In 1994, during judicial investigation surrounding Erich Priebke, the so-called “cabinet of shame,” was discovered in the basements of the Military Attorney’s office in Rome, containing nearly 700 unaccounted-for files documenting war crimes committed on Italian soil by Nazi forces during the occupation.
This discovery launched an investigation into Engel by Italian authorities, however extradition was subsequently denied by Germany. Engel was consequently tried in absentia by the Military Tribunal of Turin for war crimes committed in the massacres of Benedicta, Turchino Pass, Portofino and Cravasco.
The Tribunal established on the basis of witness-questioning, principally that of Genoa-SS interpreter Giuseppe Nicoletti, that Engel was to be held responsible for all four incidents owing to his particular position as the head of the AK from January 1944 and to his direct input in deciding the modalities of the reprisals; in the case of Turchino Pass for instance it was reported that Engel personally ordered that ten Italians for every German killed were to be executed.
The Tribunal maintained that Engel’s crime consisted in the murder of non-combatants, particularly of Partisans and youth who had laid down their arms or were civilians. It also denied the legitimacy of a reprisal in “international doctrine,” whereby a state could act either preventively or repressively with regards to an aggressor state, the elements of which are the violation of a right or interest of a state, the proportionality of the reprisal with respect to the original offense, and the respect for human dignity. The Court reasoned that while the first principle could apply to the incidents at Benedicta and Turchino it could not to the other two incidents, and that the principle of proportionality had been undoubtedly violated at Turchino where, in line with the SS’s own logic, 59, not 50, Italians had been executed. Moreover, the Court stated that the illegitimacy of this kind of reprisal must have been clear in the minds of its authors.
On the basis of the Hague Conventions of 1907 Art. 50 regarding collective penalties, the Italian Penal Code (Articles 61, 81, 575, 577), the Wartime Military Penal Code (Art. 13, 47, 185) and the Peacetime Military Penal Code (Art. 58), Engel was sentenced to life imprisonment for the crime of murder committed in continuous concurrency against Italian citizens within a common criminal design.
The discovery by television station ARD of Engel’s whereabouts in 2002 and subsequent media storm set off investigations by the German justice system against Engel. In 2002, Engel was tried at the Hamburg Regional Court for the 59 counts of murder of the Turchino Pass, pleading not guilty to murder.
Engel’s defense argued that it was the Navy who bore the ultimate responsibility insofar as they had carried out the actual executions. Judge Rolf Seedorf however rejected this argument, noting that Engel was the highest-ranking official present and was therefore in command of the events. Witness testimony confirmed that Engel had the task of supervising the killings, and the accused testified that he had approved the list of detainees to be executed.
The defense also argued that this kind of reprisal had not been explicitly outlawed in 1944. This argument was rejected by the Court, who accepted that this kind of reprisal had been legitimate in theory but had exceeded the boundaries of legitimacy through its unnecessarily cruel execution.
The Court deliberated at length on Article 211 on murder of the German Penal code, specifically on whether the killings could be termed “cruel,” hence paving the way for a conviction on murder charges. The Court deemed the killings to be cruel because of the treatment of the Marassi detainees in Turchino Pass, forced to watch their companions’ executions and see their bodies in the ditch over which they would then also be shot. The Court however then considered that despite the brutality of the murder, exceptional circumstances could provide a mitigating factor for a lesser sentence than life imprisonment. In this case, the judges agreed that spotty and contradictory witness testimony, the fact that the acts of the accused had taken place 60 years earlier and the absence of legal investigation during this time against Engel rendered life imprisonment an inappropriate sentence. In July 2002, the Court sentenced Engel to a suspended 7-year prison term.
Engel appealed his conviction to the German Federal Court of Justice (BGH) in 2004. The BGH established in the first place that reprisals of the kind in question were to be considered illegal regardless of their compliance with the international customary law of the period because of the need to re-evaluate them in light of modern human rights understanding. Reprisals for the BGH are in fact a grave violation of the basic right to life; as such, following an order to kill civilians in this manner cannot be a valid defence. The BGH also clarified that as the killings had in fact been carried out by the Navy, Engel was not the commander in charge and hence not responsible as such; he was co-perpetrator of the events.
Moreover, the BGH claimed that the Hamburg court had erred in law regarding the notion of “cruelty,” in murder: it had failed to prove Engel’s subjective perspective, or the requisite mens rea of cruel intent independently from the cruel nature of the killings. The BGH agreed with the Hamburg court that the actus reus requirement had been fulfilled, but military hierarchy and wartime customs clouded determining the state of mind of the accused for certain. In other words, it was necessary to demonstrate that Engel knew of an alternative measure which he then ignored, choosing a more painful one, substantiating cruel intent and rendering him liable for murder in German law. For the BGH this was not clear from the case files, and would have required a fresh investigation. This, however, because of the age of the accused, seemed inconceivable for the BGH, which decided as a result to stay the proceedings, effectively quashing the conviction in its 17 June 2004 judgment.
Engel died at age 97 in February 2006 of natural causes.