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Can pay – won’t pay


Pietransieri di Roccaraso, almost 1,400 metres above sea level, is today one of Italy's premier skiing spots. But in 1943 the nearby forest of Limmari was the scene of a massacre, the repercussions of which are still felt today.

If you want to know who really wears the trousers in the European Union (as if there were any question) then a recent judgement by Italy’s foreign ministry leaves little doubt. Despite a 16 November 2016 judgement by Italy’s Constitutional and Supreme courts that Germany should be held accountable for a massacre of 128 civilians committed by the occupying Nazi forces in the Limmari forest in November 1943, the Italian foreign ministry has aligned itself with Berlin in refusing to compensate the victims of that massacre.

Italy’s foreign ministry doesn’t want to annoy Berlin by picking at old sores

This is a disgrace. About which there has been almost universal silence; outside of some small mentions in Italy, this has bypassed the European Union’s major media outlets. The only conclusion to draw from the foreign ministry’s decision is that it does not wish to annoy Berlin by picking at old sores. The ministry has cited an obscure ruling by the International Court of Justice (ICJ) in the Hague that apparently bars one state being prosecuted by jurisdictions from other countries – a ruling that is void however in cases where fundamental human rights have been violated. Such as, one might argue, the massacre 75 years ago in the Limmari forest. So we will oblige and pick away on Italy’s behalf.

The facts are these. By late 1943 the German forces in Italy were fighting a bitter retreat against the US and British armies (main picture), which had landed in Salerno, Italy, in September that year. Hitler ordered his retreating forces to stand and fight in central Italy and the village of Pietransieri di Roccaraso was one of the places that became part of the so-called Gustav defensive line. Part of Hitler’s orders was to implement a ‘scorched earth’ policy to eliminate Italian partisan groups (pictured) then assisting the Allies. In charge of the German forces in Italy was Field Marshal Albert Kesselring (pictured at his Nuremberg trial). He had posters stuck up all over the localities, including Pietransieri di Roccaraso, saying: “All those who remain in the village or in the surrounding mountains will be considered partisans and will be treated according to German military law.” The villagers of Pietransieri di Roccaraso were, in the majority, female, old men, and children – either unable or unwilling to leave their homes for an uncertain future. All the young men had fled either to join the partisans, or had already been rounded up and shipped to Germany as forced labourers.

partisans

Virginia Macerelli was seven at the time and survived because her mother covered her with her body

There were a few random killings in the days prior to 21 November – the Germans tried to force the villagers to move out by setting fire to buildings – but the real slaughter started that day, when it was evident that the people refused to leave their homes. German paratroopers of the 1st Heidrich Division entered the village with a mission to clear it; in command of the paratroopers that day was Captain George Schulze, described from contemporary accounts as “tall, thin, limping and bad-tempered” – as you would be, no doubt, in his situation.

In nearby other villages the inhabitants were simply driven out. In Pietransieri di Roccaraso all 128 people (including 34 children under the age of 10) were killed that day, with just one survivor, Virginia Macerelli, who was seven at the time and survived only because her mother covered her with her own body. You can read a translation of her testimony here. As for Schulze, he survived the war, was never prosecuted as a war criminal, and died, peacefully one must suppose, in his bed.

Of course no significant redress can really be made to the families of this massacre; all one is left with in such situations are apologies – and money. And in this case we are not talking about big bucks. The Italian court of Sulmona, which issued the 2016 judgement against Germany, called for compensation of €1.6 million to be paid to the village itself and a further €5 million to the heirs of the slaughtered. The German government declined to countenance any payments, no doubt for fear that it would open the floodgates to many more such claims. According to some estimates Germany has paid more than $90 billion in compensation to victims of the Holocaust since 1952, and is still paying today, when there are fewer than 500,000 survivors.

Kesselring

But for all the damage wreaked on Italy by German forces in the Second World War the payout has totalled – zero. An Italian, Luigi Ferrini, was forced into slave labour by Nazi Germany and took his case to the Italian Court Of Cassation in 1998 and finally, in 2004, he won. The court judged said that state immunity was not a defence when international crimes are at stake, and that he was entitled to reparations from Germany. If he’s still alive, he’s still waiting for any cash.

Germany’s resistance to paying out compensation to such as Ferrini and the families of the Pietransieri di Roccaraso murders is bolstered by the 2012 ruling from the ICJ. The ICJ then ruled (12 to 3) that Ferrini’s case violated Germany’s immunity. It rejected Italian arguments that the immunity of states did not apply in the case of war crimes and crimes against humanity committed by one country’s army on the territory of another country. For some inexplicable reason, Italians (and Greeks for that matter) who were forced into slavery for the German munitions factories in the war were excluded from reparation schemes when they were first established in the 1950s. One can only assume that the international community neglected Italy in the 1950s because, after all, Il Duce had joined Germany in fighting the war against the Allies, so it deserved all it got (or didn’t get).

The Pietransieri di Roccaraso case is replete with contradictions. Ever since the case brought in Spain in 1998 against the former Chilean dictator Augusto Pinochet, for having committed human rights violations in Chile, it’s been generally accepted that individuals and states are not immune from prosecution, no matter how old the crimes may be. Pinochet was held in London for a year before the courts decided to let him go back to Chile. Former US Secretary of State Henry Kissinger is wanted by so many jurisdictions, as either a witness or a suspect, that he now very carefully limits the places he visits.

A Chancellor who flings open the borders to millions of refugees should grasp the nettle of an earlier human rights’ crime

And finally, in the greatest contradiction of all, Germany itself brought into law in 2002 the so-called Code of Crimes Against International Law (CCAIL), which codified the principle of universal jurisdiction into its domestic law. The CCAIL facilitates the prosecution of war crimes, crimes against humanity and genocide, regardless of whether those crimes have a connection to Germany. It provides the basis for pursuing suspected war criminals under the principle of universal jurisdiction – which allows a state to prosecute foreigners even without a connection to the state in question. There are no time limitations.

limmari massacre

The fact that Germany has on its own statute book a law permitting the raising of a legal case against a state that has committed war crimes would seem to undermine the 2012 ruling by the ICJ allowing Germany to evade responsibility for paying compensation for what happened in November 1943. There are plenty of common-sense reasons why Germany should not be forced to pay up for that event – it was long ago, the people who did it have all gone, and above all Germany of 1943 is not the Germany of today.

But at the same time, common decency (as well as German law) says that Germany, one of the richest countries in the world, could take the financial hit of compensating Pietransieri di Roccaraso, and dozens more such places (and there are dozens more, waiting in the wings), without feeling the pinch. A country whose Chancellor blithely flings open the borders to millions of refugees should grasp the nettle of a much earlier human rights’ crime – and pay up without resorting to legalistic quibbling.

Picture sources: NARA,  Eugenio Gentili Tedeschi, United States Army Signal Corps