Transitional Justice in Italy and the Crimes of Fascism and Nazism

281 Pages·2022·1.815 MB·English

by  Paolo Caroli

Transitional Justice in Italy and the
Crimes of Fascism and Nazism
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.
Paolo Caroli is Lecturer of Criminal Law in the Faculty of Law at the University
of Turin, Italy. Previously, he was Fellow of the Alexander von Humboldt
Foundation in the Faculty of Law at the Humboldt University of Berlin, Germany.
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Transitional Justice in Italy and the Crimes of Fascism and Nazism
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Transitional Justice in Italy
and the Crimes of Fascism
and Nazism
Paolo Caroli
First published 2022
by Routledge
4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
605 Third Avenue, New York, NY 10158
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2022 Paolo Caroli
The right of Paolo Caroli to be identified as author of this work has been
asserted in accordance with sections 77 and 78 of the Copyright, Designs
and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or
utilised in any form or by any electronic, mechanical, or other means, now
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any information storage or retrieval system, without permission in writing
from the publishers.
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registered trademarks, and are used only for identification and explanation
without intent to infringe.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
A catalog record has been requested for this book
ISBN: 978-1-032-22622-4 (hbk)
ISBN: 978-1-032-22623-1 (pbk)
ISBN: 978-1-003-27338-7 (ebk)
DOI: 10.4324/9781003273387
Typeset in Galliard
by Deanta Global Publishing Services, Chennai, India
To Mario, Vanda, Tania
– my rock and my supporters –
and in memory of Bruno, Laura, Reno.

Contents
Timeline of the main historical events x
Timeline of the main transitional justice events xi
Acknowledgements xii
Introduction 1
PART I
The Italian experience of transitional justice 7
1 Historical, legal and judicial context of the transition 9
1.1 What do we call transitional justice? 9
1.2 Historical background: The crimes of Fascism and during
World War II 18
1.3 The criminal prosecution of Fascist crimes
committed in Italy 25
1.3.1 Applicable law: “Sanctions against Fascism” 27
1.3.2 The judging courts: The Extraordinary Courts of
Assize 32
1.3.3 A turn towards clemency 38
1.3.4 The Togliatti amnesty 40
1.3.5 Following clemency measures (1946–1966) 44
1.4 The criminal prosecution of crimes committed by the Italian
army against foreign populations 47
1.4.1 Applicable law 47
1.4.2 The “fight” of the government to avoid
prosecution 51
1.5 The criminal prosecution of the crimes of the Resistance 57
1.5.1 The Resistance on trial 62
1.6 The criminal prosecution of Nazi crimes against the Italian
population 67
viii Contents
1.6.1 The prosecution before the military tribunals of the US
and the UK 68
1.6.2 The Italian prosecution: First phase (1948–1960) 70
1.6.3 The standstill and the discovery of the Armoire of
Shame 74
1.6.4 The Italian prosecution: Second (1994–2002) and
third (2002–2013) phases 78
2 The Togliatti amnesty 88
2.1 The Togliatti amnesty as a paradigm of the Italian
transition 88
2.2 The role of political amnesties in the Italian history 94
2.3 The three “Fascist crimes” 102
2.3.1 Article 2 of Legislative Decree of the Lieutenant of the
Realm of 27 July 1944, No. 159 103
2.3.2 Article 3 of Legislative Decree of the Lieutenant of the
Realm of 27 July 1944, No. 159 105
2.3.3 Article 5 of Legislative Decree of the Lieutenant of the
Realm of 27 July 1944, No. 159 107
2.4 The Togliatti amnesty on the books 120
2.4.1 The content of the amnesty decree 123
2.5 The Togliatti amnesty in action 127
2.5.1 The exceptions: Persons with high functions of civil,
political or military command 128
2.5.2 The exceptions: Facts of … massacre 130
2.5.3 The exceptions: Facts of … murder 131
2.5.4 The exceptions: Facts of … pillage 132
2.5.5 The exceptions: Facts of … particularly cruel
brutality 132
2.5.6 The exceptions: Crimes committed for profit 134
PART II
A critical approach to the transition 137
3 The Togliatti amnesty within the framework of
transitional justice 139
3.1 The Togliatti amnesty from a criminal law perspective 139
3.2 The Togliatti amnesty from a historical perspective 151
3.3 The Togliatti amnesty from a transitional justice
perspective 154
3.3.1 Forms of transitional amnesties 166
Contents ix
3.3.2 Labelling the Togliatti amnesty 170
3.4 The Togliatti amnesty and today’s international
criminal law 174
4 The Italian experience within the framework of
transitional justice 178
4.1 Amnesic amnesty vs. oblivial amnesty: Analogies and
differences between Italy and Spain 178
4.2 The constituent role of amnesty and the importance of
founding myths: Lessons from South Africa 184
4.2.1 Looking for the founding myth 188
4.2.2 Transition, victims and truth 193
4.3 Italian transitional justice and historical memory 201
4.3.1 The post-war memorial paradigm in Europe 203
4.3.2 The European Union and the post-1989 memorial
paradigm 209
4.3.3 An Italian exception? 215
4.4 Italian transitional justice and the Holocaust: A self-
acquitting myth? 221
4.4.1 The Holocaust in post-war criminal justice and
legislation 221
4.4.2 The implantation of the EU memorial paradigm:
The Shoah Memorial Day, the criminal prosecution
of denialism 231
PART III
Facing the present, facing the future 237
5 The legacy of the Italian transitional justice 239
5.1 A difficult balance of the Italian transitional justice 239
5.2 The future of transitional amnesties 241
5.3 Criminal law and the protection of historical memory 247
5.3.1 Fascism, anti-Semitism and the criminalisation of
symbols and gestures: A comparative analysis between
Italy and Germany 247
5.3.2 Social networks: The new front of the war? 256
5.4 Contemporary Italy between amnesty and amnesia 260
Index 265