The Lack of an Italian War Crimes Tribunal.
By Nicole Di Maria
Introduction
The Nuremberg and Tokyo Trials were integral in setting a new precedent in International Law, facilitating a discussion between the balance of strength, power, along with the importance of reason. The world had seen such atrocity and suffering during the Second World War and the Holocaust, that it could no longer deny its obligation to recreate a system aimed at making a long-lasting, stable justice and cooperation flourish[1]. Although several critiques to these trials were raised, among which its violation of the principle of non-retroactivity of the law[2], they served — together with the few lower-level trials of German war criminals in Italy — to firmly state that no horror can remain unpunished. However, there was one trial which did not take place. Now, the international community must silently live with the ghost of a never-been reconstruction: the one of post war fascist Italy.
A tribunal to prosecute Italian atrocities committed during the Second World War was never established, furthering a polarized rhetoric about the goodness of the Italian deeds throughout the War. On September 3, 1943, Italy signed an armistice with the Allied Powers and the United Nations to suspend the hostilities while abiding to other obligations of economic and political nature[3]. This document was, for the Allies, already an acknowledgment of the fundamental role Italy played in the war, and more specifically in helping Nazi Germany[4]. Following the armistice document, the Allied Forces issued the “Instrument of Surrender” on September 29, 1943, and the “Joint Four-Nation Declaration” on October 30, 1943. On the one hand, the first document as a letter from the Commander in Chief of the Allied Forces to the Chief of Italian Government, was stating more officially that the Italian fascist forces did commit war crimes[5]. On the other hand, the second one included an even more direct stipulation of the need for direct justice [6]. Still, history taught us that these efforts were not enough.
This work discusses the attempts to prosecute Italian war criminals, highlighting the historical and geopolitical context that blocked a reconstructive process leading a concealment of Italian war criminals and their crimes. This process of lacking awareness and responsibility is evident in the way the current political and legal world works as well. This research mainly focuses on the crimes committed by Italy in Yugoslavia and Ethiopia, and an analysis of the variables which finalized the impossibility to have an Italian Nuremberg Trial.
This work claims that Italian war crimes were not processed due to both geopolitical games and an underdeveloped system of international law. Moreover, it must be highlighted that any of the Allies country considered the Italian trials a priority, leaving Italian citizens alone through their grievances and the governance of a broken and polarized nation. This policy also resulted detrimental for Yugoslavia and Ethiopia as they had to further their cases without any help. This article therefore considers international law and the concept of war crimes from a modern perspective, offering new lenses to look at the events beyond an historical perspective. This analysis exposes how the sociopolitical and legal context of that time hindered the future of a cohesive Italian nation, reducing it to a mere trampoline for other geopolitical interests.
Italiani Brava Gente: The Yugoslav and Ethiopian Matters
Italiani brava gente (tr: Italians, the good people) is a common phrase to recall the niceness — and frequently naiveness — attributed to Italians by foreign countries. What the public is lacking to consider, is that such goodness in the Italians often come from their forgetfulness as well. Indeed, it is quite rare to hear about the Italian crimes during World War II in Yugoslavia or Ethiopia, while the victims of such crimes never managed to have justice. As the historian and journalist Angelo Del Boca wrote: “L’Italia era fatta, ma era priva di una coscienza unitaria collettiva senza la quale non si sarebbe mai formata una moderna identità nazionale” [7]. It is therefore a moral obligation to look into what were at least some of the crimes committed by Italians during the War.
In Yugoslavia the Italians committed most of their war crimes. Indeed, the United Nations War Crimes Commission (UNWCC) accused 764 individuals out of the more than a thousand files of the listed individuals up for investigations. These several hundred individuals should have been tried by the Yugoslav government, helped by the Commission to assess their conduct [8]. The case Yugoslavia brought to the international community was a strong one [9]. However, the Commission’s committee advocated for the crimes committed in Yugoslavia to be tried at the international level, as the violations that occurred demonstrated the systematic nature to the crimes [10]. An instance of the systematicity of the crimes are the 200 Italian concentration camps, hosting more than hundred-forty thousand Yugoslavs experiencing arbitrary killings, torture, and lack of food[11].
