Transitional Justice in Italy and the Crimes of Fascism and Nazism

Paolo Caroli

• Editore: Routledge
• Anno: 2022
• ISBN:
  9781000593358
• Edizione: 1
• Argomento: History
• Categoria: Italian History

This book presents a comprehensive analysis of the Italian experience of transitional justice examining how the crimes of Fascism and World War II have been dealt with from a comparative perspective.

Applying an interdisciplinary and comparative methodology, the book offers a detailed reconstruction of the prosecution of the crimes of Fascism and the Italian Social Republic as well as crimes committed by Nazi soldiers against Italian civilians and those of the Italian army against foreign populations. It also explores the legal qualification and prosecution of the actions of the Resistance. Particular focus is given to the Togliatti amnesty, the major turning point, through comparisons to the wider European post-WWII transitional scenario and other relevant transitional amnesties, allowing consideration of the intense debate on the legitimacy of amnesties under international law. The book evaluates the Italian experience and provides an ideal framework to assess the complexity of the interdependencies between time, historical memory and the use of criminal law.

In a historical moment marked by the resurgence of racism, neo-Fascism, falsifications of the past, as well as the desire to amend the faults of the past, the Italian unfinished experience of dealing with the Fascist era can help move the discussion forward. The book will be an essential reading for students, researchers and academics in International Criminal Law, Transitional Justice, History, Memory Studies and Political Science.

Part I
The Italian experience of transitional justice

1 Historical, legal and judicial context of the transition

DOI: 10.4324/9781003273387-3

1.1 What do we call transitional justice?

The process that Italy embarked on in order to deal with serious crimes committed in the context of Fascism and World War II can be considered as an experience of transitional justice. We are not referring here solely to the phase of criminal prosecution, which mainly took place in the 1940s. On the contrary, the underlying hypothesis of this book is that both the judicial and extra-judicial mechanisms used by Italy in order to deal with its past can be read diachronically within an overall transition process, to which some current phenomena must be traced back as well.

It is therefore primarily necessary to clarify what we mean by “transitional justice” and, to this end, we will briefly reconstruct its genesis. The expression “transition to democracy” has been in use in the study of political science since the 1980s;¹ since the 1990s, the term “transitional justice” has been employed by political scientists, lawyers² and later on by historians³ and social scientists as well. Starting from 2000,⁴ a proper disciplinary field⁵ has been taking shape, which in more recent years has included the criminal law perspective⁶ as well. In general terms, the concept of transitional justice refers to a process of settling accounts with the past, which in German historiography is called Vergangenheitsbewältigung.⁷ There is a variety of contrasting understandings of the concepts of both transition and justice, and, as a consequence, of transitional justice. In the strict sense, transition is related to a change of regime.⁸ However, the scholarship tends to provide a broad notion of transitional justice, by defining it as “the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessors regimes”;⁹ therefore, “wherever successor trials’ policy bases criminal responsibility on political status, such trials extend the logic of the analogy of war crimes to dictatorship and other forms of repressive rule”.¹⁰ In 2004 the Secretary-General of the United Nations presented a report in which transitional justice is defined as

