SS captain Erich Priebke is getting away with murder

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SS Captain Erich Priebke has gotten away with murder — mass murder, compliments of the Italian judicial system.

Priebke confessed to having participated in one of the most infamous atrocities in Italy during World War II: the roundup and massacre of 335 men and boys in retaliation for the killing of 30 German soldiers by partisans. A military tribunal in Rome turned him loose.

Due to the public outcry that greeted his recent acquittal, Priebke was rearrested on the strength of a German request for extradition.

Frankly, that development just adds to this pathetic farce, since I expect Germany will render no more justice than did Italy.

The German extradition request does serve a useful purpose, however: It was the only way Priebke could be put back behind bars.

But much more is at stake than Priebke's fate. His acquittal has given aid and comfort to those who seek to rewrite history, minimize the scope of Nazi crimes and denigrate the enormity and significance of the Holocaust.

Apparently, the court found that Priebke's conviction was barred by the statute of limitations, meaning that the case was brought too late. Italian law prevents conviction for all possible crimes in which Priebke admittedly was involved, with one exception: a special category of murder requiring special "cruelty" in addition to the traditional premeditation.

The court found that when Priebke and his band of SS thugs committed the mass murder of 335 civilians in the Ardeatine caves near Rome, they were not cruel, at least by Italian judicial standards. It seems Priebke's claim that he was following the orders of superiors entered into their reasoning on the cruelty issue.

Although such a defense has been widely rejected under many systems of military justice, including that of pre-Nazi Germany, many in the military support it.

While that uneasiness might explain the Italian court's motivation, it doesn't make the decision any less repulsive. The facts are that, in 1944, SS troops rounded up and massacred 335 men and boys in retaliation for the killing of 30 German soldiers by partisans.

That the crime was premeditated is beyond question. And to find that the requisite cruelty was lacking is an insult to our intelligence. If the deliberate mass murder of innocent civilians is not, by definition, cruel, what is?

Moreover, the act itself was meant to be cruel. It was part of a diabolical policy by occupying Nazi forces to intimidate the civilian population and break their resistance.

Even if one were to accept that Priebke was not unduly cruel when he blew away over 300 people, it is disgraceful that Italy would time-bar such mass murder. Statutes of limitations are, after all, enacted into law by legislators; they are not preordained.

Now Germany would like to appear as the champion of justice as it touts its request for Priebke's extradition. I would reserve judgment on that score. If past performance is any indication, and it usually is, I fear that the outcome will be no different in Germany than in Italy, even if Priebke is returned to his homeland for trial.

First, German courts are notoriously reluctant to convict elderly Nazi criminals, allowing proceedings to drag on. Moreover, in the relatively rare instances when convictions are secured, insultingly lenient sentences are usually imposed.

Consider the cases of Aquilin Ulrich and Heinrich Bunke. In 1987 a German court convicted these two doctors of killing more than 15,000 physically and mentally disabled people under the Nazi's euthanasia program. One would have expected a stiff sentence to be handed down.

The sentence: four years in prison! So much for German justice.

But there is more. Priebke's confession might be as insufficient for the Germans as it was for the Italians. Germany also has enacted a statute of limitations that effectively bars the prosecution of all Nazi-era crimes. The exception is "base motive" murder, under which the prosecution must prove that the murder was carried out with special cruelty, depravity or personal hatred.

As director of the Office of Special Investigations, I learned that it is virtually impossible to meet that standard. Consider the case of Bogdan Koziy.

In 1981, a federal judge in West Palm Beach, Florida, ruled that Koziy, as a member of the collaborationist Ukrainian police, murdered a 4-year-old Jewish girl and helped slaughter her family. We sent the evidence, court records and judicial findings to the West German Ministry of Justice in the hope that officials there would seek Koziy's extradition to stand trial for murder.

Months later I received the German response: an official Note Verbale, stamped and ribboned. Although agreeing with the U.S. court's findings, the "base motive" requirement was missing: The record, in their view, did not support a finding that Koziy had inflicted special pain or cruelty.

That Koziy had put a revolver to the head of the terrorized 4 year old and pulled the trigger as she screamed for mercy was not enough.

I repeatedly raised the Koziy case with German officials. I never received a satisfactory explanation for their reasoning. Eventually, Koziy fled to Costa Rica where, as far as I know, he still lives comfortably.

That case, and the German refusal to act on it, haunt me to this day. I am not optimistic that Priebke will receive justice in Germany.

I am sure there are those who feel sorry for old man Priebke. Stripped of his SS uniform and revolver and without his authority to determine who lives and who dies, he looks like any grandfather. Let him live out his days peacefully, they say; forget about the 50-year-old crimes, the publicity is punishment enough.

But the likes of Priebke deserve no compassion. Such sentiments are reserved for the families and loved ones of the 335 boys and men who perished at the hands of Priebke and his cohorts. They were deprived of the opportunity to become grandfathers and to die peacefully.

When the Italian Court failed to convict Priebke, his victims were murdered yet again. Shame on Italy.