Practice Relating to Rule 145. Reprisals
Section F. Limitation of reprisals by principles of humanity
In 2010, in the Italian Partisans case, Germany’s Federal Court of Justice was called upon to decide a case concerning the killing of nine Italian civilians in Tuscany in June 1944 by German troops. The Court summarized the facts of the case as follows:
… Two [German] soldiers, whom the accused had tasked with obtaining transport vehicles [as part of a mission to repair a bridge], were killed by partisans in an ambush. A third [German] soldier was injured. Since the partisans had absconded after the attack, the accused, motivated by rage and revenge, decided to take retaliatory measures against the male civilian population of the area. First, he reported the incident to the battalion commander and suggested to take action against the Italian civilians which he had already planned. Agreeing with the accused’s proposal, the battalion commander ordered the [retaliatory] measure and additionally provided logistic support by making available an antiaircraft gun and explosives. The next day, the accused ordered the arrest of all male civilians in the area. In the end, the detainees comprised a group of nine men, the oldest of whom was 67 years old and which included two adolescents who were 15 and 16 years of age. None of them had participated in the attack or was suspected of supporting the partisans. They were locked into a house.
Although some detainees were afraid of being shot, others assumed that they would stay alive but would be deported to a concentration camp in Germany in order to work there. Soon, however, the house was destroyed by explosion. Subsequently, and also pursuant to the accused’s order, machine guns were fired at the debris in order to kill any surviving victims. In the end, only the fifteen-year-old survived with severe injuries. …
On this basis, the accused was convicted on ten counts of murder and attempted murder and sentenced to life imprisonment.
The Court held: “The criminal chamber [of the lower court] rightly considered the killings of the Italian civilians ordered by the accused as murder.”
The Court rejected the argument that the killings would have been justified as war reprisals under the law in force at the time. Regarding the limitation of reprisals by principles of humanity, the Court held:
(2) War reprisals were limited by the so-called barrier of humanity (Humanitätsschranke). Even if a humane way of killing is barely conceivable, in particular not today, the law at the time at least recognized the prohibition of reprisals against women and children …
The accused argues that the victims who were 15 and 16 years of age were not children. The Court does not share this view. The term child is not uniformly defined in law. … The equation of women with children at the time means in the view of this Court that war reprisals ought not to be taken against those who cannot at all become regular soldiers (women) or who cannot yet become regular soldiers (children). According to the law in force in Italy at the time regulating compulsory military service, the obligation to provide military service only began at the age of 17 …. Thus, the two adolescents affected by the retaliatory measure would not have been subject to compulsory military service. For this reason, the Court considers that they must be considered children for the present purposes.
(3) The way in which the killing was carried out is often considered a central aspect in determining the “humanity” of a killing in the context of a reprisal … The destruction of a building by explosion in which the victims, unaware of their fate, were detained, is considered a humiliating and degrading and therefore inhumane way of killing which is not justified under the laws of war. The same is true for the subsequent and additional killing by firing machine guns …
(4) The least controversial condition for the lawfulness of a war reprisal in this context was the so-called notification, i.e. the public declaration of the event … The purpose of the notification was, on the one hand, to repel future repetitions of attacks against the occupying power … and, on the other hand, to demonstrate “that the measures taken were in the interest of enforcing the law … and thus did not have to be concealed” … There was no such notification. …
c) … [T]he finding of the criminal chamber [of the lower court] that the objective requirements for a permissible war reprisal were not fulfilled is fully confirmed.