## Facts

- On March 23, 1944, a bomb exploded in Via Rasella (Rome) among German police, killing 32 policemen.
- Hitler’s headquarters ordered Field Marshal Albert Kesselring (Commander of Army Group “C” in Italy) to shoot, within 24 hours, 10 Italians for each German policeman killed (320 total); the order did not state how the victims were to be selected.
- Kesselring passed the order to General Eberhard von Mackensen, commander of the German 14th Army (whose sector included Rome).
- Von Mackensen contacted General Kurt Maelzer, Military Commander of Rome, asking whether there were enough persons already sentenced to death to satisfy the quota.
- Maelzer asked Lieutenant-Colonel Herbert Kappler, head of the German Security Service (SD) in Rome and responsible for city prisons, how many condemned prisoners were available.
- Shortly after these communications, the two generals issued directions to German Army and police authorities to proceed with the executions; those authorities refused to carry them out.
- Kappler’s SD unit conducted the executions at the Ardeatine Caves (Fosse Ardeatine), killing 335 people—exceeding the 320 figure tied to the reprisal ratio.
- Only four of the victims had any connection to the bombing. The dead included a young boy, an elderly man, a prisoner who had been acquitted, and many Jewish victims who were not Italian nationals.
- At trial, the prosecution contended Kappler told the generals he lacked enough condemned prisoners and would compile a list of additional detainees deemed “worthy of death,” including persons held for partisan activity, sabotage, or other reasons.
- The defense claimed Kappler misled higher authorities by saying he had enough condemned prisoners and that, if the number were short, he would still report that 320 had been shot; the generals maintained they did not know beforehand that 335 would be killed and argued the shootings were a lawful countermeasure.

## Issues

1. Whether the reprisal killing of 335 persons—most unconnected to the Via Rasella attack—constituted a war crime under the laws and customs of war, including limits reflected in Hague Regulation Article 50 on collective penalties.
2. Whether a claimed belligerent reprisal could justify executing prisoners and detainees selected largely without a demonstrated link to the triggering attack.
3. Whether von Mackensen and Maelzer were criminally responsible for being “concerned in” the killings by transmitting, initiating, and facilitating the reprisal operation, even though Kappler’s SD unit performed the shootings.
4. What role, if any, superior orders and reliance on Kappler’s representations played in liability or mitigation.

## Decision

- The British Military Court (Rome) found both General von Mackensen and General Maelzer guilty of committing a war crime by being concerned in the reprisal killing of 335 persons at the Ardeatine Caves.
- The court imposed death sentences on both defendants; post-trial action later commuted those sentences.

## Legal Principles

- Reprisals against civilians, hostages, or detainees are tightly limited by the laws and customs of war; mass killing of persons not shown to be responsible for the precipitating act violates those limits and can constitute a war crime.
- Collective penalties are restricted under Hague Regulation Article 50 principles; punishment cannot be imposed on a population or group based on acts for which individuals are not personally responsible.
- A reprisal must be restrained by requirements such as necessity, proportionality, and discrimination; selecting victims from prisons based on administrative categories (or being “worthy of death”) rather than connection to the attack makes the measure unlawful.
- Senior commanders can incur individual criminal responsibility when they pass on unlawful orders, initiate action to carry them out, and accept or report completion of the reprisal, even if another unit executes the killings.
- Superior orders and claims of reliance on subordinate assurances do not excuse participation in manifestly unlawful mass executions, though they may bear on sentencing.

## Conclusion

The British Military Court in Rome held that the Ardeatine Caves massacre was an unlawful reprisal because the victims were selected largely without a demonstrated link to the Via Rasella bombing and the operation resulted in large-scale, discriminatory killings, including deaths beyond the stated quota. It convicted von Mackensen and Maelzer for being concerned in implementing the reprisal through their roles in transmitting and setting in motion the execution process, rejecting the claim that the killings were justified as a lawful countermeasure.


Trial of General von Mackensen and General Maelzer, Case No. 43 (1945)