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Trial of General von Mackensen and General Maelzer

Case No. 43 (1945)

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Trial of General von Mackensen and General Maelzer

British Military Court in Rome

Case No. 43 (1945)

Facts

In 1944, Italy bombed a group of German police, resulting in the death of 32 German police. In response, Hitler’s headquarters issued an order to the commander of a German Army Group in Italy, Field Marshal Kesselring, to shoot a total of 320 Italians, which amounted to 10 Italians for every one German police killed. The order did not clarify how the Italians sentenced to death were to be chosen. Upon receiving the order, Kesselring informed Commander General von Mackensen (defendant) who contacted General Maelzer (defendant) to inquire whether there were enough Italians who had already been sentenced to death to satisfy the order. Maelzer contacted the head of the German Security Service, Lieutenant-Colonel Kappler, to find out how many Italians had been sentenced to death. Shortly after this exchange, von Mackensen and Maelzer (collectively, the generals) gave orders to the German Army and police authorities to begin the executions. The authorities refused. Kappler’s German Security Service then performed the executions. A total of 335 individuals were killed. Only four of the individuals killed were connected to the bombing. The victims included a young boy, an elderly man, and a prisoner who had been acquitted. Additionally, among those killed were many Jewish individuals who were not of Italian nationality. After the massacre, the generals were accused in the British Military Court in Rome of committing war crimes for exceeding the order issued by Hitler’s headquarters and indiscriminately killing victims. The court held a trial. The prosecution (plaintiff) claimed that Kappler had informed the generals that he did not have enough prisoners to satisfy Hitler’s order and would compile a list of other individuals who he believed were worthy of death. The generals claimed that Kappler had told them that he believed he had enough prisoners to satisfy the order and that if the number of prisoners did not satisfy the order, then he would report that 320 prisoners were executed. The generals also claimed that they had no knowledge before the massacre that 335 individuals would be killed and that the killings were justified because it was a countermeasure taken in response to the bombing of German police. The court considered the case.

Rule of Law

Issue

Holding and Reasoning

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