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UDC 341.018
APPLICATION OF INTERNATIONAL CRIMINAL LAW IN NATIONAL LEGISLATION
S. Ayaganova Academy of Law Enforcement Agencies under the General Prosecutor's Office of the Republic of Kazakhstan sagynysh.kz11@gmail. com
The author of the article considers the application of international criminal law in the legislation of states, as well as directly in the national legislation of Kazakhstan.
In the author's opinion, the main direction of development of the national criminal law is its compliance with the norms of international criminal law.
Keywords: international criminal law, national legislation, ways of applying the norms of international criminal law.
The modern realities of time are conditioned by the need to implement the norms of international criminal law in the national legislation of each state, which cares about the safety of its citizens and the country as a whole.
The direct application of international criminal law depends on the legal source of law, which in a formal sense is the result of normative and sometimes law enforcement activities.
At the same time, law enforcement activities can be referred to the competence of several states directly, when concluding bilateral or multilateral agreements, or indirectly, when the state delegates the powers of international organizations.
The main feature of any source of international criminal law is its imperative, rather than a recommendatory character for the law enforcer. The system of sources of international criminal law consists of: the principles of international law, the treaty norms of international law, customary international norms, decisions of international organizations (including the precedents of international courts and tribunals). In this case, the principles of international law and international custom should have mandatory regulatory framework [1].
The direct application of international criminal law means that this rule is applied by a national or international court independently, without any reservations and limitations.
A feature of international criminal law is the relatively small possibility of applying its provisions directly. This is due to the fact that the overwhelming majority
of international documents of a criminal nature require that the crime of an act be established in the national law.
A similar tradition was laid in Art. V of the Convention on the Prevention and Punishment of the Crime of Genocide (1948), which directed States parties to introduce the provisions of this Convention into "the necessary legislation ... in accordance with its constitutional procedure". Such an essentially worded formulation subsequently became generally accepted, although it began to vary from the obligation of the participating States to simply "take the measures" necessary to implement the provisions of the Convention [2] to a direct requirement to establish the crime and punishability of the act in domestic law [3].
The international body (the court) can directly apply the norm of international criminal law. Thus, in accordance with Part 1, Article 21 of the Rome Statute of the International Criminal Court, the Court primarily applies the provisions of its Statute. If these cannot be applied, then he can apply any applicable rule of international criminal law.
The national court can also directly apply the rule of international criminal law. Thus, according to Clause 4, Article 7 of the Criminal Code of the Republic of Kazakhstan, the issue of criminal liability of diplomatic representatives of foreign states and other citizens who enjoy immunity is resolved if these persons commit a criminal offense in the territory of the Republic of Kazakhstan in accordance with the norms of international law.
In the event that there is no relevant provision in the national law, the national court is obliged to apply the norm of international criminal law to the state. Since, in most states, there is a constitutional requirement that the rules of international law operating for them are an integral part of their national legal system. In Kazakhstan, this rule is spelled out in Article 4 of the Constitution, according to which Kazakhstan recognized the priority of international legal norms and principles, and designated its predisposition to universal values [4].
For international criminal law, indirect application is more typical - that is, the application of the national criminal law in compliance with the requirements of international criminal law.
A distinctive feature of many international acts is the requirement to establish responsibility for an international crime in national law with a view to obtaining the state's own jurisdiction over the offender.
The Rome Statute of the International Criminal Court also provided for an expanded possibility of the mediated application of international criminal law. Thus, Article 1 explicitly states that the Court "supplements the national criminal justice authorities".
In accordance with the preamble to the Statute of the Court, "it is the duty of each State to exercise its criminal jurisdiction over persons responsible for
international crimes". Many national criminal laws contain provisions that criminal law is applied in strict accordance with the criminal law itself.
As is known, the Criminal Code of the Republic of Kazakhstan is based on the "Constitution of the Republic of Kazakhstan and universally recognized principles and norms of international law" and is the source of the criminal legislation of the Republic of Kazakhstan. Other laws providing for criminal liability are subject to application only after they have been included in the above Code [5].
The national court, as a rule, applies the norm of national criminal law. At the same time, the qualification of the deed and the appointment of punishment also occur in accordance with the requirements of domestic criminal law. Universal for this application of the rule of domestic law is its compliance with international criminal law. If the given norm of the national law does not correspond or directly contradicts the international law, then the latter should be applied. This provision on the priority of international law over domestic law is provided for not only by the Constitution of Kazakhstan, but also by Clause 3 of Article 1 of the Criminal Code of the Republic of Kazakhstan, "except when it follows from the international treaty that a law is required for its application", i.e. indirect application of international criminal law.
Thus, the application of international criminal law is possible in two ways: directly, when the national law enforcement agency or international body applies the very norm of international criminal law and indirectly, i.e. the norm of the national criminal law is applied in accordance with international criminal law. In case of conflict of norms of international and national criminal law, priority should be given to the current rule of international criminal law.
In this connection, the introduced or amended national criminal law norm should not initially contradict the provisions of the international act.
Literature
1. Kibalnik A.G. Introduction to the international criminal law. - Stavropol, 2001. - P. 42-64.
2. Art. 6 of the Convention on Slavery of September 25, 1926 (as amended by the Protocol of December 7, 1953) // Collected treaties, agreements and conventions concluded by the USSR with foreign states. Issue. 17-18. - M., 1960. - P. 275.
3. Art. 22 of the Convention on Psychotropic Substances of 21 February 1971 // Collected treaties, agreements and conventions concluded by the USSR with foreign states. Issue. 35. - M., 1981. - P. 425-426.
4. The Constitution of the Republic of Kazakhstan. Access mode: http://adilet.zan.kz/eng/docs/K950001000_.
5. The Criminal Code of the Republic of Kazakhstan. Access mode: http://adilet.zan.kz/rus/docs.
