In the aftermath of the Nuremberg and Tokyo trials, most international lawyers focused on their importance and legacy. Although the legal and moral value of the two major trials against the (surviving) members of the Axis Alliance appears indisputable, their success runs parallel with the almost untold story of the decision to conceal the responsibilities of the Italian forces.More after the jump.
In October 1943, the Allied leaders had established the United Nations War Crimes Commission, an independent body tasked with investigating and recording the evidence of war crimes, and identifying where possible the individuals responsible; and reporting to the Governments concerned, when there was prima facie case for the prosecution of those individuals. Indeed, by March 1948 the Commission identified and listed more than 1,200 Italian nationals, who could have been held accountable for heinous war crimes, and in particular those committed on the territories of Ethiopia and Yugoslavia.
On 1 November 1943 the Big Three (UK, USA and USSR) had also adopted the Moscow Declaration, agreeing that Italian war criminals had to be brought to justice. This proposition would be broadened by the Treaty of Peace with Italy, signed in February 1947, which Article 45 established that Italy should have arrested and surrendered for trial the persons accused of having committed, ordered, or abetted war crimes and crimes against peace or humanity by any Allied or Associated Power (including Ethiopia, since under Article 38 this provision would be applicable to all acts entailing the responsibility of Italy or Italian national towards it, from 3 October 1935).
Despite these initiatives, apart from the 40 trials the British conducted in Italy immediately after the end of the conflict, no Italian would be held accountable for the commission of international crimes.
In fact, since 1944 the Italian governments put in place diversionary strategies, with the effect of obstructing the enforcement of the obligations undertaken – and eventually the execution of the arrest warrants issued against Italian individuals. These strategies would never succeed, if at the same time the Italian governments hadn’t made significant efforts to build strong ties with the Allies (and in particular USA and UK) and to “reposition” the country.
As a result, while on the one hand Italy was authorized to submit charges to the UNWCC (thus being recognized also as a victim of war crimes), to establish a national Commission of Inquiry to assess the charges brought by Yugoslavia (with the declared task of identifying the individuals to be brought to justice), and to adopt a generalized amnesty aimed at “pacifying the country”; on the other, its counterparts, and in particular Yugoslavia and Ethiopia, were actively discouraged from requesting the execution of the arrest warrants issued against Italian high officers, including Marshal Badoglio, who had been entrusted in September 1943 with creating a first post-Fascist government together with King Victor Emmanuel III.
To sum up, the main proposition of this paper is that the missed prosecution of Italian alleged war criminals represents a debacle of the international community, for three main reasons.
First of all, because the members of the international community, and in particular the Great Powers, were directly responsible for the non-enforcement of the new-born international criminal law, and in particular of the obligations undertaken by Italy between 1943 and 1947.
Secondly, because for reasons of expediency, the victims of the crimes committed by Italy, and in particular Ethiopians and Yugoslavs, have never been provided with the same kind of justice which was granted to the victims of the other two members of the Axis.
Lastly, because by granting a de facto amnesty to the individuals identified by the UNWCC as the most responsible for the crimes, the international community also paved the way for the adoption by the De Gasperi government of a generalized, de iure amnesty (the so-called “Togliatti Amnesty”), by which Italy “condoned” the crimes committed by Fascists and collaborators on the national territory. The combination of these initiatives would finally result in a “collective amnesia”, which constitutes a second victimization of the victims of those crimes, both at the national and international level.
Note: This is the draft version of a paper selected by Max Planck Institute Luxembourg for Procedural Law, and presented on 25.11.2016 at the "Debacles" Conference. Please do not cite without the Author's permission - see first footnote for my contact.
