Italian guerillas terrorist bomb attack at Via Rasella, 1944

[David Thompson]

DrG -- The case you cite to at http://www.giustiziamilitare.difesa.it/ ... 81996.shtm
is the military court verdict of 1 Aug 1996. According to the information I have (from the New York Times), that military court found Priebke guilty but dismissed the case 1 Aug 1996 on the grounds sthat the tatute of limitations had run on the offense. Priebke was rearrested the next day -- 2 Aug 1996 -- by Italian police (NYT 2 Aug 1996:3:1; NYT 11 Aug 1996:6:1) and a new trial was ordered 15 Oct 1996 by Italian Court of Cassation (NYT 16 Oct 1996:4:3; NYT 20 Oct 1996:4:1). Since the military court judgment was overturned, why do you cite to it?

[David Thompson]

DrG -- You quoted from a law review article which said:

"The Germans had the right of reprisal because the attack couldn't be considered a legal act of war, and because it was made by "illegal belligerents", and because of the treacherous way of its happening."

The author's statement certainly sounds self-confident, but his conclusion was hotly contested even during and immediately after WWII. There are a number of sources cited on this thread:
http://forum.axishistory.com/viewtopic.php?t=32883
which show that the author's sweeping assertion is unwarranted. For interested readers, there are some very thought-provoking discussions of the right of reprisal as it existed during WWII in the UN War Crimes Commission Reports of the British trials of Field Marshal Kesselring, of Generals von Mackensen and Maelzer, and of the American trial of Field Marshal List and other German general officers in the "Hostage Case," available on line at:

http://www.ess.uwe.ac.uk/WCC/kesselring.htm

http://www.ess.uwe.ac.uk/WCC/mackensen.htm

and

http://www.ess.uwe.ac.uk/WCC/List1.htm

Here are some additional points of interest:

(1) even under the most liberal interpretation of the law of reprisal, only the commander of military forces could take reprisals against a foreign population. The commander of a "police garrison" did not possess that power, so the Ardeatine Caves reprisal was an assertion that the German military controlled Rome and, consequently an admission that Rome was not an open city.

(2) The elements of the SS Police Regiment "Bozen" in the City of Rome were there to coerce forced laborers and military conscripts -- a program incompatible with the concept of an open city. (Katz, Massacre in Rome pp. 20-21).

(3) The first page of the report of the von Mackensen trial at http://www.ess.uwe.ac.uk/WCC/mackensen.htm has this sentence:

"After both the Army and the Police authorities had refused to carry out this mass execution, the S.D. under Kappler was ordered to do so."

The suggestion, of course, is that the German Army and Police thought the order was obviously illegal.

[DrG]

DrG -- The case you cite to at http://www.giustiziamilitare.difesa.it/ ... 81996.shtm
is the military court verdict of 1 Aug 1996. According to the information I have (from the New York Times), that military court found Priebke guilty but dismissed the case 1 Aug 1996 on the grounds sthat the tatute of limitations had run on the offense. Priebke was rearrested the next day -- 2 Aug 1996 -- by Italian police (NYT 2 Aug 1996:3:1; NYT 11 Aug 1996:6:1) and a new trial was ordered 15 Oct 1996 by Italian Court of Cassation (NYT 16 Oct 1996:4:3; NYT 20 Oct 1996:4:1). Since the military court judgment was overturned, why do you cite to it?

In this topic we are not discussing the Priebke case, but if the attack was legal or not. That sentence was authoritative as every other sentence, and the comment from the Zaleuco review was instead about the second trial. A trial, the second one (http://www.giustiziamilitare.difesa.it/ ... 71997.shtm), that with understandable (given the pressures made by the influent Jewish community of Rome and the leftist govern) cowardice jumped off the problem of the legality of the attack of Via Rasella because the reprisal, as already sentenced in the first trial, had been done without respect of the laws:

Ma allora, se per nessuno dei due istituti ora esaminati è corretto il richiamo a giustificare l'eccidio delle Cave Ardeatine, si evidenzia come la qualificazione giuridica dell'azione partigiana di via Rasella, nei termini di cui in premessa, è del tutto irrilevante se non addirittura in qualche modo potenzialmente fuorviante.

Translation of the underlined part: "the juridical qualification of the partizan action in via Rasella ... is completely irrilevant".

PS The same position was kept in the following trial:
http://www.giustiziamilitare.difesa.it/ ... 31998.shtm (paragraph 1.1.4.)
Instead in this following one: http://www.giustiziamilitare.difesa.it/ ... 11998.shtm nothing is told about the legality of that action.

The last trial about the attack of via Rasella (http://www.giustiziamilitare.difesa.it/ ... 21999.shtm; this trial wasn't for Priebke, but for the partizans, because they had been denounced for "strage" = massacre [collective murder, I don't know its exact translation; it is an action not made under the legal cover of a state] by the relatives of the civilians killed in that attacks and by some of the relatives of civilians executed in the reprisal). This sentence simply told that it was made by people fighting for a state (as recognized by the law n.194 of 1945; moreover they are considered as fighters for the Kingdom of Italy because after the DoW on Germany of 13 Oct. 1943 the Kingdom has incited all Italians to fight against Germans; pratically with this kind of definition everybody who attacked a German was doing it as a fighter of the Kingdom and not as a private citizen), thus it was an act of war, and told it was similar to the definition of "bombing" (as described in the Titolo II, Capo II Sez. II of the Italian law of war (R.d. n. 1415 del 1938, all. A) ), but it is told clearly that partizans weren't legal fighters according to the Hague Convention of 1907.
Thus the partizans were acquitted from the charge of "strage", but the legality of the attack wasn't important for this trial (as for the trial of Priebke), it was only told it was an act of war (thus not a "strage"), similar to a bombing, made by fighters of the Kingdom of Italy, who were illegal ones according to the Hague Convention of 1907.

[DrG]

(1) even under the most liberal interpretation of the law of reprisal, only the commander of military forces could take reprisals against a foreign population. The commander of a "police garrison" did not possess that power, so the Ardeatine Caves reprisal was an assertion that the German military controlled Rome and, consequently an admission that Rome was not an open city.

The status of open city was, nevertheless, recognized by the Kingdom of Italy. By the way, why a military commander cannot be the commander of an open city? And on what legal basis militars, armed only with their personal weapons, shouldn't be police forces of an open city? Also before 23 Sept. 1943 Rome was under the control of police forces including militars (not only Carabinieri, who are both militars and policemen, but also the soldiers of the Piave division), but this time they were Italian.

(2) The elements of the SS Police Regiment "Bozen" in the City of Rome were there to coerce forced laborers and military conscripts -- a program incompatible with the concept of an open city. (Katz, Massacre in Rome pp. 20-21).

On what legal basis conscription cannot be made in an open city?

(3) The first page of the report of the von Mackensen trial at http://www.ess.uwe.ac.uk/WCC/mackensen.htm has this sentence:

"After both the Army and the Police authorities had refused to carry out this mass execution, the S.D. under Kappler was ordered to do so."

The suggestion, of course, is that the German Army and Police thought the order was obviously illegal.

The illegality of this reprisal has almost always been recognized by Italian tribunals, but because of the way it was made, not because of the legality or not of the attack of Via Rasella, that is the topic of this thread.