* Sources available in languages other than English are here provided in free translations by the author. 1 At least from the publication of Guillermo O’Donnell, Philippe C. Schmitter and Laurence Whitehead, Transitions from Authoritarian Rule: Tentative Conclusions about Uncertain Democracies (Johns Hopkins University Press 1986). For an account on how this disciplinary area emerged, Paige Arthur, “How ‘Transitions’ Reshaped Human Rights: A Conceptual History Of Transitional Justice” (2009) 31 Human Rights Quarterly 321; for a critique of these early approaches, Raluca Grosescu, “The Use Of Transitology in the Field of Transitional Justice: A Critique of the Literature on the ‘Third Wave’ of Democratisation” (2015) 15 Historein 102; Stephan Haggard and Robert R. Kaufman, Dictators and Democrats. Masses, Elites and Regime Change (Princeton University Press 2016). 2 Starting from a mapping endeavour developed within a project of the United States Institute of Peace (USIP): Neil J. Kritz (ed), Transitional Justice: How Emerging Democracies Reckon with Former Regimes (United States Institute of Peace Press 1995). 3 The term has been commonly used among historians at least starting from the volume by Jon Elster, Closing the Books. Transitional Justice in Historical Perspective (CUP 2004). 4 The year of publication of Ruti G. Teitel, Transitional justice (OUP 2000) and of the constitution of the International Center for Transitional Justice (ICTJ). 5 There is no agreement on the autonomy of this disciplinary field, cf. Christine Bell, “Transitional Justice, Interdisciplinarity and the State of the ‘Field’ or ‘Non-Field’” (2009) 3 IJTJ 5; Jeremy Sarkin and Tetevi Davi, “Examining the Criticisms Levelled Against Transitional Justice: (Towards an understanding of the State of the Field)” (2017) 11 HR&ILD 7; Collen Murphy, The Conceptual Foundations of Transitional Justice (CUP 2017); Claudio Corradetti, Nir Eisikovits and Jack Volpe Rotondi (eds), Theorizing Transitional Justice (Ashgate 2015). For further references, cf. Anja Mihr, “An Introduction to Transitional Justice” in Olivera Simic (ed), An Introduction to Transitional Justice (2nd edn, Routledge 2021) 1. 6 On transitional justice from a criminal law perspective, ex plurimis Gerhard Werle and Moritz Vormbaum, Transitional Justice. Vergangenheitsbewältigung durch Recht (Springer 2018); Gabriele Fornasari, Giustizia di transizione e diritto penale (Giappichelli 2013); Roberto Bartoli, “La «giustizia di transizione»: amnistia, giurisdizione, riconciliazione” in Francesco Palazzo and Roberto Bartoli (eds), La mediazione penale nel diritto italiano e internazionale (Florence University Press 2011) 57; Kai Ambos, “The Legal Framework of Transitional Justice: A Systematic Study with a Special Focus on the Role of the ICC” in Kai Ambos, Judith Large and Marieke Wierda (eds), Building a Future on Peace and Justice: Studies on Transitional Justice, Peace and Development (Springer 2009) 19. 7 A term that clearly explains the simultaneously juridical and political/value-related nature of transitional justice. On the concept of Vergangenheitsbewältigung (or, more precisely, Unrechtsvergangenheitsbewältigungsrecht), Werle and Vormbaum (n 6) 151; Sabrow argues that since the 1980s in Germany there has been a shift of paradigm from Vergangenheitsbewältigung to Vergangenheitsaufarbeitung [Martin Sabrow, Zeitgeschichte schreiben. Von der Verständigung über die Vergangenheit in der Gegenwart (Wallstein 2014) 261]. Cf. Bert Pampel, “Was bedeutet ‘Aufarbeitung der Vergangenheit?’ Kann man aus der ‘Vergangenheitsbewältigung’ nach 1945 für die ‘Aufarbeitung’ nach 1989 Lehren zahlen?” (1995) 45 APuZ 27; Friedrich Dencker, “Vergangenheitsbewältigung durch Strafrecht? Lehren aus der Justizgeschichte der Bundesrepublik” (1990) 3–4 KritV 299. 8 After the first phase of transitional justice, there was a second phase, which coincided with the so-called “third wave of democratization” [cf. Samuel P. Huntington, The Third Wave: Democratization in the Late Twenty Century (OU Press 1991)]. It began with the Spanish transition of 1975 and, driven by the end of the Cold War, it included the transitional experiences of the Latin American, South African and Eastern European States. According to part of the scholarship, starting from this phase, however motivated by a shift in the balance of global politics, and in particular from the arrest of the Chilean dictator Pinochet in 1998 (i.e. the same year of the Rome Conference that produced the Statute establishing the International Criminal Court), the “old age of impunity” finished and the “new age of accountability” begun, cf. Kathryn Sikkink, “The Age of Accountability. The Global Rise of Individual Criminal Accountability” in Francesca Lessa and Leigh A. Payne (eds), Amnesty in the Age of Human Rights Accountability. Comparative and International Perspectives (CUP 2012) 19 [this expression has been also used by the Secretary-General of the United Nations, Ban Ki-moon: UN, Secretary-General, “In ‘New Age of Accountability’, International Criminal Court, Security Council Can Work Together to ‘Deliver both Justice and Peace’, Secretary-General Says”, 17 October 2012, SG/SM/14589-SC/10794-L/3200]. See also the expressions “Pinochet effect” and Justice Cascade, respectively by Naomi Roht-Arriaza, The Pinochet Effect: Transnational Justice in the Age of Human Rights (UPP 2005) and Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions are Changing World Politics (W.W. Norton 2011). 9 Ruti G. Teitel, Globalizing Transitional Justice (Oxford 2014) 49. 10 Ibid. 37.