Throughout 1944, it became even clearer how the Yugoslavian situation converted to a chessboard for geopolitical games. The few powers given to the UNWCC [12] were not of help to Yugoslavia, and the Allies were prioritizing the liberation of northern Italy leaving aside the matter or war crimes. Yugoslavia became the tool to further policies and ideologies from above, with the Soviet Union sitting in the backroom and taking advantage of its impossibility to help. Indeed, having been left out from the UNWCC, the USSR was legitimized to downplay the UNWCC’s authority and functionality [13] — naturally widening the polarization and the tensions of what was already becoming the Cold War.
Moving onto the Ethiopian case, the government issued various letters in 1946 to the UN Secretary-General, the International Military Tribunal, and the British Legation to request the appropriate measures to be taken against the war crimes committed by the Italians — recalling that Ethiopia had adhered to both the London Agreements in 1945 and to the Charter of the International Military Tribunal. Although these letters were hard to ignore by the international community, the United Kingdom still resisted to the idea of including Ethiopia in the UNWCC [14].
Ethiopians suffered from incredible pains due to the Italian forces’ crimes. In 1947 Ethiopia issued another letter to the UNWCC assessing the crimes committed by the Italians, as well as the people charged with such crimes[15]. It is key to remember that international criminal law was not properly developed at the time. The Italian actions could therefore not amount to war crimes, and they should be considered as violations of international humanitarian law. More specifically, they should count as violations of the Hague Conventions, which prohibit many of the warfare practices employed in the Second World War [16]. Given the modern perspective used in this research, it is essential to highlight the difference among the angles while considering the Italian actions as war crimes under modern lenses.
The crimes concerned: launching systematic acts of terrorism against civilians, using poison gas, burning hospitals and ambulances, bombing towns, deporting civilians and forcing them to work as slaves, burning villages, massacring the villages’ residents including women and children. For these hideous crimes, it is important to recall General Graziani[17] and General Badoglio among the people charged. In the end, the situations of Yugoslavia and Ethiopia would have not received justice, surrounded by unwilling governments, a polarized international community due to the rise of the Cold War, legal gaps, and lacking resources.
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(Not-So) Domestic Matters: The Communist Variable and Togliatti’s Amnesty
While Italy had been allowed to submit charges to the Commission regarding the war crimes that have been committed on its territory by the Germans, nothing had been done for Yugoslavia and Ethiopia. The Allies supported Italy in establishing a tribunal that was similar to the Nuremberg one, while Ethiopia was still having difficulties in submitting charges against the Italians in the first place. Until that point, Ethiopia was still under Italian control, which only ended de iure in 1947[18]. Although only of a legal nature, the Italian control over Ethiopia made the Italian war crimes trial fall under the jurisdiction of Italian tribunals. In March 1948 the Commission issued a final list of ten individuals charged with the commission of war crimes during the Italian occupation of Ethiopia, among which figured General Badoglio. Still, it would have not been possible to try him.
Indeed, Italy gained the status of co-belligerent of the Allied Forces in the October of 1943, and due to the Allies’ plan for the future Italian nation, the Foreign Office of the Commission decided to block British authorities from arresting anyone that had cooperated with the Allied Forces after September 1943. Naturally, this would have applied to Badoglio as well [19]. The Yugoslav grievances grew, and they were seen with empathy by the Foreign Office, who stated that they were willing to prosecute war criminals but that maintaining such high attention on this discussion would have destabilized the future of Italy even more [20]. Indeed, Italy had seen in the meanwhile the role of Prime minister being taken over by Badoglio himself, appointed by the King. During 1945, the list of war criminals that Italy should have extradited was passed to the government, and Britain received new complaints by Yugoslavia because of the absence of trials for any war criminal they charged [21].
