A Nazi's flawed trial
On March 24, 1944, SS Capt. Erich Priebke and several colleagues rounded up 335 Italian men and boys, took them to the Ardeatine Caves south of Rome and shot them in the backs of their heads.
Priebke allegedly checked off the victims' names before the massacre, which was a reprisal for the killing of 33 Nazi soldiers by Italian partisans the day before. Fifty years later he was caught. But last week a botched trial in an Italian court set Priebke free. Italy quickly rearrested him, and must now move to fix this miscarriage of justice or pass him to a nation that will.
Priebke's case is the subject of intense passions in part because punishment of Nazis is so rare. The American Office of Special Investigations has removed 48 alleged Nazi war criminals from the United States in the 15 years it has existed.
Only four of them have been tried, two in Germany, one in Yugoslavia and one in Israel. Germany, which has convicted about 7,000 since the late 1950s, is the only country that has made a determined effort to prosecute its own citizens for the murder of foreigners and members of minority groups while the Nazis were in power. Most other countries prosecute only when the killers are foreigners and the victims are not Gypsies or Jews.
After the war, Priebke escaped four times from a British military prison and eventually disappeared. But the Ardeatine massacre, the worst in Italy's Nazi occupation, burned in Italian memory. In 1994, after Argentina opened its files on Nazi immigration, ABC News found Priebke in Bariloche, where he had been living under his own name for decades. The Argentine government, either newly enlightened about his past or simply newly embarrassed, extradited him to Italy. This year Priebke, who is 83, was brought before an Italian military court.
Last week a three-judge military panel found him guilty of murder, but acquitted him of the aggravating circumstance of exceeding orders. Because the judges found he was following orders, they placed the murder in a category covered by a 30-year-statute of limitations.
Germany has requested Priebke's extradition. Italy is holding him while it considers the request and an appeal by the Italian prosecutors. They contend that one of the judges, who allegedly argued for Priebke's acquittal before the trial, should have been refused from the case.
Priebke does not deserve to be a free man. Perhaps because military courts tend to treat orders with more reverence than civilians do, the judges misapplied the law about following orders. The Nuremberg Principles state that if a soldier commits a manifestly illegal act while under orders, the judge can lighten the soldier's sentence. But acting under orders does not absolve a soldier of criminal responsibility. It is hard to imagine an act more manifestly illegal than murdering 335 innocent civilians.
The massacre also clearly falls in the category of crimes against humanity. Germany can try Priebke on this charge without putting him in double jeopardy. In international law, such crimes have no statute of limitation and may be tried in any nation's courts. Italy may yet retry him, but if it does not, Germany should be given the chance.
-- The New York Times