the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof.¹¹

11 Cf. UN, Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies. Report of the Secretary General, UNSCOR, UN Doc S/2004/616, 23 August 2004, updated in 2011.

After a first post-war phase – the post-war Nuremberg and Tokyo Trials, based on a model of retributive justice and at international level a second phase of transitional justice occurred, a post-dictatorship phase this time, as a consequence of the end of the Cold War and of the “third wave of democratization”.¹² Precisely because of the different nature of these transitions, which did not witness a defeated enemy and wherein the construction of democracy was based on a very fragile balance, this phase is characterised by the experimentation – this time at the national level – of creative solutions. These involve using new tools – starting with truth and reconciliation commissions – other than criminal prosecution alone, which was either totally or partially renounced.¹³ Today, however, transitional justice appears to be in a third phase,¹⁴ wherein it is no longer limited to post-conflict justice and transitions from an authoritarian to a democratic regime. What is more nuanced is not only the notion of transition¹⁵ but also the catalogue of tools that transitions include.¹⁶ As it has been stated, in its third phase transitional justice is equated with

12 Supra n 8. 13 For the genealogy of transitional justice, Teitel (n 9) 110. 14 For a critical analysis, Paul Gready, The Era of Transitional Justice. The Aftermath of the Truth and Reconciliation Commission in South Africa and Beyond (Routledge 2011) 5 et seq. Gready identifies three characteristics of this phase: transitional justice a) as an industry; b) as marked by a shift in ethos from substituion to complementarity c) as a case study of the ambiguities of contemporary globalisation. Sharp argues that fourth generation approaches are emerging: Dustin N. Sharp, “Interrogating the Peripheries: The Preoccupations of Fourth Generation Transtional Justice” (2013) 26 Harv. Hum. Rts. J. 149. 15 So much so that the dogmatic lenses of this category are also applied to cases of “transitional justice without justice” [cf. Werle and Vormbaum (n 6) 23] and to measures taken within consolidated democracies, for instance in relation to past discriminations based on gender or sexual orientation [cf. Paolo Caroli, “The Thin Line between Transitional Justice and Memory Activism: The Case of the German and British ‘Pardons’ for Convicted Homosexuals” (2018) 12 IJTJ 499]. 16 Holistic models such as the “ecological model of social reconstruction” [cf. Laurel E. Fletcher and Harvey Weinstein, “Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation” (2002) 24 HRQ 573] broaden their spectrum of intervention, including education in democracy and economic development policies, as part of a general social and political process that includes both official top-down mechanisms and local and spontaneous initiatives aimed at interrelation. For an overview of the holictic approaches, cf. Paul Gready and Simon Robins, “Transitional Justice and Theories of Change: Towards evaluation as understanding” (2020) 14 IJTJ 280.

Anything that a society devises to deal with a legacy of conflict and/or widespread human rights violations, from changes in criminal codes to those in high school textbooks, from creation of memorials, museums and...

Indice dei contenuti

• Cover
• Half-Title
• Series
• Title
• Copyright
• Dedication
• Contents
• Timeline of the main historical events
• Timeline of the main transitional justice events
• Acknowledgements
• Introduction
• PART I The Italian experience of transitional justice
• PART II A critical approach to the transition
• PART III Facing the present, facing the future
• Index