ROME — When Erich Priebke, the former German Nazi SS captain accused of taking part in Italy's worst World War II atrocity, took his seat in a Roman court Monday, a crowd of some 200 people stood up to get a closer look at him.
Mr. Priebke will probably be the last former Nazi to be tried for crimes committed more than 50 years ago under Germany's Third Reich.
His trial highlights not only a loophole in Italy's laws in relation to crimes committed during the war but also an apparent reluctance on the part of Italy in general to come to terms with its own fascist past under Hitler's ally, Benito Mussolini.
In the coming weeks, Priebke will have to account for his alleged role in the summary execution of 335 Italians, of whom 75 were Jewish.
But many Italians, too, have not held their forebears accountable for accepting fascism's extremes under Mussolini and generally tolerating the racist laws he imposed.
Unlike countries such as France and Germany, Italy has not been forced to undergo collective soul-searching regarding complicity with the Nazis.
In general, the idea has gone unchallenged that most of the population was part of the resistenza, as the civilian resistance to Germany's occupation was called.
And the laws reflect this.
Legally speaking, Italy - unlike France, which has successfully tried both Klaus Barbie and Paul Touvier for crimes against humanity - has never found a way to work around the principle of nonretroactivity that regulates most criminal codes.
When recently faced with the need to try Paul Touvier, the French state endured a six-year legal battle to enforce two basic principles established by the London Conference on Genocide in 1948 and the International Statute of the International Military Tribunal at Nuremberg in 1945.
The two principles are the lack of a statute of limitations for crimes against humanity and the broader juridical concept that, because of the exceptional nature crimes committed under Nazism, they could and should constitute an exception to the rule of nonretroactivity.
Priebke's first trial ended Aug. 1 last year when a military court found him guilty of murder but found that he should be freed because of extenuating circumstances and a 30-year statute of limitations. Public outcry and an extradition request from Germany led to Priebke's rearrest that night. The verdict was then annulled on appeal and a retrial ordered.
In this second trial, Priebke is not charged with crimes against humanity. And although he was extradited from Argentina to Italy on the specific charge of complicity in genocide at the Ardeatine Caves in 1944, he will not be tried for genocide.
At the end of the legal proceedings, Priebke will be either cleared or found guilty of multiple aggravated murder for the death of two civilians he shot.
"Priebke cannot be tried for genocide because, like all laws in this country, the 1967 provision which inscribed genocide in our criminal code is not retroactive," explains Oreste Terracini, a lawyer representing the Roman Jewish community in the trial. "He cannot be tried for crimes against humanity because that category was never inscribed in our code to begin with."
Observers say this is because Italy has not confronted its past to the extent that other European countries have.
"We are concerned that Italy may miss its date with history, as it did in the first trial," said Shimon Samuels of the Simon Wisenthal Center at the opening of the second trial April 14.
"What happened in the first trial is in some way a typically Italian phenomenon," says Tullia Zevi, president of the Union of Italian Jewish Communities. "It fits in with Italy's reluctance to face its own responsibilities under fascism. It is a fact that the Fascists imposed racist laws [against Italian Jews] in 1938 and it is a fact that if many Jews were deported it was because the Fascists collaborated."
According to Robert Katz, author of "Death in Rome," a book on the killings at the Ardeatine Caves, Italy's perspective of the past betrays "a tendency to want to forget." This tendency, he says, was made possible to a great degree by the development of a "partisan mythology" which had created the false impression of an entire people devoted to the resistenza.
Mr. Terracini's conviction that that the former Nazi should be tried for genocide rests on the premise that 75 out of the 335 victims were executed simply "because they were born Jews." The other 260 victims rounded up for execution were resistance fighters, prisoners of war, or civilians suspected of complicity in a bomb attack against the Germans because they lived on Via Rasella. It was on Via Rasella that a bomb ripped though an SS office March 23, 1944, leaving 33 dead and setting the stage for a Nazi reprisal, which came the next day. Ten Italians were executed for every German killed and their bodies rolled into natural caves in the outskirts of Rome, the Fosse Ardeatine.