Why Italy cannot bring war criminals to justice

Italians have failed to face up to their Fascist past. This has led to farce in the Erich Priebke trial, and makes them unequipped to deal with war crimes, says Andrew Gumbel

Whatever one thinks of the Rome military court's decision not to punish Erich Priebke, the former SS captain who took part in the massacre of 335 Italian civilians at the Ardeatine Caves in 1944, one thing is clear: his case will go down in history as an object lesson in how not to conduct a war crimes trial. An affair that was intended to bring a little historical justice to the single most brutal incident of the Second World War in Italy has turned, instead, into an undignified farce, opening up painful old wounds while raising far more questions than it has answered.

The trial, which took more than half a century to come to court in the first place, was characterised all along by obfuscation and mystery. One witness threw himself out of a window on the morning he was due to testify, another was unexpectedly disqualified by the judge and others still were prevented from answering certain key questions. The prosecution accused the court of protecting certain vested interests, claimed that the verdict had been decided in advance and tried - unsuccessfully - to have the case retried with a different set of judges.

Last Thursday, the court appeared to confirm the prosecution's worst fears by finding Priebke guilty but ruling that his crimes were covered by the statute of limitations because of "mitigating circumstances"; that is, the fact that he was acting under orders from his Nazi superiors. So outraged was the reaction to this ruling, both in the corridors of power and out on the streets, that Italy's politicians scrambled furiously to counteract it. After several hours of frantic phone calls and careful consultation of the criminal law, the Justice Minister, Giovanni Maria Flick, ordered Priebke's rearrest, saying he was to be held in custody pending receipt of an extradition request from Germany. Now, Priebke is being interrograted all over again as he languishes in Rome's Regina Coeli jail, the very place from which he plucked scores of the victims of the Ardeatine Caves massacre more than 52 years ago.

The absurdities of the situation are glaring. First, that the court should go against a precedent stretching all the way back to Nuremburg and look kindly on the excuse of obeying orders. Second, that the Italian government should interfere so blatantly with the workings of a supposedly independent judiciary once the verdict had been reached. Third, that Priebke should be acquitted but still find himself in jail. And fourth, that after campaigning arduously for Priebke's extradition from Argentina two years ago, the Italian government should now consider handing him over to another country in the hope of securing the conviction it could not clinch at home.

The heart of the matter is that Italy, both judicially and psychologically, is quite unequipped to deal with war crimes; if the Priebke case has bred only confusion and consternation, it is partly because the Italians have yet to come to terms with the complex horrors of the 1930s and Forties for themselves. Since the war, there has been little or no soul-searching about the complicity of ordinary Italians in the crimes of the Fascist state, and no thorough investigation into those who collaborated with the Nazi occupation in the northern half of the country after 1943.

Perhaps of greatest direct bearing on the court ruling is the fact that Italy has never amended its penal code to include the specific offence of crimes against humanity. The court could only judge Priebke on ordinary war crimes, and as a consequence became inextricably bogged down over the question of statute of limitations.

Unlike Germany, which hasn't stopped agonising about its Nazi past, and unlike France, which slowly began to address the issue of war crimes and collaboration in the early Seventies, Italy has simply kept its old demons firmly in the closet. Largely this has been for reasons of national unity: Italy at the end of the war was bitterly divided between the Communist- led partisans and those who remained faithful to the rump Fascist state, the Salo Republic, and as many as 15,000 people were slaughtered in reprisals and vendettas.

There were other dangerous cracks in the fabric of the nation, too: splits between republicans and monarchists, between the relatively prosperous north and the backward south and, with the Cold War creeping up, between Communists and anti-Communists. Under the circumstances, the country could ill-afford a protracted period of recrimination and self-criticism, so it passed an amnesty law exonerating all but the most heinous of crimes. There was no purge of Fascist officials, not even in the police or the judiciary, with the result that any cases that might have come to court were quickly buried.

The only crime to be dealt with in the immediate post-war period was the massacre at the Ardeatine Caves, which was just too big an event to ignore. But even this first trial was a farce, since only Priebke's superior, the Gestapo chief Herbert Kappler, was give a jail sentence while five others were acquitted - again on the grounds that they were obeying orders. Priebke, who was on the run by then but whose role was well known, was not even mentioned in the court documents.

It now appears hundreds of war crimes, even the ones committed by Germans, were systematically ignored by military prosecutors in the Fifties and Sixties. One of the SS members to feature prominently in the latest trial, Karl Hass, was allowed to live quietly in the Milan suburbs for years; to keep Nazi-hunters off his trail he was even officially registered as dead.

It seems unlikely that the Italians will ever embark on a thorough examination of the sins of the past - especially now that the National Alliance, heirs to the post-war neofascist movement have re-entered the political mainstream. The prevailing talk is of reconciliation and consensus, not of stirring up old demons.

But the absurdity of Priebke affair, and the outrage it has provoked, may still achieve one thing: to make Italians realise what a mess they have caused by failing to deal with some of the basic issues of war crimes and their consequences a long, long time ago.