol. CII (1950) pp. 577–580Google Scholar, commenting on the Judgement of 9 June 1950, issued by Tribunale di Roma in Lidomici ed altri v. Bentivegna ed altri. Relatives of some victims of the Ardeatine massacre brought a civil action against the authors of the attack in via Rasella, alleging the illegitimacy of the attack. The Court stated that recovery of damages could not be granted, since the attack in via Rasella was an act of war framed within the Partisan war, and, as such, not subject to the control of the judicial authority.

6. In late 1997, Wilheim Schuberning, the former SS lieutenant who exploded the charge, was traced to Veit an der Glan in Carinthia.

7. On 6 May 1946, the British Military Court sitting in Venice had declared Marshal Kesselring guilty of ordering the massacre at the Ardeatine caves in violation of the laws of war. See Annual Digest of International Law Cases (1946) p. 258Google Scholar et seq. See also the judgement of condemnation against General von Machensen issued by the British Military Court of Rome on 30 November 1946, ibid. Von Machensen was part of the chain of command that communicated the order from Hitler via Field Marshal Kesselring, General Von Machensen, and General Maelzerto Lieutenant-Colonel Kappler.

8. Il Foro Italiano (1949) II, pp. 160–168Google Scholar. See also Capotorti, F., Qualificazione giuridica dell'eccido delle Fosse Ardeatine Rassegna di diritto pubblico (1949) II, pp. 170–192Google Scholar.

9. Text of the Judgment in Rivista di diritto internazionale, 1953, p. 193 et seq. The final judgement on the Kappler case reversed the argument of the de facto organ, stating that there was no legal link between the group and the Italian state. See also R. Ago, ibid., pp. 200–206.

11. Il Foro Italiano (1996) II, pp. 558–562Google Scholar.

12. See Law no. 153 of 11 March 1952. Reference is made, in particular, to the legislation necessary to secure effective penalties for persons guilty of genocide. See Barsotti, R., Genocidio, Codice internazionale dei diritti umani, Vitta, E. et al. , ed., (Grememieri, Milan 1981) pp. 229–232Google Scholar.

13. In the judgement of 29 February 1996, the Constitutional Court had declared the constitutional illegitimacy of Article 270 of the Military Penal Code of Peace for that part that does not foresee the possibility of the participation of aggrieved parties to the proceeding in front of the military judge and calls upon the military judge himself to fix compensation damages for the victims following possible condemnation.

14. No. 305 of 1996.

15. Non-official translation of the relevant part of the as yet unpublished judgement, that reads as follows: ‘Quello addebitato al Priebke, infatti, almeno formalmente, è un crimine di guerra e non può essere definito un “crimine contro l'umanità” al solo fine di renderlo imprescrittibile …’

16. On 5 September 1996, the Court of Cassation stated that Priebke's arrest was legitimate. Il Foro Italiano (1996) II, pp. 537–541Google Scholar.

17. See Il Foro Itatiano (1997) II, pp. 6–17Google Scholar. The Military Court had instead expressed a contrary opinion with regard to two pleas of exception previously filed by, respectively, the Military Prosecutor and one of the aggrieved parties. The pleas were dismissed by the Court by Order no. 69 of 23 July 1996 and Order no. 117 of 29 July 1996. In both cases, the Court deemed that the declarations of the President of the Military Court were of a merely declaratory character of part of public opinion.

18. With the judgement of 10 February 1997, the Court of Cassation decided once again that the military court had jurisdiction and rejected the decision of the Military Court of Rome of 4 December 1996 in which the Court had declared its own lack of jurisdiction. Il Foro Italiano (1997) II, pp. 137–143Google Scholar.

19. No. 322 of 22 July 1997, filed on 13 September 1997.

20. See Sacerdoti, G., A proposito del caso priebke: la responsabilità per l'esecuzione di ordini illegittimi costituenti crimini di guerra (Rivista di diritto internazionale 1997) pp. 130–151Google Scholar. The author illustrates how the order to commit the massacre could also be considered illegitimate under German law at the time, in light of the international law of warfare.

21. As for non-applicability of statutory limitations to crimes against humanity, see also the Judgements of 6 October 1983 and 26 January 1984 by the French Court of Cassation in the case of Barbie, ILR (1988) pp. 125–148Google Scholar.

22. The Convention was adopted by the UN General Assembly at its 23rd session on 26 November 1968, ILM (1969) pp. 68–72Google Scholar.