The already existing injustices and tensions were exacerbated by Yugoslav occupation of Trieste in the summer of 1945, having an impact on the foreign policy of the United States. After the occupation of Trieste, Britain found itself in a complex situation. The US started perceiving the attempts to prosecute Italian war criminals as Soviet propaganda furthered through Tito, aimed at tarnishing the reputation of Italy and the Western hemisphere. The British policy to deliver justice to Yugoslavia was based on Italy’s compliance, but the Italian passivity was not granted anymore due to its unwillingness to risk the United States’ antagonism. Moreover, Britain knew that after Italy’s referendum of 1946 to decide among Republic and Monarchy, maintaining the same policy towards the Yugoslav situation would have strengthened the role of the PCI in Italy [22]. Naturally, this hostile environment to justice was enhanced by the lack of an independent international agency and transparent domestic courts.
Notwithstanding the whole scenario, the possibility of an Italian Nuremberg was alive until 1946. To finalize the understanding of why such possibility was not fulfilled it is necessary to investigate three main factors. Firstly, the United States and the USSR kept pushing tensions, diverging from one another as the former pushed for an international authority to prosecute criminals, while the latter advocated for criminals to be tried in the countries where the atrocities took place[23] — more than probably to further the Soviet sphere of influence through Yugoslavia. Secondly, and tied to the first, the Allies, Italy, and Yugoslavia were disagreeing on who should have tried the Italian war crimes and therefore delayed the process [24].
Thirdly, with the Cold War onsetting and the older tensions evolving, the countries pushing for the prosecution of crimes find themselves in a hard position when Palmiro Togliatti — that time’s Secretary General of the PCI — signed an Amnesty Decree[25] with the Christian Democracy (DC) — which founder Alcide De Gasperi took the role of Prime Minister after the 1946 referendum. On the one hand, the PCI wanted all fascists to stay in prison, while on the other hand the DC wanted to pardon as many of them as possible. Togliatti’s decree announced a compromise among the two parties in order to grant amnesty, more unity in the country, and avoid further the overcrowding of prisons. Moreover, on a domestic level, this agreement can be interpreted as an important attempt towards a solid nation based on a supposed common narrative.
Naturally, the Allies supported such initiative, and silently left the possibility of an Italian Nuremberg to mold in order to avoid a further radicalization of anti-fascists and communists during the first years of the Italian reconstruction [26]. Togliatti’s Amnesty Decree brought grave consequences on the judiciary level. The Italians’ own program to try individuals in their own territory got stalled, with judges and government officials who did not show willingness to proceed, while avoiding transparency on the possibility of extraditing Generals like Graziani or Roatta [27]. Moreover, we shall highlight that the Italian Ministry of Foreign Affairs was not only receiving the lists of charged individuals by Yugoslavia but was also investigating to prove their innocence and underline the crimes of Yugoslavians too. Indeed, the Ministry issued a “counter-list” with 200 Yugoslavian nationals charged with war crimes[28].
The single appearance of some sort of trial, was an Italian-style solution to further a normalization of relations with Germany as well as forgetting the hideous crimes Italy committed. Few trials took place, prosecuting mid-ranking officials — among which names we can recall Kappler, Strauch, and Reder — allowing to transfer hundreds of cases with the aim of storing them for decades. The quietude with which the Italian war crimes were being hidden behind a red velvet curtain, was comfortable to the other Allied Forces as well. Indeed, the British used the Allied laws of war in these few trials held in Italy, rather than the Nuremberg Charter [29]. They believed that this was more in line with the international conventions of the Hague — as outlined in 1899, 1907, and Geneva in 1929 — and possibly also to prevent further accusations regarding the violation of the principle of non-retroactivity of the law [30]. In addition to these trials, thirty-nine accused war criminals were sent to the Italian Military Prosecutor’s Office as participants in a Commission that De Gasperi established at the Ministry of War in 1946. But the trials were never held. The Commission was abolished in 1951 using a legal gap to turn over all of the investigations [31].
