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The Defences of Reprisals, Superior Orders and Duress in the Priebke Case before the Italian Military Tribunal*

Published online by Cambridge University Press:  17 February 2009

Francesca Martines
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Extract

The aim of this article is to discuss the three defences raised by Erich Priebke for his participation in the killing of 335 civilians at the Ardeatine Caves which took place on 24 March 1944, and for which Priebke was tried by the Italian Military Tribunal which rendered its second judgement on 22 July 1997. The defences were: (1) the characterisation of the shootings at the Ardeatine Caves as lawful belligerent reprisals, (2) the defence of superior orders, and (3) duress.

Type
Current Developments: The Case of Erich Priebke
Information
Yearbook of International Humanitarian Law , Volume 1 , December 1998 , pp. 354 - 361
Copyright
Copyright © T.M.C. Asser Instituut and the Authors 1998

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References

1. For background to the case see Marchisio, S., supra, p. 344Google Scholar. The sentence of the Military Tribunal was appealed by the General Military Prosecutor and by the Military Prosecutor of Rome. The final judgment was rendered on 7 March 1998 by the Military Court of Appeal (Corte Militare di Appello).

2. The question was also dealt with at length by the Military Tribunal which tried Kappler in 1948. See Capotorti, F., ‘“Rappresaglie” esercitate dall'occupante per atti ostili della popolazione nemica in Foro Penale’ (1949) p. 112Google Scholar.

3. Belligerent reprisals are a category of international reprisals (or counter-measures according to a more common terminology) which are defined as violations of the laws of war committed by one belligerent against another belligerent who committed a previous violation of the laws of war. See generally Kalshoven, F., Belligerent Reprisals (Leiden, Sijthoff 1971)Google Scholar.

4. ‘Thus, if neither of the two defenses (reprisals and collective punishment) for the Ardeatine caves shooting can be accepted, it is obvious that the legal qualification of the attack made by partisans in via Rasella is unimportant, if not even potentially misleading’ (Unofficial translation). See p. 31 of the typewritten text of the judgement of the Military Tribunal.

5. This could be maintained if one considers that the partisans were de facto organs and that they infringed Art. 23 (which prohibits the treacherous killing and wounding of enemies) in connection with Art. 1 of the Regulation (which lays down the requisites of legitimate combatants) annexed to the IV Hague Convention of 1907. The text of the Regulation is reported in Schindler, D., Toman, J., Droit des conflits armès, (Institut Henry-Dunant, Genève 1996) p. 65 et seqGoogle Scholar.

6. Unofficial translation. See p. 28 of the typewritten text of the judgement of the Military Tribunal. These conclusions are shared by the Military Court of Appeal, at p. 127 of the typewritten text of the judgement.

7. These became the object of an express prohibition only after 1949, under Art. 33 of the IV Geneva Convention.

8. ‘Dans les cas non compris dans les dispositions réglementaires adoptées par (les Hautes Parties contractames), les populations et les belligérents restent sous la sauvergarde et sous l'empire des principes du droit des gens, tels qu'ils resultent des usages ètablis entre nations civilisées, des lois de l'humanité et des exigences de la conscience publique'. Sulla Clausola Martens vedi Benvenuti, P., ‘La Clausola Martens e la tradizione classica del diritto naturale nella codificazione del diritto dei conflitti armati’, in Scritti in memoria di Giuseppe Barile (Cedam, 1996) p. 173 et seqGoogle Scholar.

9. According to this provision, no general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.

10. ‘The Tribunal notes that, according to the doctrine, collective punishment can affect only a community and not individuals: in that sense a classical example of collective punishment is the requisition of properties of the state such as libraries, museums, etc’ At p. 31 of the typewritten text of the judgement of the Military Tribunal.

11. This article has been repealed by Art. 22 of Italian Statute 11 July 1978, no. 382, but has rightly been considered still applicable by the Tribunal, being substantive and not procedural law. See p. 49 of the typewritten text of the judgement of the Military Tribunal.

