Practice Relating to Rule 155. Defence of Superior Orders
In its judgment in the Schintlholzer case in 1988, Italy’s Military Tribunal at Verona stated:
It is not possible to assert that [the accused’s] responsibility should be zero by simply transferring it to Schintlholzer’s superiors, such as the SS Major Rudolf Thyrolf or other officers in the hierarchy of the command chain, which if followed back would reach to the senior officer of the Joint Bolzano Command …
It is therefore hardly necessary to point out even in this connection that if it was ever possible to establish any collateral responsibility by known or unknown SS officials at an operating level, this would not in any way raise any questions about the responsibility of Schintlholzer, which has been proven at this level and in the context which has to be assessed here and now.
Thus, as far as criminal intent is concerned, evidence of awareness of the unlawful nature of the conduct involved in the barbaric images described in the preliminary reconstruction of the facts would appear to have been acquired.
Taking this together with the considerations just described concerning the possibility of collateral responsibility, it should be added that this awareness, and therefore awareness of the manifestly criminal nature of the massacre of non-combatants, cannot in fact be denied or justified through appeal to the orders of a superior. But this should in any event likewise be pursued if particulars emerge.
However, as things stand, the only order of which there is any trace in the documents relating to this case is the order for war against the partisans from the German Military Command in Bolzano, which in fact has nothing to do with the inhuman activities then engaged in by the “Schintlholzer” combat unit.
In its judgment in the Priebke case
in 1996, Italy’s Military Tribunal of Rome stated that a subordinate who commits a crime acting on the basis of superior orders could not invoke it as a defence, except in the case of a real impending danger of losing his life. However, the Tribunal recalled that “the threat of exemplary and immediate punishment by death: in such a case, he could have stepped back from his refusal and participated in the execution only to save his own life relying upon the excuse of state of necessity which is foreseen in all legal systems”. Nevertheless, the Tribunal considered that superior orders could be considered in mitigation of punishment, pursuant to a provision of the 1930 Military Criminal Code. However, the Tribunal found that the accused could not be punished for reasons of statute of limitations.
On appeal, this judgment was annulled by the Supreme Court of Cassation and another trial ordered.