Conclusion
Italy never had its own “Nuremberg”, it never reached a common narrative, and the polarization among the population concerning the “good” and the bad actions of an Imperialist dictatorship is still wide today. In this complex scenario, Italy was both a victim and an executioner, falling prey of geopolitical games where its long-term stability was not a priority, as well as lacking transparency on its part not complying to the requests of extraditions of its nationals to be tried. The egoistic geopolitical interests furthered by States throughout the creation of the UNWCC set the ground for further division in the international community, exacerbated by the worries and tensions of the imminent Cold War as well as the high domestic polarization within Italy.
Regardless of the reasons leading to such outcome, it must be remembered that Italy — together with other governments — did not have neither the proper willingness nor the proper help to prosecute war criminals and promote its unity. Italy itself was focused on receiving compensation for the war crimes perpetrated on its citizens. Here, it is important to recall the Ferrini Judgement from 2004, which recognizes that it is not possible to recall on absolute immunity from an alien jurisdiction[32].
Considering the analysis furthered by this work, it seems like the Italians wanted a new country while remaining an old people. Through an history of denials, legal loopholes, and bloodstained silences, the international community managed to establish a fundamental precedent in the pursue of justice through International Law at the Nuremberg Trials, while reminding the ones who lost the war that their grievances were not worth the Allies’ willingness to seek truth and justness.
Note
[1] Rudolph, Christopher. “Power and Principle from Nuremberg to The Hague.” In Power and Principle, 15–56. The Politics of International Criminal Courts. Cornell University Press, 2017. Available at https://www.jstor.org/stable/10.7591/j.ctt1qv5q0z.7.
[2] Battini, Michele. “Sins of Memory: Reflections on the Lack of an Italian Nuremberg and the Administration of International Justice after 1945.” Journal of Modern Italian Studies 9, no. 3 (September 1, 2004): 349–62. Available at https://doi.org/10.1080/1354571042000254764; p. 359.
[3] “Armistice with Italy: Instrument of Surrender,” September 29, 1943. Available at https://maint.loc.gov/law/help/us-treaties/bevans/m-ust000003-0775.pdf.
[4] Pedaliu, Effie G. H. “Britain and the ‘Hand-over’ of Italian War Criminals to Yugoslavia, 1945-48.” Journal of Contemporary History 39, no. 4 (2004): 503–29. Available at https://www.jstor.org/stable/4141408.
[5] “Armistice with Italy: Instrument of Surrender”; from this document, we shall look at Article 29, stating: “Benito Mussolini, his Chief Fascist associates and all persons suspected of having committed war crimes or analogous offenses whose names appear on lists to be communicated by the United Nations will forthwith be apprehended and surrendered to the United Nations. Any instructions given by the United Nations for this purpose will be complied with”.
[6] “The Moscow Conference, October 1943.” Text. Available at https://avalon.law.yale.edu/wwii/moscow.asp; from this document, we shall look at Paragraph 7 under “Declaration Regarding Italy”, stating: “Fascist chiefs and army generals known or suspected to be war criminals shall be arrested and handed over to justice.”
[7] Del Boca, Angelo. Italiani, brava gente? I edizione eBook. Neri Pozza, 2005, p. 21; tr: “Italy was made, but it lacked a collective unitary consciousness without which a modern national identity would never have been formed”.
[8] Prosperi, p. 11.
[9] Pedaliu, p. 508; such case was based on the mistreatment of civilians during the occupation from Italians of Yugolsavia, with the accuses of crimes against humanity, crimes against peace, and crimes against the law of war. The folders of the investigations are available in the United Nations archives at https://search.archives.un.org/15928-00001.
[10] Prosperi, p. 12; the committee said in its General Propositions — which defined the term “crimes against humanity” — that a crime shall be considered as such when it is furthered through “systematic mass action”. This delays the international community’s possibility to intervene as the crimes should have already been committed, endangering the victims’ communities.
[11] Pedaliu, p. 509.