12. Padovani, T., ‘Ordine criminoso e obbedienza gerarchica nel diritto penale italiano’, in Dei delitti e delle pene (1987) pp. 477 et seq.Google Scholar; Venditti, R., Il diritto penale militare nel sistema penale italiano (Giuffrè 1992) pp. 181 et seq.Google Scholar; Dinstein, Y., The Defence of ‘Obedience to Superior orders’ in International law (Leiden 1965) pp. 10 et seq.Google Scholar; Cassese, A., ‘Abramo, Antigone ed il conflitto tra imperativi’ in Cassese, A., Violenza e diritto nell'era nucleare (Laterza 1986) p. 109 et seqGoogle Scholar.

13. Very often, in criminal proceedings against war criminals, superior order has been invoked as a defence in connection with duress. The defendants often argued that they obeyed an order even if it was illegitimate because they were threatened with execution in case of disobedience. The two defenses are, of course, to be distinguished. Superior orders can exist without duress and duress without superior orders. The order does not constitute duress even if an element of coercion were present, not as a direct threat but as a form of pressure on the subordinate because of the implied sanction which accompanies disobedience.

14. Military Tribunal, p. 51 of the type written text of the judgment. According to the Military Court of Appeal, this defence cannot be invoked in the specific case since ‘the defendant(s) completely adhered to the order received without being subject to any coercion’; the Court considers that in that case there was not a conflict of duties, no conflict between the order and (the defendant's) conscience was present”, see p. 134 and 135 of the typewritten text of the judgment (unofficial translation).

15. ‘In the case under consideration [the Tribunal considers that] the defendant had been led to commit the crime by … Kappler’, p. 81 of the typewritten text of the judgement of the Miliary Tribunal (unofficial translation).

16. Kappler was prosecuted in Italy in 1948 for the killings in the Ardeatine caves. He was tried by the Military Tribunal of Rome in 1948 and by the Supreme Military Tribunal in 1952. The 1948 judgement can be read in Foro Penale 1948, p. 604. The judgement of the Supreme Military Tribunal of 1952 is reported in Rivista di Diritto inernazionale (1953) p. 193 et seq. with comment by R. Ago.

17. According to Art. 54 of the Italian criminal code, ‘Anyone who has committed an act having been compelled to do so by the necessity of saving himself or others from the present danger of serious bodily harm, a danger not voluntary caused by him, nor otherwise avoidable, shall not be punishable, provided the act is proportionate to the danger … The provision of the first paragraph … shall apply even if the state of necessity is caused by the threats of others …’

18. This conclusion was shared by the Military Court of Appeal: ‘Kappler did not make any threat regarding the life and physical integrity (of the defendant) … because there was no need …’ see p. 146 of the typewritten text of the judgment. Non-official translation.

19. Unofficial translation, p. 57 of the typewritten text of the judgement of the Military Tribunal.

20. See p. 57 of the typewritten text of the judgement of the Military Tribunal.

21. See p. 28 of the typewritten text of the judgement of the Military Tribunal. As underlined by Judge Cassese in his dissenting opinion to the Appeals judgment in the case of Erdemovć before the International Criminal Tribunal for the Former Yugoslavia, 7 October 1997, Case No. IT-96-22-A, it is not clear whether the lack of proportionality refers to ‘the possible death (…) of the defendants on the one side, and their participation in the execution, on the other’ or ‘to the fear by the defendants to be court-martialled by an SS Court, on the one side, and their participation in the execution, on the other’ (fn. 69, pp. 33–34 at p. 34 of the typewritten text of the dissenting opinion annexed to the judgment). I would say that the first hypothesis should be preferred since it was not proved that Priebke would have been sentenced to death by the SS military court.

22. See p. 53 of the typewritten text of the judgment of the Military Tribunal.

23. For an analysis of this decision, see Rowe, , supra p. 210Google Scholar.

24. Priebke was involved in the preparation of the list of prisoners to be killed at the caves and in the actual killing of some of the prisoners.

25. ‘… the judge may take into account various other circumstances regard for which justifies a reduction of punishment.’