Italy v. Seifert

Court	Military Tribunal of Verona (Tribunale Militare Di Verona ), Italy
Case number	97/2000
Decision title	Sentenza (sentence)
Decision date	24 November 2000
Parties	Repubblica Italiana (the Italian Republic) Michael Seifert
Categories	War crimes
Keywords	jurisdiction, murder, torture, war crimes, superior orders
Links	Sentencing judgment (in Italian)
Other countries involved	Canada

Summary

At the end of World War II, Michael Seifert, a Ukrainian national who had joined the SS, served as a guard at the Bolzano transit concentration camp. Here, together with another Ukrainian national, and upon the orders (or with acquiescence) of his superior Cologna, he participated in the murder and unlawful killing of internees of the Bolzano camp. In 1951 Michael Seifert moved to Canada where he lived until he was extradited to Italy in 2008.

In 2000, when he was still living in Canada, he was tried in absentia by the Military Tribunal of Verona and charged with acts of violence and murder under Articles 13 and 185 of the Military Criminal Code Applicable in Time of War. The Military Tribunal held that it had jurisdiction to try the case, as the Military Criminal Code Applicable in Time of War also applies to soldiers of the enemy’s armed forces and members of the SS (as Seifert was), are to be considered part of the Third Reich’s armed forces. The Tribunal rejected Seifert’s defence that he acted on orders of his superior, stating that the carrying out of superior orders is no defence to war crimes, as the order to commit such crimes is clearly unlawful and thus allows the subordinate to challenge it.

The Court found Seifert guilty of 11 murders and sentenced him to the maximum penalty of life imprisonment.

Related developments

Both the conviction and the sentence were confirmed on appeal by the Verona Military Court of Appeal (18 October 2001) and the Court of Cassation (8 October 2002).

Following Seifert’s conviction in Italy, a procedure was started to have him extradited from Canada. On 16 August 2007, the British Columbia Court of Appeal ordered that he be jailed after upholding an extradition request from Italy. The Federal Court of Canada ruled that the government was within its rights to revoke Seifert's Canadian citizenship as he had lied to obtain it. On 17 January 2008 Seifert lost a bid to have the Supreme Court of Canada consider his appeal seeking to stop his extradition to Italy. At the age of 83, Seifert was flown back to Italy on 16 February 2008 where he is serving his life sentence near Naples. He died in November 2010 in Italy.

Legally relevant facts

Between December 1944 and April 1945 Michael Seifert, a Ukranian national who had joined the SS, served as a guard at the Bolzano transit concentration camp. Here, together with another Ukranian national named Sein, and upon the orders (or with acquiescence) of his superior Cologna, he participated in the murder and unlawful killing of internees of the Bolzano camp.

In 1951 Michael Seifert moved to Canada where he lived until he was extradited to Italy in 2008.

Core legal questions

Does the Italian Military Tribunal of Verona have jurisdiction over war crimes committed by members of enemy armed forces?
Can ‘superior orders’ be a defence for war crimes?

Specific legal rules and provisions

Articles 13 and 185 of the Italian Military Criminal Code Applicable in Time of War.

Court's holding and analysis

On the issue of jurisdiction, the Court held that Italian Military Tribunals have jurisdiction over war crimes committed by enemy armed forces, reaffirming case law of the Constitutional Court and Supreme Military Tribunal. Next, the Court clarified that members of the SS are to be considered part of the armed forces of Germany in World War Two. Thus, Seifert fell under the scope ratione personae of the rules on war crimes of the Military Criminal Code Applicable in Time of War, which, according to Article 13 of this Code, also applies to soldiers of the enemy’s armed forces. Lastly, the Court applied a rather broad notion of nexus with armed conflict. Article 185 of the Code applies when the acts of violence are inflicted on the victim for reasons ‘not unrelated to’ the armed conflict. In the Court’s view, this notion did not require that the offence be committed specifically for reasons connected to the armed conflict. Instead, it was sufficient that the crime be linked to the conflict in a more general way. In the case at hand, the link with the armed conflict arose from the fact that many internees were opponents of the Third Reich were brought to the camp as the result of operations to counter resistance to the Nazi regime.

The Court rejected the defence of superior orders, stating that the carrying out of superior orders is no defence to war crimes (nor can it be considered an extenuating circumstance), as the order to commit such crimes is manifestly unlawful and thus allows the subordinate to challenge it.

The Court found Seifert guilty of 11 murders and sentenced him to the maximum penalty of life imprisonment. He was also ordered to pay compensation of 105 million italian lira to groups representing his victims.