[12] Kochavi, Arieh J. “Discord within the Roosevelt Administration over a Policy toward War Criminals.” Diplomatic History 19, no. 4 (1995): 617–39, page 323. Available at https://www.jstor.org/stable/24912330. The Commission did not have any investigatory nor executive power, having to deal with cases only after the charges were submitted to it. During its time of operation, it had to examine more than eight thousand files which were involving more than thirty-five thousand individuals.
[13] Ibid.
[14] Pankhurst, Richard. “Italian Fascist War Crimes in Ethiopia: A History of Their Discussion, from the League of Nations to the United Nations (1936-1949).” Northeast African Studies 6, no. 1 (1999): 83–140, pgs. 113, 114. Available at https://muse.jhu.edu/pub/26/article/23691.
[15] “A58 (Letter Received by the Secretary General from the Minister, Imperial Ethiopian Legation, London).” Accessed April 14, 2024. Available at https://www.legal-tools.org/doc/3aa5ad/.
[16] Heinz Marcus Hanke, “The 1923 Hague Rules of Air Warfare” International Review of the Red Cross No. 3 (1991): pp. 139-172. Available a https://international-review.icrc.org/sites/default/files/S0020860400071370a.pdf.
[17] Del Boca, p. 101; Graziani, being responsible for many of the policies furthered in Ethiopia, referred to Mussolini himself that the arbitrary executions were amounting to 324 only between February 19 and March 21 of 1937. Prosperi, p. 14; Ethiopians accused General Graziani of ordering the two massacres: at Debre Libanos, where 297 monks and 129 deacons were killed by Italian colonialists between May 19 and 21 of 1937; and “Yekatit 12”, where Ethiopians began to be arbitrarily killed and imprisoned by the occupation forces, in retaliation for an attempted assassination on February 19 of 1937.
[18] Treaty of Peace with Italy, February 10, 1947, Jus Mundi. Available at https://jusmundi.com/en/document/pdf/treaty/en-treaty-of-peace-with-italy-1947-treaty-of-peace-with-italy-1947-monday-10th-february-1947.
[19] Prosperi, pgs. 15-20; This political choice was later reflected in a directive issued on July 12, 1945, which permitted the Theatre Commanders to turn over immediately to the nation making the request of those who were suspected of committing war crimes on that nation’s territory. However, those who had cooperated with the Allied authorities were not covered by this directive.
[20] Pedaliu, p. 510.
[21] Prosperi, p. 18.
[22] Pedaliu, pgs. 10-11.
[23] Battini, p. 356.
[24] Ibid.
[25] Gazzetta Ufficiale della Repubblica Italiana. “Decreto Presidenziale 22 Giugno 1946, n. 4,” June 23, 1946. Available at https://www.gazzettaufficiale.it/gazzetta/serie_generale/caricaDettaglio?dataPubblicazioneGazzetta=1946-06-23&numeroGazzetta=137.
[26] Battini, p. 356, 357.
[27] Pedaliu, p. 525; Graziani and Roatta’s treatment is quite representative. Despite living in Rome till his death and producing novels as early as 1946, Roatta was never caught again after his remarkable escape from detention during his trial in the summer of 1945. Concerning Graziani, the Italian government wanted him on charges of “high treason” because of the war crimes he was charged with from the occupation of Ethiopia.
[28] Del Boca, p. 114.
[29] Battini, p. 359.
[30] Collins, Matisiko Samuel. “The Anatomy of the Nuremberg Legacy: Strengths, Flaws and Relevancy Today.” SSRN Scholarly Paper. Rochester, NY, March 17, 2015, p. 2. Available at https://doi.org/10.2139/ssrn.2579845. One of the most proposed critiques to the Nuremberg trials was the breach of the non-retroactivity principle, and the concepts of “nullum crimen sine lege” and “nulla poena sine lege”.
[31] Del Boca, p. 114.
[32] Ferrari, Marcella. “Crimini Del Terzo Reich: Ha Giurisdizione Il Giudice Italiano.” Altalex, October 12, 2020. Available at https://www.altalex.com/documents/news/2020/10/12/crimini-terzo-reich-ha-giurisdizione-giudice-italiano.