Re Kappler

• Jurisdiction: Italia
• Date: 20 Luglio 1948
• Docket Number: Case No. 151
• Court: Military Court (Italy)

Italy, Military Tribunal of Rome.

Case No. 151

In re Kappler.

Belligerent Forces — Status of — Italian Partisan Groups in Second World War — Whether Governed by Law of War — Whether Illegal Combatants — Conditions.

War — Rules of — Military Necessity — Reprisals and Collective Punishment.

War — Reprisals and Collective Punishment by the Occupant.

Warfare on Land — Reprisals — Nature of — Conditions and Limits of — Collective Punishment — Relation to Reprisals — Hague Convention No. IV — Execution of Civilians as Reprisals — Collective Punishment for Act Committed against the Belligerent — The Law of Italy.

The Facts.—The accused was charged with having ordered the killing of 335 hostages in the Ardeatine caves following an attack by irregular forces upon a detachment of German soldiers who were marching through the Via Rasella in Rome. The accused pleaded that the killing of 330 of the hostages constituted a lawful act of reprisal, while the execution of the other five hostages was due to a culpable mistake. He pleaded, further, that if the attack in the Via Rasella was not to be regarded as an act of individuals operating in their private capacity, and if therefore the executions could not be recognized as lawful acts of reprisals, the executions had to be treated as lawful acts of collective punishment. Other relevant facts appear from the Held, below.

Held: that the acts concerned were not lawful measures of reprisal or of collective punishment. They constituted illegal acts of killing in the course of military operations in the meaning of Article 185 of the Italian Military Criminal Code in Time of War. The Court said:

“The examination of the pleas of the defence bears mainly upon the legal aspects of the attack in the Via Rasella. For the right to take reprisals arises only in consequence of an illegal act which can be attributed, directly or indirectly, to a State. On the other hand, if civilian citizens of the occupied State commit criminal acts within the occupied territory which harm the occupying State, and if the search for the culprits proves to be a matter of considerable difficulty, partly owing to the solidarity of the population, it is permissible to impose collective sanctions.

“The evidence has shown that the attack in the Via Rasella was carried out by a military organization in consequence of orders of a general nature given by a section of the Military Directorate. These orders represented the directives of the Military Directorate itself. …

“In March 1944 nearly all the more important secret military organizations which had grown up to fight the Germans had been organized under one Military Directorate. Its task, among others, was to give a uniform direction to the activities of those various organizations. There was no responsible head of this complex of organizations. As a result, each acted independently, complying only with the orders of the Directorate through, its own chief. The legitimate Government appointed as head of a secret military organization first Colonel Montezemolo, and subsequently General Armellini. This organization was mainly intended to be the rallying point of soldiers who were serving on 8 September 1943 and was only one of the many organizations which operated in the occupied territories. It was not acting under the Military Directorate. Excellent relations existed between the former and the latter. Frequently an exchange of views took place, but no organic structure of command and subordination was created.

“In March 1944 the partisan movement had assumed large proportions, and had acquired a moderate organization. But it had not yet acquired those characteristics which would have justified conferring upon it the character of a lawful belligerent force. This is not peculiar to the Italian partisan movement. It is a well-known feature of all the partisan movements which during the last war represented one of the finest manifestations of the spirit of resistance of the people in occupied territory. Since, generally speaking, the partisan formations arose spontaneously, their activities during the initial period were, of necessity, illegal. They became lawful only where they acquired an organization capable of being treated as a legitimate belligerent force. That stage was reached in the course of time also by the Italian partisan movement. This development shows a mass movement which, intent upon defending its liberty, begins to stir, to join hands and to organize itself against the enemy, at first illegally, owing to the nature of the situation, and then lawfully.

“According to international law (Article 1 of the Annex to Hague Convention IV of 1907) an act of war which is legitimate in substance maybe carried out only by regular troops or by corps of volunteers. The latter must comply with certain conditions, i.e. they must be commanded by a person who is responsible for the acts of his subordinates, they must carry a distinctive emblem which can be recognized at a distance and they must carry arms openly.

“In the light of these considerations it is clear that the attack in the Via Rasella, whatever its importance, was an illegal act of warfare seeing that it was carried out by a corps of volunteers who, in March 1944, did not comply with the above-mentioned conditions.

“Having thus established that the attack in the Via Rasella was an unlawful act of warfare it is further necessary to determine, in view of the ensuing legal consequences, what was the position of the attackers in relation to the Italian State. As stated before, the attackers formed part of an incorporated military organization of national liberation. This purported to act as a legitimate organ, at least de facto, of the Italian State, having regard to the implicit recognition accorded to it by the legitimate Government by many outward manifestations, and owing to the fact that the organization operated in occupied territory in the interests of the legitimate Government. This interpretation is supported by the fact that the State subsequently treated as regular combatants those partisans who had taken an active part in the fight against the Germans. It is now possible to examine the contention of the defence that the shootings in the Ardeatine caves were legitimate acts of reprisals.

“Reprisals may be defined as a reaction against the State which has committed a violation of international law, carried out by the State which was the victim of this violation and intended to put an end to it or to obtain satisfaction. It may take place in time of peace and in time of war. In the latter case it may be ordered not only by those authorities of the State which...